Enock Romano Moli (Suing through father and next friend Wasibuku Moli Mori) v Godfrey Jacob Mbindi

6. PW1 was one Wasibuku Muli and parent of the minor who relied on his witness statement dated 17th July 2025 and list of documents of even date. 7. On cross-examination he testified that at the time of the accident the Plaintiff was seven years old and he was going to the market with an older sibling aged 11 years. That he did not witness the accident as he had left the child at home to attend to a burial and he did not know that the child would go to the market. 8. PW2 was one Brian Khamali a boda boda rider and an eye witness who adopted his witness statement of 17 th July 2025 as his evidence in chief. 9. On cross-examination he confirmed having witnessed the accident. That he saw the child at Amagoro on the left side of the road. That he was walking with a friend and once the child was hit he ran away. That he was overtaken by a motorcycle which caused confusion and collided with a car which in turn hit the child as it was trying to avoid hitting the motor cycle. That at the time there was a queue facing Uganda Direction That the vehicle was speeding at about 80km/hr to 90km/hr but he could not say so with certainty. 10. In re-examination he testified that he was on the right side of the road. 11. PW3 was one Joseph Sokobe who produced a medical report dated 1 st July 2025 as an exhibit and informed the court that he charged Kshs. 6,000/= for it. 12. On cross-examination he confirmed having examined the Plaintiff on 1st July 2025 and that he had soft tissue injuries and a skeletal injury which was a fracture to the right femur. That he also relied on a discharge summary from Bungoma Referral Hospital and there was no proper union of fragments and that the child ought to have recovered by now. 13. PW4 was one CPL Wilbert Ngeno who produced an abstract relating to an accident of 24th May 2025. Judgment CMCC NO E001 of 2026 pg. 2 Hon. A. Z Ogange-RM

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14. On cross-examination he testified that he was not the Investigating Officer and he did not visit the scene and the matter according to the abstract was Pending Under Investigation. 15. There was no re-examination for this witness. 16. This marked close of the Plaintiff’s case and the matter was set down for Defense hearing. 17. The matter proceeded for Defense hearing on 17th June 2026 with the Defense calling one witness namely Lydia Wabwile and who was the driver at the time of the accident. She adopted her witness statement of 19th September 2025 as her evidence in chief and relied on documents filed on 19th November 2025 as exhibits together with documents attached to a further list of documents of 13th January 2026. That she blamed the child for the accident as he ran towards the right side of the road without checking to see if the road was clear. 18. On cross-examination she testified that the accident was on 24 th May 2025 in which her husband the Defendant owned the motor vehicle. That a child was injured and she went to the nearest police station to record a statement. That she paid Cash Bail which has not been refunded to date. That she was driving at 40km/hr and could not engage an emergency break as the accident was impromptu and the child hit himself on the right side of the left side of the vehicle. 19. There was no re-examination for this witness. 20. This marked close of the Defense case. The matter was mentioned on 15th July 2025 when parties produced a second medical report by consent as DEXH 5 and further on 12 th August 2026 when parties confirmed having filed submissions and the matter was reserved for judgment on 7th October 2026. Issues for Determination Liability Judgment CMCC NO E001 of 2026 pg. 3 Hon. A. Z Ogange-RM

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21. The issue for determination is whether the Plaintiff has proved, on a balance of probabilities, that the accident was caused by the negligence of the defendant's driver. 22. The occurrence of the accident is not disputed. It is also not disputed that the minor, who was aged seven years at the material time, was struck by the defendant's motor vehicle. The Plaintiff's evidence was that the minor had gone to the market together with his eleven-yearold brother and that they were walking along the left side of the road when the accident occurred. 23. PW2 testified as an eyewitness. His evidence was that a motorcycle overtook him and, in the ensuing circumstances, the defendant's driver was confused and attempted to swerve, but in doing so struck the minor. Significantly, PW2 stated that the minor was not crossing the road at the time of the accident. 24. The defendant's driver gave a different account. She stated that she suddenly found the minor in her path and that the occurrence was so sudden and unexpected that she could not do anything to avoid the collision. The defence therefore rests substantially on the proposition that the accident was unavoidable. 25. I have considered the competing accounts. I am mindful that the burden remains upon the Plaintiff to prove negligence and that the mere occurrence of an accident does not, without more, establish negligence. Equally, however, once the Plaintiff placed before the court evidence showing the circumstances in which the collision occurred, the defendant was required to provide a satisfactory explanation consistent with the exercise of reasonable care. 26. In the present case, the defendant's explanation that she merely "suddenly found" the child in her path does not, in my view, satisfactorily explain the circumstances of the collision. No sufficient particulars were given as to where the child was when she was first observed, the distance between the vehicle and the child, the manner in which the driver reacted, whether she applied the brakes, sounded the horn or took any other reasonable evasive action, and why the collision could not reasonably have been avoided. 27. This assumes greater significance given the age of the minor. The minor was seven years old and was therefore a child of tender years. Judgment CMCC NO E001 of 2026 pg. 4 Hon. A. Z Ogange-RM

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A driver using a public road is required to maintain a proper lookout and to exercise such care as a reasonably competent driver would exercise in the circumstances. A driver is also expected to anticipate the presence and movements of pedestrians, particularly in an area where pedestrians and other road users are likely to be present. 28. The evidence that a motorcycle overtook the defendant's vehicle does not, by itself, absolve the defendant's driver from liability. Even if the motorcycle created a sudden or confusing situation, the question remains whether the defendant's driver responded to that situation with reasonable care and retained sufficient control of the vehicle. The evidence before court does not demonstrate that she did. 29. I have also considered the conflicting evidence regarding the speed of the vehicle. PW2 estimated the speed at between 80 and 90 kilometres per hour, whereas the defendant's driver placed it at approximately 40 kilometres per hour. In the absence of sufficient evidence establishing the actual speed, I am unable to make a definitive finding as to the precise speed at which the vehicle was travelling. I therefore do not base my finding of negligence solely on the alleged speed. 30. The evidence of PW4, CPL Ngeno, does not materially assist the court on the manner in which the accident occurred. He produced the police abstract but was neither the investigating officer nor a person who visited the scene. The fact that the matter was pending under investigation does not, however, determine the issue of civil liability. The court is required to determine liability from the evidence placed before it and on the civil standard of proof. 31. I have considered the defence of an inevitable or unavoidable accident. For that defence to succeed, it is not sufficient for the driver merely to state that the occurrence was sudden. The evidence must demonstrate that the accident could not have been avoided notwithstanding the exercise of reasonable care. In the circumstances of this case, I find that the defendant has not discharged that burden. 32. I am further guided by the principle applicable where a motor vehicle comes into collision with a child of tender years. The court must have regard to the child's age and cannot impose upon a young child the same standard of care expected of an adult road user. In Patrick Muli v EM (Minor suing through her Mother and Next Friend Judgment CMCC NO E001 of 2026 pg. 5 Hon. A. Z Ogange-RM

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WG) [2021] eKLR, the High Court underscored the responsibility of a driver where the pedestrian involved is a child of tender years. 33. On the evidence before me, the minor was walking along the road and there is no evidence that he suddenly ran across the road or otherwise acted in a manner that materially contributed to the accident. The defendant's driver has not provided a sufficiently credible explanation demonstrating that the collision was unavoidable despite the exercise of reasonable care. 34. I therefore find that the Plaintiff has proved, on a balance of probabilities, that the defendant's driver failed to maintain a proper lookout and proper control of the vehicle and that such negligence caused the accident and I find the defendant 100% liable for the accident. Special Damages 35. On special damages, In Herbert Hahn v Amrik Singh [1985] eKLR, the court of appeal held as follows: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 36. I note that the Plaintiff has sought for a total of Kshs. 17,900/= which amount has been specifically pleaded and proven by way of receipts. The Defense in submissions concede to the damages having been proven by way of receipts. It is therefore the finding of the court that special damages have been specifically pleaded and proved. Quantum a) General Damages 37. The Plaintiff through his counsel has submitted that an award of Kshs. 1,500,000/= is sufficient under this head. The defendant on the other hand submits that a sum of Kshs. 400,000/= would be sufficient under this head. Judgment CMCC NO E001 of 2026 pg. 6 Hon. A. Z Ogange-RM

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38. It is alleged that the Plaintiff suffered the following injuries, Head Injury with loss of consciousness, blunt injury to the back, blunt injury to the chest, cut wound on the parietal scalp and fracture of the right femur. It is noteworthy that this examination was done on 1st July 2025. A second medical report was prepared on 3 rd December 2025 and produced as DEXH 5 by consent of parties. The prognosis is that the Plaintiff sustained a right distal one third femoral fracture, managed conservatively with skin traction, following a road traffic accident. That the fracture healed with malunion and no surgical correction or physiotherapy was undertaken. That at the time of examination the Plaintiff demonstrated a mild limp, localized tenderness at the healed fracture site, particularly with prolonged walking and although he was able to ambulate independently and participate in daily activities, the residual limp and pain on exertion indicate partial permanent impairment of the right lower limb and assessed at 10% partial disability. 39. The point of concurrence between PW1, father to the minor and PW3 one Dr. Sokobe is that the Plaintiff had healed and there was no need for further treatment. I have therefore considered the nature and extent of the injuries, the treatment undertaken, the residual effects of the fracture and the 10% permanent disability in assessing the appropriate award. 40. I have considered the authorities cited by the Plaintiff in support of the proposed award. In my view, however, the authorities relied upon relate to injuries that were comparatively more severe than those sustained by the Plaintiff in the present case, although I appreciate that some of those decisions are more recent. The court must nevertheless strive to make an award that is commensurate with the actual injuries proved rather than the severity of injuries in other cases. 41. I have also considered Koyi v Obanga & 2 Others (Civil Appeal No. 73 of 2017) [2022] KEHC 9772 (KLR) as cited by Defense Counsel, where the claimant sustained a displaced fracture of the left tibia, fracture of the left femur, laceration of the left leg and soft tissue injuries to the chest, with permanent disability assessed at 40%. The High Court upheld an award of Kshs. 400,000/= as general damages. That decision is useful for comparison but was rendered in July 2022 and therefore does not fully reflect the erosion in the value of money attributable to inflation. The same consideration applies to DG (Minor suing through her next friend MOR) v Richard Otieno Onyisi [2021] Judgment CMCC NO E001 of 2026 pg. 7 Hon. A. Z Ogange-RM

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eKLR, in which an award of Kshs. 400,000/= was made for a chest contusion, left tibia fracture and bruises to the foot and leg. These authorities are therefore useful guides but cannot be mechanically applied to a present-day award. 42. More instructive, in my view, is the more recent decision in Kipchumba v Esata [2025] KEHC 10635 (KLR). The Respondent therein sustained a head injury with loss of consciousness, a cut wound on the right parietal scalp, bruises to both upper limbs, a fracture of the right femur and bruises to both ankles. The High Court, while considering comparable authorities, reduced the award of Kshs. 1,000,000/= made by the trial court and substituted it with Kshs. 500,000/= as general damages for pain and suffering and loss of amenities. 43. The injuries in Kipchumba bear considerable similarity to those in the present case. However, the Plaintiff herein has demonstrated a residual 10% permanent disability, with malunion of the femoral fracture, a mild limp, localized tenderness and difficulty with prolonged walking. I therefore consider a modest enhancement of the award in Kipchumba to be justified. 44. I have also borne in mind the established principle that comparable injuries should, as far as possible, attract comparable awards, while recognizing that no two cases are exactly alike. The assessment must also take account of the passage of time and prevailing economic conditions. 45. Taking all the foregoing factors into account, I consider an award of Kshs. 600,000/= to be fair and reasonable compensation for pain, suffering and loss of amenities. Conclusion. 46. The upshot of my findings above is that judgment be and is hereby entered in favor of the Plaintiff against the Defendant in the following terms: a) Liability is assessed at 100% in favor of the Plaintiff against the Defendant b) Special Damages- Kshs. 17,900/= c) General Damages- Kshs. 600,000/= Total Amount- Kshs. /= 617900/= d) Costs of the suit Judgment CMCC NO E001 of 2026 pg. 8 Hon. A. Z Ogange-RM

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e) Interest on (b) from the date of filing of suit until payment in full f) Interest on (c) from the date of judgment until payment in full JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 7TH DAY OF OCTOBER, 2026. In the Presence of Ms. Khisa for the Plaintiff Ms. Achieng for the Defendant Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 07.10.2026 - Judgment CMCC NO E001 of 2026 pg. 9 Hon. A. Z Ogange-RM

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