Kamau v Wathari & another (Civil Suit E117 of 2020) [2025] KEMC 254 (KLR)

herein happened. Thus the plaintifi, by calling the police oficer as his witness, has greatly contradicted his own evidence and that contradiction should be used against him. 4. The burden of proof herein fell on the plaintifi who was alleging to establish each element of the tort of negligence, hence it is for the plaintifi herein to adduce evidence of facts on which he bases his claim. There has to be a duty of care which was breached resulting to loss and damage to the plaintifi. The plaintifi herein therefore has a duty to prove his case on a balance of probabilities that the defendant was so negligent so as to occasion the accident that led to his injuries. However, once the legal burden of proof is discharged by the plaintifi, the evidential burden might have shifted to the defendant to prove his claim of plaintifi’s sole or contributory negligence as pleaded. 5. Sections 107 and 108 of the Evidence Act provides as follows: “ 107 (1) 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. (2) 108. 6. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." In the case of Muruingu Kanoru Jeremiah v Stephen Ungu M’mwarabua [2015] eKLR the superior court held as follows with regard to the burden of proof: “ ....As I have already stated, in law, the burden of proving the claim was the appellant’s including the allegation that the respondent did not pay the sum claimed as agreed; i.e. into the account provided.....The trial magistrate was absolutely correct in so holding and did not shift any legal burden to the appellant.....The appellant was obliged in law to prove that allegation; after the legal adage that he who asserts or alleges must prove.... In the circumstances of this case, the respondent bore no burden of proof whatsoever in relation to the debt claimed. By way of speaking, the shifting of burden of proof would have arisen had the trial court magistrate held that the respondent bore burden to prove that he deposited the sum of Kshs. 98,200/= the debt being claimed herein." 7. I also refer to The Halsbury’s Laws Of England, 4Th Edition, Volume 17, at paras 13 and 14: which describes it thus: “ The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to act; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues." (16) The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12 2

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course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? 8. In this case, both the plaintifi and the defendants were using the road herein, and more specifically at the time of the accident herein. Both therefore owed a duty of care to each other. The evidence adduced herein is not clear on who between the plaintifi or the defendants is to be blamed for the accident herein. 9. I have, however, already found that the evidence of how the accident herein happened is not clear on who to blame. Production of sketch plans as to the point of impact and resting place of the vehicle and the bicycle after the accident and/or skid marks would no doubt have assisted the court to have a clearer view of the scene. See Caroline Ann Njoki Mwangi v Paul Ndungu Muroki(2004) eKLR. 10. From the evidence it is clear that each party was to some extent to blame. As aforestated, the burden of proof is always on the plaintifi, but such proof may shift to the defendant when circumstances demand, like in this case where both parties blame each other. Each has a duty to prove its case against the other on a balance of probability. 11. In the Court of Appeal decision in Civil Appeal No.739 of 2003 Caroline Anne Njoki Mwangi v Paul Ndungu Mwangi,supra, impressively cited by the learned counsel for the defendant, faced with similar circumstances, the Honorable Judges rendered that: ‘I would in the absence of an oficial police sketch map and on knowing who exactly is to blame on this matter and on a balance of probability hold that the parties are indeed equally to blame at the ratio 50% each’. 12. In my considered view, it is not reasonably possible for a court to decide upon opposing and rival evidence tendered by witnesses on both sides herein as to who was to blame for the accident. The investigating oficer, being an independent party would have been of great help to the court only if he could have given a reasonable explanation for his finding of blame on the plaintifi, and backed the same with the relevant evidence such as the sketch map etc. 13. In the premises, it would be prudent and in line with judicial precedent, to come to the findings and conclusion that where there is no concrete evidence to determine who in a motor vehicle accident is to blame between two parties both should be held equally to blame. See Civil Appeal No. 521 Of 2007 In Commercial Transporters Ltd v Registered Trustees Of The Catholic Archdiocese Of Mombasa (2015) eKLR. 14. Accordingly, I conclude that both parties shall be held equally to blame at 50% basis. Having so decided, it therefore follows that the consequential damages arising from the accident, and the plaintifis damages from the injuries, but subject to the proof herein, shall likewise be apportioned in the manner stated above, on a 50:50 basis. General damages for pain and sufiering 15. Both sides herein agree that the plaintifi sustained the injuries he pleaded. The medical evidence produced herein confirms that the Plaintifi indeed sustained the injuries alleged in the plaint. There were authorities cited by both counsels herein. General damages are however damages at large whose purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has repeatedly been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation. Awards ought to be reasonable and must be assessed with moderation bearing in mind that large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12 3

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comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including infiation (see Tayab v Kinanu[1983] KLR 114 and WEST (H) & Son Ltd v Shepherd[1964] AC 326, 345). Damages must therefore be within limits set by decided cases and also within the limits that the Kenyan economy can afiord (see Nyota Tissue Products v Lawrence Kuboka & 4 Others[2020] eKLR) 16. There is however no one best formula of assessing damages in injury claims. Such assessment is an act of art rather than science. In HCCC NO. 752/1993 Mutinda Matheka v Gulam Yusufthat was cited by Warsame, Ag. J (as he then was) in Jenipher Milay O. Okukuv Kenya Bus Services Ltd(KisumuHC Misc. Civil Appl.172/2001), Wambilyangah J., held that the court will essentially consider the nature of the injuries sufiered, the period of recuperation etc. 1 17. I am also aware of the other guiding principles in awarding general damages such as: - damages should be within the limits set out by decided cases, within my pecuniary jurisdiction, within the limits that the Kenyan economy can afiord and must be commensurate to the kind of injury, and extent of pain and sufiering. 18. Guided by the above principles, I find the decisions in Joseph Njuguna Gachie v Jacinta Kavuu Kyengo[2019] e KLR and Ndungu & Another v Munene[2022] KEHC 3023 (KLR) that were cited by the learned counsel for the plaintifi to be the most relevant herein. Kshs. 600,000/= was awarded to the victim in the former case therein in in 2019. While Kshs. 700,000/- was awarded in the latter case in 2023. I do therefore award the plaintifi herein Kshs. 950,000/-, having factored in passage of time and infiation since the case was decided, and subject to the plaintifi’s 50% contribution. Loss of Earnings 19. As to damages for loss of earnings or income, I do agree that apart from the pleadings, there was no evidence tendered to disprove that the plaintifi was not a casual worker as pleaded and stated in his evidence. The medical evidence herein is however that he was incapacitated for about 3 months only and I shall therefore use the minimum wage for a general worker as submitted by the learned counsel for the plaintifi and award him Kshs. 13,2572.90 x 3 = Kshs. 40,718.70/-. 20. The Court of Appeal in the case of KARANI v NCHEDU (1995-1998)1 EA 87 stated: The claim for loss of earning is a special damage. It must be pleaded and proved. That is the law. The plaintifi gave some evidence in which she said she used to operate a kiosk of some sort at Kasarani, near Nairobi, from which she made Kshs. 50,000/= per month. 21. The Court of Appeal in S J v Francesco Di Nello & Another[2015] eKLR while making a distinction between loss of future earnings and loss of earning capacity stated that: “ Claims under the heads of loss of future earnings and loss of earning capacity are distinctively difierent. Loss of income which may be defined as real or 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 evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairleyv John Thomson Ltd [1973] 2 Lloyd’s Law Reports40 at pg. 14 wherein Lord Denning M.R. said as follows: It is important to realize that there is a difierence between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of 1 See Simon Tavetav Mercy Mutitu Njeru[2014] eKLR, as cited in James Okongov Elmat Sagwe Ogega[2021] eKLR https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12 4

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future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. 22. The court proceeded to state that: The correct position as in the Fairley case (supra) was restated by this court in the case of Cecilia Mwangi & Another v Ruth W. Mwangi CA No. 251 of 1996 as hereunder: “ Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. “In the authority of Butler v Butler [1984] KLR 225, the issue of awarding damages for loss of earning capacity was carefully considered and Chesoni Ag. JA (as he then was) said: “Whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading … Once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a name if damages are payable.” Costs of Future Medication/ Treatment 23. As to Costs of Future Medical expenses, the issue herein is whether the claim for future medical expenses is awardable. The issue of future medical expenses was considered in the case of Tracom Limited & Anotherv Hassan Mohamed Adan[2009] eKLR where the Court of Appeal pronounced stated as follows: “ We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: ‘And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.’ We understand that to mean that once the plaintifi pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintifi may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require. 24. However, the Court of Appeal in Kenya Power & Lighting Company Limited v AMK(suing As The Mother And Next Friend Of JMK- Minor)[2021] KECA 52 (KLR) (8 October 2021) (Judgment) stated as follows: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12 5

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25. 28. As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore sufices to give an estimate as the respondents did during their testimony. 32. On the challenge to the award on future medical expenses which the appellant says had not been specifically pleaded and proved, this does not turn on much as the respondent had in their plaint stated that the minor requires additional and medical care. In our view, the functional prosthesis (artificial limbs) and their maintenance costs are covered under that prayer and as held in Tracom Limited & another v Hasssan Mohamed Adan (supra) it was not mandatory for the respondent to delve into detail of the future expenses at that stage thus that ground of appeal fails. Similarly, in the case of, Forwarding Company Limited & Anotherv Kisilu; Gladwell(Third Party) [2022] KECA 96 (KLR) (4 February 2022) (Judgment) the Court of Appeal in overturning the decision of the High Court declining to award future medical expenses on the ground that the plaintifi had pleaded generally on the same but had failed to attach a specific figure thus lacked specificity, stated as follows: “ 62. 26. In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally afiect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances." In the instant case, the plaintifi did not plead the amount he claims as cost of future medical expenses. There was further no evidence adduced proving the need of that future medication or the estimated cost. No wonder learned counsel for the plaintifi did not bother submitting on the same. The same is therefore unawardable. Special damages 27. It is now a cardinal principle of the law that special damages must be pleaded and specifically proved, before they can be awarded by the Court. In HANN v SINGH (1985) eKLR, the Learned Judges of Appeal Kneller, Nyarangi JJA, and Chesoni Ag. JA, 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." 28. A sum of Kshs.21,690/= was specifically pleaded and sought for in Paragraph 5 and prayer (d) of the Plaint. However, the plaintifi only submitted receipts and invoice ampunting to Kshs, 20,000/- being the costs of medical report,, Kshs. 840/- being the treatment ex[enses and Kshs550/- being the costs of the motor vehicle search. I thus find that the plaintifi has only been able to prove Kshs. 21,390/- which I hereby award, subject to the 50% contribution as apportioned herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12 6

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Conclusion and Disposal Orders 29. Judgment is hereby therefore entered for the plaintifi against the defendants herein as follows: i. General damages for pain and sufiering of Kshs. 475,000/= ii. Damages for Loss of Earning: Kshs. 20,359.35/= iii. Special damages of Kshs. 10,695/= iv. Costs of the suit and interest at court rates. DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS 12TH DAY OF JUNE 2025 ALOYCE-PETER-NDEGE. SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintifi's counsel: Kurere h/b Njuguna Defence counsel: Chemitai Plaintifi: N/A 1st Defendant: N/A 2nd Defendant: N/A Chemitai: Praying for 30 days stay Kurere: I do agree CT: 30 days stay granted https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12 7

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