Shilaya v Simba Coach Company Ltd & another (Civil Case E496 of 2024) [2026] KEMC 734 (KLR)

4. Arising from the accident, the Plaintiff reportedly sustained a head injury with loss of consciousness, bruises on the forehead, bleeding from the ears, cut wound on the tongue, bruises on the right forearm, bruises on the right fourth finger, and bruises on both fingers. The Plaintiff added that the accident caused her to spend Kshs. 11,900/= hence this claim for general damages and special damages. 5. The Defendants entered appearance and filed a Statement of Defence dated 06th February 2025 denying ownership of the motor vehicle and the occurrence of the accident. They pleaded in the alternative that if the accident occurred, then the same was caused by or contributed by negligence by the Plaintiff as well as the rider and/or owner of motorcycle registration number KMEY 163 X as set out in paragraph 5 of the Statement of Defence. 6. The Defendants also pleaded in paragraph 9 of their Statement of Defence that this suit was founded on a fraudulent accident. Therefore, the Defendants urged this court to dismiss this case with costs. 7. The divergent positions taken by the parties herein regarding this case prompted this court to fix this matter for hearing, so that the parties may prove, on a balance of probabilities, the averments in their pleadings. EVIDENCE 8. The evidence adduced before this court is summarized below.

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Plaintiff’s Case 9. PW1 Elias Adoka a Clinical Officer from Bungoma County Referral Hospital produced the Plaintiff’s treatment notes dated 16 th October 2024 (Pexh.1), receipt for Kshs. 150/= (Pexh.2), and a P3 form dated 16th October 2024 (Pexh.5) as exhibits. 10. He testified that he examined the Plaintiff at their facility on 16 th October 2024 when the Plaintiff presented the injuries set out in the treatment notes and the P3 form on record. 11. In cross-examination, he conceded that the Plaintiff sustained soft tissue injuries and must have healed by now. 12. PW2 Dr. Joseph Sokobe examined the Plaintiff on 28th October 2024 and prepared a medical report on the same date. He testified that he charged the Plaintiff Kshs. 6,000/= for the medical report. 13. He produced the medical report dated 28 th October 2024 (Pexh. 7) and the receipt of Kshs. 6,000/= (Pexh. 8) as exhibits. 14. He conceded in cross-examination that the Plaintiff’s alleged loss of consciousness was not captured in her treatment notes. He described the injuries sustained by the Plaintiff as soft tissue injuries which must have healed by now. 15. PW3 No. 81576 PC Jackline Ochieng of Bungoma Police Station produced the accident’s police abstract. She could not tell the circumstances under which the accident occurred.

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16. PW4 Mercy Kavugwi Shilaya adopted her witness statement dated 23rd October 2024 as her evidence in chief. 17. She testified that the accident occurred when the Defendants’ motor vehicle rammed into the motorcycle she had boarded from behind. She produced the copy of records (Pexh.9), receipt for Kshs. 350/= (Pexh. 10), and the other documents not produced by the other witnesses as exhibits. 18. In cross-examination, she maintained that she had worn a reflector jacket and a helmet at the time of the accident, and that she was the only pillion passenger. 19. She could not tell if she lost consciousness after the accident. Defendants’ Case 20. The Defendants did not call witnesses to substantiate the averments in their Statement of Defence. In the circumstances, the averments in the Defendants’ Statement of Defence remain mere allegations which this court will not consider in determining this suit. ANALYSIS AND DETERMINATION 21. This court has duly considered the pleadings, the evidence on record, as well as the written submissions filed by the parties. 22. The uncontroverted evidence placed before this court by the Plaintiff proved on a balance of probabilities that the accident herein occurred, and as a result of the said accident, the Plaintiff suffered loss and damage.

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23. 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 24. The evidence on record shows that the Plaintiff was a pillion passenger at the time of the accident. Therefore, she was neither in control of the motorcycle nor the motor vehicle that was involved in the accident herein. 25. It goes without saying that the motorcycle and the motor vehicle owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safe and sound. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 26. 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. 27. . (See also Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango – Vs- Charity Wanjiku (2017) eKLR). 28. The authorities above show 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 29. There is no evidence on record to suggest that the Plaintiff acted negligently, leading to the occurrence of the accident.

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30. In the circumstances, this court finds and holds the Defendants jointly and severally 100% liable for the occurrence of the accident. Quantum of Damages (a) 31. General Damages for pain and suffering The Plaintiff pleaded in her Plaint that arising from the accident, she sustained a head injury with loss of consciousness, bruises on the forehead, bleeding from the ears, cut wound on the tongue, bruises on the right forearm, bruises on the right fourth finger, and bruises on both fingers. 32. PW1 and PW2 were at pains to explain how the Plaintiff reportedly lost consciousness after the accident, yet the same had not been captured in the Plaintiff’s initial treatment notes. The said medics’ misery was compounded when the Plaintiff informed this court during re-examination that she could not tell if she lost consciousness as a result of the accident herein. 33. This court takes the view that PW1 and PW2 cannot purport to have observed an injury which a patient was not aware of. This is a proper case for this court to depart from the expert evidence led by PW1 and PW2 that the Plaintiff lost consciousness after the accident. 34. Be that as it may, the Plaintiff’s testimony corroborated the medical evidence on record to the effect that the accident herein caused her to sustain a headache, bruises on the forehead, bleeding

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from the ears, a cut wound on the tongue, bruises on the right forearm, bruises on the right fourth finger, and bruises on both fingers. 35. The injuries above are soft tissue injuries. PW1 and PW2 were all in agreement that the Plaintiff must have healed by now. The Plaintiff confirmed that she healed from the injuries sustained in the accident. 36. The law on assessment of damages is that comparable injuries attract comparable awards. This court has given due regard to the written submissions on record on quantum. 37. The injuries sustained by the Plaintiff in this case are almost similar to the injuries sustained by Plaintiffs in the cases set out below. 38. In SMK v DC (Suing Through Mother and Next Friend) NCK -Minor) & another (Civil Appeal E011 of 2023) [2025] KEHC 1867 (KLR), the court upheld an award of Kshs. 150,000/= for a blunt injury to the neck, a blunt injury to the back, and a blunt injury to the lower limbs. 39. In Mangenge v Masai & another (Civil Appeal E020 of 2022) [2025] KEHC 9669 (KLR), the court made an award of Kshs. 150,000/= for moderate soft tissue injuries. 40. Guided by the authorities above, and because the accident caused the Plaintiff to suffer a headache and bleeding in the ears, this court makes an award of Kshs. 180,000/= under this head. (b) Special Damages

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41. The Plaintiff pleaded in paragraph 7 of her Plaint for an award of Kshs. 11,900/= Special Damages comprising of Kshs. 6,000/= for the medical report, Kshs. 5,350/= for medical expenses, and Kshs. 550/= for a copy of motor vehicle records. 42. Where a Plaintiff pleads Special Damages, the Plaintiff is obligated to strictly prove the same before an award is made in their favour. 43. The Plaintiff placed before this court a receipt for Kshs. 6,000/= for the medical report, a receipt for Kshs. 350/= for medical expenses, and a receipt for Kshs. 550/= for a copy of motor vehicle records. 44. The Defendants neither objected to the production of the receipts above nor impeached the contents of the said receipts. 45. Flowing from the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 6,900/= DETERMINATION 46. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: a) Liability………………………………………100% b) General Damages…………………...………Kshs. 180,000/= c) Special Damages……………………...…….Kshs. 6,900/= Total Award…………………………………Kshs. 186,900/=

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47. The General Damages and future medical expenses 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. 48. The Plaintiff will have the costs of this suit. 49. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 27th day of January 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Kinyanjui for the Defendant C/A: Mr. Rioba

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