HLK (Suing as the next friend and father of MI) v Mbuthia (Civil Case E185 of 2025) [2026] KEMC 759 (KLR)
The bottom line
#A Bungoma court ruled the driver fully liable for rear-ending a motorcycle, awarding a minor Kshs. 206,550 with interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
Defendant found 100% liable for the accident.
PW1, who witnessed the accident, gave uncontroverted direct evidence that the motor vehicle hit the motorcycle the minor had boarded from behind. Such direct evidence is the best evidence and, uncontroverted, suffices to establish negligence. The presumption against a driver who hits a vehicle from behind was not rebutted as the Defendant called no evidence, warranting an adverse inference. The minor, a pillion passenger, could not be blamed for the accident.
Admissibility of next friend's evidence on behalf of a minor
Instituting a suit is distinct from testifying; a minor is a competent and compellable witness, and a next friend who did not witness the accident gives inadmissible hearsay.
The court noted a worrying trend of advocates not calling minor accident victims to testify. Order 32 Rule 1's operative word is 'institute', which does not oust the minor's duty to prove the case. However, here the next friend (the father) witnessed the accident, so his evidence was direct evidence and admissible.
Consequence of the Defendant's failure to adduce evidence
The defence remained mere allegations and an adverse inference was drawn against the Defendant.
The Defendant called no witnesses. Citing Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya and Kenya Akiba Micro Financing, the court held that where a party fails to tender evidence within its knowledge or control, the court may infer the evidence would have been adverse to that party. The evidential burden shifted to the Defendant to dislodge the prima facie case, which he failed to do.
Quantum of general damages
Kshs. 200,000/= awarded for blunt injuries to head, chest and back and a cut wound on the right eyelid.
Comparable injuries should be compensated by comparable awards (Stanley Maore v Geoffrey Mwenda). Guided by comparable awards of Kshs. 150,000/= to Kshs. 250,000/= for moderate multiple soft tissue injuries in cited authorities, the court fixed the award at Kshs. 200,000/=.
Legal principles established
#- A driver who hits another vehicle from behind bears a prima facie case of negligence which he must rebut with evidence.
- Where a party fails to adduce evidence in support of its defence, the averments in the defence remain mere allegations.
- A minor's suit instituted by a next friend does not oust the minor's duty to prove their case; a minor remains a competent and compellable witness.
Court orders
#- 1.Judgment entered against the Defendant with liability at 100%
- 2.General damages of Kshs. 200,000/= awarded for pain and suffering
- 3.Special damages of Kshs. 6,550/= awarded
- 4.General damages to accrue interest at court rate from date of judgment till payment in full
- 5.Special damages to accrue interest at court rate from date of filing suit till payment in full
- 6.Plaintiff awarded costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the minor's tort claim; jurisdiction conceded in the Defendant's Statement of Defence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HLK (Suing as the next friend and father of MI) v Mbuthia (Civil Case E185 of 2025) [2026] KEMC 759 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/759/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.