Kiriauта v Bemwa Stationers (Civil Suit E179 of 2025) [2026] KEMC 327 (KLR)

That defendant though served with pleadings and summons and failed to enter appearance.hence interlocutory judgment was entered and matter proceeded undefended. 6. Plaintifi submits that he has proved liability and or vicarious liability rests on the defendant 100%. 7. On Special Damages, plaintifi submits the amounts pleaded have been proved a total of Kshs. 7,900/ = being: Kshs.2,000/= for Medical Report, Kshs.1,900 treatment and drugs, Kshs.1,500/= transport to Nairobi and Kshs. 2,500/= for P3 Form, and that he produced receipts as exhibits. 8. COSTS & INTEREST, plaintifi submits costs of the suit should be awarded against the defendant, and interest awarded on general damages from the date of Judgment; on special damages interest to from the date of filing the suit. 9. Plaintifi submits Courts have awarded between Kshs. 350,000/= and Kshs. 400,000/=. 10. Analysis and findings: The court has considered the evidence tendered by the plaintifi and the plaintifi’s submissions. 11. On question of occurrence of the accident, plaintifi has tendered evidence showing the accident occurred on 22nd December, 2023 in the circumstances that on the face point to no other person to blame for the accident but the driver of motor vehicle registration number KCH 939Z make SCANIA BUS. The plaintifi was lawfully travelling onboard the said Bus. He testified that the driver of the bus was careless in the manner he drove the Said vehicle, speeding and dangerously overtaking other vehicles and on reaching Mnagoni area, the said bus violently ram into a motor vehicle registration number KCV 144E/ZF3005, as a result of which the plaintifi sufiered injuries. 12. The Police abstract plaintifi’s exhibit 3 issued 30/1/2024 under OB No 4/23/12/2023 Taru trafic base shows that Hamisi Salimu Kiriatu, a passenger, was injured in the accident. 13. A party that fails to defend suit and adduce evidence in support of its pleaded case renders the other party's evidence as one the Court has no basis to disbelieve. The case North End Trading Company Limited carrying on business under registered name Kenya Refuse Handlers Limited= Vs =The City Council of Nairobi (2019) eKLR. The words of Justice Alnashir Visram Uneek Electrical Co. Ltd Civ appeal 676/2002 precisely addresses that aspect. Judge Visram ‘’………the defence did not provide any evidence to the contrary. ……………Here the court had no choice. The only evidence before it was that of the respondent (plaintifi), and the court had no reason to disbelieve his testimony.’’ 14. The information in the police abstract exhibit 3 shows Scania Bus registration no. involved are KCH939Z insured by Directline Assurance Co. and Motor vehicle KCV 144E ZF 3005 were involved in the accident, and investigations were pending in relation to KCH 939Z. The police abstract therefore tends to the plaintifi’s case. 15. There is no question as to how the accident happened; the Plaintifi's evidence is not rebutted. The defendant did not file a defence in this case. 16. The plaintifi, a passenger on board the said bus was injured. Plaintifi testimony blaming the driver of the said Scania bus has not been challenged. 17. The defendant is the registered and or beneficial owner of the motor vehicle Registration number KCH 939Z Make SCANIA BUS. A copy of the motor vehicle search produced shows the vehicle Bus Coach was registered on 22/8/2016, the owner of the bus is Bemwa Stationers. The bus was insured at time of accident as shown on the police abstract and certificate of insurance produced from 6/10/2023 to 5/1/2024. The accident was 22/12/2023. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/327/eng@2026-07-22 2

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18. On liability this court resolved the issue interlocutory on 23/2/2026. This court is satisfied on the evidence given by the plaintifi that the accident on 22/12/2023 occurred as a result of the driver of the Scania Bus overtaking carelessly ramming into another vehicle. The driver’s manner of controlling the vehicle KCH 939Z make SCANIA BUS is consistent with negligence as set out in paragraph 5 of the plaint. The court thus finds the defendant is liable for the negligence of the driver of the said bus. 19. The only question for determination is the quantum of damages. On quantum the court is satisfied the plaintifi has proved the injuries as pleaded in paragraph 4 of the plaint: Injuries sufiered: the plaintifi pleaded the following injuries: Blunt trauma to the inguinal area; blunt trauma to the suprapubic area; Cut on the left eyelid; Laceration on the left eyelid; Complains of pains on the right suprapubic area. Paragraph 4 of the plaint. 20. The medical report of Dr. Darius Kiema exhibit 1 dated 230/1/2024 confirms that Hamisi Salimu Kirauta sufiered blunt trauma to the inguinal / suprapubic area; Cut on the left/ laceration on the left eyelid. Dr. Kiema examined plaintifi 1 month 8days after the accident. He reviewed treatment notes from Mbagathi hospital abdominal report; p3 form and he concluded that the injuries sufiered resulted from a road trafic accident. He sufiered soft tissue injuries that were expected to heal with no permanent disability or incapacity. 21. The considerations in assessing damages are the nature of injuries sustained; awards made in comparable cases such that awards made should be reasonable within the ranges of awards made by the superior courts in comparable cases. The cost of infiation must be factored in where older awards are considered. 22. The injuries pleaded have therefore been proved. 23. The award proposed by the plaintifi proposal of Kshs. 450,000/= is considered. The Cases cited in support of the award proposed have been considered: Habiba Abdi Mohamed V Peter Maleve [2000] eKLR where Kshs. 400,000/= was awarded for soft tissue injuries only and Catherine Wanjiru Kingori & 3 Others Vs Gibson Theuri where Kshs. 350,000/= was awarded for soft tissue injuries only. 24. Nyambati Nyaswabu Erick v Toyota Kenya Ltd & 2 Others [2019]eKLR, holding of Justice DS Majanja on February 12, 2019 that ‘’General damages are damages at large and the Court does the best it can in reaching an award that refiects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.' 25. The plaintifi sufiered blunt trauma on the groin area (inguinal/suprapubic area. This is the lower middle abdomen just above the pubic bone 1 month after the accident he was still sufiering pain in the right suprapubic area (above the pubic bone below the belly button). 26. The decisions involve comparable injuries; they are however old decisions: Habiba case year 2000 (Judge Kasanga Mulwa); Catherine year 2005, Judge JM Khamoni). 27. Considering the injuries sufiered are expected to heal without any disability the court finds the award sought by the plaintifi in this case is Kshs. 450,000/= is just in the circumstances of this case. 28. The court awards the plaintifi Kshs. 450,000/= as general damages for pain, sufiering and loss of amenities. The award shall earn interest at court rates from the date of this Judgment until paid in full. 29. Special damages: it is pleaded that the plaintifi expended Kshs. 7,900/= in total paragraph 5 of the plaint. The court is satisfied with proof tendered for the medical report Kshs. 2,000/= receipt was https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/327/eng@2026-07-22 3

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produced as exhibit 2, 3 receipts for treatment and drugs Mbagathi hospital were produced for Kshs. 1,500/=, Kshs. 200/= and Kshs. 200/=. Receipt for transport to Nairobi was produced Kshs. 1,500/= 30. Receipt for copy of records was produced Kshs. 550/= but was not pleaded. The cost Kshs. 2,500/= for p3 form no receipt produced though the P3 form was produced as exhibit 4. 31. The court thus awards Kshs. 5,400/= on special damages. This award shall earn interest at court rates from the date of suit 28/10/2025 until paid in full. 32. Judgment is entered in favour of the plaintifi against the defendant for the awards above stated: Kshs. 450,000/= general damages; Kshs. 5,400/= special damages 33. Costs of suit: Plaintifi issued demand letter dated 12/9/2025 to the defendant exhibit 12 and statutory notice to Directline Assurance Ltd exhibit 13. The court awards the Plaintifi costs of suit. Appeal to Malindi High Court. Right of appeal as prescribed. JUDGMENT DATED, JULY…………….2026 SIGNED & DELIVERED THIS ……22ND …….DAY OF .… T. N. SINKIYIAN, PRINCIPAL MAGISTRATE In presence of: For the plaintifi: ……Absent…………………… A.N. Kamau & Co Advocates Defendant:……Absent…………… Court Assistant:…Wesonga https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/327/eng@2026-07-22 4

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