kemc-2025-00391

4. The Defendants neither entered appearance nor filed a Statement of Defence despite being duly served with the Plaintiff’s pleadings and the Summons to Enter Appearance. 5. Arising from the accident in question, the Plaintiff sustained bodily injuries enumerated in paragraph 6 of the Plaintiff’s Plaint hence this suit. Plaintiff’s Case 6. PW1 Winrose Nasimiyu Juma adopted her witness statement dated 16th January 2025 as her evidence in chief. She also produced all the documents listed in her list of documents dated 16 th January 2025 as exhibits. Defendants’ Case 7. The Defendants neither entered appearance nor filed a Statement of Defence despite being duly served leading to an entry of interlocutory judgment against the Defendants jointly and severally. 8. Consequently, this matter proceeded by way of formal proof. ISSUES FOR DETERMINATION 9. This court has duly considered the evidence placed before this court, the pleadings, submissions, and the authorities relied on by the Plaintiff. 10. Whereas this suit the suit was undefended and the evidence uncontroverted, the Plaintiff obligated to discharge the burden of proof placed on her as was held in Karugi & 3 others vs Kabiya and 3 others (1983) eKLR, where the Court of Appeal held interalia: “The burden on a Plaintiff to prove his case remains the same throughout the case, even though the burden may became easier to discharge where the matter is not validly defended, the Bungoma CMC CC. No. E024 of 2025 2 of 8 Judgment

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burden of proof is not way lessened because this is heard by way of formal proof.” 11. It is undisputed that the accident herein occurred as evidenced by the police abstract (Pexh.1). It is also undisputed as evidenced by the copy of records (Pexh.7) that the 1 st Defendant owned motor vehicle registration number KDC 540 D, and that the 2 nd Defendant was driving the said motor vehicle at the time of the accident herein. 12. There is no evidence on record to controvert the Plaintiff’s averment that at the time of the accident herein, the 2 nd Defendant was driving motor vehicle registration number KDC 540 D with the 1st Defendant’s authority. 13. That being the case, in the event this court finds that the 2 nd Defendant caused the accident herein, the 1 st Defendant will be vicariously liable for the 2nd Defendant’s actions. 14. In the circumstances, the issues that commend to this court for determination are:a) Liability b) Quantum Liability 15. PW1 set out the circumstances under which the accident occurred. It was her testimony that motor vehicle registration number KDC 540 D was recklessly and negligently driven by the 2 nd Defendant causing it to veer off the road thereby causing the accident herein. 16. Further, the Plaintiff was not in control of the motor vehicle that caused the accident herein.It is also noteworthy that the 2 nd Defendant was driving a more lethal machine than PW1 at the time of the occurrence of the accident. This court associates itself with the position taken by Aburili, J in Mary Njeri Murigi vs. Peter Macharia & Another [2016] KLR that: Bungoma CMC CC. No. E024 of 2025 3 of 8 Judgment

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“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.” 17. The authority above shows that whoever has under their control a more lethal machine is required to exercise a higher level of care towards other road users. The circumstances of this case show that the 2nd Defendant did not exercise a higher level of care towards other road users as expected of him. Therefore, the 2nd Defendant was to blame for the occurrence of the accident herein. 18. It is against this background that this court finds the Defendants jointly and severally 100% liable for the occurrence of the accident herein. Quantum of Damages (a) 19. General Damages for pain and suffering The Plaintiff’s Plaint, P3 form dated 02nd December 2024 (Pexh.5), and the medical report dated 02nd December 2024 (Pexh. 3 ) when read together show that the Plaintiff sustained moderate soft tissue injuries and psychological trauma as a result of the accident herein. The said injuries were assessed as harm. The Plaintiff was also treated as an outpatient. 20. This court has duly considered the submissions and authorities relied on by the Plaintiff on quantum. Those authorities refer to Plaintiffs who sustained more serious injuries than the ones sustained by the Plaintiff herein. 21. In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore vs Geoffrey Mwenda [2004] eKLR where the Court of Appeal stated as follows: “Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again Bungoma CMC CC. No. E024 of 2025 4 of 8 Judgment

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that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 22. The injuries sustained by the Plaintiff herein were almost similar with the injuries sustained by the Plaintiff in FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, where 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. 23. 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 wound on the right elbow joint and right knee joint. He was treated as an outpatient. The court set aside an award of Kshs 100,000/= and substituted it with an award of Kshs 80,000/= for general damages 24. The foregoing shows that awards for moderate soft tissue injuries range between Kshs. 80,000/= and Kshs. 100,000/=. 25. Guided by the authorities cited above, and considering the fact that the Plaintiff was treated as an outpatient, this court is of the view that an award of Kshs. 100,000/= under this head would be sufficient compensation. (b) 26. Future medical expenses The Court of Appeal in Tracom Limited & Another –vs- Hasssan Mohamed Adan [2009] eKLR stated as follows regarding claims for future medical expenses: “…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 Bungoma CMC CC. No. E024 of 2025 5 of 8 Judgment

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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 thereof is to be led and the court is to make an award in respect thereof...” We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff 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…” 27. The Plaintiff pleaded for future medical expenses in her Plaint. The medical report shows that the Plaintiff needs anti-inflammatory agents and psychosocial support. The Plaintiff testified that she was still experiencing chest pains as a result of the accident herein. 28. The foregoing shows that the Plaintiff pleaded and proved the need for future medical expenses. 29. Having considered the nature of injuries sustained by the Plaintiff, and the current health complaints by the Plaintiff, it is this Bungoma CMC CC. No. E024 of 2025 6 of 8 Judgment

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court’s considered view that an award of Kshs. 20,000/= will be sufficient compensation under this head. (c) 30. Special Damages The Plaintiff pleaded at paragraph 6 of the Plaint Special Damages of Kshs. 4,000/= for the medical report, and Kshs. 550/= for the copy of records. 31. The Plaintiff produced a receipt for Kshs. 550/= for the copy of records (Pexh.6) and a receipt for Kshs. 4,000/= (Pexh.4(2) for the medical report. 32. Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 4,550/=. DISPOSITION 33. 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) Future medical expenses - Kshs. 20,000/= (d) Special Damages - Kshs. 4,550/= Net Award 34. -Kshs. 124,550/= The General Damages and future medical expenses 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. 35. The Plaintiff will have the costs of this suit. 36. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 25 th day of March 2025 Bungoma CMC CC. No. E024 of 2025 7 of 8 Judgment

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T.O. OMONO RESIDENT MAGISTRATE In the presence of: Wanyonyi h/b for Onchiri for the Plaintiff C/A: Mercy Kiboi Bungoma CMC CC. No. E024 of 2025 8 of 8 Judgment

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