Ambenje v Luwali & another (Civil Case E363 of 2025) [2026] KEMC 787 (KLR)

on the said motorcycle, it was negligently ridden, lost control and caused the accident in which he was injured. 3. During the pendency of the proceedings, the 2 nd Defendant was struck out of the suit, pursuant to an application dated 22 nd September 2025. The suit therefore ultimately proceeded against the 1 st Defendant. 4. The 1st Defendant denied liability. Although a defence was filed, the 1 st Defendant ultimately closed his case without calling any witness or producing any documentary evidence. The Plaintiff’s case 5. The Plaintiff adopted his written statement dated 18 th March 2025. He testified that on 29th January 2025 he boarded motorcycle registration number KMGK 935Y at Majengo Mpya while heading home. Upon reaching Mount Sinai Junction, the rider attempted to avoid a pothole, lost control of the motorcycle and jumped off it while it was still moving. According to the Plaintiff, the motorcycle was moving so fast that he had no opportunity to react. He fell into a roadside trench and the motorcycle landed on him. 6. Passers-by assisted him and he was taken to Likoni Sub-County Hospital, where he received first aid. He was advised to have an X-ray of his left leg and consequently attended Bomu Hospital. The X-ray revealed a fracture of the left tibial plateau. He returned to Likoni Sub-County Hospital where a plaster cast was applied. He stated that he continued experiencing pain and attending medical check-ups. 7. The Plaintiff reported the accident at Likoni Police Station and was issued with a Police Abstract and P3 Form. His documentary evidence also included treatment notes, the Bomu Hospital X-ray report, receipts, a motor vehicle search and the demand documentation.

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8. A point of controversy arose from the Likoni Sub-County Hospital treatment notes which apparently described the Plaintiff as the rider of the motorcycle. In his testimony, however, the Plaintiff expressly denied that he was the rider and maintained that he was a pillion passenger. 9. The Plaintiff also called PC Jefwa, who testified that he visited the accident scene together with PC Ezbon Abuga. He stated that the investigations into the accident concluded that the rider of the motorcycle was to blame. He produced the Police Abstract and P3 Form. 10. The third witness was Dr. Darius Wambua Kiema, who examined the Plaintiff and produced his medical report dated 7th February 2025. He assessed the Plaintiff's permanent partial disability at 6%. The 1st Defendant's case The 1st Defendant filed a defence disputing 11. liability and, in the alternative, pleaded contributory negligence against the Plaintiff. In his final submissions, the 1 st Defendant 12. contended that the Plaintiff had failed to discharge the burden imposed upon him under sections 107, 108 and 109 of the Evidence Act. He argued that the mere occurrence of an accident did not establish negligence and relied, inter alia, on Statpack Industries v James Mbithi Munyao, Kiema Mutuku v Kenya Cargo Hauling Services Ltd and Eastern Produce (K) Ltd v Christopher Atiado Osiro. The 1st Defendant particularly contended that 13. there was no sketch plan, investigation report, traffic proceedings, conviction or evidence from the investigating officer negligence. He accordingly urged the Court to dismiss the suit. establishing

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14. In the alternative, the 1st Defendant submitted that the Plaintiff's proposal of Kshs. 1,500,000 in general damages was excessive and proposed Kshs. 500,000. He emphasized that the Plaintiff did not undergo open reduction and internal fixation, had no implants, limb shortening, malunion or non-union and had only 6% permanent disability. Issues for determination 15. Having considered the pleadings, evidence, documents, submissions and authorities cited, I find that the issues for determination are: a. Whether the accident was caused by negligence attributable to the 1st Defendant; b. Whether the Plaintiff contributed to the occurrence of the accident; c. What quantum of general damages is appropriate; d. Whether the Plaintiff proved special damages and future medical expenses; and e. Who should bear the costs of the suit. Liability 16. Sections 107 and 108 of the Evidence Act place the initial burden of proving a fact upon the person who asserts it. Accordingly, the fact that the 1 st Defendant elected not to call evidence did not automatically entitle the Plaintiff to judgment. The Plaintiff was still required to establish his case on a balance of probabilities. 17. The authority of Pauline Kainyera Simion (Suing as Legal Administrator of the Estate of Luka Mutwiri – Deceased) v Mary Namunya [2021] eKLR, relied upon by the Plaintiff, is useful in this

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regard. The principle emerging therefrom is that the absence of defence evidence does not reverse the legal burden; however, once a plaintiff establishes a prima facie case, a defence unsupported by evidence remains no more than allegations without evidential weight. 18. The question therefore is whether the Plaintiff's evidence, considered independently, crossed that threshold. I am satisfied that it did. 19. The Plaintiff gave a direct account of the accident. His evidence was that he was a passenger when the rider, while negotiating a pothole, lost control and jumped off a motorcycle that was still moving. The Plaintiff was consequently thrown into a trench and the motorcycle landed upon him. 20. That evidence goes beyond proof that an accident merely occurred. It describes the manner in which control of the motorcycle was lost. A rider entrusted with the safety of a pillion passenger is required to maintain reasonable control of the motorcycle and to regulate his speed to the prevailing road conditions. The fact that a pothole was present did not relieve the rider of that obligation. Rather, a reasonably prudent rider was required to approach such a road condition at a speed and in a manner permitting him to retain control. 21. More significantly, the Plaintiff's evidence that the rider jumped from the motorcycle while it was still moving, leaving his passenger aboard, was not controverted by any evidence from the rider or the 1st Defendant. 22. I have considered the discrepancy in the initial treatment notes describing the Plaintiff as a rider. Medical records are principally generated for purposes of treatment and, in the

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circumstances of this case, that entry must be considered alongside the entire evidence. The Plaintiff expressly denied being the rider. His evidence that he was the pillion passenger was maintained before Court, and the police evidence was also called. The 1st Defendant did not call the alleged rider, or any other witness, to demonstrate that the Plaintiff was in fact riding the motorcycle. 23. PC Jefwa's evidence was not direct eyewitness evidence of the accident, and I therefore do not treat his conclusion on blame as a substitute for the Court's independent determination of negligence. Nevertheless, his evidence and the police documents corroborate the fact of the accident and its reporting. 24. The 1st Defendant criticizes the absence of a sketch plan, traffic prosecution or conviction. Those matters may assist a court, but they are not indispensable prerequisites to proof of negligence in a civil action. Civil liability is determined upon the evidence before the Court and on the balance of probabilities. 25. I have also considered Nandwa v Kenya Kazi Ltd [1988] eKLR. Once the Plaintiff establishes facts giving rise to a prima facie inference of negligence, an evidential burden arises upon the Defendant to provide an explanation capable of displacing that inference. 26. In the present case, no explanation was offered. The rider was not called. The 1 st Defendant himself did not testify. The allegations contained in the defence, including those accusing the Plaintiff of sitting haphazardly, failing to maintain balance, travelling as an excess passenger and failing to wear appropriate gear, were not supported by evidence. Pleadings are not evidence.

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27. I therefore find no evidential foundation upon which to attribute any contributory negligence to the Plaintiff. He was a passenger and there is no evidence that anything he did or failed to do caused the rider to lose control. On a balance of probabilities, I find the Plaintiff has proved negligence and I apportion liability at 100% against the 1st Defendant and 0% against the Plaintiff. Quantum Nature of the Plaintiff's injuries 28. The Plaintiff suffered a fracture of the left tibial plateau. Dr. Kiema assessed permanent partial disability at 6%. The medical evidence further indicates that the Plaintiff is predisposed to: a. Post-traumatic arthritis and stiffness of the left knee joint; b. Recurrent post-traumatic pain in the left knee/leg, particularly when walking, working and during cold weather; c. Weakness at the fracture site, making it susceptible to future fracture; and d. Diminished capacity to undertake work and ordinary activities of daily living. 29. The medical opinion was not rebutted by a contrary medical examination or expert report. Equally, however, I take into account the matters emphasized by the defence: this was a single fracture; it was treated conservatively by mmobilization in a plaster cast; there was no ORIF surgery, metallic implant, shortening of the limb, malunion or non-union. The permanent disability was assessed at 6%. Comparative analysis of the authorities

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30. The governing principle is that comparable injuries should, so far as reasonably possible, attract comparable awards, while appreciating that no two injuries are identical and that the passage of time and inflation must be considered. This principle is reflected in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR and the other authorities supplied. 31. I have therefore compared the actual injuries, rather than merely the amounts awarded. I. Ngila v Wairimu The Plaintiff relied on Ngila v Wairimu. The material supplied shows that the claimant suffered: deep cut wounds on the head; painful swelling of the right knee and left ankle; chest pains; loss of one tooth; fracture of the left tibial plateau; and fracture of the right ankle. The trial court awarded Kshs. 1,000,000 general damages and the award was upheld on appeal. The injuries in Ngila were plainly more extensive than those suffered by the Plaintiff herein. Both suffered a tibial plateau fracture, but Ngila involved an additional right ankle fracture, loss of a tooth, head wounds and other injuries. Consequently, Ngila does not support the proposition that the Plaintiff herein, whose principal injury is a single tibial plateau fracture with 6% disability, should automatically receive more than Kshs. 1,000,000. II. Thairu & Another v Aliea [2023] KEHC 24708 (KLR) Thairu is the Plaintiff's strongest comparator because the principal injury was likewise a fracture of the left tibial plateau. The trial court awarded Kshs. 1,200,000 general damages and that award was upheld by the High Court. There is, however, a significant

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distinction. In Thairu, permanent incapacity was assessed at 20%. The High Court expressly considered that level of permanent incapacity when affirming the Kshs. 1,200,000 award. The same details are confirmed in the published decision. The Plaintiff before me has permanent disability of 6%, substantially lower than the 20% in Thairu. It would therefore be inappropriate simply to adopt Kshs. 1,200,000 and then increase it to Kshs. 1,500,000 on account of inflation without reflecting the significant difference in residual incapacity. III. Wanjohi v Kuria & Another [2023] KEHC 23373 (KLR) The 1st Defendant relied on Wanjohi v Kuria & Another, submitting that an award of Kshs. 1,500,000 was made in circumstances involving injuries substantially more serious than the Plaintiff's. I agree with the Defendant to the extent that an authority involving substantially more extensive injuries cannot justify an equivalent award for a less severe single fracture merely because both cases involve lower-limb trauma. The authority therefore militates against the Plaintiff's proposed Kshs. 1,500,000 rather than against compensation altogether. IV. Ondoto v Kigotho [2024] KEHC 13223 (KLR) The 1st Defendant also relied on Ondoto v Kigotho. That claimant suffered fractures of both the left tibial plateau and the left femur. Permanent disability was assessed at 50% by one doctor and 10% by another. The injuries in Ondoto were thus materially more extensive than Alfred's single tibial plateau fracture. The defence cites an award of approximately Kshs. 1,300,000 in that matter. Again, the case demonstrates that an award of Kshs. 1,500,000

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would be difficult to reconcile with proportionality where Alfred suffered one fracture treated conservatively and has 6% disability. 32. The comparison demonstrates two things. First, the Defendant's proposal of Kshs. 500,000 does not sufficiently recognize that a tibial plateau fracture is a significant intra-articular knee injury and that Alfred has been left with medically assessed permanent disability, recurrent pain and a predisposition to post-traumatic arthritis. Secondly, the Plaintiff's proposal of Kshs. 1,500,000 is excessive when compared with Ngila, Thairu and Ondoto, whose injuries and/or permanent incapacity were appreciably more severe. 33. I have particularly considered Thairu. It provides the closest anatomical comparator, but the 20% incapacity there was more than three times the Plaintiff's 6% disability. Conversely, an award cannot be reduced by applying a purely mathematical ratio to disability percentages. General damages compensate the injury, pain, suffering and loss of amenities as a whole; permanent incapacity is merely one relevant factor. 34. Taking into account the fracture itself, the period of mmobilization, continuing pain, the risk of post-traumatic arthritis, the 6% permanent disability, the absence of surgery and implants, the authorities cited by both sides, and the passage of time since the comparable awards, I consider Kshs. 850,000 to be a fair, reasonable and proportionate award for general damages for pain, suffering and loss of amenities. Future medical expenses 35. The Plaintiff specifically pleaded future medical expenses of Kshs. 30,000. The amended plaint particularized

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them as: painkillers and joint/bone-care medication at Kshs. 3,000 per month for six months; and physiotherapy at Kshs. 600 per session for 20 sessions, totalling Kshs. 12,000. 36. Mathematically: Kshs. 3,000 × 6 months = Kshs. 18,000 Kshs. 600 × 20 sessions = Kshs. 12,000 Total = Kshs. 30,000. 37. The defence relied upon Mukura v Kamure & Another [2024] KEHC 16042 (KLR) and Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR and correctly submitted that future medical expenses must be pleaded and supported by medical evidence. 38. In this case, however, that threshold has been met. The claim was expressly pleaded, and Dr. Kiema testified and gave the medical basis for the future treatment. His evidence was not rebutted by another medical practitioner. The authorities relied upon by the Defendant therefore do not assist him in excluding the claim; they reinforce the requirement which the Plaintiff has satisfied. 39. I note that the Plaintiff's submissions refer to 40 physiotherapy sessions while simultaneously stating that they would cost Kshs. 12,000 at Kshs. 600 per session. That is plainly inconsistent mathematically and with the pleading. 40. The Court is bound by the pleaded claim. The Amended Plaint specifies 20 sessions, which correctly yields Kshs. 12,000 and, together with Kshs. 18,000 medication costs, produces the pleaded total of Kshs. 30,000. I accordingly award Kshs. 30,000 for future medical expenses. Special damages

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41. The Plaintiff specifically pleaded: Medical report — Kshs. 2,000; Motor vehicle search — Kshs. 550; and Medical expenses — Kshs. 200. Total: Kshs. 2,750. 42. The documents listed and produced included the medical report receipt for Kshs. 2,000, the Likoni Sub-County Hospital receipt for Kshs. 200 and the motor vehicle search and receipt for Kshs. 550. I am satisfied that the sum of Kshs. 2,750 was specifically pleaded and strictly proved. I award it in full. Final Orders a. Liability: 100% against the 1st Defendant and 0% against the Plaintiff. b. General damages: Kshs. 850,000. c. Future medical expenses: Kshs. 30,000. d. Special damages: Kshs. 2,750. Total award: Kshs. 882,750. e. Costs of the suit to the Plaintiff. f. General damages and future medical expenses shall attract interest at court rates from the date of this judgment until payment in full. g. Special damages of Kshs. 2,750 shall attract interest at court rates from the date of filing suit until payment in full. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ............................................ EMILY M. MWAMUYE

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SENIOR RESIDENT MAGISTRATE

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