Simiyu v Muthee & another (Civil Case E521 of 2024) [2026] KEMC 666 (KLR)

5. It was further pleaded by the Plaintiff that he was relying on the doctrine of res-ipsa loquitor, the Highway Code, and the provisions of the Traffic Act in support of her case. 6. The 1st Defendant neither entered appearance nor filed a Statement of Defence. The 2 nd Defendant entered appearance and filed a Statement of Defence dated 26 th March 2025 denying the occurrence of the accident and the particulars of negligence attributed to her by the Plaintiff. 7. The 2nd Defendant took the position that if the accident herein occurred, then the same was caused or contributed by the Plaintiff’s acts of negligence. In the circumstances, the 2nd Defendant urged this court to dismiss this suit with costs. 8. It is against this background that this court set down this matter for hearing for the Plaintiff and the 2nd Defendant to prove the averments in their respective pleadings on a balance of probabilities. 9. A summary of the evidence led by the said parties is set out below. EVIDENCE Plaintiff’s Case 10. PW1 No. 81576 PC (W) Jackline Ochieng produced the police abstract dated 17th January 2023 (Pexh.1) showing that the accident herein was reported at Bungoma Police Station vide OB. No. 81/06/01/2023. 11. In cross – examination, she conceded that she did not visit the scene of the accident, and that she could not tell whether the motor cycle rider was licensed at the time of the accident. she could not tell the circumstances under which the accident occurred. 12. PW2 Elias Adoka a Clinical Officer at Bungoma County Referral Hospital produced the Plaintiff’s treatment notes (Pexh.2) and P3 form dated 11 th January 2023 (Pexh.3) as exhibits. He assessed the degree of the injuries sustained by the Plaintiff as harm. 13. He added that the Plaintiff was admitted at the facility from 06th January 2023 to 07th January 2023. 14. In cross-examination, he reiterated that the accident caused the Plaintiff to sustain a head injury, loss of consciousness, bruises on the ear, bruises on the right elbow, and bruises on the right knee. He could not tell if a helmet could have prevented the Plaintiff from sustaining the head injury.

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15. He was also of the opinion that the Plaintiff must have fully recovered from the injuries sustained in the accident as at the time he testified before this court. 16. PW3 Kevin Wafula Simiyu adopted her witness statement dated 06th December 2024 as her evidence in chief. 17. His testimony was simply that the accident occurred when the motor vehicle rammed into the motorcycle he was riding causing him to sustain severe injuries. 18. He stated in cross-examination that he lost his driving license during the accident. He added that he was wearing a reflector jacket and a helmet at the time of the accident. 19. He also stated that the accident occurred when his motorcycle was hit from behind. 20. PW4 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 14th November 2024 (Pexh. 5(a)) showing that the accident caused the Plaintiff to sustain soft tissue injuries, comprising a head injury with brief loss of consciousness, cut wound on the forehead, bruises on the right auricular area, bruises on the right elbow, bruises on the right hip joint area, and bruises on the right knee. 21. He added that at the time of examination, the Plaintiff had healed scars on the forehead, right auricular area, and right elbow. 22. He further stated that he charged the Plaintiff Kshs. 6,000/= for filling the medical report herein as evidenced by the receipt dated 14th November 2024 (Pexh. 6(b)). Defendants’ Case 23. The 2nd Defendant did not call any witnesses to substantiate the averments in her Statement of Defence. The failure by the 2 nd Defendant to call witnesses rendered the averments in her Statement of Defence mere allegations which this court cannot rely on in determining this case. To buttress this position, this court places reliance on Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR), where the court stated thus: ‘Where a party fails to call evidence in support of his/her case, that party’s pleadings remain mere statements of fact since in so doing, the party fails to substantiate his/her pleadings. In the similar vein the failure by the respondent to adduce any evidence means that the evidence adduced by the appellant remains unchallenged. The respondent filed a statement of defence on 4 th December, 2018 which only contained denials. The respondent did not file witness statements and/or any documents in opposition to the appellant’s case.’ ANALYSIS & DETERMINATION

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24. 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. 25. The occurrence of the accident is not disputed. The Defendants did not controvert the evidence on record that the 1st Defendant was the motor vehicle’s registered owner while the 2nd Defendant was the motor vehicle’s beneficial owner at the time of the accident. 26. Given the reasons above, this court finds that that this court finds and holds that the issues which commend to this court for determination are liability and quantum. Liability 27. The only version of events on the circumstances under which the accident occurred is the Plaintiff’s. One may be tempted to argue that in such instances the Plaintiff is deemed to have proved on a balance of probabilities that the Defendants were liable for the occurrence of the accident. 28. It is trite law in this jurisdiction that the Plaintiff bears the duty of proving their case on a balance of probabilities regardless of whether the Defendant has controverted the Plaintiff’s evidence or not. To this end, this court finds solace in Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, where 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. 29. 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.” 30. Lastly, in Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal held that: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings

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are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 31. Guided by the above authorities, this court will proceed to determine whether the Plaintiff proved on a balance of probabilities that the accident herein was caused by the Defendant’s negligence. 32. The Plaintiff simply testified that the motorcycle his was riding on the date of the accident was rammed by the motor vehicle. He added in cross-examination that the motor vehicle hit his motorcycle from behind. However, it should be noted that the Plaintiff did not state in his witness statement herein which he adopted as his evidence in chief that the motorcycle was hit from behind. Therefore, the Plaintiff’s testimony in cross-examination that the motor cycle was hit from behind was an afterthought. 33. In any event, neither the Plaintiff nor PW1 placed before this court inspection reports to prove on a balance of probabilities that the motorcycle was hit from behind by the motor vehicle. Further, no sketch plan was placed before this court for this court to fully appreciate the point of impact. 34. It is also noteworthy that the Plaintiff did not state the steps he took as a reasonable rider to ensure that the accident herein did not occur. 35. This court is of the considered view that, given the circumstances of this case, this was a proper case for the calling of the accident’s investigating officer, the production of the accident’s sketch plan, and the production of the motor vehicle’s and/or motorcycle’s inspection reports for this court to have a clear picture of the circumstances under which the accident herein occurred.

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36. In the absence of the evidence alluded to above, the evidence on record is barely adequate for this court to apportion liability in this matter. 37. 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 people responsible for the occurrence of this accident. 38. 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. 39. 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 sufficient 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…….. “ 40. Given the reasons above, and guided by the authorities above, this court finds and holds the Plaintiff and the Defendants equally to blame for the occurrence of the accident Quantum of Damages (a) General Damages for pain and suffering 41. The Plaintiff relied on his testimony, his P3 form dated 11 th January 2023, his discharge summary dated 07th January 2023 from Bungoma County Referral Hospital, and the medical report dated 14th November 2024, to prove on a balance of probabilities that the accident herein caused him to sustain the injuries enumerated in paragraph 6 of the Plaint. 42. A reading of the Plaintiff’s medical report dated 14th November 2024 shows that at the time of medical examination, the Plaintiff had healed scars on the forehead, the right

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auricular area, and the right elbow. However, the scars were not pleaded in the Plaintiff’s Plaint. 43. The consequence of a party failing to plead an injury has been a subject of vary many judicial pronouncements. For instance, in Anthony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR, the Court of Appeal held thus: “We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. It also follows that a court should not make any findings on unpleaded matters…”(Emphasis added) 44. Further, in Boniface Kinyua Kathuri v David Munyoki [2020] eKLR, the High Court held thus: “The finding of the trial Magistrate in my view cannot be faulted because it is firmly anchored in the law. As observed above under Order 2 Rule 4 the law clearly stipulates that the nature of injuries suffered by a Plaintiff must be specifically pleaded and the operative word in that rule is “must” which means that it is a mandatory requirement. As aptly stated in the decision of Ibrahim J “Treadsetters Tyres Ltd”,“in cases of tortuous claims based on negligence, injuries and special damages must be specifically

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pleaded. They cannot be imagined or inferred. The court’s road maps are the pleadings on record if a party alleges he suffered an injury, he must particularize the same so that the defendant can specifically respond to the claims. One must plead the nature and extent of injuries suffered. This is a mandatory requirement of the law………….” .This court takes a similar position because a party cannot plead for instance that he suffered certain injuries on the head but during trial and out of the blue goes ahead to list different injuries suffered on the stomach. The omission in my view is fatal. Allowing parties to depart from his/her pleadings is undesirable and a violation of the rules because the result would be to expose the opposing party to unfair trial. A defendant in tortuous claims based on negligence should be able to know specifically what he/she is going to defend in court. When a party pleads specifically the nature and the extent of injuries like the Appellant clearly did at the trial, but goes on to prove different nature of injuries that amounts to an ambush the same is not only unfair but a violation of the rule cited above. In that respect the Appellant really cannot blame the trial Magistrate for applying the law in the manner he did. He can only blame himself for the omission because he had the chance to amend his pleadings if he discovered that the nature and extent of injuries pleaded were not in tandem with the medical documents he was relying on.It is my considered view that the obligation placed by law on the Plaintiff in claims based on tort of negligence to specifically plead the nature and extent of injuries means that a plaintiff cannot make general claims and leave gaps to be filled by assumptions by the defendant or the court. That would be a risky venture and omission. A pleading is everything because a party is bound by his/her pleadings. Where gaps are discovered, the law provides windows/ avenues to seal the loopholes in his/her pleading which is through amendments. This court is not persuaded that because the Appellants medical evidence was not challenged or

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controverted by the Respondent, he was at liberty to depart from his pleadings. A party as observed above is always bound by his/her pleadings whether the same is challenged/ controverted/defended or not. The rules of procedure and the law do not change. The onus or proof remains and the trial court must be satisfied that the case has been proved to the required standard in law…” 45. Guided by the authorities above, this court will not consider the unpleaded scars in awarding general damages under this head. 46. It is for the foregoing reasons that this court finds and holds that the Plaintiff proved on a balance of probabilities that, arising from the accident herein, he suffered a head injury with brief loss of consciousness, cut wound on the forehead, bruises on the right auricular area, bruises on the right elbow, bruises on the right hip joint area, and bruises on the right knee. 47. This court is alive to the principle that in awarding damages under this head, comparable injuries must attract comparable awards (see Stanley Maore vs Geoffrey Mwenda [2004] eKLR). 48. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in the cases hereunder. 49. 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 50. 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. 51. 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.

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52. 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. 53. Guided by the authorities above, and considering the fact that the Plaintiff suffered a brief loss of consciousness and was admitted in hospital for one day, this court is of the considered view that an award of Kshs. 120,000/= under this head is reasonable compensation for the injuries sustained by the Plaintiff. (b) Special Damages 54. The Plaintiff pleaded at paragraph 6 of her Plaint Special Damages of Kshs. 25,550/=. The claims for Special Damages included the claims for the production of the P3 form, the production of the medical report, and the production of the police abstract. 55. The Plaintiff also pleaded for an award of medical expenses of Kshs. 4,000/=. However, the Plaintiff did not produce receipts in support of the claim for the pleaded medical expenses of Kshs. 4,000/=. 56. This court notes that the P3 form and the police abstract on record were produced by public servants paid by taxpayers to perform their official duties, including court attendance. Therefore, if the Plaintiff paid public servants to perform their official duties, then the Plaintiff was engaged in an illegality which he cannot seek to benefit from, as aptly captured in the principle that a party cannot seek to benefit from their own wrong, known in Latin as nullus commodum capere de injuria sua propria. 57. Further, the Plaintiff did not place before this court a receipt to prove that he paid Dr. Sokobe Kshs. 5,000/= to produce the Plaintiff’s medical report before this court. 58. In any event, such claims, if at all, the same can be legally claimed, cannot be legally claimed as Special Damages. Such claims, if claimable, can only be claimed as witness expenses in a party and party Bill of Costs (see Francis Muiruri Mwangi v John Ngugi (Civil Appeal 444 of 2011) [2015] KEHC 7453 (KLR) (Civ)). 59. The receipts on record only proved Kshs. 6,000/= for the medical report and Kshs. 550/= for the copy of records. 60. Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 6,550/=. DETERMINATION

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61. The upshot of the foregoing is that judgment is hereby entered against the Defendants jointly and severally in the following terms:(a) Liability – 50%:50% (b) General damages - Kshs. 120,000/= (c) Special Damages - Kshs. 6,550/= Grand Award - Kshs. 126,550/= Less 20% Net Award - Kshs. 63,225/= 62. 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. 63. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 64. Judgment accordingly. Read, signed, and delivered in open court at Bungoma, this 05th day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Juma Waswa h/b for Paul Juma for the Plaintiff Mr. Choni h/b for Kinyanjui for the 2nd Defendant C/A: Mr. Rioba

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