Wekesa v Mulama & another (Civil Case E039 of 2025) [2025] KEMC 385 (KLR)
The bottom line
#A Bungoma court awarded a passenger Kshs. 84,550 after a crash, but refused his future medical expenses claim for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Standard of proof in formal proof proceedings
The plaintiff must still prove the case on a balance of probabilities even where the defendant does not appear
The court restated the principle that formal proof proceedings do not relieve the plaintiff of the burden of proof. It relied on the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Gichinga Kibutha v Caroline Nduku, holding that the trial court must examine the evidence and, if it falls short of the required standard, dismiss the claim.
Ownership of the vehicle and liability
The 2nd Defendant was the registered and beneficial owner of KAZ 357T and the Defendants were 100% liable
The police abstract and NTSA copy of records established ownership. Section 8 of the Traffic Act deems the registered owner to be the owner unless the contrary is proved, and section 38 of the Evidence Act creates a rebuttable presumption for public document entries. With no contrary evidence, the court accepted ownership and, the plaintiff being a passenger with no contributory negligence, found the Defendants 100% liable.
General damages for pain and suffering
Kshs. 80,000/= awarded for soft tissue injuries assessed as harm
The court applied the principle that comparable injuries attract comparable awards (Simon Taveta v Mercy Mutitu Njeru). The injuries - a painful swelling on the forehead and pain on the right limb stump, treated as an outpatient - were similar to those in Mugaru v Mutua and Makami v Obong'o, where Kshs. 80,000/= had been awarded, making that amount reasonable.
Special damages
Kshs. 4,550/= pleaded and strictly proved and awarded
Special damages must be pleaded and strictly proved (Hahn v. Singh). The plaintiff pleaded Kshs. 4,000/= for the medical report and Kshs. 550/= for the copy of records and produced receipts for both amounts, satisfying the strict-proof requirement.
Future medical expenses
Claim dismissed for lack of strict proof
Per Tracom Limited v Hassan Mohamed Adan, future medical expenses are a special claim within general damages requiring specific pleading and proof. The plaintiff's medical report did not state that future medical expenses would be needed, so the claim was not strictly proved and was dismissed.
Legal principles established
#- Even in formal proof proceedings the plaintiff bears the legal burden of proving the case on a balance of probabilities
- A passenger cannot be held liable for an accident unless some negligence on their part is demonstrated
- The person in whose name a vehicle is registered is deemed its owner unless the contrary is proved
- Special damages must be specifically pleaded and strictly proved; the same applies to future medical expenses
Court orders
#- 1.Judgment entered jointly and severally against the Defendants with liability at 100% in favour of the Plaintiff
- 2.General damages of Kshs. 80,000/= awarded
- 3.Special damages of Kshs. 4,550/= awarded (net award Kshs. 84,550/=)
- 4.General damages to accrue interest at court rate from the date of judgment till payment in full
- 5.Special damages to accrue interest at court rate from the date of filing suit till payment in full
- 6.Plaintiff awarded the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the tort claim in the Plaint dated 27th January 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Mulama & another (Civil Case E039 of 2025) [2025] KEMC 385 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/385/eng@2025-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.