Makokha v Dessra Ventures Limited (Civil Case E519 of 2024) [2025] KEMC 453 (KLR)

paragraph 4 of the Plaint. It is against this backdrop that the Plaintiff seeks the prayers in the Plaint herein. Despite having been duly served with the pleadings and the summons to enter appearance, the Defendant neither entered appearance nor filed a Statement of Defence. Consequently, an interlocutory judgment was entered against the Defendant, leading to the hearing of this matter through formal proof. Plaintiff’s Case PW1 Wycliffe Juma Makokha adopted his witness statement dated 03rd December 2024 as his evidence in chief. He also produced all the documents in his list of documents herein as exhibits save for the police abstract. PW2 No. 7635 PC Isaac Kimani Njuguna of Bungoma Traffic Base produced the accident’s police abstract dated 26 th November 2024 as an exhibit. He confirmed the occurrence of the accident herein and the reporting of the same vide OB number 11/23/11/2024. He added that at the time of issuance of the police abstract, the matter was pending under investigations. ANALYSIS AND DETERMINATION Kitale SCC Claim. No. E036 of 2024 Page 2 of 8 Judgment

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This court has duly considered the pleadings, the evidence, the written submissions on record, as well as the authorities relied upon by the Plaintiff. The police abstract on record shows that the accident herein occurred and the same was reported to the police. A reading of the said police abstract and the copy of records herein shows that the Defendant was the registered owner of motor vehicle registration number KDD 185 L at the time of the accident herein. The Outpatient card dated 23rd November 2024 from Bungoma County Referral Hospital, the P3 form dated 25 th November 2024, and the medical report dated 28th November 2024, on the other hand, proved on a balance of probabilities that arising from the accident herein, the Plaintiff sustained the injuries set out in paragraph 5 of the Plaint. The reasons above incline this court to find and hold that the issues for determination in this matter are liability and quantum. Liability The Plaintiff’s evidence was that the Defendant’s motor vehicle knocked him from behind as he pushed a tuktuk along the Mumias – Bungoma road. This evidence was not controverted by the Defendant. The mere fact that the Plaintiff was knocked from behind shows that the Defendant’s driver had a clear view of him before the occurrence of the accident….a prudent driver exercise due care and skill can not hit something from behind or someone….unless suddenly emerges road….overspeeding…that is not the case in this matter….. Kitale SCC Claim. No. E036 of 2024 Page 3 of 8 Judgment unto the

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Where a motor vehicle hits another motor vehicle or object or person from behind, a prima -facie case of negligence is usually established against the driver who hit an object from behind, as expressed by Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) (15 May 2025) (Judgment) where the learned judge expressed himself as follows:A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’ In the absence of the Defendant’s evidence to dislodge a prima facie case of negligence established against the Defendant’s driver by the evidence adduced by the Plaintiff, this court finds the Defendant 100% vicariously liable for the occurrence of the accident herein. Quantum of Damages (a) General Damages for pain and suffering The Plaintiff’s Outpatient card dated 23rd November 2024 from Bungoma County Referral Hospital, the P3 form dated 25 th November 2024, and the Kitale SCC Claim. No. E036 of 2024 Page 4 of 8 Judgment

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medical report dated 28th November 2024 by Dr. Sokobe show that arising from the accident herein, the Plaintiff sustained the soft tissue injuries set out in paragraph 5 of the Plaint. The Plaintiff’s treatment notes dated 14 th September 2024 from Bungoma County Referral Hospital, P3 form dated 16 th September 2024, medical report dated 24th October 2024 by Dr. Sokobe when read together with the Plaintiff’s second medical examination report dated 02 nd April 2025 leaves no doubt in the mind of this court that arising from the accident, the Plaintiff sustained multiple soft tissue injuries set out in paragraph 6 of the Plaint. The said injuries were assessed as harm, and the Plaintiff was projected to fully recover from the said injuries with no temporary or permanent incapacity. It is well settled in this jurisdiction that comparable injuries attract comparable awards. The Plaintiff urged this court to make an award of Kshs. 500,000/= under this head by placing reliance on Carolyn Indasi Mwonyonyo v Kenya Bus Service Ltd Civil Appeal 17 of 2007 (2012) eKLR where the High Court made an award of Kshs. 300,000/= for soft tissue injuries and dislocation of the knee joint. The Plaintiff in this case suffered moderate soft tissue injuries, he is projected to have fully recovered from the injuries as at today. It is also Kitale SCC Claim. No. E036 of 2024 Page 5 of 8 Judgment

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worth noting that, unlike in the authority relied upon by the Plaintiff, the Plaintiff herein was treated as an outpatient. In the circumstances, it follows that the injuries sustained by the Plaintiff in the Carolyn Indasi case (supra) were more severe injuries than those sustained by the Plaintiff in this case. Therefore, the authority relied upon by the Plaintiff for an award of Kshs. 500,000/= is not applicable in this case. The injuries sustained by the Plaintiff in this case are almost similar to the injuries sustained by Plaintiffs in the cases set out below. In Ndung’u Dennis v Ann Wangari Ndirangu & Anor [2018] eKLR, the Respondent sustained soft tissue injuries to the lower right leg and to the back. An award of kshs 300,000/= general damages was reviewed downwards to kshs 100,000/=. In Justine Nyamweya Ochoki & Anor v Jumaa Karisa Kipingwa [2020] eKLR where the plaintiff suffered blunt injuries to the chest, left wrist and lower lip. An award of Kshs 300,000/= was reduced to Kshs 150,000/= on appeal. In Mangenge v Masai & another (Civil Appeal E020 of 2022) [2025] KEHC 9669 (KLR), the court made an award of Kshs. 150,000/= for moderate soft tissue injuries. Guided by the authorities above, and more particularly the Managenge case (supra) which is a recent precedent, this court makes an award of Kshs. 150,000/= under this head. (b) Special Damages The Plaintiff pleaded for Special Damages of Kshs. 7,270/= as particularized in paragraph 6 of his Plaint. The receipts for specials produced before this court by the Plaintiff proved Special Damages of Kshs. 7,270/=. Kitale SCC Claim. No. E036 of 2024 Page 6 of 8 Judgment

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It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 7,270/= DETERMINATION The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: a) Liability………………………………………100% in favour of the Plaintiff b) General Damages…………………...………Kshs. 150,000/= c) Special Damages……………………...…….Kshs. 7,270/= Total Award…………………………………Kshs. 157,270/= The General Damages 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. The Plaintiff will have the costs of this suit. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 25th day of November 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Asembo for the Defendant Kitale SCC Claim. No. E036 of 2024 Page 7 of 8 Judgment

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C/A: Mr. Rioba Kitale SCC Claim. No. E036 of 2024 Page 8 of 8 Judgment

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