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MagistratePartially AllowedNot stated in the judgment· [2025] KEMC 385 (KLR)

Wekesa v Mulama & another (Civil Case E039 of 2025) [2025] KEMC 385 (KLR)

Magistrates' Court (Resident Magistrate's Court)
24 June 2025
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first-instance road traffic accident suit heard at Bungoma by Resident Magistrate T.O. Omono, decided on 24th June 2025. The Plaintiff, a pillion passenger on an unknown motorcycle hit by motor vehicle KAZ 357T along the Bungoma-Webuye road on 18th December 2024, sued for general damages, future medical expenses, special damages of Kshs. 4,550/=, costs and interest. The Defendants did not enter appearance or file defences despite service, so the matter proceeded by formal proof. The court restated that even in formal proof the plaintiff bears the burden of proving the case on a balance of probabilities, relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Gichinga Kibutha v Caroline Nduku. The police abstract and NTSA copy of records established the 2nd Defendant's beneficial and registered ownership of the vehicle, supported by section 8 of the Traffic Act and section 38 of the Evidence Act. Applying the principle that a passenger cannot be held liable absent demonstrated negligence, the court found the Defendants jointly and severally 100% liable. On quantum, comparing soft tissue injuries treated on outpatient basis with Mugaru v Mutua and Makami v Obong'o, it awarded Kshs. 80,000/= general damages. Special damages of Kshs. 4,550/= were pleaded and proved by receipts and awarded. However, the claim for future medical expenses was dismissed because the medical report did not establish any future medical need, per Tracom Limited v Hassan Mohamed Adan. Judgment of Kshs. 84,550/= was entered with interest and costs to the Plaintiff.

Key legal issues

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01

Standard of proof in formal proof proceedings

Holding

The plaintiff must still prove the case on a balance of probabilities even where the defendant does not appear

Reasoning

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.

p. 2
02

Ownership of the vehicle and liability

Holding

The 2nd Defendant was the registered and beneficial owner of KAZ 357T and the Defendants were 100% liable

Reasoning

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.

p. 3
03

General damages for pain and suffering

Holding

Kshs. 80,000/= awarded for soft tissue injuries assessed as harm

Reasoning

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.

p. 4
04

Special damages

Holding

Kshs. 4,550/= pleaded and strictly proved and awarded

Reasoning

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.

p. 4
05

Future medical expenses

Holding

Claim dismissed for lack of strict proof

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Judgment entered jointly and severally against the Defendants with liability at 100% in favour of the Plaintiff
  2. 2.General damages of Kshs. 80,000/= awarded
  3. 3.Special damages of Kshs. 4,550/= awarded (net award Kshs. 84,550/=)
  4. 4.General damages to accrue interest at court rate from the date of judgment till payment in full
  5. 5.Special damages to accrue interest at court rate from the date of filing suit till payment in full
  6. 6.Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Traffic Act, Cap 403Section 8
  • Evidence ActSection 38

Cases cited (9)

  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Gichinga Kibutha –vs- Caroline Nduku
    (2018) eKLR
  • Oduor v Achieng
    (Civil Appeal E026 of 2023) [2023] KEHC 27162 (KLR) (20 December 2023)
  • Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another
    (2014) eKLR
  • Simon Taveta v Mercy Mutitu Njeru
    Civil Appeal 26 of 2013 [2014] eKLR
  • Mugaru v Mutua & another
    (Civil Appeal E759 of 2022) [2024] KEHC 7662 (KLR) (24 June 2024)
  • Makami v Obong’o
    (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR) (18 January 2023)
  • Hahn v. Singh
    Civil Appeal No. 42 Of 1983 [1985] KLR 716
  • Tracom Limited & another v Hassan Mohamed Adan
    [2009] eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the tort claim in the Plaint dated 27th January 2025

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.