Wamalwa v Muthee & another (Civil Case E522 of 2024) [2026] KEMC 730 (KLR)

5. It was further pleaded by the Plaintiff that she 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 them by the Plaintiff. 7. The 2nd Defendant took the position that if the accident herein occurred, then the same was caused or contributed by negligence by the Plaintiff and the motorcycle rider. 8. In the circumstances, the 2nd Defendant urged this court to dismiss this suit with costs. Given the divergent positions taken by the Plaintiff and the 2 nd Defendant herein regarding the circumstances under which the accident occurred, this matter proceeded to full hearing for the said parties to prove the averments in the respective pleadings on a balance of probabilities. 9. A summary of the evidence led by the 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 stated in cross-examination that the injuries sustained by the Plaintiff were soft tissue injuries from which the Plaintiff must have fully recovered from. He added that the Plaintiff did not disclose to him about loss of consciousness after the accident, and that the Plaintiff was treated as an outpatient. 14. PW3 Agnes Wabwile Wamalwa adopted her witness statement dated 06th December 2024 as her evidence in chief. Her testimony was that the accident occurred when the

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motor vehicle rammed into the motorcycle she had boarded causing her to sustain severe injuries. 15. She stated in cross-examination that she had worn a jacket and a helmet at the time of the accident. She also stated that the motor vehicle hit their motorcycle from behind. 16. 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, bruises to the forehead and the right gluteal region, and blunt injuries to the forehead, the right gluteal area, the chest, and the back. He added that at the time of examination, the Plaintiff had healed scars on the forehead, right gluteal region, and both forearms. 17. 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)). 18. In cross-examination, he stated that the Plaintiff’s alleged brief loss of consciousness after the accident was not captured in the Plaintiff’s initial treatment notes. Defendants’ Case 19. 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 20. 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.

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21. The evidence on record leaves no doubt in this court’s mind that the accident herein occurred and the same was reported at Bungoma Police Station vide OB. No. 81/06/01/2023. 22. It is against this backdrop that this court finds and holds that the issues which commend to this court for determination are liability and quantum. Liability 23. The copy of records dated 28th November 2024 from the Registrar of Motor Vehicles shows that the 1st Defendant was the registered owner of the motor vehicle. The police abstract, on the other hand, shows that the 2 nd Defendant was the owner of the motor vehicle. 24. It should be remembered that the Plaintiff pleaded in her Plaint that the 2nd Defendant was the motor vehicle’s beneficial owner at the time of the accident. 25. There is no clarity in the said police abstract on whether the 2 nd Defendant was the motor vehicle’s registered owner, beneficial owner, or insured. That clarity could only be given by the police officer who made that entry in the police abstract. Unfortunately, PW1, who produced the police abstract, did not give such clarity. 26. The question of whether the 2nd Defendant was the motor vehicle’s beneficial owner could also be obtained from the motor vehicle’s certificate of insurance or insurance policy. The said documents were also not placed before this court. 27. In the absence of the said clarity and the said documents, one wonders how the police decided that the 2nd Defendant was the motor vehicle’s owner. 28. The Plaintiff’s saving grace is that the 2nd Defendant, in her written submissions, has neither disputed being the motor vehicle’s beneficial owner nor framed the question of whether she was the motor vehicle’s beneficial owner as an issue for determination by this court. 29. The law in this jurisdiction is that the entries in the register of motor vehicles on the ownership of a motor vehicle is prima-facie evidence of ownership of a motor vehicle. 30. In the circumstances, this court takes the position that the Plaintiff proved on a balance of probabilities 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.

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31. There is no evidence on record by the Defendants to controvert the Plaintiff’s evidence that the motor vehicle’s driver was their agent at the time of the accident. That being the case, it follows that the Defendants must be held vicariously liable for their driver’s acts of negligence. 32. It is common ground that the accident herein occurred and that the 2 nd Defendant was the driver of motor vehicle registration number KDC 540 D at the time of the accident. 33.The evidence on record shows that the Plaintiff was a pillion passenger on the motorcycle which was involved in the accident. Therefore, she was neither in control of the motorcycle or the motor vehicle at the time of the accident. 34.The motor vehicle and the motorcycle, which were involved in the accident, owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safely. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 35.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. 36.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 –VsFrancis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR).

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37.There is no evidence on record to suggest that the Plaintiff acted negligently, leading to the occurrence of the accident. 38.Accidents do not just occur; they are caused either by acts of God, human error, or mechanical failure. There is nothing on record to suggest that the accident herein was caused by an act of God. This accident must have been caused by the acts or omissions by the drivers of the motorcycle or the motor vehicle involved in the accident. 39.The Plaintiff had the option of suing either of the drivers or suing them jointly. She also had the option of suing the owners of the motor vehicle or the motorcycle. She chose to sue the motor vehicle’s owner. 40.It is against this backdrop that this court finds and holds the Defendants jointly and severally 100% liable for the occurrence of the accident. Quantum of Damages (a) General Damages for pain and suffering 41. The Plaintiff relied on testimony, her P3 form dated 11th January 2023, outpatient treatment notes from Bungoma County Referral Hospital dated 06 th January 2023, and the medical report dated 14th November 2024, to prove on a balance of probabilities that the accident herein caused her to sustain the injuries enumerated in paragraph 6 of the Plaint. 42. A reading of the Plaintiff’s treatment notes from Bungoma County Referral Hospital shows that there is no mention of the Plaintiff suffering a brief loss of consciousness after the accident. The Plaintiff’s alleged loss of consciousness after the accident was also not captured in the Plaintiff’s P3 form, filled on 11th January 2023. 43. One wonders how the Plaintiff suddenly remembered during his statement recording on 06th December 2024 and during his medical examination on 14th November 2024, several months after the occurrence of the accident, that she suffered a brief loss of consciousness. sustained the injuries pleaded in the Plaint. 44. This court also notes that whereas the Plaintiff’s medical report dated 14 th November 2024 shows that the Plaintiff had healed scars on the forehead, the right gluteal region,

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and on both forearms at the time of the accident, the said scars were not pleaded in the Plaint. 45. 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) 46. 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…” 47. Given the analysis above, and guided by the authorities above, this court will not consider the Plaintiff’s alleged loss of consciousness and the unpleaded scars in awarding general damages under this head. 48. It is against this backdrop that this court finds and holds that the Plaintiff proved on a balance of probabilities that, arising from the accident herein, she suffered bruises to the forehead and the right gluteal region, and blunt injuries to the forehead, the right gluteal area, the chest, and the back. 49. 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 as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 50. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in the cases hereunder. 51. 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 52. 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

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minor had sustained soft tissue injuries, which were blunt object injury to the head, neck, limbs, thorax, and abdomen. 53. 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. 54. 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. 55. Guided by the authorities above, and more particularly the Ondicho case (supra) determined in April 2025, and considering the 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 56. The Plaintiff pleaded at paragraph 6 of her Plaint Special Damages of Kshs. 21,550/=. 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. 57. The Plaintiff also pleaded for an award of medical expenses without pleading the exact amount of the medical expenses sought. The omission to plead the amount of the claimed medical expenses incurred by the Plaintiff as a result of the accident was fatal to the Plaintiff’s claim for medical expenses. 58. 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. 59. 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)). 60. The receipts on record only proved Kshs. 6,000/= for the medical report and Kshs. 550/= for the copy of records.

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61. Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 6,550/=. DETERMINATION 62. The upshot of the foregoing is that judgment is hereby entered against the Defendants jointly and severally in the following terms:(a) Liability – 100% in favour of the Plaintiff (b) General damages - Kshs. 100,000/= (c) Special Damages - Kshs. 6,550/= Net Award - Kshs. 106,550/= 63. 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. 64. The Plaintiff will have the costs. 65. 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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