Mother’s bid for payout after lorry ‘hit-and-run’ claim fails

A mother, who sued for damages on behalf of her seven-year-old daughter, claiming the child suffered severe head injuries, including post-traumatic epilepsy, after being struck by a lorry, has lost her appeal.

This was after a judge found she failed to prove the accident happened.

The High Court in Kakamega dismissed the appeal by EMU, who was suing as next of kin of the minor GM, against three respondents, including the alleged driver and owner of the vehicle involved in the said accident.

The case, which has spanned nearly a decade since the alleged incident in October 2016, hinged critically on the absence of eyewitness testimony and significant inconsistencies in police evidence.

The legal battle began in the subordinate court, where the appellant sought damages for the child’s injuries, which included head trauma leading to post-traumatic epilepsy and a significant deterioration in intelligence. The trial court dismissed the suit.

The appellant contended that Benjamin Cheboi (the third respondent) was negligent in driving the Mitsubishi truck in the Lunyerere area, and that the first and second respondents were vicariously liable as the registered or equitable owners of the vehicle.

Medical evidence from Dr Charles Andai confirmed the minor sustained serious head injuries and post-traumatic epilepsy, but the court found this did not establish causation.

The defence, which included an insurance investigator who alleged the police abstract was forged, successfully argued at trial that the accident itself was doubtful.

The appellant had sought Sh8 million in general and special damages at the trial court.

Cheboi's submissions, dated June 10, 2025, successfully argued that the appellant failed to discharge the burden of proof under Sections 107 to 109 of the Evidence Act. The first and second respondents did not appear at the appeal hearing.

While the appellant argued that the failure of the vehicle owner and driver to testify should result in an adverse inference against them, the High Court disagreed. 

Justice Alice Bett, delivering the judgment on February 5, reinforced the principle that medical evidence of injury, no matter how severe, cannot serve as a substitute for concrete proof of how an accident occurred or who was to blame for it. 

While a police abstract was produced, the officer who presented it was not the original investigating officer and could not provide a sketch map or personal knowledge of the scene. 

Justice Bett concluded that the appellant’s case rested on hearsay and upheld a magistrate’s decision from June 2024.

“The appellant’s case was based on the evidence of the witnesses who did not witness the accident. Notably, the minor, despite indications that she was aged between six and a half to seven years at the time of the accident, was not called to give evidence as to how she came to sustain the injuries," the judge said.

"Neither was the neighbour whom the appellant alleged informed her about the accident called to testify.” 

 "Without the advantage of divine omniscience, the court cannot know which of the probabilities herein coincides with the truth and it cannot decide the matter by adopting one or the other probability without supporting evidence."

Justice Bett acknowledged the severity of the minor’s condition, noting that had liability been established, the court would have considered an award of Sh1.2 million. 

“For completeness, had liability been established, the injuries (severe head trauma, post-traumatic epilepsy) would warrant substantial damages. Comparable awards in cases like Dette v Mirieri suggest Sh1,500,000 to Sh3,000,000 for similar injuries,” the court observed. 

The appeal was dismissed with costs, leaving the family of the injured minor without the sought-after compensation.