Waweru v Kyoga Hauliers (K) Ltd & another (Civil Case E144 of 2025) [2026] KEMC 750 (KLR)
The bottom line
#A Bungoma court halved a road accident claim: with no solid evidence of who caused the crash, both drivers were held equally to blame.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Liability for the accident
- 2.Quantum of damages (general damages for pain and suffering and special damages)
Key legal issues
#Liability where evidence of the circumstances of the accident is contradictory and inadequate
The parties were found equally to blame on a 50:50 basis
Both police witnesses were not the investigating officers, so the OB entries were hearsay; the Samba Services investigations report was only marked for identification and carried no evidential weight. The only evidence was contradictory oral testimony by the plaintiff and DW1 blaming each other. Applying Lakhamshi v Attorney General, where evidence is insufficient to establish any party's negligence, blame is divided equally.
Quantum of general damages for blunt injuries assessed as harm
General damages awarded at Kshs. 200,000/=
Guided by the principle that comparable injuries should attract comparable awards, the court considered awards of Kshs. 150,000/= to 250,000/= for similar moderate multiple soft tissue injuries and settled on Kshs. 200,000/= for blunt injuries to the forehead, parietal scalp, neck and right shoulder assessed as harm.
Proof of special damages
Special damages of Kshs. 6,550/= proved and awarded
The plaintiff pleaded Kshs. 6,550/= in the Plaint and proved it with the receipt for Kshs. 6,000/= for the medical report and the NTSA receipt for Kshs. 550/=.
Legal principles established
#- Where evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must hold the parties equally to blame
- Contents of an OB extract on the circumstances of an accident, produced by someone other than the investigating officer, are hearsay and inadmissible to prove liability
- A document only marked for identification is not part of the evidence a court may use in making its decision
Court orders
#- 1.Judgment entered against the Defendants jointly and severally with liability apportioned 50%:50%
- 2.General damages of Kshs. 200,000/= awarded
- 3.Special damages of Kshs. 6,550/= awarded
- 4.Net award of Kshs. 103,225/= after 50% reduction
- 5.General damages to accrue interest at court rate from date of judgment till payment in full; special damages to accrue interest at court rate from date of filing suit till payment in full
- 6.Plaintiff to have costs of the suit subject to the ratio of liability
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit on negligence before the magistrates' court (civil jurisdiction); no specific provision stated
Relief refused
#Full (100%) liability against the Defendants
Liability apportioned equally as evidence was insufficient to establish either party's negligence
Costs
The Plaintiff will have the costs of this suit subject to the ratio of liability herein.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
judgment is entered against the Defendants jointly and severally in the following terms:(a) Liability………………………………50%:50% (b) General damages…………………...Kshs. 200,000/= (c) Special Damages…………………….Kshs. 6,550/= Grand Award……………………..Kshs. 206,550/= Less 50% Net Award…………………………Kshs. 103,225/=
It is now settled law in East Africa that where the evidence relating to a traffic is insufficient to establish the negligence of any party, the court must hold the parties equally to blame.
any information in an OB extract on the circumstances under which an accident occurred if not produced by the accident's investigating officer remains hearsay evidence
a document marked for identification is not part of the evidence that a trial court can use in making its decision
in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.
Issues in the judgment
#The judgment repeatedly refers to contradictory testimony by 'DW2' when the plaintiff's opposing witness on liability was DW1, who gave the contradictory oral testimony
Self-contradictory submission analysis on quantum: paragraph 41 states 'It is clear from the said authorities cited by the Defendants that there is no legal basis for the Plaintiff's submission that an award of Kshs. 120,000/=' when the 120,000 figure was the Defendants' proposal
Judgment dated 21st July 2026 yet cites authorities with 2026 citations, and paragraph 43's cited award dated [2026] KEHC 2889 (KLR) postdates consideration; also the accident date is given inconsistently in the OB reference (78/31/04/2024 vs 78/31/12/2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Kyoga Hauliers (K) Ltd & another (Civil Case E144 of 2025) [2026] KEMC 750 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 2nd April 2025, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/750/eng@2026-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.