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3. The Defendants denied liability and put the Plaintiff to strict proof. In the alternative, they attributed the accident to the negligence of the Plaintiff and/or the driver of KDL 102R. They also disputed the nature and extent of the injuries pleaded, the claim for loss of income, the future medical expenses and the special damages. 4. The Plaintiff called two witnesses. The first was the Plaintiff himself, who gave an account of how the accident occurred and testified on the injuries he sustained and their consequences. The second was PW2, the investigating police officer, who testified concerning the investigations undertaken at the scene and the circumstances in which the accident occurred. The Defendants did not call any evidence. B. PLEADINGS i. Plaint 5. The Plaintiff, Amos Mutua Thandi, instituted the suit vide plaint dated 12 th July 2024 against John Kiranga Ndungu and Ann Njeri Kamau, arising from a road traffic accident that occurred on or about 25 th July 2023 along the Narok–Mai Mahiu Road at Stima area. The Plaintiff pleaded that he was lawfully travelling as a passenger in motor vehicle registration number KDL 102R from Kisii to Nairobi when motor vehicle registration number KCE 575N, owned by the 1 st Defendant and beneficially owned, insured and/or driven by the 2 nd Defendant, was so negligently and carelessly driven that it collided with the vehicle in which he was travelling. He attributed the accident to, inter alia, excessive speed, careless overtaking, failure to keep proper control, driving without due care and attention, failure to brake or take evasive action, driving a defective Narok Civil Case No. E175 Of 2024 Page 2 Of 30

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motor vehicle, and generally failing to have regard to other road users. The Plaintiff also pleaded res ipsa loquitur. 6. As a result of the accident, the Plaintiff sustained serious injuries, namely rupture of the urinary bladder, a tear of the urethra resulting in urethral stricture, fractures of the left tibia and fibula, and cut wounds to the right hand and left thigh. He pleaded special damages amounting to Kshs. 461,400, comprising medical expenses of Kshs. 420,850, motor vehicle search fees of Kshs. 550, and medical report fees of Kshs. 40,000. He further averred that prior to the accident he worked as a casual labourer earning approximately Kshs. 1,000 per day but had been unable to work due to the injuries, thereby suffering loss of income. 7. The Plaintiff pleaded that despite demand and notice of intention to sue, the Defendants had failed or refused to compensate him. He therefore sought judgment against the Defendants jointly and severally for special damages of Kshs. 461,400, general damages for pain and suffering, loss of earnings/income and/or the cost of future surgery, costs of the suit and interest, together with any other relief the Court deemed fit. ii. Statement of Defence 8. The Defendants, John Kiranga Ndung’u and Ann Njeri Kamau, filed a Statement of Defence dated 19th August 2024 in which they generally denied all allegations in the Plaint except those expressly admitted and put the Plaintiff to strict proof. They partially admitted the descriptive averments concerning the parties but denied knowledge of the alleged ownership, beneficial ownership, insurance and/or driving of motor vehicle registration number KCE 575N. Narok Civil Case No. E175 Of 2024 Page 3 Of 30

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9. The Defendants denied that the Plaintiff was lawfully travelling as a passenger in motor vehicle registration number KDL 102R on 25 th July 2023 along the Narok–Mai Mahiu Road, and further denied that an accident occurred involving the two vehicles or that their authorised driver, agent, servant or employee negligently drove or controlled motor vehicle registration number KCE 575N and caused the alleged collision. They specifically denied all the particulars of negligence pleaded in the Plaint. In the alternative, and without prejudice to that denial, they averred that if an accident occurred, it was not caused by their negligence but was wholly or substantially caused by the negligence of the Plaintiff and/or the driver of motor vehicle registration number KDL 102R. 10.The Defendants attributed contributory negligence to the Plaintiff on the grounds that he engaged the driver in animated conversation, failed to fasten his safety belt, failed to comply with the Traffic Act and Highway Code, and failed to have due regard for his own safety. They further alleged negligence against the driver of motor vehicle KDL 102R, including driving a defective vehicle, parking or stalling it in the path of KCE 575N, failing to place appropriate reflectors or warning indicators, driving at excessive speed, failing to keep a proper lookout or exercise proper control, failing to observe traffic rules and the safety of other road users, engaging in animated conversation while driving, failing to slow down, stop or take evasive action, driving under the influence of alcohol or other intoxicants, and encroaching onto the lane of KCE 575N. The Defendants consequently sought leave to issue a third-party notice against the owner and/or driver of KDL 102R. 11.The Defendants also denied that the Plaintiff sustained the injuries pleaded in the Plaint or incurred the alleged special damages, and put him to strict proof thereof. They denied knowledge of the Plaintiff’s alleged loss of income and Narok Civil Case No. E175 Of 2024 Page 4 Of 30

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further denied having been served with the demand letter or notice of intention to sue. Although they admitted the jurisdiction of the Court, they denied that the Plaintiff had any cause of action against them. They therefore prayed that the suit be dismissed with costs. iii. Reply to Defence 12.The Plaintiff, in the Reply to the Defendants’ Statement of Defence dated 21 st August 2024, generally denies all the allegations contained in the Defence except those expressly admitted. The Plaintiff specifically denies the averments contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Defence, reiterates and relies on the corresponding averments in the Plaint, and puts the Defendants to strict proof thereof. The Plaintiff maintains the claim as pleaded and consequently prays that the Defendants’ Statement of Defence be struck out and judgment be entered in his favour as sought in the Plaint. C. EVIDENCE 13.The Plaintiff called two witnesses in support of his case. PW1, Amos Mutua Thandi, testified that he was a resident of Narok and the Plaintiff herein. He adopted his witness statement dated 12 th July 2024 as his evidence-in-chief and produced the documents contained in the Plaintiff’s List of Documents dated 16th July 2024 and further list of documents dated 7 th July 2025, save for the Police Abstract, which was subsequently produced by PW2. He testified that on 25th July 2023 at about 4.30 p.m., he was travelling from Kisii to Nairobi as a passenger in motor vehicle registration number KDL 102R. He was seated behind the driver. According to his testimony, while the vehicle was at Stima area along the Narok–Mai Mahiu Road, motor vehicle registration number KCE 575N, which was approaching from the opposite direction, attempted to Narok Civil Case No. E175 Of 2024 Page 5 Of 30

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overtake other vehicles and, in the process, encroached onto the lane occupied by KDL 102R, resulting in a collision. 14.PW1 testified that the road had three lanes at the material section, with two lanes serving traffic travelling towards Kisii/Narok and one lane serving traffic travelling towards Nairobi/Mai Mahiu. He stated that KDL 102R was travelling on its proper lane towards Nairobi when KCE 575N, while overtaking vehicles travelling in the opposite direction, moved into their lane and collided with their vehicle. He blamed the driver of KCE 575N for causing the accident through careless driving, dangerous overtaking and excessive speed. He stated that the impact occurred on the lane on which KDL 102R was travelling and that the vehicle sustained a frontal impact. 15.PW1 further testified that as a result of the accident he sustained a fracture of the left leg, rupture of the urinary bladder and an injury to the urethra which subsequently resulted in urethral stricture. He was initially taken to Narok District/County Referral Hospital for treatment and thereafter attended St Mary's Mission Hospital for further treatment. He testified that he had not fully recovered and continued to experience problems with his urethra, requiring regular dilation. He stated that he had undergone the procedure more than ten times and that he incurred expenses in relation thereto. He also testified that he had produced receipts evidencing some of the treatment expenses. 16.On his occupation and earnings, PW1 testified that prior to the accident he was engaged in the sale of bananas and earned between Kshs. 1,000 and Kshs. 8,000 per day, depending on the day. He stated that he was no longer able to engage in the business because his body had not fully recovered from the injuries. He Narok Civil Case No. E175 Of 2024 Page 6 Of 30

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maintained that the accident and the injuries sustained therein had affected his ability to work and earn an income. 17.Under cross-examination, PW1 maintained that he was seated behind the driver of KDL 102R and had a proper view of the road. He stated that the accident occurred at a corner and that the oncoming vehicle was overtaking vehicles on the climbing lane. He reiterated that KDL 102R was travelling on the far-left lane in the direction of Nairobi/Mai Mahiu while the other two lanes served traffic travelling in the opposite direction. He maintained that KCE 575N moved into their lane while overtaking and caused the collision. He further confirmed the nature of the injuries he sustained and the treatment he had undergone, including repeated urethral dilation. He stated that he had incurred expenses in relation to the procedure and that he had produced supporting receipts. PW1 acknowledged that he had not personally produced documentary evidence showing that the driver of KCE 575N had been blamed for the accident, but maintained that, from what he observed, the said vehicle caused the accident. 18.On re-examination, PW1 reiterated that the oncoming motor vehicle was overtaking using the lane on which their vehicle was travelling. He maintained that had the vehicle remained on its proper lane, the collision would not have occurred. 19.PW2 was a police officer who was attached to Ntulele Police Station and was performing traffic duties at the material time. He testified as the investigating officer in respect of the accident. His evidence was that on 25th July 2023, a road traffic accident occurred at Stima area along the Narok–Mai Mahiu Road Narok Civil Case No. E175 Of 2024 Page 7 Of 30

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involving motor vehicles registration numbers KCE 575N, KDL 102R and KDE 191X/ZG7491, the latter being a semi-trailer. 20.PW2 testified that following the accident he visited the scene together with another police officer and carried out investigations. He stated that, from the circumstances at the scene, including the position of the vehicles and the point of impact, he established that motor vehicle KCE 575N was travelling towards Narok and had overtaken the semi-trailer registration number KDE 191X/ZG7491. In doing so, KCE 575N moved into the lane of oncoming traffic and collided head-on with motor vehicle KDL 102R, which was travelling towards Mai Mahiu. 21.PW2 further testified that the accident occurred at or near a corner on a section of the road marked with a continuous yellow line. He explained that the road had two lanes for traffic travelling towards Narok and one lane for traffic travelling towards Mai Mahiu. According to him, KCE 575N was behind the semi-trailer and improperly overtook it at a point where overtaking was prohibited. In the course of overtaking, it entered the lane of the oncoming KDL 102R, resulting in the collision. 22.PW2 stated that he was able to identify the possible point of impact from his examination of the scene and prepared a sketch plan. He testified that the point of impact was on the lane belonging to KDL 102R. He further stated that KDL 102R was travelling on its proper side of the road. He confirmed that the accident resulted in serious injuries to several occupants and fatalities. He testified that the Plaintiff, Amos Mutua Thandi, was among those who sustained serious injuries. Narok Civil Case No. E175 Of 2024 Page 8 Of 30

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23.PW2 produced the relevant police documentation, including the Police Abstract and the police records relating to the accident. He testified that the information contained in the police records was consistent with his findings at the scene. He maintained that, based on his investigations, KCE 575N was responsible for the accident because its driver had overtaken the semi-trailer on a continuous yellow line and thereby entered the path of the oncoming KDL 102R. 24.During cross-examination, PW2 confirmed that he was the investigating officer but acknowledged that he was not an eyewitness to the accident. He referred to the Occurrence Book, which recorded that the semi-trailer was travelling from Mai Mahiu towards Narok and that, upon reaching the Stima area, KCE 575N overtook it while it was climbing. In the process, KCE 575N moved into the lane of oncoming traffic and collided with KDL 102R, which was descending towards Mai Mahiu. 25.PW2 further testified that when he arrived at the scene at approximately 4.45 p.m., the semi-trailer had overturned and the building blocks it was carrying had spilled onto the road. He maintained that KCE 575N was responsible for the accident because it had overtaken on a continuous yellow line at a prohibited section of the road. He reiterated that KDL 102R was travelling on its proper side of the road. Although he acknowledged that he had not witnessed the collision himself and that the statement of the driver of KDL 102R was not before the Court, he maintained that his conclusion was based on the investigations he conducted at the scene, including the position of the vehicles and the established point of impact. 26.The Plaintiff also produced additional documentary evidence through PW2 and relied on the documents contained in his further list of documents dated 7th July Narok Civil Case No. E175 Of 2024 Page 9 Of 30

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2025. The documentary evidence included the relevant police records and other documents relating to the accident and the injuries sustained by the Plaintiff. The medical evidence relied upon by the Plaintiff included the treatment records, discharge summaries, radiological report, P3 form and the medical report prepared by Dr. Wellington Kiamba dated 11th July 2024. The medical evidence documented the Plaintiff's injuries and continuing complications, including urethral stricture and the need for periodic urethral dilation. 27.The Plaintiff's evidence was that he continued to require medical attention following the accident and had not fully recovered. The medical report by Dr. Kiamba noted, among other complaints, inability to pass urine, lower abdominal pain and pain and swelling of the left leg. On examination, the Plaintiff had an indwelling suprapubic catheter, tenderness and an incision wound in the suprapubic region, scars on the right hand and left thigh, restricted movements of the left knee and ankle, and evidence of fractures of the left tibia and fibula. The doctor attributed the injuries to the accident and opined that the Plaintiff had developed a very tight urethral stricture requiring regular dilation and future medical treatment. 28.The Defendants did not call any witness. Consequently, there was no oral evidence from the defence to rebut PW1's account of the accident or PW2's evidence regarding the investigations, the point of impact and the manner in which motor vehicle KCE 575N allegedly entered the lane of the oncoming KDL 102R. The Court is therefore left to determine the issues in dispute on the basis of the evidence tendered by the Plaintiff and the documentary evidence produced in support thereof. D. SUBMISSIONS. Narok Civil Case No. E175 Of 2024 Page 10 Of 30

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i. Plaintiff’s Submissions 29.The Plaintiff, Amos Mutua Thandi, in submissions dated 7 th July 2026, submits that the suit arises from the road traffic accident of 25 th July 2023 along the Narok–Mai Mahiu Road at Stima Area, in which he was travelling as a passenger in motor vehicle registration number KDL 102R when motor vehicle registration number KCE 575N, driven by the Defendants’ authorised driver, allegedly overtook improperly and collided with the Plaintiff’s vehicle. The Plaintiff identifies liability and quantum as the principal issues for determination. 30.On liability, the Plaintiff relies on the evidence of PW1, himself, and PW2, the investigating police officer. PW1 testified that KCE 575N was carelessly overtaking another vehicle when it collided with KDL 102R. He maintained that the accident was caused by careless driving, dangerous overtaking, and excessive speed. PW2 corroborated this account and produced the Occurrence Book and Police Abstract, confirming the accident and the involvement of the three vehicles. According to PW2, KCE 575N overtook a trailer on a continuous yellow line at a section where overtaking was prohibited and collided with the oncoming KDL 102R. He further testified that the point of impact was on KDL 102R’s lane. The Plaintiff submits that, being merely a passenger, he had no control over the vehicle and could not have contributed to the accident. Since the Defendants called no evidence to rebut the testimony of PW1 and PW2, the Plaintiff contends that his evidence remained uncontroverted and that he proved liability on a balance of probabilities. He consequently urges the Court to find the Defendants 100% liable. Narok Civil Case No. E175 Of 2024 Page 11 Of 30

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31.On quantum, the Plaintiff submits that he sustained a rupture of the urinary bladder, a tear of the urethra resulting in urethral stricture, fractures of the left tibia and fibula, and cut wounds to the right hand and left thigh. He relies on his treatment records, discharge summaries, radiological report, P3 form, and the medical report prepared by Dr. Kiamba dated 11 th July 2024. The Plaintiff submits that he underwent several admissions and treatments following the accident and continued to suffer from inability to pass urine, abdominal pain, pain and swelling of the left leg, restricted movement, and other complications. Dr. Kiamba found that the Plaintiff had developed a very tight urethral stricture requiring regular dilation, initially and thereafter once annually, at a current estimated cost of Kshs. 30,000–50,000 per procedure. The doctor further assessed the injuries as grievous harm and estimated the cost of future treatment at not less than Kshs. 500,000. 32.For pain and suffering, the Plaintiff proposes general damages of Kshs. 4,500,000, relying on Alex Wachira Njagua v Gathuthi Tea Factory & Another [2010] eKLR, where Kshs. 3,000,000 was awarded for injuries including fractures of the left tibia and right fibula and other soft-tissue injuries; Sabina Nyakenya Mwanga v Patrick Kigoro & Another [2015] eKLR, where Kshs. 3,000,000 was awarded for multiple fractures and other serious injuries; and Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR), where the High Court upheld an award of Kshs. 2,000,000 for a ruptured urethra and fractured pelvis. The Plaintiff submits that his injuries were more severe than those in the cited authorities and that the proposed award should also take inflation into account. 33.Regarding loss of earnings, the Plaintiff submits that he was a casual labourer earning approximately Kshs. 1,000 per day before the accident and has been Narok Civil Case No. E175 Of 2024 Page 12 Of 30

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unable to work because of the severity of his injuries. He proposes a multiplier of five years, yielding Kshs. 1,800,000, calculated at Kshs. 1,000 × 30 days × 12 months × 5 years. Alternatively, he proposes application of the minimum wage for a casual labourer under the Regulation of Wages (General) (Amendment) Order, 2026, stated as Kshs. 18,047.40 per month, resulting in Kshs. 1,082,844 for five years. Reliance is placed on Edward Shoboi Gambo v Fatma Osman Ahmed & Another [2020] eKLR , where an award for loss of earnings was upheld in respect of an injured claimant who was unable to work for a period of time. 34.On future medical expenses, the Plaintiff relies on Dr. Kiamba’s opinion that he requires regular urethral dilations and thereafter annual dilation, with future treatment estimated at Kshs. 500,000 and individual dilation costing between Kshs. 30,000 and Kshs. 50,000. On the basis of an asserted life expectancy of 60 years, and his age of 19 years at the time of the accident, he calculates 41 future annual dilations at Kshs. 50,000 each, amounting to Kshs. 2,050,000. He therefore urges the Court to award Kshs. 500,000 for future treatment and Kshs. 2,050,000 for future urethral dilations. 35.Finally, the Plaintiff submits that he pleaded and proved special damages of Kshs. 461,400 and accordingly prays for judgment for the said special damages, general damages of Kshs. 4,500,000, damages for loss of earnings as proposed, future medical expenses and urethral dilation costs, together with costs of the suit and interest. ii. Defendants’ Submissions. 36.The Defendants, John Kiranga Ndung’u and Ann Njeri Kamau, in their written submissions dated 20th July 2026, submit that the Plaintiff failed to prove the Narok Civil Case No. E175 Of 2024 Page 13 Of 30

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claim against them on a balance of probabilities. They contend that the burden of proving the alleged negligence rested upon the Plaintiff pursuant to Sections 107(1) and 109 of the Evidence Act, Cap. 80, Laws of Kenya. Although PW1 testified that he was a passenger in motor vehicle registration number KDL 102R and blamed the driver of KCE 575N for the accident, the Defendants argue that the evidence of PW2, the police officer, did not establish liability. They point out that the Police Abstract dated 16 August 2023 indicated that investigations were still pending and did not attribute blame to the Defendants. They further submit that PW2 was not an eyewitness and did not produce the police file, sketch map or photographs of the accident scene to establish the point of impact or explain how the accident occurred. 37.Relying on Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge [2021] eKLR, the Defendants submit that a Police Abstract merely establishes that an accident was reported to the police and, without information on the investigations and their outcome, cannot by itself constitute evidence of negligence. They further acknowledge that they did not call evidence but contend that such failure does not automatically entitle the Plaintiff to judgment. They rely on Margaret Wanjiru Ndirangu & 4 Others v Attorney General [2020] KECA 683 (KLR), where the Court of Appeal held that a plaintiff must first adduce credible and believable evidence capable of proving the claim on a balance of probabilities, notwithstanding the defendant’s failure to call evidence. The Defendants consequently submit that the Plaintiff failed to establish negligence and urge the Court to dismiss the suit with costs or, alternatively, apportion liability equally at 50:50. 38.On general damages, the Defendants submit that, should liability be found against them, an award of between Kshs. 1,500,000 and Kshs. 1,700,000 would Narok Civil Case No. E175 Of 2024 Page 14 Of 30

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be adequate compensation for the injuries sustained. They rely on Hussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 Others [2022] eKLR, which cited with approval the principles in Boniface Waiti & Another v Michael Kariuki Kamau [2007] eKLR that damages are intended to compensate rather than enrich a claimant, should correspond with the injuries suffered, and that comparable awards are merely guides which must be considered alongside the circumstances of each case and inflation. They further rely on Namaposa v Manyara [2024] KEHC 7728 (KLR), where an award of Kshs. 800,000 was reduced to Kshs. 600,000 for injuries including a fracture of the tibia and fibula, and Gichuhi v BJT (Minor Suing through Father and Friend BTJ) [2022] KEHC 15450 (KLR), where an award of Kshs. 1,250,000 was upheld for injuries including a posterior urethral tear, bladder tear, head injury and cut wound. The Defendants contend that these authorities provide a reasonable basis for the proposed award. 39.On loss of earnings and/or income, the Defendants submit that the claim was neither sufficiently proved nor supported by documentary evidence. They note that although the Plaintiff claimed to have earned Kshs. 1,000 on bad days and Kshs. 8,000 on good days as a casual labourer, he produced no records, business permit, ledger or other evidence to substantiate his alleged earnings. Relying on Cecilia W. Mwangi & Another v Ruth W. Mwangi, Nyeri Civil Appeal No. 251 of 1996 [1997] eKLR, as cited in Swalleh C. Kariuki & Another v Viloet Owiso Okuyu [2021] KEHC 4863 (KLR), the Defendants submit that loss of income and future earnings, being in the nature of special damages, must be specifically pleaded and strictly proved. They therefore urge the Court to dismiss that head of claim for want of proof, relying further on Swalleh C. Kariuki & Another v Viloet Owiso Okuyu [2021] KEHC 4863 Narok Civil Case No. E175 Of 2024 Page 15 Of 30

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(KLR), where a claim for loss of income was dismissed for lack of evidence demonstrating the alleged loss. 40.Regarding future medical expenses, the Defendants acknowledge that the Plaintiff requires urethral dilation but dispute the amount proposed. They note that Dr. Kiamba estimated the cost at between Kshs. 30,000 and Kshs. 50,000 per session, whereas Dr. Mwaura assessed the cost at Kshs. 20,000 per session. The Defendants urge the Court to rely on Dr. Mwaura’s assessment as the later medical opinion and award Kshs. 20,000 per dilation. They further refer to the case cited in their submissions involving similar urethral injuries, where the cost of dilation was assessed at Kshs. 15,000 per session. 41.On special damages, the Defendants submit that such damages must be specifically pleaded and strictly proved by documentary evidence, particularly receipts. Although the Plaintiff pleaded Kshs. 461,400, the Defendants point out that the further list of documents disclosed that SHIF had catered for Kshs. 112,000 of the medical expenses. They therefore urge the Court to deduct that amount to avoid double compensation and award only the amount that was actually incurred and strictly proved. Reliance is placed on Kenya Women Microfinance Ltd v Martha Wangari Kamau [2021] eKLR , citing Ryce Motors Limited & Another v Elias Muroki , for the established principle that special damages must not only be specifically pleaded but must also be strictly proved. 42.The Defendants consequently urge the Court to find that the Plaintiff failed to prove liability and dismiss the suit with costs; alternatively, should liability be imposed, to award reasonable general damages within the range proposed, reject the unproved claim for loss of earnings, assess future medical expenses at Narok Civil Case No. E175 Of 2024 Page 16 Of 30

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Kshs. 20,000 per dilation, and award only such special damages as were specifically pleaded and strictly proved. E. ISSUES FOR DETERMINATION 43.From the pleadings, evidence and submissions, the following issues arise for determination: i. Whether the Plaintiff has proved that the accident was caused by the negligence of the driver of motor vehicle registration number KCE 575N; ii. Whether the Plaintiff contributed to the occurrence of the accident and, if so, to what extent; iii. Whether the Defendants are liable for the negligence established against the driver of KCE 575N; iv. What injuries did the Plaintiff sustain and what amount of general damages is appropriate for pain, suffering and loss of amenities; v. Whether the Plaintiff has proved his claim for loss of earnings/income; vi. Whether the Plaintiff is entitled to future medical expenses and, if so, in what amount; Narok Civil Case No. E175 Of 2024 Page 17 Of 30

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vii. Whether the claim for special damages has been strictly proved and, if so, in what amount; and viii. Who should bear the costs of the suit and interest. F. ANALYSIS AND DETERMINATION i. Liability 44.The burden of proof under Section 107(1) of the Evidence Act, Cap. 80, Laws of Kenya, provides that whoever desires a court to give judgment as to a legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Sections 108 and 109 further place the evidential burden upon the person who wishes the Court to believe in the existence of a fact. 45.The applicable standard is proof on a balance of probabilities. In Eastern Produce (K) Limited v Christopher Atiado Osiro [2006] eKLR , the Court of Appeal reiterated that a party bearing the burden of proof must establish his case on a balance of probabilities. Similarly, in Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that the burden of proof is on the party who asserts the existence of a fact and that such burden is not discharged merely because the opposing party has not called evidence. 46.The Defendants correctly submit that their failure to call evidence does not, without more, entitle the Plaintiff to judgment. This principle was affirmed by the Court of Appeal in Margaret Wanjiru Ndirangu & 4 Others v Attorney General [2020] KECA 683 (KLR), Civil Appeal No. 305 of 2016, where the Court emphasized that a claimant must first adduce credible evidence sufficient to establish the claim notwithstanding the defendant’s failure to call evidence. Narok Civil Case No. E175 Of 2024 Page 18 Of 30

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47.The question therefore is whether the Plaintiff discharged that burden by the evidence placed before the Court. 48.PW1 was a passenger in KDL 102R. He gave direct evidence concerning the circumstances immediately preceding the accident. His evidence was that KCE 575N was approaching from the opposite direction and, while overtaking other vehicles, moved onto the lane occupied by KDL 102R and collided with it. He maintained this position in cross-examination and re-examination. 49.His evidence is material because he was not a mere bystander. He was an occupant of KDL 102R and was seated behind the driver. He therefore had an opportunity to observe the road and the approaching vehicle. His account was that KDL 102R was travelling on its proper lane towards Mai Mahiu while KCE 575N entered that lane during an overtaking manoeuvre. 50.More importantly, PW1’s evidence was materially corroborated by PW2, the investigating police officer. PW2 visited the scene after the accident, examined the circumstances thereat and testified that KCE 575N had been travelling towards Narok behind a semi-trailer. It overtook the semi-trailer at a corner where there was a continuous yellow line and, in the process, entered the lane of the oncoming KDL 102R. 51.PW2 further testified that the point of impact was on the lane of KDL 102R and that KDL 102R was travelling on its proper side of the road. This evidence is consistent with PW1’s account that the vehicle travelling towards Narok encroached into the path of the vehicle travelling towards Mai Mahiu. 52.I have considered the Defendants’ submission that PW2 was not an eyewitness and that the Police Abstract did not itself attribute blame to the driver of KCE Narok Civil Case No. E175 Of 2024 Page 19 Of 30

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575N. I agree with the general proposition that a Police Abstract is not, standing alone, conclusive proof of negligence. The High Court in Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] KEHC 8336 (KLR), Civil Appeal No. 95 of 2019, considered the evidentiary value of police documentation and the circumstances in which such documentation can or cannot establish negligence. 53.However, this case does not rest solely on the Police Abstract. PW2 gave viva voce evidence concerning the investigations he undertook, his visit to the scene, the position of the vehicles, the point of impact and the road markings. His evidence was therefore independent of, and considerably more substantial than, a mere production of the Police Abstract. 54.The fact that PW2 did not witness the accident does not render his evidence inadmissible or worthless. His evidence concerning the physical circumstances at the scene was based on his investigations undertaken in the course of his official duties. The Court must, however, consider such evidence alongside the direct evidence of PW1. In the present case, the two accounts substantially corroborate each other. 55.I find particularly significant the evidence that KCE 575N was overtaking a semi-trailer at a section of the road marked with a continuous yellow line and that, in doing so, it entered the lane of oncoming traffic. Such a manoeuvre, in the circumstances described by PW1 and PW2, was inherently dangerous and constituted a failure to exercise reasonable care towards other road users. 56.A driver approaching a bend or a section of road where overtaking is prohibited is required to exercise a high degree of caution and must not embark upon an overtaking manoeuvre when it cannot safely be completed without entering the Narok Civil Case No. E175 Of 2024 Page 20 Of 30

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path of oncoming traffic. The evidence before the Court establishes, on a balance of probabilities, that this is precisely what happened. 57.The Defendants pleaded a number of allegations against the driver of KDL 102R, including excessive speed, failure to keep proper control, defective condition of the vehicle, failure to place warning signs, intoxication and encroachment onto the lane of KCE 575N. However, these remained mere allegations in the Defence. No witness was called, and no independent evidence was placed before the Court to substantiate any of them. 58.The same applies to the allegation that the Plaintiff failed to fasten his safety belt or otherwise contributed to the accident. There is no evidence before the Court establishing that allegation. A party who pleads contributory negligence bears the evidential burden of proving the acts or omissions constituting such negligence. 59.The Plaintiff was a passenger. There is no evidence that he had any control over either vehicle or over the manner in which the drivers operated the vehicles. There is equally no evidence that any act or omission on his part contributed to the occurrence of the collision. 60.I therefore find that the Plaintiff has proved, on a balance of probabilities, that the accident was caused by the negligent driving of motor vehicle KCE 575N, particularly by the driver’s decision to overtake at a prohibited section of the road and thereby enter the path of the oncoming KDL 102R. ii. Liability of the Defendants Narok Civil Case No. E175 Of 2024 Page 21 Of 30

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61.The Plaintiff pleaded that the 1st Defendant was the owner of KCE 575N and that the 2nd Defendant was its beneficial owner, insured and/or driver. The Defendants denied those averments. 62.The Plaintiff produced documentary evidence relating to the motor vehicle, including a motor vehicle search. I have considered that evidence together with the pleadings. The evidence establishes the connection pleaded between the Defendants and KCE 575N. There was no evidence from the Defendants to rebut the same. 63.Once negligence on the part of the driver of KCE 575N has been established, the next question is whether that negligence is attributable to the Defendants. The Plaintiff pleaded the relationship of the driver to the Defendants and the Defendants, having elected not to call evidence, did not rebut that aspect of the Plaintiff’s case. 64.On the totality of the evidence, I find the Defendants liable for the accident. I further find that the Plaintiff did not contribute to its occurrence. 65.Consequently, liability is apportioned at 100% against the Defendants. iii. Injuries and General Damages 66.It is not disputed, on the evidence, that the Plaintiff sustained serious injuries. The medical records and the report by Dr. Wellington Kiamba dated 11 th July 2024 establish that the Plaintiff suffered rupture of the urinary bladder, injury to the urethra resulting in urethral stricture, fractures of the left tibia and fibula and soft tissue injuries to the right hand and left thigh. Narok Civil Case No. E175 Of 2024 Page 22 Of 30

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67.The medical evidence further establishes that the Plaintiff required significant treatment, including insertion of a suprapubic catheter and subsequent management of the urethral injury. He developed a very tight urethral stricture and has required repeated urethral dilation. 68.The evidence demonstrates that the consequences of the accident were not transient. The Plaintiff continued to experience difficulty passing urine and required continuing medical attention. The medical report also indicates the possibility of future treatment. 69.In assessing general damages, the Court must bear in mind that no monetary award can truly compensate a claimant for physical pain and loss of amenities. The award is intended to compensate the claimant fairly, while maintaining reasonable consistency with awards made in comparable cases. It is also necessary to take into account changes in the value of money. 70.In Boniface Waiti & Another v Michael Kariuki Kamau [2007] eKLR , the Court emphasized that damages should be commensurate with the injuries suffered and that comparable awards provide useful guidance, while each case must ultimately be determined on its own facts. 71.In Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR), Civil Appeal No. 59 of 2016, the High Court considered injuries involving fractures of the pelvis, rupture of the bladder and urethral injury. The Court upheld general damages of Kshs. 2,000,000, taking into account the severity of the injuries, the treatment undergone and the possibility of future complications. 72.That authority is particularly instructive because it involved a urethral injury and continuing risk of recurrence requiring future medical intervention. The Narok Civil Case No. E175 Of 2024 Page 23 Of 30

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Plaintiff herein, however, suffered additional fractures of the left tibia and fibula and soft tissue injuries, and his evidence demonstrates continuing need for urethral dilation. 73.I have also considered Gichuhi v BJT (Minor Suing through Father and Friend BTJ) [2022] KEHC 15450 (KLR) , Civil Appeal E043 of 2021, where the High Court considered injuries including a posterior urethral tear and bladder tear, together with other injuries, in assessing damages. 74.I have further considered the authorities cited by the Plaintiff, including Alex Wachira Njagua v Gathuthi Tea Factory & Another [2010] eKLR and Sabina Nyakenya Mwanga v Patrick Kigoro & Another [2015] eKLR , as well as those relied upon by the Defendants. The awards in those cases provide useful comparators but must be adjusted for the precise injuries suffered and the passage of time. 75.In my assessment, the injuries suffered by the Plaintiff, the treatment undertaken, the continuing urethral stricture, the repeated dilation and the fractures of the left tibia and fibula justify an award higher than the Kshs. 2,000,000 awarded in the older authority relied upon by the parties. 76.I therefore award the Plaintiff Kshs. 3,000,000 as general damages for pain, suffering and loss of amenities. iv. Loss of Earnings/Income 77.The Plaintiff pleaded loss of income and testified that before the accident he was engaged in the sale of bananas. His evidence concerning his earnings was, however, inconsistent. At different stages he referred to earnings of Kshs. 1,000 per day and up to Kshs. 8,000 per day. Narok Civil Case No. E175 Of 2024 Page 24 Of 30

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78.No documentary evidence was produced to establish the alleged daily income. There was no business record, ledger, bank statement, permit, tax record or other reliable evidence from which the Court could determine the Plaintiff’s actual pre-accident earnings. 79.The law is settled that a claim for loss of earnings, where specifically pleaded as a distinct pecuniary loss, must be proved by evidence. In Cecilia W. Mwangi & Another v Ruth W. Mwangi [1997] KECA 62 (KLR), Civil Appeal No. 251 of 1996, the Court of Appeal considered claims for loss of earnings and emphasized the evidentiary basis necessary for such awards. 80.The fact that the Plaintiff was injured and may have experienced difficulty working does not, without evidence, establish the precise monetary loss claimed. The Court cannot simply select an arbitrary figure from the inconsistent earnings given in oral testimony. 81.The alternative proposal based on the minimum wage is equally unavailable in the circumstances of this case. The Plaintiff did not establish that he was employed in the category to which the particular minimum wage relied upon applies, nor did he establish the relevant period and basis for applying the proposed wage. 82.I therefore find that the claim for loss of earnings/income has not been proved to the required standard and dismiss that head of claim. v. Future Medical Expenses 83.Future medical expenses constitute a distinct head of damages and must be established by satisfactory medical evidence. The Plaintiff relied principally on Narok Civil Case No. E175 Of 2024 Page 25 Of 30

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Dr. Kiamba’s medical report, which indicates that he developed a very tight urethral stricture requiring regular dilation and future medical treatment. 84.Dr. Kiamba estimated the cost of future treatment at not less than Kshs. 500,000 and stated that urethral dilation could cost between Kshs. 30,000 and Kshs. 50,000 per procedure. 85.I accept the medical evidence that the Plaintiff requires future treatment. The evidence of the continuing urethral stricture and repeated dilation establishes that this is not a speculative claim. 86.I am, however, unable to accept the Plaintiff’s computation of Kshs. 2,050,000 based on 41 years of future annual dilation. The assumed life expectancy of 60 years and the mathematical projection of 41 annual procedures were not established by medical evidence. The Court should not make an award based on speculation as to the number of procedures the Plaintiff will require throughout his lifetime. 87.In Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR) , the Court similarly recognized the medical evidence concerning the possibility of recurrence of urethral stricture and the need for future intervention as a relevant consideration in the assessment of damages. 88.In the present case, the medical evidence specifically places the cost of future treatment at not less than Kshs. 500,000. I therefore find that the Plaintiff has proved future medical expenses in that amount. 89.I accordingly award Kshs. 500,000 for future medical expenses, inclusive of the future urethral management contemplated in the medical evidence. I decline to make the additional mathematical award of Kshs. 2,050,000 for 41 future Narok Civil Case No. E175 Of 2024 Page 26 Of 30

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dilations because that computation is not sufficiently supported by the medical evidence. vi. Special Damages 90.The Plaintiff pleaded special damages of Kshs. 461,400 comprising medical expenses of Kshs. 420,850, motor vehicle search fees of Kshs. 550 and medical report fees of Kshs. 40,000. 91.The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. The principle was restated in Ryce Motors Limited & Another v Elias Muroki [1996] eKLR, and has been repeatedly affirmed by the superior courts. 92.The Plaintiff produced documentary evidence in support of his medical expenses and other special damages. I have considered the receipts and other documents produced in evidence. 93.The Defendants contend that Kshs. 112,000 of the medical expenses was catered for by SHIF and ought therefore to be deducted to avoid double compensation. I have considered that submission. A claimant is entitled to recover only the loss actually borne by him and cannot obtain double recovery for the same expense. 94.To the extent that the documentary evidence establishes that Kshs. 112,000 of the pleaded medical expenses was actually settled by SHIF and was not incurred by the Plaintiff, that amount cannot properly be awarded to him as an out-of-pocket expense. Narok Civil Case No. E175 Of 2024 Page 27 Of 30

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95.The proved medical expense is therefore Kshs. 420,850 less Kshs. 112,000, giving Kshs. 308,850. Adding the motor vehicle search fee of Kshs. 550 and medical report fee of Kshs. 40,000 gives a total of Kshs. 349,400. 96.I accordingly award the Plaintiff Kshs. 349,400 as special damages. 97.The award of general damages is intended to compensate the Plaintiff for the pain, suffering and loss of amenities proved by the evidence. The award for future medical expenses is based on the medical evidence rather than an uncertain projection of the number of procedures the Plaintiff may require over his lifetime. 98.The Plaintiff has therefore proved his case on a balance of probabilities. The Defendants have not established any contributory negligence on the part of the Plaintiff or any negligence on the part of the driver of KDL 102R sufficient to disturb the finding of liability. G. CONCLUSION. 99.In the result, judgment is hereby entered in favour of the Plaintiff, Amos Mutua Thandi, against the Defendants, John Kiranga Ndungu and Ann Njeri Kamau, jointly and severally as follows: a. Liability: 100% b. General damages for pain, suffering and loss of amenities – Kshs. 3,000,000. c. Future medical expenses – Kshs. 500,000. d. Special damages – Kshs. 349,400. Narok Civil Case No. E175 Of 2024 Page 28 Of 30

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e. Loss of earnings/income – Nil, the same having not been sufficiently proved. f. Total award – Kshs. 3,849,400. 100. The award of general damages shall attract interest from the date of this judgment until payment in full. Special damages shall attract interest from the date of filing suit until payment in full. 101. The Plaintiff shall have the costs of the suit. 102. It is so ordered. Dated, Signed, and Delivered at Narok This 21st Day of September, 2026. HON H M NYABERI, CHIEF MAGISTRATE In the presence of: Court assistant; Danson Solian. Plaintiff advocate: Ms. Chepkorir holding brief for Ms. Chelangat Defendant advocate: Ms. Otieno ORDER: 45 days of execution. Narok Civil Case No. E175 Of 2024 Page 29 Of 30

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