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MagistratePartially AllowedCivil Case No E496 of 2024· [2026] KEMC 734 (KLR)

Shilaya v Simba Coach Company Ltd & another (Civil Case E496 of 2024) [2026] KEMC 734 (KLR)

Magistrates' Court at Bungoma
27 January 2026
1,753 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court ordered defendants to pay a motorcycle passenger KShs. 186,900 after a road accident, but only expenses backed by receipts were compensated.

What this practically means

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Executive summary

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The Plaintiff, a pillion passenger on a motorcycle along the Sikata–Kanduyi road on 16th October 2024, sued the Defendants claiming general and special damages of Kshs. 11,900/= for injuries sustained when the Defendants' motor vehicle KCX 258 B rammed into the motorcycle. The Defendants denied ownership of the vehicle and the occurrence of the accident, alleged contributory negligence by the Plaintiff, the rider and/or motorcycle owner, and pleaded that the suit was founded on a fraudulent accident. At hearing, the Plaintiff called four witnesses including a clinical officer, a doctor who produced a medical report, and a police officer who produced the abstract; the Plaintiff herself testified. The Defendants called no witnesses, so their defence remained mere allegations. The court framed two issues: liability and quantum. On liability, it held that a pillion passenger is in control of neither the motorcycle nor the motor vehicle, and in the absence of evidence of passenger negligence, the Defendants were jointly and severally 100% liable. On quantum, the court departed from the expert evidence that the Plaintiff lost consciousness, since the treatment notes did not record it and the Plaintiff could not confirm it, but found the soft tissue injuries proved. Applying comparable awards of Kshs. 150,000/=, it awarded Kshs. 180,000/= general damages and Kshs. 6,900/= special damages, strictly proved by receipts. Judgment of Kshs. 186,900/= was entered with interest and costs to the Plaintiff.

Key legal issues

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01

Liability for the accident

Holding

The Defendants were held 100% jointly and severally liable; the Plaintiff, as a pillion passenger, was not negligent.

Reasoning

The Plaintiff was a pillion passenger with no control over either the motorcycle or the motor vehicle. Both owed her a duty of care which was breached when the accident occurred. Relying on the cited authorities, a passenger is only liable where contributory negligence is proved, e.g. failure to fasten a seat belt or jumping out of a moving vehicle. There was no evidence of any negligence by the Plaintiff, and the Defendants called no witnesses to support their allegations of contributory negligence or fraud.

p. 6
02

General damages for pain and suffering

Holding

An award of Kshs. 180,000/= for soft tissue injuries comprising a headache, bruising, bleeding from the ears and a cut wound on the tongue.

Reasoning

The court found the alleged loss of consciousness could not stand because it was absent from the initial treatment notes and the Plaintiff herself could not confirm it; the court departed from the expert evidence on that point. The remaining injuries were corroborated soft tissue injuries which had healed. Guided by comparable awards of Kshs. 150,000/= in SMK v DC and Mangenge v Masai, and because the Plaintiff suffered a headache and bleeding in the ears, the court awarded Kshs. 180,000/=.

p. 7
03

Special damages

Holding

Special damages of Kshs. 6,900/= pleaded and proved; the full claimed Kshs. 11,900/= was not awarded.

Reasoning

Special damages must be strictly proved. The Plaintiff produced a receipt for Kshs. 6,000/= for the medical report, Kshs. 350/= for medical expenses, and Kshs. 550/= for a copy of motor vehicle records, totaling Kshs. 6,900/=. The Defendants neither objected to the production of the receipts nor impeached their contents. The claim of Kshs. 5,350/= for medical expenses was only proved to the extent of Kshs. 350/=.

p. 8

Legal principles established

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  • In the absence of evidence proving negligence on the part of a passenger, a passenger cannot be held liable for the causation of an accident.
  • A plaintiff who pleads special damages is obligated to strictly prove the same before an award is made.
  • Comparable injuries attract comparable awards in the assessment of general damages.
  • A defendant who does not call witnesses leaves the averments in its statement of defence as mere allegations.

Court orders

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  1. 1.Judgment entered against the Defendants jointly and severally with liability at 100%
  2. 2.General damages of Kshs. 180,000/= awarded for pain and suffering
  3. 3.Special damages of Kshs. 6,900/= awarded
  4. 4.Total award of Kshs. 186,900/=
  5. 5.General Damages and future medical expenses 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 the costs of the suit

Authorities

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Cases cited (5)

  • Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another
    (2017) eKLR
  • Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another
    (2014) eKLR
  • Viviane Anyango Onyango – Vs- Charity Wanjiku
    (2017) eKLR
  • SMK v DC (Suing Through Mother and Next Friend) NCK -Minor) & another
    (Civil Appeal E011 of 2023) [2025] KEHC 1867 (KLR)
  • Mangenge v Masai & another
    (Civil Appeal E020 of 2022) [2025] KEHC 9669 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a tort claim for damages arising from a road traffic accident

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, "Shilaya v Simba Coach Company Ltd & another (Civil Case E496 of 2024) [2026] KEMC 734 (KLR)", Case Analysis (2026). Civil Case No E496 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/734/eng@2026-01-27

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