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MagistratePartially AllowedCivil Case No E276 of 2025· [2026] KEMC 714 (KLR)

Nabwile alias Angeline Nabwire v Nyikuli & another (Civil Case E276 of 2025) [2026] KEMC 714 (KLR)

Magistrate's Court at Bungoma
9 July 2026
3,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A passenger injured in a Bungoma road accident won full compensation because both drivers were found equally to blame.

What this practically means

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Executive summary

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The Plaintiff, a fare-paying passenger, sued the owner of motor vehicle KCH 792 P for injuries sustained on 3rd March 2025 along the Bungoma-Mumias road when the vehicle collided head-on with motorcycle KMFF 135 L at Watoya. She sought general damages, special damages of Kshs. 10,750/=, costs and interest. The Defendant denied the accident and negligence and joined a Third Party (the motorcycle owner), who never entered appearance. At trial, PW2 testified the Defendant's driver overtook improperly at high speed; DW1, the driver, blamed the motorcycle for careless overtaking but admitted seeing the rider 20 metres away yet being unable to brake. A police officer (DW2) blamed the motorcycle rider on the basis of an OB extract, but conceded she neither investigated the accident nor visited the scene. The court held the uncertified OB extract and DW2's hearsay testimony inadmissible, found the Plaintiff passenger entirely blameless, and, guided by Lakhamshi and Baker, held that where blame between two drivers cannot be precisely determined, liability is shared equally - 100% against the Defendant in favour of the Plaintiff and 50%:50% between the Defendant and the Third Party. General damages of Kshs. 200,000/= were awarded (comparable-injuries principle), plus proved special damages of Kshs. 9,270/=, with interest. The Plaintiff received costs of the suit; the Defendant bore its own costs of the third-party proceedings; the Third Party was to indemnify the Defendant 50% of the decretal sum and costs.

Key legal issues

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01

Whether the Plaintiff, a fare-paying passenger, was negligent

Holding

The Plaintiff was not to blame for the accident; both drivers owed her a duty of care which was breached.

Reasoning

The evidence showed no negligence on the part of the passenger, who merely boarded the Defendant's vehicle. The court adopted authority holding that a passenger is only liable in special circumstances, and found that the two drivers owed her a duty of care which was breached when the accident occurred, causing soft tissue injuries.

p. 3
02

Whether the uncertified OB extract and DW2's testimony could establish that the motorcycle rider was to blame

Holding

The OB extract was inadmissible hearsay and DW2's testimony on the circumstances was likewise disregarded.

Reasoning

DW2 did not investigate the accident, did not visit the scene, could not state the point of impact and produced no sketch map. The OB extract was illegible, uncertified and had no identified author. Following precedent on OB extracts, the court held the testimony and extract inadmissible hearsay and declined to rely on them.

p. 5
03

Apportionment of liability between the Defendant's driver and the Third Party's motorcycle rider

Holding

Liability apportioned equally, 50%:50%, between the Defendant and the Third Party.

Reasoning

With the hearsay excluded, only contradictory eye-witness evidence remained, and the absence of the investigating officer and sketch map made it difficult to determine the point of impact. Applying Lakhamshi and Baker, where blame cannot be precisely determined between two drivers, liability is shared equally. DW1's admission of seeing the motorcycle 20 metres away but being unable to brake also cast blame on him.

p. 6
04

Quantum of general and special damages

Holding

General damages of Kshs. 200,000/= and proved special damages of Kshs. 9,270/= awarded.

Reasoning

The court disregarded the parties' authorities as either too severe or too low, and instead relied on cases with nearly identical injuries (Kshs. 150,000/= to 250,000/= for moderate multiple soft tissue injuries), settling on Kshs. 200,000/=. Special damages were awarded only to the extent proved by receipts (Kshs. 9,270/= of the pleaded Kshs. 10,750/=).

p. 7
05

Third Party's liability despite non-appearance

Holding

The Third Party's failure to enter appearance amounted to an admission of contribution, and it was ordered to indemnify the Defendant 50%.

Reasoning

The Third Party neither entered appearance nor filed pleadings despite due service, so its liability was determined at the hearing. The court held that this failure amounted to an admission of contribution, but the Defendant still bore the burden of proving the extent of the Third Party's contribution, which the court fixed at 50%.

p. 3

Legal principles established

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  • Where evidence is insufficient to determine which of two drivers caused an accident, liability is shared equally between them.
  • A passenger is not to blame for an accident absent special circumstances such as not fastening a seat belt.
  • Uncertified, illegible OB extracts without an identified author are inadmissible hearsay and cannot be relied upon to determine liability.
  • Comparable injuries should, as far as possible, be compensated by comparable awards.

Court orders

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  1. 1.Liability 100% in favour of the Plaintiff as against the Defendant; 50%:50% between the Defendant and the Third Party
  2. 2.General damages of Kshs. 200,000/= with interest at court rate from the date of judgment till payment in full
  3. 3.Special damages of Kshs. 9,270/= with interest at court rate from the date of filing suit till payment in full
  4. 4.Plaintiff to have the costs of the suit
  5. 5.Defendant to bear their own costs of the Third-Party proceedings
  6. 6.Third Party to indemnify the Defendant 50% of the decretal sum and costs payable by the Defendant to the Plaintiff

Authorities

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Legislation

  • Evidence ActSection 33

Cases cited (9)

  • Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another
    (2017) eKLR
  • Said & another v Kerubo (Legal administrator of the Estate of the Late Isaac Mogere - Deceased)
    (Civil Appeal E004 of 2024) [2026] KEHC 2638 (KLR)
  • Bosire v Njihia
    (Civil Appeal E222 of 2025) [2026] KEHC 2744 (KLR) (Civ)
  • Munyamai & Another vs. Representatives of Joseph Okoth Aloo (Deceased)
    [2024] KEHC 2638
  • Baker V Market Harborough Industrial Co-operative Society LTD
    [1953] 1 WLR 1472
  • Stanley Maore vs Geofirey Mwenda
    (2004) eKLR
  • Surian Enterprises Ltd v Mary Bahati Peter
    (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR)
  • Oloo v Arika & another
    (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR)
  • Quick Shuttle Sacco v Joel & another
    (Civil Appeal E131 of 2023) [2026] KEHC 1573 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a road-accident negligence claim

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, "Nabwile alias Angeline Nabwire v Nyikuli & another (Civil Case E276 of 2025) [2026] KEMC 714 (KLR)", Case Analysis (2026). Civil Case No E276 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/714/eng@2026-07-09

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