Mulunda v Ryce East Africa Ltd (Civil Case E140 of 2025) [2026] KEMC 541 (KLR)

5. It was the Defendant’s case that if the accident herein occurred, then the same was wholly caused or substantially contributed by Plaintifi’s particulars of negligence set out in paragraph 6 of their Statement of Defence. 6. This matter was set down for hearing for the parties herein to prove the averments in their respective pleadings. Evidence Plaintifi ’s case 7. PW1 No. 8xxx6 PC Jackline Were of Bungoma Trafic Base produced a police abstract dated 20th January 2025 showing that the accident herein occurred on 18th January 2025 along Bungoma – Kanduyi road at airstrip road involving the Plaintifi’s motorcycle and the motor vehicle and that the said accident was reported at Bungoma Police Station vide OB. No. 77/18/01/2025. 8. In cross-examination, she conceded that she was not the accident’s investigating oficer. She could not tell whether the Plaintifi was a minor at the time of the accident. 9. PW2 Jackson Wanjala adopted his witness statement on record as his evidence in chief. He testified that the motor vehicle rammed into his motorcycle from behind on the date of the accident. He produced all the documents he filed in support of his case as exhibits, save for the police abstract. 10. He stated in cross-examination that he was 16 years old at the time of the accident. He added that he had fully recovered from the injuries he sustained as a result of the accident. Defendant’s Case 11. DW1 Bonface Mataiso adopted his witness statement dated 27th September 2025 as his evidence in chief. He produced the documents listed in his list of documents on record as exhibits, save for the accident’s investigation report. 12. He testified that the accident occurred when the motor vehicle he was driving was involved in a headon collision with the Plaintifi’s motorcycle, which was being driven from the opposite direction on the wrong side of the road. 13. He admitted that he had the authority to drive the Defendant’s motor vehicle at the time of the accident. 14. DW2 Noah Bakari Nyongesa an investigator at Covert Investigators, produced the accident’s investigation report dated 12th April 2026 as an exhibit. He blamed the Plaintifi for the occurrence of the accident since the Plaintifi did not have a driving licence at the time of the accident, and the Plaintifi’s motor vehicle was not insured at the time of the accident. 15. He conceded in cross-examination that he did not interview the Plaintifi before writing the investigations report, and that he relied on information from police oficers, DW1, and a visit to the scene in preparing the investigations report. he admitted that the report did not state if he interviewed police oficers. 16. He admitted that the OB extract attached to his report did not disclose the OB number and the entry’s reportee. He also admitted that the report did not include the name of the person or the details of the gadget that took the photos attached to it. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 2

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17. He added that the police oficer and DW1, who reportedly directed the investigators to the scene of the accident, did not accompany them to the said scene. Analysis and Determination 18. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 19. It is common ground that the accident herein occurred, causing the Plaintifi to sustain bodily injuries. There is no contest that the Defendant owned the motor vehicle at the time of the accident. 20. The foregoing inclines this court to find and hold that the issues that commend to this court for determination are liability, quantum, and whether an award of interest on general damages amounts to double compensation Liability 21. The Plaintifi blamed the Defendant’s motor vehicle driver for the occurrence of the accident on the ground that the motor vehicle driver knocked his motorcycle from behind. 22. DW1 on his part testified that the accident occurred when he tried to avoid knocking down the Plaintifi who was riding a motorcycle from the opposite direction on the wrong side of the road. 23. The Defendant also relied on the investigation report dated 12th April 2026 produced by DW2, which blamed the Plaintifi for the occurrence of the accident. 24. The Plaintifi took issue with the said investigation’s report. His counsel submitted that the said report was not credible given that DW1 admitted that he was not accompanied by anyone to the scene, and that the photos contained in the report were not accompanied by a certificate contemplated under section 106B (4) of the Evidence Act. Counsel added that the authenticity of the OB extract contained in the report could not be ascertained. 25. The Defendant defended the said report by stating that the Certificate of Print under section 106B of the Evidence Act was only a procedural requirement which ought not defeat substantive justice as demanded by Article 159 (2) (d) of the Constitution. 26. The foregoing begs the question whether the investigations report on record is credible. 27. Section 106B (2) of the Evidence Act provides that electronic evidence, including video evidence and photos, is only admissible if it is accompanied by a certificate that: i. Identifies the electronic device involved; ii. Describes the manner in which the data was produced; iii. States that the device was operating properly; and iv. Is signed by a person occupying a responsible oficial position. 28. Courts in this jurisdiction have rendered decisions on the consequences of the lack of a certificate under sections 78 and 106B of the Evidence Act on electronic evidence produced in a court. 29. The Court of Appeal in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR stated that despite the introduction of the blanket declaration of admissibility under the provisions of section 78A, the requirement of a certificate as described in https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 3

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section 106B is a mandatory one which cannot be obviated by constitutional prohibitions against undue regard to procedural technicalities. 30. In this era of artificial intelligence (AI), this court does not need to belabor the importance of the authentication of photos and videos as prescribed by the law before the same are admitted as exhibits in a court of law. To this end, this court places reliance on Mtere v Republic (Criminal Appeal E051 of 2024) [2025] KEHC 5144 (KLR) (Crim), where Muteti J rendered himself thus on this issue: ‘On the failure to prepare a certificate and produce it in here with the provisions of section 78 and 106B of the Evidence Act. This court finds that the omission is fatal. The provisions of the law leave no discretion to the prosecutor or the investigator. It is trite law that where the electronic evidence is not accompanied by a certificate that evidence is not inadmissible. See George Gabriel Kiguru & Another v Republic [2022] eKLR. The Certificate speaks to the reliability, integrity and originality of the electronic evidence. In this era of digital manipulation through tampering with electronic evidence, courts must exercise great caution whenever the prosecution of any person is predicated upon electronic evidence without an accompanying certificate. A conviction obtained through such evidence cannot be sustained. This becomes even more critical in this era of electronic transformation with the use of artificial intelligence. Originality and authenticity of electronic documents become key concerns now more than ever before. The reception of the CCTV footage in this case was therefore improper and irregular without the necessary certificate.’ 31. Guided by the authorities above, this court is inclined to find that the photos in the Defendant’s investigations report herein, which are in contravention of section 106B of the Evidence Act, are inadmissible; thus, the same will not be relied upon by this court in determining this case. 32. Whereas the report by DW2 contained a well-drawn sketch plan supporting the Defendant’s version of events on how the accident occurred, there is nothing in the report to suggest that DW2 interviewed the Plaintifi or made an efiort to trace the Plaintifi for an interview before preparing that report. 33. DW2 also conceded that neither DW1 nor police oficers accompanied him to the scene of the accident. This raises doubts about whether the sketch plan in the report is a true picture of the scene of the accident. 34. Rules of natural justice demand that everyone must be granted an opportunity to be heard before an adverse report against them is prepared. Therefore, it will be prejudicial to the Plaintifi if this court relies on an adverse report against them, which was prepared without their side of the story, in determining liability in this matter. 35. Further, it is noteworthy that the alleged OB extract attached to the said report, and whose contents also informed the report’s findings, was not certified. Therefore, this court could not ascertain if the contents of the alleged OB extract were the entries made by the accident’s investigating oficer after visiting the scene of the accident, as alleged. 36. The foregoing inclines this court to find that the investigations report prepared by DW2 was simply a report based on the Defendant’s version of events on how the accident herein occurred. This court cannot use such a biased report in determining liability in this case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 4

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37. On whether the Plaintifi’s lack of a valid driving licence and failure to insure the motorcycle at the time of the accident points to negligence on his part, as submitted by the Defendant, this court takes the position that the core issue in determining liability and negligence is causation. 38. Therefore, the mere fact that a person did not possess a valid driving licence or that they were riding an uninsured motorcycle at the time of the accident is not proof of negligence on the part of that rider. 39. Instances abound where an unlicensed driver may be more careful on the road than a licensed driver. Negligence can only be proved through an analysis of the circumstances under which an accident occurred. This court finds support from Kennedy Macharia Njeru v Packson Githongo Njau & another [2019] KEHC 5377 (KLR), where the court held thus: “ In Tom Obita Ndago & Another Vs. Alfonse Omondi Otieno [2015] eKLR, where the court considered an allegation by the defence during trial in the lower court that the fact that the river was carrying an excess passenger could have caused the accident was refuted by the appellate court which stated; “Thus the rider and his passengers weight was not the reason why the riders motor cycle fell but the fact that the 1st appellant hit them.” This is the same situation here, the cause of the accident was the respondents driver (DW1) who overtook and in the process hit the motor cycle which was properly being driven on its lane but not because the driver had no driving licence.” 40. It is also worth noting that the mere fact that a person was illegally on the road is not a blanket to other road users to knocked down such an illegal road user with reckless abandon. All road users owe a duty of care to all road users. 41. Flowing from the analysis above, it follows that the evidence on record on the circumstances under which the accident herein occurred is basically the Plaintifi’s word against the Defendant’s word. 42. It is this court’s considered view that, in the face of the Plaintifi’s and the Defendant’s contradictory evidence on the circumstances under which the accident occurred, it was only proper for the accident’s investigating oficer to testify before this court on the circumstances under which the accident occurred. 43. The accident’s sketch plan and the relevant inspection reports would have also helped this court to have a clear picture of the circumstances under which the accident occurred. 44. In the absence of the evidence alluded to above, the evidence on record is barely adequate for this court to apportion liability between the parties herein. 45. When confronted with a situation like the one obtaining in this case, the Court of Appeal in Hussein Omar Farah v Lento Agencies C.A Nairobi, Civil Appeal No.34/2005 [2006] eKLR, held that: “ In our view it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of afiairs, 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.” 46. The foregoing inclines this court to apportion liability equally between the Plaintifi and the Defendant. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 5

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Quantum (a) General Damages for Pain and Sufiering 47. The Plaintifi pleaded in paragraph 7 of his Plaint that the accident caused him to sustain blunt injuries to the head, neck, chest, back, left elbow, and left knee. 48. The Plaintifi’s uncontroverted medical evidence on record corroborated the Plaintifi’s testimony and averments in his Plaintifi's Plaint on the injuries the Plaintifi sustained as a result of the accident. 49. It is against this backdrop that this court finds and holds that the Plaintifi proved on a balance of probabilities that the accident herein caused him to sustain blunt injuries to the head, neck, chest, back, left elbow, and left knee. 50. The law in this jurisdiction on the award of damages for accident injuries is that, in awarding damages, comparable injuries should, as far as possible, be compensated by comparable awards. The Court of Appeal in Stanley Maore vs Geofirey Mwenda (2004) eKLR, held: “ ...we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards, keeping in mind the correct level of awards in similar cases.” 51. This court has given due regard to the authorities cited by the parties herein on quantum. 52. The injuries sustained by the Plaintifi herein are almost similar to the injuries sustained by the Plaintifi inIn Makami v Obong’o (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR), the respondent sustained soft tissue injuries involving marked swelling and bruises on the forehead, marked neck and chest pain, and a cut wound on the right elbow joint and right knee joint. He was treated as an outpatient. The court set aside an award of Kshs 100,000/= and substituted it with an award of Kshs 80,000/= for general damages 53. In Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR), where the court awarded Kshs. 80,000/= for soft tissue injuries to the head and leg. 54. Guided by the authorities above, and considering the passage of time since the above decisions were rendered, this court makes an award of Kshs. 120,000/= under this head. (b) Special Damages 55. The Plaintifi pleaded for Special Damages of Kshs. 6,150/= comprised of Kshs. 6,000/= for the medical report and Kshs. 150/= for medical expenses. The Plaintifi placed before this court to receipts to prove the claim for special damages of Kshs. 6,150/=. 56. The Defendant took issue with the lack of a stamp on the Plaintifi’s receipt of Kshs. 6,000/= for the medical report. 57. This court notes that the production of the impugned receipt for Kshs. 6,000/= for the medical report was not objected to by the Defendant’s counsel during the hearing of this matter. The Defendant cannot seek to impeach the said receipt through their submissions. Submissions are not evidence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 6

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58. In any event, the law regarding this issue, as held by the Court of Appeal in Paul N. Njoroge v Abdul Sabuni Sabuni [2015] eKLR is as elucidated below: “ The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A [2007] eKLR..." 59. The Court of Appeal in the above case also proceeded to reiterate its position on the matter by emphasizing the position earlier adopted by Law J. (as he then was) in Suderji Nanji Limited v Bhaloo [1958] EA 762 that: “ ...before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty ... The appellant has never been given the opportunity to pay the requisite stamp and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2nd Defendant/Respondent and he must be given the opportunity...We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported noncompliance with the Stamp Duty Act. At all events, the act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof..." 60. For the reasons above, this court finds that the Defendant’s submission that a receipt for specials lacking a revenue stamp is inadmissible lacks any basis in law. 61. It is against this backdrop that this court finds and holds that the Plaintifi only pleaded and proved Special Damages of Kshs. 6,150/=. Whether an award of interest on General Damages amounts to double compensation 62. The Defendant submitted that an award of interest on General Damages amounts to double compensation. 63. The award of interest on damages awarded by a court is set out under Section 26 of the Civil Procedure Act as follows: 26. Interests (1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 7

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64. The legal provision cited above has been a subject of various legal provisions. For instance, in Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that: “ First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously…Second, under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely: 65. a. The period from the date the suit is filed to the date when the Court gives its judgment; and b. The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” Similarly, Odoki, Ag. JSC, in Omunyokol Akol Johnson v Attorney General (Civil Appeal No.6 of 2012, UGSC 4 stated in part, as follows on this issue: “ It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” 66. The common thread running through the authorities above is that this court has the discretion to award interest on general damages and special damages awarded, save that the said discretion must be exercised judiciously. The said authorities also leave no doubt in this court’s mind that the award of interest on general damages is well founded in law. 67. This court also takes judicial notice of the fact that an award of interest on damages awarded to a successful party is largely meant to compensate the decree holder for the delays in realizing the fruits of their judgment. 68. This means that an award of interest puts the judgment debtor on his toes, thereby ensuring that the judgment debtor settles the decretal sum as soon as possible; hence leading to expeditious settlement of cases in line with Article 159 (2)(b) of the Constitution and the overriding objectives in Section 1A of the Civil Procedure Act. 69. In the circumstances, this court declines the Defendant’s invitation to find that an award of interest on general damages amounts to double compensation and is unlawful. Determination 70. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: a) Liability………………………………………50%:50% b) General Damages…………………...………Kshs. 120,000/= c) Special Damages……………………...…….Kshs. 6,150/= Grand Award……………………… Kshs. 126,150/= Less 50% https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 8

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Net Award…………………………Kshs. 63,075/= 71. 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. 72. The Plaintifi will have the costs of this suit, subject to the ratio of liability between the parties herein. 73. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 14TH DAY OF APRIL 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Shikhu for the Plaintifi Mr. Karani for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/541/eng@2026-04-14 9

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