Barasa v Njihia & another (Civil Case E244 of 2024) [2026] KEMC 561 (KLR)
The bottom line
#A Bungoma court split road accident liability equally because evidence couldn't show who caused the crash, and awarded Kshs. 103,525 net.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
The Plaintiff and the Defendant were held equally liable (50%:50%) because the evidence was insufficient to determine which driver was to blame, yet the accident was not inevitable or an act of God
The court found that parties are bound by their pleadings, that the police abstract entry blaming the motor vehicle driver was not proof of negligence, and that the evidence did not show which lane the accident occurred in or steps taken to avoid it. Applying Lakhamshi v Attorney General and Baker v Market Harborough, where blame cannot be precisely determined between two drivers, liability is shared equally.
Vicarious liability of the third party as registered owner of the motorcycle
The Defendant's third-party claim was dismissed because no evidence established that the Plaintiff was the third party's agent or servant
The court applied the settled elements of vicarious liability: a wrongful act by an employee or agent acting within the scope of employment or agency. Registered ownership alone does not attract vicarious liability. The Defendant failed to cross-examine the Plaintiff on his relationship with the third party, electing to litigate through a shortcut, and bore the consequences.
Unpleaded injuries and complaints
The court declined to consider injuries or complaints, including the 10% permanent incapacity, that were not pleaded in the Amended Plaint
Following Anthony Francis Wareham and Boniface Kinyua Kathuri, the court held that in adversarial litigation only evidence of facts pleaded is admissible, injuries must be specifically pleaded as a mandatory requirement, and departing from pleadings amounts to an ambush and unfair trial. Only the pleaded injuries were considered in assessing general damages.
Quantum of general damages for pain and suffering
Kshs. 200,000/= awarded, guided by comparable awards for similar injuries
Applying the comparable-injuries principle in Stanley Maore v Geoffrey Mwenda, the court compared the pleaded injuries (head injury, bruises on right leg, chest contusion, blunt abdominal injury, blunt trauma to right leg and neck) with awards of Kshs. 180,000/= in Ukavi v Erasmus and Kshs. 220,000/= in Njuguna v Nasimiyu, and fixed the award at Kshs. 200,000/=.
Loss of earnings and diminished earning capacity
The claim failed because the Plaintiff neither pleaded nor proved actual loss of income or diminution in earning capacity
Relying on S J v Francesco Di Nello, the court distinguished loss of income (real assessable loss proved by evidence) from loss of earning capacity (compensated as general damages once proved). The Plaintiff's pleadings and witness statement did not state his pre-accident income or how the injuries affected his earning capacity.
Legal principles established
#- An entry in a police abstract on blame for an accident is not proof of negligence; it is only of persuasive value and must be supported by cogent evidence before liability is apportioned
- Where evidence is barely adequate to determine which of two drivers was to blame for a collision, liability is shared equally
- Mere registered ownership of a vehicle does not make the owner vicariously liable absent proof of a master-servant or agency relationship
- A plaintiff bears the burden of proving the case on a balance of probabilities even where the case is uncontroverted
Court orders
#- 1.Judgment entered against the Defendant with liability apportioned 50%:50% between the Plaintiff and the Defendant
- 2.General damages of Kshs. 200,000/= awarded for pain and suffering
- 3.Special damages of Kshs. 7,050/= awarded
- 4.Net award of Kshs. 103,525/= after deduction of 50% liability
- 5.General damages to accrue interest at court rate from the date of judgment till payment in full; special damages to accrue interest at court rate from the date of filing suit till payment in full
- 6.Plaintiff awarded costs of the suit subject to the ratio of liability
- 7.Defendant's claim against the third party dismissed with no order as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the magistrate's court over the negligence claim, not disputed by the Defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa v Njihia & another (Civil Case E244 of 2024) [2026] KEMC 561 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/561/eng@2026-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.