Wekesa v Wasike & another (Civil Case E514 of 2024) [2026] KEMC 672 (KLR)

number KCR 036 M, which had been negligently parked on the road, thereby obstructing his way leading to the occurrence of the accident. 3. The Plaintiff further averred that the accident caused him severe bodily injuries set out in paragraph 6 of the Plaint hence this suit. 4. The Plaintiff blamed the accident on negligence by the motor vehicle’s driver as enumerated in paragraph 5 of the Plaint. 5. The Plaintiff also averred 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 the Plaintiff’s negligence as particularized in paragraph 6A of the amended Defence. 9. The Defendants prayed that this case be dismissed with costs. 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

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Plaintiff’s Case 11. PW1 Ambrose Simiyu Wekesa adopted his witness statement dated 21st November 2024 as his evidence in chief. 12. He testified that on the date of the accident, he hit the motor vehicle from behind since the said motor vehicle had been parked in the middle of the road without any warning signs. 13. In cross-examination, he added that he was carrying two pillion passengers and that he was not wearing a helmet at the time of the accident. He also stated that his motorcycle’s headlight was on at the time of the accident, which helped him to see the stationary white lorry. He further stated that he did not apply the brakes before hitting the lorry from behind. Defendants’ Case 14. The Defendants did not call any witnesses to substantiate the allegations pleaded in their Statement of Defence. 15. 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 16. 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.

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17. 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. 18. Given the foregoing, the only issues for determination is liability and quantum. Liability 19. It is common ground that the Plaintiff was the motorcycle’s rider at the time of the accident. The Plaintiff blamed the Defendants for the occurrence of the accident since the Defendants’ motor vehicle had been parked in the middle of the road without any warning signs. 20. The Defendants, on the other hand, blamed the occurrence of the accident on the Plaintiff’s negligence. However, the Defendants did not call any witnesses to substantiate the particulars of negligence they attributed to the Plaintiff. In the circumstances, the particulars of negligence pleaded in the Defendants’ Statement of Defence by the Defendants against the Plaintiff remained mere allegations which this court will not consider in determining liability in this case. 21. The Plaintiff’s evidence on the circumstances under which the accident occurred remained unshaken even after cross-examination. That evidence was not controverted by the Defendants. When confronted with such a situation, the Court of Appeal in Edward

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Muuga V Nathaniel D. Schuller (C.A. No 23 of 1997 (UR), the Court of Appeal also observed that where a defendant does not adduce evidence, the plaintiffs’ evidence is to be believed. This reasoning was also adopted by Aburili J in Otieno & another v Odhiambo (Civil Appeal E027 of 2024) [2024] KEHC 7688 (KLR). 22. From the foregoing, it is safe to conclude that the accident herein occurred when the Plaintiff rammed into the Defendants’ motor vehicle from behind when the said motor vehicle had been parked in the middle of the road without any warning signs. 23. By parking their motor vehicle in the middle of the road, the Defendants breached the duty of care they owed to other road users by ensuring that their motor vehicle was not posing a danger to other road users, including the Plaintiff. 24. On the face of it, one may easily rush to wholly blame the Defendants for the occurrence of the accident. However, it is worth noting that a prudent driver does not knock anything along their way just because that thing is wrongly on the road. This position can be gleaned from Masembe v Sugar Corporation and another [2002] 2 EA 434, it was held that: “When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has

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seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” 25. A reading of the authority above begs the question of whether the Plaintiff took reasonable steps to avoid hitting the motor vehicle. 26. The Plaintiff conceded during cross-examination that he did not apply the brakes before the occurrence of the accident and before hitting the motor vehicle. This clearly shows that the Plaintiff was possibly driving at a high speed, only for him to realize too late that the motor vehicle ahead of him was stationary. 27. It was also conceded by the Plaintiff that he was not wearing a helmet at the time of the accident. This court notes that the injuries pleaded by the Plaintiff included a cut wound on the right forehead. This court takes the view that had the Plaintiff worn a helmet at the time of the accident, he would probably not have sustained a cut wound on the right forehead. 28. The Plaintiff also admitted that he was carrying two pillion passengers at the time of the accident. It has been held several times in this jurisdiction that where a motorcycle is overloaded, its maneuverability and stability are usually greatly compromised thereby making the motorcycle susceptible to causing accidents or making it hard

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for a motorcycle rider to avoid the occurrence of an accident (see 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)). 29. Guided by the authorities and the reasons above, the Plaintiff must shoulder some blame for the injuries he sustained as a result of the accident. 30. Taking the totality of the circumstances of this accident into consideration, this court apportions liability in the ratio of 70%:30% in favour of the Plaintiff. Quantum (a) 31. General Damages for Pain and Suffering The Plaintiff pleaded in paragraph 6 of her Plaint that the accident caused him to sustain a cut wound on the right forehead, blunt injuries to the right eye, periorbital region, neck, chest, and both knees. 32. 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.

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33. 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 a cut wound on the right forehead, blunt injuries to the right eye, periorbital region, neck, chest, and both knees. 34. 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: “...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.” 35. This court has given due regard to the written submissions on record on quantum. 36. 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

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injuries, including a deep cut on the forehead, and blunt injury to the right knee. 37. 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. 38. In the circumstances, this court makes an award of Kshs. 150,000/= under this head. (b) 39. Special Damages The Plaintiff pleaded for Special Damages of Kshs. 6,550/=. The receipts produced by the Plaintiff proved the pleaded Special Damages. 40. It is against this backdrop that this court makes an award of Kshs. 6,550/= under this head. DETERMINATION 41. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: a) Liability………………………………………70%:30% in favour of the Plaintiff b) General Damages…………………...………Kshs. 150,000/= c) Special Damages……………………...…….Kshs. 6,550/=

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Grand Award……………………… Kshs. 156,550/= Less 30% Net Award………………………………………Kshs. 109,585/= 42. 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. 43. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 44. 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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