BNC v Auto Mega Ltd & another (Civil Case E028 of 2025) [2026] KEMC 637 (KLR)
The bottom line
#A Bungoma court awarded a knocked-down minor Kshs. 91,640 after finding both the pedestrian and the driver partly responsible for the accident.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
Both parties were negligent; liability apportioned 80%:20% in favour of the Plaintiff
The Plaintiff breached the Highway Code by walking on the left side of the road and in a crowd, contributing to the accident. However, the 2nd Defendant still owed a higher duty of care as driver of a dangerous machine and failed to avoid knocking down the Plaintiff despite hooting and braking.
Vicarious liability of the 1st Defendant
1st Defendant, as registered owner, vicariously liable for the 2nd Defendant's driving
There was no evidence to controvert the copy of records showing the 1st Defendant owned the vehicle, nor the averment that the 2nd Defendant was the 1st Defendant's agent/servant. In the event the 2nd Defendant is found liable, the 1st Defendant is vicariously liable.
Proof of injuries and the medical report
Plaintiff proved the pleaded injuries on a balance of probabilities
The court rejected the 2nd Defendant's attempt to impeach the medical report based on an alleged P3 form date discrepancy, finding the P3 form was not dated 3rd December 2024. A trauma surgeon is competent to assess psychological trauma without being a psychiatrist.
Future medical expenses
Awarded Kshs. 10,000/= as pleaded and proved
Following Tracom Limited v Hassan Mohamed Adan, once future medication is pleaded, the exact amount need not be specially stated. The court found receipts and treatment notes unnecessary given it is a matter of public notoriety that painkillers are bought over the counter without receipts.
Special damages
Special damages of Kshs. 4,550/= pleaded and proved
The Plaintiff produced a receipt for Kshs. 550/= for the copy of records and a receipt for Kshs. 4,000/= for the medical report, both of which were specifically pleaded.
Weight of police officer's evidence on accident cause
PW2's evidence on the cause of the accident given little weight
PW2 neither visited the scene nor investigated the traffic case and did not produce the motor vehicle's inspection report to support his assertion of mechanical failure. The court agreed with the 2nd Defendant that PW2 could not speak to the circumstances of the accident.
Legal principles established
#- A driver of a motor vehicle owes a higher duty of care to other road users even where the pedestrian is negligent
- Breach of the Highway Code may be relied upon in civil proceedings to establish or negative liability
- Comparable injuries should be compensated by comparable awards
Court orders
#- 1.Judgment entered jointly and severally against the Defendants
- 2.Liability apportioned at 80%:20% in favour of the Plaintiff
- 3.General damages of Kshs. 100,000/= awarded
- 4.Future medical expenses of Kshs. 10,000/= awarded
- 5.Special damages of Kshs. 4,550/= awarded
- 6.Net award of Kshs. 91,640/= after deduction of 20% contribution
- 7.Interest on general damages and future medical expenses at court rate from date of judgment until payment in full
- 8.Interest on special damages at court rate from date of filing suit until payment in full
- 9.Plaintiff awarded costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over negligence and road traffic accident claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BNC v Auto Mega Ltd & another (Civil Case E028 of 2025) [2026] KEMC 637 (KLR)", Case Analysis (2026). Not stated in judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.