Obeya alias Polycarp Obera v Nyikuli & another

7. The foregoing prompted this court to set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. 8. The evidence adduced by the Plaintiff and the Defendant is summarized below. EVIDENCE Plaintiff’s case 9. PW1 Polycarp Otieno Obera adopted his witness statement dated 29th April 2025 as his evidence in chief. He testified that the accident occurred when the driver of the motor vehicle he had boarded was overtaking at a very high speed, causing the motor vehicle to lose control and cause the accident which occasioned him bodily injuries. 10. He stated in cross-examination that the motorbike involved in the accident was not overtaking the motor vehicle as alleged by the Defendant. He insisted that the accident occurred when the motor vehicle left its lane and, while trying to overtake, a motorcycle hit an oncoming motorcycle, then landed in a ditch as a result of the impact. He added that the accident did not occur in the motor vehicle’s lane. 11. PW2 Anne Otinga Murunga Irine, a Clinical Officer at Kabula Health Centre, produced the Plaintiff’s initial treatment notes showing that the Plaintiff was treated at the facility on the date of the accident as an outpatient when he complained of injuries on the leg and a swollen left cheek. 12. PW3 No. 81XXX PC Jackline Ochieng produced the accident’s police abstract dated 04th March 2025 showing that the accident herein occurred and that the same was reported at Bungoma Police Station vide OB. No. 53/03/03/2025. 13. She could not tell the circumstances under which the accident occurred. She could not tell who was to blame for causing the accident. 14. On 26th March 2026, the parties herein produced the Plaintiff’s P3 form dated 03 rd March 2025 by consent, showing that the accident caused the Plaintiff to sustain the injuries pleaded in the Plaintiff’s Amended Plaint. The degree of injuries sustained by the Plaintiff was assessed as harm. Defendant’s Case 15. DW1 Solomon Karanja Njuguna adopted his witness statement dated 05th March 2025 as his evidence in chief. He recalled that on the date of the accident, while driving the motor vehicle on the date of the accident from Bungoma general direction headed to Kakamega general direction at 50km/hr, he spotted two oncoming saloon motor vehicles. One of the oncoming motor vehicles signaled to turn left when the motorcycle registration number KMFF 135 L (“third party’s motorcycle”) behind it accelerated and veered into his lane, thereby colliding with his motor vehicle. 16. He produced his driving licence, identification, and the motor vehicle’s certificate of examination and test of motor vehicle dated 07th March 2025 as exhibits. Third Party’s Case

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17. The Third Party neither entered appearance nor filed pleadings despite having been served with the third-party notice and the pleadings herein. Consequently, this Court directed that the third party’s liability be determined during the hearing of this matter. ANALYSIS AND DETERMINATION 18. This court has given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the respective parties. 19. The uncontroverted evidence on record shows that the accident herein occurred when the Plaintiff was a passenger in the motor vehicle, causing the Plaintiff to sustain bodily injuries. It is also common ground that DW1 was the Defendant’s authorized driver who was in the course of his duty when the accident occurred. Therefore, in the event this court finds that DW1’s negligent acts or omissions caused the accident herein, the Defendant will be vicariously liable for DW1’s negligent acts and omissions. 20. Given the above, this court takes the position that the issues for determination are liability and quantum. Liability 21. The Plaintiff testified that the accident occurred when the motor vehicle hit an oncoming motorcycle while the motor vehicle was overtaking another motorcycle at a high speed. He maintained that the collision between the motor vehicle and the third party’s motorcycle did not occur in the motor vehicle’s lane. 22. DW1, on his part, took the position that the accident occurred in the motor vehicle’s lane when the third party’s motorcycle was overtaking. DW1 relied on the motor vehicle’s certificate of examination and test of motor vehicle dated 07th March 2025 showing that the accident caused damage to the motor vehicle’s front bumper. 23. The evidence above proved on a balance of probabilities that the accident occurred when there was a head-on collision between the Defendant’s motor vehicle and the third party’s motorcycle. Further, the evidence placed before this court did not prove on a balance of probabilities the particulars of negligence the Defendant attributed to the Plaintiff. In any event, the Plaintiff was neither in control of the motor vehicle nor the motorcycle involved in the head-on collision; therefore, he cannot be blamed for causing the accident. 24. However, the Plaintiff and DW1 gave contradictory evidence on the point of impact. Whereas the Plaintiff maintained that the accident occurred in the third party’s motorcycle’s lane, DW1 testified that the accident occurred in the motor vehicle’s lane. 25. This court takes the view that in the face of contradictory evidence on the point of impact, the circumstances of this case required the production of a sketch plan for this court to adequately appreciate the point of impact before apportioning liability between the Plaintiff and the third party’s motorcycle’s rider. The position taken by this court on this issue finds support in Postal Corporation of Kenya & Another v Dickens Munayi (2014) eKLR where it was held that:-

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“In my view, it is only a sketch plan of the scene that could clearly map out how the accident occurred and particularly where the point of impact was. The lack of this crucial piece of evidence leads me to doubt the entire evidence of PW2 and PW3. It also costs benefit to the defence case that probably it could as well be the Respondent who pulled to his lane.” 26. In the absence of the sketch plan, it follows that the evidence on record is barely adequate for this court to apportion liability between the Defendant and the third party’s motorcycle rider. However, in such an instance, DW1 cannot be exonerated from blame. This was well explained in Hussein Omar Farah v Lento Agencies [2006] eKLR, where the Court of Appeal held that in such instances the two drivers must be equally blamed for causing the accident herein. 27. The third party failed to enter appearance and lead any evidence to disprove the Defendant’s claim that the third party’s motorcycle’s rider was their servant or agent at the time of the accident. In the circumstances, the third party must be held vicariously liable for the motorcycle’s negligent acts or omissions. 28. Be that as it may, it is not lost to this court that liability between a third party and a defendant, the question of liability in third party proceedings, is determined between the defendant and the third party as was enunciated in Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR where the court held that:“In law, a third party is enjoined in a suit at the instance of the defendant and through the set procedure under Order 1 Rule 15-22 of the Civil Procedure Rules. And, liability between the defendant and the third party is determined between the defendant and the third party, but of course after the court is satisfied that there is a proper question to be tried as to liability of the third party and the defendant, and has given directions under Order 1 Rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the defendant and cannot be a bona fide issue triable between the defendant and the plaintiff. On the basis of those legal reasons, even if the third party had been joined, which he has not, it is not a triable issue at all for purposes of liability between the plaintiff and the defendant.” 29. Guided by the authority above, this court cannot order the Plaintiff to recover damages, if any, due to him from the third party whom he did not sue, despite this court having made a finding that the third party is 50% liable for causing the accident. The third party is only

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expected to indemnify or contribute to the Defendant 50% of the damages the Plaintiff may be entitled to recover from the Defendant. 30. The Defendant’s driver owed the Plaintiff the duty of care of ensuring that the Plaintiff reached his destination safe and sound. That duty of care was breached when the Defendant’s driver was involved in a head-on collision with the third party’s motorcycle, thereby occasioning the Plaintiff's bodily injuries. 31. The upshot of the above is that this court apportions liability between the Plaintiff and the Defendant at 100% in favour of the Plaintiff. Quantum (a) General Damages for Pain and Suffering 32. The Plaintiff pleaded in paragraph 5 of her Amended Plaint that the accident caused the Plaintiff to sustain blunt injuries to the scalp, left cheek, chest and back, a cut injury to the left cheek, a cut wound on the right leg, as well as bruises on the left leg. 33. The P3 form produced by the Plaintiff proved on a balance of probabilities that the accident caused the Plaintiff to sustain blunt injuries to the scalp, left cheek, chest and back, a cut injury to the left cheek, a cut wound on the right leg, as well as bruises on the left leg assessed as harm. 34. 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.” 35. This court has given due regard to the written submissions on record on quantum. 36. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR), where the court made an award of Kshs. 150,000/= for multiple soft tissue injuries, including a deep cut on the forehead and a blunt injury to the right knee. 37. In Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR), the court made an award 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.

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38. Lastly, in Quick Shuttle Sacco v Joel & another (Civil Appeal E131 of 2023) [2026] KEHC 1573 (KLR), the court upheld an award of Kshs. 250,000/= for moderate multiple soft tissue injuries. 39. The authorities above show that awards of between Kshs. 150,000/= - Kshs. 250,000/= are usually made for moderate multiple soft tissue injuries. It is for this reason that this court makes an award of Kshs. 200,000/= under this head. Special Damages 40. The Plaintiff pleaded for special damages of Kshs. 25,550/= particularized in paragraph 4A of the Amended Plaint. 41. The Plaintiff produced a receipt for the medical report for Kshs. 6,000/=, a receipt for the copy of records from NTSA for Kshs. 550/= and a receipt for Kshs. 500/= from Kabula Health Centre in support of his claim for the pleaded special damages. 42. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 7,050/=. DETERMINATION 43. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: a) Liability………………………………………100% in favour of the Plaintiff against the Defendant, and 50%:50% between the Defendant and the third party b) General Damages…………………...………Kshs. 200,000/= c) Special Damages……………………...…….Kshs. 7,050/= Total Award……………………..Kshs. 207,050/= 44. 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. 45. The Plaintiff will have the costs of this suit. 46. The third party will indemnify the Defendant for 50% of the general damages and costs the Plaintiff will recover from the Defendant. 47. Judgment accordingly. 48. Thirty (30) days' stay of execution is granted, given the fact that this judgment has been delivered via CTS in the absence of the parties. Signed and delivered via CTS at Bungoma this 27th day of August 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE

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