BNC v Auto Mega Ltd & another (Civil Case E028 of 2025) [2026] KEMC 637 (KLR)

4. Arising from the accident herein, the Plaintifi sustained the bodily injuries enumerated in paragraph 6 of the Plaint hence this suit for general damages and special damages. 5. The 1st Defendant neither entered appearance nor filed a Statement of Defence despite being duly served with the Plaintifi’s pleadings and the Summons to Enter Appearance. Consequently, an interlocutory judgment was entered against them. 6. The 2nd Defendant entered appearance and filed a Statement of Defence dated 28th February 2025 denying the occurrence of the accident and the particulars of negligence attributed to them by the Plaintifi. 7. The 2nd Defendant pleaded in the alternative that if the accident occurred, then the same was wholly caused or contributed to by the Plaintifi’s acts of negligence enumerated in the Statement of Defence. 8. In view of the divergent positions taken by the Plaintifi and the 2nd Defendant on the circumstances under which this accident occurred, this matter proceeded to full hearing for the parties to prove the particulars of negligence pleaded in their pleadings. 9. A summary of the evidence led by the parties is set out below. Evidence Plaintifi ’s Case 10. PW1 AWM is the minor’s father. He adopted his witness statement dated 18th January 2025 as his evidence in chief. He produced all the documents listed in the Plaintifi’s list of documents herein as exhibits, save for the police abstract and the medical report. 11. His evidence was that on the date of the incident, the Plaintifi was walking on the left side of Namwacha – Sang’alo road with her fellow footballers when motor vehicle registration number KDC 540 D, which was being driven at a high speed, veered ofi the road and knocked them. 12. He added that the Plaintifi’s right leg had not fully healed, and that the Plaintifi was still undergoing treatment at Ranje Hospital through the application of ointment on the leg. 13. In cross-examination, he reiterated that he was still incurring expenses to treat the Plaintifi. 14. PW2 No. 7xxx5 PC Isaac Kimani Njuguna produced the accident’s police abstract dated 24th January 2025 showing that the accident herein occurred on 02nd December 2024 at around 1840hrs as Sang’alo Primary School involving motor vehicle registration number KDC 540 D and pedestrians, and that the same was booked at Bungoma Police Station vide OB. No. xx/x/xx/2024. 15. He added that the accident was investigated by CPL Rebecca, who had since retired. 16. He stated that the accident occurred when the motor vehicle’s driver lost control due to mechanical failure, causing the motor vehicle to injure the Plaintifi and several other people, including Joan Nasimiyu, Valerie Mutoro, and Scovia Nekesa. 17. In cross – examination, he conceded that he neither investigated the trafic case nor visited the scene. He admitted that he did not have the motor vehicle’s inspection report and that he was not aware of the motor vehicle’s mechanical problem. 18. PW3 Dr. Ekesa Mulyanga produced the Plaintifi’s medical report dated 02nd December 2024 showing that the accident caused the Plaintifi to sustain soft tissue injuries, comprising bruises on the left side https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 2

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of the face, back pains, painful swollen left elbow joint, and tenderness on medial aspect of left elbow joint. 19. He concluded that the Plaintifi sufiered soft tissue injuries and psychological trauma as a result of the accident. 20. He added that the Plaintifi needed anti-infiammatory agents and psychosocial support. 21. He also stated that he charged the Plaintifi Kshs. 4,000/= for preparing the medical report. He produced the medical report and the receipt for Kshs. 4,000/= as exhibits. 2nd Defendants’ Case 22. DW1 Isaac Yator adopted his witness statement dated 24th October 2025 as his evidence in chief. His testimony was that he was a passenger in the Defendants’ motor vehicle at the time of the accident when they saw a rowdy crowd running and cheering along the road. 23. He added that the motor vehicle driver hooted and slowed down almost to a halt but the rowdy crowd came into contact with the motor vehicle, leading to the occurrence of the accident. 24. DW2 Dalmas Okumu Wamalwa also adopted his witness statement dated 24th October 2025 as his evidence in chief. 25. In cross-examination, he stated that other than hooting, he slowed down and applied brakes to prevent the occurrence of the accident. He stated that the point of impact was on his motor vehicle’s left front bumper. He denied losing control of the motor vehicle before the occurrence of the accident. 26. He further stated that the accident occurred in the middle of the road. Parties’ Written Submissions Plaintifi ’s Written Submissions 27. The Plaintifi submitted that PW2’s evidence that the motor vehicle’s driver lost control of the motor vehicle after the motor vehicle had developed mechanical problems, and given that the Plaintifi was knocked from behind was suficient to hold the Defendants’ 100% liable for the occurrence of the accident. 28. On quantum, the Plaintifi urged this court to make an award of Kshs. 500,000/= by placing reliance on authorities where Plaintifis sufiered injuries like fractures. 29. It was also submitted by the Plaintifi that given that the Plaintifi had not fully recovered from the injuries sustained in the accident, and award of Kshs. 100,000/= was suficient for further medication. The Plaintifi’s counsel relied on Tracom Limited & Another v Hassan Mohamed Adan (2009) eKLR for the position that it is enough for a Plaintifi to plead for future medical expenses without giving an exact figure for the medical expenses. 30. The Plaintifi also submitted that the receipts on record had proved the pleaded Special Damages of Kshs. 4,550/=, hence this court ought to award the same. The Plaintifi further urged this court to award her the costs of this suit. 2nd Defendant’s Written Submissions 31. The 2nd Defendant submitted that the issues for determination were whether the Plaintifi proved negligence on the part of the Defendant, whether liability if any can be attributed to the 2nd Defendant, https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 3

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whether the Plaintifi proved the alleged injuries and damages, and whether the Plaintifi is entitled to the reliefs sought. 32. It was the 2nd Defendant’s position that the Plaintifi had not proved her case on a balance of probabilities since she had not adduced cogent and credible evidence to establish negligence against the 2nd Defendant. 33. On liability and negligence, the 2nd Defendant submitted that the accident occurred when the crowd which the Plaintifi was part of failed to give way to the motor vehicle that the 2nd Defendant was driving contrary to the provisions of the Traffic Act and the Highway Code which require pedestrians to use the road with due care to their own safety. The 2nd Defendant further submitted that the failure by the Plaintifi to call independent witnesses was fatal to the Plaintifi’s case. 34. The 2nd Defendant further took the position that by the Plaintifi encroaching unto the road, and ignoring the motor vehicle’s hooting, she created a dangerous situation for herself and the motor vehicle thereby contributing to the occurrence of the accident. 35. Regarding quantum, the 2nd Defendant submitted that the Plaintifi failed to prove the alleged injuries. He submitted that the medical report dated 02nd December 2024 by Dr. Ekesa was filled based on the Plaintifi’s history which is subjective and unverified. He added that given that the Plaintifi’s P3 form was dated 03rd December 2024, the same could not have been relied upon by Dr. Ekesa during the filling of the medical report dated 02nd December 2024. 36. The 2nd Defendant also took issue with Dr. Ekesa’s finding that the Plaintifi sufiered psychological trauma as a result of the accident yet he neither conducted the Plaintifi’s psychiatric evaluation nor was he a qualified psychiatrist. He placed reliance on Daniel Odhiambo Ngesa V Daniel Otieno Owino & Another (2020) KEHC 5959 (KLR) for the position that expert evidence, like a medical report, should not be considered in a vacuum but must be supported by relevant treatment notes. 37. In conclusion, the 2nd Defendant submitted that the Plaintifi had not proved the claim for future medical expenses pleaded in her Plaint. He cited several authorities including Tracom Limited & Another v Hassan Mohammed Adan (2009) eKLR to buttress the position that future medical expenses must not only be pleaded but must be proved before the same is awarded. ANALYSIS & DETERMINATION 38. This court has given due regard to the pleadings, evidence, the written submissions, as well as the authorities on record. 39. It is common ground that the accident herein occurred and that the 2nd Defendant was the driver of motor vehicle registration number KDC 540 D at the time of the accident. 40. There is also no dispute that the Plaintifi was involved in the accident. Further, there is no evidence on record to controvert the contents of the motor vehicle copy of records dated 02nd December 2024 showing that the 1st Defendant owned the motor vehicle herein at the time of the accident. 41. In addition to the above, there is no evidence on record to controvert the Plaintifi’s averment that the 2nd Defendant was the 1st Defendant’s agent/servant at the time of the accident. The efiect of this is that in the event the 1st Defendant will be vicariously liable for the 2nd Defendant’s actions in the event this court finds the 2nd Defendant liable for the occurrence of the accident. 42. Given the reasons above, this court is of the considered view that the issues for determination are liability and quantum. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 4

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Liability 43. The evidence led by the Plaintifi on liability is that on the date of the accident, she was walking with her fellow footballers on the left side of the road from a games competition when the motor vehicle lost control, veered ofi the road, and knocked them. 44. PW2 who testified in support of the Plaintifi’s case stated that the motor vehicle lost control after developing mechanical problems. However, he was at pains to explain how he arrived at that conclusion yet he neither visited the scene nor investigated the trafic case. He also conceded that he had not produced the motor vehicle’s inspection report to support his assertion that the motor vehicle had developed a mechanical problem before veering ofi the road and causing the accident. 45. DW1 and DW2 on the other hand maintained that the accident occurred when a rowdy crowd that the Plaintifi was part failed to give way despite DW2 hooting and applying brakes. 46. This court agrees with the submission by the 2nd Defendant that PW2 could not speak to the circumstances of the accident since he neither visited the scene nor investigated the accident. Further, whereas PW2 stated that the motor vehicle had a mechanical problem on the date of the accident, that allegation was not supported by the evidence on record due to the failure by the Plaintifi to produce the motor vehicle’s inspection report. 47. An analysis of the evidence on record reveals that the Plaintifi was part of a crowd walking on the left side of the road from a football match , only to be knocked down by the 2nd Defendant. 48. The question of negligence in road accident cases is usually settled by a court determining who among the road users breached the duty of care owed to the other road users. 49. The Highway Code is explicit that road users - pedestrians, cyclists, and motorists, have a right to access the road, but they should always act responsibly to ensure safety for all. 50. The above shows that the Plaintifi and the 2nd Defendant being road users owed each other a duty of care. 51. Turning to the facts of this case, this court notes that the Highway Code also provides that where there is no walkway on a road, a pedestrian is required to keep to the right-hand side of the road to enable the pedestrian see oncoming trafic. The pedestrian is further required to walk in a single file, especially on narrow roads. 52. The Plaintifi in this case breached the Highway Code by walking on the left side of the road and walking in a crowd. By walking in a crowd on the left side of the road in breach of the Highway Code, the Plaintifi was negligent by exposing herself to danger, thereby contributing to the occurrence of the accident. 53. Breach of the Highway Code by a road user attracts sanctions when determining liability in a trafic case. This position is fortified by Section 68 (3) of the Traffic Act, which provides that: “ A failure on the part of any person to observe any provisions of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in the proceedings be relied upon by any party to the proceedings as tending to establish to negative any liability which is in question in those proceedings.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 5

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54. The above is in line with the legal maxim that one cannot profit from their own wrong (ex turpi causa non oritur actio). Therefore, it follows that the Plaintifi, having breached the Highway Code, must be held to have contributed to the occurrence of the accident. 55. Be that as it may, even if the Plaintifi was in the wrong, that did not give the 2nd Defendant a license to knock down the Plaintifi. The 2nd Defendant still owed the Plaintifi a duty of care. The 2nd Defendant also owed the Plaintifi a higher duty of care given that he was driving a motor vehicle, which is a dangerous machine if not handled well. To this end, this court places reliance on Monda v Suji & another [Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased] [2023] KEHC 2778 [KLR], where Aburili J posited as follows: “ 34. In Masembe v Sugar Corporation and another [2002] 2 EA 434, it was held that: “When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” 35. Further, in the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, this court expressed itself thus;“A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.” 56. The analysis above inclines this court to find that the Plaintifi’s and the 2nd Defendant’s negligent acts contributed to the occurrence of the accident. 57. Given the reasons above, and taking the totality of the circumstances of this case into consideration, this court apportions liability in the ratio of 80%:20% in favour of the Plaintifi as against the Defendants jointly and severally. Quantum of Damages (a) General Damages for pain and sufiering 58. The Plaintifi relied on her P3 form dated 02nd December 2024 (Pexh.5), treatment notes from Bungoma County Referral Hospital dated 02nd December 2024, and the medical report dated 02nd December 2024 (Pexh. 3 ), to prove that she sustained the injuries pleaded in the Plaint. 59. The 2nd Defendant submitted that the medical report herein was based on Dr. Ekesa’s assumptions since he relied on a P3 form dated 03rd December 2024 to fill a medical report dated 02nd December 2024. The 2nd Defendant also took issue with Dr. Ekesa’s opinion that the Plaintifi would need psychosocial support for the psychological trauma she reportedly sufiered as a result of the accident. It was the 2nd Defendant’s position that such an opinion could only be made by a psychiatrist, which Dr. Ekesa was not. 60. A reading of the Plaintifi’s P3 form shows that the same is not dated 03rd December 2024 as submitted by the 2nd Defendant. Therefore, the 2nd Defendant’s attempt to impeach Dr. Ekesa’s medical report based on Dr. Ekesa reportedly relying on a P3 form filled after filling his medical report lacks any limbs to stand on. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 6

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61. On whether Dr. Ekesa could make a finding that the Plaintifi sufiered psychological trauma as a result of the accident despite his not being a psychiatrist, this court notes that Dr. Ekesa’s letterhead describes him as a specialist general surgeon and trauma surgeon. This court is of the considered view that a trauma surgeon possesses adequate skill and knowledge to assess whether a patient sufiered psychological trauma as a result of an accident. 62. The foregoing shows that the 2nd Defendant failed to impeach the Plaintifi’s evidence on the injuries she sustained. In the circumstances, this court finds and holds that the Plaintifi proved on a balance of probabilities that she sustained the injuries pleaded in her Plaint. 63. 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.” 64. The Plaintifi submitted that an award of Kshs. 500,000/= was suficient under this head. The 2nd Defendant did not submit on the award this court ought to make under this head. 65. This court notes that the authority relied upon by the Plaintifi for an award of Kshs. 500,000/= is not applicable in this case since the said authority refers to a Plaintifi who sustained more severe injuries than the ones sustained by the Plaintifi in this case. 66. The injuries sustained by the Plaintifi herein were almost similar to the injuries sustained by the Plaintifi 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 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 67. 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. 68. 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. 69. 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. 70. Guided by the authorities above, and more particularly the Ondiso case (supra) determined in April 2025, and considering infiation trends in this country since April 2025 to date, this court makes an award of Kshs. 100,000/= under this head. (b) Future medical expenses 71. The Plaintifi pleaded for future medical expenses in her Plaint. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 7

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72. 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 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…” 73. 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. 74. The medical report by Dr. Ekesa shows that the Plaintifi needs anti-infiammatory agents and psychosocial support. The Plaintifi’s father, on the other hand, testified that the Plaintifi was still undergoing treatment at Ranje hospital for her injured right leg. He added that the said leg was being treated through the application of ointment. However, PW1 did not state whether the Plaintifi needed any psychosocial support. 75. The 2nd Defendant submitted that this court should not make an award under this head in the absence of receipts and treatment notes to support the same. 76. This court disagrees with the 2nd Defendant’s insistence on receipts and treatment notes before an award is made under this head since it is a matter of public notoriety in this jurisdiction that most people buy painkillers over the counter without prescriptions and receipts. 77. The foregoing shows that the Plaintifi pleaded and proved the need for future medical expenses. 78. Having considered the nature of injuries sustained by the Plaintifi, and her current health complaints, it is this court’s considered view that an award of Kshs. 10,000/= will be suficient compensation under this head. (c) Special Damages 79. The Plaintifi pleaded at paragraph 6 of the Plaint Special Damages of Kshs. 4,000/= for the medical report, and Kshs. 550/= for the copy of records. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 8

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80. The Plaintifi produced a receipt for Kshs. 550/= for the copy of records (Pexh.6) and a receipt for Kshs. 4,000/= (Pexh.4) for the medical report. 81. Given the above, this court finds and holds that the Plaintifi pleaded and proved Special Damages of Kshs. 4,550/=. Disposition 82. The upshot of the foregoing is that judgment is hereby entered jointly and severally against the Defendants in the following terms:(a) Liability – 80%:20% in favour of the Plaintifi (b) General damages - Kshs. 100,000/= (c) Future medical expenses - Kshs. 10,000/= (d) Special Damages - Kshs. 4,550/= Grand Award -Kshs. 114,550/= Less 20% Net Award - Kshs. 91,640/= 83. 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. 84. The Plaintifi will have the costs of this suit. 85. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 10TH DAY OF FEBRUARY 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintifi Ms. Muthoni for the 2nd Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/637/eng@2026-02-10 9

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