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MagistratePartially AllowedKitale SCC Claim No. E036 of 2024· [2025] KEMC 455 (KLR)

Wafula v Musani (Civil Case E313 of 2024) [2025] KEMC 455 (KLR)

Small Claims Court
27 November 2025
TOT.O. Omono
2,806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kitale court split fault 50-50 in a motorcycle accident case, awarding the rider Kshs. 102,975 because neither driver's story conclusively proved what happened.

What this practically means

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Executive summary

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The Plaintiff, a motorcycle rider, sued the Defendant over a road traffic accident of 18th July 2023 on the Nzoia Sugar–Nalondo road, alleging that the Defendant's motor vehicle knocked down and ran over his motorcycle. He sought general damages, special damages of Kshs. 5,950/= and costs, invoking res ipsa loquitur, the Highway Code and the Traffic Act. The Defendant denied ownership, the occurrence of the accident and negligence, and pleaded contributory negligence, asserting that the Plaintiff attempted to overtake on a narrow road and rammed the motor vehicle's side mirror. Five witnesses testified for the Plaintiff, including an eyewitness whose account on the point of impact contradicted the Plaintiff's, and two witnesses for the Defendant. The court found the occurrence of the accident, ownership of the vehicles and the injuries undisputed, and framed the issues as liability and quantum. Finding the evidence on the circumstances of the accident 'barely adequate' - notably the investigating officer, sketch map and inspection reports were not produced - the court applied Lakhamshi v Attorney General, Barclay-Steward v Waiyaki, Baker v Market Harborough, Hussein Omar Farah v Lento Agencies and Mwangi v Oginga to hold both drivers equally to blame. On quantum, relying on comparable awards, it granted Kshs. 200,000/= general damages (given the scar and psychological trauma) and Kshs. 5,950/= strictly proved special damages. Judgment was entered for Kshs. 205,950/= less 50%, i.e. Kshs. 102,975/=, with interest and costs to the Plaintiff.

Key legal issues

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01

Liability for the road traffic accident

Holding

Both drivers held equally to blame (50:50)

Reasoning

Plaintiff said he was hit from behind; PW2 contradicted him on the point of impact; the Defendant and DW2 said the motorcycle was overtaking on a narrow road. The court lamented the absence of the investigating officer, sketch map and inspection reports, and applied the rule in Lakhamshi v Attorney General and kindred authorities that where fault cannot be determined between two drivers, liability is shared equally.

p. 7
02

General damages for pain and suffering

Holding

Kshs. 200,000/= awarded for soft tissue injuries and psychological trauma

Reasoning

Medical evidence was uncontroverted. Applying the comparables principle, the court relied on SMK v DC (Kshs. 150,000) and Mangenge v Masai & another (Kshs. 150,000), and enhanced the award to Kshs. 200,000/= because the injuries left a scar and caused psychological trauma.

p. 10
03

Special damages

Holding

Kshs. 5,950/= proved and awarded

Reasoning

Special damages must be strictly proved; the receipts produced by the Plaintiff proved the pleaded figure of Kshs. 5,950/= covering treatment, medical report, copy of records and postage certificates.

p. 11

Legal principles established

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  • Where it cannot be precisely determined which of two drivers caused or contributed more to an accident, liability is shared equally
  • The legal burden of proof lies on the person who alleges, on a balance of probabilities
  • Special damages must be specifically pleaded and strictly proved

Court orders

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  1. 1.Liability apportioned at 50% against the Defendant (Plaintiff and Defendant held equally to blame)
  2. 2.General damages of Kshs. 200,000/= awarded
  3. 3.Special damages of Kshs. 5,950/= awarded
  4. 4.Total award Kshs. 205,950/= less 50%, net award Kshs. 102,975/= against the Defendant
  5. 5.General damages to accrue interest at court rate from date of judgment till payment in full; special damages to accrue interest at court rate from date of filing suit till payment in full
  6. 6.Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107(1)

Cases cited (8)

  • Barclay – Steward Limited & Another Vs. Waiyaki
    [1982-88] 1 KAR 1118
  • Baker V Market Harborough Industrial Co-operative Society LTD
    [1953] 1 WLR 1472
  • Welch V Standard Bank LTD
    [1970] EA 115
  • Simon V Carlo
    [1970] EA 285
  • Hussein Omar Farah v Lento Agencies
    [2006] eKLR
  • Mwangi & another v Oginga
    (Civil Appeal 88 of 2023) [2025] KEHC 7976 (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
Small Claims Court Act (original jurisdiction over the claim); no specific provision invoked in the judgment

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 Musani (Civil Case E313 of 2024) [2025] KEMC 455 (KLR)", Case Analysis (2025). Kitale SCC Claim No. E036 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/455/eng@2025-11-27

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