Maimuna Shukri & 1 other v Victor Ochieng Odhiambo & 1 other

Isiolo-Moyale road when the bus was carelessly driven by the 1st Defendant thereby knocking his vehicle from behind occasioning serious bodily harm to him and his passenger. He particularized particulars of negligence on part of the 1st Defendant and particulars of injuries that he sustained. He therefore prayed for special damages amounting to Kshs.478,385/-, general damages for pain and suffering and loss of amenities, future medical expenses, loss of earning capacity, costs of the suit and interest. 4. In response, the Defendants filed a joint amended defence and counterclaim and denied the contents of the plaints of the 1st and 2nd Plaintiffs and averred that the accident was solely caused by the Plaintiff’s abrupt u-turn on the road in a bid to escape with bhang which they were transporting. They denied the particulars of negligence particularized by the Plaintiffs and particulars of injuries and damages and averred that if at all the accident occurred, it was solely caused and/or substantially contributed to by the negligence of the Plaintiffs and that of the driver and owner of the car, the 2nd Plaintiff. The particulars of negligence on part of the Plaintiffs were set out. 5. They filed a counterclaim against the 2nd Plaintiff and a third party Omar Nassor Salim (service on this party is not clear after the consolidation of the suit and no evidence was led against him by either party) and averred that the Plaintiffs and the 1st 3rd party illegally and without due care of the Defendants made an illegal turn endangering the Defendants and the passengers. They particularized the particulars of negligence on the part of the 2nd Plaintiff and the 3rd party. They further averred that the Plaintiffs and the 1st third party were knowingly and actively engaging in unlawful and illegal activities hence they cannot be allowed to benefit from the said illegalities. They prayed for dismissal of the Plaintiffs’ suit and that the Plaintiffs and 3rd party be found liable. They also prayed for damages against the 2nd Plaintiff and 3rd Party for negligently and illegally endangering the Defendants, costs of the suit and counterclaim together with interests. 6. The matter proceeded for hearing with the Plaintiffs’ side having three witnesses while the Defendants called four witnesses. 7. PW1, Dennis Otwori, a trauma and orthopaedic surgeon at national spinal injury referral hospital produced a medical report dated 08/03/2022 in respect of the 1st Plaintiff as Pexhibit1. He testified that the degree of injury was 100% permanent incapacity as particularised in the report. 8. On cross examination by counsel for the Defendants, he testified that he examined the plaintiff two times after the first appointment on 08/03/2022 but there were no reports for subsequent examinations. 9. PW2, 1st Plaintiff adopted her statement that she had recorded as evidence. She also identified the photographs attached and produced them. 10. On cross examination by Mr. Chweya, she testified that they were from Moyale and a bus that was coming from Isiolo hit them. The driver turned to return to Merile to collect a jerk. They moved some distance from the turning point. She heard a bang from behind. 11. On cross examination by Ms Achieng, she testified that they were from Moyale to Isiolo and the bus was from Isiolo. They took a turn after the Merile road block and they had not moved far from where they turned. They could see lights from Merile and they could not see seleolipi from their turning point. The driver asked her to check whether there was a jerk on the floor of the car and she told him that she could not see it. They alighted at Merile and the car was inspected and that she did not see the jerk at that point. The lights of their vehicle were on when they turned and there was no road block at the scene. They had travelled like 10 minutes after turning and they needed like 20 minutes to reach Merile. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 2

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12. On re-examination, she testified that she did not know that her driver was charged but she was called by the OCS and summoned to testify and found her driver was the accused. The vehicle was on the left. They looked for the jerk and then they turned and could see lights from Merile. 13. PW3, 2nd Plaintiff, John Njoroge Nyanjui, adopted his statement dated 18/01/2022 as evidence. He produced his bundle of documents as Pexhibit 1-14. He testified that he was in transport business and PW2 was a customer. They were on their way from Moyale to Isiolo and they stopped at Merile for inspection. Between Merile and seleo Lipi, he realised that they did not have the jerk. He parked on the left as they had to go for it. It was at night but he looked on the road and there was no vehicle so he turned. It was at a flat place so he could see ahead and behind. His vehicle was hit from behind and the impact reached them at the front. He had travelled for about 2 kilometres returning to Merile and they could see lights at Merile. That he suddenly saw lights of a motor vehicle which banged his vehicle from behind. That he was charged in Isiolo for careless driving but the case was not yet concluded. That the bus driver was named as the one to be blamed for the accident. He was also blamed for careless driving when he went for his P3 form. That he is unable to walk as he was paralysed from lower abdomen all the way down and his spine was affected. He is unable to control bowel movement so he wears pampers and a catheter and cannot engage in sex. 14. On cross examination by Mr. Kamwara, he testified that there were two police abstracts and the first one to be filled was for PW2. That there was another abstract that blamed him. 15. On cross examination by Ms. Achieng, he testified that there were two police abstracts one dated 01/10/2019 which blamed Victor Ochieng for the accident. The second abstract was issued on 9/10/2020, a year after the accident and it blamed him for the accident. That he was a driver for 9 years at the time of the accident. Victor and Abbas blamed him for the accident. That he parked the vehicle off the road and at a place where the middle line was broken. It was a flat place and the road was straight and he could see ahead. That he then moved the vehicle and he turned. There was no vehicle coming. That Victor caused the accident since he was on his lane and the vehicle lights were on. That he had two reflectors behind his vehicle since it was a commercial vehicle. That Victor’s vehicle was at a high speed. That he was not aware of any charges Victor was facing. That he made a turn on the road and he turned at the right place after observing precautions. 16. On re-examination, he testified that he was hit after turning and moving about 2 kilometres away from the turning point. At the point he was hit, he had no obligation to give the right of way to the bus. The other driver was supposed to overtake him. That he had not yet been found guilty in Isiolo case. That he never went to collect the abstract dated 01/10/2019 and went for his own on 19/10/2020. 17. DW1, Abass Adan Kala, the 1st Defendant adopted his statement dated 08/05/2024. He testified that the driver of his bus, Victor Ochieng was involved in this accident and died on 27/06/2022 but his death was not connected to the accident. 18. On cross examination by Mr. Kamwara, he testified that Victor left work as he became sick since he had blood pressure. 19. On cross examination by Mr. Chweya, he testified that he was the owner of the bus and Victor was blamed for the accident in an abstract. Investigations were going on. That PW2 was charged in 2023. 20. On re-examination, he testified that PW2 was charged in Isiolo with a traffic offence and by the time Victor died, there was no case. 21. DW2, assistant superintendent of police, Timothy Indwale testified that he recorded a statement which was in the police file. He produced documents dated 12/03/2024 being charge sheet, ODPP decision https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 3

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to charge, police abstract dated 01/10/2019 and traffic police file. He testified that at the material time, he was the OCS at Seleo Lipi and he was the investigating officer. That it was around 4:00am when he received a call about an accident involving two motor vehicles. That Toyota Noah made a u turn abruptly on the road. From oral account and visiting the scene, he confirmed so. The sketch plan was in the file he produced and from the sketch plan, there were skid marks for the bus indicating speed and the point of impact which was on the road. The bus knocked the car from the rear side and the impact on the bus was at the centre. The car was hit on the left rear and he concluded that the car had not completed the turn in that, it was hit when making the turn. 22. That they opened the file and issued notice of intended prosecution to both drivers. The file was forwarded to ODPP who made a decision to charge 2nd Plaintiff, the driver of the car and he was accordingly charged. That one abstract blamed John Njoroge and another blamed Victor. The witnesses in Njoroge’s abstract are himself, and P.C Ken Mwenda and Francis whereas in the abstract that blamed Victor, witnesses were Stephen Mwenda, himself and CPL Saina. That it is after investigations and recommendation by ODPP that they determine who to charge. That in his statement, he recorded that there was a substance that resembled bhang that was found in the car but PW2 was not charged with possession of bhang. He visited PW1 and PW2 while in hospital and they denied conveying bhang. PW2 was to blame for the accident as he made a u-turn in an undesignated place and without due consideration of other road users. He examined both vehicles at the scene and he saw the point of impact. The motor vehicle inspector did an inspection and reports were made. He testified that he relies on the information on the report. 23. On cross examination by Mr. Kamwara, he testified that accident was on an A1 road and there were no corners. The motor vehicle inspector did not visit the scene. Both motor vehicles were off the road and the bus had a dent at the centre at the number plate. That he did not think that there was an attempt to overtake and the car was hit on the right. That there were two abstracts which blamed both persons. The ODPP concurred with him to charge PW2. 24. On cross examination by Mr. Chweya, he testified that he issued two abstracts dated 01/10/2019 and one dated 09/10/2020 . That at the material time, investigations were pending. That he had an abstract which blamed Victor and in paragraph 7, it had no result of investigations. That it was his evidence that PW2 made a u turn before the accident. That his vehicle was hit from the rear left and the damage extended. The bus was hit at the centre of the number plate and there was a dent at the centre, right and windscreen of the bus. The car was hit on the rear left. That there were clear skid marks. That the witness stated that the driver made a u turn. PW1 told him in her statement that they made a u turn and the road was clear according to her but in her evidence in court, she did not talk about a u turn. That he was informed by the members of the public that there was bhang and he saw a black polythene bag and he suspected the dry leaves to be bhang though he did not charge them over this. 25. On re-examination, he testified that the motor vehicle went to the left of the road as was confirmed by the photos and sketch plan. That he had nothing to do with the decision to charge. One of the abstracts was blank at Paragraph 7. That in the abstract that blamed John Njoroge the results were that it was pending before court. He maintained that John Njoroge was to blame for the accident. 26. DW3, Mohammed Hussein Omar adopted his statement dated 30/09/2024. He testified that he was the conductor in the subject bus and his seat was next to the driver. 27. On cross examination by Mr. Kamwara, he testified that his statement read that a Nissan Serena was crossing the road and this was the motor vehicle they hit. 28. On cross examination by Mr. Chweya, he testified that he has a staff identification card though the same was not in court. That his statement did not state that he was sitting in the front. That he stated https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 4

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in his statement that the driver saw an object crossing the road and that the bus hit the object. That his statement did not state that he saw the object. The driver was driving at around 100 km per hour. They were headed to Merile and he recorded that the car turned to evade a road block since they were carrying bhang which was found in the car. The lights were off when they were taking the U-turn and the lights of the bus were on. 29. On re-examination, he testified that he recorded a statement at the police station and the one that was read in court was typed. He wrote the statement with the police and it was the same with the one in the court. That what was read in court was different from what he recorded. 30. DW4, Ali Yerrow adopted his statement dated 12/03/2024. He testified that he was a passenger in the bus and he was seated on the second seat. That he testified in Isiolo against Njoroge who was the driver of the other vehicle. 31. On cross examination by Mr. Kamwara, he testified that he was seated on the left of the bus on the 2nd row. His eyes were okay. He had a bus ticket and it has been 5 years since hence, he cannot have the receipt to date. 32. On cross examination by Mr. Chweya, he testified that he was in the 2nd seat from the front and the conductor was seated on the front seat. He did not see the other vehicle approach. Its lights were off and he saw the vehicle take a u-turn and it was hit on rear right side and the bus was also hit on the right. That he saw bhang at the bonnet and he heard people say that it was bhang. 33. At the close of the evidence, parties filed written submissions. On the admissibility of the traffic case in Isiolo where the 2nd Plaintiff was convicted, the 1st Plaintiff’s counsel relied on myriad of cases where the courts stated that such evidence does not preclude this court from interrogating the evidence on record to determine the liability of the parties. He also urged this court to disregard the OB produced in light of the inconsistencies in the contents of the said OB issued to the Plaintiffs and Defendants save to the uncontroverted facts of the occurrence of the accident. He submitted that the Plaintiffs produced police abstract dated 01/10/2019 which blamed the 1st Defendant for the cause of the accident. The Defendants produced an abstract dated 19/10/2019 which blamed the 1st Defendant. DW2 during cross examination confirmed issuing the said OBs to the Plaintiffs and Defendants. DW2 stated that the witnesses in the abstracts issued to the Plaintiffs was himself, Ken Mwenda and Francis Murungi. In the OB issued to the Defendants, he confirmed the witnesses to be himself, Stephen Mwenda and CPL Saina hence, the abstracts differed in respect of the witnesses. They also differed in that the abstract given to the Plaintiffs blamed the 1st Defendant whereas the abstract issued to the Defendants blamed the Plaintiff. Furthermore, it has been held in numerous authorities that statement on the police abstract as to who is to be blamed is not a conclusive proof of fact. 34. He submitted that it is not in dispute that the car was hit from the rear side by the bus as the evidence tendered pointed to this fact including the photographs that were produced by the 1st Plaintiff. That the Plaintiffs’ position was that the car was hit from behind after completing a u-turn and after moving a few meters away from the turning point. That DW3 testified that he was seated next to the driver and that he saw an object crossing the road. That with his sitting position, he was expected to positively identify the car and his inability to positively identify the car shows that the bus had no functioning headlights and was overspeeding thereby hitting the car from the rear side. He urged this court not to attach any weight to DW2’s evidence which was hearsay as he did not witness the accident and it is expected that he gathered evidence from the defence witnesses to arrive at an alleged blame to the 2nd Plaintiff. That from the photographs produced, it is in evidence that the bus was driven at excessive speed which caused it to hit the car from behind hence the 1st Defendant should be held liable since https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 5

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the principle of duty of care enjoined him to anticipate any eventuality like people, animals on his way and thus drive at a speed which could have afforded avoidance of an accident. 35. He urged the court to find the 1st Defendant fully liable for causing the accident based on the above principle and authorities relied on where vehicles that hit other road users from behind were blamed for the accident for he failed to exercise due care that would have avoided hitting the car from behind. That it was the duty of the Defendants to prove negligence on part of the 1st Plaintiff which they failed as there was no evidence that was led to substantiate the allegations of negligence enumerated in their defence. That the 1st Plaintiff was a mere passenger and had no control of the car. Her presence in the vehicle was permitted and authorised by the 2nd Plaintiff and it cannot therefore be said that she disregarded her own safety by boarding and travelling in unauthorised vehicle. As to whether the 2nd Defendant should be held vicarious liable, he submitted that the 2nd Defendant confirmed that he was the owner of the bus and the 1st Defendant was the driver hence as the owner, he is vicariously liable for the negligence of the 1st Defendant. 36. On quantum, he submitted that the 1st Plaintiff was hospitalised for a period of 5 months and had to undergo a great deal of pain during that period which was also confirmed by PW1 that she suffered permanent disability hence she cannot do anything for herself. That she is confined to a wheelchair and she depends on others for help and has hired a nurse and house help to take care of herself and her children. That the doctor recommended her to attend physiotherapy, to have an electric bed, orthopaedic mattress and a specialised wheel chair. The injuries sustained remained undisputed as the Defendants did not call evidence to the contrary. PW1 assessed the degree of incapacity as 100% with her unlikely to improve with time. That PW1 opined that the 1st Plaintiff will need a helper, nursing care throughout her life, drugs to evacuate stool from the rectum, catheters, urine bags and diapers. He urged the court to award Kshs.19,000,000/- under this head guided by the case of Brenda Nyaboke Michira v German International Co-operation Giz (2017) KEHC 452(KLR) and Rukia Mugoyia v Johnson Ogutu & another (2007) eKLR. 37. On the current and future medical expenses, he submitted that according to PW1, the 1st Plaintiff will need a wheel chair and nursing care for the rest of her life, drugs to evacuate stool from the rectum, catheters, urine bags, diapers, special bed, special mattress, physiotherapy and medical expenses. That she was 44 years at the time of the accident as indicated in the medical report hence she has 22 years to reach life expectancy which is 66.7 years according to WHO. He urged the court to adopt 22 years since there was no evidence of her ill health or incapacity prior to the accident. That the doctor approximated a wheel chair cost at Kshs.60,000/- with a life span of 10-12 months hence she requires 60,000x22 amounting to 1,320,000/-. He relied on the case of Japheth Ngula Matingi v Attorney General (2016) KEHC 1224 (KLR) where Kshs.1,600,000/- was awarded for wheel chair and Jane Odhiambo Akwiri v Al Husnain Mothers & another where Kshs.60,000/- was awarded for a wheel chair. That PW1 testified that the 1st Plaintiff will require a nurse to manage her paraplegic condition and such a person will require a monthly salary of Kshs.30,000/- hence compensation for nursing care is Kshs.7,920,000/for 22 years and he relied on the case of Japheth Ngula Matingi v Attorney Genral (supra) where an amount of Kshs.20,000/- per month was awarded for nursing care. That the 1st Plaintiff will require physiotherapy charges quarterly at Kshs.3,000/- per visit and taxi charges of Kshs.15,000 per visit and he urged the court to adopt a sum of Kshs.2,000,000/-. He relied on the case of Brenda Nyaboke (supra) where an amount of Kshs.4,320,000/- was awarded for physiotherapy charges amongst other cases. 38. He also prayed for drugs to evacuate stool as suggested by PW1 at Kshs1,500/- per week amounting to Kshs.1,584,000/-, catheters and urine bags and diapers at Kshs.1,689,600/-, special bed at Kshs.350,000/- and special mattress at Kshs.150,000/- and he relied on the case of Japheth Ngula https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 6

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Matingi (supra). On house help expenses, he submitted that she requires a house help to take care of her and her children and PW1 proposed a salary of Kshs.30,000/- for a house help thereby amounting to Kshs.7,920,000/-. He relied on the case of Njika (alias Jackeline Kirigi alias Edith Jackline) v Munuve (alias Benjamin Mulatya Munuve) (Civil Case E003 of 2021) [2022] KEHC 14294 (KLR). On the loss of earnings, he submitted that she owned a grocery business where she was earning approximately Kshs.30,000/- per month and he proposed a computation of Kshs.30,000/- x 12 x 22 years hence an amount of Kshs.7,920,000/-. 39. With respect to special damages, he submitted that the 1st Plaintiff has incurred Kshs.432,000/- as costs of stool evacuation from the time of the accident to date, Kshs.460,800 as costs for urine bags and diapers, 3 surgeries at Kshs.390,000/- and costs of medical examination at Kshs.50,000/- totalling Kshs.1,332,000/-. He therefore prayed for Kshs.51,185,600/- as the total damages. 40. Counsel for the 2nd Plaintiff submitted that DW2 was not at the scene of the accident hence his evidence was hearsay. Moreover, DW2 concurred with the Plaintiffs that the car was hit on the rear side. He did not also produce the sketch plan which he claimed was in the police file which would have assisted this court in making its decision. On cross examination, he testified that the car was hit from the back and the bus was hit at the centre of the number plate and he also stated that had the car been hit while turning, it would have fallen on the opposite side. DW3 testified that the driver saw something at the middle of the road which was crossing. The 1st Defendant tried to apply brakes but hit the crossing object hence it is clear from their evidence that the car was hit on the rear side and from the evidence on record, it is clear that the car was hit while it had already turned. 41. Additionally, if the car was hit while turning, it is not possible for it to have remained on the same side of the road as the bus facing northwards as indicated by DW2 in his evidence. That in DW2’s statement, it was recorded that both vehicles remained on the road facing northwards. That normally, when a vehicle is hit while making a u-turn, it ought to have been hit on the side and should have veered off the road and would have been on the opposite side of the road where it could have landed after being hit. That from DW4 statement, it appears that he never saw anything but the driver saw what he described as a crossing object. And if that so, the car would have been hit on its side if it was crossing and not on rear side since it is not realistic for a motor that is in the middle of the road and crossing on the road to be hit on the rear side as it should have been hit on the side. Further, it would not have been facing north as per DW2 if it was hit while crossing the road. That it would have veered off the road and faced the opposite direction from the bus after the accident hence it would not have been on the roadside facing north as the bus that hit it. 42. It was submitted that DW4’s testimony was that the object was 100 meters from the bus hence if the driver of the bus was at the proper speed, it could not have hit a car that had seen from a 100 meters away hence the driver was driving negligently. Additionally, it was not explained the effort the driver of the bus took to evade the accident like swerving, hooting etc. Therefore, the 1st Defendant led to the occurrence of the accident. While relying on myriad of cases, he submitted that the 2nd Plaintiff having been hit from behind, it is not possible for him to have contributed to the occurrence of the accident as he was lawfully driving on his lane and was hit from behind hence it would have been difficult for him to avoid the accident. 43. With respect to damages, he submitted that the 2nd Plaintiff prayed for Kshs.478,385/- as special damages which was proved by receipts that he produced. With respect to general damages, he submitted that he spent close to four months in hospital and he was diagnosed with paraplegia or paralysis of lower limbs and the doctor stated his primary mode of ambulation is on a wheel chair. He is dependent on other people as he lost control of bladder and anal spinsters and he is therefore required to use adult diapers and catheters. His sexual life was completely affected hence he cannot sire https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 7

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children. He urged the court to award Kshs.6,500,000/- for pain and suffering considering that the 2nd Plaintiff’s level of disability was assessed at 75% and he relied on the case of Auren vs Director General of Police (2023) KLR and Emmanuel Kombe Nzai alias Kombe Emmanuel v Basari Company Ltd & another (2017). 44. On general damages for future medical expenses, he pleaded for Kshs.200,000/- as cost of four wheelchairs and Kshs.5,000 as costs for crutches. That he also needs a personal assistant at the costs of Kshs.20,000/- per month. He is 35 years old and expected life expectancy is 65 years according to WHO report hence, future expenses for a personal assistant will be 20,000x12x30 years=7,200,000/-. That he will require to use catheters and diapers and he proposed an amount of Kshs.3,000/per month for catheters and Kshs.7,200/- for adult diapers hence amounting to Kshs.2,592,000/and Kshs.1,080,000/- respectively and he relied on the case of Njoka (alias Jackline Kirigi alias Edith Jackline) v Munuve (alias Benjamin Mulatya Munuve) (2022)KLR. That he also requires physiotherapy services at Kshs.5,000/- per month and using the multiplicand of 30 years will amount to Kshs.1,800,000/-. 45. As regards general damages for loss of earning capacity, he submitted that the 2nd Plaintiff can no longer work and the doctor’s report indicated that he was unlikely to venture into any meaningful economic activity hence he has proven loss of earning capacity and he submitted that a sum of Kshs.1,000,000/was sufficient. 46. The Defendants’ counsel submitted on the admissibility of the judgment in Isiolo Traffic Case E065 of 2022 whereby the 2nd Plaintiff was convicted for causing the accident. He submitted that the use of any judgment in a criminal case in a civil suit renders no prejudice against any party. 47. The issues for determination are who was liable for the accident and based on the answer thereon, what damages if any were payable. 48. The Defendants’ counsel in the submissions stated that the use of the judgment delivered in Isiolo Traffic Case No. E065 of 2022 whereby the 2nd Plaintiff was convicted would be beneficial to this court towards speedy and fair administration of justice. He also submitted that the use of the criminal judgment will not render any prejudice against any party. 49. Relying on myriad of cases, the 1st Plaintiff’s counsel submitted that such evidence does not preclude this court from interrogating the evidence on record to determine the liability of the parties. 50. Platt, JA in Chemwolo and Another vs. Kubende [1986] KLR 492; [1986-1989] EA 74 opined that: “ It was not for the Judge to read the proceedings in the Traffic case as if the evidence recorded there was the final position in the case since not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness. It was therefore premature to come to the conclusion that not even prima facie case of contributory negligence could be established. It would have been right to have held that there was some evidence upon which a triable issue as to contributory negligence arose on the strength of the proceedings in the traffic case…It was correct for the learned Judge to refer to the conviction because section 47A of the Evidence Act (Chapter 80) declares that where a final judgement of competent court in criminal proceedings has declared any person to be guilty of criminal offence, after expiry of the time limited for appeal, judgement shall be taken as conclusive evidence that the person so convicted was guilty of that offence. But that does not matter because it may also be that the other party was also guilty of carelessness and despite the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 8

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other party’s conviction, the issue of contributory negligence may still be alive if the facts warrant it and this may affect the quantum of damages.” 51. According to Apaloo, JA (as he then was) in the same case: “ It was not competent for the Judge to merely peruse the record of the criminal trial and conclude that a prima facie case on contributory negligence cannot be established. If the averments of contributory negligence are proved at the trial, the Court may well feel that the plaintiff was in part to blame for the accident and the Court would then come under a duty to assess his own degree of blameworthiness and depending on the Court’s assessment of responsibility for the accident, such apportionment may affect, perhaps in a substantial manner, the quantum of damages to which the plaintiff is entitled. Or it may affect it in a negligible way. Whatever it is, there is a triable issue on the plea of contributory negligence.” 52. In Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, it was held that: “ It is trite and rudimentary that proceedings in a criminal case cannot be used to prove a cause of action in a civil suit although the record can be used for certain purposes, for instance, to contradict a witness by facing him with what the witness had stated in the trial.” 53. And in Kennedy Muteti Musyoka v Abedinego Mbole [2021] eKLR. The Court therein held as follows: “ Even where the traffic proceedings are complete and decision made thereon, save for the fact that a person may be found liable therein, it does not necessarily follow that the person found culpable is the person solely liable for the occurrence of the accident. Nor does an acquittal automatically exonerate the person charged in those proceedings.” 54. The parties herein blame each other for the collision. The Plaintiffs’ case is that they were hit from behind by the 1st Defendant who recklessly drove the bus without due regard. It is an admitted fact that the 2nd plaintiff took a u- headed back to Merile to pick a jerk. From the defence evidence, there is controversy on exactly why the u-turn was made with a suggestion that the same was to avoid a security road block since the car was ferrying bhang. This allegation remains just that as the police and specifically, DW2 did not undertake conclusive investigations in this aspect of the matter. 55. What is clear from the evidence is that the car made a u-turn and there was a collision with the bus whereby the car was hit from behind. The 2nd Plaintiff’s evidence is that he checked and confirmed the road was clear as he turned back towards Merile. Soon thereafter the car was hit from behind by the bus. 56. The defence evidence is that the driver of the car did an abrupt u-turn and the driver of the bus had no chance and rammed into the car from behind. 57. Two police abstracts were filled and issued by the police ironically each blaming the other driver for the carelessness causing the collision. During the pendency of this case, a traffic case in which the 2nd Plaintiff was charged with driving without due care and attention has since been concluded with the 2nd Plaintiff being found guilty of the charges. That judgement has been brought to the attention of the court. 58. Suffice to note, and as indicated above, such a finding of guilt does not absolve the other party in a case of negligence. The court is obliged to scrutinize the evidence independently and make a determination whether the opposite party was at fault and /or to what extent. This is not to take away any validity https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 9

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of the judgement of the trial court and this court must defer to the fact that the trial court had the opportunity to test the evidence at the higher degree of proof, that is, beyond reasonable doubt, and the judgement has not been set aside or otherwise varied on appeal. 59. In the quest to achieve the objective of determining degrees of fault on the part of the drivers, this court is alive to the fact that the standard of proof in civil cases is on a balance of probabilities. In William Kabogo Gitau v George Thuo & 2 Others(2010)1 KLR526 Kimaru J, (as he then was) expressed himself on the applicable degree of prove as follows; “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded are more likely than not to be what took place” (See also Palace Investments Ltd v Geoffrey Kariuki Mwenda & Another (2015) KECA 616). 60. Every driver on a road owes a duty of care to other road users and must have regard to the conditions of the road at the time including any objects that could be on the road including animals. The court in the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, expressed itself thus: “ A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.” 61. In Masembe v Sugar Corporation and Another [2002] 2 EA 434, it was held that: “ When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” 62. The same reasoning is found in Tart vs. Chitty and Co. (1931) ALL ER Pages 828 ? 829 as quoted in Kamau & 4 others v Kamau & 3 others (Civil Appeal E107 of 2017) [2024] KEHC 8529 (KLR) (8 July 2024) that; “ It seems to me that if a man drives a motor car along the road he is bound to anticipate that there may be in things and people and animals in the way at any moment and he is bound to go not faster than will permit his stopping or deflecting his course at any time to avoid any thing he sees after he has seen it." 63. Back to the scene, all the indications were that the road was straight and there was no obstruction. It was at night. The primary duty was on the 2nd Plaintiff to ensure the road was clear before he turned. The evidence on record, and more particularly the point of impact on his car is a clear indication that he had completed maneuvering the turn. It is worthy of note that the point at which he turned was not designated for that purpose and extra caution was necessary. 64. On the flip side of the coin, the 1st Defendant who was the driver of the bus bore a duty like all drivers to drive with due care and attention and to have due regard to other users and the condition of the road at the time. As alluded to above, the road was straight and flat, and, with proper working lights and careful driving, the 1st Defendant ought to have seen the car turning and accordingly reacted to avoid the collision. By his failure so to do, the logical inference is that the bus must have been at a very high speed and this fact is demonstrated by the massive damage on the car on impact. I take note that at the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 10

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time of hearing this matter, the 1st Defendant was deceased and therefore his version of the occurrence of the collision was not available to explain his manner of driving. 65. Thus, the 1st Defendant also failed to keep a proper lookout and he failed to keep a safe distance and drive at a speed that allowed stopping safely. To that extent, the Ist Defendant contributed to the occurrence of the collision. 66. The elephant in the room then becomes the % apportionment of liability. I have no doubt arising from the facts as laid out in evidence that the 2nd plaintiff had completed the turn and taken the correct lane headed to Merile and had travelled a short distance before the collision from behind. Who then shoulders what percentage of liability? The courts have attempted to answer this question and I pick a few precedents as guides on the applicable principle. 67. In Shadrack Kilonzo Kavoi v Gacheru Peter & 3 Others [2020] eKLR, where a collision occurred when a car was doing a u-turn, the court emphasized that in apportioning negligence, one must assess the degree of the parties’ respective responsibility in regard to the causation of the wrong and each case must be assessed in its circumstances. 68. In Ogola v Owino [2025], when discussing a rear-end collision, the court reiterated the general principle; a driver who hits another vehicle from behind has a duty of care and is presumed negligent. This presumption is however rebuttable. 69. In Orioki v Kevian Kenya Ltd (Civil Appeal 341 of 2019), the court considered rear-end collision due to failure to keep a safe distance and attributed negligence to the rear-ender when that duty is breached. 70. In our instant suit, there is already a conviction on the part of the 2nd plaintiff in respect of charges based on the causation of the accident. The 2nd Plaintiff was convicted by the learned Magistrate in Isiolo Traffic Case No. E065 OF 2022 vide a judgement delivered on 20th January 2025 for the offence of driving without due care and attention contrary to Section 49(1)(a) of the Traffic Act. As noted earlier, a traffic conviction is evidence of negligence and is not conclusive proof of 100% liability. 71. I hasten to add that such a conviction is relevant in determining the level of responsibility in the causation of a collision in a negligence claim as set out herein. However, while the conviction proves that the 2nd Plaintiff was negligent, it does not prove that the 1st Defendant was blameless. 72. In Hunter v Chief Minister of West Midlands 7 Another, 1981 3 ALL ER 727, Lord Denning expressed himself as follows; “ Thus the decision in a criminal case on a particular question in favour of a defendant, whether by way of acquittal or a ruling on voire dire, is not inconsistent with the fact that the decision would have been against him if all that were required were the civil standard of proof on the balance of probabilities. This is why acquittals were not made admissible in evidence in civil actions by the Civil Evidence Act 1968. In contrast to this a decision on a particular question against a defendant in a criminal case, such as Bridge J’s ruling on the voire dire in the murder trial, is reached on the higher criminal standard of proof beyond reasonable doubt and is wholly inconsistent with any possibility that the decision would not have been made against him if the same question had fallen to be decided in civil proceedings instead of criminal. This is why convictions were made admissible in evidence in civil proceedings by the Civil Evidence Act 1968.’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 11

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73. The court in Trang v Alberta (Edmonton Remand Centre) 2002 ABQB 658, held; “ The fact of the convictions and the essential findings upon which the convictions were based, determined beyond a reasonable doubt by a court of competent jurisdiction, are to be afforded a high degree of deference. They are not subject to re-litigation. The non-essential findings, not held to the same standard of admissibility, are to be given some deference. Certainly, as a minimum, they provide prima facie proof of the underlying circumstance, and strong evidence would be required to refute those findings.’’(emphasis added). 74. The 2nd Plaintiff’s car, in my view of the evidence, had completed the U-turn but had not gained speed though by then moving in the same direction as the bus. I hold that the 2nd plaintiff bore a higher responsibility to ensure the road was clear to enable a safe turning and progress. The 1st Defendant also bore a duty to have consideration of other users of the road by driving at a speed allowing safe stopping or manoeuvre to avoid a collision. He too bore some responsibility in negligence terms and the skid marks at the scene are testimony to his speeding. There can be no mathematical exactitude in the apportioning of the liability but am satisfied that liability at 55% to 45% against the 2nd Plaintiff and the 2nd Defendant respectively would be a fair distribution of responsibility for the accident based on the 2 drivers’ manner of driving at the material time. I take this view based on the fact that in sudden/ unsafe U-turns, though the presumption is that the rear-ender bears responsibility for failure to keep safe distance, the front driver bears more responsibility arising from the unsafe manoeuvre. Quantum 75. The 1st Plaintiff in her amended plaint is seeking general damages for pain and suffering, loss of amenities and future medical needs, special damages and future medical needs of Kshs.35,750,000/and interest on the above. 76. On pain and suffering, counsel urged this court to award Kshs.19,000,000/- based on the fact that the disability sustained by the 1st Plaintiff was assessed by PW1 as 100%. 77. PW1, Dennis Otwori, a trauma and orthopaedic surgeon at national spinal injury referral hospital produced a medical report dated 08/03/2022 as Pexhibit1. He testified that the degree of injury was 100% permanent incapacity as particularised in the report. 78. In the said report, it was indicated that she was admitted at the national spinal injury hospital on 25/04/2019 and previously she had been treated at Kenyatta national hospital. She was discharged on 26/08/2019. The injuries sustained were; Compression fracture T8/T9 with complete cord transection/paraplegia/paralysis. Loss of motor function from waistline downwards. Loss of sensory function from T6. Loss of urine and stool control. Loss of sexual function. 79. It was stated in the report that she suffered permanent loss of; Inability to walk hence she will be confined onto a wheelchair for the rest of her life. Inability to control stool and urine for life. And inability to engage in sexual life. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 12

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80. Due to the above injuries, it is reported that she will be required to change wheelchairs from time to time due to wear and tear and that a wheelchair cost is Kshs.60,000/- with a life span of 10-12 months whereas an electric chair cost is Kshs.250,000/-. That she will require to employ a helper for life to assist her in feeding, bathing, etc on an average of Kshs.30,000/- per month. That she will require to use frequent drugs to evacuate stool which may cost Kshs.1,500/- weekly and will require the use of commode to empty her stool which cost Kshs.10,000/-. It is stated that she will require to use catheters, urine bags and diapers on a weekly basis which will cost her approximately Kshs.1,600/-. That she can only engage in sexual activities mechanically due to loss of sensation. That she is predisposed to recurrent chest, urinary tract and skin infections due to the nature of the injuries and she therefore requires regular check ups and purchase of the prescribed medicines may costs her Kshs.10,000/- per month. 81. It is reported that she requires a hydraulic or electric bed which costs approximately Kshs.350,000/and a ripple mattress which costs approximately Kshs.150,000/-. That she will require regular followup for life which will require that she hires a taxi at every visit. That outpatient follow-up clinics are scheduled on a 3-monthly basis with every visit costing Kshs.3,000/-. Her disability score is indicated to be 100%. 82. Under pain and suffering, counsel urged this court to award Kshs.19,000,000/-. He relied on the case of Brenda Nyaboke Michira v German International Co-operation Giz (2017) KEHC 452 (KLR) where an award of Kshs.8,000,000/- was awarded for 100% permanent disability. 83. In Wambua Versus Nyakundi [2023] KEHC 24589 (KLR), the court held that; “ The plaintiff’s Counsel proposed that a sum of Kshs.14,000,000/= would be sufficient in this case. I am however bound by holding in the case of Jubilee Hauliers Limited & 2 others v Brian Muchiri Waihenya [2021] eKLR, wherein the Court of Appeal reduced an award under the head of pain, suffering and loss of amenities to Kshs.4,000,000/ =where the Trial Court had awarded Kshs.8,000,000/=in similar circumstances to this case, where the respondent was a complete paraplegic with 100% permanent incapacitation, had incontinence of stool and had to use diapers. The respondent in the case cited above also had an indwelling catheter with urine bag and had to be on a wheelchair throughout his life. In the said circumstances, it is my finding that an award of Kshs.4,000,000/= under this head is not only fair but reasonable compensation.” 84. In Anthony Mbwabi Khayimba v Laxamanbhai Construction Ltd [2018] KEHC 489 (KLR) an award of Kshs.10 million was awarded as general damages. 85. I have factored in the nature of injuries as clearly put by the doctor, I have noted the level of paralysis, lifelong care needs, loss of control of bodily functions, age, the personal circumstances of the 1st Plaintiff and the lifelong suffering of pain and discomfort that she will have to endure all her life and the attendant mental trauma. Counsel sought Kshs.19,000,000 under this head. 86. Doing the best I can and guided by the nature of injuries and past awards in similar circumstances as above and factoring in the fact that the 1st Plaintiff’s injuries are more debilitating and the incidence of inflation, am persuaded that a sum of Kshs. 15,000,000 in general damages would be reasonable and adequate compensation for pain and suffering. 87. Under current and future medical expenses, counsel submitted that the 1st Plaintiff is confined in a wheel chair for the rest of her life. In the medical report, it is indicated that a wheelchair costs Kshs.60,000/- with a life span of 10-12 months and electric one cost is Kshs.250,000/-. Counsel https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 13

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submitted that the 1st Plaintiff was 44 years old at the time of the accident and the average life expectancy according to WHO is 66.7 years and he urged this court to adopt the same and urged the court to use a multiplicand of 22 years. He urged the court to award Kshs.1,320,000/- for the cost of the wheelchair. 88. It is not disputed that as a result of the paralysis, the plaintiff cannot walk, she has been confined to a wheelchair. While considering the life expectancy in Kenya, the court in Ali Abdalla Mwanza v Republic [2018] KECA 287 (KLR) held that; “ …we have taken note of the latest health profile for Kenya compiled by the World Health Organization (WHO) data for 2018, on life expectancy which is indicated as 64.4 for male and 68.9 for the females and total life expectancy average as 66.7.” 89. Counsel submitted that the age of the 1st Plaintiff, 44 years was not disputed by the Defendants and he urged the court to adopt a multiplicand of 22 years. 90. In Anthony Mbwabi Khayimba v Laxamanbhai Construction Ltd, the Court made an award for the cost of a wheel chair at Kshs.60,000/= with a life span of one (1) year. 91. It is also noted that lost that an electric wheelchair was cited as an option though the doctor did not state the lifespan of one. In the circumstances I will award damages for a manual wheel chair whose cost has been established. The multiplicand used is sound and I award Kshs. 1,320,000 for the cost of wheel chair. 92. For nursing care, the 1st Plaintiff prayed for Kshs.30,000/- as suggested in the medical report and also prayed for Kshs.30,000/- for domestic worker. It is to be noted that the doctor did not state that she needs both domestic worker and a nurse but only stated a helper. My view is that one helper is enough to assist her in carrying out her day to day activities. In the case of Wambua v Nyakundi [2023] (supra), the court adopted the Regulation of Wages (General) (Amendment) Order, 2017 for the prescribed wage of a domestic worker. 93. The Order has since been amended vide Regulation of Wages (General) (Amendment) Order, 2024 which came into force on 1st November 2024. The Order which puts the minimum wage for a house servant at 14,866.92 (Nanyuki the place of residence being a Municipality). Damages under this head would translate to 14,866.92 *12*22= 3,924,866.88. 94. The medical report in respect of the 1st Plaintiff indicates that she will need Physiotherapy, follow ups, medical consultations and taxi charges. No evidence was adduced in support of specific amount of Kshs.3000 claimed per session and Kshs. 15000 for taxi costs from Nanyuki to Nairobi and back. In similar circumstances, courts have adopted what could be a reasonable figure. 95. In Wambua v Nyakundi [2023] KEHC 24589 (KLR) the court held thus; “ No evidence was adduced in support of the claim for taxi charges of Kshs.2,000/= to and from the hospital for periodic physiotherapy and follow up clinics with Dr. Muthuri. I will therefore award a reasonable amount of Kshs.1,500/= for taxi expenses…In as much as the plaintiff was advised to pursue physiotherapy, there was no evidence adduced by him in support of the amount of Kshs.5,000/= per session spent on this service. I will allow an amount of Kshs.2,500/= per session once a month, which I consider reasonable. The plaintiff urged this Court to compute these figures on a monthly basis for the remainder of his life. I therefore find that an award of Kshs.4,536,000/= is sufficient under this head.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 14

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96. I find Kshs. 3000 per session a reasonable figure quarterly and given the distance from Nanyuki to Nairobi, Kshs. 12,000 per trip in taxi costs is reasonable. The award would thus be; Medical follow ups: 3000*4*22=264,000 Taxi costs: 12,000*4*22= 1,056,000 97. The doctor indicated that the 1st Plaintiff requires drugs to evacuate stool at Kshs. 1,500/- per week, catheters, urine bags, diapers at Kshs. 1,600/- per week. No evidence in form of receipts but according to PW1, she requires them at the cost indicated. These requirements have been confirmed by a professional and in the absence of evidence to the contrary, am persuaded same are available to the 1st Plaintiff. The computation by her counsel is spot on and I award Kshs. 1,584,000 under this head. 98. The doctor further indicated that she requires a hydraulic bed which costs Kshs.350,000/- and a special mattress at the cost of Kshs.150,000/-. The Court in the case of Brian Muchiri Waihenya v Jubilee Hauliers Ltd & 2 others [2017] eKLR considered a quotation given by the National Spinal Injury Hospital in the case Japheth Ngula Matingi v AG [2016] eKLR, and made an award for Kshs.350,000/ = for an electric bed. In Anthony Mbwabi Khayimba v Laxamanbhai Construction Ltd (supra), the Court made an award of Kshs.350,000/= as the cost of a paraplegic bed and a special mattress at Kshs.150,000/=. I award a total of Kshs. 500,000 for these 2 items. 99. With respect to special damages, counsel submitted that the 1st Plaintiff has incurred Kshs.432,000/- as costs of drugs to evacuate stool, costs of catheters, urine bags and diapers amounting to Kshs.460,000/-, three surgeries amounting to Kshs.390,000/- and costs of medical examination amounting to Kshs.50,000/-. He therefore urged the court to award Kshs.1,322,000/- under this head. 100. No evidence was adduced in support of these expenditures. The law on special damages, is well settled. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, where the Learned Judges of Appeal held: “ Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 101. The 1st Plaintiff did not attach any receipts to substantiate the claim under this head. The claim on the 3 items above fails. 102. With respect to loss of earning, the same was not pleaded in the plaint. The court in Cecilia Mwangi & Another V Ruth W. Mwangi CA No. 251 of 1996 held as hereunder; “ Loss of earning is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classified as proved on a balance of probability.” 103. In S J v Francessco Di Nello & another (2015) eKLR the Court of Appeal held that: “ Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 15

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evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. 104. There is no claim for loss of earnings pleaded in the plaint and not even a mention of the same in the 1st Plaintiff’s witness statement. 2nd Plaintiff”s case on damages. 105. Counsel for the 2nd Plaintiff submitted that the 2nd Plaintiff was diagnosed with paraplegia, paralysis of both lower limbs and that his primary mode of ambulation is in a wheel chair. That he is dependent on other people to execute his daily activities, he lost control of bladder and anal sphincter hence he is required to be in adult diapers and catheters. His sexual life was completely destroyed hence he cannot sire children. His level of disability was assessed at 75% and he urged the court to award Kshs.6,500,000/- and he relied on the case of Emmanuel Kombe Nzai (supra) and Auren vs Director General of Police (supra) where Kshs.6,000,000/- was awarded for pain and suffering. 106. The 2nd Plaintiff produced a medical report dated 21/10/2021 made by Dr. F.W Muleshe, a consultant general surgeon. The doctor was not called to testify but the report was produced without any objection from the Defendants’ counsel. 107. It is indicated in the report that he had spinal injury that rendered him paraplegic meaning that his lower limbs are paralyzed and have no sensation and his primary mode of ambulation is in a wheelchair and with intensive physiotherapy, he may regain minimal power that will enable him to ambulate with crutches. That cost of a good wheelchair is Kshs.50,000/- which will require to be replaced thrice or four times in his lifetime and cost of crutches is Kshs.5,000/-. That he is dependent on other people and may require to hire a personal assistant at the costs of Kshs.20,000/- per month. He no longer has control of bladder and anal sphincters hence he is required to be in adult diapers and condom catheters. He requires physiotherapy at an estimated cost of Kshs.5,000/- per month. That the prospect of him siring children was severely compromised and he is unlikely to venture into any meaningful economic activity. That the estimated disability is 75%. 108. In regards to pain and suffering, counsel urged the court to award Kshs.6,500,000/-. 109. In the case of Bernard Mutisya Wambua vs Swaleh Hashil [2017] eKLR, Meoli J., awarded general damages in the sum of Kshs. 6,500,000/= to the plaintiff who suffered 80% paralysis of his right limb among other injuries which rendered the plaintiff incapable of working. 110. It is however worth noting that in the present case, the plaintiff's upper limbs are functional. 111. In the case of Charlene Njeri Kuria vs Gitu Geoffrey and Another [2016] eKLR, Mbogholi J award Khs. 5,000,000/= to the plaintiff who sustained 60% disability with partial paralysis of the lower limbs. 112. In the circumstances of this case I would award Kshs. 5,000,000 in general damages for pain and suffering. 113. For future medical expenses, counsel submitted that the doctor’s report indicated that the 2nd Plaintiff would need a wheelchair at the costs of Kshs.50,000/- which shall require replacement thrice or four times during his lifetime. That he may also require clutches that costs approximately Kshs.5,000/- so he urged the court to award Kshs.200,000/- for wheelchair and Kshs.5,000/- for clutches. 114. The doctor indicated that with proper physiotherapy, he may be able to regain minimal power that will enable him to ambulate with crutches. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 16

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115. This particular claim is proven and at 4 wheel chairs at Kshs. 50,000 each and Kshs. 5,000 for clutches, I award Kshs. 205,000 under these items. 116. For a personal assistant, he submitted that the 2nd Plaintiff is now 35 years and expected life expectancy according to WHO is 65 years hence a multiplicand of 30 years. The wage for a personal assistant is Kshs.20,000/- hence he prayed for Kshs.7,200,000/- as total amount for personal assistant. 117. This head of damages ought to be guided by Regulation of Wages (General) (Amendment) Order, 2024 which came into force on 1st November 2024, which puts the minimum wage for a house servant at 14,866.92 (Nanyuki the place of residence being a Municipality). Damages under this head would translate to 14,866.92*12*30= Kshs.5,352,091.20 118. Counsel submitted that the 2nd Plaintiff requires to be on adult diapers and catheters and that although no price was indicated in the medical report, he urged the court to adopt Kshs.3,000/- for catheters every month and Kshs.7,200/- for diapers every month hence amounting to Kshs.2,592,000/- for diapers and Kshs.1,080,000/- for catheters. 119. This claim is backed by a professional opinion of a doctor. The computation by counsel for the 2nd Plaintiff is reasonable and I award Kshs.2,592,000/- for diapers and Kshs.1,080,000/- for catheters. 120. For physiotherapy, counsel submitted that the cost is Kshs.5,000/- per month thereby amounting to Kshs.1,800,000/-. The 2nd Plaintiff was advised to pursue physiotherapy but there was no evidence adduced by him in support of the amount of Kshs.5,000/= per session spent on this service. But according to the medical report, he needs such services. Hence the court can adopt a reasonable figure as was held in Wambua v Nyakundi [2023] (supra). In my considered view, a sum of Kshs. 3,000 per session would suffice. The total being 3,000*12*30= Kshs. 1,080,000. 121. For loss of earning capacity, it was submitted that the 2nd Plaintiff can no longer work and the doctor indicated that he is unlikely to venture into any meaningful economic activity hence loss of earning capacity has been proved. The court was urged to award Kshs.1,000,000/-. Guided by court decision in Achacha v Litunya (Civil Appeal E044 of 2021) [2022] KEHC 3332 (KLR) where an award of Kshs.800,000/- was confirmed upon appeal and Rundell v EWK (minor suing through mother and the next friend WK) Civil Appeal E57 of 2021) (2023) KEHC where an award of Kshs.2,000,000/was confirmed on appeal. 122. It is not disputed that the 2nd Plaintiff was a driver as he stated that he was in the transport business prior to the accident. He actually got involved in the accident while he was hired by the 1st Plaintiff. However, no records were produced of the amount he was making from his transport business. In Wambua v Patel & another (1986) KLR 336 the Court made a finding that the Plaintiff had not kept proper records of what he earned but stated: “ Nevertheless, I am satisfied that he was in the cattle trade and earned his livelihood from that business. A wrong doer must take his victim as he finds him. The Defendants ought not to be heard to say the Plaintiff should be denied his earnings because he did not develop more sophisticated business method” …. But a victim does not lose his remedy in damages because the quantification is difficult.” See also Jacob Ayiga Maruja & Another vs. Simeone Obayo [2005] eKLR for the proposition that the proof of ‘profession of a person must be by production of certificates and that the only way of proving earning is equally the production of documents’. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 17

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123. The Court of Appeal in the case of Mumias Sugar Company Limited Vs. Francis Wanalo [2007] eKLR laid down the principles for the award for loss of earning capacity as follows“ The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.” 124. In Simjam Holdings Limited v Ngari [2025] KEHC 14113 (KLR) the court held that; “ The Respondent suffered 35% permanent incapacity, which tremendously diminished his ability to earn a living in future, and thus deprived him of the capability to earn a living. This court finds that the trial court’s award of Ksh.700,000 under this head was reasonable.” 125. In Jennifer Mathenge v Patrick Muriuki Maina [2020] KEHC 4987 (KLR), the court upheld an award of Kshs. 800,000/- on appeal. 126. The 2nd Plaintiff’s disability was assessed at 75%. The proposed figure of Kshs. 1,000,000 for loss of earning capacity would be reasonable in the circumstances. 127. With respect to special damages, counsel prayed for Kshs.478,385 as the expenses that the 2nd Plaintiff incurred in his treatment based on the receipts attached to his plaint. 128. There is a receipt from national spinal injury referral hospital dated 08/10/2019 for an amount of Kshs.34,500/-, a receipt from Kenyatta hospital for an amount of Kshs.49,470/-, another one from Kenyatta hospital for Kshs.10,000/-, another receipt from Kenyatta hospital is illegible, a receipt from national spinal injury hospital dated 14/05/2019 of Kshs.60,000/-, partially legible receipt from national spinal injury hospital of Kshs.31,500/-, an invoice from Kenyatta hospital of Kshs.59,470/and another invoice from Kenyatta hospital of Kshs.53,745/-. 129. The total proven special damages are at Kshs. 298,685. I award the same. Damages for the Defendants/The Plaintiffs in the counterclaim Despite the Defendants raising a counterclaim and seeking damages described as“ Damages for negligently and illegally endangering the defendants and damages as pleaded in paragraph 13 of the defence”, no evidence at all was led to prove the same and none are thus available to the defendant. 130. In the end and from the foregoing, there shall be judgement for the plaintiffs against the defendants on liability jointly and severally limited to 45% contribution. 131. The quantum of damages flowing from the above analysis is as follows; Damages for 1st Plaintiff https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 18

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Nature of damages. Amount Awarded (Kshs.) Pain and suffering 15,000,000 Cost of wheel chairs 1,320,000 Nursing care 3,924,866.88 Medical follow ups 264,000 Taxi costs 1,056,000 Drugs, catheters, urine bags, diapers 1,584,000 Hydraulic bed and special/mattress 500,000 TOTAL 22,320,866.88 2nd Plaintiff Pain and suffering 5,000,000 Wheel chairs 200,000 Clutches 5,000 Personal Assistant 5,352,091.00 Diapers 2,592,000 Catheters 1,080,000 Physiotherapy 1,080,000 Loss of earning capacity 1,000,000 Special damages 298,685 Total 16,607,776.20 132. The plaintiffs shall have the costs of the suit limited to 45% of the total cost. DATED SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF NOVEMBER 2025 A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18227/eng@2025-11-28 19

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