Nyongesa v Ndoli (Civil Case E017 of 2025) [2026] KEMC 543 (KLR)

5. In the alternative, the Defendant averred that the accident was wholly or substantially contributed by the Plaintiff’s negligence enumerated in paragraph 6 of the Plaint. 6. It is against this backdrop that the Defendant urged this court to dismiss this suit with costs. 7. The divergent positions taken by the parties herein on the circumstances under which the accident occurred prompted this court to set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. EVIDENCE Plaintiff’s case 8. PW1 No. 81576 PC Jackline Ochieng of Bungoma Traffic Base produced a police abstract dated 19 th August 2024 showing that the accident herein occurred on 02nd August 2024 along Bungoma – Kanduyi road near Blue Waves area involving the motor vehicle and the motorcycle. She identified the Plaintiff as the motorcycle rider. 9. In cross-examination, she could not tell the circumstances under which the accident occurred. She denied booking the accident’s report and being interviewed by the motor vehicle insurer’s investigators. 10. PW2 Elias Adoka a Clinical Officer at Bungoma County Referral Hospital, produced the Plaintiff’s undated treatment notes from Bungoma County Referral Hospital and P3 form as exhibits. 11. He was of the opinion that the accident caused the Plaintiff to sustain soft tissue injuries, which he assessed as harm. 12. PW3 Dr. Charles Andayi of Lubinu Medical Centre testified that he examined the Plaintiff on 21st August 2024 after involvement in a road traffic accident. He produced the Plaintiff’s medical report dated 21st August 2024 showing that the Plaintiff sustained moderate soft tissue injuries, which he was expected to fully recover from in ten (10) months from the date of his examination.

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13. He also produced a receipt for the even date showing that he charged the Plaintiff Kshs. 8,500/= for filling the Plaintiff’s medical report. 14. PW4 Sunday Wanjala Nyongesa adopted his witness statement dated 13th November 202 as his evidence in chief. He produced the documents not produced by the other witnesses as exhibits. 15. He testified that on the date of the accident, the motor vehicle, which had stalled beside the road, suddenly made a right turn into the road without making any indication, causing his motorcycle to ram into the motor vehicle’s side. He added that he fell on the road and lost consciousness, which he regained after one day, while at Bungoma County Referral Hospital, where he was admitted for two days. 16. He further stated that he applied the brakes, but still hit the motor vehicle since it was too close to his motorcycle. 17. In cross-examination, he stated that he lost his driving licence during the accident, which he had not produced. He conceded that he had not produced a copy of the motorcycle’s insurance certificate. He was carrying two pillion passengers. He reiterated that the motor vehicle suddenly turned, hence the accident. Defendant’s Case 18. DW1 Wycliffe Wanami Ndola adopted his witness statement dated 30th January 2025 as his evidence in chief. He produced the documents listed in his lists of documents on record as exhibits, save for the investigation report. 19. He testified that the accident occurred when his motor vehicle was making a U-turn. He reiterated that he indicated before turning, but given that the Plaintiff failed to keep a safe distance, the Plaintiff’s motorcycle his motor vehicle on the driver’s side. 20. DW2 Danson Kyalo Kiema an investigator at Leon Assessors produced the accident’s investigation report dated 16 th April 2025 as

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an exhibit. He blamed the Plaintiff for the accident since the Plaintiff reportedly failed to keep distance, hence the accident. He added that he relied on the OB entry from the police, visited the scene, and interviewed the Defendant in preparing his report. 21. During cross-examination, he conceded that he did not interview the Plaintiff before preparing the report. He also conceded that he did not refer to inspection reports and that the OB extract attached was not certified. He added that he had not attached a certificate of electronic evidence to the report to show that the alleged copy of the OB extract attached to his report was authentic. ANALYSIS AND DETERMINATION 22. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 23. It is common ground that the accident herein occurred, causing the Plaintiff to sustain bodily injuries. There is no contest that the Defendant owned the motor vehicle at the time of the accident. 24. 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 25. The Plaintiff blamed the Defendant for the occurrence of the accident on the ground that the Defendant’s motor vehicle, which had stalled beside the road, suddenly made a right turn into the road without making any indication, causing his motorcycle to ram into the motor vehicle’s side. 26. On the part of the Defendant, he blamed the Plaintiff for failing to keep a safe distance, thus leading to his ramming into the Defendant’s motor vehicle as the Defendant made a U-turn after reportedly indicating that he was turning right.

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27. The Defendant also relied on the investigations report dated 16th April 2025 produced by DW2, which blamed the Plaintiff for the occurrence of the accident. 28. Whereas the report by DW2 contained a well-drawn sketch plan supporting the Defendant’s version of events on how the accident occurred, DW2 conceded that he did not interview the Plaintiff before preparing the said report. 29. 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 officer after visiting the scene of the accident, as alleged. 30. 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. 31. The evidence on record on the circumstances under which the accident herein is basically the Plaintiff’s word against the Defendant’s word. 32. It is this court’s considered view that, in the face of the Plaintiff’s and the Defendant’s contradictory evidence on the circumstances under which the accident occurred, it was only proper for the accident’s investigating officer to testify before this court on the circumstances under which the accident occurred. 33. 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. 34. 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.

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35. 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 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.” 36. The foregoing inclines this court to apportion liability equally between the Plaintiff and the Defendant. Quantum (a) 37. General Damages for Pain and Suffering The Plaintiff pleaded in paragraph 6 of his Plaint that the accident caused him to sustain blunt injuries to the forehead, chest, and neck, a cut wound to the left cheek, abrasions to both knees, and scratches to both legs. 38. The Plaintiff’s medical evidence on record produced by PW2 and PW3 corroborated the Plaintiff’s testimony and averments in his Plaintiff's Plaint on the injuries the Plaintiff sustained as a result of the accident. 39. It is against this backdrop that this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident herein caused him to sustain blunt injuries to the forehead, chest, and neck, a

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cut wound to the left cheek, abrasions to both knees, and scratches to both legs. 40. 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 Geoffrey 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.” 41. The Plaintiff submitted that an award of Kshs. 300,000/= under this head would be sufficient compensation. They placed reliance on Kenya Power & Lighting Company Limited v Omwoyo (Civil Appeal E082 of 2023) [2024] KEHC 5120 (KLR), where the court awarded general damages of Kshs. 200,000/= for multiple soft tissue injuries. 42. The Defendant, on the other hand, submitted that an award of Kshs. 120,000/= under this head was reasonable compensation. He added that, given that the Plaintiff’s pillion passenger in Felix Wangila v Wycliffe Wanami Ndoli (Bungoma CMC CC No. E360

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of 2024), who also sustained multiple soft tissue injuries, was awarded Kshs. 180,000/=, the Plaintiff herein can not be awarded general damages above Kshs. 180,000/=. The Defendant also cited authorities where awards of between Kshs. 80,000 – Kshs. 150,000/= were made for multiple soft tissue injuries. 43. It is imperative to state that this court is not bound by decisions made by other magistrates or courts of concurrent jurisdiction. Those decisions are only obiter to this court. Simply put, those decisions are of mere persuasive value, nothing much. Therefore, the Defendant’s submission that the Plaintiff herein cannot be awarded general damages above Kshs. 180,000/= awarded to his passenger in the Wangila case (supra) lacks any backing in law. 44. This court has given due regard to the authorities cited by the parties herein on quantum. 45. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR), where the court made an award of Kshs. 150,000/= for multiple soft tissue injuries, including a deep cut on the forehead, and blunt injury to the right knee. 46. In Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR), the court made an award of Kshs.

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150,000/= for a head injury, left and right leg injury, superficial bruises to both knees, face, and scalp, chest injury, soft tissue injuries on the fingers, bruises, and lacerations on various parts of the body. 47. In Kenya Power & Lighting Company Limited v Omwoyo (Civil Appeal E082 of 2023) [2024] KEHC 5120 (KLR), the High Court upheld an award of Kshs. 200,000/= for an injury on the head with a deep cut wound and bruises, blunt injury to the chest, injury on the right hand with cut wounds and bruises, injury on the back, and injury on the right and left knees 48. In Omondi vs. Anzofu [2024] KEHC 2675 (KLR), an award of Kshs. 200,000/= was upheld for soft tissue injuries to the head, knees, chest, and back, with no long-term effects. 49. The authorities above show that courts award Kshs. 150,000/= - Kshs. 200,000/= for multiple soft tissue injuries. 50. Guided by the authorities above, and more particularly the Omwoyo case (supra), this court makes an award of Kshs. 200,000/= under this head. (b) 51. Special Damages The Plaintiff pleaded for Special Damages of Kshs. 22,220/= comprised of Kshs. 8,500/= for the medical report and filling of the P3 form, Kshs. 5,000/= for the demand notice. Kshs. 8,170/= for medical expenses, and Kshs. 550/= for motor vehicle search.

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52. The Defendant conceded that the receipts on record had proved the Plaintiff’s claim for took issue with the Plaintiff’s claim for Kshs. 8,170/= for medical expenses, and Kshs. 550/= for motor vehicle search. 53. However, the Defendant took issue with the Plaintiff’s claim for Kshs. 8,500/= for the medical report and filling of the P3 form by submitting that the said claim was exaggerated since a P3 form is a public document issued and filled free of charge in public hospitals. 54. The Defendant also disputed the Plaintiff’s claim for Kshs. 5,000/= for the Demand Notice on the ground that the said claim was a claim for legal fees recoverable through costs of the suit as held in Kwendo v Attorney General & another (Civil Appeal 11 of 2019) [2024] KEHC 1530 (KLR). 55. This court has had the benefit of going through the receipt dated 21st August 2024 produced by the Plaintiff in support of the claim for Kshs. 8,500/= for the medical report. A reading of the said receipt reveals that the sum of Kshs. 8,500/= claimed by the Plaintiff was paid for the filling of the medical report only, and not for filling the P3 form as pleaded in the Plaint and as alleged by the Defendant. 56. The question that this court needs to answer is whether the claim for Kshs. 8,500/= for filling the medical report is exaggerated. 57. The answer to this question is found in the Medical Practitioners and Dentists (Professional Fees) Rules, 2016, enacted through Legal

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Notice 131 of 2016 (“the Rules”). The Rules provide for a minimum of Kshs. 6,000/= and a maximum of Kshs. 60,000/= for preparing medical and dental legal reports. 58. Guided by the Rules, it follows that Kshs. 8,500/= charged by Dr. Andayi for filling the Plaintiff’s medical report is not exaggerated but is within the range permissible under the law. 59. On the disputed claim of Kshs. 5,000/= for the Demand Notice, this court agrees with the Defendant’s submission that the said claim is not a Special Damage but a claim for legal fees, which can only be claimed together with the costs of the suit. This is in line with PJO Otieno J’s holding in the Kwendo case (supra), where the learned judge held: “…The Court however, finds that demand letter is a claim for legal fees that is awardable at taxation not in the suit as special damages. That sum is disallowed….” 60. The foregoing inclines this court to dismiss the Plaintiff’s claim of Kshs. 5,000/= for the Demand Notice as a Special Damage. 61. It is against this backdrop that this court finds and holds that the Plaintiff only pleaded and proved Special Damages of Kshs. 17,220/=. 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 and violates the

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Defendant’s right to justice stipulated under Article 159 (2) (a) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. 63. It is worth noting that the Defendant did not substantiate how an award of interest on General Damages amounts to double compensation and how the same violates the Defendant’s right to justice. 64. A party seeking the aid of constitutional provisions or statutory provisions in support of any legal position they have taken is obligated to set out with precision how a particular action is an affront to the cited legal provisions. It is not enough for a party to, so to speak, throw constitutional or statutory provisions on the head of the court, then simply state that a particular action is a violation of the cited law. 65. 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

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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. 66. 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: 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.” 67. 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:

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“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.” 68. 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. 69. 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. 70. 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.

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71. 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 72. 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. 200,000/= c) Special Damages……………………...…….Kshs. 17,220/= Grand Award……………………… Kshs. 217,220/= Less 50% Net Award…………………………Kshs. 108,610/= 73. 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. 74. The Plaintiff will have the costs of this suit, subject to the ratio of liability between the parties herein. 75. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 09th April 2026

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T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Juma for the Plaintiff Ms. Makawa for the Defendant C/A: Mr. Rioba

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