Wekesa v Mulama & another (Civil Case E039 of 2025) [2025] KEMC 385 (KLR)

5. The Defendant’s neither entered appearance not file their respective Statements of Defence despite being duly served hence this matter proceeded by way of formal proof. Plaintifi ’s Case 6. PW1 George Mukanda Wekesa adopted his witness statement dated 27th January 2025 as his evidence in chief. He produced the documents listed in his list of documents dated 27th January 2025 as exhibits, save for the OB. extract for OB. No. 58/19/12/24. ANALYSIS & DETERMINATION 7. This court has duly considered the Plaintifi’s pleadings, exhibits, evidence on record, written submissions, and the authorities relied upon. 8. Whereas this matter proceeded by way of formal proof, it behoves restating the law in this jurisdiction that even in such scenarios, the Plaintifi still bears the legal burden of proving their case on a balance of probabilities. The often-cited quote of ‘who alleges must prove’ is always applicable at all times. 9. This court has duly considered the Plaintifi’s pleadings, exhibits, evidence on record, written submissions, and the authorities relied upon. 10. Whereas this matter proceeded by way of formal proof, it behooves restating the law in this jurisdiction that even in such scenarios, the Plaintifi still bears the legal burden of proving their case on a balance of probabilities. The often-cited quote of ‘who alleges must prove’ is always applicable at all times. 11. This court draws inspiration from Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR where the Court of Appeal expressed itself as hereunder: “ It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an afidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 12. The legal position above was also restated in Gichinga Kibutha –vs- Caroline Nduku (2018) eKLR, where the Court held that:“ It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 13. Guided by the authorities above, this court proceeds to determine whether the Plaintifi proved his case on a balance of probabilities. 14. The Police Abstract (Pexh.3) shows that the accident herein was reported to the police. It also shows that the 2nd Defendant was the beneficial owner of motor vehicle registration number KAZ 357 T at the time of the accident. 15. The copy of records from NTSA (Pexh.8) shows that the 2nd Defendant was the registered owner of motor vehicle registration number KAZ 357 T at the time of the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/385/eng@2025-06-24 2

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16. Regarding the registration details of a motor vehicle entered in the register of motor vehicles, Section 8 of the Traffic Act, Cap 403, provide as follows:“ the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.” 17. There is also a rebuttable presumption of the truth of entries made by a public oficial in a public document (see section 38 of the Evidence Act). It thus follows that in the absence of evidence to controvert the contents of the police abstract and the copy of records herein, this court cannot disbelieve the entries in those public documents. 18. It is against this backdrop that the issues that commend to this court for determination are liability and quantum. Liability 19. The Plaintifi was a passenger on a motorcycle that was hit by motor vehicle registration number KAZ 357T at the time of the accident. 20. A passenger’s liability in an accident is well settled in this jurisdiction. In Oduor v Achieng (Civil Appeal E026 of 2023) [2023] KEHC 27162 (KLR) (20 December 2023) (Judgment), the court rendered itself on this issue as follows:“…A passenger cannot be held liable when a vehicle he/she is travelling in is involved in accident unless it is demonstrated on how negligent she was say, jumping out of the motor vehicle or hanging on the said motor vehicle while it is in motion. See Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR. Further to this, the respondent testified, and this was not controverted by the appellant even in crossexamination, that she had fastened her seatbelt and that the suit motor vehicle was being driven in a speeding manner so as to cause it to zig zag on the road. Accordingly, the respondent passenger cannot be held liable for occasioning or contributing to the occurrence of the accident. Having considered the evidence on record, the fact that the Plaintifi was not in control of the motor vehicle in question, and guided by the authorities above, this court finds no reason to disbelieve the Plaintifi’s version of events on how the accident herein occurred…”(Emphasis added) 21. There is no evidence on record to show that the Plaintifi contributed in any way whatsoever to the occurrence of the accident herein. 22. Given the above, this court holds and finds the Defendants jointly and severally 100% liable for the occurrence of the accident herein. Quantum (a) General damages for Pain and Sufiering 23. A reading of the Plaintifi’s Plaint, P3 form (Pexh.5), treatment notes (Pexh. 4 & 6) and the medical report by Dr. Ekesa (Pexh.2) shows that the Plaintifi sustained a painful swelling on the forehead and pain on the right limb stump. These were soft tissue injuries assessed as harm. 24. It is also noteworthy that the Plaintifi was treated as an outpatient. Dr. Ekesa stated that the Plaintifi was expected to make full recovery with time. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/385/eng@2025-06-24 3

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25. It is the law in this jurisdiction that comparable injuries attract comparable awards. This is the legal position obtaining in this jurisdiction as restated in Simon Taveta v Mercy Mutitu Njeru Civil Appeal 26 of 2013 [2014] eKLR, where the Court of Appeal observed as follows:“ The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.” 26. The injuries sustained by the Claimant herein are almost similar to the injuries sustained by the Plaintifi in Mugaru v Mutua & another (Civil Appeal E759 of 2022) [2024] KEHC 7662 (KLR) (Civ) (24 June 2024) (Judgment) who sufiered a wound, pain and tenderness on both the right and left legs, and was treated as an outpatient. The court made an award of Kshs. 80,000/= for general damages. 27. In Makami v Obong’o (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR) (18 January 2023) (Judgment) the Plaintifi sustained swellings and bruises on the forehead, neck and chest pains, and cut wound on the right elbow joint and right knee joint. The claimant was treated as an outpatient. An award of Kshs. 80,000.00 was given. 28. Guided by the authorities above, this court is of the considered view that an award of Kshs. 80,000/= will be reasonable compensation under this head. (b) Special Damages 29. Special Damages must be pleaded and strictly proved before they are awarded as restated in Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, where the Court of Appeal held as follows:“ Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 30. The Plaintifi pleaded for Special Damages of Kshs. 4,000/= for the medical report and Kshs. 550/= for the copy of records. The Plaintifi produced a receipt for the medical report (Pexh. 1) for Kshs. 4,000/ = and a receipt for the copy of records (Pexh.7) for Kshs. 550/=. 31. It is against this backdrop that this court holds and finds that the Plaintifi pleaded and proved Special Damages of Kshs. 4,550/=. (c) Future Medical Expenses 32. The Plaintifi prayed and pleaded for general damages for future medical expenses in their Plaint filed in this court. 33. In Tracom Limited & another v Hassan Mohamed Adan [2009] eKLR, the Court of Appeal pronounced itself on the claim for future medical expenses as follows: We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.(Emphasis added) 34. The Plaintifi’s medical report herein does not state if the Plaintifi needed future medical expenses. 35. The foregoing shows that the Plaintifi did not strictly prove the claim for future medical expenses; therefore, the claim for future medical expenses is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/385/eng@2025-06-24 4

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DISPOSITION 36. For the reasons above, judgment is hereby entered jointly and severally against the Defendants in the following terms:(a) Liability – 100% in favour of the Plaintifi (b) General damages - Kshs. 80,000/= (c) Special Damages - Kshs. 4,550/= Net Award - Kshs. 84,550/= 37. The General Damages will accrue interest at court rate from the date of this judgment till payment in full while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 38. The Plaintifi will have the costs of this suit. 39. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 24TH DAY OF JUNE 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: Ms. Wesonga for the Plaintifi C/A: Albert https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/385/eng@2025-06-24 5

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