Wamalwa v Albrima General Cargo Ltd (Civil Case E179 of 2025) [2026] KEMC 649 (KLR)

3. The Plaintiff blamed the occurrence of the accident on the Defendant’s negligence as set out in paragraph 4 of her Plaint. 4. The Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served with all the Summons to Enter Appearance and the Plaint. Consequently, this matter proceeded by way of formal proof. EVIDENCE Plaintiff’s case 5. PW1 Mary Goreti Wamalwa adopted her witness statement dated 25th April 2025 as her evidence in chief. Her testimony was that the accident herein occurred when she was aboard the motorcycle, which was coming from the Malaba general direction, only for the motor vehicle, which was coming from the Bungoma general direction, headed to the Malaba general direction, veered off its lane onto the motorcycle’s lane and knocked them down. 6. She added that the accident caused her to sustain injuries on the neck, chest, back, left upper arm, and left elbow joint. She sought treatment from Bungoma County Referral Hospital. 7. She also stated that she still takes painkillers for the injuries she sustained as a result of the accident. 8. She produced all the documents in her lists of documents herein as exhibits. ANALYSIS & DETERMINATION 9. This court has given due regard to the pleadings, the evidence on record, the written submissions filed, as well as the authorities cited by the Plaintiff. 10.The law in this jurisdiction is that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, reiterates this legal principle as follows:

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‘’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’ 11.In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, it was stated that a Court should not take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. 12.Similarly, in Kirugi and Another Vs Kabiya & 3 others (1987) KLR 347, the Court of Appeal held that; “The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.” 13.A keen reading of the authorities above reveals that the Plaintiff, even in the absence of evidence to the contrary by the Defendant, like in the instant case, is duty-bound to prove his case on a balance of probabilities. 14.Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved her case on a balance of probabilities. 15.The police abstract dated 03rd March 2025(Pexh.9) shows that the accident herein involving the motorcycle and the motor vehicle occurred on 01 st March 2025 at around 1030hrs at Kimwanga area along Bungoma – Malaba road. It also shows that the said accident was reported at Bungoma Police Station vide OB. No. 44/01/03/2025. 16.In addition to the above, the said police abstract reveals that the Plaintiff, who was a pillion passenger, was injured as a result of the accident.

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17.The copy of records dated 01st March 2025 (Pexh. 6), on the other hand, shows that the Defendant was the motor vehicle’s owner at the time of the accident. 18.The police abstract and the copy of records herein are public documents. The law in this jurisdiction is that there is a rebuttable presumption of truth in the entries made by public officers in public documents (see section 83 of the Evidence Act). 19.In the absence of evidence to controvert the contents of the above public documents, this court is inclined to find that the accident herein occurred as set out in the police abstract, that the Plaintiff was injured as a result of the said accident, and that the Defendant owned the motor vehicle at the time of the accident. 20.Given the foregoing, this court is of the considered view that the only issues for determination are liability and quantum. Liability 21.The evidence on record shows that the Plaintiff was a pillion passenger on the motorcycle at the time of the accident. Therefore, she was neither in control of the motorcycle nor of the motor vehicle involved in the accident. 22.The uncontroverted direct evidence by the Plaintiff on the circumstances under which the accident occurred shows that the accident occurred when the motor vehicle veered off its lane onto the motorcycle’s lane. 23.Motor vehicles, if properly driven and maintained, do not just veer off the road on their own. Accidents do not just occur; they are caused either by acts of God, human error, or mechanical failure. There is nothing on record to suggest that an act of God caused the accident herein.

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24.The accident herein can only be attributed to the motor vehicle’s driver's negligence or the motor vehicle’s mechanical failure. 25.It goes without saying that the motor vehicle and the motorcycle owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safely. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 26.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. 27.The authority above shows that in the absence of evidence to prove negligence on the part of a passenger, a passenger cannot be held liable for the causation of an accident. (See also Rosemary Wanjiku Kungu –VsFrancis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). 28. There is no evidence on record pointing to any negligence on the Plaintiff’s part at the time of the accident. That being the case, the motor vehicle driver must be held liable for the occurrence of the accident. 29. The Plaintiff pleaded that the motor vehicle driver was the Defendant’s agent at the time of the accident. The Defendant did not controvert this averment. In the circumstances, the Defendant must be held vicariously liable for his driver’s acts or omissions that led to the accident. 30. It is against this backdrop that this court finds the Defendant 100% liable for the occurrence of the accident.

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Quantum of Damages (a) General Damages for pain and suffering 31.This court has duly considered the contents of the Plaintiff’s P3 form dated 03rd March 2025 (Pexh.1), outpatient card dated 03 rd March 2025 from Bungoma County Referral Hospital (Pexh. 10), and the medical report dated 03rd March 2025 (Pexh.2) by Dr. Mulianga Ekesa. 32.The medical documents above corroborate the Plaintiff’s testimony and averments in the Plaint regarding the injuries the Plaintiff sustained as a result of the accident. 33.Given the above, this court finds and holds that, arising from the accident herein, the Plaintiff sustained tenderness in the left upper arm and elbow joint area as well as pain to the neck, back, chest, and epigastria. 34.It is well settled in this jurisdiction that the assessment of damages must take into account the principle in the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR that comparable injuries should be compensated by comparable awards. 35.In Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR, where Nambuye, J. (as she then was) listed the following principles on assessment of damages: a) Damages should not be inordinately too high or too low b) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.

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d) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 36.This court has given due regard to the guidelines in the authorities above, as well as the Plaintiff’s written submissions on quantum. 37.The Plaintiff submitted that an award of Kshs. 500,000/= was sufficient under this head. The Plaintiff’s counsel placed reliance on Kariuki v Maina alias Peter Murimi (Suing through Next of Friend Rosemaru Muthoni) (Civil Appeal E009 of 2023) [2025] KEHC 7831, where the court awarded Kshs. 500,000/= for multiple soft tissue injuries. 38.The injuries sustained by the Plaintiff in the Kariuki case (supra) were more severe than the moderate soft tissue injuries sustained by the Plaintiff herein. That being the case, the authority cited by the Plaintiff’s counsel is not applicable in this case. 39.This court finds the authorities below relevant to this case. 40.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 41.Finally, in Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR), the court awarded Kshs. 80,000/= for soft tissue injuries on the leg and a cut wound to the head. 42.Guided by the authorities above, and considering the passage of time since the decisions above were rendered, this court makes an award of Kshs. 100,000/= under this head.

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(b)Future medical expenses 43.The Plaintiff pleaded for future medical expenses in paragraph 5 of her Plaint. She testified that she still takes pain killers to alleviate the pain arising from the injuries arising from the accident. 44.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 plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff 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

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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…” 45.The Plaintiff, having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintiff needed to surmount before an award under this head is made is to prove the pleaded future medical expenses. 46.The medical report by Dr. Ekesa shows that the Plaintiff needs antiinflammatory agents and psychosocial support. The Plaintiff, as earlier stated in this judgment, testified that he was still using painkillers for the pain and aches arising from the accident. 47.The foregoing shows that the Plaintiff pleaded and proved the claim for future medical expenses. 48.However, Dr. Ekesa did not testify before this court to lead evidence on the cost of the future medical expenses and the duration of the future treatment stated in the medical report herein. 49.Be that as it may, having considered the nature of injuries sustained by the Plaintiff, and her current health complaints, it is this court’s considered view that an award of Kshs. 10,000/= will be sufficient compensation for the Plaintiff’s painkillers under this head. (c)Special Damages 50.The Plaintiff pleaded for special damages of Kshs. 7,825/= as particularized in paragraph 5 of her Plaint. 51.The receipts for specials on record proved the claim for Kshs. 1,100/= for the copies of records, Kshs. 4,000/= for the medical report, and Kshs. 2,525/= for the treatment expenses.

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52.Consequently, this court finds that the Plaintiff pleaded and proved Special Damages of Kshs. 7,625/=. DETERMINATION 53.Given the foregoing, judgment is entered against the Defendant in the following terms:a. Liability……………………………………….100% b. General Damages…………………...………Kshs. 100,000/= c. Future Medical Expenses…………………..Kshs. 10,000/= d. Special Damages……………………...…….Kshs. 7,625/= Net Award…………………………Kshs. 117,625/= 54.The General Damages and the Future Medical Expenses 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. 55.The Plaintiff will have the costs of this suit. 56.Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 14th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wakassa h/b for Onchiri for the Plaintiff C/A: Mr. Rioba

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