Papah v Yunnan International Construction Company Ltd (Civil Case E046 of 2025) [2026] KEMC 742 (KLR)

5. The Defendant also blamed the matatu driver’s negligence for the occurrence of the accident. 6. It is against this backdrop that this court set down this matter for hearing for the parties herein to prove the averments in their pleadings on a balance of probabilities. EVIDENCE Plaintiff’s case 7. PW1 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 10th January 2025 and the receipt for Kshs. 6,000/= as exhibits. 8. His testimony was that arising from the accident, the Plaintiff sustained a blunt injury to the head, a blunt injury to the left periorbital region, a deep cut wound on the chin, a blunt injury to the right-hand finger, a fracture of the left tibia/fibula (comminuted), and a fracture of the right tibia/fibula. 9. He added that the Plaintiff required approximately Kshs. 200,000/= for the removal of the implants. 10. In cross-examination, he stated that the estimated cost of Kshs. 200,000/= for the removal of the implants was the cost at Eldoret Hospital, and that the same procedure would cost Kshs. 120,000/= in a public hospital. 11. PW2 No. 76835 PC Isaac Kimani Njuguna of Bungoma Traffic produced the police abstract showing that the accident herein occurred on 29th December 2024 along Bungoma – Malaba road at Mayanja bridge involving motor vehicle registration number KHMA 071 P shantol and motor vehicle registration number KAU 295 N Toyota Hiace Matatu. 12. He added that the Plaintiff was among the people injured as a result of the accident. 13. He conceded in cross-examination that he was not the accident’s investigating officer, and that he did not visit the scene. He could not tell the circumstances under which the accident occurred.

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14. PW3 Elias Adoka a Clinical Officer at Bungoma County Hospital produced the Plaintiff’s P3 form dated 07 th January 2025 as an exhibit showing that the accident caused the Plaintiff to sustain a cut wound on the chin, chest pain, back ache, a fracture of the right tibia, and a fracture of the left tibia. 15. He further stated that removal of implants at Bungoma County Referral Hospital ordinarily costs Kshs. 40,000/= per fracture, but the total cost would depend on the duration of the patient's hospital admission. 16. PW4 Abigael Akasegere Papa adopted her witness statement dated 15th January 2025 as her evidence in chief. She produced all the documents on her list of documents herein that were not produced by the other witnesses as exhibits. 17. Her testimony was that the accident occurred when the matatu she had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 18. This caused the shovel’s driver to abruptly swerve to the left, thus ramming into the matatu, leading to the occurrence of the accident. 19. She stated in cross-examination that she could not remember the total amount she paid at the hospital for her treatment. 20. She further stated that she had not fully recovered, given that she was still struggling to walk using crutches. She added that the metal implants were causing her pain and that she had been advised to remove them. Defendant’s Case 21. The Defendant did not call any witnesses to substantiate the averments in their Statement of Defence. In the circumstances, the averments in the Defendant’s Statement of Defence remained mere

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allegations which this court will not consider in determining this case in line with the holding in Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya [2020] eKLR, where the court stated thus: “Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: “In this matter, apart from filing its statement of defence the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.” 22. It is noteworthy that on 12th February 2026, the parties herein recorded a consent to the effect that the Plaintiff’s second medical report dated 26th June 2025 be produced as the defendant's exhibit. 23. The said report corroborated the contents of the Plaintiff’s medical report dated 10th January 2025 by Dr. Sokobe on the injuries sustained by the Plaintiff as a result of the accident. 24. However, Dr. Kuhuthu was of the opinion that the metal implants from the Plaintiff’s legs could be removed at an approximate cost of Kshs. 150,000/=. ANALYSIS AND DETERMINATION 25. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 26. It is common ground that the accident herein occurred, causing the Plaintiff to sustain severe bodily injuries. There is no contest that the shovel was owned by the Defendant at the time of the accident.

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27. Further, there is no evidence on record to show that at the time of the accident, the shovel’s driver was not driving the shovel for the benefit of the Defendant at the time of the accident herein. Therefore, in the event this court finds the shovel’s driver negligent for the occurrence of the accident, the Defendant will be vicariously liable for their driver’s acts or omissions. 28. The foregoing inclines this court to find and hold that the issues that commend to this court for determination are liability and quantum. Liability 29. PW1 testified that this accident occurred when the matatu she had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 30. She added that the oncoming truck caused the shovel’s driver to abruptly swerve to the left, thus ramming into the matatu, leading to the occurrence of the accident. 31. The Defendant submitted that in the absence of the police investigation’s diary, sketch map, OB extract, and police file, the evidence on record was not sufficient to establish negligence on the part of the Defendant’s driver. 32. This court notes that the Plaintiff’s oral evidence on the circumstances under which the accident occurred was not controverted by the Defendant. The said evidence remained unshaken even after cross-examination by the Defendant’s counsel. 33. The Plaintiff witnessed the accident. Her evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 34. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that

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the court must believe such evidence unless the circumstances of a particular case demand otherwise. 35. In this jurisdiction, direct evidence by a passenger on the circumstances under which an accident occurred is always deemed sufficient to establish negligence in a road traffic accident (see Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)). 36. The Plaintiff’s uncontroverted evidence on the circumstances under which the accident occurred shows that the accident herein occurred when the shovel’s driver overtook the matatu when it was not safe to do so, only for the said driver to ram into the matatu as he tried to go back to his lane. 37. The above uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence on the part of the shovel’s driver, which could only be dislodged by the shovel’s driver. Unfortunately, the Defendant chose not to call the shovel driver as a witness in this case. 38. to The foregoing shows that the Defendant deliberately chose not lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 39. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of prooving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it

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would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 40. Guided by the authority above, it follows that the failure by the Defendant’s driver to testify only leads to the inevitable conclusion that had the said driver testified, his evidence would have been adverse. 41. In any event, it is also not lost to this court that the Plaintiff, who was only a passenger in the matatu was neither in control of the matatu nor the shovel. Further, there is no evidence on record to suggest that the Plaintiff was negligent at the time of the accident. 42. In the circumstances, the Plaintiff cannot be blamed for the occurrence of the accident in line with the holding in Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR, where the court held; “The only time a passenger maybe held to be liable in my view, is when for instance it is shown that he did not fasten his seat belt or was trying to jump out of the vehicle when it has not stopped. That way, some contributory negligence could be attached to him.” 43. The matatu and the shovel owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safe and sound. That duty of care was breached when the accident occurred, causing severe bodily injuries to the Plaintiff. 44. The long and short of it all is that the Defendant’s failure to dislodge the prima facie case of negligence established by the Plaintiff against their driver leaves no doubt in this court’s mind that the Defendant’s driver must be blamed for the occurrence of the accident herein.

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45. It is against this backdrop that this court finds the Defendant 100% liable for the occurrence of the accident. Quantum of Damages (a) 46. General Damages for pain and suffering The injuries pleaded by the Plaintiff in paragraph 6 of her Plaint were corroborated by the medical evidence led by the Plaintiff as well as Dr. Kahuthu’s medical report dated 26 th June 2025, produced by the Defendant. 47. The foregoing inclines this court to make a finding that the Plaintiff proved on a balance of probabilities that the accident caused her to sustain multiple soft tissue injuries, a fracture of the left tibia/fibula (comminuted), and a fracture of the right tibia/fibula, which were assessed as grievous harm. 48. It is well settled in this jurisdiction that the assessment of damages must take into account the principle in the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR that comparable injuries should be compensated by comparable awards. 49. In Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR, where Nambuye, J. (as she then was) listed the following principles on assessment of damages: a) Damages should not be inordinately too high or too low b) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.

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d) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 50.This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record by the parties herein on quantum. 51. The Plaintiff submitted that an award of Kshs. 2,000,000/= was adequate under this head, while the Defendant submitted that an award of Kshs. 500,000/= was sufficient under this head. 52. The Plaintiff placed reliance on John Joel Koskei v Kenya Power & Lighting Co. Ltd [2005] KEHC 2832 (KLR), where the court made an award of Kshs. 1,700,000/= for a plaintiff who sustained a fracture of the skull, soft tissue injuries, and loss of two teeth, and permanent disability of 30%. 53. Clearly, the authority cited by the Plaintiff in support of an award of Kshs. 2,000,000/= is not applicable in this case since the Plaintiff herein did not suffer any permanent disability as a result of the accident herein. 54. The Defendant cited Herbert Otara v Dankan Ochora (2022) eKLR, in support of an award of Kshs. 500,000/=. This court notes that the injuries sustained by the Plaintiff in that case were less serious injuries than the ones sustained by the Plaintiff herein. 55. Whereas the Plaintiff in Jitan Nagra v Abednego Nyandusi Oigo (2018) eKLR cited by the Plaintiff appears to have sustained injuries almost similar to the injuries sustained by the Plaintiff herein, this court notes that the award of Kshs. 450,000/= therein was made over eight years ago. 56. The foregoing shows that the authorities cited by the Defendant are not applicable in this case. 57. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Opeth & another v Musa

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(Civil Appeal E018 of 2022) [2024] KEHC 10530 (KLR), where Musyoka J awarded Kshs. 950,000/= for bilateral tibio-fibular fractures of the legs, that on the left being compound; with cuts on the face, head, chin, and legs; and bruises, abrasions, and lacerations on the left arm, right hand, and the legs. 58. However, this court notes that the Plaintiff in the Opeth case (supra) was treated as an in-patient for 23 days, and that the injuries left the Plaintiff with permanent scars on both legs. 59. The Plaintiff herein was admitted in hospital for seven days. There is no indication that the injuries herein caused her permanent scars. 60. Given the reasons above, and guided by the award in the Opeth case (supra), this court makes an award of Kshs. 800,000/= under this head. Future Medical Expenses 61. The Plaintiff submitted that the medical report herein by Dr. Sokobe proved that the Plaintiff required Kshs. 200,000/= in future medical expenses for the removal of the metal implants. 62. The Defendant took the position that this court should make an award of Kshs. 150,000/= under this head per Dr. Kahuthu’s medical report dated 26th June 2025. 63. Be that as it may, this court notes that whereas the Plaintiff led evidence before this court on her need for the future medical expenses for removal of the implants, the claim for future medical expenses was not pleaded in the Plaintiff’s Plaint. 64. The law in this jurisdiction is that parties are bound by their pleadings. This court draws inspiration from the following authorities: 65. In the Tanzanian case of Salim Said Mtomekela Versus Mohamed Abdallah Mohamed, Dar-es-salaam Court of Appeal

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Civil Appeal No. 149 Of 2019 (Mugasha. J.A. Kihwelq. J.A., Rumanyika. J.A), the court held: “Pleading in law means, written presentation by a litigant in a lawsuit setting forth the facts upon which he/she claims legal relief or challenges the claims of his opponent. It includes claims and counterclaim but not the evidence by which the litigant intends to prove his case … That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored. (Emphasis added) 66. In Joshua Mungai Mulango & Another -vs- Jeremiah Kiarie Mukoma [2015] eKLR the Court of Appeal held as follows: “Parties are bound by their pleadings. The court is bound to determine a dispute on the basis of the pleadings filed by the parties and the evidence adduced on the basis of such pleadings. In an adversarial system such as ours, it is the parties who set the agenda for the trial by their pleadings. The need for this cannot be gainsaid. For the purpose of ensuring certainty and finality, a party cannot be allowed to resile from its pleadings without due amendment. Each party knows the case he has to meet and cannot be taken by surprise. The purpose and importance of the rules in this regard clearly is to ensure that litigation is conducted in a framework that will guarantee fair play without prolixity and needless escalation of litigation costs.” (Emphasis added) 67. It is also the law in this jurisdiction that future medical expenses must be pleaded by a party who seeks to claim the same. This legal position can be gleaned from can be gleaned from Tracom Limited &

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another v Hassan Mohamed Adan [2016] KECA 150 (KLR), where the Court of Appeal held: “…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. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.” 68. Guided by the authorities above, it follows that this court cannot award the Plaintiff future medical expenses which she did not plead in her Plaint. 69. However, had the Plaintiff pleaded the claim for future medical expenses in her Plaint, and given that the Plaintiff was treated in a private hospital, this court would have awarded the Plaintiff future medical expenses of Kshs. 200,000/= which Dr. Sokobe stated that was the cost of removing the metal implants in a private hospital. 70. It is for the reasons above that this court declines to make an award for future medical expenses. (c)Special Damages 71. The Plaintiff pleaded for an award of Kshs. 76,550/=. The Plaintiff placed before this court receipts to evidence the pleaded special damages of Kshs. 76,550/=.

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72. The Defendant took issue with the Plaintiff’s receipt dated 07 th January 2025 from Bungoma West Hospital for Kshs. 70,000/= on the ground that it was issued on 07th January 2025, yet the Plaintiff was discharged from the hospital on 06th January 2025. 73. This court takes the position that given that the said receipt was produced by the Plaintiff with the consent of the Defendant’s counsel, the same was produced by consent on the basis that the Defendant did not have any problem with its contents. 74. If the Defendant had concerns with that receipt, nothing prevented the Defendant’s counsel from demanding that the receipt’s maker be called for cross-examination on the contents of the said receipt. 75. The Defendant’s counsel is, therefore, estopped from questioning the contents or credibility of a receipt she consented to its production during the hearing of this matter. This court draws support from Kheri v Kubai (Civil Appeal E051 of 2023) [2025] KEHC 6385 (KLR), where Omido J observed as follows: “…There was no objection to the production of the receipts, and I am in agreement, as averred by Emukule J above, that the defence is now estopped from challenging them at this stage.” 76. In any event, this court takes judicial notice of the fact that it is not uncommon in this country for a hospital to issue receipts to a patient after discharge due to issues such as internet challenges or failure. 77. For the reasons above, this court awards the Plaintiff the pleaded and proved special damages of Kshs. 76,550/= 78. 79. DETERMINATION Given the foregoing, judgment is entered against the Defendant in the following terms: a. Liability………..100% in favour of the Plaintiff b. General Damages…………………...………Kshs. 800,000/=

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c. Special Damages……………………...…….Kshs. 76,550/= Total Award……………………………...Kshs. 876,550/= 80. 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 court rate from the date of filing this suit till payment in full. 81. The Plaintiff will have the costs of this suit. 82. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 17th day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Shikhu for the Plaintiff Ms. Kinyanjui for the Defendant C/A: Mr. Rioba

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