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MagistratePartially AllowedNot stated in the judgment· [2024] KEMC 139 (KLR)

Makori v Bikundo (Civil Case E881 of 2021) [2024] KEMC 139 (KLR)

Chief Magistrates' Court (Magistrates' Court), Nakuru
11 July 2024
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first-instance road traffic accident claim decided by a magistrates' court in Nakuru. The plaintiff, a motorcyclist, was knocked down on or about 4 August 2020 by motor vehicle KAD 649 E, registered to the defendant, and sustained injuries including a fracture of the tibia plateau of the right tibia, fracture of the lateral condyle and neck of the right fibula, sprain of the right elbow and severe soft tissue injury to the right knee. The defendant denied negligence and pleaded contributory negligence against the plaintiff but adduced no evidence at trial. The plaintiff testified and called Dr. Obed Omuyoma and CPL Jane Githinji, who produced a police abstract attributing the accident to the defendant's driver for failing to keep to his lane. The court framed two issues: liability and quantum. Relying on sections 107 and 108 of the Evidence Act, the Muruingu Kanoru Jeremiah decision and Halsbury's Laws of England, the court held that the plaintiff discharged the legal burden of proof and that the evidential burden on pleaded contributory negligence shifted to the defendant, who failed to discharge it. The defendant was found 100% liable. On quantum, general damages were assessed at Kshs 1,650,000/- for pain and suffering, and special damages were proved only to the extent of Kshs 10,500/-, with the P3 form and police abstract claims disallowed as unsubstantiated. Judgment was entered for the plaintiff at Kshs 1,660,500/- with costs and interests at court's rates.

Key legal issues

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01

Liability for the road traffic accident

Holding

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.

Reasoning

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.

p. 5
02

Quantum of general damages for pain and suffering

Holding

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).

Reasoning

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/-.

p. 5
03

Special damages

Holding

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.

Reasoning

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/-.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.General damages of Kshs 1,650,000/- for pain and suffering
  3. 3.Special damages of Kshs 10,500/- (as proved)

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)
  • Evidence ActSection 108

Cases cited (1)

  • Muruingu Kanoru Jeremiah Vrs Stephen Ungu M’mwarabua
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a negligence claim for damages arising from a road traffic accident

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.