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MagistratePartially AllowedKitale SCC Claim No. E036 of 2024· [2025] KEMC 418 (KLR)

Wafula v Yunnah International Construction Company Limited (Civil Case E181 of 2025) [2025] KEMC 418 (KLR)

Small Claims Court
27 November 2025
2,904 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court awarded a matatu passenger Kshs. 156,550 after an accident, ruling the defendant 100% liable because it presented no witnesses.

What this practically means

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Executive summary

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The Plaintiff, a fare-paying passenger in matatu KAU 295 N, sued for damages arising from an accident on 29th December 2024 along the Bungoma–Malaba road in which the matatu struck the Defendant's stationary shovel, registration KHMA 071 P. He claimed general damages, special damages of Kshs. 13,750/=, costs and interest, pleading negligence, res ipsa loquitur, the Highway Code and the Traffic Act. The Defendant denied negligence, alleged contributory negligence and fraud, and sought dismissal. The Defendant called no witnesses, and the court, applying Edward Mariga v Nathaniel David Shulter and CMC Aviation Ltd v Crusair Ltd, treated its unproven defence averments as mere allegations. With ownership, the accident, the Plaintiff's passenger status and injury all undisputed, only liability and quantum fell for determination. The court held that a passenger cannot be liable unless negligence against him is proved, found the Defendant 100% liable, and rejected the allegation of the Plaintiff's loss of consciousness as unsubstantiated by the medical records, treating the injuries as soft tissue injuries assessed as harm. Applying comparable-authority principles, it awarded Kshs. 150,000/= in general damages and, on strict proof, Kshs. 6,550/= in special damages, refusing the un-receipted P3 form and police abstract claims. Judgment was entered for a total of Kshs. 156,550/= with interest on general damages from judgment and on special damages from filing, plus costs to the Plaintiff.

Key legal issues

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01

Effect of a defendant failing to call witnesses

Holding

The Defendant's unproven defence averments were disregarded, and the Defendant was found 100% liable

Reasoning

The Defendant filed a statement of defence denying negligence and pleading contributory negligence and fraud but called no witnesses. Relying on Edward Mariga v Nathaniel David Shulter and CMC Aviation Ltd v Crusair Ltd, the court held that pleadings are not evidence; unproved averments remain mere allegations. The undisputed facts, including that the Plaintiff was a fare-paying passenger with no control over either vehicle, established the Defendant's liability in full.

p. 7
02

Whether the Plaintiff's oral testimony on loss of consciousness could override the medical evidence

Holding

The testimony on temporary loss of consciousness was disregarded and the injuries treated as soft tissue injuries assessed as harm

Reasoning

Although authorities encourage courts to be slow in dismissing a plaintiff's own account of injuries, the court held this is no fast rule. Here the alleged temporary loss of consciousness appeared nowhere in the initial treatment notes, the Bungoma County Referral Hospital notes, or the P3 form, and both medical witnesses conceded they could not establish it. The omission could not be an accidental slip, so the allegation was unsubstantiated and the injuries were treated as soft tissue injuries assessed as harm.

p. 10
03

Assessment of general damages for pain and suffering

Holding

An award of Kshs. 150,000/= was made, guided by comparable authorities

Reasoning

Applying the principle that comparable injuries attract comparable awards, the court rejected both parties' proposed figures: the Plaintiff's Kshs. 500,000/= was based on more severe injuries, while the Defendant's Kshs. 100,000/= ignored inflation since 2021-2024 decisions. Relying on SMK v DC and Mangenge v Masai, each involving blunt or moderate soft tissue injuries attracting Kshs. 150,000/=, the court awarded the same sum.

p. 11
04

Proof of special damages

Holding

Only Kshs. 6,550/= of the pleaded Kshs. 13,750/= was proved

Reasoning

Special damages must be strictly proved. The Plaintiff conceded there were no receipts for the Kshs. 2,000/= P3 form fee and Kshs. 200/= police abstract. The receipts produced proved Kshs. 6,000/= for the medical report and Kshs. 550/= for copy of records, totaling Kshs. 6,550/=, which the court awarded.

p. 12

Legal principles established

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  • Averments in a defence not substantiated by any witness remain mere allegations that the court will not consider
  • A passenger cannot be held liable for an accident unless the particulars of negligence attributed to the passenger are proved on a balance of probabilities
  • A court may disregard a plaintiff's oral testimony on injuries where it is at variance with the medical evidence on record
  • Special damages must be strictly proved before an award is made

Court orders

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  1. 1.Judgment entered against the Defendant with liability at 100%
  2. 2.General damages of Kshs. 150,000/= awarded for pain and suffering
  3. 3.Special damages of Kshs. 6,550/= awarded
  4. 4.Total award of Kshs. 156,550/=
  5. 5.General damages to accrue interest at court rate from the date of judgment till payment in full
  6. 6.Special damages to accrue interest at court rate from the date of filing suit till payment in full
  7. 7.Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Traffic Actnot specified
  • Highway Codenot specified

Cases cited (7)

  • Edward Mariga suing through Stanley Mobisa Mariga Vs. Nathaniel David Shulter & Another
    [1979] eKLR
  • CMC Aviation Ltd Vs. Crusair Ltd (No.1)
    (1987) KLR 103
  • West Kenya Sugar Co. Limited v Joyce Mayabi Jatushi
    [2020] eKLR
  • Mbagaya v Stephen
    (Civil Appeal E182 of 2022) [2024] KEHC 7556 (KLR)
  • Otieno v Mwea County Medical Centre Ltd & 2 others
    (Civil Appeal 49 of 2021) [2023] KEHC 22474 (KLR)
  • SMK v DC (Suing Through Mother and Next Friend) NCK -Minor) & another
    (Civil Appeal E011 of 2023) [2025] KEHC 1867 (KLR)
  • Mangenge v Masai & another
    (Civil Appeal E020 of 2022) [2025] KEHC 9669 (KLR)
Jurisdiction invoked
Original civil claim for damages arising from a road traffic accident, heard in the first instance (small claims/summary procedure); no constitutional or appellate basis invoked.

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, "Wafula v Yunnah International Construction Company Limited (Civil Case E181 of 2025) [2025] KEMC 418 (KLR)", Case Analysis (2025). Kitale SCC Claim No. E036 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/418/eng@2025-11-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.