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MagistratePartially AllowedCivil Case No 973 of 2017· [2024] KEMC 162 (KLR)

Ngunzu v Maitha & another (Civil Case 973 of 2017) [2024] KEMC 162 (KLR)

Chief Magistrate's Court (Nakuru)
5 September 2024
ALALOYCE-PETER-NDEGE
2,349 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 road accident victim Kshs. 515,832 after the defendants offered no evidence, but refused unproven receipt-backed claims.

What this practically means

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Executive summary

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The plaintiff, a turnboy allegedly employed by the 2nd defendant, sued the 1st defendant (the driver) and Agility Logistics Limited for damages arising from a road traffic accident on 10.01.2015 at Migaa area along the Nakuru–Eldoret road, in which he sustained a fractured left tibia and other injuries while travelling as a passenger in the 2nd defendant's Mitsubishi trailer. He pleaded negligence against the driver (speed, carelessness, defective vehicle) and breach of the employer's duty to provide a safe system of work and transport, with the 2nd defendant sued vicariously. The defendants denied negligence and pleaded contributory negligence but called no evidence; the 1st defendant's statement was admitted by consent. The court framed two issues: liability and quantum. Applying sections 107 and 108 of the Evidence Act and the 'he who alleges must prove' principle, it held the plaintiff had discharged the legal burden; the police abstract and the 1st defendant's statement (DEXH 1) corroborated brake failure and careless high-speed driving, and the defendants failed to discharge the evidential burden on contributory negligence. Liability was fixed at 100% against the defendants. On quantum, the court awarded Kshs. 500,000/- for pain and suffering for the fracture. Special damages were largely refused for want of receipts, following the principle that documents filed with pleadings are not evidence unless proved; only Kshs. 15,832/- in medical expenses proved by PEXH 7 was allowed, bringing the total award to Kshs. 515,832/- plus costs and interest.

Key legal issues

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01

Liability for the road traffic accident

Holding

The plaintiff proved negligence; the 1st defendant's driver was 100% to blame for driving a defective vehicle carelessly at high speed

Reasoning

The court applied sections 107 and 108 of the Evidence Act and the principle that he who alleges must prove. The plaintiff testified that the vehicle was driven at high speed and the driver continued despite a known fault. DEXH No. 1 corroborated that brakes failed. The police abstract corroborated blameworthiness, and the 1st defendant was charged, convicted and fined. The defendants, who bore the evidential burden on contributory negligence, failed to adduce any evidence.

p. 5
02

Quantum of general damages

Holding

Kshs. 500,000/- awarded for pain and suffering, mainly for the fractured tibia

Reasoning

The medical evidence was uncontroverted that the plaintiff sustained the pleaded injuries. The court noted that the authorities submitted by both counsel were of little assistance because the injuries in them were not similar, and assessed the award on the fact of the fracture.

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Proof of special damages

Holding

Special damages not supported by receipts or proved evidence were dismissed; only Kshs. 15,832.00 proved by PEXH No. 7 was granted

Reasoning

Special damages must be specifically proved. The plaintiff failed to produce the receipt for the medical report, and documents filed with pleadings do not amount to evidence unless introduced by consent or on oath. The medical expenses proved by PEXH No. 7 were allowed.

Legal principles established

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  • In a negligence action, the plaintiff bears the legal burden of proof on a balance of probabilities; once discharged, the evidential burden may shift to the defendant to prove contributory negligence
  • Documents filed with pleadings do not ipso facto amount to evidence unless introduced by consent or on oath

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants at Kshs. 515,832/-
  2. 2.Costs and interest at court's rates
  3. 3.Dismissal of the claim for Kshs. 3,000/- special damages for the medical report as unproved
  4. 4.Dismissal of the claim for Kshs. 550/- cost of the motor vehicle search as unproved

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 108

Cases cited (2)

  • Muruingu Kanoru Jeremiah Vrs Stephen Ungu M’mwarabua
    [2015] eKLR
  • Robert Ngande Kathathi Vrs Francis Kivuva Kitonde
    [2020] eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court (tort claim 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, "Ngunzu v Maitha & another (Civil Case 973 of 2017) [2024] KEMC 162 (KLR)", Case Analysis (2024). Civil Case No 973 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/162/eng@2024-09-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.