Nangabo v Owino (Civil Case E215 of 2025) [2026] KEMC 768 (KLR)

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 Lawrence Oduori Nangabo adopted his witness statement dated 07th May 2025 as his evidence in chief. His testimony was largely a rendition of the averments in the Plaint. Therefore, it will not serve any purpose for this court to regurgitate those averments in this judgment. 8. The Plaintiff also produced all the documents in his list of documents herein as exhibits. 9. In cross-examination, he blamed the motor vehicle driver for the occurrence of the accident since the said driver was speeding. He reiterated that he lost consciousness during the accident and only regained consciousness after the accident. Defendant’s Case 10. 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 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 11. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties.

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12. The uncontroverted evidence on record is that the accident herein occurred when the Plaintiff was a lawful passenger in the Defendant’s motor vehicle. The evidence on record also proves on a balance of probabilities that the Plaintiff was injured as a result of the accident. 13. In the circumstances, this court is of the considered view that the issues for determination are liability and quantum. Liability 14. The Plaintiff’s testimony was that he was a lawful passenger in the Defendant’s motor vehicle, which lost control and rolled. The police abstract dated 28 th March 2025, which was produced by consent of the parties herein, shows that the accident was selfinvolving, thereby corroborating the Plaintiff’s testimony on the circumstances under which the accident occurred. 15. 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. 16. 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. 17. In this jurisdiction, direct evidence by a passenger on the circumstances under which an accident occurred is always deemed sufficient to establish negligence in a road traffic accident (see Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)). 18. The foregoing proves on a balance of probabilities that the accident herein was caused when the Defendant’s motor vehicle lost control and rolled. Accidents do not just occur; they are caused either by an act of God or human negligence. At least, based on the evidence on record, this accident was not caused by an act of God. Therefore, this is a proper case for this court to be reminded of Mumbi Mugi v The Co-operative Bank of Kenya Limited & Others Civil Appeal No. 214 of 2004, where the Court of Appeal opined that:“If a “matatu” is driven in a normal and at reasonable speed, there would be no reason why it would run into a hippopotamus or veer off the road and smash into a tree. If a vehicle does any of these things, some explanation ought to be offered by the driver of the vehicle ….. vehicles, when normally driven at reasonable speed, do not just do certain things. Though the vehicle is being driven on a wet road by itself would not make the vehicle swerve onto the path of on-coming vehicle. If something of the kind happens there must be an explanation as to the reason for the particular event happening. Vehicles when normally driven on the correct side of the road and at reasonable speed do not run into each other.”

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19.The Plaintiff having proved on a balance of probabilities that the accident herein occurred when the motor vehicle he had boarded lost control and rolled, a prima facie case of negligence was established against the motor vehicle driver, requiring the said driver to dislodge that prima facie case of negligence against him by explaining what caused the Defendant’s motor vehicle to lose control and roll. 20.However, the motor vehicle driver did not testify before this court on the circumstances under which the motor vehicle he was driving lost control and rolled. 21.The circumstances of this case are on all fours with the circumstances in Ali Ramadhan v Isaac Bosire [2020] KEHC 5128 (KLR)18, where the court held: “The appellant in this appeal testified that the vehicle was moving at high speed whereupon it veered off the road and overturned. There was no explanation from the driver of the motor vehicle as to why the motor vehicle veered off the road and overturned. The reason why the vehicle veered off the road and overturned was something in the knowledge of the driver of the motor vehicle. The fact that the vehicle overturned and no explanation was offered as to why it did so invites an inference of negligence on the part of the driver of the motor vehicle. In the premises I find that the driver of the motor vehicle was negligent. The finding of the trial magistrate is therefore set aside and replaced with a finding that the respondent was 100% liable for the accident.” 22. The failure by the motor vehicle driver to tender evidence on why the motor vehicle lost control and rolled proved on a balance of probabilities that the motor vehicle driver’s negligence caused the occurrence of the accident.

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23. The Defendant and the motor vehicle driver owed the Plaintiff a duty of care to ensure that the Plaintiff reached her home safely. That duty of care was breached when the Plaintiff failed to reach her destination safe and sound. 24. The Plaintiff, being a passenger, was not in control of the motor vehicle at the time of the accident. Therefore, he could not do anything to prevent the occurrence of the accident. 25. In Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Anothim (2017) eKLR, the court held as follows on the liability of a passenger in an accident; “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.” 26. The authority above shows that the only time a passenger can be blamed for the occurrence of an accident is where the Defendant proves on a balance of probabilities any particulars of negligence the Defendant attributes to the Plaintiff (see Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). 27. This court has already stated in this judgment that the Defendant did not place before this court any evidence to prove the particulars of negligence he attributed to the Plaintiff. In the circumstances, the Plaintiff cannot be blamed for the occurrence of the accident. 28. Guided by the authorities above, and bearing in mind that the Defendant did not dispute the fact that the motor vehicle driver was his agent at the time of the accident, this court finds the Defendant 100% liable for the occurrence of this accident. Quantum of Damages (a) General Damages for pain and suffering 29. The injuries pleaded by the Plaintiff in paragraph 7 of his Plaint were corroborated by PW4’s oral evidence, as well as the medical report dated 23 rd April 2025 by Dr. Joseph Sokobe. 30. The Defendant’s counsel took issue with the failure by the Plaintiff’s initial treating doctor to capture the Plaintiff’s initial treatment notes and P3 form that the Plaintiff lost consciousness as a result of the accident.

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31. The Plaintiff, on the other hand, reiterated that he lost consciousness as a result of the accident. 32. It is given that the Plaintiff’s temporary loss of consciousness was not captured in his initial treatment notes. However, it is not lost to this court that the Plaintiff’s oral testimony can be used to prove the injuries sustained by the Plaintiff. This position can be gleaned from numerous authorities (see Otieno v Mwea County Medical Centre Ltd & 2 others (Civil Appeal 49 of 2021) [2023] KEHC 22474 (KLR), and the learned treatise The Casebook on Measure of Damages for Bodily Injuries by Richard Kuloba at Page 3- 5, where it is recorded that:The primary source of information about the injuries sustained by a person is the victim himself. He should tell the tale… The information from the victim is valuable, and may be complementary to a doctor’s reports. It should be obvious that while medical reports from treating doctors and hospitals are no doubt of tremendous value, still they may have accidental omissions of some injuries, or they may contain incorrect labelling of the side of the body harmed, or there may be typographical mistakes. Accordingly, patients’ own statements should not be easily dismissed merely on the ground that those statements happen not to match up to the injuries mentioned in a hospital or doctors’ report. 33. The authority above encourages courts to be slow in dismissing the Plaintiff’s testimony on the injuries sustained just because some of those injuries are not captured in the Plaintiff’s initial treatment notes. This court understands this to mean that if a Plaintiff strikes a court as a credible witness, the court ought to believe the Plaintiff’s testimony on the injuries he sustained as a result of an accident, since such a Plaintiff is the primary source of the injuries he sustained as a result of the accident. 34. This court had the benefit of observing the Plaintiff’s demeanour when he testified before this court on the injuries he sustained as a result of the accident. He was forthright that he

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had a temporary loss of consciousness as a result of the accident. The Plaintiff was a credible and truthful witness. This court finds no reason to disbelieve his testimony on the injuries he sustained as a result of the accident. 35. The foregoing inclines this court to find and hold that the Plaintiff proved on a balance of probabilities that the accident caused him to sustain a head injury with a brief loss of consciousness, a cut wound on the right parietal scalp, and blunt injuries to the right arm, chest, and back. 36. 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. 37. 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. 38.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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39. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Njuguna v Nasimiyu (Civil Appeal E097 of 2023) [2026] KEHC 170 (KLR), where the court upheld an award of general damages of Kshs. 220,000/= for blunt injury to the forehead, mild head injury with brief loss of consciousness, blunt injury to the back, bruises on the left leg anterior and blunt injury to both legs. 40. Guided by the authority above, this court finds an award of Kshs 200,000/= to be reasonable compensation under this head. (b) Special Damages 41. The Plaintiff pleaded special damages of Kshs. 10,750/= in paragraph 7 of his Plaint. The claimed special damages comprised Kshs. 2,000/= for treatment expenses, Kshs. 6,000/= for the medical report, Kshs. 2,000/= for filling the P3 form, Kshs. 200/= for the police abstract, and Kshs. 550/= for the motor vehicle search. 42. The police abstract herein was issued by a police officer. The Plaintiff’s P3 form was filled in a public hospital. Therefore, the Plaintiff cannot seek to recover from the Plaintiff the cost of filling public documents, which, as a matter of government policy, are to be issued and filled free of charge. If the Plaintiff paid public officers for free public services, he was engaged in an illegality that he cannot seek to benefit from. 43. In any event, the Plaintiff did not place before this court receipts to prove the claimed expenditure for filling the P3 form and the police abstract. 44. The receipts from Bungoma County Referral Hospital proved medical expenses of Kshs. 550/=, the NTSA receipt proved the claimed expenditure of Kshs. 550/=, while the receipt by Dr. Sokobe proved the claimed fees of Kshs. 6,000/= for the medical report. 45. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 6,820/= DETERMINATION 46. The upshot of the above is that judgment is entered against the Defendant in the following terms: a) Liability…………………………………100% in favour of the Plaintiff b) General Damages…………………...…Kshs. 200,000/= c) Special Damages……………………....Kshs. 6,820/=

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Total Award………………..Kshs. 206,820/= 47. 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. 48. The Plaintiff will have the costs of this suit. 49. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 23rd day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Chebet for the Plaintiff Mr. Choni for the Defendant C/A: Mr. Rioba

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