Juma v Albrima General Cargo Ltd (Civil Case E176 of 2025) [2026] KEMC 752 (KLR)

4. Arising from the accident, the Plaintifi averred that he sustained the injuries, loss or damage set out in paragraph 5 of the Plaint hence this suit. 5. The Defendant neither entered appearance nor filed a Statement of Defence. Consequently, an interlocutory judgment was entered against the Defendant on 02nd September 2025 prompting this matter to proceed by way of formal proof. Evidence Plaintifi ’s Case 6. PW1 Kevin Juma Simiyu adopted his witness statement dated 25th April 2025 as his evidence in chief. 7. His testimony was that on the date of the incident, while riding his motorcycle along Bungoma – Malaba road from Malaba general direction, headed to Bungoma general direction, the motor vehicle, which was coming from the opposite direction at a high speed, lost control, veered ofi its lane into his lane, and knocked him down. 8. He further stated that he was carrying two pillion passengers at the time of the accident. 9. He also produced the documents listed in his list of documents herein as exhibits, save for the police abstract. 10. PW2 No. 76835 PC Isaac Kimani Njuguna produced the accident’s police abstract dated 03rd March 2025 showing that the accident herein occurred on 01st March 2025 at 1030hrs along Bungoma – Malaba road at Kimwanga area and that the said accident was reported at Bungoma Police Station vide OB. No. 44/01/03/2025. Analysis & Determination 11. This court has given due regard to the pleadings, evidence, the written submissions, as well as the authorities on record. 12. It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: ‘’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’ 13. Courts in this jurisdiction have also rendered themselves on the question of the burden of proof and the legal burden placed on the Plaintifi to prove their case to the required standards, even in instances where the Defendant has failed to make an appearance. 14. In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, it was stated that a Court should not take a Plaintifi’s case as truthful without interrogation for the reason only that it is uncontroverted. 15. Similarly, in Kirugi and Another v Kabiya & 3 others (1987) KLR 347, the Court of Appeal held that; “ The burden was always on the Plaintifi to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintifi of the duty to prove the case to the required standard.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/752/eng@2026-03-19 2

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16. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal held that: “ It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an afidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 17. The common thread running through the authorities above is that the Plaintifi, even in the absence of evidence to the contrary by the Defendant, is duty-bound to prove his case on a balance of probabilities. 18. Guided by the authorities above, this court will proceed to determine whether the Plaintifi proved their case on a balance of probabilities. 19. The evidence placed before this court by the Plaintifi proved on a balance of probabilities that the accident herein occurred, the Defendant owned the motor vehicle at the time of the accident, and that the Plaintifi sustained bodily injuries at the time of the accident. 20. There is nothing on record to suggest that the Defendant’s driver was on a frolic of his own at the time of the accident. Therefore, in the event the motor vehicle driver is found negligent for the occurrence of the accident, the Defendant will be vicariously liable for their driver’s acts or ommissions. 21. Given the above, this court takes the view that the only issues for determination are liability and quantum. Liability 22. It is given that the Plaintifi’s version of events on how the accident occurred is uncontroverted. He testified that the motor vehicle lost control, vered into his lane and caused the accident. 23. On the face of it, one may be tempted to make a finding that the Defendant’s driver was wholly to blame for the occurrence of the accident. 24. However, it is worth noting that the Plaintifi did not state the steps he took to avoid the occurrence of the accident. A prudent driver does not remain in his lane and wait to be knocked down by another motor vehicle that has lost control. That other driver owes himself a duty of care to either swerve or brake to avoid the occurrence of the accident. The Plaintifi did none of that. 25. Further, the Plaintifi admitted that he was carrying two pillion passengers at the time of the accident. It thus follows that the Plaintifi was at the time of the accident in contravention of section 60 (1) of the Traffic Act, which requires a motorcycle to carry one pillion passenger. The consequence of contravention of trafic rules by a road user is well captured in Section 68 (3) of the Traffic Act, which provides that: “ A failure on the part of any person to observe any provisions of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in the proceedings be relied upon by any party to the proceedings as tending to establish to negative any liability which is in question in those proceedings.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/752/eng@2026-03-19 3

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26. It has been held in this jurisdiction that the reason behind limiting the number of pillion passengers to one is neither whimsical nor dogmatic; it is a safety measure, and that overloading a motorcycle afiects its stability and maneuverability, thus contributing to the occurrence of accidents (see Mwangi & another v Olum (Suing as the Legal Admin of the Estate of the Late Alice Akoth Okeyo - Deceased) (Civil Appeal 089 of 2023) [2025] KEHC 7945 (KLR)). This argument is based on the fact that an overloaded motorcycle may become dificult to swerve to avoid the occurrence of an accident, or it may also increase the motorcycle’s braking distance. 27. The foregoing shows that the Plaintifi contributed to the occurrence of the accident by failing to take steps to prevent the occurrence of the accident and carrying excess pillion passengers. Therefore, the Plaintifi must shoulder some blame for the occurrence of the accident. 28. Taking the totality of the circumstances of this case into consideration, this court apportions liability in the ratio of 80%:20% in favour of the Plaintifi against the Defendant. Quantum of Damages A. General Damages for pain and sufiering 29. The Plaintifi’s oral testimony on the injuries he sustained as a result of the accident when read together with his outpatient card dated 01st March 2025 from Bungoma County Referral Hospital, P3 form dated 01st March 2025, and the medical report by Dr. Mulianga Ekesa dated 10th March 2025 show that the Plaintifi sustained moderate soft tissue injuries pleaded in the Plaint as a result of the accident. The said injuries were assessed as harm. 30. The principle on the award of damages is settled. In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the court set out the principles that guide the court in the assessment of damages in a personal injury case. The considerations include: a. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. b. The award should be commensurable with the injuries sustained. c. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. d. Previous awards to be taken into account to maintain stability of awards but factors such as infiation should be taken into account. e. The awards should not be inordinately low or high. 31. Guided by the authority above, this court finds the cases below relevant in the assessment of general damages herein. 32. 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 33. 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. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/752/eng@2026-03-19 4

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34. 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. 35. 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. 36. Guided by the authorities above, and more particularly the Ondiso case (supra) determined in April 2025, and considering infiation trends in this country since April 2025 to date, this court makes an award of Kshs. 100,000/= under this head. B. Future medical expenses 37. The Plaintifi pleaded for future medical expenses in his Plaint. 38. The Court of Appeal in Tracom Limited & Another v Hasssan Mohamed Adan [2009] eKLR stated as follows regarding claims for future medical expenses: “ …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 v 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...” We understand that to mean that once the plaintifi pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintifi may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…” 39. The Plaintifi having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintifi needed to surmount before an award under this head is made is to prove the pleaded future medical expenses. 40. The medical report by Dr. Ekesa shows that the Plaintifi needs anti-infiammatory agents and psychosocial support. The Plaintifi, on the other hand, testified that he was still using painkillers for the pain and aches arising from the accident. 41. However, Dr. Ekesa did not testify before this court to lead evidence on the cost of the future medical expenses and the duration of the future treatment stated in the medical report herein. 42. Be that as it may, having considered the nature of injuries sustained by the Plaintifi, and his current health complaints, it is this court’s considered view that an award of Kshs. 10,000/= will be suficient compensation for painkillers under this head. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/752/eng@2026-03-19 5

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C. Special Damages 43. The Plaintifi pleaded at paragraph 5 of his Plaint Special Damages of Kshs. 7,840/=. The receipts on record proved the pleaded Special Damages to the required standards. 44. Given the above, this court finds and holds that the Plaintifi pleaded and proved Special Damages of Kshs. 7,840/=. Determination 45. The upshot of the foregoing is that judgment is hereby entered jointly and severally against the Defendants in the following terms:a. Liability – 80%:20% in favour of the Plaintifi b. General damages - Kshs. 100,000/= c. Future medical expenses - Kshs. 10,000/= d. Special Damages - Kshs. 7,840/= Grand Award -Kshs. 117,840/= Less 20% Net Award - Kshs. 94,272/= 46. 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. 47. The Plaintifi will have the costs of this suit subject to the ratio of liability herein. 48. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 19TH DAY OF MARCH 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Khisa h/b for Mr. Bwonchiri for the Plaintifi C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/752/eng@2026-03-19 6

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