Sakwa v Wanjala & another (Civil Case E307 of 2024) [2026] KEMC 699 (KLR)

6. He cited the doctrine of res ipsa loquitor, and the Highway Code in support of his case. 7. The Defendants opposed this suit through a Statement of Defence dated 19th August 2025, denying being the motor vehicle’s beneficial owners or registered owners. They also denied the occurrence of the accident and the particulars of negligence attributed to them by the Plaintiff. 8. In the alternative, the Defendants pleaded that if the accident herein occurred, then the same was solely caused or substantially contributed to by the Plaintiff’s acts of negligence detailed in paragraph 7 of the Statement of Defence. They also averred that the doctrine of res ipsa loquitor was not applicable in this case. 9. The Defendants prayed that this suit be dismissed with costs. 10. The Plaintiff responded to the Defendants’ Statement of Defence through a Reply to the Statement of Defence dated 25th August 2025 by joining issues with the Defendants’ Statement of Defence and reiterating the contents of his Plaint. 11. In view of the divergent positions taken by the Plaintiff and the Defendants on the circumstances under which this accident occurred, this matter proceeded to full hearing for the parties to prove the averments in their respective pleadings. 12. A summary of the evidence led by the parties is set out below. EVIDENCE Plaintiff’s Case 13. PW1 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 16th May 2025 (Pexh.6) and the receipt for Kshs. 6,000/= (Pexh.7) for the medical report. He was of the opininon that the Plaintiff sustained soft tissue injuries from the accident and that the Plaintiff must have recovered. 14. PW2 Elias Adoka, a Clinical Officer from Bungoma County Referral Hospital, produced the Plaintiff’s P3 form dated 12th May 2025 (Pexh.4), the Plaintiff’s outpatient card (Pexh.1), and a medical fees receipt for Kshs. 3,000/= (Pexh. 2). 15. His testimony was that the Plaintiff visited the facility for treatment on 12 th May 2025 with a history of having been involved in a road traffic accident. He added that he reviewed the Plaintiff and filled his P3 form. His opinion was that the Plaintiff sustained bodily injuries that he must have fully recovered from.

page 2 of 11

16. PW3 No. 76835 PC Isaac Kimani Njuguna produced the accident’s police abstract dated 10th June 2025 (Pexh.5) showing that the accident herein occurred on 10th May 2025 along Kanduyi – Malaba road involving motor vehicle KDS 551 V Toyota Probox and motorcycle registration number KMEF 082 Y boxer causing the motorcycle rider to sustain injuries. He added that the said accident was reported and booked at Bungoma Police Station vide OB. No. 36/10/05/2025. 17. In cross-examination, he conceded that he was not the accident’s investigating officer. He added that he did not visit the scene and that the traffic case was still under investigation. 18. PW4 Fredrick Namasaka Sakwa adopted his witness statement dated 23rd June 2025 as his evidence in chief. His testimony was that on the date of the incident, he was driving his motorcycle from the Malaba general direction, headed to the Bungoma general direction, when he slowed to give way to a lorry ahead, only for the motor vehicle to knock him from behind. He accused the motor vehicle driver of speeding. 19. He produced the documents not produced by the other witnesses as exhibits. 20. In cross-examination, he stated that he lost his driving licence during the accident. He added that he joined the highway before the motor vehicle, which was following him closely, only for the motor vehicle to hit him from behind. Defendants’ Case 21. DW1 Emmanuel Wanjala Wekesa adopted his witness statement dated 24th September 2025 as his evidence in chief. He produced a copy of his driving licence (Dexh.1) as an exhibit. 22. In cross-examination, he admitted that he was the driver of the motor vehicle which was involved in the accident with the Plaintiff’s motorcycle on 10th May 2025. He added that he was driving that motor vehicle with its registered owner’s permission. 23. He denied hitting the motorcycle from behind. He added that the motor vehicle was damaged on the left side near the left side mirror. Parties’ Written Submissions Plaintiff’s Written Submissions 24. The Plaintiff urged this court to find the Defendants jointly and severally 100% liable for the occurrence of the accident since the accident was attributed to the excessive speed its

page 3 of 11

driver of the motor vehicle was driving at without due regard of the Plaintiff’s presence who was riding his motorcycle on the extreme left of the road on the white line ahead of the motor vehicle. 25. The Plaintiff took issue with the Defendants’ failure to call an eye witness and produce the motor vehicle’s inspection report to corroborate DW1’s testimony that the Plaintiff rammed the left side of the motor vehicle. 26. submitted that PW2’s evidence that the motor vehicle’s driver lost control of the motor vehicle after the motor vehicle had developed mechanical problems, and given that the Plaintiff was knocked from behind was sufficient to hold the Defendants’ 100% liable for the occurrence of the accident. 27. On quantum, the Plaintiff submitted that the treatment notes and the medical report on record proved that the accident caused the Plaintiff to sustain soft tissue injuries, and that he was treated as an outpatient. He placed reliance on Carolyne Indasi Mwanyonyo v Kenya Bus Service Limited (2012) eKLR for an award of Kshs. 500,000/= under this head. Defendant’s Written Submissions 28. The Defendants submitted that the onus of proving liability lay on the Plaintiff who had failed to discharge that duty in this case. They added that the Plaintiff having failed to produce his driving licence, liability should be apportioned to him in line with the holding in Simba v Langat (2024) KEHC 2110 (KLR). 29. They took the position that the Plaintiff contributed to the occurrence of the accident, thus urged this court to apportion liability equally. They placed reliance on Anne Wambui Nderitu v Joseph Kiprono Ropkoi & Anor (2004) eKLR. 30. They further submitted that the failure by PW3 to produce the accident’s police file and sketch map made it impossible for this court to ascertain how the accident occurred and the point of impact. Therefore, they urged this court to find that the Plaintiff had not proved his case on a balance of probabilities as held in Benter Atieno Obonyo v Anne Nganga & Anor (2021) eKLR. 31. On quantum, the Defendants conceded that the Plaintiff had proved on a balance of probabilities that he had sustained soft tissue injuries which he must have fully recovered from. They cited HB (Minor suing through mother and next friend DKM) v Jasper

page 4 of 11

Nchonga Magari & Another (2021) eKLR, where an award of Kshs. 60,000/= was made for multiple soft tissue injuries, and Mbati John & Another v China Zhogxing Construction Company Limited and Another (2016) eKLR, where an award of Kshs. 75,000/= was made for multiple soft tissue injuries in support of their submission that an award of Kshs. 100,000/= was sufficient under this head. 32. The Defendants conceded that the Plaintiff had pleaded and proved Special Damages of Kshs. 8,050/=. ANALYSIS & DETERMINATION 33. This court has given due regard to the pleadings, the evidence, the written submissions, as well as the authorities on record. 34. There is no dispute that the accident herein occurred. It is common ground that the 1 st Defendant was the motor vehicle’s driver at the time of the accident, and that the 2 nd Defendant was the motor vehicle’s registered owner at the time of the accident. 35. The 1st Defendant admitted that he was driving the motor vehicle at the time of the accident with the registered owner’s permission. It thus follows that in the event this court finds the 1st Defendant liable for the occurrence of the accident, the 2 nd Defendant will be vicariously liable for the 1st Defendant’s acts or omissions. 36. Given the reasons above, this court is of the considered view that the issues for determination are liability and quantum. Liability 37. The Plaintiff blamed the Defendants for the occurrence of the accident on the ground that the 1 st Defendant knocked his motorcycle from behind when he slowed down to give way to another motor vehicle ahead. 38. The 1st Defendant, on the other hand, denied hitting the Plaintiff’s motorcycle from behind. He instead blamed the Plaintiff for hitting his motor vehicle on the left side near the left side mirror. 39. PW3, who was called by the Plaintiff to support his case, conceded that he could not speak to the circumstances of the accident. He neither produced the accident’s police file nor the sketch

page 5 of 11

plan. Further, he neither produced the motorcycle’s inspection report nor the motor vehicle’s inspection report. 40. It is also imperative to note that none of the parties herein called witnesses to corroborate their versions of the circumstances under which this accident occurred. 41. The foregoing shows that the evidence on record on the circumstances under which the accident herein occurred was actually the Plaintiff’s word against the 1st Defendant’s word. 42. 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 fully appreciate the circumstances of this case and the point of impact. 43. In the absence of the evidence alluded to above, the evidence on record is barely adequate to apportion liability in this matter. 44. 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. 45. Courts in this jurisdiction, when confronted with a situation like the one obtaining in this case, where the evidence is barely adequate to apportion liability between two drivers, expressed themselves as hereunder. 46. The Court of Appeal in Lakhamshi v the Attorney General (1971) held that where it cannot be precisely determined who between two drivers was to blame for the accident, the liability is shared equally. 47. In Barclay – Steward Limited & Another Vs. Waiyaki [1982- 88] 1 KAR 1118, the Court stated:-

page 6 of 11

“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it. ”The Court said further:-“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.” In Baker V Market Harborough Industrial Co-operative Society LTD [1953] 1 WLR 1472 at 1476, 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…….. “See also Welch V Standard Bank LTD [1970] EA 115 at 117 and Simon V Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame……..” 48. In Hussein Omar Farah v Lento Agencies [2006] eKLR, the court held that: “The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident

page 7 of 11

could be equally on both the drivers. We therefore hold each driver equally to blame.” 49. Finally, in Mwangi & another v Oginga (Civil Appeal 88 of 2023) [2025] KEHC 7976 (KLR), Mwamuye J expressed himself as follows:“On the balance of probabilities and guided by the principle of fairness, I find that the trial court erred in failing to apportion liability at all. The safer conclusion, consistent with the facts and the rule that doubtful or unproven causation should lead to shared liability, is to hold both parties equally responsible.” 50. The common thread running through the authorities above is that where there is no conclusive proof of who caused or contributed more to the occurrence of an accident between two drivers, like in this case, the liability is shared equally between the two drivers. 51. Given the reasons 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 52. The Defendants conceded that the Plaintiff proved on a balance of probabilities that the accident herein caused him to sustain multiple soft tissue injuries pleaded in the Plaint. The parties herein were also in agreement that the Plaintiff must have fully recovered from the said injuries. 53. In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore vs Geoffrey 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

page 8 of 11

as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 54. The Plaintiff submitted that an award of Kshs. 500,000/= was sufficient under this head by relying on Carolyne Indasi Mwanyonyo v Kenya Bus Service Limited (2012) eKLR, where an award of Kshs. 350,000/= was made for a Plaintiff who sustained multiple soft tissue injuries of the right knee. The Plaintiff in that case also walked with a slight limp and was admitted to various hospitals for one month. 55. The Defendants on the other hand urged this court to make an award of Kshs. 100,000/= by citing authorities where Plaintiffs sustained soft tissue injuries almost similar to the injuries sustained by the Plaintiff in this case. 56. This court notes that the authority relied upon by the Plaintiff for an award of Kshs. 500,000/= is not applicable in this case since the Plaintiff in that case sustained more serious injuries than the ones sustained by the Plaintiff herein. Further, the Plaintiff in that case was admitted to various hospitals for a period of one month, yet the Plaintiff herein was treated as an outpatient. Clearly, that authority is not applicable in this case. 57. The injuries sustained by the Plaintiff herein were almost similar to the injuries sustained by the Plaintiff in Makami v Obong’o (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR), where the respondent sustained soft tissue injuries involving marked swelling and bruises on the forehead, marked neck and chest pain and 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 58. 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. 59. 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.

page 9 of 11

60. 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. 61. Guided by the authorities above, and more particularly the Ondiso case (supra) determined in April 2025, and considering inflation trends in this country since April 2025 to date, this court makes an award of Kshs. 100,000/= under this head. (b) Special Damages 62. The Plaintiff pleaded at paragraph 6 of the Plaint Special Damages of Kshs. 4,000/= for the medical report, and Kshs. 550/= for the copy of records. 63. The Defendants conceded that the Plaintiff pleaded and proved Special Damages of Kshs. 8,050/=. The same is awarded. DETERMINATION 64. 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. 100,000/= (c) Special Damages - Kshs. 8,050/= Grand Award -Kshs. 108,050/= Less 50% Net Award - Kshs. 54,025/= 65. 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. 66. The Plaintiff will have the costs of this suit subject to the ratio of the Plaintiff’s success in this case. 67. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 12th day of February 2026

page 10 of 11

T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Shikhu for the Plaintiff Ms. Kitiwa for the Defendant C/A: Mr. Rioba

page 11 of 11