Osundwa v Owino (Civil Case E174 of 2025) [2025] KEMC 435 (KLR)

Statement of Defence. Therefore, this matter proceeded by way of formal proof. Plaintiff’s Case PW1 Gilbert Osundwa testified that on 27th March 2025 while aboard motor vehicle registration number KCV 288 P he was involved in a road traffic accident that caused him to sustain injuries to the head, scalp, chest, back, and abdomen, and that his spleen was ruptured and eventually removed through surgery. He added that his permanent incapacity had been assessed at 45%. It was also his testimony that as a result of the injuries he sustained, he could not continue earning Kshs. 1,500/= per day and Kshs. 70,000/= per month that he used to earn through farming and business. Further, he testified that the injuries he sustained needed him to get the meningococcal vaccine after every two (2) months from Aga Khan Hospital at a cost of Kshs. 5,800/= per dose. He produced all the documents listed in his list of documents dated 25 th April 2025 as exhibits. ANALYSIS & DETERMINATION 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 since the legal burden of proof lies with the person who alleges. The legal position above is codified in section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides which provides as follows: Kitale CMC CC. No. 26 of 2023 Page 2 of 9 Judgment

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‘’Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.’’ In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 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.” The authorities above obligate this court, even in the absence of evidence to controvert the Plaintiff’s case, to determine whether the Plaintiff proved his case on a balance of probabilities. Kitale CMC CC. No. 26 of 2023 Page 3 of 9 Judgment

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This court has duly considered the pleadings, documents, evidence, written submissions, and the authorities placed before this court by the Plaintiff. The ownership of motor vehicle registration number KCV 288 P is not disputed since the copy of motor vehicle records (Pexh.1) shows that the said motor vehicle was owned by the Defendant at the time of the accident (see section 8 of the Traffic Act). The police abstract (Pexh.6) placed before this court shows that a road traffic accident involving the Defendant’s motor vehicle and the Plaintiff on 27 th March 2025 was reported at Bungoma Police Station vide OB. Number 63/02/04/2025. Given the rebuttable presumption of truth of the entries made in a public document by a public official set out in section 38 of the Evidence Act, and in the absence of evidence to the contrary, it follows that the accident herein occurred as reported to the police. It is against this backdrop that this court finds and holds that the only issues up for determination before this court are: a) Liability b) Quantum Liability There is no contest that the Plaintiff was a passenger in motor vehicle registration number KCV 288 P at the time of the accident. The Plaintiff also stated that the accident herein was self-involving. Nothing on record suggests that the Plaintiff failed to act prudently thereby leading to the occurrence of the accident. The liability of a passenger who can not be said to have failed to act prudently before or during the occurrence of an accident is well settled in this jurisdiction. In Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR the court held; Kitale CMC CC. No. 26 of 2023 Page 4 of 9 Judgment

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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. The above authority 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 –VsFrancis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). Be that as it may, the particulars of negligence pleaded by the Plaintiff in his Plaint were largely attributed to the Defendant’s driver who was not a party to this suit. However, there is no evidence on record that at the time of the accident the driver of motor vehicle registration number KCV 288 P was not driving the said motor vehicle with the consent and for the benefit of the Defendant. In the circumstances, the Defendant must be vicariously liable for the actions of his driver. The foregoing inclines to hold and find the Defendant 100% liable for the occurrence of the accident herein. Quantum General Damages for pain and suffering The Plaintiff pleaded in his Plaint and testified that the accident herein caused him to sustain soft tissue injuries, concussion, a ruptured spleen that was eventually removed through surgery, and psychological trauma. These injuries were assessed as grievous harm, and they caused the Plaintiff 45% permanent incapacity. The Plaintiff’s testimony was corroborated by his Discharge summary from Bungoma County Referral Hospital dated 01st April 2025 (Pexh.9), P3 form Kitale CMC CC. No. 26 of 2023 Page 5 of 9 Judgment

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dated 01st April 2025 (Pexh.5) and the medical report dated 02 nd April 2025 (Pexh.4)by Dr. Mulianga Ekesa. The authorities cited by the Plaintiff’s counsel under this head do not apply to this case since the injuries sustained by the Plaintiffs in those authorities were more serious than the injuries sustained by the Plaintiff in this case. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in China Henan International Co-operation v Nyaboro (Civil Appeal E041 of 2021) [2023] KEHC 842 (KLR) (10 February 2023) (Judgment) where Ougo J upheld an award of Kshs. 800,000/= for a Plaintiff who sustained a ruptured spleen that was removed after surgery, soft tissue injuries, and 50% permanent incapacity. Guided by the above authority, bearing in mind that the Plaintiff in the authority above sustained 50% permanent capacity and the fact that the said decision was rendered in 2023, this court is of the considered view that an award of Kshs. 800,000/= for the Plaintiff herein in 2025 is reasonable in the circumstances. Future Medical Expenses The Plaintiff pleaded for future medical expenses. He testified that he needed Kshs. 5,800/= for the meningococcal vaccine at Aga Khan after every two (2) months. The Plaintiff’s testimony on future medical expenses was corroborated by the contents of his Discharge summary from Bungoma County Referral Hospital dated 01st April 2025 (Pexh.9), and the medical report dated 02nd April 2025 (Pexh.4)by Dr. Mulianga Ekesa. The plaintiff’s discharge summary shows that he would need pneumococcal and meningococcal vaccines for the rest of his life. Dr. Ekesa’s medical report confirmed as much. Kitale CMC CC. No. 26 of 2023 Page 6 of 9 Judgment

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The Center for Tropical and Travel Medicine – Kenya website shows that Kshs. 11,500/= is needed for every five years for the meningococcal vaccine, while the pneumococcal vaccine costs Kshs. 7,500/= per dose. Considering the Plaintiff’s age and the cost of the vaccines he needs for the rest of his life, this court makes an award of Kshs. 300,000/= under this head. Loss of Earning Capacity The Plaintiff pleaded for an award for loss of earning capacity. He testified that the removal of his spleen has caused him inability to walk for a very long time thus affecting his hawking work. The essence of an award for loss of earning capacity and how to award the same was explained by the Court of Appeal in Mumias Sugar Company Limited v Francis Wanalo [2007]eKLR where as follows: “ …..the award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge Kitale CMC CC. No. 26 of 2023 Page 7 of 9 Judgment

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has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss…” It is given that the loss of the spleen reduced the quality of the Plaintiff’s life. Such a loss will definitely impact his hawking work. The Plaintiff may not earn the same income he used to earn before the loss of his spleen through the accident herein. In the Nyaboro case (supra), the Plaintiff; a nurse, was awarded Kshs. 500,000/= for loss of earning capacity. Guided by the Nyaboro case (supra), and considering the fact that the Plaintiff herein was a hawker, this court makes an award of Kshs. 300,000/= under this head. Special Damages The Plaintiff pleaded for Special Damages of Kshs. 5,010/= in paragraph 6 of his Plaint. The receipts on record proved as much. Therefore, an award of Kshs. 5,010/= is hereby made under this head. DISPOSITION Given the foregoing, judgment is entered against the Defendant in the following terms: a) Liability – 100% in favour of the Plaintiff b) General Damages for pain and suffering – Kshs. 800,000/= c) Loss of earning capacity – Kshs. 300,000/= d) Future Medical Expenses – Kshs. 300,000/= e) Special Damages – Kshs. 5,010/= Total Award – Kshs. 1,405,010/= The awards above save for Special Damages shall earn interest at court rates from the date of this judgment till payment in full while the Special Kitale CMC CC. No. 26 of 2023 Page 8 of 9 Judgment

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Damages will earn interest at court rates from the date of filing this claim till payment in full. The Plaintiff will have the costs of this suit. Judgment accordingly. Judgment read, signed, and delivered in open Court at Bungoma this 28th day of August 2025 T.O. OMONO MAGISTRATE In the presence Mr. Onkangi h/b for Bwonchiri for the Plaintiff C/A: Albert Kitale CMC CC. No. 26 of 2023 Page 9 of 9 Judgment

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