Sifuna v Auto Mega Ltd & another (Civil Case E025 of 2025) [2026] KEMC 556 (KLR)

6. The 2nd Defendant entered appearance and filed a Statement of Defence denying the occurrence of the accident and the particulars of negligence attributed to them by the Plaintiff. 7. The 2nd Defendant pleaded in the alternative that if the accident occurred, then the same was wholly caused or contributed to by the Plaintiff’s acts of negligence enumerated in the Statement of Defence. 8. Given the divergent positions taken by the Plaintiff and the 2 nd Defendant regarding the circumstances under which the accident occurred, this matter proceeded to full hearing for the parties to prove their respective cases on a balance of probabilities. 9. A summary of the evidence led by the parties is set out below. EVIDENCE Plaintiff’s Case 10. PW1 No. 76835 PC Isaac Kimani Njuguna produced the accident’s police abstract dated 24th January 2025 showing that the accident herein occurred on 02nd December 2024 at around 1840hrs as Sang’alo Primary School involving motor vehicle registration number KDC 540 D and pedestrians, and that the same was booked at Bungoma Police Station vide OB. No. 46/02/12/2024. 11. He added that the accident was investigated by CPL Rebecca, who had since retired. 12. He stated that the accident occurred when the motor vehicle’s driver lost control due to mechanical failure, causing the motor vehicle to injure seven pedestrians, including the Plaintiff. 13. In cross – examination, he conceded that he neither investigated the traffic case nor visited the scene. He admitted that he was not aware of the circumstances under which the accident occurred, and that the contents of the abstract did not blame anyone for the occurrence of the accident. 14. PW2 Scovia Nekesa Sifuna adopted her witness statement dated 16th January 2025 as her evidence in chief. She also produced all the documents listed in her list of documents dated 16th January 2025 as exhibits. 15. Her evidence was that on the date of the incident, she was walking on the left side of Namwacha – Sang’alo road with Winrose, Barbara, Joan, and others when motor vehicle

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registration number KDC 540 D, which was being driven on the left side of the road, veered off the road and knocked them. 16. She also stated that she had not fully recovered, and that she was still taking painkillers for the pain arising from the injuries she sustained as a result of the accident. 17. She admitted in cross-examination that there was no proof that the motor vehicle driver was drunk at the time of the accident. She also conceded that there was no proof that the motor vehicle was defective at the time of the accident, and that she had not produced receipts to prove that she was taking painkillers for the injuries sustained in the accident. 18. PW2 PW3 Dr. Ekesa Mulyanga produced the Plaintiff’s medical report dated 02nd December 2024 showing that the accident caused the Plaintiff to sustain soft tissue injuries, comprising a headache, painful right elbow joint, and painful right knee joint and leg. 19. He was also of the opinion that the accident caused the Plaintiff psychological trauma. He added that the Plaintiff needed anti-inflammatory agents and psychosocial support, and that he had charged the Plaintiff Kshs. 4,000/= for preparing the medical report herein. 2nd Defendants’ Case 20. DW1 Isaac Yator adopted his witness statement dated 24th October 2025 as his evidence in chief. His testimony was that he was a passenger in the Defendants’ motor vehicle at the time of the accident when they saw a rowdy crowd running and cheering along the road. 21. He added that the motor vehicle driver hooted and slowed down almost to a halt but the rowdy crowd came into contact with the motor vehicle, leading to the occurrence of the accident. 22. DW2 Dalmas Okumu Wamalwa also adopted his witness statement dated 24th October 2025 as his evidence in chief. 23. In cross-examination, he stated that other than hooting, he slowed down and applied brakes to prevent the occurrence of the accident. He stated that the point of impact was on his motor vehicle’s left front bumper. He denied losing control of the motor vehicle before the occurrence of the accident. 24. He further stated that the accident occurred in the middle of the road.

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Parties’ Written Submissions Plaintiff’s Written Submissions 25. The Plaintiff submitted that PW2’s evidence that the motor vehicle’s driver lost control of the motor vehicle after the motor vehicle had developed mechanical problems, and given that the Plaintiff was knocked from behind was sufficient to hold the Defendants’ 100% liable for the occurrence of the accident. 26. On quantum, the Plaintiff urged this court to make an award of Kshs. 500,000/= by placing reliance on authorities where Plaintiffs suffered injuries like fractures. 27. It was also submitted by the Plaintiff that given that the Plaintiff had not fully recovered from the injuries sustained in the accident, and award of Kshs. 100,000/= was sufficient for further medication. The Plaintiff’s counsel relied on Tracom Limited & Another v Hassan Mohamed Adan (2009) eKLR for the position that it is enough for a Plaintiff to plead for future medical expenses without giving an exact figure for the medical expenses. 28. The Plaintiff also submitted that the receipts on record had proved the pleaded Special Damages of Kshs. 4,550/=, hence this court ought to award the same. The Plaintiff further urged this court to award her the costs of this suit. 2nd Defendant’s Written Submissions 29. The 2nd Defendant submitted that the issues for determination were whether the Plaintiff proved negligence on the part of the Defendant, whether liability if any can be attributed to the 2nd Defendant, whether the Plaintiff proved the alleged injuries and damages, and whether the Plaintiff is entitled to the reliefs sought. 30. It was the 2nd Defendant’s position that the Plaintiff had not proved her case on a balance of probabilities since she had not adduced cogent and credible evidence to establish negligence against the 2nd Defendant. 31. On liability and negligence, the 2nd Defendant submitted that the accident occurred when the crowd which the Plaintiff was part of failed to give way to the motor vehicle that the 2nd Defendant was driving contrary to the provisions of the Traffic Act and the Highway Code which require pedestrians to use the road with due care to their own safety. The 2 nd

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Defendant further submitted that the failure by the Plaintiff to call independent witnesses was fatal to the Plaintiff’s case. 32. The 2nd Defendant further took the position that by the Plaintiff encroaching unto the road, and ignoring the motor vehicle’s hooting, she created a dangerous situation for herself and the motor vehicle thereby contributing to the occurrence of the accident. 33. Regarding quantum, the 2nd Defendant submitted that the Plaintiff failed to prove the alleged injuries. He submitted that the medical report dated 02 nd December 2024 by Dr. Ekesa was filled based on the Plaintiff’s history which is subjective and unverified. He added that given that the Plaintiff’s P3 form was dated 03 rd December 2024, the same could not have been relied upon by Dr. Ekesa during the filling of the medical report dated 02nd December 2024. 34. The 2nd Defendant also took issue with Dr. Ekesa’s finding that the Plaintiff suffered psychological trauma as a result of the accident yet he neither conducted the Plaintiff’s psychiatric evaluation nor was he a qualified psychiatrist. He placed reliance on Daniel Odhiambo Ngesa V Daniel Otieno Owino & Another (2020) KEHC 5959 (KLR) for the position that expert evidence, like a medical report, should not be considered in a vacuum but must be supported by relevant treatment notes. 35. In conclusion, the 2nd Defendant submitted that the Plaintiff had not proved the claim for future medical expenses pleaded in her Plaint. He cited several authorities including Tracom Limited & Another v Hassan Mohammed Adan (2009) eKLR to buttress the position that future medical expenses must not only be pleaded but must be proved before the same is awarded. ANALYSIS & DETERMINATION 36. This court has given due regard to the pleadings, evidence, the written submissions, as well as the authorities on record. 37. It is common ground that the accident herein occurred and that the 2 nd Defendant was the driver of motor vehicle registration number KDC 540 D at the time of the accident. 38. There is also no dispute that the Plaintiff was involved in the accident. Further, there is no evidence on record to controvert the contents of the motor vehicle copy of records dated

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02nd December 2024 showing that the 1st Defendant owned the motor vehicle herein at the time of the accident. 39. In addition to the above, liability in the test suit (Bungoma CMC CCE028 of 2025) was determined in the ration of 80%:20% in favour of the Plaintiff against the Defendants jointly and severally. 40. Given the reasons above, the only issue for determination is quantum. Quantum of Damages (a) General Damages for pain and suffering 41. The Plaintiff relied on her P3 form dated 02 nd December 2024 (Pexh.5), treatment notes from Bungoma County Referral Hospital dated 02nd December 2024, and the medical report dated 02nd December 2024 (Pexh. 3 ), to prove that she sustained the injuries pleaded in the Plaint. 42. The 2nd Defendant submitted that the medical report herein was based on Dr. Ekesa’s assumptions since he relied on a P3 form dated 03 rd December 2024 to fill a medical report dated 02nd December 2024. The 2nd Defendant also took issue with Dr. Ekesa’s opinion that the Plaintiff would need psychosocial support for the psychological trauma she reportedly suffered as a result of the accident. It was the 2 nd Defendant’s position that such an opinion could only be made by a psychiatrist, which Dr. Ekesa was not. 43. A reading of the Plaintiff’s P3 form shows that the same is not dated 03 rd December 2024 as submitted by the 2nd Defendant. Therefore, the 2nd Defendant’s attempt to impeach Dr. Ekesa’s medical report based on Dr. Ekesa reportedly relying on a P3 form filled after filling his medical report lacks any limbs to stand on. 44. On whether Dr. Ekesa could make a finding that the Plaintiff suffered psychological trauma as a result of the accident despite his not being a psychiatrist, this court notes that Dr. Ekesa’s letterhead describes him as a specialist general surgeon and trauma surgeon. This court is of the considered view that a trauma surgeon possesses adequate skill and knowledge to assess whether a patient suffered psychological trauma as a result of an accident. 45. The foregoing shows that the 2nd Defendant failed to impeach the Plaintiff’s evidence on the injuries she sustained. In the circumstances, this court finds and holds that the

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Plaintiff proved on a balance of probabilities that she sustained the injuries pleaded in her Plaint. 46. In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore vs Geoffrey Mwenda [2004] eKLR where the Court of Appeal stated as follows: “Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 47. The Plaintiff submitted that an award of Kshs. 500,000/= was sufficient under this head. The 2nd Defendant did not submit on the award this court ought to make under this head. 48. This court notes that the authority relied upon by the Plaintiff for an award of Kshs. 500,000/= is not applicable in this case since the said authority refers to a Plaintiff who sustained more severe injuries than the ones sustained by the Plaintiff in this case. 49. The injuries sustained by the Plaintiff herein were almost similar to the injuries sustained by the Plaintiff in Makami v Obong’o (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR)the respondent sustained soft tissue injuries involving marked swelling and bruises on the forehead, marked neck and chest pain and cut wound on the right elbow joint and right knee joint. He was treated as an outpatient. The court set aside an award of Kshs 100,000/= and substituted it with an award of Kshs 80,000/= for general damages 50. In FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, an award of Kshs 60,000/- was enhanced to Kshs 100,000/- where the minor had sustained soft tissue injuries, which were blunt object injury to the head, neck, limbs, thorax, and abdomen. 51. In Asad Motors Limited & 2 others v Yaa (Civil Appeal 92 of 2022) [2023] KEHC 24279 (KLR) Kshs. 100,000/= was awarded for deep cuts on the forehead and upper lip, blunt object injury, and bruises to the right lower limb and loosening of the upper front tooth. 52. Finally, in Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR) the court awarded Kshs. 80,000/= for multiple soft tissue injuries.

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53. Guided by the authorities above, and more particularly the Ondiso case (supra) determined in April 2025, and considering inflation trends in this country since April 2025 to date, this court makes an award of Kshs. 100,000/= under this head. (b) Future medical expenses 54. The Plaintiff pleaded for future medical expenses in her Plaint. 55. The Court of Appeal in Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR stated as follows regarding claims for future medical expenses: “…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: “And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof...” We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…” 56. The Plaintiff having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintiff needed to surmount before an award under this head is made is to prove the pleaded future medical expenses.

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57. The medical report by Dr. Ekesa shows that the Plaintiff needs anti-inflammatory agents and psychosocial support. The Plaintiff, on the other hand, testified that she was still using painkillers to alleviate the pain she was still experiencing from the injuries she sustained in the accident. She did not state whether she needed any psychosocial support. 58. The 2nd Defendant submitted that this court should not make an award under this head in the absence of receipts and treatment notes to support the same. 59. This court disagrees with the 2nd Defendant’s insistence on receipts and treatment notes before an award is made under this head since it is a matter of public notoriety in this jurisdiction that most people buy painkillers over the counter without prescriptions and receipts. 60. The foregoing shows that the Plaintiff pleaded and proved the need for future medical expenses. 61. However, Dr. Ekesa did not lead evidence on the cost of the future medical expenses and the duration of the future treatment stated in the medical report herein. 62. Be that as it may, having considered the nature of injuries sustained by the Plaintiff, and her current health complaints, it is this court’s considered view that an award of Kshs. 10,000/= will be sufficient compensation under this head. (c) Special Damages 63. The Plaintiff pleaded at paragraph 6 of the Plaint Special Damages of Kshs. 5,740/=. The receipts on record proved the pleaded Special Damages to the required standards. 64. Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 5,740/=. DETERMINATION 65. The upshot of the foregoing is that judgment is hereby entered jointly and severally against the Defendants in the following terms:(a) Liability – 80%:20% in favour of the Plaintiff (b) General damages - Kshs. 100,000/= (c) Future medical expenses - Kshs. 10,000/= (d) Special Damages - Kshs. 5,740/=

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Grand Award -Kshs. 115,740/= Less 20% Net Award - Kshs. 92,592/= 66. The General Damages and future medical expenses will accrue interest at court rate from the date of this judgment till payment in full while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 67. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 68. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 03rd day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Milimo h/b for Onchiri for the Plaintiff Ms. Muthoni for the 2nd Defendant C/A: Mr. Rioba

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