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MagistratePartially AllowedNot stated in the judgment (Plaint dated 2nd April 2025, Bungoma)

Waweru v Kyoga Hauliers (K) Ltd & another (Civil Case E144 of 2025) [2026] KEMC 750 (KLR)

Magistrates' Court (Chief Magistrate's Court), Bungoma
21 July 2026
2,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued the Defendants, the owners of motor vehicle KBY 494 X/ZE 6766, seeking general damages, special damages of Kshs. 6,550/=, costs and interest for injuries sustained on 31st December 2024 when the Defendants' vehicle, driven by their agent DW1, allegedly rammed into his vehicle along the Malaba–Bungoma road at Zerozero area. The Defendants denied negligence and blamed the Plaintiff. The court framed two issues: liability and quantum. On liability, both parties called police officers who were not the investigating officers, so the OB entries were held to be hearsay; the Samba Services investigations report, only marked for identification, was held to have no evidential weight per Mwige v Kiguta. With only contradictory oral testimony from the drivers, the court applied the Lakhamshi principle, as endorsed in Abbay Abubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd, that where evidence is insufficient to establish any party's negligence the parties must be held equally to blame, and apportioned liability 50%:50%. On quantum, applying the comparable-injuries principle in Stanley Maore v Geoffrey Mwenda and awards of Kshs. 150,000/= to 250,000/= in comparable cases, the court awarded Kshs. 200,000/= general damages for blunt injuries assessed as harm, plus proved special damages of Kshs. 6,550/=. Judgment was entered for Kshs. 103,225/= net of the 50% liability, with interest and costs to the Plaintiff subject to the liability ratio.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Liability for the accident
  2. 2.Quantum of damages (general damages for pain and suffering and special damages)

Key legal issues

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01

Liability where evidence of the circumstances of the accident is contradictory and inadequate

Holding

The parties were found equally to blame on a 50:50 basis

Reasoning

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.

p. 5
02

Quantum of general damages for blunt injuries assessed as harm

Holding

General damages awarded at Kshs. 200,000/=

Reasoning

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.

p. 6
03

Proof of special damages

Holding

Special damages of Kshs. 6,550/= proved and awarded

Reasoning

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/=.

p. 7

Legal principles established

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  • 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

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  1. 1.Judgment entered against the Defendants jointly and severally with liability apportioned 50%:50%
  2. 2.General damages of Kshs. 200,000/= awarded
  3. 3.Special damages of Kshs. 6,550/= awarded
  4. 4.Net award of Kshs. 103,225/= after 50% reduction
  5. 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. 6.Plaintiff to have costs of the suit subject to the ratio of liability

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil suit on negligence before the magistrates' court (civil jurisdiction); no specific provision stated

Relief refused

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Full (100%) liability against the Defendants

Liability apportioned equally as evidence was insufficient to establish either party's negligence

p. 5

Costs

The Plaintiff will have the costs of this suit subject to the ratio of liability herein.

Quotable passages

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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/=
p. 7Final orders and disposition
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.
p. 5Equal apportionment where evidence of negligence is insufficient
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
p. 4Hearsay value of OB extracts produced by non-investigating officers
a document marked for identification is not part of the evidence that a trial court can use in making its decision
p. 4Evidential weight of documents marked for identification
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.
p. 6Approach to assessment of general damages

Issues in the judgment

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minor

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

minor

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

minor

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

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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, "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.