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MagistratePartially AllowedCMCC No. 429 of 2022· [2026] KEMC 590 (KLR)

Mbaya v Little Sisters of St. Francis (Civil Case 429 of 2022) [2026] KEMC 590 (KLR)

Magistrate's Court at Bungoma
20 August 2026
2,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When neither driver can prove who caused a Kenyan road accident, courts split liability 50:50 and each side's compensation is halved.

What this practically means

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Executive summary

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The plaintiff, a motorcyclist, sued the defendant as registered owner of motor vehicle KAW 691E for general and special damages for injuries sustained in a road traffic accident on 28/09/2022 along the Bungoma-Webuye Road at Ndengelwa, alleging the vehicle overtook him and abruptly stopped without warning, causing him to ram its rear. The defendant denied negligence, blamed the plaintiff for failing to keep distance and look out, and counterclaimed for Kshs. 84,000 in special damages plus general damages for loss of user. Four plaintiff witnesses and three defence witnesses testified. The court found the occurrence of the accident and the injuries undisputed but the accounts of causation irreconcilably conflicting, with no investigating officer, sketch map, photographs or investigation report produced. Applying the burden of proof under Sections 107-109 of the Evidence Act, and guided by Embu Public Road Services Ltd v Riimi, Lakhamshi v Attorney General and Hussein Omar v Lento Agencies, the court apportioned liability equally at 50:50. Injuries not corroborated by treatment notes, including loss of consciousness, were discounted. General damages were assessed at Kshs. 135,000, special damages of Kshs. 12,735 awarded, giving Kshs. 147,735 less 50% (Kshs. 73,867.50). On the counter-claim, special damages of Kshs. 77,000 were proved, less 50% (Kshs. 38,500); the loss of user claim was dismissed as duplicative of the hire charges. After set-off, the net award to the plaintiff was Kshs. 40,367.50, with each party bearing its own costs.

Key legal issues

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01

Liability for the road traffic accident

Holding

Liability apportioned equally at 50:50 between the plaintiff and the defendant

Reasoning

The parties gave conflicting accounts: the plaintiff said the defendant's vehicle overtook him and abruptly stopped without warning, while the driver denied this and blamed the plaintiff for ramming the vehicle's rear. No investigating officer, sketch map, photographs or investigation report corroborated either version. Guided by Lakhamshi and Hussein Omar, and finding the plaintiff failed to slow down to allow safe overtaking under Rule 73 of the Traffic Rules, the court held both equally to blame.

p. 6
02

Quantum of general damages for the plaintiff's injuries

Holding

General damages assessed at Kshs. 135,000/=, subject to 50% contribution

Reasoning

Medical evidence established multiple soft tissue injuries, but injuries not mentioned in the treatment notes or P3 form, including loss of consciousness, were discounted as unsubstantiated. The defence authorities of Kshs. 100,000 and Kshs. 120,000 were found more comparable, and inflation over 3-4 years was factored in to arrive at Kshs. 135,000.

p. 7
03

Proof of special damages by both parties

Holding

Plaintiff's special damages of Kshs. 12,735 fully awarded; defendant's special damages restricted to Kshs. 77,000 as proved by receipts

Reasoning

The court applied the rule that special damages must be specifically pleaded and strictly proved. The plaintiff's pleaded and proved specials of Kshs. 12,735 were awarded as prayed. Of the defendant's pleaded Kshs. 84,000, only Kshs. 77,000 (alternative transport and repairs) was proved by receipts.

p. 7
04

Defendant's counter-claim for loss of user

Holding

Dismissed as a duplication of the motor hire charges already recovered

Reasoning

The defendant sought general damages for loss of user of the suit motor vehicle but had already succeeded in recovering motor vehicle hire charges for the period the vehicle was not in use. Allowing both would duplicate the same loss, so the loss of user claim was dismissed.

p. 8

Legal principles established

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  • Negligence is never presumed merely because an accident has occurred; a claimant must establish it on a balance of probabilities
  • Where evidence does not clearly establish sole responsibility for an accident, liability may be apportioned according to each party's degree of blameworthiness
  • Where there is no concrete evidence to determine who between two drivers was to blame, both should be held equally to blame
  • Special damages must be specifically pleaded and strictly proved
  • Comparable injuries should as far as possible attract comparable awards, considering the passage of time and inflation

Court orders

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  1. 1.Liability apportioned equally at 50:50 between the parties in respect of causation of the accident
  2. 2.General damages for pain, suffering and loss of amenities assessed at Kshs. 135,000/= awarded to the plaintiff
  3. 3.Special damages of Kshs. 12,735 awarded to the plaintiff; total Kshs. 147,735 less 50% = Kshs. 73,867.50
  4. 4.On the counter-claim, special damages of Kshs. 77,000/= for repair of the suit motor vehicle and motor vehicle hire charges proved, less 50% = Kshs. 38,500
  5. 5.Claim for loss of user dismissed as a duplication
  6. 6.Net award to the plaintiff upon set-off of Kshs. 40,367.50
  7. 7.Each party to bear its own costs in both the main suit and the counter-claim
Jurisdiction invoked
Original civil jurisdiction of the Magistrate's Court over a road traffic accident claim and counter-claim

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, "Mbaya v Little Sisters of St. Francis (Civil Case 429 of 2022) [2026] KEMC 590 (KLR)", Case Analysis (2026). CMCC No. 429 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/590/eng@2026-08-20

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