Wafula v Yunnah International Construction Company Limited (Civil Case E181 of 2025) [2025] KEMC 418 (KLR)

The Plaintiff blamed the occurrence of the accident on negligence on the part of the Defendant and its driver, as enumerated in paragraph 5 of the Plaint. The Plaintiff also pleaded the doctrine of res ipsa loquitor, the provisions of the Highway Code, and the Traffic Act in support of his case. Arising from the accident, the plaintiff reportedly sustained the injuries set out in paragraph 7 of the Plaint and incurred Kshs. 13,750/= in treatment and suit-related expenses, hence this suit. The Defendant entered appearance and filed a Statement of Defence dated 22nd May 2025 denying the particulars of negligence attributed to them by the Plaintiff. They pleaded in the alternative that if the accident herein occurred, then the same was caused by negligence by the Plaintiff and the driver of motor vehicle registration number KAU 295 N. The Defendant also pleaded in paragraph 11 of their Statement of Defence that this suit was fraudulent. Therefore, the Defendant urged this court to dismiss this suit 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. Plaintiff’s Case Kitale SCC Claim. No. E036 of 2024 Page 2 of 13 Judgment

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PW1 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 17 th January 2025 showing that arising from the accident herein, the Plaintiff sustained a head injury with brief loss of consciousness, blunt injuries to the forehead, neck, left eye, chest, back, and right knee. He described the said injuries as soft tissue injuries from which the Plaintiff must have recovered. He added that he charged the Plaintiff Kshs. 6,000/= for preparing the Plaintiff’s medical report. He produced the Plaintiff’s medical report and the receipt for Kshs. 6,000/= as exhibits. In cross-examination, he stated that the Plaintiff told him that he suffered a brief loss of consciousness during the accident, but the Plaintiff’s CT scan report dated 29th December 2024 did not show as much. PW2 Elias Adoka; a Clinical Officer at Bungoma County Referral Hospital, testified that the Plaintiff visited their facility on 30th December 2024 when he was treated as an outpatient number 0056568/24. On medical examination, the Plaintiff presented a swelling on the left eye socket, a swelling on the forehead, headache, and other injuries set out in his treatment notes. He also stated that the Plaintiff had earlier on been treated at Bungoma West Hospital. he filled the Plaintiff’s P3 form and assessed the injuries sustained by the Plaintiff as harm based on the Plaintiff's alleged temporary loss of consciousness. Kitale SCC Claim. No. E036 of 2024 Page 3 of 13 Judgment

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In cross-examination, he conceded that he did not ascertain the temporary tloss of consciousness alleged by the Plaintiff. He also conceded that the alleged temporary loss of consciousness was not captured in the Plaintiff’s initial treatment notes from Bungoma West Hospital. He also conceded that there was no reason to classify the Plaintiff’s injuries as maim. PW3 No. 81576 PC Jackline Were of Bungoma Traffic Base produced the accident’s police abstract dated 30th December 2024 as an exhibit. She testified that the accident occurred on December 29, 2024, and it was reported at Bungoma Police Station vide OB. Number 76/29/12/2024. Her testimony on the circumstances of the accident was that it was recorded in the OB that the accident occurred when the shovel registration number KMHA 071 P was overtaking the matatu registration number KAU 295 N. The shovel reportedly failed to complete the overtaking due to an oncoming motor vehicle, causing the shovel to hit the matatu. In cross-examination, she admitted that she was not the accident’s investigations officer, and that she had neither produced the accident’s OB extract nor the sketch plan, as well as other supporting documents. PW4 Gideon Wafula adopted his witness statement dated 27th April 2025 as his evidence in chief, and produced the documents that had not been produced by the other witnesses as exhibits. Kitale SCC Claim. No. E036 of 2024 Page 4 of 13 Judgment

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His testimony was that the accident occurred at night when the matatu he boarded that day hit the Defendant’s shovel that had stopped in the middle of the road without any warning signs. He also testified that he lost consciousness after the accident and that he sustained injuries to the head, neck, chest, and back. He added that he had not fully healed from the said injuries since he attends therapy at St. Damiano Hospital. In cross-examination, he stated that he did not pay any money before issuance of the police abstract, and that he could not remember the amount he paid for filling of his P3 form. He admitted that there were no receipts to evidence payment for his P3 form and police abstract. Defendant’s Case The Defendant did not call any witnesses to prove their averments in their Statement of Defence on record. The consequence of a Defendant failing to call witnesses to substantiate the averments in their Statement of Defence was aptly captured in Edward Mariga suing through Stanley Mobisa Mariga Vs. Nathaniel David Shulter & Another [1979] eKLR, where the Court of Appeal stated as follows: “The respondents filed a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.” Similarly, C.B. Madan JA made the following remarks in CMC Aviation Ltd Vs. Crusair Ltd (No.1) (1987) KLR 103 regarding this issue: “The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not Kitale SCC Claim. No. E036 of 2024 Page 5 of 13 Judgment

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made on oath. Averments depend upon evidence for proof of their contents.” Guided by the authorities above, it follows that the averments in the Defendant’s Statement of Defence, having not been substantiated by any witness, remain mere allegations which this court will not consider in determining this case. ANALYSIS AND DETERMINATION This court has duly considered the Plaintiff’s pleadings, the evidence on record, as well as the written submissions filed by the parties herein. 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 his case on a balance of probabilities. The occurrence of the accident, the ownership of the shovel which the Plaintiff blamed for the accident, the fact that the Plaintiff was injured as a result of the accident, and the fact that the Plaintiff was a passenger in motor vehicle registration number KAU 295 N at the time of the accident are not disputed. Kitale SCC Claim. No. E036 of 2024 Page 6 of 13 Judgment

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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 that commend to this court for determination are liability and quantum. Liability This court has already made a finding the Plaintiff was a passenger in motor vehicle registration number KAU 295 N at the time of the accident. Therefore, the Plaintiff was neither in control of the motor vehicle he had boarded nor the Defendant’s shovel. There is no contest that the motor vehicle that the Defendant had boarded on the date of the incident and the Defendant’s shovel owed the Plaintiff a duty of care to ensure that he arrived safely at his destination. The occurrence of the accident herein shows that the said motor vehicle and the said shovel breached the duty of care which they owed to the Plaintiff. It is trite law that unless the particulars of negligence attributed to a passenger are proved on a balance of probabilities, a passenger cannot be held liable when a vehicle he/she is travelling in is involved in an accident, as was restated in West Kenya Sugar Co. Limited v Joyce Mayabi Jatushi [2020] eKLR and Mbagaya v Stephen (Civil Appeal E182 of 2022) [2024] KEHC 7556 (KLR). The Defendant in this case did not prove the particulars of negligence that they attributed to the Plaintiff on a balance of probabilities. It is against this backdrop that this court finds and holds the Defendant 100% liable for the accident. Quantum of Damages Kitale SCC Claim. No. E036 of 2024 Page 7 of 13 Judgment

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(a) General Damages for pain and suffering The medical evidence on record shows 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. PW3 assessed those injuries as maim. However, the Defendant took issue with the alleged loss of consciousness by the Plaintiff and PW3’s assessment of the injuries sustained by the Plaintiff as maim. PW2 and PW3, who are medical practitioners, admitted that they could not establish if the Plaintiff had a temporary loss of consciousness after the accident. PW3 added that the Plaintiff’s temporary loss of consciousness was not captured in the Plaintiff’s initial treatment notes from Bungoma West Hospital. PW3 also admitted that there was no basis to classify the injuries sustained by the Plaintiff as maim. It is not lost to this court that the Plaintiff’s oral testimony can be used to prove the injuries sustained by the Plaintiff. This position can be gleaned from numerous authorities (see Otieno v Mwea County Medical Centre Ltd & 2 others (Civil Appeal 49 of 2021) [2023] KEHC 22474 (KLR), and the learned treatise The Casebook on Measure of Damages for Bodily Injuries by Richard Kuloba at Page 3- 5 where it is recorded that:Kitale SCC Claim. No. E036 of 2024 Page 8 of 13 Judgment

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The primary source of information about the injuries sustained by a person is the victim himself. He should tell the tale... The information from the victim is valuable, and may be complementary to a doctor's reports. It should be obvious that while medical reports from treating doctors and hospitals are no doubt of tremendous value, still they may have accidental omissions of some injuries, or they may contain incorrect labelling of the side of the body harmed, or there may be typographical mistakes. Accordingly, patients' own statements should not be easily dismissed merely on the ground that those statements happen not to match up to the injuries mentioned in a hospital or doctors' report. This court is of the considered view that the authorities above do not in any way whatsoever establish a fast rule to the effect that the Plaintiff’s oral testimony on the injuries sustained should trump the medical evidence available. Those authorities only encourage courts to be slow in dismissing the Plaintiff’s oral testimony on the injuries sustained by a Plaintiff from an accident. Therefore, in appropriate circumstances, a court can disregard the Plaintiff’s oral testimony on the injuries such a Plaintiff sustained in an accident if such testimony is at variance with medical evidence on record. Turning to the circumstances of this case, it is noteworthy that the Plaintiff’s loss of consciousness was not captured in the Plaintiff’s medical history set out in the Plaintiff’s initial treatment notes from Bungoma West Hospital, Kitale SCC Claim. No. E036 of 2024 Page 9 of 13 Judgment

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treatment notes from Bungoma County Referral Hospital, and the P3 form herein. The omission, if it is at all an omission, to record the Plaintiff’s temporary loss of consciousness in the said medical notes cannot be an accidental slip. It simply means that the alleged Plaintiff’s temporary loss of consciousness cannot be substantiated. Given the foregoing and guided by PW2 and PW3’s testimony, this is a proper case to disregard the Plaintiff’s testimony on his alleged temporary loss of consciousness, and the assessment of the injuries sustained by the Plaintiff as harm. The consequence of the finding above is that arising from the accident herein, the Plaintiff herein simply sustained multiple soft tissue injuries assessed as harm from which he must have healed by now. 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 Plaintiff were severe than the injuries sustained by the Plaintiff herein. The Defendants, on the other hand, relied on authorities rendered between 2021 and 2024 without considering the passage of time Kitale SCC Claim. No. E036 of 2024 Page 10 of 13 Judgment

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from the date the decisions in those authorities were rendered and inflation trends in this country. Therefore, the authorities relied upon by the parties herein, as well as their proposed awards under this head, do not apply to this case The Plaintiff in this case suffered moderate soft tissue injuries assessed as harm; 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. 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 SMK v DC (Suing Through Mother and Next Friend) NCK -Minor) & another (Civil Appeal E011 of 2023) [2025] KEHC 1867 (KLR), the court upheld an award of Kshs. 150,000/= for a blunt injury to the neck, a blunt injury to the back, and a blunt injury to the lower limbs. 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, nthis court makes an award of Kshs. 150,000/= under this head. (b) Special Damages The Plaintiff pleaded in paragraph 6 of his Plaint that this court ought to award him Special Damages of Kshs. 13,750/= comprising Kshs. 5,000/= for treatment costs, Kshs. 6,000/= for the medical report, Kshs. 2,000/= for filling the P3 form, Kshs. 200/= for the Police Abstract, and Kshs. 550/= for the copy of records. Kitale SCC Claim. No. E036 of 2024 Page 11 of 13 Judgment

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Where a Plaintiff pleads Special Damages, the Plaintiff is obligated to strictly prove the same before an award is made in their favour. The Plaintiff conceded that there were no receipts to prove the claim for Kshs. 2,000/= for filling the P3 form and Kshs. 200/= for the Police Abstract. The receipts for specials produced before this court by the Plaintiff proved Special Damages Kshs. 6,000/= for the medical report and Kshs. 550/= for the copy of records. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 6,550/= DETERMINATION The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: a) Liability………………………………………100% b) General Damages…………………...………Kshs. 150,000/= c) Special Damages……………………...…….Kshs. 6,550/= Total Award…………………………………Kshs. 156,550/= The General Damages 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. Kitale SCC Claim. No. E036 of 2024 Page 12 of 13 Judgment

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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. Oriko for the Plaintiff Ms. Kinyanjui for the Defendant C/A: Mr. Rioba Kitale SCC Claim. No. E036 of 2024 Page 13 of 13 Judgment

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