Okumu v Wekuko (Civil Case E101 of 2024) [2026] KEMC 389 (KLR)

3. In plaintifi’s evidence, PW1 SGT Gladys Segem, a trafic police oficer based at Bumala Police station stated that the accident was reported vide OB NO. 25/9/10/24 and the same related a fatal accident which had occurred on 9/10/24 at 1500hrs at Budwongi area along the Funyula- Sio Port murrum road involving motor vehicle registration number KDE 033Z, Isuzu FRR and motorcycle registration number KMGM 274F Bajaj Boxer. That the matter was investigated by PC Mwatala who at the moment was at a training. From the occurrence book record, the driver of the vehicle reported that both the motorcycle and the vehicle were heading towards the same direction when the motorcycle began overtaking the vehicle. That as it did, the motorcycle handle hit the lorry from the left side causing the motorcycle occupants to fall. The lorry then drove over the pillion passenger using the rear wheels. The ridder was the plaintifi herein while the pillion passenger was one Peter Ouma. A police abstract was issued to the plaintifi, which she produced as Pex no. 4. The vehicle was registered to the defendant herein. According to the police abstract, the matter was still pending under investigation and she was not the investigating oficer nor had she produced the investigation diary as evidence in this case. That the vehicle ownership details is equally not indicated in the abstract. The ridder had a valid driving licence. The motorcycle licence details are not indicated in the abstract, nor its ownership details. The rider was overtaking the vehicle from the left side instead of the right side. The vehicle’s inspection report showed the vehicle had no pre accident defects. 4. PW2 Albert Rodgers Okumu testified that on the material day he was ridding motorcycle registration number number KMGM 274F from Sio Port direction heading to Funyula junction at around 3.00pm carrying one pillion passenger when on arrival at Buduongi area, motor vehicle registration number KDE 033Z on the same direction as him, hit him from behind causing him to fall into a ditch ofi the road. His pillion passenger fell on the ground under the vehicle, as a result of which he died while on transit to the hospital. He received treatment from the injuries sustained at Alijay Medical Centre at Sio Port and further at Busia County Referral Hospital. He was yet to fully recover. He produced his treatment notes from the two facilities as Pex no. 1 and 2 respectively, P3 form as Pex no. 3, receipts for special damages as Pex no. 5, medical report y Dr,. Sokobe as Pex no. 6, demand notice as Pex no. 7. He was on the left side of the road ahead of the said vehicle. He was a licensed rider and well insured but had no driving licence nor the insurance certificate as part of his evidence. The log book of the motorcycle was also not part of his evidence in this case. That the evidence of the police oficer who produced his abstract is not true on circumstances resulting to the accident. It was the vehicle that hit the motorcycle from behind, damaging its bonnet near the left head lamp on its left side. He had a helmet on that day. They both fell on the left side of the road. 5. Defendant’s defence evidence was DW1 Samuel Kimungui Baraza stated that on the material day at around 3.30pm he was driving the subject motor vehicle registration number KDE 033Z ISUZU FRR carrying 2 passengers namely Collins and Rasta heading towards Funyula direction on the murrum road at a speed of 50km/hr . On reaching Budalang area, he heard a loud voice from behind a motorcycle with a large exhaust pipe and looking at his side mirror, he saw the motorcycle as it reached the middle of the road. he quickly swerved on his right to give it way but unfortunately, the handle of the motorcycle hit the lorry causing those on board, the ridder and one pillion passenger to fall. The pillion passenger rolled under the lorry and was run over by the rear wheel of the lorry. He moved ahead and saw people wielding rungus baying for his blood. He rushed to Funyula Police station and reported the accident. Police oficers from Bumala were called to the scene and took over the matter. The following day, his vehicle was inspected. He blamed the motorcycle rider who attempted to overtake the vehicle from the left side of the narrow murrum road and failed to maintain a safe distance, thereby causing the accident. His vehicle was hit on its left side. He produced in evidence his driving licence as Dex no.1, police abstract as Dex no. 2 and Dex no. 3 the certificate of exam and test of the vehicle. The ridder was speeding and overtaking on the wrong side of the road. The vehicle belongs https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/389/eng@2026-07-16 2

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to Derrick. He returned to the scene in the company of the police and found the ridder at the scene. Deceased had already been rushed to the hospital. The pillion passenger had a luggage. There was grass and a trench on the left side of the road. The motorcycle fell into the ditch. The pillion passenger had no helmet nor refiective jacket on. 6. Parties closed their case and, in his submissions,, the plaintifi stated that the plaintifi through his evidence had proved that indeed the defendant’s driver was to blame for causing the accident. That the testimony of PW1 was only of value to the extent that the accident occurred and was reported. That the defence's evidence was incoherent, as it did not align with the evidence presented. That, in any event, as held in Embu HCCA No. 59 of 2018, Secilina Gatavi Peter vs Jasper Gitonga Mugambi, failure to wear a helmet or refiective jacket had no bearing on the causation of the accident. He submitted therefore that liability ought to be apportioned 100% against the defendant. On general damages, the plaintifi submitted for Kshs 300,000 and relied on the case of Nyamira HCCA E035 of 2023 National Industrial Credit Limited and 2Others vs MNO (a Minor ) where a similar award was made for injuries of chest contusion, cut wounds on the left knee, blunt trauma to the scalp and blunt trauma to the neck. In Kisii HCCA E 011 of 2023 Herbert Otare Marube and Anor vs Daniel Omare Nyamboga, the court awarded general damages of Kshs 350,000 for injuries of blunt trauma to the neck, chest contusion, bruises on the right upper limb, bruises on the left upper limb, bruises left lower limb bruises on the right lower limb and cut wounds on the right lower limb and in Bungoma HCCA NO. 17 OF 2019, Poa Link Services Co. Ltd vs Sindani Boaz Bonzemo where an award of Kshs 350,000 was upheld for injuries of blunt injury to the chest, bruises of the lower abdomen, bruiss of the right hip joint, bruises of the thigh and bruises on the knee. The plaintifi prayed for the special damages as strictly proved, as well as the costs of the suit. 7. Defendants in their submissions stated that the plaintifi had failed to prove negligence of the defendant as provided for under section 107-109 of the Evidence Act, and as held in the case of Darhama Patel & Another v T.A (Minor) suing through his mother and next friend HH9[2014] e KLR. That it was the plaintifi who, while overtaking on the wrong side of the road, caused his motorcycle handlebar to scrape the left side of the defendant’s case, causing him to fall. That PW1’s evidence that the vehicle was hit on the left side is evidence that his evidence that he was hit from behind was untrue. That the defendant’s vehicle from the evidence of DW1 through the report produced as Dex no. 3 showed the vehicle had no pre-accident defects, nor did it have any visible injuries after the accident. That no damage was noted on the front part of the vehicle, discrediting the plaintifi’s evidence that the vehicle hit the motorcycle from behind. That evidence made it clear that the motorcycle was struck on its right side, near the exhaust. That the plaintifi had no proper gear at the time and further violated trafic rules by carrying a pillion passenger and luggage simultaneously. That having failed to establish negligence on the part of the defendant, the plaintifi’s suit ought to be dismissed. That, in the alternative, liability be apportioned equally between the parties. He relied on the case of Joseph Muthuri vs Nicholas Kinoti Kibera [2022] eKLR. On the issue of general damages, the defendant submitted that the injuries sustained as noted in the P3 Form did not refiect the gravity of those indicated in the initial treatment notes, That in the treatment notes, the injuries were merely cleaned, dressed and managed with medication, while the P3 Form filled approximately a month later, revealed grievous injuries, inconsistent with the management. That damages of Kshs 70,000 was therefore suficient in the circumstances. They relied on the case of Makami Obongo Civil Appeal No. e62 of 2021 KLR, where for injuries of marked swelling and bruises on the forehead, marked neck and chest pain, cut wound on the right elbow joint and knee joint, an award of Kshs 80,000 was made. In George Mugo & Another vs AKM(Minor suing through net friend and mother of AMK[2018 eKLR, an award of Kshs 90,000 was issued for soft tissue injuries to the left shoulder, blunt chest injury, bruises to the left wrist and blunt injury to the left arm. On Special damages, the defendant submitted the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/389/eng@2026-07-16 3

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amount prayed as the same was proved. The total award, according to them, less 50% contributory negligence should be Kshs 44,690/= Analysis and Determination 8. I have considered the evidence presented, and the issue for determination in any negligence case is twofoldCausation and blameworthiness hence liability and damages payable if any. I will further consider the issue of costs as pleaded. Causation and Blameworthiness. 9. The burden of proving a fact lies on the one who wants the court to believe in its existence. Practically, in civil cases, he who alleges must prove it. See sections 107-109 of the Evidence Act. 10. For starters, on liability, I find it useful to cite Halsbury's Laws of England 12 which states: -124th Ed at Para 662 (page 476) “ The burden of proof in an action for damages for negligence rests primarily on the plaintifi, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintifi, some breach of that duty, and an injury to the plaintifi between which the breach of duty a causal connection must be established." 11. First it is not in dispute that an accident occurred on 9/10/2024 along the Funyula- Sio Port Road at Buduongi area involving the plaintifi as the ridder of motorcycle registration number KMGM 274F Bajaj Boxer and the DW1 as the driver of motor vehicle registration number KDE 033Z. it is also not in dispute that the accident occurred at 3.30pm along the murrum road with no obstruction as to weather hence clear visibility. It is also not in dispute that the two parties were headed the same direction. The evidence of PW1 and the production of the Police abstract is clear evidence of the fact that an accident occurred between the two parties and the same was documented. 12. What is now in dispute is who was to blame for the said accident. I have considered the evidence by both parties and found that it is one’s word against the other. No independent witnesses, despite their availability, were called to give an independent testimony as to show the circumstances under which the accident occurred as testified by either party. Further, no sketch maps were produced to enable the court to have a clear picture as to how the accident occurred. Pw1 stated to not being the investigation oficer. Her evidence was purely hearsay as the same was unsupported by evidence of the one who visited the scene and documented the scene. That said, from each of their testimonies, one can deduce a few things 13. One is that the plaintifi admitted they fell in a ditch on the left side of the road. His evidence that the vehicle hit them from behind is unsupported by any evidence . The plaintifi did not produce an inspection report of the motorcycle to prove the damages to the same. The defendant, on their part, produced an inspection report which showed no visible damages were noted. The evidence of the defendant that it was actually the plaintifi overtaking from the wrong side of the road and consequently being hit and falling over is quite believable. 14. Defendant in his submissions has pleaded contributory negligence on the part of the plaintifi. The law on contributory negligence is to apportion proximate cause and blameworthiness where appropriate. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/389/eng@2026-07-16 4

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In De Frias v Rodney 1998 BDA LR 15 as cited with approval in the case of Mwaura v Palm Travels & another [2024] KEHC 16765 (KLR), it was held as follows: “ Contributory negligence required the foreseeability harm to oneself. A person is guilty of contributory negligence, if she ought reasonably to have foreseen that if she did not act as a reasonable prudence person she might be hush and in reckoning must take into account the possibility of others being careless. All that is required here is that the plaintifi should have failed to take reasonable care for her own safety.” 15. In light of the above and in the absence of clear evidence as to the exclusive culpability of the defendant in negligence, I find contributory negligence applicable in this case. In any event, accidents do not just happen. see the case of United Millers Co Ltd v Ochieng [2026] KEHC 8013 (KLR). In Baker vs 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 suficient 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.” 16. That said, I apportion blame between the plaintifi and the defendant equally. On Damages Payable if any 17. The Court of Appeal in Stanley Maore v Geofirey Mwenda [2004] eKLR held that comparable injuries ought to be compensated by comparable awards. There is no dispute that the plaintifi sustained the injuries as pleaded. The medical evidence presented is proof of the injuries. The same remained unrebutted by the defendant in evidence. I have considered the proposals by both the defendant and the plaintifi. It is clear the injuries sustained by the plaintifi were classified as soft tissue in nature. The authorities cited are considered and appreciated. I find an award of Kshs 150,000 suficient in the circumstances. 18. I am guided by the recent decisions in the cases of Salat v Buyoto alias Ralia Hassan & another [2026] KEHC 8485 (KLR) where th court awarded damages of Kshs 150,000 for injuries of A blunt object injury to the neck (cervical region) and a bruise on the left leg. In Adembesa & another v Gweno (Civil Appeal E192of 2023) (2024) KEHC 5379 (KLR) where the courtawarded Kshs. 120,000/- for soft tissue injuries to thehead, back, chest, shoulders, elbow joints and knees 19. In Wepukhulu v Webuye T Junction Jiwezeshe Self Help Group & another [2026] KEHC 5617 (KLR) the court awarded damages of Kshs 150,000 for injuries of multiple soft tissue injuries to the head, neck,chest, back, right elbow and right knee. 20. Guided that no injuries can be the same, I find the above decisions most recent and more applicable in the circumstances. 21. On special damages, the same remained undisputed by the defence, I find no reason to award the same as prayed. Disposition 22. I enter judgment for the plaintifi against the defendant as follows: a. General damages Kshs 150,000 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/389/eng@2026-07-16 5

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b. Special damages Kshs 19, 380 Less 50% contributory negligence (84,690) c. Net award Kshs 84,690/= plus costs and interest from the date of judgment till payment in full. It is so ordered. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 16TH JULY 2026 HON. ANNE NJERU SRM In the presence of Mr. Omondi for the plaintifi, Mr. Menezes for the defendant and Mr. Masiga the Court Assistant Mr. Menezes: I pray for 30 days stay of execution Mr. Mr Omondi: No objection Court: 30 days stay of execution granted. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/389/eng@2026-07-16 6

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