Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedNot stated in the judgment (Plaint dated 26th April 2025)· [2026] KEMC 757 (KLR)

Masoso v Ena Investments Ltd (Civil Case E180 of 2025) [2026] KEMC 757 (KLR)

Magistrates' Court (Senior Resident Magistrate)
28 July 2026
TOT.O. Omono
2,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Bungoma court found both drivers equally to blame for a road accident because the evidence could not prove who was negligent, halving the compensation awarded.

What this practically means

#

Executive summary

#
The Plaintiff sued for damages arising from a road traffic accident of 18th January 2025 along the Bungoma–Mumias road, alleging that the Defendant's driver, while overtaking his motorcycle, swerved back into his lane and knocked him, causing him multiple soft tissue injuries. The Defendant denied negligence and blamed the Plaintiff for ramming into its motor vehicle from behind. At trial, PW1, the police officer, conceded he could not tell how the accident occurred. The Plaintiff testified that the Defendant's vehicle encroached onto his lane; the Defendant's driver blamed the Plaintiff. The Defendant's police witness produced an uncertified OB extract but conceded she neither visited the scene nor investigated. The court held the uncertified OB extract inadmissible and the officer's testimony hearsay, applying Dikir & another v Kimary. Finding the contradictory oral evidence insufficient to fix blame on either driver, the court applied the Lakhamshi principle, endorsed in Abbay Abubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd, and held the parties equally to blame at 50%:50%. On quantum, guided by comparable authorities, the court awarded Kshs. 200,000/= general damages for moderate multiple soft tissue injuries with scars, Kshs. 4,550/= special damages proved by receipts, and Kshs. 10,000/= for future painkillers, declining an award for psychosocial support as unsubstantiated. Judgment was entered at a net Kshs. 107,225/= after the 50% deduction, with interest on general damages and future medical expenses from judgment and on special damages from filing suit, and costs of the suit to the Plaintiff subject to the liability ratio.

Key legal issues

#
01

Liability for the road traffic accident

Holding

The Plaintiff and the Defendant were found equally to blame (50%:50%) because the contradictory oral testimony, the inadmissible uncertified OB extract and the absence of corroborative evidence left the court unable to apportion blame otherwise

Reasoning

The court found the accident and injuries proved but the evidence on fault contradictory. The uncertified OB extract was inadmissible, and the officer who produced it neither visited the scene nor investigated, rendering her testimony hearsay. With no sketch map, inspection report, investigating officer or independent eyewitness, the court applied the Lakhamshi principle and divided blame equally between the two drivers.

p. 4
02

Admissibility of an uncertified OB extract and testimony of a non-investigating officer

Holding

The uncertified OB extract was inadmissible, and the testimony of a police officer who did not investigate the accident amounted to hearsay on the circumstances of the accident

Reasoning

DW2 conceded she did not visit the scene or investigate the accident, and the OB extract was not certified. Relying on Dikir & another v Kimary, the court held that remarks in an OB about blameworthiness are hearsay and opinion evidence inadmissible to prove facts, so the extract and DW2's testimony could not be used to determine liability.

p. 3
03

Quantum of general damages for pain and suffering

Holding

An award of Kshs. 200,000/= for multiple moderate soft tissue injuries with scars

Reasoning

The court applied the principle that comparable injuries attract comparable awards. Guided by Surian Enterprises Ltd v Mary Bahati Peter (Kshs. 150,000/=), Oloo v Arika & another (Kshs. 150,000/=) and Quick Shuttle Sacco v Joel & another (Kshs. 250,000/=), it found awards of Kshs. 150,000/= to Kshs. 250,000/= usual for such injuries and selected Kshs. 200,000/=.

p. 5
04

Special damages and future medical expenses

Holding

Pleaded special damages of Kshs. 4,550/= were proved by receipts; Kshs. 10,000/= awarded for future painkillers but no award for psychosocial support

Reasoning

The medical report receipt of Kshs. 4,000/= and the NTSA receipt of Kshs. 550/= proved the pleaded special damages. Although Dr. Ekesa did not testify on the cost and duration of future treatment, the court exercised its discretion and awarded Kshs. 10,000/= for painkillers, which the Plaintiff testified he still uses, but made no award for psychosocial support as it was not substantiated.

p. 6

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
  • The contents of an OB extract on the circumstances of an accident, if not produced by the accident's investigating officer, remain hearsay evidence and cannot prove how the accident took place
  • Comparable injuries attract comparable awards in assessing general damages

Court orders

#
  1. 1.Judgment entered against the Defendant with liability apportioned 50%:50% between the Plaintiff and the Defendant
  2. 2.General damages of Kshs. 200,000/= awarded
  3. 3.Special damages of Kshs. 4,550/= awarded
  4. 4.Future medical expenses of Kshs. 10,000/= awarded for painkillers
  5. 5.Net award of Kshs. 107,225/= after deduction of 50% liability
  6. 6.General damages and future medical expenses to accrue interest at court rate from the date of judgment till payment in full; special damages to accrue interest at court rate from the date of filing suit till payment in full
  7. 7.Plaintiff awarded the costs of the suit subject to the 50% liability ratio
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the negligence claim pleaded in the Plaint dated 26th April 2025

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Masoso v Ena Investments Ltd (Civil Case E180 of 2025) [2026] KEMC 757 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 26th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/757/eng@2026-07-28

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