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MagistratePartially AllowedNot stated in judgment as provided· [2026] KEMC 637 (KLR)

BNC v Auto Mega Ltd & another (Civil Case E028 of 2025) [2026] KEMC 637 (KLR)

Magistrates' Court
10 February 2026
4,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, a minor suing through her father, sued the Defendants for general damages, future medical expenses and special damages of Kshs. 4,550/= arising from a road traffic accident on 01st December 2024 along Namwacha–Sang'alo road, in which motor vehicle registration number KDC 540D allegedly veered off the road and knocked her near Sang'alo Primary School. The 1st Defendant did not enter appearance and interlocutory judgment was entered against them. The 2nd Defendant denied the accident and pleaded contributory negligence. At trial, the Plaintiff's father, a police officer, and Dr. Ekesa Mulyanga testified; the 2nd Defendant's witnesses maintained that a rowdy crowd failed to give way despite hooting and braking. The court found it common ground that the accident occurred, that the 2nd Defendant was the driver, and that the 1st Defendant owned the vehicle and was vicariously liable. On liability, the court held the Plaintiff breached the Highway Code by walking on the left side of the road and in a crowd, contributing to the accident, but that the 2nd Defendant also breached the higher duty of care owed by a driver of a dangerous machine. Liability was apportioned 80%:20% in favour of the Plaintiff. On quantum, the court awarded Kshs. 100,000/= in general damages, Kshs. 10,000/= for future medical expenses, and Kshs. 4,550/= special damages, totalling Kshs. 114,550/= less 20%, i.e. a net award of Kshs. 91,640/=. Interest was awarded on general damages and future medical expenses from the date of judgment and on special damages from the date of filing suit. The Plaintiff was awarded the costs of the suit.

Key legal issues

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01

Liability for the road traffic accident

Holding

Both parties were negligent; liability apportioned 80%:20% in favour of the Plaintiff

Reasoning

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.

p. 6
02

Vicarious liability of the 1st Defendant

Holding

1st Defendant, as registered owner, vicariously liable for the 2nd Defendant's driving

Reasoning

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.

p. 4
03

Proof of injuries and the medical report

Holding

Plaintiff proved the pleaded injuries on a balance of probabilities

Reasoning

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.

p. 7
04

Future medical expenses

Holding

Awarded Kshs. 10,000/= as pleaded and proved

Reasoning

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.

p. 8
05

Special damages

Holding

Special damages of Kshs. 4,550/= pleaded and proved

Reasoning

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.

p. 9
06

Weight of police officer's evidence on accident cause

Holding

PW2's evidence on the cause of the accident given little weight

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Judgment entered jointly and severally against the Defendants
  2. 2.Liability apportioned at 80%:20% in favour of the Plaintiff
  3. 3.General damages of Kshs. 100,000/= awarded
  4. 4.Future medical expenses of Kshs. 10,000/= awarded
  5. 5.Special damages of Kshs. 4,550/= awarded
  6. 6.Net award of Kshs. 91,640/= after deduction of 20% contribution
  7. 7.Interest on general damages and future medical expenses at court rate from date of judgment until payment in full
  8. 8.Interest on special damages at court rate from date of filing suit until payment in full
  9. 9.Plaintiff awarded costs of the suit

Authorities

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Legislation

  • Traffic ActSection 68(3)
  • Highway CodeGeneral provisions on pedestrians and road users

Cases cited (11)

  • Tracom Limited & Another v Hassan Mohamed Adan
    (2009) eKLR
  • Daniel Odhiambo Ngesa v Daniel Otieno Owino & Another
    (2020) KEHC 5959 (KLR)
  • Monda v Suji & another [Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased]
    [2023] KEHC 2778 [KLR]
  • Masembe v Sugar Corporation and another
    [2002] 2 EA 434
  • Mary Njeri Murigi v Peter Macharia & another
    [2016] eKLR
  • Stanley Maore v Geofirey 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)
  • Kenya Bus Services Ltd v Gituma
    (2004) 1 EA 91
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over negligence and road traffic accident claims

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, "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.