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MagistratePartially AllowedCivil Case No E1583 of 2025· [2026] KEMC 175 (KLR)

Bakari v Tsuma & another (Civil Case E1583 of 2025) [2026] KEMC 175 (KLR)

Magistrates' Court
25 June 2026
1,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court awarded a pedestrian Kshs. 882,550 after a ferry accident, holding that defendants who present no evidence automatically lose on negligence.

What this practically means

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Executive summary

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The Plaintiff, Abdalla Athman Bakari, sued the Defendants seeking general damages, special damages, future medical expenses, costs and interest arising from a road traffic accident on 20th August 2025 at the Likoni Ferry Crossing Area, in which motor vehicle KBF 648W allegedly ran over his left leg as he disembarked from a ferry. The Defendants denied ownership of the vehicle, occurrence of the accident, negligence and injuries, and pleaded contributory negligence in the alternative. At the hearing the Plaintiff called three witnesses, including the investigating police officer and Dr. Darius Kiema; the Defendants closed their case without calling any evidence. The court framed five issues: occurrence, liability, injuries, quantum and costs. It found the accident proved on a balance of probabilities through corroborated testimony and police investigations which blamed the driver. Applying Nandwa v Kenya Kazi Ltd and Pauline Kainyera Simion v Mary Namunya, the court held the burden had shifted to the defence, whose contributory negligence plea remained unsupported allegations, and apportioned liability at 100% against the Defendants, vicariously liable for the driver. Ownership was established by an NTSA search naming the 2nd Defendant, unrebutted by any evidence. The injuries - medial dislocation of the left ankle, fractures of the medial and lateral malleoli, classified as Grievous Harm with 15% permanent disability - were found proved. Awarding general damages of Kshs. 850,000/= (higher than the comparable Chiba Tim award because of permanent disability and the Plaintiff's age and occupation as a 71-year-old mason), future medical expenses of Kshs. 30,000/= and special damages of Kshs. 2,550/=, the court entered judgment for Kshs. 882,550/= jointly and severally, with interest on special damages from filing and on general damages from judgment, plus costs to the Plaintiff.

Key legal issues

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01

Occurrence of the accident

Holding

The accident occurred as pleaded, proved on a balance of probabilities

Reasoning

The plaintiff testified he was disembarking from the ferry when vehicle KBF 648W ran over his left leg. His account was corroborated by the police abstract, P3 form, treatment records, X-ray report, medical report and the evidence of PW2. The defendants tendered no evidence to challenge occurrence.

p. 2
02

Liability and contributory negligence

Holding

The plaintiff proved negligence against the driver; defendants vicariously liable at 100%

Reasoning

The plaintiff was a pedestrian disembarking from a ferry with priority under ferry safety rules; police investigations blamed the driver. The defence alleged contributory negligence but adduced no evidence, so the allegations remained mere pleadings. Applying Nandwa v Kenya Kazi Ltd, the burden shifted to the defence and was not discharged.

03

Ownership of the motor vehicle

Holding

Ownership and responsibility for the vehicle were established on a balance of probabilities

Reasoning

An NTSA search showed KBF 648W registered to the 2nd Defendant; no contrary search was produced. The 1st Defendant, pleaded as beneficial and/or insured owner, tendered no evidence to rebut the plaintiff's case.

p. 3
04

Injuries sustained

Holding

The plaintiff sustained the pleaded injuries, classified as Grievous Harm, with 15% permanent disability

Reasoning

The medical evidence was consistent and unchallenged, comprising treatment records, X-ray report, P3 form and the medical report of Dr. Darius Kiema. The P3 form classified the injuries as Grievous Harm and Dr. Kiema assessed permanent disability at 15%.

05

Quantum of damages

Holding

General damages of Kshs. 850,000/=, future medical expenses of Kshs. 30,000/= and special damages of Kshs. 2,550/=

Reasoning

Comparing with Chiba Tim Limited & Another v Ruguru (Kshs. 700,000/= for comparable injuries), the plaintiff's injuries were materially more severe given the 15% permanent disability, long-term complications and reduced earning capacity, and the plaintiff was a 71-year-old mason. Future medical expenses and special damages were specifically pleaded and strictly proved.

Legal principles established

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  • Where a plaintiff establishes facts raising a prima facie inference of negligence, the burden shifts to the defendant to offer an explanation sufficient to displace that inference
  • A defence unsupported by evidence remains mere allegations bereft of evidentiary value
  • Comparable injuries should attract comparable awards while taking inflation and the unique facts of each case into account

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in the sum of Kshs. 882,550/=
  2. 2.Special damages to attract interest from the date of filing suit
  3. 3.General damages and future medical expenses to attract interest from the date of judgment until payment in full
  4. 4.Plaintiff to have the costs of the suit

Authorities

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Cases cited (5)

  • Nandwa v Kenya Kazi Ltd
    [1988] eKLR
  • Pauline Kainyera Simion v Mary Namunya
    [2021] eKLR
  • Chiba Tim Limited & Another v Ruguru
    [2025] eKLR
  • Odinga Jacktone Ouma v Moureen Achieng Odera
    [2016] eKLR
  • Jabane v Olenja
    [1986] KLR 661
Jurisdiction invoked
Original civil suit for damages arising from a road traffic accident (first-instance magistrate court jurisdiction)

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, "Bakari v Tsuma & another (Civil Case E1583 of 2025) [2026] KEMC 175 (KLR)", Case Analysis (2026). Civil Case No E1583 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/175/eng@2026-06-25

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