Wamalwa v Barasa & another (Civil Case E053 of 2025) [2025] KEMC 382 (KLR)

number KCM 282 H thereby causing the Plaintiff to sustain bodily injuries hence this suit. The Plaintiff further pleaded that the accident was wholly caused by the Defendants’ negligence as pleaded in paragraph 5 of the Plaint. In addition to the above, the Plaintiff pleaded that he was relying on the doctrine of res ipsa loquitor, the Highway Code, and the provisions of the Traffic Act in support of his case. The Defendants entered appearance and filed a Statement of Defence dated 21st February 2025 denying ownership and possession of motor vehicle registration number KCM 282 H at the time of the accident. They also denied the occurrence of the accident and the particulars of negligence attributed to them by the Plaintiff. The Defendants pleaded in the alternative that if the accident herein occurred, then the same was solely or substantially caused by the Plaintiff’s negligence as set out in paragraph 6 of the Plaint. Therefore, the Defendants urged this court to strike out or dismiss the Plaintiff’s case with costs. The divergent positions taken by the parties herein on the circumstances under which the accident herein occurred prompted this court to set down this case for hearing and determination. EVIDENCE The evidence adduced before this court is summarized below. Kitale SCC Claim. No. E036 of 2024 Page 2 of 13 Judgment

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Plaintiff’s Case PW1 Dr. Mulianga Ekesa produced the Plaintiff’s medical report dated 06 th December 2024 showing that arising from the accident herein, the Plaintiff sustained soft tissue injuries and trauma. He added that he charged the Plaintiff Kshs. 4,000/= for preparing the Plaintiff’s medical report. He also stated that the Plaintiff needed Kshs. 3,000/= for anti-inflammatory drugs and Kshs. 50,000/= for psychosocial support. He produced the medical report dated 06th December 2024 and the receipt for Kshs. 4,000/= as exhibits. In cross-examination, he reiterated that the Plaintiff sustained soft tissue injuries without any form of incapacity. He added that the accident caused emotional damage to the Plaintiff. PW2 No. 76835 PC Isaac Kimani Njuguna produced the accident’s police abstract dated 09th December 2024 as an exhibit. He could not tell the circumstances under which the accident occurred or who was to blame for the occurrence of the accident. PW3 Dr. Omwoge Aaron of Bungoma County Referral Hospital produced the Plaintiff’s outpatient card dated 05 th December 2024, P3 form dated 09 th December 2024, and the medical expenses receipt for Kshs. 150/= as exhibits. Kitale SCC Claim. No. E036 of 2024 Page 3 of 13 Judgment

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In cross-examination, he testified that the Plaintiff sustained soft tissue injuries from which he must have healed by now. PW4 Walter Wanjala Wamalwa adopted his witness statement dated 02nd February 2025 as his evidence in chief. He also produced the receipt for Kshs. 550/= for copy of records, copy of records for motor vehicle registration number KCM 282 H, and the rest of the documents not produced by the other witnesses as exhibits. His evidence was that on the date of the accident while headed to Webuye general direction from Bungoma along Bungoma – Webuye road around Mabanga area, he saw the 1st Defendant’s motor vehicle coming from the opposite direction. That motor vehicle reportedly suddenly turned to join a feeder road without indicating and stopping to give way for other road users, thereby knocking him. In cross-examination, he added that he was wearing a jacket and a helmet at the time of the accident, and that he lost his driving licence during the accident. He also testified that his motorcycle was hit on the left side at the time of the accident while he was driving at 40-50 km/hr. Defendant’s Case DW1 Nathan Barasa Wakabubi adopted his witness statement herein as his evidence in chief. His testimony was that the Plaintiff’s motorcycle hit his Kitale SCC Claim. No. E036 of 2024 Page 4 of 13 Judgment

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motor vehicle’s back bumper while he was headed to the Bungoma general direction from the Webuye general direction. In cross-examination, he did not see the rider (Plaintiff) before he diverted. He slowed down before diverting….and that the accident occurred at around 1700hrs…ANALYSIS AND DETERMINATION This court has duly considered the pleadings, PW1’s testimony, as well as the evidence on record. It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: ‘’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’ The law in this jurisdiction is also that the Plaintiff bears the burden of proving their case on a balance of probabilities. Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved their case on a balance of probabilities. The occurrence of the accident, the ownership of the motorcycle and the motor vehicle involved in the accident herein, and the fact that the Plaintiff was injured as a result of the accident herein are not disputed. The only point of departure between the parties herein is who is to blame for the occurrence of the accident and the damages due to the Plaintiff. In the circumstances, the issues for determination are liability and quantum. Liability Kitale SCC Claim. No. E036 of 2024 Page 5 of 13 Judgment

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The Plaintiff blamed the 2nd Defendant for the accident on the ground that the 1st Defendant suddenly diverted from the main road to join a feeder road without slowing down, or indicating to warn and given way to the other road users including the Plaintiff. This reportedly caused the 1 st Defendant to hit the Plaintiff’s oncoming motorcycle on the left side leading to the occurrence of the accident. The 1st Defendant, on the other hand, testified that he did not hit the Plaintiff’s motorcycle. His testimony was that before diverting from the main road to join a feeder road, he slowed down and indicated, then diverted only to hear a bang at the back of his motor vehicle. He added that the Plaintiff hit his motor vehicle’s back bumper. It is noteworthy that the police officer who produced this accident’s police abstract stated that he could not tell the circumstances under which this accident occurred, and that he could not tell who was to blame for the occurrence of the accident. Neither the Plaintiff nor the 1st Defendant called witnesses to corroborate their version of events on how the accident herein occurred. The foregoing shows that the evidence on record on the circumstances under which the accident herein occurred was actually the Plaintiff’s word against the Defendant’s word. This court is of the considered view that, given the circumstances of this case, this was a proper case for the calling of the accident’s investigating officer, the production of the accident’s sketch map, and the production of the motor vehicle and/or motorcycle inspection reports for this court to fully appreciate the circumstances of this case and the point of impact. In the absence of the evidence alluded to above, the evidence on record is barely adequate to apportion liability in this matter. However, accidents do not just occur; they are caused, save for inevitable accidents or accidents Kitale SCC Claim. No. E036 of 2024 Page 6 of 13 Judgment

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caused by an act of God. There is no indication that the accident herein was inevitable or that it was caused by an act of God. Therefore, there must be a person or people responsible for the occurrence of this accident. Courts in this jurisdiction, when confronted with a situation like the one obtaining in this case, where the evidence is barely adequate to apportion liability between two drivers, expressed themselves as hereunder. The Court of Appeal in Lakhamshi v the Attorney General (1971) held that where it cannot be precisely determined who between two drivers was to blame for the accident, the liability is shared equally. In Barclay – Steward Limited & Another Vs. Waiyaki [1982-88] 1 KAR 1118, the Court stated:“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”The Court said further:-“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”In Baker V Market Harborough Industrial Co-operative Society LTD [1953] 1 WLR 1472 at 1476, Denning L.J. (as he then was) observed inter alia as follows:“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…….. “See also Welch V Standard Bank LTD [1970] EA Kitale SCC Claim. No. E036 of 2024 Page 7 of 13 Judgment

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115 at 117 and Simon V Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame……..” In Hussein Omar Farah v Lento Agencies [2006] eKLR, the court held that: “The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.” Finally, in Mwangi & another v Oginga (Civil Appeal 88 of 2023) [2025] KEHC 7976 (KLR), Mwamuye J expressed himself as follows:“On the balance of probabilities and guided by the principle of fairness, I find that the trial court erred in failing to apportion liability at all. The safer conclusion, consistent with the facts and the rule that doubtful or unproven causation should lead to shared liability, is to hold both parties equally responsible.” The common thread running through the authorities above is that where there is no conclusive proof of who caused or contributed more to the occurrence of an accident between two drivers, like in this case, the liability is shared equally between the two drivers. Given the reasons above, this court finds and holds the Plaintiff and the Defendants equally to blame for the occurrence of the accident Quantum of Damages (a) General Damages for pain and suffering Kitale SCC Claim. No. E036 of 2024 Page 8 of 13 Judgment

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The medical evidence on record proved that the accident herein caused the Plaintiff to sustain the soft tissue injuries pleaded in his Plaint. The said evidence also shows that the Plaintiff was projected to fully recover from those injuries with no temporary or permanent incapacity. Those injuries were also assessed as harm. The law on assessment of damages is that comparable injuries attract comparable awards. The Plaintiff urged this court to make an award of Kshs. 500,000/= under this head while the Defendants submitted that an award of Kshs. 100,000/= was reasonable for pain and suffering. This court notes that the injuries sustained by the Plaintiff in the authority relied upon by the Defendant were severe than the injuries sustained by the Plaintiff herein. The Defendants on the other hand relied on authorities relied on authorities rendered between 2018 and 2022 without considering the passage of time and inflation trends in this country. Therefore, the authorities relied upon by the parties herein, as well as, their proposed awards under this head are not applicable to this case The Plaintiff in this case suffered moderate soft tissue injuries; he is projected to have fully recovered from the injuries as of today. It is also worth noting that the Plaintiff herein was treated as an outpatient. Kitale SCC Claim. No. E036 of 2024 Page 9 of 13 Judgment

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It is also noteworthy that the injuries sustained by the Plaintiff in the Carolyn Indasi case (supra) were more severe injuries than those sustained by the Plaintiff in this case. Therefore, the authority relied upon by the Plaintiff for an award of Kshs. 500,000/= is not applicable in this case. The injuries sustained by the Plaintiff in this case are almost similar to the injuries sustained by Plaintiffs in the cases set out below. In Ndung’u Dennis v Ann Wangari Ndirangu & Anor [2018] eKLR, the Respondent sustained soft tissue injuries to the lower right leg and to the back. An award of kshs 300,000/= general damages was reviewed downwards to kshs 100,000/=. In Justine Nyamweya Ochoki & Anor v Jumaa Karisa Kipingwa [2020] eKLR where the plaintiff suffered blunt injuries to the chest, left wrist and lower lip. An award of Kshs 300,000/= was reduced to Kshs 150,000/= on appeal. In Mangenge v Masai & another (Civil Appeal E020 of 2022) [2025] KEHC 9669 (KLR), the court made an award of Kshs. 150,000/= for moderate soft tissue injuries. Guided by the authorities above, and more particularly the Managenge case (supra) which is a recent precedent, this court makes an award of Kshs. 150,000/= under this head. (b) Future Medical Expenses The Plaintiff pleaded for future medical expenses in paragraph 6 of their Plaint. The Plaintiff testified that he still uses painkillers to ease the injuries he sustained in the accident. Dr. Ekesa’s medical report dated 06 th December 2024 shows that the Plaintiff needs anti-inflammatory drugs and psychosocial support as part of future treatment for the injuries sustained in the accident. Kitale SCC Claim. No. E036 of 2024 Page 10 of 13 Judgment

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During his testimony before this court, Dr. Ekesa was of the opinion that Kshs. 3,000/= was sufficient for the anti-inflammatory drugs while Kshs. 50,000/= was sufficient for the Plaintiff’s psychosocial support. There is no evidence adduced by the Defendants to impeach Dr. Ekesa’s medical evidence on the Plaintiff’s need for future medical expenses. The foregoing leaves no doubt in the mind of this court that the Plaintiff pleaded and proved on a balance of probabilities that he needs Kshs. 53,000/= for future medical expenses. The same is hereby awarded. (c) Special Damages The Plaintiff pleaded in paragraph 6 of his Plaint that this court ought to award him Special Damages of Kshs. 4,700/= comprising Kshs. 4,000/= for the medical report, Kshs. 550/= for the copy of records, and Kshs. 150/= for treatment expenses. The receipts for specials produced before this court by the Plaintiff proved Special Damages of Kshs. 4,700/=. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 4,700/= DETERMINATION The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: - Kitale SCC Claim. No. E036 of 2024 Page 11 of 13 Judgment

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a) Liability………………………………………50% b) General Damages…………………...………Kshs. 150,000/= c) Future medical expenses……………………Kshs. 53,000/= d) Special Damages……………………...…….Kshs. 4,700/= Total Award…………………………………Kshs. 157,700/= Less 50% Net Award…………………………………Kshs. 78,850/= The General Damages and future medical expenses will accrue interest at court rate from the date of this judgment till payment in full while the Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. The Plaintiff will have the costs of this suit. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 27th day of November 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for Plaintiff Ms. Kiptoo h/b Ms. Ruto for the Defendants C/A: Mr. Rioba Kitale SCC Claim. No. E036 of 2024 Page 12 of 13 Judgment

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Kitale SCC Claim. No. E036 of 2024 Page 13 of 13 Judgment

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