Barasa v Njihia & another (Civil Case E243 of 2024) [2026] KEMC 720 (KLR)

The court adopted the school of thought that excess passenger status does not impute negligence absent proof that it caused or contributed to the accident. A pillion passenger has no control over either vehicle. There was no evidence on a balance of probabilities that being an excess passenger caused the accident. Comparable injuries authority was applied, and excess-passenger conduct is a matter for traffic sanctions, not civil liability.

Although the Third Party was the registered owner and did not enter appearance, uncontroverted allegations are not automatically proved; he who alleges must prove. Ownership per se does not saddle an owner with vicarious liability. The Defendant failed to cross-examine on the rider-employer relationship and bore the consequences of litigating by shortcut. The evidence was barely adequate to fix vicarious liability.

The Plaintiff pleaded and proved the injuries on a balance of probabilities. Applying the principle that comparable injuries should attract comparable awards, the court found the injuries almost identical to those in Kamakya v Kioko, where Kshs. 800,000/= was awarded, and adopted the same figure.

Loss of income is real assessable loss proved by evidence, while loss of earning capacity is compensated in general damages once proved. The Plaintiff merely pleaded the head generally without pleading income or how the injuries diminished earning capacity, so the claim failed on a balance of probabilities.

Parties are bound by their pleadings, and future medical expenses, though assessed within general damages, constitute special damage that must be specifically pleaded and proved. Since the Amended Plaint did not plead this head despite the medical report, the court could not award it.