Aluda v Kutukhulu (Civil Case E158 of 2024) [2026] KEMC 599 (KLR)

5. The Plaintiff added that, arising from the incident, he spent Kshs. 78,000/= in medical report fees, hospital bills, advocate fees in defending the criminal case, and court fees in obtaining proceedings and rulings, hence this suit for general damages and special damages. 6. The Defendant neither entered appearance nor filed his Statement of Defence despite having been duly served with the pleadings, Summons to Enter Appearance, and the relevant notices. 7. In the circumstances, this matter proceeded by way of formal proof. EVIDENCE Plaintiff’s Case 8. PW1 Clinton Aluda adopted his witness statement dated 15th April 2024 as his evidence in chief. He also produced all the documents in the list of documents herein as exhibits. 9. His testimony was largely a rendition of his averments in his Plaint, which this court needs not reproduce here. 10.PW2 Amos Musungu adopted his witness statement dated 15 th April 2024 as his evidence in chief. 11.He testified that he is a bodaboda rider. On 11 th February 2022, he carried the Plaintiff from Kitale to Bungoma for work. They began their journey back to Kitale in the evening, only for their motorbike to be blocked along the road in Kanduyi area. He then saw the Defendant alighting from the tuktuk. He added that the Defendant then hit the Plaintiff on the head with a blunt object, slapped the Plaintiff, and dragged the Plaintiff on the ground. Parties’ Written Submissions Plaintiff’s Written Submissions 12.The Plaintiff submitted that the evidence on record had proved the Plaintiff’s case on a balance of probabilities.

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13.On quantum, the Plaintiff urged this court to award the Plaintiff Kshs. 300,000/= in general damages for the pain he suffered during the incident, and the ugly scars arising from the injuries he sustained. He cited Onyango v Odep (Civil Appeal E178 of 2023) (2024) KEHC 11370 (KLR) (26 September 2024) (Judgment) in support of the award of Kshs. 300,000/= in general damages. 14.The Plaintiff also urged this court to make an award of Kshs. 78,000/= in special damages. ANALYSIS & DETERMINATION 15.This court has given due regard to the Plaintiff’s pleadings, exhibits, evidence on record, written submissions, and the authorities relied upon. 16.It is not lost to this court that this matter proceeded by way of formal proof. In this jurisdiction, it is beyond peradventure that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya restates this position in the following terms: ‘’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’ 17.Courts in this jurisdiction have also rendered themselves on the question of the burden of proof and the legal burden placed on the Plaintiff to prove their case to the required standards, even in instances where the Defendant has failed to make an appearance. 18.In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR, it was stated that a Court should not

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take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. 19.Similarly, in Kirugi and Another Vs Kabiya & 3 others (1987) KLR 347, the Court of Appeal held that; “The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.” 20.Finally, in Gichinga Kibutha –vs- Caroline Nduku (2018) eKLR, the Court held that:“It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 21.Guided by the authorities above, this court proceeds to determine whether the Plaintiff proved his case on a balance of probabilities. 22.The testimony on record by PW1 and PW2, when read together with the court proceedings from Bungoma CMC Criminal Case No. E222 of 2022 shows that the Plaintiff was assaulted by the Defendant on 11 th February 2022. 23.The evidence above shifted the evidential burden to the Defendant to demonstrate that he did not assault the Plaintiff on the date of the incident. The Defendant did not lead any evidence to controvert the Plaintiff’s evidence on the circumstances under which he assaulted the Plaintiff.

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24.In the circumstances, this court finds and holds the Defendant is liable for assaulting the Plaintiff on 11th February 2022. Quantum (a) General damages for Pain and Suffering 25.A reading of the Plaintiff’s Plaint, P3 form (Pexh.3), treatment notes (Pexh. 4 & 5), and the medical report dated 12 th February 2024 by Dr. Sokobe (Pexh.8) leaves no doubt in this court’s mind that arising from the assault incident herein, the Plaintiff sustained multiple moderately soft tissue injuries assessed as harm. 26.It is also noteworthy that the Plaintiff has since fully recovered from the said injuries, which have left him with ugly scars. 27.The law on assessment of general damages is that comparable injuries should attract comparable awards. This legal position was restated in Simon Taveta v Mercy Mutitu Njeru Civil Appeal 26 of 2013 [2014] eKLR, where the Court of Appeal observed as follows:“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.” 28.The Plaintiff urged this court to award Kshs. 300,000/= under this head. He placed reliance on Onyango v Odep (Civil Appeal E178 of 2023) (2024) KEHC 11370 (KLR) (26 September 2024) (Judgment) where an award of Kshs. 160,000/= was made for moderately multiple soft tissue injuries. 29.The injuries sustained by the Plaintiff herein are not comparable to the injuries sustained by the Plaintiff in the Onyango case (supra) since the injuries sustained by the Plaintiff in the said Onyango case did not cause the Plaintiff therein to have scars. Therefore, that authority is not applicable in this case.

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30.The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR) (26 September 2024) (Judgment) who sustained an injury to the right fore head with deep cut wound with active bleeding, swollen right orbital margins upper and lower, reddish right eye, swollen left orbital margin and tender, swollen upper lips with cut wounds and tender, tender chest wall, bruised right hand and tender, swollen right knee joint with multiple bruises and tender. The Plaintiff further complained that at the time of going to court, he was suffering pain in the affected body parts as well as psychological trauma with extensive post injuries scar. The court made an award of Kshs. 180,000/=. 31.Guided by the authority above, and considering the passage of time since the said decision was made, this court is of the considered view that an award of Kshs. 200,000/= will be reasonable compensation under this head. (b)Special Damages 32.The Plaintiff pleaded Special Damages of Kshs. 78,000/= as enumerated in paragraph 8 of the Plaint. However, a calculation of the total Special Damages claimed by the Plaintiff reveals a total of Kshs. 77,500/=. 33.Special Damages must be pleaded and strictly proved before they are awarded, as restated in Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, where the Court of Appeal held as follows:“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

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34.The Plaintiff placed before this court receipts proving that he spent Kshs. 78,000/=. Be that as it may, this court has already made a finding that the Plaintiff pleaded for Special Damages of Kshs. 77,500/=. Parties are bound by their pleadings. 35.It is against this backdrop that this court holds and finds that the Plaintiff pleaded and proved Special Damages of Kshs. 77,500/=. DETERMINATION 36.For the reasons above, judgment is hereby entered against the Defendant in the following terms:(a) Liability – 100% in favour of the Plaintiff (b) General damages - Kshs. 200,000/= (c) Special Damages - Kshs. 77,500/= Net Award - Kshs. 277,500/= 37.The General Damages 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. 38.The Plaintiff will have the costs of this suit. 39.Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 06th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Onyancha for the Plaintiff

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C/A: Mr. Rioba

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