Muli v Kimani & 3 others (Civil Case E076 of 2025) [2025] SCC 26 (KLR)

XXXL/ZF 6848 from the rear the driver swerved to the right where there was an oncoming motor vehicle and in a bid to avert a head on collision swerved back to the rightful lane and collided with motor vehicle registration number KBS XXXL/ZF 6848 hence causing the accident and as a result the claimant sustained very severe injuries and sufiered loss and damage. 4. The claimant blames the respondents for the accident and particulars of negligence have been pleaded. 5. The claimant further avers that as a result of the said accident he sustained cut wound at the left eye brows, deep cut wound at the left lower eye lid, cut wound left eye medial canthus, blunt injury to the head as well as blunt injury to the left eye. 6. As already stated the suit is only opposed by the 4th Respondent who at the material time was the driver of motor vehicle registration number KBS XXXL/ZF 6848. He claims that he was driving the aforementioned vehicle along the said road when suddenly a bus registration number KBP XXXV suddenly and without warning rammed into the rear side of the motor vehicle and the accident happened. He blamed the driver of motor vehicle registration number KBP XXXV for among other things failing to keep a proper distance, driving at excessive speed and for failing to keep a proper lookout for other road users. 7. I have perused and considered the documents and pleadings as filed as well as the submissions filed by parties. Issue for Determination. a. Whether the Respondents are liable for the accident. b. What is the quantum of damages awardable if any. c. Who bears costs of the claim. Analysis and Determination. a. Whether the respondents are liable for the accident. 8. It is the claimant’s testimony that on the material date he was aboard motor vehicle registration number KBP XXXV along Mombasa-Nairobi highway when at Tsavo area the respondents’ driver, servant and/or agent drove, controlled and/or managed motor vehicle registration number KBS XXXL/ZF 6848 so negligently that he permitted the same to stop on the road and cause an obstruction to the vehicle he was in and so as to avoid hitting motor vehicle KBS XXXL/ZF 6848 from the rear the driver swerved to the right where there was an oncoming motor vehicle and in a bid to avert a head on collision swerved back to the rightful lane and collided with motor vehicle registration number KBS XXXL/ ZF 6848 hence causing the accident. 9. The claimant asserts in his submissions that the driver of motor vehicle registration number KBS XXXL/ZF 6848 is to be blamed for the accident for the reason that he obstructed the road and the blame is corroborated by entries 4,5 and 7 in the police abstract. 10. It was further his submission that as a result of the accident the police intended to charge the 4th respondent with the ofience of causing death by dangerous driving. 11. It is clear from the evidence of the 4th respondent that he did not witness the occurrence of the accident all according to him is that he was knocked from the rear. The claimant has on his part given details as to what exactly happened and according to what he witnessed was that the 4th respondent has obstructed the road and the driver in the vehicle he was in a bid to avoid hitting motor vehicle registration number https://new.kenyalaw.org/akn/ke/judgment/scc/2025/26/eng@2025-11-26 2

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KBS XXXL/ZF 6848 from the rear he swerved to the right but there was an oncoming vehicle and that forced the driver of the vehicle he was in to move back to its rightful lane to which the 4th respondent’s vehicle had obstructed and as a result the accident happened. 12. Given the circumstances as explained by the claimant, it is his view that led to the police blaming the motor vehicle the 4th respondent was driving for the accident. 13. The fact that the police indicated that they intended to charge the 4th respondent with the ofience of causing death by dangerous driving infers negligence on the part of the 4th respondent. It appears the deceased was in the same vehicle as the claimant and if any blame was to be apportioned on the part of the driver of the motor vehicle the claimant was in then nothing would have been dificult with the police absolving the 4th respondent from the accident. 14. On the question of proof of liability, the Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR did succinctly profiered that ; “ The determination of liability in a road trafic case is not a scientific afiair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: “To determine what caused an accident from the point of view of legal liability is a most dificult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…” 15. I therefore find from the analysis above that the 4th respondent indeed caused the accident and being the driver of the motor vehicle owned by the 1st, 2nd and 3rd respondents, the 1st, 2nd and 3rd respondents are vicariously liable for the acts of commission or omission of the 4th respondent. 16. In the submissions by the claimant the 3rd respondent has been described as a beneficial owner of the suit motor vehicle. This is as obtained in the police abstract. I am aware that beneficial ownership is a form of ownership and as such in the absence of any denial on the part of the 3rd respondent on a balance of probabilities the claimant has proved that indeed the 3rd respondent is a beneficial owner 17. In the end the 1st ,2nd, 3rd and 4th respondents are liable for the accident at 100% jointly and severally. b. What is the quantum of damages awardable if any. 18. It is the claimant’s case that as a result of the accident he sustained cut wound at the left eye brows, deep cut wound at the left lower eye lid, cut wound left eye medial canthus, blunt injury to the head as well as blunt injury to the left eye. 19. All those injuries were mainly on the left eye and a blunt injury to the head. These injuries have been confirmed in the treatment notes as well as the report by Dr. Jacks Nthanga who in his opinion opines that the claimant sustained severe peri-orbital/eye injuries which caused him a lot of pain, mental anguish and he expected full recovery albeit gradually. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/26/eng@2025-11-26 3

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20. The claimant has proposed Kshs.500,000/= as general damages and has placed reliance on the case of Christine Adhiambo vs Falcon Coach and another where the court made an award of Kshs.400,000/ = for deep cut wound on the head, cuts on the upper and lower arms and other soft tissue injuries. A look at the injuries they are more serious that those sustained by the claimant herein and may not necessarily give a fair assessment and/or guidance. 21. The claimant has also relied on the case of N.K.Brothers limited and another vs Okollo(2025) KEHC 439 where the respondent had sustained a periorbital swelling of the left eye, a cut wound on the left eye brow, bruises on the left side of the abdomen and swollen left cheek and the respondent therein was awarded Kshs.350,000/= it also sufices to note that in as much as it contains relatively similar injuries as those sustained by the claimant herein, they are similarly more serious that those sustained by the claimant herein. 22. The respondent on the other hand has proposed Kshs.90,000/= as adequate compensation for the injuries sustained. Reliance has been placed on 2 cases to wit HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR where an a where the High court upheld the trial court’s award of Kshs.60, 000.00 and Rege v Cweya (Civil Appeal E113 of 2021) [2022] KEHC 16606 (KLR) (20 December 2022) (Judgment) where the award of Kshs 300,000/= was set aside and substituted with an award of Kshs 80,000/= for soft tissue injuries. 23. In the case of HB, the claimant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination Dr. Adede opined that the injuries sufiered were soft tissue in terms of gravity whereas in the case of Rege(supra) the claimant sustained blunt trauma to the neck chest and abdomen. 24. All the 2 cases have no similar injuries as those sustained by the claimant herein and will not ofier the much-needed guidance. The decision that comes close is that of N.K.Brothers limited and another(supra) although I have already observed that the injuries therein were more serious than those sustained by the claimant herein 25. Since it is trite law that no two cases can be completely similar but it is a settled principle that comparable injuries should attract comparable awards see the case of Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR. I proceed to award the claimant Kshs. 200,000/= as compensation. 26. On special damages, the same have to be specifically pleaded and proved. A look at the receipts in support, the same have been proved to the required standards and are allowed as prayed. c. Who bears costs of the claim? 27. The claimant having been successful in the matter and that costs follow events he is awarded costs of the claim. Conclusion and Disposition. 28. The upshot of the foregoing I make the following final orders; a. The claim contained in the statement of claim dated 16th September 2025 is allowed in the following terms as against the respondent; Liability 100% General damages Kshs.200,000/= https://new.kenyalaw.org/akn/ke/judgment/scc/2025/26/eng@2025-11-26 4

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Special damages Kshs. 41,770/= Total Kshs.241,770/= b. The claimant is awarded costs and interests as against the respondent from the date of judgment until payment in full. c. Let the file be closed forthwith. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI SMALL CLAIMS COURT THIS 26THDAY OF NOVEMBER, 2025 F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Fathiya Loo. Ms Muthoki for the Claimant. Mr. Kirimi for the respondent. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/26/eng@2025-11-26 5

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