Ang’anya v Okinyi (Civil Case E197 of 2025) [2025] KEMC 415 (KLR)

4. The Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served with the Summons to Enter Appearance and the Plaint. In the circumstances, this matter proceeded by way of formal proof. EVIDENCE 5. The evidence placed before this court is summarized below.On 17th March 2026, parties herein recorded a consent to the effect that the documents filed herein by the parties be adopted as the respective parties’ evidence. 6. Plaintiff’s case 7. PW1 Tecla Machio Ang’anya adopted her witness statement dated 09th May 2025 as her evidence in chief. Her testimony was that on the date of the incident, the Defendant’s motor vehicle knocked the motorcycle she had boarded from behind, causing her to sustain bodily injuries. 8. She also produced all the documents listed in her list of documents herein as exhibits. She added that, arising from the accident, she lost one tooth, which was to be replaced at a cost of Kshs. 75,000/=. ISSUES FOR DETERMINATION 9. This court has duly considered the pleadings, the evidence on record as well as the Plaintiff’s written submissions. 10. It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: ‘’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.’’

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11. Courts in this jurisdiction have also rendered themselves on the question of the burden of proof and the legal burden placed on the Plaintiff to prove their case to the required standards, even in instances where the Defendant has failed to make an appearance, as can be gleaned from the authorities hereunder. 12. In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, it was stated that a Court should not take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. 13. Similarly, in Kirugi and Another Vs Kabiya & 3 Others (1987) KLR 347, the Court of Appeal held that; “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.” 14. In Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal held that: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”

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15. The common thread running through the authorities above is that the Plaintiff, even in the absence of evidence to the contrary by the Defendant, is duty-bound to prove his case on a balance of probabilities. 16. Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved her case on a balance of probabilities. 17. The police abstract dated 06th March 2025 shows that the accident herein involved an unknown motorcycle and motor vehicle registration number KDK 143 S owned by the Defendant. The Motor Vehicle Copy of Records issued on 21st February 2025 corroborated the entry in the police abstract herein on the ownership of motor vehicle registration number KDK 143 S. 18. In addition to the above, the police abstract on record shows that the accident herein was reported at Bungoma Police Station vide OB. No. 69/04/03/2025, and that, arising from the accident, the Plaintiff, who was a pillion passenger, was injured. 19. In the absence of any evidence to controvert the contents of the police abstract on record, it follows that the accident herein occurred. 20. The Plaintiff’s outpatient card from Bungoma County Referral Hospital dated 04th March 2025, the P3 form dated 04 th March 2025, and the medical report dated 10th March 2025 by Dr. Mulianga Ekesa show that the Plaintiff was injured as a result of the accident herein. 21. Given the foregoing, this court is of the considered view that the only issues for determination are liability and quantum. Liability 22. The evidence on record shows that the Plaintiff was a pillion passenger at the time of the accident. Therefore, she was neither in control of the motorcycle nor the motor vehicle that was involved in the accident. 23. It goes without saying that the motorcycle and the motor vehicle owed the Plaintiff a duty of care to ensure that the Plaintiff reached her

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destination safely. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 24. The liability of a passenger in an accident is well settled in this jurisdiction. In Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR the court held; The only time a passenger maybe held to be liable in my view, is when for instance it is shown that he did not fasten his seat belt or was trying to jump out of the vehicle when it has not stopped. That way, some contributory negligence could be attached to him. 25. The authority above shows that in the absence of evidence to prove negligence on the part of a passenger, a passenger cannot be held liable for the causation of an accident. (See also Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). 26. There is no evidence on record to suggest that the Plaintiff acted negligently, leading to the occurrence of the accident. 27. In the circumstances, this court finds and holds the Defendant 100% liable for the occurrence of the accident. Quantum of Damages (a) General Damages for pain and suffering 28. This court has duly considered the contents of the Plaintiff’s outpatient card from Bungoma County Referral Hospital dated 04 th March 2025, the P3 form dated 04th March 2025, and the medical report dated 10 th March 2025 by Dr. Mulianga Ekesa. 29. Whereas the Plaintiff testified that she lost one tooth, her testimony was not supported by the medical evidence on record. The medical

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evidence on record shows that her upper molar tooth was simply fractured, not lost. 30. Given the above, this court finds and holds that, arising from the accident herein, the Plaintiff sustained the following injuries: a) Multiple soft tissue injuries b) Psychological trauma c) Fracture of the upper molar tooth 31. It is well settled in this jurisdiction that the assessment of damages must take into account the principle in the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR that comparable injuries should be compensated by comparable awards. 32. In Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR, where Nambuye, J. (as she then was) listed the following principles on assessment of damages: a) Damages should not be inordinately too high or too low b) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. d) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 33. This court has duly considered the guidelines in the authorities above, as well as the Plaintiff’s written submissions on quantum. 34. The Plaintiff submitted that an award of Kshs. 800,000/= was sufficient under this head. The authority relied upon by the Plaintiff for an award of Kshs. 800,000/= is not applicable in this case since the Plaintiff in that authority suffered severe injuries than the ones suffered by the Plaintiff in this case.

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35. The injuries suffered by the Plaintiff are almost similar to the injuries sustained by Plaintiffs in the cases below. 36. In Peter Njuguna Vs Francis Njuguna Njoroge [2015] eKLR , the court made an award of Kshs. 230,000/= where the Plaintiff sustained bruises on the occipital region of the scalp, deep cut on the forehead, bruises on the chest and lower back, bruises on the right elbow, bruises on both hands, tender left knee joint, and a broken tooth. 37. In Baloch Faisal & another v Elloy Kawira Nthiiri [2019] eKLR, the Court made an award of Kshs.200,000/- for injuries which included soft tissue injuries to the head, both knees, chest, back, and injury to upper incisor teeth. 38. In Jelle v Kitsao (Civil Appeal E152 of 2023) [2025] KEHC 3577 (KLR), the Appellant sustained bruises and abrasions to the nose, scalp, left knee, and right leg. He also lost 2 upper teeth. The court made an award of Kshs. 250,000/=. 39. Guided by the authorities above and particularly the Baloch Faisal case (supra), this court is of the considered view that an award of Kshs. 250,000/= under this head is reasonable compensation for the injuries sustained by the Plaintiff in this case. (b) Future Medical Expenses 40. It is well settled in this jurisdiction that a claim for future medical expenses must be pleaded and proved before the same is awarded. 41. The Plaintiff pleaded in paragraph 5 of her Plaint that she needed between Kshs. 50,000/= - Kshs. 75,000/= being future medical cost for anti-inflammatory agents, psychosocial support, and tooth filling or replacement. 42. The medical report dated 10th March 2025 by Dr. Ekesa corroborated the averments in paragraph 5 of her Plaint. Dr. Ekesa’s evidence on the Plaintiff’s future medical expenses is expert evidence.

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43. The law in this jurisdiction is that expert evidence is not necessarily binding, as was held in Shah and Another vs. Shah and Others [2003] 1 EA 290: “The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” 44. The Court of Appeal, on its part, in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: “… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 45. In Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."

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46. The foregoing shows that the court is not required to take an expert report hook, line, and sinker. If there exist reasons for the report to be ignored, a court is at liberty to ignore such a report. 47. A reading of the Plaintiff’s witness statement adopted as her evidence in chief and paragraph 6 of her Plaint shows that the Plaintiff only prayed for an award of Kshs. 75,000/= for tooth filling or replacement. The Plaintiff did not testify whether she needed psychosocial support or if the claimed sum of Kshs. 75,000/= was to take care of her inflammatory agents. 48. In view of the above, this court is of the considered view that this is a proper case for disregarding the expert evidence on record on the Plaintiff’s need for psychosocial support and inflammatory agents. Therefore, it is this court’s finding that the only claim for future medical expenses pleaded and proved by the Plaintiff is the claim for tooth filling or replacement. 49. The Plaintiff pleaded for Kshs. 75,000/= for tooth filling or replacement. This court has already made a finding that there is no medical evidence on record that the Plaintiff lost her tooth. Further, there is no evidence on record on whether or not tooth filling will put the Plaintiff in the position she was before the occurrence of the accident herein. 50. This court takes the view that, given the Plaintiff’s tooth was simply fractured, tooth filling is the appropriate remedy. This begs the question of whether the said tooth filling will cost Kshs. 75,000/= pleaded by the Plaintiff. 51. The schedule to the Medical Practitioners and Dentists (Professional Fees) Rules No. 131 of 2016 provides for a minimum of Kshs. 8,000/= and a maximum of Kshs. 9,000/= for the most complex tooth filling. 52. Rule 3 of the said Rules provides thus: 3. Chargeable fees

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(1) The fees specified under the Schedule to these Rules shall be the fees charged by practitioners offering medical or dental services, or both. (2) The fees referred to under paragraph (1) shall be adhered to by all practitioners and institutions registered under the Act, and no practitioner may agree or accept fees above that which is provided under these Rules. 53. Rule 3 reproduced above disallows the charging of medical professional fees above the fees under the schedule to the Rules. 54. The Plaintiff was treated in a public hospital. A public hospital is a health facility registered under the Act referred to in the Rules. There is no indication that the filling of the Plaintiff’s tooth will be done in a health facility not registered under the Act. 55. It is against this background that this court makes an award of Kshs. 9,000/= for filling of the Plaintiff’s fractured tooth. (c)Special Damages 56. The Plaintiff pleaded for special damages of Kshs. 4,760/= as particularized in paragraph 5 of her Plaint. 57. The receipts for specials on record proved the pleaded Special Damages. 58. Consequently, this court finds that the Plaintiff pleaded and proved Special Damages of Kshs. 4,760/=. DETERMINATION 59. Given the foregoing, judgment is entered against the Defendant in the following terms:a. Liability……………………………………….100% b. General Damages…………………...………Kshs. 250,000/= c. Future Medical Expenses…………………..Kshs. 9,000/= d. Special Damages……………………...…….Kshs. 4,760/=

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Total Award…………………………Kshs. 263,760/= 60. The General Damages and the Future Medical expenses will accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 61. The Plaintiff will have the costs of this suit. 62. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 10th day of December 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Plaintiff C/A: Mr. Rioba

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