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MagistratePartially AllowedNot stated in the judgment as provided (Plaint dated 28th February 2025)· [2026] KEMC 635 (KLR)

Koech v Fargo Courier Limited (Civil Case E084 of 2025) [2026] KEMC 635 (KLR)

Magistrates' Court (Senior Resident Magistrate's Court), Bungoma
3 March 2026
TOT.O. Omono
2,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, a bicycle bodaboda cyclist, sued the Defendant alleging that on 10th February 2025 along the Bungoma–Mumias road, the Defendant's motor vehicle KBV 973 V Mitsubishi FH was negligently driven, knocking his bicycle from behind and causing him multiple soft tissue injuries. The Defendant denied the accident and blamed the Plaintiff's negligence. At trial, PW1 testified the vehicle was driven at high speed, lost control, and hit his bicycle from behind; he conceded carrying two pillion passengers, not wearing a helmet, and taking no evasive action. PW2 produced a police abstract but did not investigate. DW1, the Defendant's driver, blamed the cyclist for suddenly joining the road but admitted the vehicle's brakes failed before the accident. The court found the accident and ownership undisputed and vicarious liability unchallenged. Absent inspection reports or a sketch plan, it noted liability would ordinarily be split equally on divergent testimonies, but DW1's admission of brake failure showed the Defendant failed to maintain the vehicle properly. The Plaintiff's own wrongs - carrying two pillion passengers contrary to section 89 of the Traffic Act, riding without head protection despite head injuries, and inaction - warranted contributory negligence. Liability was apportioned 70%:30% in favour of the Plaintiff. On quantum, the court excluded unpleaded injuries (healed scars and tenderness), applying the rule that parties are bound by pleadings, and awarded Kshs. 100,000/= general damages guided by comparables and inflation, plus pleaded and proved special damages of Kshs. 7,330/=. Net award after 30% deduction: Kshs. 75,131/=. Interest was granted on general damages from judgment and on special damages from filing suit; costs to the Plaintiff subject to the liability ratio.

Key legal issues

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01

Apportionment of liability between the driver of the motor vehicle and the pedal cyclist

Holding

Liability apportioned 70%:30% in favour of the Plaintiff; the Defendant's driver bore greater blame due to brake failure, but the Plaintiff contributed by carrying two pillion passengers contrary to section 89 of the Traffic Act, not wearing a helmet, and taking no evasive steps

Reasoning

The court found that the lack of inspection reports and sketch plan left only divergent testimonies. DW1's admission that the brakes failed showed the Defendant failed to keep the vehicle in proper mechanical state. However, the Plaintiff's own wrongs - carrying two pillion passengers, absence of head protection despite sustaining head injuries, and failure to avoid the accident - warranted reducing his claim by 30%.

p. 5
02

Whether general damages could be awarded for injuries not pleaded

Holding

No. The court excluded healed scars on the left shoulder and mild tenderness on the deep back and left hip as unpleaded

Reasoning

Relying on Anthony Francis Wareham and Boniface Kinyua Kathuri, the court held that parties are bound by their pleadings, injuries must be specifically pleaded, and unpleaded injuries cannot be awarded even where the medical evidence is uncontroverted. Departing from pleadings amounts to an ambush and unfair trial.

p. 7
03

Quantum of general damages for multiple soft tissue injuries

Holding

Kshs. 100,000/= awarded, guided by comparable awards and inflation trends

Reasoning

The court reviewed comparable awards of Kshs. 80,000/= to Kshs. 100,000/= for soft tissue injuries and, guided by the most recent authority (Ondicho v Mosigisi) and inflation trends, found Kshs. 100,000/= to be reasonable compensation for the proved injuries assessed as harm.

p. 8
04

Vicarious liability of the Defendant for its driver

Holding

Not disputed; the Defendant accepted DW1 was its driver/agent and would be vicariously liable if the driver caused the accident

Reasoning

The court noted the Defendant did not dispute that DW1 was its agent/driver at the material time, so liability attached once the driver's negligence was established.

p. 3

Legal principles established

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  • Where the evidence on the circumstances of an accident consists of divergent oral testimonies with no independent evidence such as inspection reports or sketch plans, liability is usually apportioned equally between the parties
  • Only injuries specifically pleaded may be considered in awarding general damages; evidence of unpleaded injuries is inadmissible
  • A driver in control of a motor vehicle, a lethal weapon, must shoulder a greater share of blame in a collision with a vulnerable road user such as a pedal cyclist
  • Comparable injuries must attract comparable awards in general damages
  • Special damages must be specifically pleaded and proved

Court orders

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  1. 1.Liability apportioned at 70%:30% in favour of the Plaintiff
  2. 2.General damages of Kshs. 100,000/= awarded
  3. 3.Special damages of Kshs. 7,330/= awarded
  4. 4.Net award of Kshs. 75,131/= after deduction of 30% contribution
  5. 5.General damages and future medical expenses to accrue interest at court rate from the date of judgment till payment in full
  6. 6.Special damages to accrue interest at court rate from the date of filing suit till payment in full
  7. 7.Plaintiff awarded costs of the suit subject to the ratio of liability

Authorities

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Legislation

  • Traffic Actsection 89
  • Civil Procedure RulesOrder 2 Rule 4 (referenced in cited authority); Order XIV

Cases cited (9)

  • Barclay – Steward Limited & Another Vs. Waiyaki
    [1982-88] 1 KAR 1118
  • Mary Njeri Murigi v Peter Macharia & another
    [2016] KEHC 3535 (KLR)
  • Anthony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank
    [2004] eKLR
  • Boniface Kinyua Kathuri v David Munyoki
    [2020] eKLR
  • Stanley Maore vs Geoffrey Mwenda
    [2004] eKLR
  • Makami v Obong’o
    (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR)
  • FM (Minor suing through Mother and next friend MWM) v JNM & another
    [2020] eKLR
  • Asad Motors Limited & 2 others v Yaa
    (Civil Appeal 92 of 2022) [2023] KEHC 24279 (KLR)
  • Ondicho v Mosigisi
    (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR)
Jurisdiction invoked
Original civil suit for damages in negligence founded on the plaint dated 28th February 2025 (no specific constitutional/statutory provision invoked)

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, "Koech v Fargo Courier Limited (Civil Case E084 of 2025) [2026] KEMC 635 (KLR)", Case Analysis (2026). Not stated in the judgment as provided (Plaint dated 28th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/635/eng@2026-03-03

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