Barasa v Thuo (Civil Case E370 of 2025) [2026] KEMC 622 (KLR)
The bottom line
#A Bungoma court ordered a vehicle owner to pay an injured passenger Kshs. 505,530 after his driver rear-ended a stalled car, and she proved her losses.
What this practically means
#Executive summary
#Key legal issues
#Vicarious liability of the vehicle owner for his driver's negligence
The Defendant is vicariously liable for his driver's negligent acts or omissions, nothing suggesting the driver was on a frolic of his own.
The uncontroverted evidence established that the Plaintiff was injured while aboard the Defendant's motor vehicle driven by the Defendant's lawful agent or servant. No evidence suggested the driver was on a frolic of his own. Vicarious liability therefore attaches if the driver's negligence caused the accident, which the court found proved since the Defendant adduced no evidence to dislodge the prima facie case.
Liability of a passenger and of the driver who rammed a stalled vehicle
The Defendant was found 100% liable; the passenger bore no contributory negligence and liability could not be apportioned to the non-joined driver of the stalled vehicle.
The Plaintiff was a fare-paying passenger with no control over either vehicle and no evidence of negligence on her part. The Defendant blamed the other vehicle's driver but neither sought leave to join that driver nor adduced evidence of the pleaded particulars of negligence. A driver hitting a vehicle from behind bears the burden of rebutting the presumption of fault, especially where driving in slight darkness required a reasonable speed.
Assessment of general damages for soft tissue injuries and fracture of the clavicle
General damages of Kshs. 500,000/= awarded, following comparable precedent.
The court applied the principles that comparable injuries deserve comparable awards, that damages must not be inordinately high or low, and that inflation must be considered. The Plaintiff's proposed authority involved more serious injuries, and the Defendant's 2021-2022 authorities were outdated given inflation. The High Court's award of Kshs. 500,000/= in Akula v Muthama for similar injuries was adopted.
Claim for future medical expenses where treatment costs were settled by an insurer (SHA)
The claim for future medical expenses of Kshs. 50,000/= was declined.
The discharge summary showed that the Plaintiff's medical expenses for the surgical procedures were settled by the Social Health Authority. Absent evidence that the SHA cover was no longer active, SHA would settle the implant removal costs. Relying on Mupa v Chilson, the court held that a plaintiff cannot directly claim from a defendant expenses payable by an insurer; such claims lie only through subrogation.
Proof of special damages
Pleaded special damages of Kshs. 5,530/= were proved by receipts and awarded.
The Plaintiff specially pleaded special damages of Kshs. 5,530/= in the Plaint, and the receipts on record proved the pleaded amount. Special damages must be both pleaded and proved; both requirements were satisfied, so the full amount was awarded with interest from the date of filing suit.
Legal principles established
#- A passenger in a motor vehicle accident is not liable in the absence of evidence of negligence on their part (e.g., failure to fasten a seat belt or attempting to jump out of a moving vehicle).
- A driver who hits another vehicle from behind is generally presumed to be at fault unless sufficient evidence rebuts the presumption.
- A reasonable driver must anticipate obstructions, including stationary objects wrongfully on the road, and drive at a speed permitting him to avoid them.
- A party who files a defence but adduces no evidence leaves the averments as mere allegations.
- A plaintiff cannot directly claim from a defendant treatment expenses payable by an insurer; such claims lie in subrogation after the insurer has indemnified the loss.
Court orders
#- 1.Judgment entered against the Defendant with liability at 100%
- 2.General damages of Kshs. 500,000/= awarded
- 3.Special damages of Kshs. 5,530/= awarded (Net Award Kshs. 505,530/=)
- 4.General damages to accrue interest at court rate from the date of judgment till payment in full
- 5.Special damages to accrue interest at court rate from the date of filing the suit till payment in full
- 6.Plaintiff awarded costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the negligence suit (tort claim for damages arising from a road traffic accident)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa v Thuo (Civil Case E370 of 2025) [2026] KEMC 622 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 26th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/622/eng@2026-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.