Wasike v Polo Hauliers Limited & another

4. It was further averred by the Plainti that the accident caused him loss and damage in terms of bodily injuries and special damages particularized in paragraph 7 of the Plaint thereby necessitating the ling of this suit for compensation. 5. The Defendants entered appearance and led a Statement of Defence putting the Plainti to strict proof of the averments in his Plaint. The Defendants pleaded in the alternative that if the accident herein occurred then the same was caused by the Plainti’s negligent acts and omissions including ramming into the trailer from behind enumerated in their Statement of Defence. They urged this court to dismiss this case with costs. 6. The divergent positions above taken by the parties herein on who was to blame for the accident prompted this court to set down this matter for hearing for the said parties to prove the averments in their respective pleadings on a balance of probabilities. Evidence Plainti ’s Case 7. PW1 Dr. Eliud Muyoma produced the Plainti’s medical report dated 23rd June 2025 showing that the accident caused the Plainti to sustain a blunt trauma to the head, orbital wall fractures, maxillary fractures, a deep cut wound on the face, and blunt injury to the anterior chest wall. 8. He also produced a receipt showing that he charged the Plainti Kshs. 25,000/= for preparing the medical report herein. 9. He conrmed in cross-examination that the injuries sustained by the Plainti did not result in any permanent incapacity. 10. PW2 No. 81XXX PC Jackline Ochieng of Bungoma Police Station produced a police abstract dated 13th June 2025 showing that the accident herein occurred and that the same was reported vide OB. No. 02/04/11/2024. 11. In cross-examination, she conceded that she had only come to court to produce the police abstract and that she was not the accident’s investigating ocer. She added that she was not aware if the Plainti had been charged with the oence of careless driving arising from the accident. 12. PW3 Dr. Gregory Lukhale Wasike recalled that he rammed into the trailer from behind on the date of the accident since the trailer had been abandoned in the middle of the road without any warning signs. He added that as a consequence of the accident, he sustained the injuries sustained in the Plaint. 13. He added that he had not recovered from the injuries he sustained during the accident since he still visits the Nakuru Eye Hospital for eye check-ups. 14. He admitted in cross-examination that the scene of the accident was along a hilly stretch of the road where drivers are expected to drive at a slow speed. He added that he swerved to the right to avoid hitting the trailer without success. He conrmed that he could clearly see since his motor vehicle’s headlights were on when the accident occurred. 15. He denied having been charged vide Bungoma CMC trac case number E094 of 2025 for the oence of careless driving arising from this accident. 16. PW4 Gordon Ogada is an administrator at Nakuru Heart Centre Hospital. He testied that the Plainti was admitted at the facility from 05th November 2024 to 12th November 2024. He produced the Plainti’s discharge summary, medical expenses bill dated 11th November 2024 for Kshs. 332,600/ https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 2

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=, receipts for Kshs. 180,000/= and Kshs. 76,980/= as exhibits. He added that Social Health Authority (SHA) paid Kshs. 25,620/= in partial settlement of the plainti’s medical bill of Kshs. 332,600/=. 17. PW5 Blessed Oscar Wanjala Wakachunga, a Health Records Ocer at Hopkins Crescent Hospital Bungoma, produced the Plainti’s treatment notes and a receipt for Kshs. 5,458/= as exhibits. 18. PW6 Wilfred Omwanza Mackenzie recalled that he carried the Plainti in an ambulance on 05th November 2024 from Lifecare Hospital Bungoma to Nakuru Health Centre at a cost of Kshs. 38,000/=. He produced a receipt to evidence the cost of Kshs. 38,000/= the Plainti incurred for the ambulance services. Defendants’ Case 19. DW1 No. 76XXX PC Isaac Kimani Njuguna of Bungoma Police Station produced the police abstract dated 05th November 2024 as an exhibit. He also produced a copy of the charge sheet showing that, arising from the accident, the Plainti had been charged on 06th March 2025 with the oence of careless driving contrary to section 47(1)(a) of the Traffic Act vide Bungoma CMC Trac Case No. E094/2025. 20. He also produced an OB. extract for the accident report booked by CPL Juma vide OB. No. 02/0/11/2024 blaming the Plainti for ramming into the trailer from behind while the trailer was in motion. 21. In cross-examination, he stated that CPL Juma, who investigated the case, could not attend court since he was away from duty. 22. DW2 Christopher Mbugua Kimani an investigator from Uptown Loss Assessors produced the investigation report dated 04th April 2025 on behalf of his colleague Henry Njuguna. He blamed the Plainti for causing the accident by ramming into the trailer from behind while the trailer was in motion. He based his conclusion on their investigations and the information gathered from Bungoma Police Station. 23. DW3 Jea Mwaro Jea adopted his witness statement dated 06th February 2026 as his evidence in chief. His testimony was that the accident occurred when the Plainti rammed into his moving trailer from behind. He added that he stopped the lorry after hearing a bang from behind and instructed a security guard to go and report the accident. He also stated that the police ocers who responded to the scene found him at the scene. He denied having abandoned the lorry in the middle of the road when the accident occurred as alleged by the Plainti. Analysis And Determination 24. This court has given due regard to the pleadings, the evidence on record, as well as the written submissions led by the parties. 25. It is common ground that the accident herein occurred and that the Plainti sustained bodily injuries as a result of the accident. Further, the parties herein are in agreement that the accident herein occurred when the Plainti rammed into the Defendants’ trailer from behind. The parties’ sole point of departure is whether the accident occurred when the trailer was stationary or in motion. 26. There is also no dispute that the Defendants owned the trailer at the time the accident occurred, and that DW1 was the Defendants’ agent in the course of his lawful duties when the accident occurred. Therefore, if this court nds DW1 negligent for causing the accident, the Defendants will be vicariously liable for DW1’s negligence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 3

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27. The foregoing inclines this court to nd and hold that the issues for determination are liability and quantum. Liability 28. The Plainti and his witnesses (PW4 and PW5), who DW1 admitted that he requested one of them to report the accident to the police, maintained that the accident occurred when the trailer was stationary in the middle of the road. 29. The Defendants disputed the Plainti’s version of events on the circumstances under which the accident occurred by relying on their driver’s (DW1) oral testimony, police documents relating to the accident and an investigation’s report dated 04th April 2025 from Uptown Loss Assessors. 30. A reading of the said investigation report shows that the accident occurred when the Plainti rammed into the trailer from behind while the trailer was in motion, when the Plainti tried to overtake the trailer, only to realize that there was an oncoming motor vehicle. 31. The contents of the Defendants’ investigation report on record were corroborated by the contents of the OB entry number 02/04/11/2024 made by the accident’s investigations ocer, CPL Juma, immediately after visiting the scene of the accident. 32. Further, the charge sheet on record also corroborated the contents of the police documents on the circumstances under which the accident occurred since the Plainti was charged with the oence of careless driving contrary to section 47(1)(a) of the Traffic Act vide Bungoma CMC Trac Case No. E094/2025 arising from the accident. 33. This court is well aware of its duty not to adopt the ndings in police documents on who was to blame for an accident hook line and sinker without independently evaluating the evidence before it and arriving at its own decisions (see Kennedy Muteti Musyoka v Abedinego Mbole [2021] KEHC 1751 (KLR)). 34. However, the circumstances of this case are dierent. The Plainti failed to call the accident’s investigating ocer to shed light on the circumstances under which the accident occurred by testifying on the outcome of his investigations as well as the reports made to the station by the security guards who witnessed and reported the accident despite the parties herein taking divergent positions on who was to blame for the accident. 35. It is well settled in this jurisdiction that where a party fails to adduce evidence within their knowledge and possession, the court is permitted to draw an adverse inference against such party that had that evidence been produced, it would have been adverse to that party. This was well explained in Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, where the court stated as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 4

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108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 36. Indeed, true to the general rule that where a party fails to adduce evidence in their knowledge and possession on an issue, the court ought to make an adverse inference against such a party, the evidence gathered by the accident’s investigating ocer, which the Plainti conveniently refused to adduce in support of their case, turned adverse to the Plainti’s case when the Defendant produced the same. 37. That evidence contradicted the oral testimony by the Plainti, PW3 and PW4 on the circumstances under which the accident occurred. 38. It is also worth noting that the Plainti blatantly lied under oath that he was never charged with a trac oence arising from the accident, given the uncontroverted evidence adduced by the Defendants that the Plainti was charged with the oence of careless driving contrary to section 47(1)(a) of the Traffic Act vide Bungoma CMC Trac Case No. E094/2025 arising from the accident. 39. Given the adverse evidence gathered by the accident’s investigating ocer on the circumstances under which the accident occurred, which the Plainti deliberately failed to disclose or adduce, it is also safe to conclude that the evidence on record proved on a balance of probabilities that PW4 and PW5 lied under oath on the circumstances under which the accident occurred. 40. The Plainti’s, PW4’s and PW5’s lies under oath call into play the Latin maxim falsus in uno, falsus in omnibus ("false in one thing, false in everything"). This maxim presupposes that where a witness lies in one part of their testimony, the rest of their evidence is automatically discarded. 41. Courts in this jurisdiction do not take lying under oath lightly. Where a party lies under oath, courts have readily applied the Latin maxim falsus in uno, falsus in omnibus ("false in one thing, false in everything") in disregarding evidence led by a witness who lies under oath. 42. For instance, Kaniaru, J in Heleriko Wabwire Orubia v John Opondo Barasa [2018] KEELC 1992 (KLR) rendered himself thus: “ 28. 43. But the Plainti’s dishonesty did not stop there. In his evidence in court, he said that he was not related to the Defendant. When the Defendant’s turn to testify came, he availed evidence both from himself and others that he is in fact related to the Defendant. It is not clear why the Plainti decided to follow the path of lies. That path has never done any good to anyone. There is a Maxim in law: FALSUS IN UNO, FALSUS IN OMNIBUS, which translates as - false in one thing, false in everything. It is not clear in this matter what truth, if any, the Plainti told the court.” Further, Nzili, J, in Josephat Mburugu v Silas Mwiti Mugwika [2022] KEELC 1244 (KLR), stated as follows: “ As the saying goes, FAnsus In Uno Falsus In Omnibus false in one thing false in everything, the appellant had built his case on quicksand and cannot therefore blame the court for nding that he had failed to prove any of his legal rights to land that had been infringed by the respondent.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 5

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44. Lastly, in Antony Ayieko Oluoch & another v Francis Oluoch Juma [2017] KEELC 934 (KLR), the court stated thus regarding lies by a party before a court: “ It is always good to be honest and truthful in a court of law…The truth is that the 1st Applicant lied on oath. In law, there is a maxim: Falsus In Uno, Falsus In Omnibus (False in one, false in everything). There is no telling what other lies the 1st Applicant has told in his adavit. This court feels dis-inclined to look on the 1st Applicant favourably. The court is not happy that the 1st Applicant appears to have no respect for truth.”(Emphasis added) 45. It is against this backdrop that this court declines to believe the version of events by the Plainti, PW4 and PW5 on the circumstances under which the accident occurred. 46. This court nds the Defendants’ version of events on how the accident occurred consistent and credible. This means that the Defendants proved on a balance of probabilities that the accident occurred when the Plainti rammed into the Defendants’ trailer from behind while the trailer was in motion. Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) stated as follows on the liability of a driver who hits another motor vehicle from behind: A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sucient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’ 47. The Plainti did not adduce any credible evidence to dislodge the prima facie case of negligence established against him by the Defendants. Such evidence would ordinarily include evidence that the Defendants’ driver suddenly stopped along the road or suddenly reversed without warning other road users. That is not the case in this matter. 48. Taking the totality of the evidence on record, the inevitable conclusion to be drawn is that the Plainti was driving his motor vehicle at a high speed at the time of the accident which prevented him from braking on time to prevent him from ramming into the trailer ahead of him which he could clearly using the light from his motor vehicle’s head lights which he admitted were functional on the date of the accident. 49. The Plainti’s actions at the time of the accident were contrary to the duty placed on a motor vehicle as was eloquently explained in Masembe v Sugar Corporation and Another [2002] 2 EA 434, thus: “ When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 6

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50. The long and short of it all is that the Plainti authored his own misfortunes by breaching the duty of care he owed to himself and other road users when he rammed into the Defendants’ moving trailer from behind. In the circumstances, this court nds the Plainti 100% liable for the accident. 51. A nding that the Plainti is to wholly blame for causing the accident means that the Plainti’s case must suer the fate of dismissal. However, for completeness of the record and for appeal purposes, this court, being the trial court, must assess the quantum of damages as was well explained by the Court of Appeal in Andrew Mwori Kasaya v Kenya Bus Service (2016) eKLR, as follows: Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No. 124 of 1993 (UR). The court made the following observations on this issue: The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this Court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his ndings are does not and cannot mean that such a judge is writing an alternative judgment”. …And in the case of Mayiya Byaba Loma & Another versus Uganda Transport Co Ltd. Uganda Supreme Court Appeal No. 10 of 1993IV KALR 138 where the court held that:“ The judge erred in not assessing the damage (sic) he would have awarded had the appeal court been successful in her claim.” Quantum General damages for pain and suering 52. The uncontroverted medical evidence adduced before this court by the Plainti proved on a balance of probabilities that the accident caused the Plainti to sustain the injuries pleaded in the Plaint; a blunt trauma to the head, orbital wall fractures, maxillary fractures, a deep cut wound on the face, and blunt injury to the anterior chest wall. The said injuries were assessed as grievous harm but did not occasion the Plainti any form of disability. 53. The law in this jurisdiction on how a court should award general damages for pain and suering is that comparable injuries should, as far as possible, be compensated by comparable awards. This legal principle was reiterated by the Court of Appeal in Stanley Maore vs Georey Mwenda (2004) eKLR, as follows: “ ...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.” 54. The Plainti submitted that an award of Kshs. 900,000/= under this head was reasonable compensation. The Defendants, on their part, urged this court to award the Plainti Kshs. 500,000/ = under this head by relying on a 2024 authority where the High Court awarded general damages of Kshs. 500,000/= for injuries almost similar to the injuries sustained by the Plainti herein. However, https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 7

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the Defendants did not consider the passage of time and the ination trends in this country since the time the 2024 decision they relied on was made. Clearly, a general damages award made in 2024 cannot be sustained in 2026 without adjusting the same upwards. 55. The injuries sustained by the Plainti in this case are almost similar to the injuries sustained by the Plainti in Mapesa v Egesa (Civil Appeal 143 of 2022) [2024] KEHC 6246 (KLR) where the court awarded general damages of Kshs. 800,000/= for a fracture of the skull left eye socket (orbital oor), a fracture of the skull left cheekbone (zygomatic cheekbone), a deep cut on the left eye, a cut on the left little nger, a blunt object injury to the face (left cheek – zygomatic) and left knee. 56. Guided by the authority above and considering the passage of time and ination trends in this country, this court would have awarded general damages of Kshs. 900,000/= proposed by the Plainti. Special Damages 57. The Plainti pleaded in paragraph 7 of his Plaint for special damages comprising medical expenses of Kshs. 350,000/=, medical report costs of Kshs. 20,000/= and ocial search costs of Kshs. 550/=. 58. The law in this jurisdiction is that special damages must be pleaded and strictly proved. This legal position was reiterated by the Court of Appeal in Herbert Hahn v Amrik Singh [1985] eKLR as follows: “ Special damages must not only be specically claimed (pleaded) but also strictly proved…. For they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 59. The two receipts from Nakuru Heart Centre proved medical expenses of Kshs. 256,980/=; the NTSA search receipt proved the search costs of Kshs. 550/=; the Hopkins Hospital Bungoma invoice endorsed with the words ‘paid in full’ proved medical expenses of Kshs. 5,458/=; the receipt dated 05th November 2024 proved ambulance expenses of Kshs. 38,000/=, while the receipt of Kshs. 25,000/= produced by Dr. Omuyoma proved the claimed medical report costs of Kshs. 20,000/=. 60. The Kshs. 20,000/= charged by Dr. Omuyoma for the medical report is within the maximum fees of Kshs. 60,000/= for such services under the Medical Practitioners and Dentists (Professional Fees) Rules. 61. In the circumstances, this court would have awarded the Plainti special damages of Kshs. 320,988/=. Determination 62. The upshot of the foregoing is that this suit is dismissed with costs. 63. Judgment accordingly. SIGNED AND DELIVERED VIA CTS AT BUNGOMA THIS 27TH DAY OF AUGUST 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/891/eng@2026-08-27 8

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