kemc-2026-00635

Plaintiff. The Defendant blamed the occurrence of the accident on the Plaintiff’s and the pedal cyclist’s negligence acts enumerated in the Statement of Defence. 6. Given the divergent positions taken by the parties on the circumstances under which the accident herein occurred, this court set down this matter for hearing for the Plaintiff and the and the Defendant to prove the averments in their respective pleadings on a balance of probabilities. 7. A summary of the evidence led by the said parties is set out below. EVIDENCE Plaintiff’s Case 8. PW1 Bernard Koech testified that he was a bicycle bodaboda cyclist. He adopted his witness statement dated 28th February 2026 as his evidence in chief. He produced all the documents listed in his list of documents herein as exhibits, save for the police abstract. 9. His testimony was that the Defendant’s motor vehicle which was being driven at a high speed on the date of the accident lost control and hit his motor vehicle from behind causing him to sustain blunt injuries to the left parietal scalp, occipital scalp, left shoulder, back, left hip, and left knee, bruises on the left shoulder, both knees, and the right ankle. 10. He added that he is yet to recover from the injuries he sustained on the date of the accident. 11. He conceded in cross-examination that he was carrying two pillion passengers at the time of the accident, and that he did not know if carrying two pillion passengers was wrong. 12. He admitted that he was not wearing a helmet at the time of the accident. He further stated that he did not try to evade the motor vehicle. He reiterated that the motor vehicle hit him from behind. 13. PW2 No. 81576 PC (W) Jackline Were of Bungoma Traffic Base produced the police abstract dated 13th February 2025 (Pexh.1) showing that the accident herein was reported at Bungoma Police Station vide OB. No. 125/12/02/2025. 14. In cross – examination, she conceded that she did not investigate this case. She further stated that she had only come before this court to produce the accident’s police abstract. Defendant’s Case

page 2 of 9

15. DW1 Stephen Simali Ogugo testified that he is the Defendant’s driver stationed at the Defendant’s Bungoma office. He adopted his witness statement dated 19 th December 2025 as his evidence in chief. 16. He blamed the pedal cyclist for the accident since the pedal cyclist suddenly joined the road from his right-hand side without due regard to the roundabout rules. 17. He admitted in cross-examination that the motor vehicle’s brakes failed, causing the pedal cyclist to hit the motor vehicle. ANALYSIS & DETERMINATION 18. 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. 19. The occurrence of the accident is not disputed. The ownership of the motor vehicle is also not in dispute. 20. Further, the Defendant did not dispute the fact that DW1 was their agent/driver at the time of the accident. This means that in the event DW1 is found to have caused the accident, the Defendant will be vicariously liable for DW1’s acts or omissions. 21. In the circumstances, this court is of the humble view that the issues for determination are liability and quantum. Liability 22. The Plaintiff testified that the Defendant’s motor vehicle was being driven at a high speed causing it to lose control and knock his bicycle from behind. He conceded that he did not take any steps to avoid hitting the motor vehicle, and that he was carrying two pillion passengers. He also stated that he was not wearing a helmet at the time of the accident. 23. DW1, on the other hand, testified that the accident occurred when the motor vehicle’s brakes failed near a roundabout, causing the pedal cyclist (the Plaintiff), who reportedly failed to observe roundabout traffic rules, to hit the motor vehicle. 24. It is noteworthy that neither PW1 nor PW2 placed before this court inspection reports to prove on a balance of probabilities that the bicycle was hit from behind by the motor vehicle. Further, no sketch

page 3 of 9

plan was placed before this court for this court to fully appreciate the point of impact. 25. This court is of the considered view that, given the circumstances of this case, this was a proper case for the calling of the accident’s investigating officer, the production of the accident’s sketch plan, and the production of the motor vehicle’s and/or bicycle’s inspection reports for this court to have a clear picture of the circumstances under which the accident herein occurred. 26. In the absence of the evidence alluded to above, the evidence on record on the circumstances under which the accident occurred is largely the divergent oral testimonies by the Plaintiff and DW1. In such situations, liability is usually apportioned equally between the two drivers (see Lakhamshi v the Attorney General (1971) and Barclay – Steward Limited & Another Vs. Waiyaki [1982-88] 1 KAR 1118). 27. However, in this case, DW1 admitted that the motor vehicle’s brakes failed before the occurrence of the accident. This demonstrates that the Defendant failed to keep the motor vehicle in a proper mechanical state thus endangering the lives of other road users including the Plaintiff. 28. Given the admission above by DW1, one may be tempted to make a finding that the Defendant was 100% liable for the occurrence of the accident. 29. The facts of this case show otherwise. The Plaintiff admitted carrying two pillion passengers at the time of the accident, contrary to section 89 of the Traffic Act. He also conceded that he was not wearing a helmet at the time of the accident. Whereas the law does not expressly require a pedal cyclist to wear a helmet, it is desirable that a pedal cyclist wears a protective gear on the head for their own safety. 30. It should be remembered that the injuries sustained by the Plaintiff included head injuries. Therefore, it is safe to argue that had the Plaintiff worn protective gear on the head at the time of the accident, he would not have sustained the head injuries herein. 31. The reasons above, coupled with the Plaintiff’s admission that he did not take any steps to prevent the occurrence of the accident, incline this court to find that the Plaintiff must shoulder some blame for the occurrence of the accident. The Plaintiff cannot seek to benefit fully from his own wrongs.

page 4 of 9

32. It is given that DW1 was driving a motor vehicle at the time of the accident, while the Plaintiff was a pedal cyclist. The motor vehicle, in this case a lorry, is a lethal weapon, and due care is expected of the driver who is in control thereof (see Mary Njeri Murigi v Peter Macharia & another [2016] KEHC 3535 (KLR)). Therefore, DW1 must shoulder a greater share of the blame for the occurrence of the accident than the Plaintiff. 33. Taking the totality of the circumstances of this case into consideration, this court apportions liability between the parties herein in the ratio of 70%:30% in favour of the Plaintiff. Quantum of Damages (a) General Damages for pain and suffering 34. The Plaintiff’s testimony, when read together with the uncontroverted medical evidence on record, reveals that, arising from the accident, the Plaintiff sustained blunt injuries to the left parietal scalp, occipital scalp, left shoulder, back, left hip, and left knee, bruises on the left shoulder, both knees, and the right ankle. 35. A reading of the Plaintiff’s medical report dated 24 th February 2025 shows that at the time of medical examination, the Plaintiff had healed scars on the left shoulder, and mild tenderness on the deep back and left hip on palpation. However, these injuries were not pleaded by the Plaintiff in his Plaint. 36. The consequence of a party failing to plead an injury has been a subject of several judicial pronouncements. For instance, in Anthony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR, the Court of Appeal held thus: “We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging

page 5 of 9

that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. It also follows that a court should not make any findings on unpleaded matters…”(Emphasis added) 37. Further, in Boniface Kinyua Kathuri v David Munyoki [2020] eKLR, the High Court held thus: “The finding of the trial Magistrate in my view cannot be faulted because it is firmly anchored in the law. As observed above under Order 2 Rule 4 the law clearly stipulates that the nature of injuries suffered by a Plaintiff must be specifically pleaded and the operative word in that rule is “must” which means that it is a mandatory requirement. As aptly stated in the decision of Ibrahim J “Treadsetters Tyres Ltd”,“in cases of tortuous claims based on negligence, injuries and special damages must be specifically pleaded. They cannot be imagined or inferred. The court’s road maps are the pleadings on record if a party alleges he suffered an injury, he must particularize the same so that the defendant can specifically respond to the claims. One must plead the nature and extent of injuries suffered. This is a mandatory requirement of the law………….” .This court takes a similar position because a party cannot plead for instance that he suffered certain injuries on the head but during trial and out of the blue goes ahead to list different injuries suffered on the stomach. The omission in my view is fatal. Allowing parties to depart from his/her pleadings is undesirable and a violation of the rules because the result would be to expose the opposing party to unfair trial. A defendant in tortuous claims based on negligence should be able to know specifically what he/she is going to defend in court. When a party pleads specifically the nature and the extent of injuries like the Appellant clearly did at the

page 6 of 9

trial, but goes on to prove different nature of injuries that amounts to an ambush the same is not only unfair but a violation of the rule cited above. In that respect the Appellant really cannot blame the trial Magistrate for applying the law in the manner he did. He can only blame himself for the omission because he had the chance to amend his pleadings if he discovered that the nature and extent of injuries pleaded were not in tandem with the medical documents he was relying on. It is my considered view that the obligation placed by law on the Plaintiff in claims based on tort of negligence to specifically plead the nature and extent of injuries means that a plaintiff cannot make general claims and leave gaps to be filled by assumptions by the defendant or the court. That would be a risky venture and omission. A pleading is everything because a party is bound by his/her pleadings. Where gaps are discovered, the law provides windows/ avenues to seal the loopholes in his/her pleading which is through amendments. This court is not persuaded that because the Appellants medical evidence was not challenged or controverted by the Respondent, he was at liberty to depart from his pleadings. A party as observed above is always bound by his/her pleadings whether the same is challenged/ controverted/defended or not. The rules of procedure and the law do not change. The onus or proof remains and the trial court must be satisfied that the case has been proved to the required standard in law…” 38. Guided by the authorities above, this court will not consider the healed scars on the left shoulder and mild tenderness on the deep back and left hip on palpation in awarding general damages under this head. 39. The foregoing inclines this court to find that the Plaintiff proved on a balance of probabilities that, arising from the accident herein, he sustained multiple soft tissue injuries comprising blunt injuries to the left parietal scalp, occipital scalp, left shoulder, back, left hip, and left knee, bruises on the left shoulder, both knees, and the right ankle which were assessed as harm.

page 7 of 9

40. This court is alive to the principle that in awarding damages under this head, comparable injuries must attract comparable awards (see Stanley Maore vs Geoffrey Mwenda [2004] eKLR). 41. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in the cases hereunder. 42. In 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 43. In FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, an award of Kshs 60,000/- was enhanced to Kshs 100,000/- where the minor had sustained soft tissue injuries, which were blunt object injury to the head, neck, limbs, thorax, and abdomen. 44. In Asad Motors Limited & 2 others v Yaa (Civil Appeal 92 of 2022) [2023] KEHC 24279 (KLR) Kshs. 100,000/= was awarded for deep cuts on the forehead and upper lip, blunt object injury, and bruises to the right lower limb and loosening of the upper front tooth. 45. Finally, in Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR) the court awarded Kshs. 80,000/= for multiple soft tissue injuries. 46. Guided by the authorities above, and more particularly the Ondicho case (supra), which is the most recent case, as well as the inflation trends in this country, this court is of the considered view that an award of Kshs. 100,000/= under this head is reasonable compensation for the injuries sustained by the Plaintiff. (b) Special Damages 47. The Plaintiff pleaded at paragraph 6 of his Plaint Special Damages of Kshs. 7,330/=. The receipts for specials placed before this court by the Plaintiff proved as much. 48. Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 7,330/=. DETERMINATION

page 8 of 9

49. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:(a) Liability – - 70%:30% in favour of the Plaintiff (b) General damages - Kshs. 100,000/= (c) Special Damages - Kshs. 7,330/= Grand Award - Kshs. 107,330/= Less 30% Net Award -Kshs. 75,131/= 50. 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. 51. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 52. Judgment accordingly. Read, signed, and delivered in open court at Bungoma, this 03rd day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Kweyu for the Plaintiff Mr. Njoga for the Defendant C/A: Mr. Rioba

page 9 of 9