Makori v Bikundo (Civil Case E881 of 2021) [2024] KEMC 139 (KLR)
The bottom line
#A Nakuru court awarded a motorcyclist Kshs 1.66 million after the defendant offered no evidence, showing silence at trial can mean full liability.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
The defendant was found 100% liable. The plaintiff's testimony was corroborated by a police officer and the police abstract showing the defendant's driver failed to keep to his lane and hit the plaintiff's motorcycle. The defendant called no evidence and failed to discharge the evidential burden on his pleaded contributory negligence.
The court framed the dispute as one on liability and quantum. It restated the law on legal and evidential burden of proof under sections 107 and 108 of the Evidence Act and authorities including Muruingu Kanoru Jeremiah and Halsbury's Laws of England. The plaintiff testified and called a doctor and a traffic police officer. The police abstract attributed blame to the defendant's driver, who left his lane and encroached into the plaintiff's. The defendant filed no witness or evidence, leaving his negligence allegations against the plaintiff unproved, so liability was apportioned wholly against him.
Quantum of general damages for pain and suffering
Kshs 1,650,000/- awarded as sufficient compensation for pain and suffering, principally on account of the fractures sustained (fracture of the tibia plateau, fracture of the lateral condyle and neck of the fibula, sprain of the elbow and severe soft tissue injury to the knee).
The medical evidence by PW2, Dr. Obed Omuyoma, who examined the plaintiff on 13/11/2020 and produced his report and receipt, was uncontroverted, the defendant having adduced no evidence. The court lamented the absence of relevant comparative authorities submitted by counsel but, guided by the nature and severity of the fractures, exercised its discretion and assessed general damages at Kshs 1,650,000/-.
Special damages
Special damages proved only to the extent of Kshs 10,500/- comprising Kshs 7,000/- for the medical report (PEXH. NO. 9), Kshs 550/- for official search and Kshs 2,600/- for treatment; claims for the P3 form and police abstract costs were unsubstantiated.
Although special damages must be specifically pleaded and proved, the court accepted only those items backed by exhibits produced at trial. The receipt for the medical report and the stated costs of the official search and treatment were proved; the claims for the P3 form fee and police abstract fee lacked supporting evidence and were disallowed, bringing the total awardable damages to Kshs 1,660,500/-.
Legal principles established
#- In a negligence action the plaintiff bears the legal burden of proving each element of the tort on a balance of probabilities; once discharged, the evidential burden shifts to the defendant to prove pleaded contributory negligence.
- A defendant who neither testifies nor calls evidence fails to discharge the evidential burden on his averments of the plaintiff's negligence and, where uncontroverted evidence attributes blame to him, he will be found fully liable.
- Special damages must be specifically proved and only amounts supported by receipts or records are recoverable.
Court orders
#- 1.Judgment entered in favor of the plaintiff against the defendant at Kshs 1,660,500/= with costs and interests at court's rates
- 2.General damages of Kshs 1,650,000/- for pain and suffering
- 3.Special damages of Kshs 10,500/- (as proved)
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a negligence claim for damages arising from a road traffic accident
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori v Bikundo (Civil Case E881 of 2021) [2024] KEMC 139 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/139/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.