Kisaka v Mogo Auto Limited & another

6. The Defendants denied liability. Their case was that the accident, if it occurred, was wholly or substantially caused by the negligence of the Plainti. In the alternative, they pleaded that the accident was inevitable and beyond their control. 7. The 1st Defendant, Mogo Auto Limited, was struck out of the suit on 4th May 2026 before Hon. M. Malingu. The suit therefore proceeded against the 2nd Defendant, Vincent Koech, and this Judgment concerns the Plainti’s claim against the 2nd Defendant only. 8. The matter proceeded to hearing, after which the parties led their respective Written Submissions. 9. I have considered the pleadings, the evidence tendered before the Court, the documentary evidence and the submissions of the parties. The Plainti ’s Evidence 8. The Plainti Fostus Shindakwa Kisaka testied as PW1.He adopted his Witness Statement as his evidence in Chief and documents as part of his evidence. 9. His case was that he was lawfully riding his Motorcycle when the accident occurred and that the accident was caused by the negligent riding of Motorcycle Registration Number KMGH 415L, which was ridden by the 2nd Defendant. 10. During Cross-Examination, the Plainti was questioned regarding his riding experience, driving licence, speed, route, protective gear and the condition of the road at the material time. He stated that he was riding from the Lang’ata area towards Junction Mall at a speed of approximately 40–50 kilometres per hour. 11. The Plainti was also questioned concerning construction works and the state of the road at the scene. He maintained that the accident was caused by the 2nd Defendant and denied being responsible for the collision. 12. It emerged during Cross-Examination that the Plainti had not personally visited the police station regarding the accident and had not produced a police abstract, sketch plan or police investigation report. 13. On re-examination, the Plainti claried matters relating to the construction works and the condition of the road at the accident scene. The 2nd Defendant’s Case 14. The 2nd Defendant Vincent Koech testied as DW1.He denied the Plainti’s claim and the allegations of negligence. 15. His case, as reected in the defence and submissions, was that the Plainti was wholly to blame for the accident. It was submitted that the Plainti was riding at a high speed, failed to exercise reasonable care and failed to keep a proper lookout. 16. The 2nd Defendant further faulted the Plainti for failing to report the accident to the police and for failing to produce a Police Abstract, Sketch Plan or Police Investigation Report. 17. The 2nd Defendant submitted that the Plainti had not established the circumstances under which the accident occurred and that the evidence did not demonstrate negligence on his part. 18. On quantum, the 2nd Defendant argued that the injuries sustained by the Plainti did not warrant a substantial award and proposed general damages of Kshs. 200,000.00 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/986/eng@2026-09-16 2

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19. The 2nd Defendant also challenged the claim for special damages on the ground that the same had not been strictly proved. The Plainti ’s Submissions 20. The Plainti submitted that he had proved his case on a balance of probabilities. He maintained that he was lawfully riding motorcycle registration number KMGG 179N when motorcycle registration number KMGH 415L, ridden by the 2nd Defendant, was negligently ridden and caused the accident. 21. The Plainti submitted that the circumstances of the accident and his evidence established negligence on the part of the 2nd Defendant. He urged the Court to nd the 2nd Defendant liable for the accident and to enter judgment in his favour. 22. On quantum, the Plainti relied on the nature of the injuries sustained, namely multiple frontal bone and orbital wall fractures, frontal bone tenderness on deep palpation and recurrent headaches. He submitted that the injuries were signicant and warranted an appropriate award of General Damages for pain, suering and loss of amenities. 23. The Plainti further maintained that the special damages of Kshs. 233,515.00 were specically pleaded and supported by the documentary evidence produced before the Court. He urged the Court to allow the claim together with costs and interest. The 2nd Defendant’s Submissions 24. The 2nd Defendant led written submissions dated 10th August 2026. The issues identied for determination were liability, whether the Plainti was entitled to damages and costs and interest. 25. On liability, the 2nd Defendant submitted that the Plainti was wholly to blame for the accident. It was contended that the Plainti was riding at high speed, failed to keep a proper lookout and failed to exercise reasonable care and diligence. 26. The 2nd Defendant further submitted that the Plainti failed to report the accident to the police and did not produce a police abstract, sketch plan or Police Investigation Report. It was also argued that the Plainti’s version of events was inconsistent and that his evidence did not establish negligence on the part of the 2nd Defendant. 27. The Court was consequently urged to nd the Plainti 100% liable for the occurrence of the accident. 28. On quantum, the 2nd Defendant submitted that the Plainti’s injuries did not justify a substantial award and proposed general damages of Kshs. 200,000.00 Reliance was placed on the authorities annexed to the submissions dealing with comparable injuries and the principles governing interference with awards of damages. 29. The 2nd Defendant further challenged the claim for special damages of Kshs. 233,515.00 arguing that the same had not been strictly proved. It was submitted that some of the receipts relied upon were not properly receipted or stamped and that, under Section 19(3)(b) of the Stamp Duty Act, inadmissible unstamped documents could not be relied upon in support of the claim. 30. The 2nd Defendant therefore urged the Court to dismiss or substantially reduce the Plainti’s claim, nd the Plainti wholly liable for the accident, reject the unproved claim for special damages and award costs in accordance with the Court’s determination. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/986/eng@2026-09-16 3

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Analysis and Determination 31. Having considered the pleadings, evidence and submissions, the issues arising for determination are: a. Whether the Plainti proved negligence against the 2nd Defendant and, if so, the appropriate apportionment of liability; b. Whether the Plainti is entitled to General Damages; c. Whether the Plainti proved the claim for Special Damages; and d. Who should bear the costs of the suit. Liability 32. The law places the burden of proving negligence upon the party who alleges it. Sections 107, 108 and 109 of the Evidence Act provide that he who alleges must prove. 33. The principle was stated in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, where the Court held that there is no liability without fault in the legal system in Kenya and that a Plainti must prove negligence against a Defendant where the claim is founded on negligence. 34. Similarly, in Eastern Produce (K) Ltd v Christopher Atiado Osiro [2006] eKLR, the Court of Appeal rearmed that the burden of proof remains with the Plainti throughout the proceedings and that negligence must be established on a balance of probabilities. 35. The Plainti's case was that he was lawfully riding his motorcycle when the accident occurred and that motorcycle registration number KMGH 415L, ridden by the 2nd Defendant, was negligently ridden, thereby causing the collision. 36. The 2nd Defendant, however, disputed that account and contended that the Plainti was riding at high speed, failed to keep a proper lookout and failed to exercise reasonable care. 37. The Court has considered the Plainti’s admission that he had not personally visited the police station and had not produced a Police Abstract, sketch plan or Police Investigation Report. 38. The absence of a Police Abstract or police evidence is not, by itself, fatal to a claim arising from a road trac accident. The Court may determine liability from the direct evidence and other material placed before it. 39. In Lakhamshi v Attorney General [1971] EA 118, the Court held that where the circumstances of an accident are known, the Court should determine liability from the available evidence and the conduct of the respective road users. 40. The evidence before the Court shows that the Plainti was riding at approximately 40–50 kilometres per hour and was aware of the state of the road and the construction works at or near the accident scene. 41. In Hussein Dairy Ltd v Nairobi City Council [2000] eKLR, the Court of Appeal held that contributory negligence may properly be found where the evidence demonstrates that a claimant failed to take reasonable care for his own safety. 42. The Plainti had a duty to maintain a proper lookout, control his speed and take reasonable measures to avoid a collision. Equally, the 2nd Defendant had a corresponding duty to exercise reasonable care and diligence towards other road users. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/986/eng@2026-09-16 4

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43. Having carefully considered the evidence of the Plainti and the rival submissions, I am satised that the Plainti established, on a balance of probabilities, that the 2nd Defendant was negligent and contributed to the occurrence of the accident. 44. I am, however, also satised that the Plainti contributed to the occurrence of the accident by failing to exercise sucient care in the prevailing road circumstances. 45. In light of the foregoing, I nd that both the Plainti and the 2nd Defendant bear responsibility for the occurrence of the accident. I accordingly apportion liability at 70% against the 2nd Defendant and 30% against the Plainti. QUANTUM 46. The Plainti sustained multiple frontal bone and orbital wall fractures, frontal bone tenderness on deep palpation and recurrent headaches. The CT Scan head report from Mbagathi Hospital P3 Form and medical report by Dr.Cyprianus Okoth Okere dated 31st October ,2024 support the Plaintis claim.Dr. Okere classied the injuries the Plainti sustained as grievous harm . 47. The principles applicable in the assessment of damages are now well settled. An award of damages is intended to compensate an injured party for the pain, suering and loss of amenities occasioned by the injuries sustained. In doing so, the Court must be guided by the nature and extent of the injuries and the awards made in comparable cases, while bearing in mind that no two injuries or cases are entirely identical. 48. In Stanley Maore v Georey Mwenda [2004] eKLR, the Court stated that comparable injuries should, as far as possible, attract comparable awards, taking into account the correct level of awards in similar cases. 49. I have considered the decision in GA (Minor suing through her father and next friend BZ) v Paul Muthiku [2020] eKLR, where the claimant sustained multiple fractures of the frontal left orbital roof and right temporal bones, among other head injuries. The award of general damages was increased to Kshs. 500,000.00 50. In Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] KEHC 8702 (KLR), the High Court considered a case involving, among other injuries, a depressed frontal bone fracture of the skull and severe facial soft tissue injuries. The award was assessed at Kshs. 500,000. 51. In Nyota Tissue Products v Charles Wanga Wanga & 4 Others [2020] KEHC 6207 (KLR), the Court substituted an award of Kshs. 1,200,000 with an award of Kshs. 500,000 for a claimant who had sustained a head injury with an open depressed frontal skull fracture. 52. More recently, in Waweru & Another v Kyalo [2025] KEHC 14656 (KLR), the claimant sustained a frontal skull fracture and a swollen, tender and painful scalp and face. The High Court considered comparable authorities, including Gerald Ireri Harrison & 2 others v Danson Ngari [2018] KEHC 4926 (KLR), where an award of Kshs. 800,000.00 had been made for a depressed fracture of the right frontal bone at the supra-orbital region with haemorrhagic contusion and associated injuries. The High Court further considered Nyota Tissue Products v Charles Wanga Wanga & 4 Others [2020] KEHC 6207 (KLR), where Kshs. 500,000 was awarded for an open depressed frontal skull fracture. 53. In Waweru & Another v Kyalo (supra), the High Court ultimately found that an award of Kshs. 700,000.00 was appropriate for the frontal skull fracture and associated injuries, expressly taking into account the principle of comparable awards and ination. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/986/eng@2026-09-16 5

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54. The injuries in the present case are, in my view, comparable and are in certain respects more extensive than a simple frontal skull fracture. The Plainti sustained multiple frontal bone and orbital wall fractures together with recurrent headaches. The orbital wall fractures involved the facial and cranial region, and the recurrent headaches are a continuing consequence of the trauma sustained. 55. I have also considered the Defendant's proposal of Kshs. 200,000.00 .I nd that the proposal does not suciently take into account the nature of the multiple fractures sustained by the Plainti or the prevailing level of awards for comparable frontal and orbital injuries. 56. I am guided by the principle that damages are not assessed with mathematical precision. The Court must arrive at an award that is fair to both parties, bearing in mind comparable awards and the prevailing economic circumstances. 57. Taking into account the nature and extent of the Plainti’s injuries, the comparable authorities cited above and the current level of awards, I nd that a sum of Kshs. 700,000.00 constitutes fair and reasonable compensation for pain, suering and loss of amenities. 58. I accordingly award the Plainti Kshs. 700,000.00 as General Damages, subject to the Plainti's contribution of 30%. Special Damages 59. The Plainti pleaded Special Damages of Kshs. 233,515. 60. The law is settled that Special Damages must not only be specically pleaded but must also be strictly proved. 61. The 2nd Defendant challenged the Plainti’s claim on the basis that some of the documents and receipts relied upon were not properly receipted or stamped and could not be relied upon in support of the claim. 62. I have considered the documentary evidence placed before the Court. The Plainti specically pleaded the special damages claimed and produced documentary evidence in support thereof. 63. I am satised that the Plainti has proved Special Damages amounting to Kshs. 210,590.00 by way of receipts. However, the claim of Kshs. 15,000.00 for court attendance, doctor’s and police expenses has not been supported by any receipt or other documentary evidence. Consequently, I nd that the said amount has not been proved and I therefore decline to award it. Costs 64. Costs follow the event under Section 27 of the Civil Procedure Act, unless the Court, for good reason, orders otherwise. 65. The Plainti has substantially succeeded in his claim. I nd no reason to depart from the general rule that costs follow the event. Disposition 66. Judgment is entered in favour of the Plainti against the 2nd Defendant as follows: Liability: apportioned at 70% against the 2nd Defendant and 30% against the Plainti. General damages for pain, suering and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/986/eng@2026-09-16 6

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loss of amenities............................................................Kshs. 700,000.00 Less 30% contribution...................................................(Kshs.210.00.00) Net General Damages................................................ Kshs. 490,000.00 Special Damages..........................................................Kshs.210,590.00 Total ...............................................................................Kshs. 700,590.00 67. Interest on General Damages shall accrue at court rates from the date of this judgment until payment in full. 68. Interest on Special Damages shall accrue at court rates from the date of ling suit until payment in full. 69. The Plainti shall have the costs of the suit. 30 Days Right of Appeal JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 16TH SEPTEMBER,2026 __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE In the presence of : Mr.Odhiambo for the Plainti M/s Achieng for the 2nd Defendant Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/986/eng@2026-09-16 7

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