Sichangi v Sakwa (Civil Case E021 of 2025) [2025] KEMC 387 (KLR)

Despite being duly served with the Plaint and the Summons to Enter Appearance, the Defendant neither entered appearance nor filed a Statement of Defence. Consequently, on 26 th February 2025, an interlocutory judgment was entered against the Defendant hence this matter proceeded by way of formal proof. Plaintiff’s Case PW1 Oscar Wafula Sichangi adopted his witness statement dated 09 th January 2025 as his evidence in chief. He produced the documents listed in his list of documents dated 09th January 2025 as exhibits. Defendant’s Case The Defendant neither entered appearance nor filed a Statement of Defence. ISSUES FOR DETERMINATION This court has duly considered the evidence placed before this court and the pleadings filed by the Plaintiff. There is uncontroverted evidence, as evidenced by the police abstract (Pexh.2) herein, that the accident herein occurred on the date set out in the Plaint. There is also no dispute as evidenced by the copy of records (Pexh.3) that motor vehicle registration number KBJ 138 N was owned by the Defendant at the time of the accident. It is also given that the Plaintiff sustained injuries as a result of the accident herein. Be that as it may, it is not lost to this court that even though this suit proceeded by way of formal proof, the Plaintiff still bears the duty to prove his case to the required standard. In Kirugi and Another Vs Kabiya & 3 Others (1987) KLR 347, the Court of Appeal held that; Bungoma CMC CC. No. E021 of 2025 2 of 7 Judgment

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“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.” It is against this backdrop that this court holds and finds that the only issues that commend to this court for determination are:a) Liability b) Quantum Liability The Plaintiff attributed the cause of the accident herein to the Defendant’s negligence as set out in paragraph 3 of the Plaint herein. The Plaintiff, being a pillion passenger, was neither in control of the motor vehicle registration number KBJ 138 N nor motor cycle registration number KMFP 785 K, hence he could not have done anything to prevent the occurrence of the accident herein. PW1’s version of events on how the accident herein occurred was not controverted by the Defendant. In the absence of evidence to the contrary, this court finds no reason to disbelieve PW1’s version of events on how the accident herein occurred. It is against this background that this court finds and holds the Defendant 100% liable for the occurrence of the accident herein. Quantum of Damages (a) General Damages for pain and suffering The Plaintiff’s P3 form dated 04th June 2024(Pexh. 1) shows that the Plaintiff sustained the following injuries: a) Bruises to the right elbow b) Bruises to the right knee Bungoma CMC CC. No. E021 of 2025 3 of 7 Judgment

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c) Swollen right ankle joint The degree of the injuries set out above was assessed as harm. The injuries above are at variance with the injuries set out in the Plaint and the medical report (Pexh.6) herein. No explanation was given for that variance. In the circumstances this court will only rely on the injuries in the P3 form (P3 form being the primary document) in determining quantum in this matter. (See Thuku v Musembi & another (Civil Appeal E143 of 2023) [2024] KEHC 8211 (KLR) . The foregoing shows that the Plaintiff only suffered moderate soft tissue injuries. The Plaintiff did not file written submissions as directed by this court. It is settled in this jurisdiction that comparable injuries attract comparable awards. In Maore Vs Mwenda [2004] eKLR where the respondent sustained injuries involving; injury to the right shoulder, injury to the chest, Injury to the back, and injury to the left leg with haematoma, the Court of Appeal allowed the appeal and entered judgment for Kshs.100,000/= reducing the award from Kshs. 300,000/=. In FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, an award of Kshs 60,000/- was enhanced to Kshs 100,000/- where the minor had sustained soft tissue injuries, which were blunt object injury to the head, neck, limbs thorax and abdomen. In Makami v Obong’o (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR) the respondent sustained soft tissue injuries involving marked swelling and bruises on the forehead, marked neck and chest pain and cut Bungoma CMC CC. No. E021 of 2025 4 of 7 Judgment

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wound on the right elbow joint and right knee joint. He was treated as an outpatient. The court made an award of Kshs 80,000/=. The authorities above show that for the injuries comparable to injuries sustained by the Plaintiff herein, courts make awards ranging from Kshs. 80,000/= to Kshs. 100,000/=. Guided by the authorities cited above, and given that the Plaintiff was treated as an inpatient, this court is of the considered view that an award of Kshs. 100,000/= under this head would be sufficient compensation in the circumstances. (b) Future Medical Expenses The Plaintiff prayed for general damages for future medical expenses. The evidence on record did not support this prayer, therefore, this prayer is declined. (c) Special Damages The Plaintiff pleaded at paragraph 4 of the Plaint herein for Special Damages of Kshs. 550/= for NTSA search, and Kshs. 30,000/= legal fees for demand notice, all totaling to Kshs. 30,550/=. It is the law that Special Damages must be pleaded and strictly proved. The Plaintiff placed before this court receipts to prove the expenditure of Kshs. 30,550/= This court is of the considered view that the claim for Kshs. 30,000/= being legal fees for demand notice issued before the filing of this suit cannot be properly claimed as Special Damage. Such fees can only be claimed during the assessment of costs of this suit. The position regarding the claim for legal fees for demand notice herein taken by this court is buttressed by the holding by PJ Otieno J. in Kwendo v Bungoma CMC CC. No. E021 of 2025 5 of 7 Judgment

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Attorney General & another (Civil Appeal 11 of 2019) [2024] KEHC 1530 (KLR) where the learned judged expressed himself thus: ‘…The Court however finds that demand letter is a claim for legal fees that is awardable at taxation not in the suit as special damages. That sum is disallowed…’ For the reasons above, this court disallows the claim for Kshs. 30,000/= for legal fees for demand notice. In the circumstances, this court holds and finds that the Plaintiff pleaded and proved Special Damages of Kshs. 550/=. DISPOSITION The upshot of the foregoing is that judgment is hereby entered jointly and severally against the Defendants in the following terms:(a) Liability – 100% in favour of the Plaintiff (b)General damages - Kshs. 100,000/= (c) Special Damages - Kshs. 550/= Net Award - Kshs. 100,550/= The General Damages will accrue interest at court rate from the date of this judgment till payment in full while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. The Plaintiff will have the costs of this suit. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 22 nd day of May 2025 T.O. OMONO RESIDENT MAGISTRATE Bungoma CMC CC. No. E021 of 2025 6 of 7 Judgment

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In the presence of: Plaintiff C/A: Albert Bungoma CMC CC. No. E021 of 2025 7 of 7 Judgment

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