Wanka v Okinyi (Civil Case E282 of 2025) [2026] KEMC 712 (KLR)

3. Arising from the accident, the Plaintiff added that he sustained the bodily injuries in paragraph 5 of the Plaint hence this suit. 4. The Plaintiff blamed the occurrence of the accident on the Defendant’s negligence as enumerated in paragraph 4 of the Plaint. 5. The Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served with the Plaint and the Summons to Enter Appearance, leading to an interlocutory judgment being entered against her. 6. It is against this backdrop that this matter proceeded by way of formal proof. EVIDENCE Plaintiff’s Case 7. PW1 Zebedayo Burudi Wanga adopted his witness statement dated 16th June 2025 as his evidence in chief. He reiterated that the accident occurred when the Defendant’s motor vehicle veered into his lane after losing control; thus, the Defendant was wholly to blame for the accident. 8. He produced all the documents in his list of documents as exhibits. ANALYSIS & DETERMINATION 9. This court has given due regard to the pleadings, the evidence, and the written submissions on record. 10.It is of significance to note from the onset that the mere fact that this matter proceeded by way of formal proof does not mean that the Plaintiff’s case must be believed as pleaded in the Plaint. 11.The law, at all times, places on a Plaintiff the burden of proving their case on a balance of probabilities. This legal position can be gleaned from The Plaintiff, even in the absence of evidence to the contrary by the Defendant, is duty-bound to prove her case on a balance of probabilities. This legal

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position can be gleaned from section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, which provides that: ‘’Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.’’ 12.In Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR , the Court of Appeal stated thus regarding the Plaintiff’s duty to prove their case on a balance of probabilities: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 13.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.”

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14.Guided by the authorities above, this court will proceed to determine if the Plaintiff proved his case on a balance of probabilities. 15.The contents of the Plaintiff’s police abstract dated 06 th March 2025 (Pexh.5) shows that the accident herein was reported to the police and an abstract issued to that effect. The copy of records dated 21 st February 2025 (Pexh.2) for motor vehicle registration number KDK 143 S shows that the said motor vehicle was owned by the Defendant at the time of the accident. 16.The documents in the preceding paragraph (paragraph 14) are public documents. There is always a rebuttable presumption of regularity (omnia praesumuntur rite et solenniter esse acta) of public documents. This simply means that public documents and official acts are presumed valid, legally executed, and authentic unless proven otherwise 17.In the absence of evidence to controvert the contents of the said public documents, it follows that the accident herein occurred and that the Defendant was the owner of the motor vehicle herein at the time of the accident. 18.Given the reasons above, this court takes the view that the only issue for determination is liability and quantum. Liability 19.The Plaintiff stated in his testimony that the accident occurred when the Defendant’s motor vehicle lost control and veered into his lane. The Plaintiff’s version of events on how the accident occurred is not controverted. This evidence discloses negligence by the Defendant. The Defendant breached the duty of care he owed other road users including the Plaintiff by veering onto the Plaintiff’s lane.

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20.It is for the reasons above that this court finds the Defendant 100% liable for the occurrence of the accident. Quantum (a) General Damages for Pain and Suffering 21.The plaintiff’s testimony, when read together with the medical evidence on record, leaves no doubt in this court’s mind that the Plaintiff proved on a balance of probabilities that he sustained the injuries pleaded in paragraph 5 of the Plaint herein. 22.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.” 23.The Plaintiff prayed for an award of Kshs. 2,000,000/= under this head by relying on an authority where a Plaintiff was awarded Kshs. 1,800,000/= for multiple fractures. The injuries sustained by the Plaintiff in that case were more severe than the ones sustained by the Plaintiff in this case. Therefore, the authority relied upon by the Plaintiff is not applicable in this case. 24.The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Blowplast Ltd v Julius Ondari Mose [2018] eKLR – where the court awarded general damages of Kshs.600,000/= where the plaintiff suffered amputation of the middle and index finger of the right hand and permanent incapacity assessed at 25%.

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25.In West Kenya Sugar Co Ltd v Joseph Sore Shirambula [2021] KEELRC 2149 (KLR), the plaintiff and respondent in the appeal herein sustained an amputation of the distal phalanx left index finger at the distal interphalangeal joint and crush injury to the left index finger. The trial court awarded Ksh. 600,000/= on 26/8/2015. On appeal, the award was reduced to Ksh. 450,000/= on 17/2/2021. 26.In Mutugi v Waymark Safaris Limited (Civil Appeal E838 of 2022) [2024] KEHC 2832 (KLR) (Appeals), the court awarded Kshs. 800,000/= to an Appellant who sustained a comminuted fracture of the right mid femur, transverse fracture of the right tibia/fibula, dislocation-right knee, both right and left PCL & ACL (Anterior Cruciate Ligament) tears, blunt injury to the pelvic region, blood loss, soft tissue injuries, and physical and psychological pains. Permanent disability was assessed at 30%. 27.Guided by the authorities above and taking into account the fact that the Plaintiff herein permanent incapacity was assessed at 14%, as well as the passage of time since the decisions above were rendered, this court takes the view that an award of Kshs. 600,000/= is reasonable under this head. (b)General Damages for Loss of Earning Capacity 28.The Plaintiff pleaded in paragraph 7 of his Plaint for damages for loss of earning capacity on the ground that the accident had permanently incapacitated him since he cannot use all his fingers to ride his motorcycle to earn his monthly income of Kshs. 70,000/=. 29.The Plaintiff testified before this court that the Kshs. 70,000/= monthly income was income from his bodaboda work and hotel business. However, it should be noted that the Plaintiff’s Plaint was clear that the monthly income of Kshs. 70,000/= was reportedly from the Plaintiff’s bodaboda work.

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Therefore, the Plaintiff cannot purport to amend his Plaint through testimony in court. 30.Further, this court notes that the Plaintiff did not lead any evidence to prove that he used to earn Kshs. 70,000/= per month from bodaboda work. 31.Be that as it may, the Plaintiff’s testimony that he is a bodaboda rider was corroborated by the medical report dated 10th March 2025 by Dr. Ekesa. 32.The question that abounds at this stage is whether the injuries sustained by the Plaintiff herein will permanently prevent him from carrying on with his bodaboda work. 33.The medical report by Dr. Ekesa does not indicate if the Plaintiff will not be able to carry on with his bodaboda work after recovering from the injuries sustained in the accident. Loss of one finger cannot prevent one from riding a motorcycle. 34.However, it is not lost to this court that the Plaintiff could not work as a bodaboda rider during the period he has been unwell. He lost income from the date of the accident till the time he is expected to fully heal. Unfortunately, Dr. Ekesa did not testify before this court on the duration the Plaintiff would fully recover. This court takes the view that six months is reasonable time within which the Plaintiff can fully recover from the injuries herein and thereafter resume his bodaboda work. 35. This court has already made a finding that there was no proof that the Plaintiff used to earn Kshs. 70,000/= per monthly through his bodaboda work. That being the case, the applicable multiplicand in calculating the income lost by the Plaintiff is the minimum wage applicable at the time of the accident. Therefore, the multiplicand herein will be anchored on the Regulations of Wages (General Amendment) Order 2024.

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36.The appropriate category of boda boda riders is comparable to the category of mechanist (motor vehicle repairers), laundry operators, light tractor drivers etc (see Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR). 37.The Plaintiff is a bodaboda rider in Bungoma town which is a former municipality. In the circumstances, the award under this head will work out as follows: Kshs. 19503.68 x 6 = Kshs. 117,022.08/= (c)Future Medical Expenses 38.The Plaintiff pleaded in paragraph 6 of his Plaint that he would need Kshs. 500,000/= to surgically manage the tears in the knee joint. The medical report dated 10th March 2025 by Dr. Ekesa showed as much. 39.Dr. Ekesa did not testify before this court to substantiate the said cost of Kshs. 500,000/= for future medical expenses. Should this court believe Dr. Ekesa’s medical opinion on the cost of future medical expenses needed by the Plaintiff? 40.The question above was answered by the Court of Appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 as follows: “… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”

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41.A reading of the authority above reveals that the court is not required to take an expert report hook, line, and sinker. If there exist reasons for the report to be ignored, a court is at liberty to ignore such a report. 42.The schedule to the Medical Practitioners and Dentists (Professional Fees) Rules No. 131 of 2016 provides for a minimum of Kshs. 60,000/= and a maximum of Kshs. 84,000/= for an open ligament repair. 43.Rule 3 of the said Rules disallows the charging of medical professional fees above the fees under the schedule thus: 3. Chargeable fees (1) The fees specified under the Schedule to these Rules shall be the fees charged by practitioners offering medical or dental services, or both. (2) The fees referred to under paragraph (1) shall be adhered to by all practitioners and institutions registered under the Act, and no practitioner may agree or accept fees above that which is provided under these Rules. 44.The Plaintiff in this case requires two surgeries to repair a tear in his left anterior cruciate ligament and a tear of the left medial meniscus. Going by the maximum sum of Kshs. 84,000/= for one ligament repair surgery, this court takes the view that the sum of Kshs. 500,000/= claimed by the Plaintiff under this head is exaggerated. 45.In the circumstances, guided by the schedule to the Medical Practitioners and Dentists (Professional Fees) Rules No. 131 of 2016 this court makes an award of Kshs. 200,000/= under this head. (d) Special Damages

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46.The plaintiff pleaded particulars of Special Damages of Kshs. 6,850/= in his Plaint. The plaintiff went further and produced receipts to prove the said Special Damages as required under the law. 47.This court, therefore, awards Special Damages of Kshs. 6,850/=. DETERMINATION 48.Given the foregoing, judgment is entered against the defendant in the following terms: a) Liability……………………………………..100% b) General damages…………………...………Kshs.600,000/= c) Loss of earning capacity……………………Kshs. 117,022.08/=…. d) Future Medical Expenses…………………..Kshs. 200,000/= e) Special damages……………………...……. Kshs.6,850/= Net award…………………………Kshs. 932,872.08/= 49.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 the same rate from the date of filing suit till payment in full. 50.The award for loss of earning capacity will not accrue any interest. 51.The Plaintiff will have the costs of this suit. 52.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:

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Ms. Wanyama for the Plaintiff C/A: Mr. Rioba

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