Nthiga v Njage

the tuk-tuk was hit, it was pushed off the road; it collided with a motor vehicle registration number KBJ 820B, which was parked on the left side of the road. The defendant’s motor vehicle proceeded and hit another tuk tuk registration number KTWC 072Y which was also pushed to the side of the road. Passengers in both tuk-tuks were injured, and one succumbed to the injuries. The plaintiff herein was one of the victims of the accident. 5. The defendant was later charged at the Kwale Magistrates’ Court in Traffic Case No. E353 of 2024 for the accident with the offence of causing death by dangerous driving, he was convicted and sentenced to a fine of KShs 30,000/= in default to serve twelve months’ imprisonment (the default sentence was wrong though). 6. The plaintiff’s evidence was that he was riding in the tuk-tuk when it was hit from behind. He later learnt that the vehicle that hit them belonged to the defendant. 7. Learned counsels for both parties filed submissions urging their respective cases. 8. I have considered the evidence by the plaintiff and the submissions by learned counsels for the parties. The issues for determination are whether or not the plaintiff has proved his case on a balance of probabilities that the defendant is liable for the accident and the measure of damages that would be adequate compensation for the plaintiff’s injuries. Liability 9. The plaintiff has to prove his case on a balance of probability even though the defendant did not offer any evidence at the trial to counter what he offered. This is because the burden of proof is on whoever alleges, as is provided for under section 107 of the Evidence Act (Cap. 80) Laws of Kenya that: “ (1) (2) 10. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” That burden is not any lesser because the defendant did not offer evidence at the trial or even enter an appearance, as was held by the Court of Appeal, Hancox, J.A. (as he then was) in the case of Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR) that: “ Neither can I agree with Mr Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.” 11. The advantage that the plaintiff enjoys in such a case is that if the evidence is admissible and reliable, then it is easily believable by the court (see for instance in Interchemie E. A. Limited Vs Nakuru Veterinary Centre Limited [2001] KEHC 618 (KLR). 12. In this case, the plaintiff gave evidence that on 11th December 2023, along Beach road at Kazi Kazi area, a tuk tuk registration number KTWC 441X in which he was travelling as a passenger was involved in a road traffic accident with motor vehicle registration number KBJ 820B, a BMW owned by the defendant. This evidence was supported by the evidence of the investigating officer, PW 1. 13. The plaintiff’s evidence on how the accident occurred, as stated above, and that the defendant had been charged in court for causing death by dangerous driving and convicted, is uncontroverted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 2

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14. The Court of Appeal, while considering a case of a rear-end collision in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) stated thus: “ The trial court found that the appellant was liable for the rear-end collision, as the appellant admitted to hitting the respondent’s vehicle. Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed the burden on the appellant to prove that the collision was not due to his negligence.” 15. From the above holding, it is apparent that the plaintiff, having tendered evidence to show that the defendant’s motor vehicle rammed into the tuk tuk from the rear, the evidential burden shifted to the defendant to rebut the presumption that the rear-end collision of his motor vehicle with the tuk tuk in which the plaintiff was travelling was not due to his negligence. No evidence was tendered for the defendant, and therefore the presumption remains. 16. I am satisfied from this evidence that the defendant’s vehicle rammed into the tuk tuk from the rear, and there being no explanation of why that happened, then there is no other explanation other than that the defendant was negligent in his manner of driving. I therefore find the defendant wholly liable for the accident. Assessment of damages 17. On the amount of damages that would be adequate compensation for the plaintiff, the starting point is the injuries sustained by the plaintiff. 18. The plaintiff testified that he suffered severe injuries following the accident, and he was taken to the hospital by Good Samaritans. He had lost consciousness at the time. He has produced various documents, namely a case summary dated 18th January 2024, a patient release form dated 24th December 2024, a charge sheet dated 24th December 2024, and a medical examination report (P3) form as evidence that he was treated at Coast General Teaching and Referral Hospital, where he was admitted from 13th December 2023 and discharged on 24th December 2023. 19. In the plaint, he pleaded the injuries as: 20. 21. a. 1st thoracic spine burst fracture b. Spinal cord injury leading to paraplegia (paralysis of lower limbs). Two medical reports were produced in evidence on the extent of injuries sustained by the plaintiff. The first one, dated 18th January 2024 by Dr. Darius Wambua Kiema indicates the injuries sustained as a. 1st Thoracic spine bust fracture. b. Spinal Cord Injury leading to paraplegia (paralysis of lower limbs). At the time of examination, the plaintiff was wheelchair bound with a urine catheter and spine brace. The doctor’s opinion was that the injuries had led to: a. Paraplegia or paralysis of lower limbs. b. Loss of bladder and bowel control. c. Loss of independence and loss of ability to work and earn a living. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 3

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22. The doctor estimated future medical expenses as follows: a. Purchase of air mattress estimated at KShs 20,000/= replaceable every two years. b. Servicing of wheel chair estimated at KShs 5,000/= per year and replacement every 7 years at a cost of KShs 25,000/=. c. Sanitary items – catheters, diapers, among others, estimated at KShs 5,000/= per month. d. Painkillers and nerve care medication estimated at KShs 4,000/= per month for at least six months. e. Physiotherapy sessions estimated at KShs 650/= at CGT & RH for 60 sessions totaling KShs 39,000/=. 23. The doctor’s prognosis was that the permanent incapacity from the injury was estimated at 100%. 24. The other report is from Dr. Udayan R. Sheth dated 6th September 2024, some seven months after the first one by Dr. Kiema. Dr. Udayan R. Sheth. The findings by Dr. Udayan Sheth on the injuries sustained by the plaintiff and the prognosis are basically similar to those of Dr. Kiema, that the plaintiff’s permanent incapacity was at 100%. 25. I will now consider the various heads of damages pleaded by the plaintiff. General damages for pain, suffering and loss of amenities 26. The plaintiff proposed KShs 45,000,000/= as general damages for pain, suffering, and loss of amenities. I think this figure has just been thrown around without any justification. All the same, the plaintiff has provided two authorities for the court’s consideration. 27. In Nancy Oseko v Board Of Governors Masai Girls High School [2011] KEHC 1697 (KLR) the plaintiff sustained the following injuries: a. Chest injury with accumulation of blood in the chest; b. Head compression fracture of the thoracic spine no 12; c. Loss of sensation from the level T-12 downwards. d. Loss of motor function from same level downwards; e. Loss of control of urine and stool. The plaintiff underwent an operation of the spine where metals were fixed to stabilize the spine, an open chest operation to remove blood; underwent physiotherapy, occupational therapy; ambulating her on a wheelchair. The plaintiff developed bed sores which were healed, has to use medication to evacuate stool. The Doctor opined that she had permanent loss of the following functions; a. Inability to walk. She has been confined to a wheel chair for life and a paraplegic and need confined to a wheelchair for life and was a lapel all her life. b. Inability to control stool. c. Inability to control urine, she was fitted with a catheter rundown, and urine bag, uses diapers or napkins. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 4

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d. Ability to engage in sexual life in future is medical. Though she can conceive, delivery would be by caesarian section. e. Is affected psychologically- if she does not adjust she may never engage in any gainful employment. f. Predisposed to recurrent chest and urinary tract infections and infections due to the nature of her injuries, she requires frequent check-ups. g. She requires a special bed that can be turned by a hydraulic or electronic system and a special mattress. h. Regular follow-up as an outpatient for life on a three-monthly basis. The plaintiff was awarded general damages for pain and suffering of KShs 2.5 million because the effects of those injuries were dire. 28. In Hemal-Kiran Pindolia Suing thro’ guardian and husband Pindolia Hemal Babu v Martin Muturi Karugu & 3 others [2019] KEHC 5049 (KLR) the injuries sustained by the plaintiff as follows, a. Parietal bleeding of the brain diagnosed as brain oedema b. Fracture of the mandibular c. Fracture of the left clavicle d. Complete loss of use of limbs e. Complete loss of neurological functions f. Glasgow coma g. Diffuse axonal injury of the brain One of her medical reports made a prognosis of her condition as follows: “ Mrs. Hemakiran has lost her expectancy of a good and happy life. She cannot partake in any human activities and has to watch silently, the misery caused by her state to her loved ones. At present, she cannot do anything to relieve her pain or discomfort- what does she do if she gets an itch anywhere on her body? She understands what is happening, she has emotions, she feels touch, itching, pain, etc. The sensation is there but motor function is missing. With her forced sedentary lifestyle, she has high risk of having a heart attack. Her muscles are wasting away due to non-use and her bones must be getting fragile because of non-use and lack of vitamin D that one gets from sunlight. We do not know what micro-nutrients she lacks as her foods are highly selected. She has very high chance of getting pneumonia and bed sores, and when she gets them (hopefully never) it would be difficult to treat.” For these injuries, the High Court awarded the plaintiff KShs. 8,000,000/= compensation as general damages for pain, suffering, and loss of amenities. 29. It is clearly apparent from the foregoing narrations that the two cases present far more serious injuries than those sustained by the plaintiff herein. Given that in all three cases the victims sustained 100% permanent incapacity, it is apparent that in the cited cases, the pain and suffering were more severe than in the present case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 5

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30. Learned counsel for the defendant proposes a sum of KShs 2,500,000/= under this head. The same is supported by the case of Guardian Bus Services Limited v Njwe [2025] KEHC 2481 (KLR). In that case, the injuries sustained by the respondent included: a. Burst Vertebral Fracture of the Thoracic Spine @ T12 position; b. Blunt head injury which involved the following: i. Damage of the base of the skull which involved the eardrums, c. Dislocated Cervical Spine of the neck; d. Dislocated both shoulder joints; e. Dislocated Lumbar-Sacral Spine of the neck; f. Blunt abdominal injury which involved the visceral organs of the kidneys, intestines and liver; g. Bilateral dislocation of both hip joints. The doctor observed that the Respondent was permanently dependent on Orthopedic Corset Spinal Back support, experiences excruciating pain, cannot move without assistance and has developed paralysis and numbness of the lower limb following the spinal damage. He further observed that the Respondent suffered grievous harm at 85% state of permanent incapacitation. The High Court on appeal upheld the award of KShs 2,000,000/= general damages for pain, suffering, and loss of amenities that was awarded by the lower court. 31. I have looked up the case of Brenda Nyaboke Michira v German International Co-operation Giz [2017] KEHC 452 (KLR) where the plaintiff, a 22-year-old student of law at the University of Nairobi, Kisumu campus, sustained the following injuries following a road traffic accident: i. Complete loss of sensation to the lower limbs ii. Inconsistent with urine and stool, and the use of an indwelling catheter and diapers. iii. Severe weakness and wasting of the upper limb iv. Fractures of cervical vertebrae C5, C6 with cord compression resulting to paraplegia and severe weakness of the lower limbs, incontinence to urine and stool, and upper limbs (muscle power) and laceration on the right hand. v. Six months in hospital rehabilitation, discharge to be dependent on an aide. vi. She is bedridden, vii. 100% permanent disability. The plaintiff was awarded KShs 8,000,000/= general damages for pain, suffering and loss of amenities by the High Court. I find the following authorities cited in the case of Board of Trustees of the Catholic Church of Kenya Diocese of Marsabit v Diba [2022] KEHC 14986 (KLR) most relevant and to have comparable injuries to those sustained by the plaintiff in the case at hand: i. Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, the respondent suffered complete paralysis of the limbs from the waist downwards with the result that she had no voluntary movement of any part of the lower limbs; would never be able to walk or use her lower limbs; had injury https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 6

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to the spinal cord that had disturbed the bladder and bowel function so that she would have to wear diapers which needed to be changed twice daily. Permanent disability in the case was given as 100%. The Court of Appeal reduced the award on general damages from Ksh.4 million to Ksh.3.5 million. ii. Eva Mueni Wambugu v Simon Peter Githae & another [2012] eKLR, the plaintiff suffered fractured ribs on the left chest, 3 ribs with haemopneumothorax, fractured tarsal bones right foot, compressed fracture dislocation of L1 and L2, paralysis of both lower limbs, loss of sensation from the waistline downwards, loss of urine and stool control and the prospects of having a family in future was diminished. Both doctors for the plaintiff and the defendant opined that the plaintiff suffered 100% permanent disability. Asike-Makhandia J. (as he then was) awarded Ksh.3.5 million in general damages. iii. William Wagura Maigua vs. Elbur Flora Limited [2012] eKLR, the plaintiff, a carpenter, suffered paralysis of the limbs as a result of spinal injuries and was unable to use his limbs and had to depend on other people for mobility. He was awarded Ksh.3 million in general damages. iv. Joseph Maganga Kasha v Kenya Power & Lighting Company Ltd [2012] eKLR, the plaintiff sustained very severe and debilitating multiple bone and spinal cord injuries leading to complete paralysis of both lower limbs. These were burst displaced fracture of thoracic spine, wedge compression fracture of lumbar spin and also on the left transverse process, spinal cord and exit nerve compression leading to total paralysis below L1, bone fragments within the spinal canal, urine and stool incontinence. He also sustained erectile dysfunction, fracture of the head of the right and left T12 ribs. Mwongo J. awarded Ksh.3 million in general damages. 32. The awards in the cited cases range between KShs 3 million and KShs 3.5 million. The awards were made between 2012 and 2014, making them more than ten years old. The incidence of inflation over ten years has to be considered. 33. I find the figure proposed by the defendant to be reasonable but slightly lower than what would be adequate compensation as compared to that proposed by the plaintiff. Considering the injuries sustained by the plaintiff, the pain he has to endure for the rest of his life, and doing the best I can and in line with recent trends for paraplegic injuries such as those sustained by the plaintiff herein, I find that an award of KShs 4 million would be adequate compensation for the plaintiff’s pain, suffering, and loss of amenities. 34. I accordingly award the plaintiff KShs 4,000,000/= general damages for pain, suffering and loss of amenities. Loss of future earnings 35. The plaintiff in this case claims that he was working as a mason earning KShs 100,000/=. He did not produce to court any documents of earning to support that assertion. 36. Learned counsel for the defendant submits that under those circumstances the claim is unsubstantiated, speculative, and fails to meet the evidentiary threshold required and must fail. Learned counsel has cited the case of Mumias Sugar Company Ltd v Wanalo [2007] KECA 485 (KLR), where the Court of Appeal extensively discussed the claim for loss of earning capacity as contrasted with loss of future earnings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 7

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37. Learned counsel submits that in the absence of documentary evidence such as pays lips, tax returns, bank statements, or witness testimony corroborating the plaintiff’s alleged income, the claim is not proved and must fail. 38. However, the plaintiff’s evidence that he was in good health and supporting his family of three wives and seven children has not been challenged. I believe that in the natural scheme of things, he must have been earning an income from which he supported his said family. The best I can do in the circumstances is to consider him an unskilled worker earning the basic minimum wage as recommended by the government at the time. According to the Regulation of Wages (General) (Amendment) Order, 2022, which was in force as at 11th December 2023, the minimum wage for an unskilled worker within all former Municipalities in which Kwale County falls was KShs 14,025.40 per month. The plaintiff was aged 51 years at the time. Taking retirement age to be 60 years as is the case in most government and private employment, it means he had an extra working life of about 9 years. Considering the imponderables and vicissitudes of life, I would consider a period of 6 more working years to be fair. In the circumstances, his loss of earnings would work out to be: KShs 14,025.40 x 12 x 6 = KShs 1,009,828.80 Future Medical Expenses 39. The plaintiff claims various future medical expenses as estimated by Dr. Kiema as indicated above. Dr. Udayan Sheth made no comments on some of the estimates for the purchase and replacement of an air mattress, the servicing and replacement of a wheelchair. 40. According to the World Health Organization, Life Expectancy in Kenya for males is 64.4 years as found at https://data.who.int/countries/404. 41. The plaintiff would therefore be expected to live up to the ripe age of 64 years and therefore require the future medical expenses as estimated below: a. Purchase of an air mattress estimated at KShs 20,000/= replaceable every two years. In a span of fourteen years up to the age of sixty-four, that would require seven replacements, making a total of KShs 140,000/=. b. Servicing of a wheelchair estimated at KShs 5,000/= per year and replacement every 7 years at a cost of KShs 25,000/=. This will require replacement twice, making it KShs 50,000/= plus the cost of servicing for 14 years, which is KShs 70,000/=, making a total of KShs 120,000/=. c. Sanitary items – catheters, diapers among others estimated at KShs 5,000/= per month. Dr. Udayan Sheth did not include the cost of diapers when he made his estimate of KShs 3,000/=. I will therefore take the figure provided by Dr. Kiema as the correct one. This makes the total sum for this item to be: KShs 5,000/= x 12 months’ x 14 years = KShs 840,000/= d. Painkillers and nerve care medication estimated at KShs 4,000/= per month for at least six months. This has been overtaken by time. The plaintiff needed to prove by production of purchase receipts that indeed he had been purchasing and using the drugs. e. Physiotherapy sessions estimated at KShs 650/= at CGT & RH for 60 sessions totaling KShs 39,000/=. Dr. Udayan Sheth found that the plaintiff was undergoing home physiotherapy. He did not indicate how much it was costing. I find the proposed charge of KShs 650/= per day https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 8

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for a physiotherapist to be reasonable, and so I would award that figure. In that case, the total remains KShs 39,000/=. f. Hiring a helper/nurse at a cost of KShs 20,000/= per month for 14 years. Whereas it is true that the catheter is changeable once every month, as captured by both doctors, the nurse would not be required on a daily basis. The helper would indeed be required, but the total cost of KShs 20,000/= per month has not been justified through production of any contract to that effect or payment receipts. In the case of Suleiman Mbango v Mboya Wambua & 4 others [2016] KEHC 6630 (KLR)y, the High Court considered the cost of an assistant to be an all-inclusive rate of KShs 300/= per day as reasonable. I am inclined to adopt that figure in which case total cost under this item would be: KShs 300/= x 30 days x 12 months x 14 years = KShs 1,512,000/= The total amount of future medical expenses is therefore KShs 2,651,000/= Loss of consortium 42. The plaintiff prayed for damages for loss of consortium as an independent prayer from that of general damages. He did not however, plead for loss of consortium in the body of the plaint nor did he provide any particulars. He, however stated in his witness statement that he was married to three wives and they had seven children. He stated in his witness statement that he is completely devastated and incapacitated. He is unable to perform his conjugal rights and faces the risk of losing his marriage as a result of his inability to perform sexual intercourse. 43. Learned counsel submits for a sum of KShs 3,000,000/= under this head. He did not provide any authority to support the same. 44. Learned counsel for the respondent submits that the respondent is strongly opposed to an award under this head for the reason that loss of consortium is traditionally a derivative claim brought by the uninjured spouse for the deprivation of companionship, affection, society, and sexual relations arising from the tortious injury to their partner. It is not a head of damage available to the injured party. 45. Indeed, the respondent’s position is supported by a recent Court of Appeal decision in Muriithi v My Beauty Transporters Limited & 2 others [2025] KECA 516 (KLR), where the Court stated thus regarding the issue: “ Regarding loss of consortium, this Court in Kimotho & Others v Vesters & Another (supra) cited the definition of “consortium” in Best v Samuel Fox & Co. Ltd [1951] 2 KB 639 as: “companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state.” In determining whether the claim in respect of loss of consortium was merited, we are persuaded by the decision of Emukule, J. in Mwaura Muiruri v Suera Flowers Limited & Another [2014] eKLR that: “ This claim can only be granted to a spouse of a person who has suffered serious personal injuries which have affected his abilities to provide consortium. A plaintiff who has himself suffered any injuries and as a result is unable to perform his marital duties would be properly compensated under the claim for loss of amenities and not as a claim for loss of consortium. It was the Plaintiff's testimony that since the accident, he had been unable to perform sexual relations with his wife. However, I have carefully perused the medical reports and find that the Doctors who examined the Plaintiff did not find that the injuries sustained by him hindered his ability to fulfill his marital duties in any way. In addition, the Plaintiff did not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 9

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raise any such complaint at the time of examination to enable the doctors assess the same. For this reason, I find that the claim of inability to perform sexual relation has not been proved. I will therefore disregard the Plaintiff's claim under this head.” Whereas the claim for loss of consortium could have been available to the appellant’s spouse had evidence been laid in support thereof, it certainly was not available to the appellant himself. This ground of appeal lacks merit and is disallowed.” 46. I am bound to follow that decision and therefore to agree with learned counsel for the defendant that the claim for loss of consortium is not available to the plaintiff as an independent head of damages. It is subsumed within the general damages for pain, suffering and loss of amenities. Special damages 47. The plaintiff pleaded for a sum of KShs 47,268/= and the defendant has no problem with that amount. The same is awarded as special damages. Determination 48. From the foregoing analysis, the total damages awardable to the plaintiff are as follows: a. General damages KShs 4,000,000/=. b. Loss of future earnings KShs 1,009,828.80 c. Future medical expenses KShs 2,651,000/= d. Special damages KShs 47,268/= Total KShs 7,708,096.80 49. In the final analysis, judgment is entered for the plaintiff against the defendant in the sum of KShs 7,708,096.80/=. 50. The plaintiff shall also get the costs of the suit. Interest is payable at court rates on general damages from the time of this judgment and on special damages from the date of filing suit. No interest is payable on the other sums. 51. Orders accordingly. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, MICROSOFT TEAMS, THIS 21ST DAY OF APRIL 2026 ANDAYI W. F. JUDGE In the presence of: Ms Juma for the plaintiff. N/A for the defendant Ummu: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7481/eng@2026-04-21 10

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