Omondi v Yunnan International Construction Company Limited (Civil Case E044 of 2025) [2026] KEMC 639 (KLR)

5. The Defendant also blamed the matatu driver’s negligence for the occurrence of the accident. 6. It is against this backdrop that this court 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 7. PW1 William Omondi Owuor is the Plaintiff’s father. He testified on behalf of the Plaintiff, who, according to the evidence on record, was 16 years old at the time of the accident. 8. He also produced all the documents on the Plaintiff’s list of documents herein, save for the medical report and the police abstract. 9. His testimony was that the accident occurred when the matatu the Plaintiff had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 10. This caused the shovel’s driver to abruptly swerve to the left, thus ramming into the matatu, leading to the occurrence of the accident. 11. He conceded in cross-examination that he did not witness the occurrence of the accident. He added that the Plaintiff had recovered from the injuries sustained in the accident. 12. PW2 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 02nd January 2025 and the receipt for Kshs. 6,000/= as exhibits. 13. His testimony was that arising from the accident, the Plaintiff sustained blunt injuries to the head, back, chest, right hand, and right leg. 14. In cross-examination, he stated that the Plaintiff must have fully recovered from the injuries by now.

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15. PW3 Elias Adoka, a Clinical Officer at Bungoma County Referral Hospital, produced the Plaintiff’s P3 form dated 31st December 2024 and his outpatient card from Bungoma County Referral Hospital as exhibits corroborating PW1’s testimony that the Plaintiff sustained multiple soft tissue injuries as a result of the accident. 16. He stated in cross-examination that the Plaintiff must have fully recovered from the accident injuries by now. 17. PW4 No. 76835 PC Isaac Kimani Njuguna of Bungoma Traffic produced the police abstract showing that the accident herein occurred on 29th December 2024 along Bungoma – Malaba road at Mayanja bridge involving motor vehicle registration number KHMA 071 P shovel, and motor vehicle registration number KAU 295 N Toyota Hiace Matatu. 18. He added that the Plaintiff was among the people injured as a result of the accident. 19. He conceded in cross-examination that he was not the accident’s investigating officer, and that he did not visit the scene. He could not tell the circumstances under which the accident occurred. Defendant’s Case 20. The Defendant did not call any witnesses to substantiate the averments in their Statement of Defence. In the circumstances, the averments in the Defendant’s Statement of Defence remained mere allegations which this court will not consider in determining this case in line with the holding in Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya [2020] eKLR, where the court stated thus: “Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: -

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“In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.” ANALYSIS AND DETERMINATION 21. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 22. It is common ground that the accident herein occurred, causing the Plaintiff to sustain severe bodily injuries. There is no contest that the shovel was owned by the Defendant at the time of the accident. 23. Further, there is no evidence on record to show that at the time of the accident, the shovel’s driver was not driving the shovel for the benefit of the Defendant at the time of the accident herein. Therefore, in the event this court finds the shovel’s driver negligent for the occurrence of the accident, the Defendant will be vicariously liable for their driver’s acts or omissions. 24. The foregoing inclines this court to find and hold that the issues that commend to this court for determination are liability and quantum. Liability 25. From the onset, it is worth noting that the Plaintiff herein was 16 years old at the time of the accident. The Plaintiff’s counsel chose not to call the Plaintiff to testify on the circumstances under which the accident occurred. 26. The Plaintiff’s counsel instead chose to have the Plaintiff’s father, who did not witness the accident, testify on behalf of the Plaintiff on the circumstances under which the accident occurred. 27. It would appear that the Plaintiff’s counsel chose to have the Plaintiff’s father testify on behalf of the Plaintiff by placing reliance on

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Order 32 Rule 1 of the Civil Procedure Rules, which permits parents or guardians or next friends to institute suits on behalf of minors in the following terms: (1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. (2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed. 28. The operative word in the provisions of the law above is ‘institute’. Nothing in Order 32 Rule 1 of the Civil Procedure Rules suggests that in every case where a person institutes a suit on behalf of a minor, such a person can also testify on behalf of the minor. 29. However, it is not lost to this court that in instances where the minor is of tender age, such a minor, generally, cannot be a competent witness. In such situations, the minor’s parent or next friend can testify on behalf of the minor. 30. This court is also aware that in this jurisdiction, children under the age of ten years cannot be held to have contributed to the occurrence of an accident unless evidence shows that they understood the consequences of their acts or omissions. This means that it may not be prudent for a court to demand that a child under the age of ten years testifies before the court for the court to determine whether such a child was negligent. 31. The foregoing shows that a next friend does not automatically take the place of the minor as a witness every time a minor sues through their next friend. In appropriate instances, particularly where the minor is a competent and compellable witness, the minor must testify.

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32. The main reasons behind minors suing through their next friend are that minors lack capacity, to enable minors to access justice, and to protect the minors from being condemned to pay costs in the event their suit fails, nothing more. 33. The minor in this case was 17 years old at the time of the incident. A 17-year-old child, barring any mental incapacity of the minor, is a competent and compellable witness. Therefore, it was prudent for the Plaintiff’s counsel to call the minor as a witness. 34. Given the above, it follows that the evidence led by PW1 on behalf of the minor on the circumstances under which the accident occurred was of no evidential value. 35. The minor’s saving grace was that the evidence by PW1 and PW4 proved on a balance of probabilities that the minor was a passenger at the time of the accident and that the accident involved the matatu and the shovel. 36. The minor also pleaded the doctrine of res ipsa loquitor. Accidents do not just occur. They are caused. 37. The minor was neither in control of the matatu nor the shovel. Further, the Defendant did not prove the particulars of negligence they attributed to the minor. In the circumstances, the Plaintiff cannot be blamed for the occurrence of the accident in line with the holding in Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Anothim (2017) eKLR, where the court held; “The only time a passenger maybe held to be liable in my view, is when for instance it is shown that he did not fasten his seat belt or was trying to jump out of the vehicle when it has not stopped. That way, some contributory negligence could be attached to him.” 38. The matatu driver and the shovel driver owed the Plaintiff a duty of care to ensure that the Plaintiff reached his destination safe and

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sound. That duty of care was breached when the accident occurred, causing bodily injuries to the Plaintiff. 39. The fact that the minor was just a passenger who was neither in control of the matatu nor the shovel established a prima facie case of negligence on the part of the shovel’s driver, which could only be dislodged by the shovel’s driver. Unfortunately, the Defendant chose not to call the shovel driver as a witness in this case. 40. to The foregoing shows that the Defendant deliberately chose not lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 41. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 42. Guided by the authority above, it follows that the failure by the Defendant’s driver to testify only leads to the inevitable conclusion that had the said driver testified, his evidence would have been adverse.

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43. The long and short of it all is that the Defendant failed to dislodge the prima facie case of negligence established against them by the Plaintiff. In the circumstances, the Defendant must be held liable for their driver’s negligence. 44. The foregoing inclines this court to find and hold the Defendant 100% liable for the occurrence of the accident. Quantum (a) 45. General Damages for Pain and Suffering The Plaintiff pleaded in paragraph 6 of her Plaint that the accident caused him to sustain blunt injuries to the head, back, chest, right hand, and right leg. 46. The Plaintiff’s medical evidence on record produced by PW2 and PW3 corroborated the Plaintiff’s averments in his Plaint on the injuries he sustained as a result of the accident. 47. 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 head, back, chest, right hand, and right leg. 48. 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: -

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“...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.” 49. This court has given due regard to the written submissions on record on quantum. 50. 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. 51. In Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR), the court made an award of Kshs. 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. 52. In the circumstances, this court makes an award of Kshs. 150,000/= under this head. (b) Special Damages

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53. The Plaintiff pleaded for Special Damages of Kshs. 6,550/=. The receipts produced by the Plaintiff proved the pleaded Special Damages. 54. It is against this backdrop that this court makes an award of Kshs. 6,550/= under this head. DETERMINATION 55. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: a) Liability………………………………………100% b) General Damages…………………...………Kshs. 150,000/= c) Special Damages……………………...…….Kshs. 6,550/= Total Award……………………… Kshs. 156,550/= 56. 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. 57. The Plaintiff will have the costs of this suit. 58. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 17th day of March 2026 T.O. OMONO

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SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Shikhu for the Plaintiff Ms. Kinyanjui for the Defendant C/A: Mr. Rioba

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