Barasa v Njihia & another (Civil Case E243 of 2024) [2026] KEMC 720 (KLR)

and knock the motorcycle she had boarded thereby causing the accident which occasioned her bodily injuries, loss, and damage hence this suit. 3. The Plaintifi further pleaded that the accident was caused by negligence by the Defendant and the Defendant’s motor vehicle driver, as enumerated in paragraph 4 of the Amended Plaint. 4. On the Defendant’s part, he filed a Statement of Defence dated 23rd October 2025 denying all the averments in the Plaintifi’s Amended Plaint herein save for this court’s jurisdiction to hear and determine this suit. 5. The Defendant pleaded in the alternative that the accident herein was caused by the Plaintifi’s negligent acts set out in paragraph 7 of the Statement of Defence on record. Interestingly, the said particulars of negligence attributed to the Plaintifi herein relate to a passenger in a motor vehicle. Clearly, the Defendant’s counsel must have erred in drafting the Statement of Defence herein. 6. The Defendant also took out a third-party notice blaming the occurrence of the accident on the motorcycle rider's negligence. Simply put, the Defendant urged this court to find the third party vicariously liable for the occurrence of the accident. 7. The third party neither entered appearance nor filed a Statement of Defence. Consequently, this court entered an interlocutory judgment against the third party with directions that the third party’s liability be determined during the hearing of this matter. 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 9. On 17th March 2026, parties herein recorded a consent to the efiect that the documents filed herein by the parties be adopted as the respective parties’ evidence. Analysis & Determination 10. 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. 11. It is common ground that the accident herein occurred, and that it involved the motorcycle and the Defendant’s motor vehicle. The Plaintifi and the Defendant are also in agreement that the accident caused the Plaintifi bodily injuries, loss, and damage. Further, there is no dispute that the Plaintifi was a pillion passenger on the motorcycle at the time of the accident. 12. The foregoing inclines this court to find and hold that the only issues for determination are liability and quantum. Liability 13. The Plaintifi was a pillion passenger on the motorcycle which was involved in the accident. Therefore, she was neither in control of the motorcycle nor the motor vehicle at the time of the accident. 14. The motor vehicle and the motorcycle, which were involved in the accident, owed the Plaintifi a duty of care to ensure that the Plaintifi reached her destination safely. That duty of care was breached when the Plaintifi was involved in an accident before reaching her destination. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 2

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15. 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. 16. 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 –Vs- Francis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –VsCharity Wanjiku (2017) eKLR). 17. It is not lost to this court that the Plaintifi was an excess passenger on the motorcycle at the time of the accident. 18. This court is well aware of several High Court decisions to the efiect that where a pillion passenger is an excess passenger, such a passenger must be deemed to have exposed himself to harm, thus ought to be found to have contributed to the injuries he sustained as a result of the accident (see Rentco East Africa Limited V Dominic Mutua Ngonzi (2021) eKLR). 19. This court is also aware of another school of thought by the High Court on this issue that the mere fact that a Plaintifi was an excess pillion passenger does not warrant a court to hold that such a passenger contributed to the occurrence of the accident and the injuries sustained, since liability is proved by evidence of causation. This position can be gleaned from Barongo Sevelius Yophen v Jared Ndemo [2020] KEHC 3253 (KLR), where the court held: “ 11. 20. There is no contention that the respondent was a pillion passenger. It was not shown how his failure to wear a helmet or how the fact that there were two pillion passengers on the motorcycle would have contributed to the occurrence of the accident. As a pillion passenger, the respondent had no control of the motor cycle and could not have done anything to cause or avoid the accident.” Similarly, in Kennedy Macharia Njeru v Packson Githongo Njau & another [2019] KEHC 5377 (KLR), the court held thus: “ In Tom Obita Ndago & Another Vs. Alfonse Omondi Otieno [2015] eKLR, where the court considered an allegation by the defence during trial in the lower court that the fact that the driver was carrying an excess passenger could have caused the accident was refuted by the appellate court which stated; “ Thus the rider and his passengers weight was not the reason why the riders motor cycle fell but the fact that the 1st appellant hit them”. This is the same situation here, the cause of the accident was the respondents driver (DW1) who overtook and in the process hit the motor cycle which was properly being driven on its lane but not because the driver had no driving licence.” (Emphasis added) https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 3

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21. In Daniel v Kamene (Civil Appeal 24B of 2019) [2022] KEHC 11179 (KLR), Limo J stated as follows on this issue: “ The issue of carrying excess passengers in my view is not relevant in this appeal in so far as liability is concerned. The appellant ought to have shown how the issue of extra pillion passengers contributed to the occurrence of the accident and/or aggravated the accident but he did not.” 22. This court subscribes to the latter school of thought; being an excess passenger does not impute negligence on the part of the rider or the pillion passenger unless it is proved on a balance of probabilities that the excess passenger made it hard for the motorcycle to be controlled, leading to the occurrence of the accident. 23. It should also be borne in mind that there are sanctions against an excess pillion passenger in law. Those sanctions can be meted out on an excess passenger through a trafic charge. The court’s concern in a claim for general damages arising from a road accident remains the determination of who caused the accident and quantum. 24. There is nothing on record to suggest that the fact that the Plaintifi was an excess pillion passenger on the motorcycle caused the accident. There is no evidence, at all, to prove on a balance of probabilities that the Plaintifi’s negligence led to the occurrence of the accident. 25. Accidents do not just occur; they are caused either by acts of God, human error, or mechanical failure. The accident herein, at least from the evidence on record, was not caused by an act of God. This accident must have been caused by the acts or omissions of the drivers of the motorcycle or the motor vehicle involved in the accident. Therefore, the Plaintifi could do nothing to prevent the occurrence of the accident. 26. It is against this backdrop that this court finds and holds the Defendant 100% liable for the occurrence of the accident. 27. The Defendant blamed the third party for the occurrence of the accident based on the doctrine of vicarious liability. There is no dispute that the third party was the motorcycle’s registered owner per the motorcycle’s copy of records filed herein. 28. Given that the third party neither entered appearance nor filed a Statement of Defence, the Defendant submitted that the third party must contribute or indemnify him from any loss arising from the accident herein. 29. This court has already made a finding elsewhere in this judgment that the mere fact that particulars of negligence attributed to another party have not been controverted by the other party does not mean that the uncontroverted particulars of negligence must be taken by a court as the gospel truth. He who alleges must prove. 30. The doctrine of vicarious liability was discussed in Nzioka J Qasim & Yahya Limited v Ngare & 2 others (Civil Appeal E065, E066, E067 & E068 of 2022 (Consolidated)) [2023] KEHC 19994 (KLR) as follows: “ Even then, the elements of the doctrine of vicarious liability are well settled and for vicarious liability to arise, all the elements of thereof must be proved: the wrongful act must have been committed by an employee or other agent, the employee or other agent must have https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 4

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been acting within the scope of his or her employment or agency, and the employer or other person must have had the ability to control the employee or agent. In the instant matter at the expense of repeating what is already said, there is no evidence that the 1st defendant was a servant or agent of the 2nd defendant and/or driving the motor vehicle with the authority of the 2nd defendant or was not on a frolic of his own. Furthermore, even if the Plaintifis/respondents proved as they have that the 2nd defendant was the registered owner, that per se independent of proof of vicarious liability would not make the 2nd defendant reliable. In that regard, Sheridan J in the case of; Cooke vs Santos Maquel & another Civil Case No. 250 of 1983 held by that: “ … mere ownership of the car and permission were insuficient to saddle UTC with vicarious liability.” …In that regard, it sufices to note that vicarious liability is the liability held by a person or entity that is in charge (called the principal or master) of another person (called the agent or servant). The person, usually an employer, is responsible for the actions of their employee (or other subordinate) if that employee causes harm or injury to another person.” 31. In Amalgamated Logistics International Ltd & another v MMK (2020) eKLR, the Court of Appeal stated as follows: “ Vicarious liability has been well elucidated in Salmond on Torts, 1st ed at Pg 83 as; “ A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.” 32. Finally, in Joseph Cosmas Khayigila V Gigi & Co. Ltd & Another, Civil Appeal No. 119 of 1986, the court established a clear test for vicarious liability as follows: “ In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.” (emphasis added). 33. Guided by the authorities above, it is safe to conclude that the mere fact that a party was the motor vehicle or the motorcycle’s registered owner at the time of the accident does not make such a party vicariously liable for an accident involving their motor vehicle or motorcycle’s driver unless the motor vehicle or motorcycle was being used by the driver for their own benefit or under their instructions. 34. Turning to the facts of this case, it is not in dispute that the motorcycle was owned by the third party at the time of the accident. However, the Defendant did not lead any evidence to prove on a balance of probabilities that the Plaintifi was the third party’s agent or servant at the time of the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 5

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35. The evidence on the relationship between the motorcycle rider and the third party could have been easily elicited if the Defendant had insisted on cross-examining the Plaintifi in this matter. Instead, the Defendant’s counsel elected to litigate this matter through a shortcut. 36. Odunga J (as he then was ) in Ngonde Kathathi vs Francis Kivuva Kitonde [2020] eKLR, warned advocates against taking shortcuts in litigating their cases in the following word: “ .15. Parties and their legal advisers ought to take the advice of the Court of Appeal in James Njoro Kibutiri vs. Eliud Njau Kibutiri 1 KAR 60 [1983] KLR 62; [1976-1985] EA 220 that the ingenious lawyers are advised that short cuts are fine, as long as you are absolutely sure they won’t land you in a ditch. In Lehmann’s (East Africa) Ltd vs. R Lehmann & Co. Ltd [1973] EA 167 it was however, held that: “ The supposed short-cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision. However, if the parties to a civil suit agree to adopt a certain procedure and the judge, however wrongly permits such a course, then there is little that a Court of Appeal can do other than seek to make the best of an unsatisfactory position.” 37. In the circumstances, the Defendant must bear the consequences of their counsel failing to crossexamine the motorcycle’s rider on whether the third party was his employer or master at the time of the accident. 38. It is against this backdrop that this court finds and holds that the evidence on record is barely adequate to find the third party vicariously liable for the motorcycle rider’s negligence. Quantum of Damages a. General Damages for Pain and Sufiering 39. The Plaintifi pleaded in her Amended Plaint that the accident caused her to sustain a left clavicle fracture, head injury, right ankle joint dislocation, physical and psychological pains, blunt abdominal injury, blunt trauma to the left ankle, blunt trauma to the left leg, chest injury, and permanent disability at 10%. She stated as much in her witness statement on record. 40. The medical documents on record corroborated the Plaintifi’s case that he sustained the injuries pleaded in the Amended Plaint on record. 41. In the circumstances, this court finds and holds that the Plaintifi pleaded and proved on a balance of probabilities that, arising from the accident herein, she sustained a left clavicle fracture, head injury, right ankle joint dislocation, physical and psychological pains, blunt abdominal injury, blunt trauma to the left ankle, blunt trauma to the left leg, chest injury, and permanent disability at 10%. 42. 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.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 6

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43. 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 Kamakya v Kioko (Civil Appeal 189 of 2023) [2025] KEHC 14501 (KLR), where the court awarded Kshs. 800,000/= for a Plaintifi who sustained a fracture of the right mid clavicle, dislocation of the right ankle joint, bruises on the ankle, and permanent incapacity assessed at 10%. 44. Guided by the authority above, this court makes an award of Kshs. 800,000/= under this head. b. General damages for Diminished Earning Capacity, and Loss of Earnings 45. The Plaintifi pleaded for an award of general damages for diminished earning capacity and loss of earnings. 46. The Court of Appeal in S J v Francesco Di Nello & another [2015] KECA 606 (KLR) stated as follows on these claims: “ Claims under the heads of loss of future earnings and loss of earning capacity are distinctively difierent. Loss of income, which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss, which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley V John Thomson Ltd [1973] 2 Llyod’s Law ReportS 40 at pg. 14 wherein Lord Denning M.R. said as follows: “ It is important to realize that there is a difierence between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.” 47. A reading of the authority above shows that for the Plaintifi to be entitled to an award of general damages under this head, the Plaintifi must plead and prove that the accident injuries caused him to lose income or future earnings, or reduced his capacity to earn income. 48. The Plaintifi simply pleaded for an award of general damages under this head. However, the Plaintifi did not plead in his Amended Plaint how the injuries he sustained caused her to lose earnings or diminished his earning capacity. Further, the Plaintifi’s Amended Plaint, and his witness statement on record, do not speak to the income the Plaintifi used to earn before the accident and whether the injuries herein caused him to lose or diminish his earning capacity. 49. It is for the reasons above that this court finds and holds that the Plaintifi did not prove his claim for general damages for diminished earning capacity, and loss of earnings on a balance of probabilities. Therefore, this court declines to make an award under this head. Future Medical Expenses 50. The Plaintifi submitted that the medical report herein dated 05th December 2023 by Dr. Morebu proved that the Plaintifi required Kshs. 350,000/= in future medical expenses for the removal of the metal implants, hence this court should make an award of Kshs. 350,000/= under this head. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 7

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51. Be that as it may, this court notes that whereas the said medical report by Dr. Morebu shows that the Plaintifi needs Kshs. 350,000/= for the removal of the metal implants; this claim for future medical expenses was not pleaded in the Plaintifi’s Amended Plaint. 52. The law in this jurisdiction is that parties are bound by their pleadings. This court draws inspiration from the Tanzanian case of Salim Said Mtomekela Versus Mohamed Abdallah Mohamed, Dar-essalaam Court of Appeal Civil Appeal No. 149 Of 2019 (Mugasha. J.A. Kihwelq. J.A., Rumanyika. J.A), the court held: “ Pleading in law means, written presentation by a litigant in a lawsuit setting forth the facts upon which he/she claims legal relief or challenges the claims of his opponent. It includes claims and counterclaim but not the evidence by which the litigant intends to prove his case … That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored.(Emphasis added) 53. In Joshua Mungai Mulango & Another -vs- Jeremiah Kiarie Mukoma [2015] eKLR, the Court of Appeal held as follows: “ Parties are bound by their pleadings. The court is bound to determine a dispute on the basis of the pleadings filed by the parties and the evidence adduced on the basis of such pleadings. In an adversarial system such as ours, it is the parties who set the agenda for the trial by their pleadings. The need for this cannot be gainsaid. For the purpose of ensuring certainty and finality, a party cannot be allowed to resile from its pleadings without due amendment. Each party knows the case he has to meet and cannot be taken by surprise. The purpose and importance of the rules in this regard clearly is to ensure that litigation is conducted in a framework that will guarantee fair play without prolixity and needless escalation of litigation costs.” (Emphasis added) 54. It is also the law in this jurisdiction that future medical expenses must be pleaded by a party who seeks to claim the same. To this end, this court places reliance on Tracom Limited & another v Hassan Mohamed Adan [2016] KECA 150 (KLR), where the Court of Appeal held: “ …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. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”(Emphasis added) 55. Guided by the authorities above, it follows that this court cannot award the Plaintifi future medical expenses which she did not plead in her Amended Plaint. 56. It is for the reasons above that this court declines to make an award for future medical expenses. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 8

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c. Special Damages 57. The Defendant conceded that the Plaintifi pleaded and proved special damages of Kshs. 7,050/=, the same is awarded. Determination 58. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:a. Liability – 100% b. General damages - Kshs. 800,000/= c. Special Damages - Kshs. 7,050/= Net Award - Kshs. 807,050/= 59. 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. 60. The Plaintifi will have the costs of this suit. 61. The Defendant’s claim against the third party is dismissed with no order as to costs. 62. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 21ST DAY OF APRIL 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Kang’ethe for the Plaintifi Mr. Charo for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/720/eng@2026-04-21 9

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