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MagistratePartially AllowedPlaint dated 14th June 2025 (Bungoma)· [2026] KEMC 711 (KLR)

Balongo v Wekesa (Civil Case E284 of 2025) [2026] KEMC 711 (KLR)

Magistrates' Court at Bungoma
30 June 2026
TOT.O. Omono
2,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A pedestrian hit by a car in Bungoma won compensation, but his own careless road-crossing reduced his payout by 20%.

What this practically means

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Executive summary

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The Plaintiff, a pedestrian, sued the Defendant for general and special damages arising from a road traffic accident of 6th April 2025 at Keringet roundabout along the Bungoma–Mumias road, in which he was knocked down by the Defendant's motor vehicle KCG 949N. The Defendant denied negligence and pleaded contributory negligence in the alternative. At trial, PW1 (the Plaintiff) testified that he was hit while crossing at a zebra crossing by a vehicle being driven on the wrong side of the road; PW2, a police officer, produced a police abstract but admitted he neither investigated nor visited the scene. DW1, the Defendant's authorized driver, and DW2, a passenger, maintained that the Plaintiff suddenly crossed the road at an undesignated spot. The court found PW2's testimony on the accident circumstances to be inadmissible hearsay. On liability, the court held that although the Plaintiff breached the Highway Code by crossing near a roundabout without confirming safety, the driver owed a higher duty of care as controller of a dangerous machine and could have avoided the collision at 1400hrs if driving at a reasonable speed. Liability was apportioned 80%:20% in the Plaintiff's favour. On quantum, the court rejected Dr. Osiro's report as being at variance with the Plaintiff's testimony and initial treatment notes, proved injuries of head injury with loss of consciousness, fracture of the right lateral malleolus, dislocation of the right ankle joint and blunt chest injury, and awarded Kshs. 400,000/= general damages. Special damages of Kshs. 6,550/= only were proved out of Kshs. 18,750/= pleaded. Judgment was entered for a net award of Kshs. 325,240/= after 20% deduction, with interest and costs subject to the liability ratio.

Key legal issues

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01

Whether the Defendant's driver was negligent for the accident

Holding

The Defendant was liable at 80%, with the Plaintiff contributing 20% for breaching the Highway Code by crossing near a roundabout without checking for safety

Reasoning

PW2's evidence was inadmissible hearsay since he neither investigated nor visited the scene. PW1, DW1 and DW2 gave contradictory accounts, but the evidence proved the Plaintiff was crossing at Keringet roundabout. His failure to confirm safety breached the Highway Code, contributing to the accident. However, the driver owed a higher duty of care as the controller of a dangerous machine, should have anticipated pedestrians, and could have avoided the collision at 1400hrs if driving at a reasonable speed.

p. 4
02

The appropriate award of general damages for pain and suffering

Holding

Kshs. 400,000/= awarded for head injury with loss of consciousness, fracture of the right lateral malleolus, dislocation of the right ankle joint and blunt chest injury, with no permanent incapacity

Reasoning

Dr. Osiro's report, which found only a fracture of the left lateral malleolus, was rejected as it conflicted with the Plaintiff's testimony and initial treatment notes, and its author was not called to explain the divergent opinion. Relying on the principle that comparable injuries attract comparable awards and on Sunny Hauliers Limited v Wambua, where Kshs. 600,000/= was awarded for similar injuries with 5% incapacity, the court found Kshs. 400,000/= reasonable given the absence of permanent incapacity.

p. 6
03

Whether special damages of Kshs. 18,750/= were proved

Holding

Only Kshs. 6,550/= was proved and awarded

Reasoning

Special damages must be strictly proved. Only the receipt for the medical report for Kshs. 6,000/= and the NTSA receipt for Kshs. 550/= were produced, leaving the balance of the pleaded Kshs. 18,750/= unproved and unawarded.

p. 6
04

Vicarious liability of the Defendant for DW1's driving

Holding

Conceded/common ground: the Defendant is vicariously liable for its authorized driver's negligence

Reasoning

Ownership of the motor vehicle and DW1's status as the Defendant's authorized driver were undisputed, so any negligence by DW1 attaches vicariously to the Defendant.

p. 2

Legal principles established

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  • Testimony by a police officer who did not investigate the accident or visit the scene is inadmissible hearsay and cannot be relied on to determine liability
  • A pedestrian's breach of the Highway Code may be relied on in civil proceedings to establish or negative liability under section 68(3) of the Traffic Act
  • A motor vehicle driver owes a higher duty of care to other road users and cannot rely on the pedestrian's wrongful presence to excuse a collision
  • A court is not bound to accept an expert report uncritically and may depart from it where it is at variance with other reliable evidence and its author is not called to testify
  • Comparable injuries should, as far as possible, be compensated by comparable awards

Court orders

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  1. 1.Liability apportioned 80%:20% in favour of the Plaintiff as against the Defendant
  2. 2.General damages of Kshs. 400,000/= awarded
  3. 3.Special damages of Kshs. 6,550/= awarded
  4. 4.Net award of Kshs. 325,240/= after deducting 20% contribution
  5. 5.General damages 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 the 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 68(3)
  • Highway Code

Cases cited (6)

  • Wainaina v Muniu (Civil Appeal E293 of 2023) [2026] KEHC 839 (KLR)
    [2026] KEHC 839 (KLR)
  • Masembe v Sugar Corporation and Another
    [2002] 2 EA 434
  • Monda v Suji & another [Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased]
    [2023] KEHC 2778 (KLR)
  • Mary Njeri Murigi v Peter Macharia & another
    [2016] eKLR
  • Stanley Maore vs Geoffrey Mwenda
    (2004) eKLR
  • Sunny Hauliers Limited v Wambua (Civil Appeal 161 of 2020)
    [2024] KEHC 1705 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the Plaint dated 14th June 2025; jurisdiction to hear and determine the suit was admitted by the Defendant

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, "Balongo v Wekesa (Civil Case E284 of 2025) [2026] KEMC 711 (KLR)", Case Analysis (2026). Plaint dated 14th June 2025 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/711/eng@2026-06-30

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