Momanyi v Toronkwo & another (Civil Case 696 of 2020) [2026] KEMC 23 (KLR)

of the motor vehicle, while the 2nd Defendant, Beneficial owner. The Defendants in their Amended Statement of Defense aver that the Plaintifi and/or driver and/or owners of motor vehicles registration numbers KAU 825L, KCR 172 U and 068 Q negligently contributed to the accident. The Defendants did not submit any submissions nor did they call any witness in support of their case. 4. The plaintifi testified as PW1 and called a PW2, Number 66201 CPL Jane Githinji, from Kaptembwo Police Station, PW2, as her witness. Plaintifi also relied on her documents filed alongside the plaint herein as her exhibits in support of his case. 5. At the close of the hearing and submissions, the accident and injuries have not been challenged. The Plaintifi and the Police Oficer are the only witnesses who testified and produced various exhibits as the Defendants never adduced any evidence at all either in support of their defense and or to controvert Plaintifi’s evidence. That being the case, liability and quantum are basically the issues of determination from the evidence tendered by the Plaintifi. Determination on liability and quantum 6. On liability, the plaintifi testified as PW1, adopted her statement dated 09/9/2020 and produced various exhibits on which she blames the accident solely on the Defendants. According to the Plaintifi’s oral and documentary evidence, which is well on record before this court, the accident was caused wholly and solely by the negligence of the Defendants as per the particulars of the negligence pleaded in Paragraph 4 of the Plaint dated the 09th of September 2020, as he failed to keep distance; which made him not to break, slow down, stop or swerve on time so as to avoid ramming onto the vehicle ahead. Plaintifi’s evidence remains unchallenged as the defendants have not tendered any evidence to controvert the plaintifi’s evidence or support their defense. 7. The Police Oficer Number 66201 CPL. Jane Githinji testified as PW2 and stated that the accident was reported at station vide OB 60/22/7/20. The oficer was however not the Investigating Oficer in this case. She nevertheless blamed the accident solely on the Driver of the motor vehicle herein. Her evidence carries less weight and probative value than that of the Plaintifi as she was not the Investigating Oficer and hers is therefore a report-based hearsay. I rely on the case cited of Alfred Mutual Ndutu V Peter Musau Wambua [2019] e KLR where the court held that evidence of a police oficer who was not the investigating oficer and never visited the scene of the accident could not be admitted as evidence of fact as his account was not something he had witnessed or concluded from investigations. 8. In a bid to determine and or apportion liability herein, I have gone through the submissions filed before this Honorable Court by the parties regarding this matter and in particular the Plaintifi’s submission as the Defendants’ have not filed any submissions in support of their case. 9. In an action for negligence, the burden of proof falls on the party alleging to establish each element of the negligence, hence it is for the Plaintifi herein to adduce evidence of facts on which he bases his claim. It must be established that there was a duty of care which was breached resulting to loss and damage to the Plaintifi. The Plaintifi herein therefore has a duty to prove her case on a balance of probabilities that the Defendants were so negligent so as to occasion the accident that led to the Plaintifi’s injuries. The onus may shift to the Defendants if the Defendant pleads that the Plaintifi was contributory to the accident. 10. The Plaintifi has discharged her duty of burden of proof through the oral and documentary evidence on record before this honorable court a position of which is unchallenged as the defendants have not adduced any evidence to controvert the plaintifis evidence or and support their defense. I refer to the case of Linus Nganga Kiongo & 3 Others V Town Council of Kikuyu [2012] e KLR where the court held that if the defendant fails to call evidence in support of his case, the evidence adduced by the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/23/eng@2026-02-17 2

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plaintifi against him remains uncontroverted and therefore unchallenged. This leads to the irresistible conclusion that the Defendants were 100% liable for the accident from the evidence adduced in court. 11. On quantum, both parties herein agree that the plaintifi was injured in the manner as pleaded in the plaintifi’s submissions as this is not controverted. The medical report of Dr. Omuyoma on record before court filed by the plaintifi herein prove so. 12. I am aware of the guiding principles in awarding general damages such as: damages should be within the limits set out by decided cases, within my pecuniary jurisdiction, within the limits that the Kenyan economy can afiord and must be commensurate to the kind of injury, and extent of pain and sufiering. I rely on the case of West and Sons V Shepherd [1964] eKLR, where Lord Morris stated that in assessing damages in injuries cases, comparable injuries should be compensated by comparable awards. 13. In this light I point to the cases of ng’ang’a john & anor. v david ogot agola ]2021] eklr, and washington mukunya karanja & anor. v maegaret wambui maina [2020] e KLR, cited in Plaintifi’s submissions, which have injuries that are relevant to the injuries sustained herein. The courts awarded between Kshs. 300,000/- to 350,000/- for comparable injuries and I do therefore find that the proposed Kshs. 350,000/- would sufice as general damages for pain and sufiering herein. 14. As to special damages, it is trite that the plaintifi is only entitled to special damages pleaded and proved by way of evidence usually through receipts. Plaintifi pleaded the following in paragraph 5 of the plaint; a. Medical legal report-Kshs. 10,000.00 b. Medication-Kshs. 810.00 15. The same have been proved by the plaintifi through medical receipts produced herein as PEXH. Nos 4 and 5. I thus do find the plaintifi entitled to award of special damages pleaded and proved amounting to Kshs. 10,810/=. 16. Judgment is therefore hereby entered against the defendants herein jointly and or severally, and in favor of the plaintifi herein for Kshs. 350,000/- being general damages for pain and sufiering and Kshs. 10,810/- being special damages. Plaintifi also gets the costs of this suit and an interest. DATED, SIGNED AND DELIVERED AT NAKURU THIS 17TH DAY OF FEBRUARY 2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintifi’s Counsel: N/A Defendants’ Counsel: N/A Plaintifi: N/A 1st Defendant: N/A 3rd Defendant: N/A https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/23/eng@2026-02-17 3

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