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MagistratePartially AllowedCivil Case No E234 of 2025· [2026] KEMC 769 (KLR)

Wekesa v Siundu (Civil Case E234 of 2025) [2026] KEMC 769 (KLR)

Chief Magistrate's Court at Bungoma
10 July 2025
2,128 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 awarded a motorcyclist's passenger Kshs 133,750 after a crash, holding the other rider 100% liable.

What this practically means

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Executive summary

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The Plaintiff, a pillion passenger on motorcycle KMFC 118 A, sued after it was hit by motorcycle KMGD 643 S along the Bumula–Mateka road on 4th December 2023, seeking general and special damages. The 1st Defendant neither entered appearance nor filed a defence; the 2nd Defendant, alleged to be a mere registration agent for the financier, had the suit against it withdrawn by consent on 13th March 2025, leaving formal proof against the 1st Defendant. The court restated that even in formal proof the plaintiff must prove her case on a balance of probabilities, citing section 107(1) of the Evidence Act and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi. The police abstract established the 1st Defendant's ownership of the offending motorcycle, and its entries enjoyed a rebuttable presumption of truth. Applying Oduor v Achieng, the court held that a passenger cannot be liable absent demonstrated negligence, and found the 1st Defendant 100% liable. On quantum, the court excluded healed scars not pleaded in the Plaint, guided by Raila Odinga v IEBC and Treadsetters Tyres on the binding nature of pleadings. Comparable-injury precedents supported an award of Kshs. 120,000/- in general damages. Special damages of Kshs. 13,750/- were pleaded and strictly proved by receipts, per Hahn v Singh. Judgment was entered for a net award of Kshs. 133,750/- with interest and costs to the Plaintiff.

Key legal issues

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01

Liability of 1st Defendant in formal proof

Holding

1st Defendant held 100% liable; plaintiff was a blameless pillion passenger and no evidence showed contribution

Reasoning

The plaintiff was a pillion passenger on motorcycle KMFC 118 A hit by motorcycle KMGD 643 S, which the police abstract showed belonged to the 1st Defendant. Ownership entries in a public document enjoy a rebuttable presumption of truth and were uncontroverted after the 2nd Defendant was withdrawn. As a passenger not in control of either motorcycle, the plaintiff could not be found contributorily negligent, warranting full liability.

p. 3
02

Exclusion of unpleaded injuries

Holding

Healed scars not pleaded in the Plaint were excluded from the quantum assessment

Reasoning

Relying on the Supreme Court's admonition that parties are bound by pleadings and Treadsetters Tyres, the court held that injuries must be particularized so the defendant can respond. Since the scars appeared only in the medical report and not in the Plaint, they could not be considered in assessing general damages.

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Assessment of general damages

Holding

Kshs. 120,000/- awarded for pleaded soft tissue injuries

Reasoning

Guided by the principle in Stanley Maore v Geoffrey Mwenda that comparable injuries attract comparable awards, the court considered precedents awarding Kshs. 100,000/- to 120,000/- for soft tissue injuries, and adopted Kshs. 120,000/- per the recent Adembesa decision as reasonable compensation for the pleaded injuries.

p. 5
04

Special damages

Holding

Kshs. 13,750/- awarded as pleaded and proved by receipts

Reasoning

Applying Hahn v Singh, special damages must be pleaded and strictly proved. The plaintiff pleaded Kshs. 7,750/- for treatment and Kshs. 6,000/- for the medical report and produced receipts (Pexh.5), satisfying the strict proof requirement, hence the award of the full pleaded amount.

p. 5

Legal principles established

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  • Even in formal proof proceedings, the plaintiff bears the burden of proving the case on a balance of probabilities
  • A passenger cannot be held liable for an accident unless their own negligence is demonstrated
  • Injuries not pleaded cannot be considered in awarding damages
  • Special damages must be specifically pleaded and strictly proved
  • Comparable injuries should be compensated by comparable awards

Court orders

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  1. 1.Liability – 100% in favour of the Plaintiff against the 1st Defendant
  2. 2.General damages of Kshs. 120,000/=
  3. 3.Special damages of Kshs. 13,750/=
  4. 4.General damages to accrue interest at court rate from date of judgment till payment in full
  5. 5.Special damages to accrue interest at court rate from date of filing suit till payment in full
  6. 6.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Evidence Act, Cap 80 Laws of KenyaSection 107(1)
  • Evidence ActSection 38

Cases cited (11)

  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Gichinga Kibutha –vs- Caroline Nduku
    (2018) eKLR
  • Oduor v Achieng
    (Civil Appeal E026 of 2023) [2023] KEHC 27162 (KLR)
  • Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another
    (2014) eKLR
  • Raila Amollo Odinga & Another- vs- IEBC & 2 others
    [2017] eKLR
  • Treadsetters Tyres Ltd – vs- John Wekesa Wepukhulu
    [2010] eKLR
  • Stanley Maore -vs- Geofirey Mwenda
    [2004] eKLR
  • FM (Minor suing through Mother and next friend MWM) v JNM & another
    [2020] eKLR
  • Gede Enterprises Ltd v Ondieki alias Samwel Mose
    (Civil Appeal 41 of 2023) [2024] KEHC 5764 (KLR)
  • Adembesa & another v Gweno
    (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR)
  • Hahn v. Singh
    Civil Appeal No. 42 Of 1983 [1985] KLR 716
Jurisdiction invoked
Original civil jurisdiction over tort claim arising from 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, "Wekesa v Siundu (Civil Case E234 of 2025) [2026] KEMC 769 (KLR)", Case Analysis (2025). Civil Case No E234 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/769/eng@2026-07-10

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