Wafula v Musani (Civil Case E313 of 2024) [2025] KEMC 455 (KLR)

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. Arising from the accident, the Plaintiff reportedly sustained the injuries set out in the Plaint and incurred Kshs. 5,950/= in Special Damages, hence this suit. The Defendants entered appearance and filed a Statement of Defence dated 24th March 2025 denying ownership and possession of the motor vehicle at the time of the accident. He also denied the occurrence of the accident and the particulars of negligence attributed to him by the Plaintiff. The Defendants pleaded in the alternative that if the accident herein occurred, then the same was substantially caused by the Plaintiff’s negligence as set out in paragraph 6 of the Plaint. Therefore, the Defendant urged this court to 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. Plaintiff’s Case Kitale SCC Claim. No. E036 of 2024 Page 2 of 13 Judgment

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PW1 Moses Juma Wafula adopted his witness statement dated 09 th July 2024 as his evidence in chief. He also produced receipts for Kshs. 1,120/=, receipt for Kshs. 550/=, the demand letter dated 06 th July 2024, and the Certificates of Postage herein as exhibits. His testimony was that the motor vehicle hit his motorcycle from behind. He denied hitting the motor vehicle. In cross-examination, he admitted that he did not have a driving licence, and that the road where the accident occurred was narrow. He added that he was headed in the same direction as the motor vehicle at the time of the accident. He reiterated that he was not overtaking at the time of the accident, only for the motor vehicle to knock his motorcycle down in the middle of the road. He added during re-examination that the road was too narrow to overtake. He also added that his lack of a driving licence did not cause the accident since the Defendant knocked him down abruptly while driving at a high speed. PW2 Christine Nasimiyu Kasawa testified that she witnessed this accident. She testified that the motorcycle was ahead of the motor vehicle, and that the motorbike was not overtaking at the time of the accident. In cross-examination, she stated that the road was not wide enough for two motor vehicles to pass at the same time. She added that the point of impact Kitale SCC Claim. No. E036 of 2024 Page 3 of 13 Judgment

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was beside the road. She further testified that the accident caused damage to the motor vehicle’s stable axle and right tyre. PW3 No. 76835 PC Isaac Kimani Njuguna produced the accident’s police abstract dated 14th August 2023 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. PW4 Dr. Mulianga Ekesa produced the Plaintiff’s medical report dated 14 th August 2023 showing that, arising from the accident herein, the Plaintiff sustained soft tissue injuries (cut wound over the left knee joint, a painful swollen left foot, and a cut wound scar over the left knee joint measuring 3 x 0.1 cm) and psychological trauma. He added that he charged the Plaintiff Kshs. 4,000/= for preparing the Plaintiff’s medical report. He produced the medical report dated 14 th August 2023 and the receipt for Kshs. 4,000/= as exhibits. In cross-examination, he stated that the Plaintiff must have improved from the injuries he sustained as of now. PW5 Dr. Ombongi Haron of Bungoma County Referral Hospital produced the Plaintiff’s treatment notes and P3 form dated 18 th July 2023 as exhibits on behalf of his colleague, Mr. Adoka. He also, with the Defendant’s counsel’s consent, produced the Plaintiff’s treatment notes from Webuye Sub-County Hospital as exhibits. Kitale SCC Claim. No. E036 of 2024 Page 4 of 13 Judgment

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Defendant’s Case DW1 Isaac Kwemoi Musani testified that this accident occurred when his motor vehicle and the Plaintiff’s motorcycle were headed in the same direction, only for the motorcycle to try to overtake his motor vehicle along the narrow road. This caused the motorcycle to hit the motor vehicle on the right wing of the side mirror, causing the motorcycle to veer off the road into the side bush, thereby causing the accident. He produced his driving licence as an exhibit. In cross-examination, he reiterated that the Plaintiff was to blame for the accident, given that he was attempting to overtake along a narrow path. He also stated that he saw the Plaintiff through his side mirror before the accident, and that the accident occurred when the Plaintiff was almost completing to overtake the motor vehicle. DW2 John Macheso Mafunga testified that he saw the motor vehicle being driven at a low speed along the narrow road, followed closely by the motorcycle. He then saw the motorcycle ram the motor vehicle’s side mirror, thus causing the motorcycle to veer off the road thereby causing the accident. In cross-examination, he stated that he was 20 metres away from the scene of the accident when the accident occurred. He reiterated that the motorcycle did not complete the overtaking. He blamed the motorcycle for Kitale SCC Claim. No. E036 of 2024 Page 5 of 13 Judgment

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the accident since the motorcycle was speeding and it could not complete the overtaking on that narrow road. ANALYSIS AND DETERMINATION This court has duly considered the pleadings, the evidence on record, as well as the written submissions filed by the parties. 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 The Plaintiff blamed the Defendant for the accident on the grounds that the Defendant hit his motorcycle from behind while in the middle of the road. Kitale SCC Claim. No. E036 of 2024 Page 6 of 13 Judgment

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PW2 on the other hand, who sought to corroborate the Plaintiff’s testimony on the circumstances of the accident, contradicted the Plaintiff’s testimony by testifying that the point of impact was beside the road. PW3 testified that he could not tell the circumstances under which the accident occurred and who was to blame for the accident. On the Defendant’s part, he blamed the Plaintiff for the accident because the Plaintiff attempted to overtake his motor vehicle on a narrow road, yet one couldn't overtake on such a narrow road. The Defendant’s testimony was corroborated by DW2’s testimony. The Defendant blamed the Plaintiff for hitting his motor vehicle on the right-hand side. 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. The accident’s sketch map could have clearly shown the point of impact, and whether the road in question was too narrow to overtake. The motor vehicle inspection reports could have settled the question of whether the Plaintiff’s motorcycle was hit from behind, and whether the motor vehicle was hit on the right-hand side. 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 caused by an act of God. There is no indication that the accident herein was Kitale SCC Claim. No. E036 of 2024 Page 7 of 13 Judgment

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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 115 at 117 and Simon V Carlo [1970] EA 285. It cannot be doubted Kitale SCC Claim. No. E036 of 2024 Page 8 of 13 Judgment

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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 Defendant 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 9 of 13 Judgment

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The medical evidence on record and the Plaintiff’s oral evidence on the injuries the Plaintiff sustained as a result of the accident were not impeached or controverted by the Defendant. In the circumstances, this court finds and holds that, arising from this accident, the Plaintiff sustained soft tissue injuries (cut wound over the left knee joint, a painful swollen left foot, and a cut wound scar over the left knee joint measuring 3 x 0.1 cm) and psychological trauma. The law on assessment of damages is that comparable injuries attract comparable awards. The Plaintiff urged this court to make an award of Kshs. 250,000/= under this head, while the Defendants submitted that an award of Kshs. 60,000/= was reasonable for pain and suffering. This court has duly considered the authorities cited by the parties in support of their proposed awards. 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, and considering the fact that the injuries herein left the Plaintiff with a scar, and the fact that the accident caused Kitale SCC Claim. No. E036 of 2024 Page 10 of 13 Judgment

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psychological trauma to the Plaintiff, this court makes an award of Kshs. 200,000/= under this head. (a) Special Damages The Plaintiff pleaded in paragraph 4 of his Plaint that this court ought to award him Special Damages of Kshs. 5,950/= comprising Kshs. 11,120/= for treatment expenses, Kshs. 4,000/= for the medical report, Kshs. 550/= for the copy of records, and Kshs. 280/= for postage certificates. Where a Plaintiff pleads Special Damages, the Plaintiff is obligated to strictly prove the same before an award is made in their favour. The receipts for specials produced before this court by the Plaintiff proved the claimed Special Damages of Kshs. 5,950/=. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 5,950/= DETERMINATION The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: a) Liability………………………………………50% b) General Damages…………………...………Kshs. 200,000/= c) Special Damages……………………...…….Kshs. 5,950/= Kitale SCC Claim. No. E036 of 2024 Page 11 of 13 Judgment

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Total Award…………………………………Kshs. 205,950/= Less 50% Net Award…………………………………Kshs. 102,975/= 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: 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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