Ang’anya v Okinyi (Civil Case E197 of 2025) [2025] KEMC 415 (KLR)

Relying on Section 107(1) of the Evidence Act and authorities including Kirugi v Kabiya and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that failure by a defendant to contest a case does not absolve a plaintiff of the duty to prove the case to the required standard; the court must interrogate uncontroverted evidence.

The police abstract and copy of records established the accident and the Defendant's ownership of KDK 143 S. As a passenger, the Plaintiff was owed a duty of care by both vehicles which was breached. Following Wilter Chemutai Torongei v W.E. Tilley Muthaiga, a passenger is only liable where contributory negligence is shown, and no such evidence existed.

Applying the comparable-injuries principle from Denshire Muteti Wambua v Kenya Power and the guidelines in Kenya Power v Zakayo Saitoti Naingola, the court found the injuries similar to those in Peter Njuguna, Baloch Faisal and Jelle v Kitsao, and particularly followed the Baloch Faisal award. The Plaintiff's proposed Kshs. 800,000/= authority was rejected as involving more severe injuries.

The court disregarded the expert's evidence on psychosocial support and anti-inflammatory agents since the Plaintiff never testified to needing them. As the tooth was fractured, not lost, filling was the appropriate remedy, and the Medical Practitioners and Dentists (Professional Fees) Rules prescribe a maximum of Kshs. 9,000/= for the most complex filling in a registered facility.

The Plaintiff particularized Kshs. 4,760/= in paragraph 5 of the Plaint and the receipts on record proved the pleaded amount, satisfying the requirement that special damages be specifically pleaded and proved.