Lukhale v Wasike & another (Civil Case E513 of 2024) [2026] KEMC 645 (KLR)

motor vehicle registration number KCR 036 M, which was in possession of the 1st Defendant, that had been negligently parked. 3. The Plaintiff further pleaded that the accident caused her severe bodily injuries set out in paragraph 6 of the Plaint, which she seeks compensation. 4. The Plaintiff blamed the accident on negligence by the motor vehicle’s driver as enumerated in paragraph 5 of the Plaint. 5. It was further averred by the Plaintiff that the Defendants were vicariously liable for the negligent acts and omissions of the motor vehicle driver. 6. The Defendants entered appearance and filed an Amended Statement of Defence denying being the registered owners and beneficial owners of the motor vehicle. 7. The Defendants admitted that the accident herein occurred on 27 th October 2024 involving the 2nd Defendant’s motor vehicle registration number KCR 036 M and a motorcycle registration number KMGF 393 E with a rider and two pillion passengers. 8. However, the Defendants took the position that the accident was caused by negligence on the part of the motorcycle rider and the two pillion passengers, as particularized in paragraph 6A of the amended Defence. 9. The Defendants prayed that this case be dismissed with costs.

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10. The Plaintiff replied to the Defendant’s amended Defence through a Reply to the Amended Statement of Defence dated 17 th September 2025, reiterating the contents of her Plaint. EVIDENCE Plaintiff’s Case 11. PW1 Dorcus Nelima Lukhale adopted her witness statement dated 21st November 2024 as her evidence in chief. 12. She recalled that on the date of the accident, the motorcycle she had boarded with her husband rammed into the Defendants’ motor vehicle, which had been parked on the road without any warning signs, causing her to sustain the bodily injuries pleaded in her Plaint. 13. She also produced all the documents listed in her list of documents herein as exhibits. 14. She stated in cross-examination that the motorcycle hit the motor vehicle from behind. Defendants’ Case 15. The Defendants did not call any witnesses to substantiate the allegations pleaded in their Statement of Defence. 16. However, on 03rd February 2026, the parties herein recorded a consent permitting the Defendants to produce the Plaintiff’s second medical examination report dated 26th November 2025 by Dr. Oketch Protas Were as an exhibit. ANALYSIS & DETERMINATION

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17. This court has given due regard to the pleadings filed herein, the evidence on record, the written submissions filed, as well as the authorities relied upon by the parties. 18. It is common ground that the accident herein occurred. It is also not disputed that the Plaintiff was injured as a result of the accident herein. Further, the parties herein are in agreement that the 1 st Defendant was the motor vehicle’s driver at the time of the accident, while the 2nd Defendant was the said motor vehicle’s registered owner. 19. Given the foregoing, the issues for determination is liability and quantum. Liability 20. There is no dispute that the Plaintiff was a pillion passenger on the motorcycle at the time of the accident. She blamed the motor vehicle’s owner and driver for the occurrence of the accident, given that the motorcycle she boarded hit the motor vehicle from behind after the motor vehicle had been parked on the road without any warning signs. 21. The Defendants, on the other hand, blamed the Plaintiff and the motorcycle rider for the occurrence of the accident as set out in their Statement of Defence. 22. Whereas the Defendants blamed the accident on the motorcycle rider’s negligence and the Plaintiff’s negligence, the Defendants did not take out a third-party notice against the motorcycle rider.

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Therefore, this court cannot apportion liability to the motorcycle rider who is not a party to this suit. This court draws inspiration from Mbiti v Maingi & another (Civil Appeal E77 of 2022) [2023] KEHC 20833 (KLR), where it was held as follows: The attribution of negligence to a non party, like the rider was completely unhelpful in the case EN v Hussein Dairy Limited & 3 others [2020] eKLR, the Court stated as doth: “I agree with the Appellant’s submissions that this point was moot and given that in the absence of the third party, the trial magistrate could not apportion liability in the manner he did. 23. The above position was also adopted in Pauline Wangare Mburu v Benedict Raymond Kutondo NKU HCCC No. 210 of 2003 [2005] eKLR, where the court observed as follows: The defendant did not deem it necessary to issue a third-party notice to enjoin the owner of motor vehicle registration number KAH 129 V to this suit. In the circumstances, therefore, it would be moot for this court to apportion liability to a person who is not a party to this suit. 24. In any event, the Defendants did not call any witnesses to substantiate the particulars of negligence against the Plaintiff, and the motorcycle rider pleaded in the Plaint. In the circumstances, the particulars of negligence pleaded in the Defendants’ Statement of

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Defence remained mere allegations which this court will not consider in determining liability in this case. 25. The Plaintiff’s evidence on the circumstances under which the accident occurred remained unshaken even after cross-examination, hence this court’s finding that the accident occurred when the motorcycle the Plaintiff had boarded rammed into the Defendants’ motor vehicle, which had been parked on the road without any warning signs 26. There is no doubt that the motorcycle driver and the motor vehicle driver owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safe and sound. The drivers herein breached the duty of care they owed the Plaintiff when the Plaintiff failed to reach her destination safely. 27. The liability of a passenger in an accident is well settled in this jurisdiction. In Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR, 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. 28. The authority above shows that in the absence of evidence to prove negligence on the part of a passenger, a passenger cannot be

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held liable for the causation of an accident. (See also Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). 29. Guided by the authorities above, the question that this court must answer at this stage is whether, based on the evidence on record, the Plaintiff was negligent. 30. The Plaintiff admitted that at the time of the accident, she had boarded the motorcycle with her husband. Further, there is nowhere in her witness statement, adopted as her evidence in chief, that she stated that she wore a helmet at the time of the accident. 31. This court notes that the injuries pleaded by the Plaintiff included a head injury. This court takes the view that had the Plaintiff worn a helmet at the time of the accident, she would probably not have sustained the head injury. 32. The question of the consequence of a pillion passenger not wearing a helmet at the time of the accident and boarding a motorcycle as an excess passenger was answered in the authorities below. 33. In Rosemary Kaari Murithi vs. Benson Njeru Muthithi & 3 Others (2020) eKLR the court reasoned as follows; “I am also inclined to find that a person who voluntarily gets on a boda boda when he/she finds that there are more than one should equally be held accountable and hence culpable…..”

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34. In Mwangi & another v Olum (Suing as the Legal Admin of the Estate of the Late Alice Akoth Okeyo - Deceased) ((Suing as the Legal Admin of the Estate of the Late Alice Akoth Okeyo - Deceased)) (Civil Appeal 089 of 2023) [2025] KEHC 7945 (KLR), Mwamuye J rendered himself doth: “Applying these principles, it is true that the Deceased had no control over how the rider steered or managed the motorcycle. However, there is evidence that she voluntarily boarded a motorcycle that was manifestly overloaded. By so doing, she assumed a known risk, particularly in view of the common knowledge that a motorcycle’s maneuverability and stability are seriously compromised when overloaded and therefore equally contributed to the risk. Moreover, there was no evidence adduced at trial that the Deceased was wearing a helmet or any protective gear. This omission fortifies the conclusion that she failed to take reasonable measures for her own safety. Although such failure is not always determinative, it is indeed one factor that helps establish contributory negligence due to lack of ordinary care for one’s well-being.” 35. Guided by the authorities above, the Plaintiff must shoulder some blame for the injuries she sustained as a result of the accident.

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36. Taking the totality of the circumstances of this accident into consideration, this court apportions liability in the ratio of 80%:20% in favour of the Plaintiff. Quantum (a) 37. General Damages for Pain and Suffering The Plaintiff pleaded in paragraph 6 of her Plaint that the accident caused her to sustain blunt injuries to the right parietal scalp, neck, chest, back, abdomen, and left shoulder. 38. The Plaintiff’s medical evidence on record and the Plaintiff’s second medical report dated 26th November 2025 by Dr. Were corroborated the Plaintiff’s averments in the Plaint on the injuries she 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 her to sustain blunt injuries to the right parietal scalp, neck, chest, back, abdomen, and left shoulder. 40. The law in this jurisdiction on the award of damages for accident injuries is that, in awarding damages, is that 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.” 41. This court has given due regard to the written submissions on record on quantum. 42. 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. 43. 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. 44. In the circumstances, this court makes an award of Kshs. 150,000/= under this head. (b) Special Damages

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45. The Plaintiff pleaded for Special Damages of Kshs. 6,550/=. The receipts produced by the Plaintiff proved the pleaded Special Damages. 46. It is against this backdrop that this court makes an award of Kshs. 6,550/= under this head. DETERMINATION 47. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: a) Liability………………………………………80%:20% in favour of the Plaintiff b) General Damages…………………...………Kshs. 150,000/= c) Special Damages……………………...…….Kshs. 6,550/= Grand Award……………………… Kshs. 156,550/= Less 20% Net Award………………………………………Kshs. 125,240/= 48. 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.

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49. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 50. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 10th day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Shikhu for the Plaintiff Mr. Odongo for the Defendants C/A: Mr. Rioba

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