Bett v Muiga & 2 others (Civil Case 676 of 2019) [2025] KEMC 242 (KLR) (25 September 2025) (Judgment)

Bett v Muiga & 2 others (Civil Case 676 of 2019) [2025] KEMC 242 (KLR) (25 September 2025) (Judgment) Neutral citation: [2025] KEMC 242 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Case 676 of 2019 PA Ndege, SPM September 25, 2025 Between Leah Jebiwott Bett Plaintiff and Alex Kamangu Muiga 1st Defendant Saravin Nyambura 2nd Defendant Moses Gatembe 3rd Defendant Judgment 1.The Plaintiff in this case, Leah Biwott Bett, is praying for judgment against the Defendants for general damages and Special damages of Kshs. 16,710/- emanating from a road traffic accident that occurred on or about the 29th day of July 2018, as a consequence of which she sustained severe injuries. She brought this suit vide a Plaint dated 11th June, 2019. 2.It is common ground herein that the Plaintiff was a lawful passenger of Motor Vehicle Registration Number KBL XXX Toyota Matatu along Kamukunji – Lowe Solai Road when the accident herein occurred. It’s the Plaintiff’s case that the accident was solely caused by the Defendant’s driver/ employee/ agent who so carelessly and/ or negligently drove, managed and/or controlled the aforesaid motor vehicle that it lost control and hit the motor cycle registration number KMDF XXXJ before veering off the road and overturning, reasons whereof she sustained the sever inures outlined below: -a.Soft tissue injuries at the backb.Soft tissue injures of the sagittal region 3.The plaintiff particularized her claim of Defendants’ negligence in Paragraph 8 of her Plaint. The Defendants have been sued in their capacity as the lawful registered and or beneficial owner(s) and or user(s) of the Motor Vehicle. They entered appearance and filed a joint defense statement in which they aver that the Plaintiff and/or the rider of the motor cycle negligently contributed to the accident. They however did not call any witness in support of their case. 4.The plaintiff testified as PW1 and called a Police Constable Number XXX from Molo Police Station, PW2, as her witness. At the close of the hearing and submissions, the accident and injuries have not been challenged. The Plaintiff and the Police Constable are the only witnesses who testified and produced various exhibits as the Defendants never adduced any evidence at all either in support of their defense and or to controvert Plaintiff’s evidence. That being the case, liability and quantum are basically the issues of determination from the evidence tendered herein. Determination on liability and quantum. 5.On liability, the plaintiff testified as PW1, adopted her statement dated 20/3/2025 and produced various exhibits. In her statement, she states that the vehicle herein lost control while trying to avoid the oncoming motor cycle and upon joining a marram road. That it veered off the road in the process and overturned. That is the only direct evidence we have herein. 6.In a bid to determine and or apportion liability herein, I have gone through the submissions filed before this Honorable Court by the parties regarding this matter. I do agree that in an action for negligence, the burden of proof falls on the party alleging to establish each element of the negligence, hence it is for the Plaintiff herein to adduce evidence of facts on which she bases her claim. It must be established that there was a duty of care which was breached resulting to loss and damage to the Plaintiff. The Plaintiff herein therefore has a duty to prove her case on a balance of probabilities that the Defendant was so negligent so as to occasion the accident that led to the Plaintiff’s injuries. 7.As aforestated, there was no dispute that there was an accident. There was no dispute that the accident happened while the defendants’ driver was avoiding an oncoming vehicle, a motor cycle. He lost control, or veered off the road in the process. The issue was whether the action that the driver took, while avoiding that oncoming vehicle, could be said to be negligent. It could be, depending on the evidence placed on record, and the onus was on the plaintiff to adduce the said evidence. The question that still lingers in my mind is ‘was the action taken by the defendants negligent?’ 8.In the evidence by the plaintiff herein, I do not find that she has been able to prove that the defendants drove at a speed which was too excessive in the circumstances, or that they failed to exercise or maintain any or sufficient or adequate control of the motor vehicle, or that they failed to give due regard to other lawful road users and especially the motor cycle herein or failing to stop, swerve etc. There is thus just no evidence to point a blame on the defendants. 9.I thus do find that liability has not been proved to the required standard and do hereby dismiss the plaintiff’s claim with costs to the defendants. Had she succeeded, however, I would have awarded her Kshs. 200,000/- as general damages mainly relying on the authorities submitted by the learned counsel for the plaintiff. **DATED, SIGNED AND DELIVERED AT NAKURU THIS 25 th, DAY OF SEPTEMBER 2025.****ALOYCE-PETER-NDEGE****SENIOR PRINCIPAL MAGISTRATE** In the presence of;Plaintiff’s Counsel: CheruiyotDefence Counsel: Cherotich h/b MwiraPlaintiff: n/a1st Defendant: n/a2nd Defendant: n/a3rd Defendant: n/a *[PW]: Prosecution Witness