Mambo v Khaoya & another (Civil Case E285 of 2025) [2026] KEMC 710 (KLR)
The bottom line
#A Bungoma court awarded a motorcyclist Kshs. 456,900 after the vehicle's driver and owner were held fully liable for a rear-end collision they never bothered to defend at trial.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
Defendants jointly and severally 100% liable.
The Plaintiff's uncontroverted direct evidence, corroborated by the investigating officer, was that the motor vehicle hit the motorcycle from behind. That establishes a prima facie case of negligence against the driver, shifting the evidential burden to the Defendants to dislodge it. They chose not to adduce any evidence, so an adverse inference follows. The 1st Defendant was the 2nd Defendant's authorized agent, making the owner vicariously liable.
Effect of a defendant failing to adduce evidence
The defence remains mere allegations; the court may draw an adverse inference where evidence within a party's knowledge or control is withheld.
Relying on Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya and Edward Muriga, the court held that averments in a defence unsupported by evidence remain mere allegations. Under section 112 of the Evidence Act, where a party fails to produce evidence in its possession, the court is entitled to infer it would have been adverse to that party, without shifting the overall burden of proof to the plaintiff.
General damages for pain and suffering
Kshs. 450,000/= awarded for fractures of the left humerus and left tibia/fibula (proximal), chest injury and lip bruises.
Medical evidence proved the pleaded injuries. Comparable awards should compensate comparable injuries. The Plaintiff's proposed authority (Mugambi v Kenya Wildlife Services) was rejected because it arose under the Wildlife Conservation and Management Act. The injuries were almost similar to those in Njoga v Mwema, where Kshs. 450,000/= was awarded, so that figure was adopted.
Special damages
Kshs. 6,900/= proved by legible receipts and awarded.
Special damages must be specifically pleaded and proved. One receipt was illegible and therefore disregarded; the legible receipts for the medical report (Kshs. 6,000/=), NTSA records copy (Kshs. 550/=) and medical expenses (Kshs. 350/=) proved Kshs. 6,900/=.
Legal principles established
#- A driver who hits another vehicle from behind creates a prima facie case of negligence against himself, which he must rebut with evidence.
- Where a defendant adduces no evidence, averments in the statement of defence remain mere allegations.
- Comparable injuries should, as far as possible, be compensated by comparable awards.
Court orders
#- 1.Judgment entered against the Defendants jointly and severally on liability at 100%
- 2.General damages of Kshs. 450,000/= awarded
- 3.Special damages of Kshs. 6,900/= awarded (total award Kshs. 456,900/=)
- 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 suit till payment in full
- 6.Plaintiff awarded costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the Plaintiff's claim in negligence; jurisdiction not otherwise stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mambo v Khaoya & another (Civil Case E285 of 2025) [2026] KEMC 710 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 12th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/710/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.