Wekesa v Waswa & 3 others (Civil Case E026 of 2016) [2026] KEMC 668 (KLR)
The bottom line
#A Bungoma court awarded an injured motorbike passenger Kshs 209,520, holding that passengers aren't to blame for accidents and both drivers share equal liability when evidence can't distinguish them.
What this practically means
#Executive summary
#Key legal issues
#Liability of a pillion passenger in a road traffic accident
The Plaintiff, a pillion passenger, did not contribute to the accident; a passenger is not liable unless his own negligence is demonstrated
The court relied on Oduor v Achieng, holding that a passenger cannot be liable unless it is shown how he was negligent. There was no evidence that the Plaintiff contributed to the accident, and the Defendants, who filed defences blaming the Plaintiff, called no evidence to substantiate those allegations, leaving them unproven.
Apportionment of liability between two drivers where the evidence does not distinguish blame
The 1st and 3rd Defendants, the two drivers, were held equally to blame at 50%: 50%
The court could not determine the point of impact or which driver was to blame. Guided by Madan J in Welch v Standard Bank, it held that where the court cannot draw a distinction between two drivers, both must be held equally to blame; neither escapes liability merely because the evidence cannot differentiate them. Both owed the Plaintiff a duty of care which they breached.
Effect of a defendant who files a defence but calls no evidence
The averments in the 1st and 3rd Defendants' statements of defence remained mere allegations which the court would not consider
Relying on CMC Aviation Ltd v Cruisair Ltd (No. 1) and Motex Knitwear Limited v Gopitex Knitwear Mills Limited, the court held that unproven pleadings are not evidence. Since the 1st and 3rd Defendants adduced no evidence, their allegations of the Plaintiff's and the rider's negligence were unsubstantiated and could not found any decision.
Quantum of general damages for pain and suffering
An award of Kshs. 200,000/= was reasonable compensation for the injuries sustained
The court found that the P3 form, discharge summary, treatment notes and medical report proved the pleaded injuries on a balance of probabilities. Comparing the injuries with those in Onyango v Obura, where Kshs. 180,000/= was awarded, and factoring in the lapse of time since that decision, the court adjusted the award upward to Kshs. 200,000/=.
Proof of special damages
The Plaintiff pleaded and strictly proved special damages of Kshs. 9,520/= through receipts
Applying Hahn v Singh, the court reiterated that special damages must be specifically pleaded and strictly proved. The Plaintiff pleaded Kshs. 9,520/= in paragraph 9 of the Plaint, and the receipts produced proved the pleaded amount on a balance of probabilities.
Legal principles established
#- A passenger cannot be held liable for an accident involving a vehicle in which he/she was travelling unless his/her own negligence is demonstrated
- Where the court cannot distinguish between two drivers as to blame for a collision, both must be held equally to blame
- Special damages must be specifically pleaded and strictly proved before they can be awarded
- Unproved averments in a defence on which no evidence is called remain mere allegations which the court will not consider
Court orders
#- 1.Judgment entered jointly and severally against the 1st and 3rd Defendants
- 2.Liability apportioned 50%: 50% between the 1st Defendant and the 3rd Defendant in favour of the Plaintiff
- 3.General damages awarded at Kshs. 200,000/=
- 4.Special damages awarded at Kshs. 9,520/=
- 5.Total award of Kshs. 209,520/=
- 6.General damages to accrue interest at court rate from the date of judgment till payment in full
- 7.Special damages to accrue interest at court rate from the date of filing suit till payment in full
- 8.Plaintiff awarded the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a negligence claim pleaded in a Plaint dated 18th January 2016 (no specific statutory provision invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Waswa & 3 others (Civil Case E026 of 2016) [2026] KEMC 668 (KLR)", Case Analysis (2026). Not stated in the judgment text provided (Plaint dated 18th January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/668/eng@2026-08-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.