Makenyi v Njihia & another (Civil Case E245 of 2024) [2026] KEMC 770 (KLR)

3. The Plaintiff further pleaded that the accident was caused by negligence by the Defendant and the Defendant’s motor vehicle driver, as enumerated in paragraph 4 of the Amended Plaint. 4. On the Defendant’s part, he filed a Statement of Defence dated 23 rd October 2025 denying all the averments in the Plaintiff’s Amended Plaint herein save for this court’s jurisdiction to hear and determine this suit. 5. The Defendant pleaded in the alternative that the accident herein was caused by the Plaintiff’s negligent acts set out in paragraph 7 of the Statement of Defence on record. Interestingly, the said particulars of negligence attributed to the Plaintiff herein relate to a passenger in a motor vehicle. Clearly, the Defendant’s counsel must have erred in drafting the Statement of Defence herein. 6. The Defendant also took out a third-party notice blaming the occurrence of the accident on the motorcycle rider's negligence. Simply put, the Defendant urged this court to find the third party vicariously liable for the occurrence of the accident. 7. The third party neither entered appearance nor filed a Statement of Defence. Consequently, this court entered an interlocutory judgment against the third party with directions that the third party’s liability be determined during the hearing of this matter. 8. It is against this backdrop that this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. EVIDENCE 9. On 17th March 2026, parties herein recorded a consent to the effect that the documents filed herein by the parties be adopted as the respective parties’ evidence. ANALYSIS & DETERMINATION 10. 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. 11. It is common ground that the accident herein occurred, and that it involved the motorcycle and the motor vehicle. The Plaintiff and the Defendant are also in agreement that the accident caused bodily injuries, loss, and damage to the Plaintiff. Further, there is no dispute that the Plaintiff was a pillion passenger on the motorcycle at the time of the accident.

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12. The foregoing inclines this court to find and hold that the only issue for determination is liability and quantum. Liability 13. The Plaintiff was a pillion passenger on the motorcycle which was involved in the accident. Therefore, he was neither in control of the motorcycle nor the motor vehicle at the time of the accident. 14. 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 his destination safe and sound. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 15. 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. 16. 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 –Vs- Francis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). 17. It is not lost to this court that the Plaintiff was an excess passenger on the motorcycle at the time of the accident. 18. This court is well aware of several High Court decisions to the effect that where a pillion passenger is an excess passenger, such a passenger must be deemed to have exposed himself to harm, thus ought to be found to have contributed to the injuries he sustained as a result of the accident (see Rentco East Africa Limited V Dominic Mutua Ngonzi (2021) eKLR). 19. This court is also aware of another school of thought by the High Court on this issue that the mere fact that a Plaintiff was an excess pillion passenger does not warrant a court to

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hold that such a passenger contributed to the occurrence of the accident and the injuries sustained, since liability is proved by evidence of causation. This position can be gleaned from Barongo Sevelius Yophen v Jared Ndemo [2020] KEHC 3253 (KLR), where the court held: “11. There is no contention that the respondent was a pillion passenger. It was not shown how his failure to wear a helmet or how the fact that there were two pillion passengers on the motorcycle would have contributed to the occurrence of the accident. As a pillion passenger, the respondent had no control of the motor cycle and could not have done anything to cause or avoid the accident.” 20. Similarly, in Kennedy Macharia Njeru v Packson Githongo Njau & another [2019] KEHC 5377 (KLR), the court held thus: “In Tom Obita Ndago & Another Vs. Alfonse Omondi Otieno [2015] eKLR, where the court considered an allegation by the defence during trial in the lower court that the fact that the driver was carrying an excess passenger could have caused the accident was refuted by the appellate court which stated; “Thus the rider and his passengers weight was not the reason why the riders motor cycle fell but the fact that the 1st appellant hit them”. This is the same situation here, the cause of the accident was the respondents driver (DW1) who overtook and in the process hit the motor cycle which was properly being driven on its lane but not because the driver had no driving licence.” (Emphasis added) 21. In Daniel v Kamene (Civil Appeal 24B of 2019) [2022] KEHC 11179 (KLR), Limo J stated as follows on this issue: “The issue of carrying excess passengers in my view is not relevant in this appeal in so far as liability is concerned. The appellant ought to have shown how the issue of extra pillion passengers contributed to the occurrence of the accident and/or aggravated the accident but he did not.” 22. This court subscribes to the latter school of thought; being an excess passenger does not impute negligence on the part of the rider or the pillion passenger unless it is proved on a

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balance of probabilities that the excess passenger made it hard for the motorcycle to be controlled, leading to the occurrence of the accident. 23. It should also be borne in mind that there are sanctions against an excess pillion passenger in law. Those sanctions can be meted out on an excess passenger through a traffic charge. The court’s concern in a claim for general damages arising from a road accident remains the determination of who caused the accident and quantum. 24. There is nothing on record to suggest that the fact that the Plaintiff was an excess pillion passenger on the motorcycle caused the accident. There is no evidence, at all, to prove on a balance of probabilities that the Plaintiff’s negligence led to the occurrence of the accident. 25. Accidents do not just occur; they are caused either by acts of God, human error, or mechanical failure. The accident herein, at least from the evidence on record, was not caused by an act of God. This accident must have been caused by the acts or omissions of the drivers of the motorcycle or the motor vehicle involved in the accident. Therefore, the Plaintiff could do nothing to prevent the occurrence of the accident. 26. It is against this backdrop that this court finds and holds the Defendant 100% liable for the occurrence of the accident. 27. The Defendant blamed the third party for the occurrence of the accident based on the doctrine of vicarious liability. There is no dispute that the third party was the motorcycle’s registered owner per the motorcycle’s copy of records filed herein. 28. Given that the third party neither entered appearance nor filed a Statement of Defence, the Defendant submitted that the third party must contribute or indemnify him from any loss arising from the accident herein. 29. This court has already made a finding elsewhere in this judgment that the mere fact that particulars of negligence attributed to another party have not been controverted by the other party does not mean that the uncontroverted particulars of negligence must be taken by a court as the gospel truth. He who alleges must prove. 30. The doctrine of vicarious liability was discussed in Nzioka J Qasim & Yahya Limited v Ngare & 2 others (Civil Appeal E065, E066, E067 & E068 of 2022 (Consolidated)) [2023] KEHC 19994 (KLR) as follows:

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“Even then, the elements of the doctrine of vicarious liability are well settled and for vicarious liability to arise, all the elements of thereof must be proved: the wrongful act must have been committed by an employee or other agent, the employee or other agent must have been acting within the scope of his or her employment or agency, and the employer or other person must have had the ability to control the employee or agent. In the instant matter at the expense of repeating what is already said, there is no evidence that the 1st defendant was a servant or agent of the 2nd defendant and/or driving the motor vehicle with the authority of the 2nd defendant or was not on a frolic of his own. Furthermore, even if the Plaintiffs/respondents proved as they have that the 2nd defendant was the registered owner, that per se independent of proof of vicarious liability would not make the 2nd defendant reliable. In that regard, Sheridan J in the case of; Cooke vs Santos Maquel & another Civil Case No. 250 of 1983 held by that: “ … mere ownership of the car and permission were insufficient to saddle UTC with vicarious liability.” …In that regard, it suffices to note that vicarious liability is the liability held by a person or entity that is in charge (called the principal or master) of another person (called the agent or servant). The person, usually an employer, is responsible for the actions of their employee (or other subordinate) if that employee causes harm or injury to another person.” 31. In Amalgamated Logistics International Ltd & another v MMK (2020) eKLR, the Court of Appeal stated as follows: “ Vicarious liability has been well elucidated in Salmond on Torts, 1st ed at Pg 83 as; “A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.” 32. Finally, in Joseph Cosmas Khayigila V Gigi & Co. Ltd & Another, Civil Appeal No. 119 of 1986, the court established a clear test for vicarious liability as follows: “In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.” (emphasis added). 33. Guided by the authorities above, it is safe to conclude that the mere fact that a party was the motor vehicle or the motorcycle’s registered owner at the time of the accident does not make such a party vicariously liable for an accident involving their motor vehicle or motorcycle’s driver unless the motor vehicle or motorcycle was being used by the driver for their own benefit or under their instructions.

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34. Turning to the facts of this case, it is not in dispute that the motorcycle was owned by the third party at the time of the accident. However, the Defendant did not lead any evidence to prove on a balance of probabilities that the Plaintiff was the third party’s agent or servant at the time of the accident. 35. The evidence on the relationship between the motorcycle rider and the third party could have been easily elicited if the Defendant had insisted on cross-examining the Plaintiff in this matter. Instead, the Defendant’s counsel elected to litigate this matter through a shortcut. 36. Odunga J (as he then was ) in Ngonde Kathathi vs Francis Kivuva Kitonde [2020] eKLR, warned advocates against taking shortcuts in litigating their cases in the following word: “.15. Parties and their legal advisers ought to take the advice of the Court of Appeal in James Njoro Kibutiri vs. Eliud Njau Kibutiri 1 KAR 60 [1983] KLR 62; [1976-1985] EA 220 that the ingenious lawyers are advised that short cuts are fine, as long as you are absolutely sure they won’t land you in a ditch. In Lehmann’s (East Africa) Ltd vs. R Lehmann & Co. Ltd [1973] EA 167 it was however, held that: “The supposed short-cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision. However, if the parties to a civil suit agree to adopt a certain procedure and the judge, however wrongly permits such a course, then there is little that a Court of Appeal can do other than seek to make the best of an unsatisfactory position.” 37. In the circumstances, the Defendant must bear the consequences of failing to crossexamine the motorcycle’s rider on whether the third party was his employer or master at the time of the accident. 38. Recently, in the case of Macharia v Kamau [2024] KEHC 8280 (KLR), this court, J. N. Njagi, addressed the issue of a non-party or not joining a third party as follows:24. The purpose of serving third party notice on the third party is to avoid a multiplicity of suits. In my view, a party who in his statement of defence blames a third party for the act complained of by the plaintiff and fails to serve a third-party notice on such third party is, for all purposes, deemed to have abandoned the defence raised in the statement of defence. 39. It is against this backdrop that this court finds and holds that the evidence on record is barely adequate to find the third party vicariously liable for the motorcycle rider’s negligence. Quantum of Damages

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(a) General Damages for pain and suffering 40. The Plaintiff pleaded in his Amended Plaint that the accident caused him to sustain bruises on the frontal region of the head, physical and psychological pains, blunt trauma to the back, blood loss, chest contusion, blunt trauma to the right knee and leg, and bruises on the right hand. He stated as much in his witness statement on record. 41. The medical documents on record corroborated the Plaintiff’s case that he sustained the injuries pleaded in the Amended Plaint on record. 42. Be that as it may, this court notes that some of the Plaintiff’s injuries, including scars and the anticipated permanent incapacity as well as the complaints set out in Dr. Morebu’s medical report dated 15th December 2023, were not pleaded by the Plaintiff. The consequence of a party failing to plead an injury has been a subject of 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) 43. 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

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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 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 controverted by the Respondent, he was at liberty

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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…” 44. It is also imperative to note that the Plaintiff’s witness statement on record, which was adopted as his evidence in chief, only referred to the injuries pleaded in the Amended Plaint. 45. Given the analysis above, and guided by the authorities above, this court will not consider the Plaintiff’s injuries or complaints which were not pleaded in the Amended Plaint in awarding general damages under this head. 46. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved on a balance of probabilities that, arising from the accident herein, he sustained bruises on the frontal region of the head, physical and psychological pains, blunt trauma to the back, blood loss, chest contusion, blunt trauma to the right knee and leg, and bruises on the right hand. 47. 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.” 48. This court has given due regard to the parties’ authorities on quantum. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Ukavi v Erasmus (Civil Appeal E018 of 2023) [2024] KEHC 1384 (KLR) where the court awarded Kshs. 180,000/= for a mild head injury, blunt injury on the chest and both upper and lower limbs, cut wound on the head and both hands, avulsion on the right lower limb, bruises on both hands, blood loss, soft tissue injury and physical and psychological pain.

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49. Njuguna v Nasimiyu (Civil Appeal E097 of 2023) [2026] KEHC 170 (KLR), where the court awarded 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. 50. In the circumstances, and taking a cue from the authorities above, this court makes an award of Kshs. 200,000/= under this head. (b) General damages for diminished earning capacity, and loss of earnings 51. The Plaintiff pleaded for an award of general damages for diminished earning capacity and loss of earnings. 52. The Court of Appeal in S J v Francesco Di Nello & another [2015] KECA 606 (KLR) stated as follows on these claims: “Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income, which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss, which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in FAIRLEY V JOHN THOMSON LTD [1973] 2 LLYOD’S LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said as follows: “It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.” 53. A reading of the authority above shows that for the Plaintiff to be entitled to an award of general damages under this head, the Plaintiff must plead and prove that the accident injuries caused him to lose income or future earnings, or reduced his capacity to earn income. 54. The Plaintiff simply pleaded for an award of general damages under this head. However, the Plaintiff did not plead in his Amended Plaint how the injuries he sustained caused him to lose earnings or diminished his earning capacity. Further, the Plaintiff’s Amended Plaint, and his witness statement on record, do not speak to the income the Plaintiff used

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to earn before the accident and whether the injuries herein caused him to lose or diminish his earning capacity. 55. It is for the reasons above that this court finds and holds that the Plaintiff did not prove his claim for general damages for diminished earning capacity, and loss of earnings on a balance of probabilities. Therefore, this court declines to make an award under this head. (c) Special Damages 56. The Defendant conceded that the Plaintiff pleaded and proved special damages of Kshs. 7,050/=, the same is awarded. DETERMINATION 57. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:(a) Liability – 50%:50% (b) General damages - Kshs. 200,000/= (c) Special Damages - Kshs. 7,050/= Net Award - Kshs. 207,050/= 58. 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. 59. The Plaintiff will have the costs of this suit. 60. The Defendant’s claim against the third party is dismissed with no order as to costs. 61. Judgment accordingly. Read, signed, and delivered in open court at Bungoma, this 21st day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Kang’ethe for the Plaintiff Mr. Charo for the Defendant

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C/A: Mr. Rioba

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