Wafula v Watu Driving School Ltd (Civil Case E247 of 2024) [2025] KEMC 457 (KLR)

The Plaintiff blamed the occurrence of the accident on the rider of motorcycle registration number KMGB 955 C as set out in paragraph 5 of the Plaint. The Defendant entered appearance and filed a Statement of Defence denying all the particulars of negligence that the Plaintiff attributed to them. The Defendant averred that if the accident herein occurred then the same was caused by the Plaintiff’s negligence. This matter was heard through viva voce evidence. The summary of evidence placed before this court is set out hereunder. Plaintiff’s Case PW1 Joseph Sabwami Wafula adopted his witness statement herein as his evidence in chief. He produced all the documents listed in the Plaintiff’s list of documents dated 04th June 2024 save for the police abstract and his medical report. PW2 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 02nd April 2024. He added that he charged Kshs. 6,000/= for the medical report. PW3 No. 81576 PC Jackline Ochieng of Bungoma Police Station produced the accident’s police abstract. On cross-examination, she admitted that she could not tell the circumstances under which the accident herein occurred. Defendant’s Case Kitale SCC Claim. No. E036 of 2024 Page 2 of 10 Judgment

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DW1 Kevin Nyamore Gekone adopted his witness statement dated 25 th March 2025 as his evidence in chief. He produced the documents listed in the Defendant’s list of documents herein save for the accident’s investigations report and the plaintiff’s second medical report prepared by Dr. Adegu. DW2 Denise Mutunga an investigations officer from Myroad Insurance Investigators conducted investigations into the circumstances under which the accident herein occurred. He blamed the Plaintiff for the occurrence of the accident since he joined the feeder road before ensuring that the road was clear, and that he was not a qualified driver. On cross-examination, he conceded that he did not record statements from independent witnesses during the compilation of his investigations report. He also admitted that he did not capture in his report whether the Plaintiff led him to the scene of the accident during his investigations. He produced his investigation report as an exhibit. On 08th July 2025, the parties herein recorded a consent for the production of Dr. Adegu’s medical report dated 04th March 2025 as an exhibit. ISSUES FOR DETERMINATION This court has duly considered the evidence on record, the parties’ submissions and the authorities cited. Kitale SCC Claim. No. E036 of 2024 Page 3 of 10 Judgment

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There is no contest about the occurrence of the accident herein. There is also no contest on the ownership of the motorcycles that were involved in the accident herein. Given the foregoing, the only issues for determination are liability and quantum. Liability The Plaintiff and DW1 blamed each other for the occurrence of the accident herein. Neither the Plaintiff and DW1 called independent witnesses or filed relevant documents like sketch maps to corroborate their respective versions of the circumstances under which the accident occurred. The accident investigation report produced by DW2 in support of the Defendant’s case was of no evidential value since DW2 conceded in crossexamination that the said report was compiled without documenting input from the Plaintiff and independent witnesses. Whereas the Plaintiff did not place before this court his driving licence, the law in this jurisdiction is that the mere fact that a person does not have a driving license is not conclusive proof of that person’s negligence. The foregoing shows that this is a clear case of the Plaintiff’s word against the Defendant’s word on the circumstances under which the accident herein occurred. The evidence on record is barely adequate for this court to apportion liability in this matter. Kitale SCC Claim. No. E036 of 2024 Page 4 of 10 Judgment

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In Farah vs. Lento Agencies [2006] 1 KLR 123, the court expressed itself as follows regarding the circumstances akin to those obtaining in this case: “In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. Everyday, proof of collision is held to be sufficient to call 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 unhesistantly hold that both are to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them… The trial court...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.”(Emphasis added) The Farah case (supra) was cited with approval in Moiz Motor Limited & another v Muthoka & 2 others (Civil Appeal E079 of 2022) [2023] Kitale SCC Claim. No. E036 of 2024 Page 5 of 10 Judgment

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KEHC 26428 (KLR) to reiterate the position that where the evidence on record in inadequate for the court to apportion liability, the drivers should be held equally to blame for the occurrence of the accident. In Kennedy Macharia Njeru v Packson Githongo Njau & another [2019] KEHC 5377 (KLR) Gitari J expressed herself as follows:It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Kitale SCC Claim. No. E036 of 2024 Page 6 of 10 Judgment

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Guided by the authorities above, and for the reasons above, this court apportions liability in the ratio of 50%:50%. Quantum of Damages (a) General Damages for pain and suffering The Plaintiff’s medical report dated 02nd April 2024 produced by Dr. Sokobe and Dr. Adegu’s medical report dated 04 th March 2025 produced by the Defendant were all in agreement that arising from the accident herein, the Plaintiff sustained a blunt injury to the head, fracture of the left tibia/fibula, and a blunt injury to the chest without any permanent incapacity. This court has duly considered the submissions and the authorities relied upon by the Plaintiff herein on quantum. Those authorities refer to Plaintiffs who suffered serious injuries than the ones suffered by the Plaintiff herein. The injuries sustained by the Plaintiff herein are almost similar to the injuries in Vincent Mbogholi vs. Harrison Tunje Chilyalya [2017] eKLR, where an award of Kshs. 500, 000/= was made in respect to injuries involving a fracture of the left tibia leg bone (medial malleolus), blunt injury to the chest and left lower limb, bruises on the left forearm, right foot and right big toe, was upheld on appeal. In Kiraithi & another v George (Civil Appeal E141 of 2023) [2025] KEHC 10227 (KLR) the High Court upheld an award of Kshs. 500,000/= in a Kitale SCC Claim. No. E036 of 2024 Page 7 of 10 Judgment

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case where a Plaintiff sustained a fracture on the right tibia, bruises on the knee, loss of the nail on the left big toe, soft tissue injuries/bruises on the face, arm and knee. Guided by the authorities above, this court makes an award of Kshs. 500,000/= under this head. (b) Future Medical Expenses The Plaintiff pleaded for future medical expenses in his Plaint. Dr. Sokobe and Dr. Adegu stated in their medical reports that the Plaintiff needed future medical expenses for the removal of metal implants from the Plaintiff’s legs. However, the two doctors could not agree on the cost of the removal of metal implants from the Plaintiff’s leg. In the face of the contradictory evidence on record on the cost of future medical expenses, this court placed reliance on the Kenya Medical Practitioners and Dentists (Professional Fees) Rules 2016, which provide for a minimum of Kshs. 24,000/= and a maximum of Kshs. 60,000/= for the removal of implants from long and short bones. That being the case, this court makes an award of Kshs. 60,000/= for future medical expenses. (c) Special Damages The Plaintiff pleaded for Special Damages of Kshs. 60,700/= as particularized in paragraph 7 of his Plaint. Kitale SCC Claim. No. E036 of 2024 Page 8 of 10 Judgment

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The Plaintiff produced a receipts to prove the Special Damages pleaded. Consequently, this court finds that the Plaintiff pleaded and proved Special Damages of Kshs. 60,700/=. DISPOSITION Given the foregoing, judgment is entered against the Defendant in the following terms: a) Liability………..50%:50% b) General Damages…………………...………Kshs. 500,000/= c) Special Damages……………………...…….Kshs. 60,700/= d) Future Medical Expenses…………………..Kshs. 60,000/= Grand Award…………………………..Kshs. 620,700/= Less 50% Net Award……………………………Kshs. 310,350/= 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. Judgment accordingly. Kitale SCC Claim. No. E036 of 2024 Page 9 of 10 Judgment

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Read, signed, and delivered in open Court at Bungoma this 02nd September 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Oduol for the Defendant C/A: Mr. Rioba Kitale SCC Claim. No. E036 of 2024 Page 10 of 10 Judgment

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