Bakari v Tsuma & another (Civil Case E1583 of 2025) [2026] KEMC 175 (KLR)

Issues For Determination 5. Having considered the pleadings, evidence and submissions, the following issues arise for determination: i. Whether the Plaintifi proved occurrence of the accident. ii. Whether the Defendants were liable for the accident. iii. Whether the Plaintifi sustained the pleaded injuries. iv. Whether the Plaintifi is entitled to damages and if so, the quantum thereof. v. Who should bear costs. Whether the accident occurred 6. The Plaintifi testified that on 20th August 2025 at about 8.30 p.m. he was returning home from work and was disembarking from the ferry at Likoni when motor vehicle registration number KBF 648W, which was also exiting the ferry, ran over his left leg. 7. His testimony was corroborated by: Police Abstract. P3 Form. Treatment records. X-ray report. Medical report. Evidence of PW2, the police oficer. 8. PW2 testified that investigations established that the accident occurred at the ferry crossing area and involved the Plaintifi and motor vehicle KBF 648W. He further testified that investigations blamed the driver of the motor vehicle. 9. The Defendants tendered no evidence to challenge the occurrence of the accident. The Court is therefore satisfied on a balance of probabilities that the accident occurred as pleaded. Whether liability was proved 10. The Plaintifi's evidence was that he was a pedestrian/passenger disembarking from the ferry when the motor vehicle moved and ran over his leg. 11. PW2 testified that ferry safety rules require motor vehicles to remain stationary until pedestrians have safely disembarked and that investigations established that the driver failed to accord the Plaintifi the required priority. 12. The Defence alleged contributory negligence but no evidence whatsoever was adduced to support those allegations. 13. The Court of Appeal in Nandwa v Kenya Kazi Ltd [1988] eKLR held that where a plaintifi establishes facts raising a prima facie inference of negligence, the burden shifts to the defendant to ofier an explanation suficient to displace that inference. 14. Similarly, in Pauline Kainyera Simion v Mary Namunya [2021] eKLR, the court held that a defence unsupported by evidence remains mere allegations bereft of evidentiary value. 15. In the present case: The Plaintifi proved occurrence of the accident. The police investigations blamed the driver of the motor vehicle. The Plaintifi was a pedestrian disembarking from a ferry and had priority. The Defence called no witness. No contrary version of events was presented. The allegations of contributory negligence remained mere pleadings unsupported by evidence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/175/eng@2026-06-25 2

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16. I therefore find that the Plaintifi proved negligence against the driver of motor vehicle KBF 648W and that the Defendants are vicariously liable. I apportion liability at 100% Whether ownership was proved 17. The Defence denied ownership. However, the Plaintifi produced an NTSA search showing that motor vehicle registration number KBF 648W was registered in the name of the 2nd Defendant, Kassim Abdillahi Mohamed. No contrary search was produced. 18. The 1st Defendant was pleaded as the beneficial and/or insured owner and did not tender evidence to rebut the Plaintifi's case. I am satisfied that ownership and responsibility for the vehicle were established on a balance of probabilities. Whether the plaintifi sustained injuries 19. The medical evidence was consistent and unchallenged. The Plaintifi sustained: Medial dislocation of the left ankle. Fracture of the left medial malleolus. Fracture of the left lateral malleolus. 20. The injuries were confirmed by: Treatment records. X-ray report. P3 Form. Medical Report by Dr. Darius Kiema. The P3 classified the injuries as Grievous Harm. Dr. Kiema assessed permanent disability at 15%. The Court finds that the Plaintifi sustained the pleaded injuries. Quantum of Damages General Damages 21. The Plaintifi proposed Kshs. 900,000/= and relied on: Chiba Tim Limited & Another v Ruguru [2025] eKLR. The claimant sustained: Fracture of medial malleolus. Fracture of lateral malleolus. Ankle dislocation. Swollen wound on the leg.The court awarded Kshs. 700,000/=. 22. In the present case the injuries noted include: Medial dislocation of left ankle. Fracture left medial malleolus. Fracture left lateral malleolus. Permanent disability assessed at 15%. Post-traumatic arthritis. Risk of shortening of left lower limb. Lifelong recurring pain. Diminished working capacity. Future physiotherapy requirements. Weakening of fracture site. 23. The Plaintifi's injuries are therefore materially more severe because unlike the claimant in Chiba Tim, there is medical evidence of: Permanent disability. Long-term complications. Reduced earning and working capacity. Future medical treatment. 24. The Plaintifi was also a 71-year-old mason whose occupation involves substantial physical labour. The efiect of the injuries on his daily activities is therefore significant. 25. I have also considered the principles in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR and Jabane v Olenja [1986] KLR 661 that comparable injuries should attract comparable awards while taking infiation and the unique facts of each case into account. 26. Taking all relevant factors into consideration, I find that an award of Kshs. 850,000/= as general damages is fair and reasonable compensation for pain, sufiering and loss of amenities. Future medical expenses 27. Dr. Kiema recommended: Item Amount Medication Kshs. 18,000 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/175/eng@2026-06-25 3

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Physiotherapy Kshs. 12,000 Total Kshs. 30,000 28. The future medical expenses were specifically pleaded and medically supported. I therefore award Kshs. 30,000/= on this head. Special damages 29. The Plaintifi pleaded and proved: Item Amount Medical Report Kshs. 2,000 NTSA Search Kshs. 550 Total Kshs. 2,550 30. Special damages were specifically pleaded and strictly proved. I award Kshs. 2,550/= on this head. Disposition 31. Judgment is entered in favour of the Plaintifi against the Defendants jointly and severally as follows: a. Liability- 100% as against the Defendant. b. Damages General damages.............................Kshs. 850,000 uture medical expenses................Kshs. 30,000 Special damages.............................Kshs. 2,550 Total Award Kshs 882,550 Orders i. Judgment is entered for the Plaintifi against the Defendants jointly and severally in the sum of Kshs. 882,550/=. ii. Special damages shall attract interest from the date of filing suit. iii. General damages and future medical expenses shall attract interest from the date of this judgment until payment in full. iv. The Plaintifi shall have the costs of the suit. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026. ............................................ EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/175/eng@2026-06-25 4

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