Okusambale v Mwangi & 3 others

5. The 3rd Defendant entered appearance and filed a Statement of Defence where they put the Plaintiff to strict proof of all the averments in their Plaint. They denied owning the matatu at the time of the accident, given that they had sold the said matatu to the third party on 20 th June 2019; hence, they could not be held liable for the accident herein. They also pleaded that if the accident herein occurred, then the same was caused by the car driver’s negligent acts and omissions enumerated in their Statement of Defence. 6. The 3rd Defendant also joined the third party to this suit seeking indemnity from the third party from liability that would attach against them in this case. However, the third party neither entered appearance nor filed their Statement of Defence despite having been duly served with the third party notice and the 3rd Defendant’s Statement of Defence. 7. In the circumstances, the 3rd Defendant pleaded that the Plaintiff’s suit against them ought to be dismissed with costs. 8. It is against this backdrop that this matter was set down for hearing for the Plaintiff and the 3rd Defendant to prove the averments in their respective pleadings on a balance of probabilities. 9. The summary of the evidence adduced by the Plaintiff and the third party is before this court by the parties herein is set out below. EVIDENCE Plaintiff’s Case 10. PW1 No. 76XXX PC Isaac Kimani Njuguna of Bungoma Police Station produced the accident’s police abstract dated 12th February 2025 showing that the accident herein was reported at Bungoma Police Station vide OB. No. 47/02/02/2025. He blamed the matatu driver for the accident since the matatu hit the car off-road while swerving to avoid hitting another motor vehicle. He further stated that the Plaintiff, who had boarded the car, was injured as a result of the accident. 11. He conceded in cross-examination that he could not tell the circumstances under which the accident occurred given that he was not the accident’s investigating officer. 12. PW2 Justus Okusambale Mulunda adopted his witness statement dated 07th May 2025 as his evidence in chief. He testified that on the date of the accident, he was a passenger in the car which had been parked the car off the road along Bungoma – Mumias road on the left side while facing the Bungoma general direction when the matatu, which was headed to

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Mumias direction from Bungoma general direction, encroached onto the car’s lane and hit the car while avoiding a head-on collision with an oncoming motor vehicle. 13. He added that the impact caused him to sustain severe injuries. 14. PW3 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 05th March 2025 showing that the accident caused the Plaintiff to sustain blunt injuries to the head, chest, shoulders, and back as well as bruises to the scalp. He also produced a receipt for Kshs. 6,000/= for preparing the Plaintiff’s medical report. 15. PW4 Elias Adoka, a Clinical Officer from Bungoma County Referral Hospital (BCRH) produced the Plaintiff’s P3 form dated 11 th February 2025 and treatment notes which he had prepared after the Plaintiff’s treatment at BCRH following the accident herein. He assessed the injuries sustained by the Plaintiff as harm. 16. He added in cross-examination that the Plaintiff must have recovered by now from the soft tissue injuries he sustained from the accident. 3rd Defendant’s Case 17. DW1 Patrick Mungai Mburu testified that he is the 3rd Defendant’s director. He produced an Authority to Act dated 15th August 2025 in support of his position that he was authorized by the 3rd Defendant to plead and testify on their behalf in this matter. 18. He also produced a motor vehicle sale agreement dated 20 th June 2019 showing that the 3rd Defendant had already sold the matatu to the third party at the time the accident herein occurred. 19. He added that clause 5 (a) and (b) of the motor vehicle sale agreement exempted him from liability in this matter. He reiterated that the third party and his insurer were the ones liable for the accident. 20. In cross-examination, he stated that he was the 3 rd Defendant’s sole director. He conceded that the third party was still the matatu’s registered owner at the time of the accident, and that he had not filed the 3rd Defendant’s resolution permitting him to testify on their behalf. 21. He clarified in re-examination that he remained the matatu’s registered owner after execution of the motor vehicle sale agreement since the third party had not fully paid the matatu’s purchase price. ANALYSIS AND DETERMINATION

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22. This court has given due regard to the pleadings, the evidence on record, as well as the Plaintiff’s written submissions. It is worth noting that the 3rd Defendant did not file their written submissions. 23. Given that this court has already made findings in Bungoma CMC CC No. E219 of 2025, which is part of a series of cases arising from this accident; that DW1 had authority to plead and testify on behalf of the 3rd Defendant in the cases arising from this accident; that the 3 rd Defendant is not a proper party to the cases arising from this accident; that the 3rd Defendant’s claim for indemnity against the third party arising from the accident is dismissed, and that the 1st and 2nd Defendants are jointly and severally liable for the accident herein, the only issue for determination is quantum. Quantum (a) General Damages for Pain and Suffering 24. The Plaintiff pleaded in paragraph 8 of his Plaint that the accident caused her to sustain blunt injuries to the head, chest, shoulders, and back as well as bruises to the scalp. 25. The uncontroverted Plaintiff’s medical evidence on record proved on a balance of probabilities that the Plaintiff sustained blunt injuries to the head, chest, shoulders, and back as well as bruises to the scalp as a result of the accident. the said injuries were assessed as harm. 26. The law in this jurisdiction 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 Geoffrey 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.” 27. This court has given due regard to the written submissions on record on quantum. 28. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR) where the court awarded general damages of Kshs. 150,000/= for a head injury, left and right leg injury, superficial bruises to both knees, face, and scalp, chest injury, soft tissue injuries on the fingers, bruises, and lacerations on various parts of the body. 29. In Kiptoon v Mattan Contractors Ltd & another (Civil Appeal E001 of 2025) [2026] KEHC 4208 (KLR) where the High Court upheld an award of Kshs. 160,000/= for chest

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injury with a small hemothorax; cut wound on the anterior abdominal wall; and blunt injury to the back. 30. Lastly, in Okumu v Oloo (Civil Appeal 835 of 2024) [2026] KEHC 8170 (KLR) (Civ) the court upheld an award of Kshs. 200,000/= for chest tenderness, bruises on the face, bruises on the hands, and a septic wound on the foot. 31. The authorities above show that awards of between Kshs. 150,000/= - Kshs. 200,000/= are usually made for moderate multiple soft tissue injuries. It is for this reason that this court awards the Plaintiff Kshs. 200,000/= under this head. Special Damages 32. The Plaintiff pleaded in paragraph 8 of his Plaint for Special Damages of Kshs. 18,750/=. However, the Plaintiff only produced a receipt for Kshs. 6,000/= for the medical report, and a receipt for Kshs. 550/= for motor vehicle search. 33. In view of the above, this court finds and holds that the Plaintiff pleaded and proved special damages of Kshs. 6,500/=. DETERMINATION 34. The upshot of the foregoing is that judgment is entered against the 1st and 2nd Defendants jointly and severally in the following terms: a) Liability………………………………………100% b) General Damages…………………...………Kshs. 200,000/= c) Special Damages……………………...…….Kshs. 6,500/= Total Award……………………..Kshs. 206,500/= 35. 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. 36. The suit against the 3rd Defendant is dismissed with costs. The 3rd Defendant’s claim for indemnity against the third party is dismissed. 37. The Plaintiff will have the costs of this suit. 38. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 01st day of September 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Oriko for the Plaintiff C/A: Mr. Rioba

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