Kisache v Yunnan International Construction Company Ltd (Civil Case E041 of 2025) [2026] KEMC 740 (KLR)

5. The Defendant also blamed the matatu driver’s negligence for the occurrence of the accident. 6. It is against this backdrop that this court set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. EVIDENCE Plaintiff’s case 7. PW1 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 02nd January 2025 and the receipt for Kshs. 6,000/= as exhibits. 8. His testimony was that arising from the accident, the Plaintiff sustained a head injury with loss of consciousness and haemorrhagic brain contusion, blunt injury to the right eye, bruises on the forehead, fracture of the skull, blunt injury to the chest, a blunt injury to the back, and a fracture of the right ulna. 9. He stated in cross-examination that whereas the Plaintiff’s treatment notes did not state whether the Plaintiff lost consciousness after the accident, the Plaintiff’s father (PW4) told him that the Plaintiff lost consciousness after the accident. 10. PW2 No. 76835 PC Isaac Kimani Njuguna of Bungoma Traffic produced the police abstract showing that the accident herein occurred on 29th December 2024 along Bungoma – Malaba road at Mayanja bridge involving motor vehicle registration number KHMA 071 P shovel and motor vehicle registration number KAU 295 N Toyota Hiace Matatu. 11. He added that the Plaintiff was among the people injured as a result of the accident. 12. He conceded in cross-examination that he was not the accident’s investigating officer, and that he did not visit the scene. He could not tell the circumstances under which the accident occurred. 13. PW3 Elias Adoka a Clinical Officer at Bungoma County Referral Hospital produced the Plaintiff’s P3 form dated 31 st December 2024

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and his outpatient card from Bungoma County Referral Hospital as exhibits corroborating PW1’s testimony on the injuries sustained by the Plaintiff as a result of the accident. 14. He added in cross-examination that the Plaintiff told him that he lost consciousness after the accident. He also stated that the X-ray examination conducted at the facility revealed that the Plaintiff had sustained fractures as a result of the accident. 15. PW4 William Omondi Owuor is the Plaintiff’s father. He testified on behalf of the Plaintiff, who, according to the medical report by Dr. Sokobe dated 02nd January 2025, was aged 4 years old at the time of the accident. 16. He also produced all the documents on the Plaintiff’s list of documents herein that were not produced by the other witnesses as exhibits. 17. His testimony was that the accident occurred when the matatu the Plaintiff had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 18. This caused the shovel’s driver to abruptly swerve to the left, thus ramming into the matatu, leading to the occurrence of the accident. 19. He conceded in cross-examination that he did not witness the occurrence of the accident. 20. He added that when he visited the Plaintiff in the hospital after the accident, the Plaintiff had not regained consciousness. Defendant’s Case 21. The Defendant did not call any witnesses to substantiate the averments in their Statement of Defence. In the circumstances, the averments in the Defendant’s Statement of Defence remained mere allegations which this court will not consider in determining this case in

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line with the holding in Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya [2020] eKLR, where the court stated thus: “Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: “In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.” ANALYSIS AND DETERMINATION 22. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 23. It is common ground that the accident herein occurred, causing the Plaintiff to sustain severe bodily injuries. There is no contest that the shovel was owned by the Defendant at the time of the accident. 24. Further, there is no evidence on record to show that at the time of the accident, the shovel’s driver was not driving the shovel for the benefit of the Defendant at the time of the accident herein. Therefore, in the event this court finds the shovel’s driver negligent for the occurrence of the accident, the Defendant will be vicariously liable for their driver’s acts or omissions. 25. The foregoing inclines this court to find and hold that the issues that commend to this court for determination are liability and quantum. Liability

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26. PW4 testified on behalf of the Plaintiff that this accident occurred when the matatu the Plaintiff had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 27. The Defendant submitted that the matatu driver’s negligence and PW4’s negligence led to the occurrence of the accident. It is noteworthy that the Defendant did not lead any evidence to substantiate the alleged negligence on the part of the matatu driver and PW4. Submissions are not evidence. In any event, this court cannot apportion liability against a party who is not a party to this suit. The mere fact that PW4 instituted this suit on behalf of the Plaintiff does not make PW4 a party to this suit in the strict sense. 28. The Defendant also submitted that in the absence of the police investigation’s diary, sketch map, OB extract, and police file, the evidence on record was not sufficient to establish negligence on the part of the Defendant’s driver. 29. This court notes that the Plaintiff’s evidence produced by PW4 on the circumstances under which the accident occurred was not controverted by the Defendant. The said evidence remained unshaken even after cross-examination by the Defendant’s counsel. 30. The Plaintiff witnessed the accident. His evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 31. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 32. In this jurisdiction, direct evidence by a passenger on the circumstances under which an accident occurred is always deemed

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sufficient to establish negligence in a road traffic accident (see Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)). 33. The Plaintiff’s uncontroverted evidence on the circumstances under which the accident occurred shows that the accident herein occurred when the shovel’s driver overtook the matatu when it was not safe to do so, only for the said driver to ram into the matatu as he tried to go back to his lane. 34. The above uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence on the part of the shovel’s driver, which could only be dislodged by the shovel’s driver. Unfortunately, the Defendant chose not to call the shovel driver as a witness in this case. 35. to The foregoing shows that the Defendant deliberately chose not lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 36. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”

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37. Guided by the authority above, it follows that the failure by the Defendant’s driver to testify only leads to the inevitable conclusion that had the said driver testified, his evidence would have been adverse. 38. In any event, it is also not lost to this court that the Plaintiff, who was only a passenger in the matatu, was neither in control of the matatu nor the shovel. Furthermore, there is no evidence on record to suggest that the Plaintiff was negligent at the time of the accident. 39. In the circumstances, the Plaintiff cannot be blamed for the occurrence of the accident in line with the holding in Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Anothim (2017) eKLR, where 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.” 40. This court also notes that the Plaintiff was 4 years old at the time of the accident. The law in this jurisdiction is that children below the age of ten years cannot be guilty of contributory negligence unless, at the time of the act or omission, they had the capacity to know that they ought not to have done the act or the omission. This legal position can be gleaned from Bashir Ahmed Butt V Uwais Ahmed Khan by M. Akmal Khan (198288) I KAR I, where two minors were crossing the road. One was struck down by a vehicle, whilst the other crossed safely to the other side. The High Court had held that there was no contributory negligence by the minor. On appeal, the Court of Appeal upheld the said finding by the Court of Appeal and stated, as per Madan JA:

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“The practice of the civil courts ought to be that normally a person under the age of 10 years cannot be guilty of contributory negligence and thimeafter in so far as a young person is concerned only upon clear proof that the . . . making the omission he had capacity to know that he ought not to do the act or make the omission.” 41.The above position was also taken by the Court of Appeal in Rahima Tayab & Another v. Anna Mary Kinanu (an infant suing by his next friend) (1982-88) 1 KAR 9. 42. Nothing on record suggests that the Plaintiff had the capacity to understand what ought to be done or what ought not to be done to avoid the occurrence of the accident. Therefore, the Plaintiff cannot be blamed for the occurrence of the accident. 43. The matatu driver and the shovel driver owed the Plaintiff a duty of care to ensure that the Plaintiff reached his destination safe and sound. That duty of care was breached when the accident occurred, causing severe bodily injuries to the Plaintiff. 44. The long and short of it all is that the Defendant failed to dislodge the prima facie case of negligence established against them by the Plaintiff. In the circumstances, the Defendant must be held liable for their driver’s negligence. 45. The foregoing inclines this court to find and hold the Defendant 100% liable for the occurrence of the accident. Quantum of Damages (a) 46. General Damages for pain and suffering The injuries pleaded by the Plaintiff in paragraph 6 of his Plaint were corroborated by PW4’s oral evidence as well as the medical evidence placed before this court by the medical evidence led by PW1 and PW3.

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47. The medical evidence placed before this court by the Plaintiff was not controverted by the Defendant. 48. In the absence of medical evidence to controvert the Plaintiff’s evidence on the injuries he sustained as a result of the accident, this court finds that the Plaintiff proved on a balance of probabilities that the accident caused him to sustain a head injury with loss of consciousness and haemorrhagic brain contusion, blunt injury to the right eye, bruises on the forehead, fracture of the skull, blunt injury to the chest, a blunt injury to the back, and a fracture of the right ulna, which injuries were assessed as grievous harm. 49. It is well settled in this jurisdiction that the assessment of damages must take into account the principle in the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR that comparable injuries should be compensated by comparable awards. 50. In Kenya Power Lighting Comp. Ltd & Another v Zakayo Saitoti Naingola & Another [2008] eKLR, Nambuye, J. (as she then was) listed the following principles on assessment of damages: a) Damages should not be inordinately too high or too low b) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. d) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 51.This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record by the parties herein on quantum.

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52. 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. 53. The Defendant, on the other hand, took the position that the Plaintiff sustained multiple soft tissue injuries; therefore, an award of Kshs. 100,000/= was reasonable under this head. 54. It is evident from the submissions by the parties’ counsel on quantum that the counsel on record did not appreciate the gravity of the injuries sustained by the Plaintiff herein. Their authorities on quantum refer to Plaintiffs who sustained soft tissue injuries, yet the Plaintiff herein sustained multiple soft tissue injuries and multiple fractures. Those authorities are not applicable in this case. 55. Given the foregoing, it will be a grave injustice for this court to award the Plaintiff Kshs. 500,000/= under this head just because his counsel submitted that such an award is sufficient under this head. 56. A court is not bound by written submissions filed by the parties. A court is obligated to do justice by restating the law in every instance, regardless of the submissions made by the parties. 57. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Maintenance Limited and Another v WA (a minor suing through father next friend SKH) ELD HCCA No. 52 of 2008 [2015] eKLR, where the court upheld an award of Kshs. 800,000/= in 2015, where a child sustained a depressed fracture of the skull on the left temporal area, brain concussion, soft tissue injuries, and loss of consciousness for 3 hours. 58. In Muriithi v Muriu (Civil Appeal E097 of 2023) [2025] KEHC 14879 (KLR), the court awarded Kshs. 1,000,000/= for a head injury (cerebral concussion) with loss of consciousness, injury to the chest causing fractures of five (5) ribs on the left side with pulmonary

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oedema and effusion, and a fracture of the right clavicle (collar bone). The Plaintiff in this case was admitted in hospital for several days and underwent several surgeries. 59. Guided by the authorities above and taking into account the fact that the Plaintiff herein was treated as an outpatient, this court finds an award of Kshs 800,000/= to be reasonable compensation under this head. (b) 60. Special Damages The Plaintiff pleaded Special Damages of Kshs. 6,635/= in paragraph 6 of his Plaint. The receipts on record proved the pleaded Special Damages 61. It is against this backdrop that this court awards the Plaintiff the pleaded and proved Special Damages of Kshs. 6,635/= DETERMINATION 62. The upshot of the above is that judgment is entered against the Defendant in the following terms: Liability………..100% in favour of the Plaintiff General Damages…………………...………Kshs. 800,000/= Special Damages……………………...…….Kshs. 6,635/= Total Award……………………………...Kshs. 806,635/= 63. 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. 64. The Plaintiff will have the costs of this suit. 65. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 17th day of March 2026 T.O. OMONO

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SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Shikhu for the Plaintiff Ms. Kinyanjui for the Defendant C/A: Mr. Rioba

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