Festus v Inengu & another (Civil Case E171 of 2025) [2026] KEMC 650 (KLR)

4. In addition to the above, the Plaintifi averred that the injuries he sufiered as a result of the accident occasioned him loss and damage thereby necessitating the filing of this suit. 5. The Defendant entered appearance and filed a Statement of Defence dated 28th January 2025 denying all the averments in the Plaintifi’s plaint save for the averment that this court had the requisite jurisdiction to hear and determine this matter. 6. In the alternative, the Defendant pleaded that if the accident occurred, then the same was substantially caused by the Plaintifi’s negligent acts and omissions listed in paragraph 5 of the Statement of Defence. 7. The Defendant urged this court to dismiss the Plaintifi’s case with costs. 8. It is against this backdrop that this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. Evidence Plaintifi ’s Case 9. PW1 Dr. Ekesa Mulyanga produced the Plaintifi’s medical report dated 14th April 2025 and a corresponding receipt of Kshs. 4,000/= as exhibits. 10. He reiterated in cross-examination that the Plaintifi required future medical expenses of Kshs. 50,000/ = - 75,000/= for removal of the metal implants. He conceded that the removal of the implants would be cheaper in a public hospital. 11. PW2 Dr. Ombongi Haron from Bungoma County Referral Hospital produced the Plaintifi’s treatment notes, P3 form, and an invoice for Kshs. 174,570/= from Bungma County Referral Hospital as exhibits. 12. PW3 No. 7xxx5 PC Isaac Kimani Njuguna produced a police abstract dated 14th April 2025 showing that the accident herein occurred, and that the same was reported at Bungoma Police Station vide OB. No. 74/24/03/2025. 13. He admitted in cross-examination that the accident was still under investigations. 14. PW4 Bonface Khalwale adopted his witness statement dated 25th February 2025 as his evidence in chief. He also produced the documents not produced by the other witnesses as exhibits. 15. He also stated that he lost his driving licence, gumboots, and helmet on the date of the accident. He added that he was still unwell and that he needed Kshs. 75,000/= for the removal of the metal implants in his leg in December this year. during the accident. 16. In cross-examination, he stated that the rough road where the accident occurred was wide enough to allow two motor vehicles going in the opposite direction to pass at the same time. 17. He maintained that the motor vehicle’s right-hand side hit his motorcycle’s front right indicator after encroaching onto his lane, leading to the accident. Defendant’s Case 18. DW1 Anthony Wanyonyi Khaemba adopted his witness statement dated 28th January 2026 as his evidence in chief. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/650/eng@2026-04-30 2

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19. His testimony was that on the date of the accident, he saw the Plaintifi riding a motorcycle at a high speed from the opposite direction while playing loud music. He hooted and fiashed to alert the Plaintifi without success. 20. He further stated that when the Plaintifi realized that there was an oncoming motor vehicle, he suddenly applied emergency brakes, lost control of the motorcycle, and collided with the motor vehicle after encroaching onto his lane. 21. In cross-examination, he confirmed that his motor vehicle was damaged on the driver’s side. He added that the point of impact was beside the road on the left side when one faces the general direction he was driving to. Analysis & Determination 22. 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. 23. The Plaintifi and the Defendant agree that the accident occurred. They also agree that the accident caused the Plaintifi to sustain bodily injuries. There is also no contest that the motor vehicle was owned by the Defendant at the time of the accident. 24. Further, there is no evidence on record to suggest that DW1 was on a frolic of his own at the time of the accident. It thus follows that in the event this court finds the motor vehicle driver liable for the occurrence of the accident, the Defendant will be vicariously liable for DW1’s acts or omissions. 25. The foregoing inclines this court to find and hold that the only issue for determination is liability and quantum. Liability 26. The evidence placed before this court by the parties was simply the Plaintifi’s word against the Defendant’s word. The Plaintifi blamed DW1 for encroaching into his lane, while DW1 also did the same. 27. This court was left at sea on how to determine who was to blame for the occurrence of the accident. 28. It is this court’s humble view that in an accident involving two drivers, it is always prudent for the Plaintifi to call the accident’s eye witness or the accident’s investigating oficer to produce the accident’s sketch plan for the court to fully appreciate the point of impact and the circumstances under which the accident occurred. 29. In the absence of the evidence alluded to in paragraph 28 above, the evidence on record is barely adequate for this court to apportion liability in this matter. 30. However, accidents do not just occur; they are caused, save for inevitable accidents or accidents caused by an act of God. There is no indication that the accident herein was inevitable or that it was caused by an act of God. Therefore, there must be a person or persons responsible for the occurrence of this accident. 31. The Court of Appeal in Lakhamshi v the Attorney General (1971), when confronted with a situation like the one obtaining in this case, where the evidence on record is barely adequate to apportion liability between two drivers, held that where it cannot be precisely determined who between two drivers was to blame for the accident, the liability is shared equally. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/650/eng@2026-04-30 3

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32. The holding in the Lakhamshi case (supra) was in line with the holding in Baker V Market Harborough Industrial Co-operative Society LTD [1953] 1 WLR 1472 at 1476, where Denning L.J. (as he then was) observed inter alia as follows: “ Every day, proof of collision is held to be suficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…….. “ 33. Given the reasons above, and guided by the authorities above, this court finds and holds the Plaintifi and the Defendants equally to blame for the occurrence of the accident. Quantum of Damages (a) General Damages for pain and sufiering 34. The Plaintifi pleaded in paragraph 5 of his plaint that the accident caused him to sufier soft tissue injuries, fracture of the right femur, and psychological trauma. The Plaintifi’s uncontroverted medical evidence on record corroborated the Plaintifi’s averments on the injuries he sufiered as a result of the accident. 35. It is against this backdrop that this court finds and holds that the Plaintifi pleaded and proved on a balance of probabilities that, arising from the accident herein, he sufiered soft tissue injuries, fracture of the right femur, and psychological trauma. 36. 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.” 37. This court has given due regard to the parties’ authorities on quantum. The injuries sustained by the Plaintifi herein are almost similar to the injuries sustained by the Plaintifi in the cases listed below. 38. In Makokha v Sifuna (Civil Appeal E027 of 2021) [2023] KEHC 21386 (KLR), where the Plaintifi sustained a fracture of the femur and soft tissue injuries. Permanent incapacity was assessed at 20%. The court made an award of Kshs. 550,000/= as general damages. 39. In Eston Mwirigi Ndege & another v Joseph Macharia Kawira [2019] eKLR the respondent sufiered fracture of the right femur, right arm, right forearm and was admitted for 3 months. He was assessed to have sufiered 15% incapacity. The court assed general damages at Kshs.500,000. 40. Guided by the authorities above, in particular the Makokha case (supra), which was decided in 2023, and considering the fact that the Plaintifi herein did not sufier any permanent or temporary incapacity, this court makes an award of Kshs. 500,000/= under this head. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/650/eng@2026-04-30 4

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(b) Future medical expenses 41. The Plaintifi pleaded for future medical expenses for the removal of metal implants at a cost of Kshs. 75,000/=. 42. 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…” 43. 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. 44. The medical report dated 14th April 2025 by Dr. Ekesa shows that the Plaintifi needs between Kshs. 50,000/= and Kshs. 75,000/= for the removal of the implants. 45. The Plaintifi testified before this court confirmed that the metal implants are due for removal in December this year. 46. Dr. Ekesa clarified that the removal of the metal implants would be cheaper in a public hospital. 47. The Plaintifi’s treatment notes from Bungoma Orthopaedic Centre Company Limited show that the metal implants were fixed in a private facility. All factors holding constant, the said metal implants are likely to be removed from the same private facility. 48. In the circumstances, the Plaintifi is awarded future medical expenses of Kshs. 75,000/= for the removal of the metal implants. (c) Special Damages 49. The Plaintifi pleaded for special damages of Kshs. 43,350/=. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/650/eng@2026-04-30 5

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50. The receipt of Kshs. 4,000/= for the medical report issued by Dr. Ekesa, as well as receipts from NTSA, Bungoma Orthopaedic Centre Company Limited, Amylin Chemist, Ram Chemist, and Bungoma County Referral Hospital, proved the pleaded special damages of Kshs. 43,350/=. 51. It is against this backdrop that this court awards the Plaintifi special damages of Kshs. 43,350/=. Determination 52. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:(a) Liability………………………………50%:50% (b) General damages…………………...Kshs. 500,000/= (c) Future medical expenses…………..Kshs. 75,000/= (d) Special Damages…………………….Kshs. 43,350/= Grand Award……………………..Kshs. 618,350/= Less 50% Net Award…………………………Kshs. 309,175/= 53. 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. 54. The Plaintifi will have the costs of this suit subject to the ratio of liability herein. 55. The Defendant’s claim against the third party is dismissed with no order as to costs. 56. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 30TH DAY OF APRIL 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintifi Mr. Njue for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/650/eng@2026-04-30 6

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