Kimanzi Mbeti Meshack v Mucaswa Limited & another

4. The Plainti led written submissions dated 23rd July 2026. The Defendants, although having led a Statement of Defence, did not le written submissions. I have therefore considered the Plainti’s submissions together with the pleadings, oral evidence and documentary evidence placed before the Court. The failure by the Defendants to le submissions does not, of itself, relieve the Plainti of the burden of proving his case. The Court must determine the suit on the evidence and the applicable law. The Plainti ’s Case 5. The Plainti testied and adopted his Witness Statement and documentary evidence as part of his evidence. His evidence was that on the material morning he was walking along the pedestrian pavement when Motor Vehicle Registration Number KCH 763T approached while carrying a Keg/Container. According to the Plainti, the vehicle was being driven at a high speed and the keg/container was not properly secured. The keg subsequently detached from the vehicle and struck him on the head. 6. The Plainti stated that there was no obstruction on the road and that he was at all material times walking on the designated pedestrian pavement. He testied that the impact caused him to lose consciousness and that he thereafter received medical treatment. His evidence was that he sustained serious head injuries and continued to suer headaches, particularly when tired, and required medical reviews. 7. The Plainti also produced documentary evidence in support of the injuries and expenses incurred. His claim for special damages comprised Kshs. 1,500.00 for a Medical Report, Kshs. 550.00 for an ocial search and Kshs.256,579.00 in medical expenses incurred at The Mater Hospital, making a total of Kshs. 258,629.00 8. The Plainti submitted that his evidence on the manner in which the accident occurred remained uncontroverted. He further relied on the doctrine of res ipsa loquitur, arguing that a keg or container being carried on a motor vehicle would not ordinarily detach from the vehicle and strike an innocent pedestrian who was walking on a designated footpath in the absence of negligence. 9. The Plainti relied, inter alia, on Ngugi v Karanja & Another [2023] KEHC 2368 (KLR). In that case, the High Court considered a road trac accident where the plainti’s evidence was not rebutted because the defendants did not call evidence. The Court upheld the nding of liability and observed that the defendant’s failure to adduce evidence left the plainti’s evidence unrebutted. The Defendants’ Case 10. The Defendants led a Statement of Defence in which they denied liability and put the Plainti to strict proof. They denied that the Plainti was lawfully walking along the pavement when the accident occurred and denied that the 1st Defendant was the benecial or registered owner of Motor Vehicle Registration Number KCH 763T. 11. The Defendants further denied negligence and pleaded, in the alternative, that if the accident occurred, which they denied, it was wholly or substantially caused by the Plainti’s own negligence. The particulars pleaded included failure to keep a proper lookout, entering or venturing onto the road, obstructing the lawful path of the vehicle and failing to take reasonable care for his own safety. 12. The Defendants also denied the injuries and Special Damages claimed by the Plainti and pleaded that the same ought to be strictly proved. They denied receipt of the demand and notice of intention to sue and ultimately prayed that the suit be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 2

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13. However, notwithstanding the allegations contained in the Statement of Defence, the Defendants called no witness to testify in support of their pleaded position and did not le written submissions. Consequently, the allegations contained in the Defence were not tested through evidence or put to the Plainti by way of a substantive evidential challenge. 14. On 26th August 2026, the Court directed the parties to le their respective written submissions. The Plainti duly led submissions, which are on record. However, the Defendants did not le any submissions. Analysis And Determination 14. Having considered the Pleadings, the evidence and the submissions led, in my view the following issues arise for determination: a. Whether the Plainti proved that the accident occurred in the manner pleaded; b. Whether the Plainti proved negligence and liability against the Defendants; c. Whether the doctrine of res ipsa loquitur applies; d. Whether the 1st Defendant is liable for the acts of the 2nd Defendant; e. What quantum of general and special damages, if any, is payable; and f. Who should bear the costs of the suit. Liability 15. The starting point is the burden of proof. Section 107(1) of the Evidence Act places the legal burden upon the person who alleges a fact to prove it. The Plainti therefore bore the initial burden of establishing, on a balance of probabilities, that the accident occurred, that it was caused by the negligence of the Defendants and that he suered injury and loss as a consequence. 16. In Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR), the High Court reiterated that a Plainti in a negligence claim must establish a causal connection between the Defendant’s negligence and the injury complained of. The mere fact that an injury has occurred is not, in every case, sucient to establish negligence. 17. In the present case, however, the Plainti did considerably more than merely demonstrate that he was injured. He gave direct evidence as to the circumstances of the accident. His evidence was that he was walking on the designated pedestrian pavement when the keg/container being transported on Motor Vehicle KCH 763T detached from the vehicle and struck him on the head. 18. That evidence was not displaced by any evidence from the Defendants. The Defendants did not call the 2nd Defendant, the driver of the Motor Vehicle, or any other witness who could explain how the keg was secured, how it came to detach from the vehicle or whether the driver exercised reasonable care. 19. I am mindful that the mere fact that a Defendant calls no evidence does not automatically entitle a Plainti to Judgment. The Plainti must still prove his case on a balance of probabilities. Nevertheless, where credible evidence is given by a plainti and that evidence is neither challenged in CrossExamination nor rebutted by evidence from the defence, it remains an important consideration in determining whether the requisite standard of proof has been met. 20. In Ngugi v Karanja & Another [2023] KEHC 2368 (KLR), the High Court dealt with a substantially similar evidential situation. The plainti gave evidence regarding a road trac accident and the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 3

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defendants did not call witnesses to rebut it. The Court held that the plainti had established the case on a balance of probabilities and upheld 100% liability. 21. I also nd guidance in Kenya Akiba Micro Financing Ltd v Ezekiel Chebii & 14 others [2012] eKLR, as cited with approval in Ngugi v Karanja, where the Court observed that evidence given on oath which is not expressly challenged remains evidence for consideration by the Court. 22. I therefore nd that the Plainti’s account of the accident is credible and consistent with the documentary evidence concerning the injuries sustained. 23. The Plainti additionally invoked the doctrine of res ipsa loquitur. The doctrine is applicable where the circumstances of an accident are such that, in the ordinary course of events, the accident would not have occurred without negligence, and the instrumentality causing the accident was within the control or management of the defendant. 24. The leading authority remains Embu Public Road Services Ltd v Riimi [1968] 1 EA 22, where the East African Court of Appeal explained that where the circumstances of an accident give rise to an inference of negligence, the defendant may escape liability by demonstrating that there was no negligence on his part, that there was a probable cause which did not involve negligence, or that the accident occurred in circumstances beyond his control. 25. The doctrine does not dispense with proof of the essential facts of the accident. Rather, once the Plainti establishes circumstances from which negligence may reasonably be inferred, an evidential burden arises which calls for an explanation from the Defendant. 26. In the present case, the Plainti was a pedestrian using a designated footpath. He was not inside the vehicle and had no control whatsoever over the manner in which goods were loaded, secured or transported on the motor vehicle. A keg/container carried on a motor vehicle does not ordinarily detach from the vehicle and fall upon a pedestrian walking on a designated pavement if reasonable care has been exercised in securing and transporting it. 27. The Defendants were particularly well placed to explain how the keg was secured, whether it was properly loaded and whether any unforeseen event caused it to detach. No such explanation was oered. 28. In the circumstances, the fact that the keg detached from the motor vehicle and struck the Plainti constitutes compelling prima facie evidence of negligence. The inference arising from that occurrence was not rebutted by the Defendants. 29. I therefore nd that the doctrine of res ipsa loquitur applies and that the Plainti has established negligence against the Defendants on a balance of probabilities. Alleged Contributory Negligence 30. The Defendants pleaded that the Plainti was himself negligent in that he allegedly entered the road, failed to keep a proper lookout and obstructed the Defendant’s lawful lane. However, no evidence was called to establish any of those allegations. 31. A pleading is not evidence. The Defendants were required to place before the Court evidence demonstrating how the Plainti contributed to the occurrence of the accident. No such evidence was tendered. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 4

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32. On the evidence before me, the Plainti was walking along the pedestrian pavement. There is no evidence that he entered the road, obstructed the motor vehicle or otherwise acted negligently. I therefore reject the allegation of contributory negligence. 33. I consequently nd the Defendants 100% liable for the accident. Ownership And Vicarious Liability 34. The 1st Defendant denied ownership of motor vehicle KCH 763T. The Plainti, however, relied upon the ocial search and the evidence produced in support of his case. The ocial search was one of the documents produced and the Plainti maintained that the 1st Defendant was the registered owner of the Motor Vehicle. 35. Section 8 of the Traffic Act provides that the person in whose name a motor vehicle is registered is deemed to be its owner unless the contrary is proved. The Court must therefore consider the evidence placed before it concerning ownership. 36. In Thuranira Karauri v Agnes Ncheche [1997] eKLR, the Court of Appeal emphasized the importance of producing a certicate or ocial search from the Registrar of Motor Vehicles where ownership is specically denied. More recently, the High Court has reiterated that an ocial record from the Registrar of Motor Vehicles is the appropriate evidence of registered ownership, although the statutory presumption may be rebutted by contrary evidence. 37. In the present case, the Plainti produced the ocial search and the Defendants did not call evidence to rebut its contents. I therefore accept the Plainti’s evidence that the 1st Defendant was the registered owner of Motor Vehicle KCH 763T at the material time. 38. The Plainti further pleaded that the 2nd Defendant was the driver of the vehicle at the time of the accident. That assertion was not rebutted by the 2nd Defendant or any other defence witness. 39. The principle applicable to vicarious liability is that where a vehicle causes damage through the negligence of a person driving it in the course of the owner’s business or with the owner’s authority, the owner may be held liable for the driver’s negligence. In Karisa v Solanki [1965] EA 318, the Court recognized the evidential presumption that where a vehicle causes damage by negligence, in the absence of evidence to the contrary, it may be presumed to have been driven by a person for whose negligence the owner is responsible. This principle has continued to be applied by Kenyan courts. 40. In the circumstances of this case, the 1st Defendant oered no evidence to displace that inference. I accordingly nd the 1st and 2nd Defendants jointly and severally liable for the negligence established in this suit. Quantum 41. The Plainti sustained signicant head injuries. The medical evidence before the Court establishes a depressed right parietal skull fracture, sub-dural haematoma and scalp lacerations, accompanied by loss of consciousness. The Plainti also testied that he continued to experience headaches and required medical reviews. 42. The assessment of general damages is discretionary and is intended to compensate the injured party for pain, suering and loss of amenities. The Court must endeavour to ensure consistency by considering awards made for comparable injuries while recognizing that no two cases are exactly alike. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 5

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43. The principle was stated in Stanley Maore v Georey Mwenda [2004] eKLR, that comparable injuries should as far as possible attract comparable awards. The Court must nevertheless take into account the particular circumstances and severity of the injuries in the case before it. This principle has continued to guide the assessment of damages. 44. The Plainti proposed an award of Kshs.1,500,000.00 I have considered that proposal and the authorities relied upon by the Plainti, but I am not persuaded that the sum proposed is the most appropriate award when the more recent comparable decisions are considered. 45. In Nyota Tissue Products v Charles Wanga Wanga & 4 others [2020] KEHC 6207 (KLR), the claimant sustained a head injury with an open depressed frontal skull fracture. The High Court considered the award of Kshs. 1,200,000 and substituted it with Kshs. 500,000.00 46. In Moiz Motors Ltd & Another v Harun Ngethe Wanjiru [2021] KEHC 8702 (KLR), an award of Kshs. 500,000.00 was made for a depressed frontal bone fracture together with other injuries. 47. In Mbeva v Kenya Malik Ltd & Another [2023] KEHC 23269 (KLR), the Court reduced an award of Kshs. 2,500,000.00 to Kshs. 500,000.00 for calvarian and facial fractures, cerebral oedema, scalp and facial injuries, recurrent headaches and loss of memory. 48. On the other hand, in Lawrence Musyoka Mulonzi & another v Daniel John Kato Ndambuki [2020] KEHC 4749 (KLR), the Court considered injuries including a subdural haematoma which had required surgical evacuation and noted continuing headaches and the risk of seizures. The trial court had awarded Kshs. 1,500,000.00 in general damages. 49. In Peter Cheptoo Kimute & Another v Adan Kampure Jillo [2020] eKLR, an award of Kshs. 1,000,000.00 was considered for severe head injuries including loss of consciousness and subdural haematoma, together with other complications. The authority was considered in Onyango & Another v Muriu [2022] KEHC 232 (KLR). 50. More recently, the High Court in Ouyo v Omocha Enterprises Ltd [2026] KEHC 852 (KLR) reviewed several authorities involving depressed skull fractures and head injuries, including Nyota Tissue Products, Moiz Motors, Ndorongo v Ouma and Mbeva v Kenya Malik Ltd. The Court emphasized the need to assess the actual injuries and comparable awards rather than merely adopting a claimant's proposed gure. 51. I have considered the foregoing authorities together with the injuries proved in the present case. The Plainti suered a depressed parietal fracture and a sub-dural haematoma, which are more serious than a simple non-depressed skull fracture. There was also loss of consciousness and evidence of continuing headaches. At the same time, there is no evidence before the Court of permanent incapacity, epilepsy, signicant neurological decit or a quantied percentage of permanent disability. 52. Taking all the circumstances into account, including the nature of the injuries, the period since the accident, the continuing complaints and the comparable awards, I nd that Kshs. 1,200,000.00 is a fair and reasonable award for pain, suering and loss of amenities. Special Damages 53. The Plainti pleaded and claimed Special Damages amounting to Kshs. 258,629.00, comprising Kshs. 1,500.00 for the Medical Report, Kshs. 550.00 for the ocial search and Kshs. 256,579.00 being medical expenses. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 6

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54. The law relating to special damages is well settled. Special damages must not only be specically pleaded but must also be strictly proved. In Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, the Court of Appeal held that special damages must be specically claimed and strictly proved, as they are not the direct natural or probable consequence of the act complained of and cannot simply be inferred. The degree of certainty and particularity required depends on the circumstances and nature of the claim. 55. The requirement for strict proof means that a Plainti claiming reimbursement of expenses must demonstrate that the amounts claimed were actually incurred and paid. In Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR, the Court emphasized that in claims for medical expenses, actual receipts are required to demonstrate that the expenditure was incurred, and that an invoice, standing alone, does not constitute proof of payment. This position has also been reiterated in Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR, where the Court held that an invoice which is neither stamped nor endorsed as paid does not constitute proof of special damage. 56. In the present case, although the Plainti produced invoices amounting to Kshs. 103,325.37 and Kshs. 82,209.74, the said invoices, without corresponding receipts or other satisfactory evidence demonstrating that the amounts were actually paid by the Plainti, do not amount to strict proof of the expenditure claimed. The Court cannot award a sum merely because an invoice has been produced, since an invoice ordinarily demonstrates an amount demanded or payable rather than an amount actually paid. The Plainti was required to go further and prove payment. 57. I have considered the receipts produced in evidence. The receipts satisfactorily establish actual expenditure amounting to Kshs. 89,845.00. To that extent, the Plainti has discharged the burden of strictly proving the special damages. 58. I therefore nd that, whereas the Plainti pleaded Special Damages of Kshs. 258,629.00, only Kshs. 89,845.00 has been strictly proved. The balance remains unproved and cannot be awarded. This approach is consistent with the principle that a court may only award the portion of special damages that has been specically pleaded and actually proved by evidence. See David Bagine v Martin Bundi [1997] eKLR and the more recent decision in Mwaura & Another v Njoroge (Civil Appeal No. E226 of 2023) [2025] KEHC 12684 (KLR), where the Court awarded only the amount supported by receipts and declined the balance that had not been proved. 59. Accordingly, I award the Plainti Kshs. 89,845.00 as Special Damages. Disposition 53. Having considered the pleadings, the Plainti’s oral and documentary evidence, the Written Submissions dated 23rd July 2026, the authorities cited and the applicable law, I nd that the Plainti has proved his case against the Defendants on a balance of probabilities. 57. The Plainti has established that he was lawfully walking along a pedestrian pavement when a keg/ container being carried on motor vehicle registration number KCH 763T detached from the vehicle and struck him. The Defendants failed to provide any explanation capable of rebutting the inference of negligence arising from that occurrence. 58. I therefore nd the 1st and 2nd Defendants jointly and severally 100% liable for the accident and the injuries sustained by the Plainti. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 7

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59. Consequently, Judgment is hereby entered for the Plainti against the 1st and 2nd Defendants jointly and severally as follows: 1. Liability: 1st and 2nd Defendants jointly and severally 100% liable for the accident 2. General Damages for pain, suering and Loss of Amenities........................................Kshs.1,200,000.00 3. Special Damages ................................................. Kshs. 89,845.00 4. Total ...................................................................Kshs. 1,289,845.00 5. General Damages shall attract interest at court rates from the date of this Judgment until payment in full while Special Damages shall attract interest at Court rates from the date of ling suit until payment in full. 6. The Plainti shall have the costs of the suit. JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY A L.A. MUMASSABBA PRINCIPAL MAGISTRATE 23. 9.2026 In the Absence of parties Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/944/eng@2026-09-23 8

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