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MagistratePartially AllowedNot stated in the judgment as provided· [2026] KEMC 541 (KLR)

Mulunda v Ryce East Africa Ltd (Civil Case E140 of 2025) [2026] KEMC 541 (KLR)

Magistrates' Court (Senior Resident Magistrate), Bungoma
14 April 2026
3,900 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Bungoma court split a road accident claim 50:50 after the defendant's investigation report was thrown out for missing the required electronic evidence certificate.

What this practically means

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Executive summary

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The plaintiff, a 16-year-old motorcycle rider, sued for general damages, special damages of Kshs. 6,150/=, costs and interest after a road traffic accident on 18th January 2025 along the Bungoma–Kanduyi road, alleging that the defendant's motor vehicle KCY 038 D knocked down his motorcycle. The defendant denied ownership, the occurrence, and negligence, contending the accident was caused by the plaintiff riding on the wrong side of the road, unsupported by a private investigation report. The court framed three issues: liability, quantum, and whether interest on general damages amounts to double compensation. On liability, the court found the photos in the defendant's investigation report inadmissible for want of a section 106B Evidence Act certificate, and discounted the report as biased since the investigator never interviewed the plaintiff and was not accompanied to the scene. The court held that lack of a driving licence or insurance is not proof of negligence, causation being the core issue. With the evidence reduced to the parties' word against each other and the investigating officer not called, the court followed Hussein Omar Farah v Lento Agencies and apportioned liability equally. On quantum, guided by comparable awards (Makami v Obong'o; Ondicho v Mosigisi) and Stanley Maore v Geoffrey Mwenda, it awarded Kshs. 120,000/= general damages and Kshs. 6,150/= special damages, rejecting the stamp-duty objection to the receipt. It held that interest on general damages is lawful and discretionary under section 26 of the Civil Procedure Act, rejecting the double-compensation argument. Judgment was entered at 50:50 liability, netting Kshs. 63,075/=, with interest and costs to the plaintiff subject to the liability ratio.

Key legal issues

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01

Credibility and admissibility of the defendant's investigation report

Holding

The photos in the report were inadmissible for want of a section 106B certificate, and the report was biased because it was prepared without the plaintiff's input; the court declined to rely on it.

Reasoning

The court found the photos contravened section 106B of the Evidence Act, rendering them inadmissible. The investigator conceded he never interviewed the plaintiff, nor was he accompanied to the scene by DW1 or police, casting doubt on the sketch plan. The OB extract was uncertified. Natural justice required the plaintiff be heard before an adverse report was prepared, so the report was merely the defendant's version of events.

p. 4
02

Whether lack of licence/insurance proves negligence

Holding

No - negligence turns on causation, not licensing or insurance status.

Reasoning

The court held that the core issue in liability is causation. An unlicensed rider may be more careful than a licensed one, and being illegally on the road is not a licence for other road users to knock such a person down with reckless abandon; all road users owe each other a duty of care.

p. 5
03

Apportionment of liability on contradictory evidence

Holding

Liability apportioned 50:50 following Hussein Omar Farah v Lento Agencies.

Reasoning

With the investigation report discounted, the evidence was the plaintiff's word against the defendant's. The investigating officer did not testify, and the sketch plan and inspection reports were absent, leaving the evidence barely adequate. Applying Hussein Omar Farah, where there is no concrete evidence on blame, both parties are held equally to blame.

p. 5
04

Quantum of general damages

Holding

Kshs. 120,000/= awarded for blunt injuries to head, neck, chest, back, left elbow and left knee, guided by comparable awards.

Reasoning

Comparable injuries should be compensated by comparable awards (Stanley Maore v Geoffrey Mwenda). The injuries were almost similar to those in Makami v Obong'o (Kshs 80,000/=) and Ondicho v Mosigisi (Kshs 80,000/=); factoring the passage of time since those decisions, the court fixed the award at Kshs. 120,000/=.

p. 6
05

Special damages

Holding

Special damages of Kshs. 6,150/= pleaded and proved despite the lack of a revenue stamp on the medical report receipt.

Reasoning

The receipt's production was not objected to at hearing, and submissions are not evidence. Relying on Paul N. Njoroge v Abdul Sabuni Sabuni and Suderji Nanji Limited v Bhaloo, a document is not peremptorily rejected for want of stamping; the party should first be given opportunity to pay stamp duty and penalty.

p. 7
06

Interest on general damages and double compensation

Holding

Interest on general damages is lawful and discretionary under section 26 of the Civil Procedure Act, from the date of judgment.

Reasoning

Section 26(1) of the Civil Procedure Act confers discretion to award interest on the principal sum adjudged; authorities (Jane Wanjiku Wambui v Anthony Kigamba Hato; Omunyokol Akol Johnson v Attorney General) confirm interest on general damages runs from judgment. Interest also incentivizes prompt settlement, aligning with Article 159(2)(b) and section 1A of the Civil Procedure Act.

p. 8

Legal principles established

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  • Electronic evidence such as photos must be accompanied by a certificate under section 106B of the Evidence Act; without it the evidence is inadmissible notwithstanding the constitutional bar on undue regard to procedural technicalities.
  • The core issue in determining liability and negligence is causation; lack of a driving licence or of insurance is not of itself proof of negligence.
  • Where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.
  • An award of interest on general damages does not amount to double compensation; interest is discretionary and compensates the decree holder for delay in realizing the fruits of judgment.
  • A party cannot impeach the admissibility of a receipt for lack of a revenue stamp through submissions where production was not objected to at the hearing.

Court orders

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  1. 1.Liability apportioned at 50%:50% between the plaintiff and the defendant
  2. 2.General damages of Kshs. 120,000/=
  3. 3.Special damages of Kshs. 6,150/=
  4. 4.Net award after 50% deduction: Kshs. 63,075/=
  5. 5.Interest on general damages at court rate from date of judgment till payment in full
  6. 6.Interest on special damages at court rate from date of filing suit till payment in full
  7. 7.Costs of the suit to the plaintiff, subject to the ratio of liability between the parties

Authorities

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Legislation

  • Evidence ActSections 78, 78A, 106B (including 106B(2) and 106B(4))
  • Constitution of KenyaArticle 159(2)(b) and 159(2)(d)
  • Civil Procedure ActSection 26 (interest), Section 1A (overriding objective)
  • Stamp Duty ActCap 480

Cases cited (14)

  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Mtere v Republic
    (Criminal Appeal E051 of 2024) [2025] KEHC 5144 (KLR) (Crim)
  • George Gabriel Kiguru & Another v Republic
    [2022] eKLR
  • Kennedy Macharia Njeru v Packson Githongo Njau & another
    [2019] KEHC 5377 (KLR)
  • Tom Obita Ndago & Another Vs. Alfonse Omondi Otieno
    [2015] eKLR
  • Hussein Omar Farah v Lento Agencies
    C.A Nairobi, Civil Appeal No.34/2005 [2006] eKLR
  • Stanley Maore vs Geofirey Mwenda
    (2004) eKLR
  • In Makami v Obong’o
    (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR)
  • Ondicho v Mosigisi
    (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR)
  • Paul N. Njoroge v Abdul Sabuni Sabuni
    [2015] eKLR
  • Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A
    [2007] eKLR
  • Suderji Nanji Limited v Bhaloo
    [1958] EA 762
  • Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others
    [2018] eKLR
  • Omunyokol Akol Johnson v Attorney General
    (Civil Appeal No.6 of 2012, UGSC 4
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court in a negligence/damages suit (plaint dated 19th March 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, "Mulunda v Ryce East Africa Ltd (Civil Case E140 of 2025) [2026] KEMC 541 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14

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