Khaemba v Karani & another (Civil Case E194 of 2025) [2026] KEMC 634 (KLR)

3. The Plaintifi further averred that the accident was caused by the Defendants’ negligent acts and omissions enumerated in paragraph 5 of the Plaint. She added that the accident occasioned her loss and damage, hence this suit. 4. The Defendants entered appearance and filed their respective Statements of Defence denying all the particulars of negligence attributed to them by the Plaintifi. They also invited the Plaintifi to strict proof of all the averments in her Plaint. 5. The Defendants also pleaded in the alternative that if the accident herein occurred, then the same was caused or contributed to by the Plaintifi’s negligent acts enumerated in the Statements of Defence herein. They urged this court to dismiss this suit with costs. 6. The Plaintifi responded to the Defendants’ Statements of Defence through Replies to the Statements of Defence dated 14th June 2025, reiterating the averments in her Plaint. 7. The Defendant urged this court to dismiss the Plaintifi’s case with costs. 8. It is against this backdrop that this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. Evidence Plaintifi ’s Case 9. PW1 Rosemary Khakasa Khaemba adopted her witness statement dated 08th May 2025 as his evidence in chief. She recalled that on the date of the accident, the motorcycle she had boarded was being ridden on the left side of Bungoma – Malaba road headed to Bungoma general direction near Zerozero junction, only for the 1st Defendant’s motor vehicle, which was being driven from the opposite direction, abruptly turned right to join Chwele road without indicating or stopping to give way, thereby knocking down the motorcycle. 10. She also testified that the accident caused her the injuries pleaded in the Plaint. She added that she is yet to fully recover from the said injuries since she still goes to the hospital for checkups and takes painkillers for the chest and rib pains. She blamed the 2nd Defendant for causing the accident by turning abruptly. 11. She conceded in cross-examination that she was neither wearing a refiector jacket nor a helmet at the time of the accident. 12. PW2 Dr. Ombongi Haron of Bungoma County Referral Hospital produced the Plaintifi’s P3 form and outpatient card dated 27th April 2025 and 26th April 2025 respectively, showing that the Plaintifi sustained the injuries pleaded in paragraph 6 of the Plaint. He also produced a receipt for Kshs. 520/ = for the Plaintifi’s medical expenses. 13. In cross-examination, he stated that the Plaintifi sustained soft tissue injuries which were assessed as harm and must have recovered by now. 14. PW3 Dr. Ekesa Mulyanga, a specialist general surgeon and trauma surgeon, produced the Plaintifi’s medical report dated 28th April 2024 showing that the accident caused the Plaintifi to sustain multiple moderate soft tissue injuries and psychological trauma. He also produced a receipt for Kshs. 4,000/ = that he charged the Plaintifi for filling the said medical report. He added that the Plaintifi would require Kshs. 25,000/= for future medical expenses. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 2

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15. PW4 No. 7xxx5 PC Kimani Njuguna of Bungoma Police Station trafic produced the police abstract dated 29th April 2025 showing that the accident herein occurred and that the same was reported at Bungoma Police Station vide OB. No. 97/25/04/2025. He also stated that he investigated the accident. 16. His testimony was that the accident occurred when the motor vehicle turned right at Zerozero area to join Chwele road only for it to hit the motorcycle the Plaintifi had boarded, which was coming from the Malaba general direction. He added that the accident was still under investigation. 17. He stated in cross-examination that the motorcycle rider was not to blame for the accident. He could not tell if the motorcycle rider was a qualified driver at the time of the accident. 18. He admitted that whereas he prepared the accident’s sketch map, he had not produced the same as an exhibit. He added that the motorcycle rider did not hit the motor vehicle from behind but hit the motor vehicle on the left side; hence, he could not be blamed for causing the accident. Defendants’ Case 19. DW1 Fredrick Omondi Obuya adopted his witness statement dated 26th November 2025 as his evidence in chief. He testified that he runs a car hire business at Kisumu Airport. He recalled that the 1st Defendant had entrusted him with the motor vehicle for car hire business. It is against this backdrop that he hired the motor vehicle to the 2nd Defendant on 23rd April 2025 for the 2nd Defendant to run his own errands in Bungoma. 20. He conceded that the 1st Defendant was the motor vehicle’s registered owner. He added that the terms of the car hire agreement were that the 2nd Defendant was to be liable for any accident during that period of car hire. 21. He admitted that he had not filed the car hire agreement between him and the 1st Defendant as well as the car hire agreement between him and the 2nd Defendant. 22. DW2 Odegi John Odhiambo adopted his witness statement herein as his evidence in chief. He admitted driving the motor vehicle at the time of the accident. His testimony was that the accident occurred along the road heading to Chwele when the motorcycle the Plaintifi was driving hit his motor vehicle at the rear. 23. In cross-examination, he denied knowing the 1st Defendant in person. He added that he hired the motor vehicle from DW1. He also stated that he was neither the 1st Defendant’s employee nor agent at the time of the accident. He further stated that he was not undertaking the 1st Defendant’s business at the time of the accident. 24. He took the position that the 1st Defendant should be blamed for the accident given that he was the motor vehicle’s insured at the time of the accident. Analysis & Determination 25. This court has given due regard to the pleadings, the evidence on record, the written submissions, as well as the authorities cited by the parties herein. Having fully appreciated the written submissions on record, this court elects not to regurgitate them here but only to highlight the key points raised therein. 26. There is no dispute that the accident herein occurred when the Plaintifi was a pillion passenger on the motorcycle and the 2nd Defendant was driving the motor vehicle. It is also common ground that the 1st Defendant was the motor vehicle’s registered owner at the time of the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 3

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27. The parties herein are also in agreement that the accident caused the Plaintifi to sustain bodily injuries. 28. The foregoing inclines this court to find and hold that the only issue for determination is liability and quantum. Liability 29. The Plaintifi pleaded in their Plaint that the 1st Defendant, being the motor vehicle’s registered owner, was vicariously liable for the 2nd Defendant’s negligent acts and omissions which allegedly caused the accident. The 2nd Defendant, on his part, took the position that the 1st Defendant was liable for the accident given that he was the motor vehicle’s insured at the time of the accident. 30. It should be remembered that the 2nd Defendant corroborated DW1’s testimony that he had hired the 1st Defendant’s motor vehicle from DW1 at the time of the accident. He also stated that he was not the 1st Defendant’s agent or servant at the time of the accident, and that he was not undertaking the 1st Defendant’s business when the accident occurred. 31. The foregoing begs the question whether, in view of the 2nd Defendant’s uncontroverted testimony on his relationship with the 1st Defendant at the time of the accident, the 1st Defendant can be held vicariously liable for the 2nd Defendant’s negligent acts or omissions. 32. In Amalgamated Logistics International Ltd & another v MMK (2020) eKLR, the Court of Appeal stated as follows on when vicarious liability arises: “ Vicarious liability has been well elucidated in Salmond on Torts, 1st edition at Page 83 as; “A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.” This Court in Joseph Cosmas Khayigila vs Gigi & Co. Ltd & Another, Civil Appeal No. 119 of 1986 established a clear test for vicarious liability as follows: “In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.” 33. Nzioka J in Njonge & another v Kingoo (Civil Appeal E039 of 2024) [2026] KEHC 3068 (KLR) simplified the doctrine of vicarious liability as follows: “ …Pursuant to the aforesaid, for the respondent herein to have been held liable, the appellant needed to prove that the 4th respondent caused the accident when undertaking a task or duty on behalf or for the benefit of the 3rd respondent. There is no evidence to that efiect… I entirely associate with the sentiments in the afore case of; Ormrod Vs. Crossville Motor Services Ltd. (supra) that mere permission to drive a vehicle when the driver is on a frolic of their own does not make the owner of the vehicle vicariously liable.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 4

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34. The common thread running through the authorities above is that a motor vehicle’s registered owner can only be vicariously liable for their motor vehicle driver’s negligent acts or omissions if the said driver was the motor vehicle registered owner’s agent or servant, or the driver was undertaking a task on behalf of the motor vehicle owner when the accident occurred. 35. The uncontroverted evidence on record is that the 2nd Defendant was on a frolic of his own when the accident occurred, and that the 2nd Defendant was on a frolic of his own when the accident occurred. Therefore, the 1st Defendant cannot be vicariously liable for the 2nd Defendant’s negligent acts or omissions that may have caused the accident. 36. The Plaintifi blamed the 2nd Defendant for causing the accident by turning abruptly. The 2nd Defendant denied this. He instead blamed the motorcycle rider for causing the accident by hitting the motor vehicle from behind. The Defendants also blamed the Plaintifi for contributing to the occurrence of the accident by failing to wear a helmet and a refiector jacket. 37. The Plaintifi admitted that she was not wearing a refiector jacket and a helmet when the accident occurred. 38. However, this court notes that the accident occurred during the day when the 2nd Defendant’s visibility could not be afiected by the Plaintifi’s failure to wear a refiective jacket. Further, the injuries sustained by the Plaintifi during the accident are not head or facial injuries that could have been prevented or mitigated if the Plaintifi had been wearing a helmet during the accident. 39. The foregoing shows that the Defendants failed to prove on a balance of probabilities that the Plaintifi’s negligent acts or omissions contributed to the occurrence of the accident. 40. Whereas the Defendants blamed the motorcycle rider for causing the accident, they did not take out a third-party notice against the motorcycle rider to join him in this suit. That being the case, this court cannot apportion liability to a party who is not a party to this suit. 41. The 2nd Defendant simply denied turning abruptly and alleged that the motorcycle rider hit the motor vehicle from behind. By alleging that the motorcycle hit the motor vehicle from behind, the evidential burden shifted to the 2nd Defendant to place before this court a motor vehicle inspection report to corroborate his assertion that the motorcycle hit the motor vehicle from behind. He did not discharge that evidential burden. 42. The foregoing shows that the uncontroverted evidence on record is that the accident occurred as a result of a collision between the motorcycle and the motor vehicle. 43. The Plaintifi, who was only a pillion passenger on the motorcycle, was neither in control of the motorcycle she had boarded nor the motor vehicle. Furthermore, this court has already made a finding that the Defendants failed to prove on a balance of probabilities that the Plaintifi was negligent at the time of the accident. 44. The two drivers owed the Plaintifi a duty of care to ensure that the Plaintifi reached her destination safe and sound. That duty of care was breached when the accident occurred, causing multiple moderate soft tissue injuries to the Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 5

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45. When confronted with circumstances almost similar to the ones obtaining in this case, Magare, J in Ondieki v Omoi & 3 others (Civil Appeal E114 of 2023) [2025] KEHC 1474 (KLR) rendered himself thus: “ 45. A mere passenger ought not to have been blamed. The lower court erred in blaming the Appellant. In Janerose Auma Ochumba v John Nyangi & another [2021] eKLR, J.R Karanjah, J posited as doth: This court’s view in that regard would be that the respondents were fully liable for the accident as the deceased being a mere passenger had no form of control of the vehicle. His presence in the vehicle was permitted and authorized by its driver who, as it were, was the controller and manager of the vehicle. There was no evidence that the deceased was a fare paying passenger. It cannot therefore be said that he disregarded his own safety as a fare paying passenger by boarding and travelling in unauthorized m/vehicle. 46. I agree, with nothing useful to add, to the sentiments of my sister, R. LagatKorir J, as captured in the case of Highland Creamers & Food Ltd v Ngetich (Civil Appeal 040 of 2023) [2024] KEHC 11128 (KLR) (25 September 2024) (Judgment) as doth: In any event, the Respondent bore no liability as he was a pillion passenger and had no control of the motorcycle. I agree with Gitari J. in Ndatho vs Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment) where she held: “………As pillion passenger, the respondent had no control of the motorcycle and could not have done anything to cause or avoid the accident……” Similarly, in West Kenya Sugar Co Limited vs Lilian Auma Saya (2020) eKLR, Njagi J. held:-“The respondent was only a passenger on the motor cycle. A passenger cannot be held liable when a vehicle he/she is travelling in is involved in accident…….” 47. 46. The net efiect is that the court erred in holding the Appellant, a pillion passenger liable. The case against the rider was not in court. The court thus erred in apportioning liability to the Appellant at 70:30. The same is set aside in toto. In lieu thereof, I substitute with an order finding the 1st and 4th Respondents to be 100% liable, jointly and severally…” It is against this backdrop that this court finds the 2nd Defendant 100% liable for the occurrence of the accident. Quantum of Damages (a) General Damages for pain and sufiering 47. The injuries pleaded by the Plaintifi in paragraph 6 of her Plaint were corroborated by the unimpeached medical evidence on record. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 6

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48. In the circumstances, this court finds and holds that the Plaintifi pleaded and proved on a balance of probabilities that, arising from the accident herein, she sustained moderate multiple soft tissue injuries assessed as harm, and psychological trauma. 49. In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore vs Geofirey Mwenda [2004] eKLR, where the Court of Appeal stated as follows: “ Having so said, 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.” 50. This court has given due regard to the parties’ authorities on quantum. 51. The Defendants urged this court to make an award of Kshs. 90,000/= under this head by relying on a 2019 authority where the court awarded Kshs. 90,000/= for multiple moderate soft tissue injuries. Given the passage of time and infiation trends in this country since the said authority was rendered, the Defendants’ submission that an award of Kshs. 90,000/= is reasonable under this head lacks the limbs to stand on in law. 52. The Plaintifi’s counsel on his part cited authorities where Plaintifis sustained more severe injuries than the ones sustained by the Plaintifi herein. Those authorities are not applicable in this case. 53. The injuries sustained by the Plaintifi herein are almost similar to the injuries sustained by the Plaintifi in Okoth v Said & another (Civil Appeal E269 of 2022) [2026] KEHC 8089 (KLR) (Civ), where the court made an award of Kshs. 150,000/= for blunt injuries to the right ankle and the pelvis. 54. Guided by the authority above, this court makes an award of Kshs. 150,000/= under this head. Future medical expenses 55. The Plaintifi pleaded in paragraph 7 of his Plaint for future medical expenses for further treatment and check-ups. 56. The Court of Appeal in Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR stated as follows regarding claims for future medical expenses: “ …We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: “And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof...” We understand that to mean that once the plaintifi pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintifi may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 7

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time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…” 57. The Plaintifi, having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintifi needed to surmount before an award under this head is made is to prove the pleaded future medical expenses. 58. The medical report dated 28th April 2024 produced by PW3 corroborated the Plaintifi’s claim for future medical expenses for anti-infiammatory drugs and psychosocial support. 59. It is against this backdrop that this court finds and holds that the Plaintifi pleaded and proved the claim for future medical expenses. 60. PW3 placed the cost of the anti-infiammatory drugs and psychosocial support at Kshs. 25,000/=. 61. However, the Plaintifi testified that she only needed future medical expenses for painkillers and medical checkups. She did not state if she needed future medical expenses for psychosocial support. 62. In the circumstances, this court is of the considered view that Kshs. 10,000/= will be reasonable future medical expenses for the Plaintifi’s painkillers and medical check-up. (b) Special Damages 63. The Plaintifi pleaded for special damages of Kshs. 5,070/= in paragraph 6 of his Plaint. 64. The receipt for Kshs. 4,000/= for the medical report issued by Dr. Ekesa, as well as receipts from NTSA and Bungoma County Referral Hospital, proved the pleaded special damages of Kshs. 5,070/=. 65. It is against this backdrop that this court awards the Plaintifi special damages of Kshs. 5,070/=. Determination 66. The upshot of the foregoing is that judgment is entered against the 2nd Defendant in the following terms:(a) Liability………………………………100% (b) General damages…………………...Kshs. 150,000/= (c) Future medical expenses…………..Kshs. 10,000/= (d) Special Damages…………………….Kshs. 5,070/= Grand Award……………………..Kshs. 165,070/= 67. The General Damages and future medical expenses will accrue interest at court rate from the date of this judgment till payment in full, while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 68. The Plaintifi will have the costs of this suit. 69. The Plaintifi’s suit against the 1st Defendant is dismissed. The 1st Defendant will bear his own costs of this suit since the Plaintifi sued him under an honest belief that the 1st Defendant, being the motor vehicle’s registered owner, was vicariously liable for the 2nd Defendant’s actions. Further, the 1st Defendant had an option to file an application to be struck out from these proceedings but elected not to do so, thereby incurring unnecessary litigation expenses. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 8

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70. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 14TH DAY OF JULY 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Bwonchiri for the Plaintifi Ms. Otieno for the 1st Defendant Mr. Maruti for the 2nd Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/634/eng@2026-07-14 9

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