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4. Arising from the accident, the plaintifi reportedly sustained the injuries set out in paragraph 7 of the Plaint and incurred Kshs. 23,750/= in treatment and suit-related expenses, hence this suit. 5. The Defendant entered appearance and filed a Statement of Defence dated 22nd May 2025 denying the particulars of negligence attributed to them by the Plaintifi. They pleaded in the alternative that if the accident herein occurred, then the same was caused by negligence by the Plaintifi and the motor vehicle driver. Therefore, the Defendant urged this court to dismiss this suit with costs. 6. The divergent positions taken by the parties herein on the circumstances under which the accident herein occurred prompted this court to set down this case for hearing and determination. Evidence Plaintifi ’s Case 7. PW1 adopted her witness statement dated 27th April 2025 as her evidence in chief, and produced all the documents in her list of documents herein as exhibits. 8. Her testimony was that the accident occurred at night when the motor vehicle she had boarded that day hit the Defendant’s shovel that had stopped in the middle of the road without any warning signs. 9. She reiterated that the accident caused her to sustain soft tissue injuries and a fracture of the left arm. Defendant’s Case 10. The Defendant did not call any witnesses to prove their averments in their Statement of Defence on record. The consequence of a Defendant failing to call witnesses to substantiate the averments in their Statement of Defence was aptly captured in Edward Mariga suing through Stanley Mobisa Mariga v Nathaniel David Shulter & Another [1979] eKLR, where the Court of Appeal stated as follows: “ The respondents filed a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.” 11. Similarly, C.B. Madan JA made the following remarks in CMC Aviation Ltd v Crusair Ltd (No.1) (1987) KLR 103 regarding this issue: “ The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.” 12. Guided by the authorities above, it follows that the averments in the Defendant’s Statement of Defence, having not been substantiated by any witness, remain mere allegations which this court will not consider in determining this case. 13. Be that as it may, on 12th February 2026, the parties herein recorded a consent to efiect that the apportionment of liability in Bungoma CMC CC No. E181 of 2025 in the ratio of 100% in favour of the Plaintifi be adopted in this case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/758/eng@2026-04-14 2

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Analysis and Determination 14. This court has duly considered the Plaintifi’s pleadings, the evidence on record, as well as the written submissions filed by the parties herein. 15. Given the consent on liability, this court takes the view that the only issue for determination is quantum. Quantum of Damages A. General Damages for pain and sufiering 16. The Plaintifi’s P3 form dated 22nd January 2025 and the Plaintifi’s medical report dated 15th April 2025 by Dr. Joseph Sokobe corroborate the Plaintifi’s testimony and the averments in the Plaint on the injuries sustained by the Plaintifi as a result of the accident. 17. Given the above, this court finds and holds that, arising from the accident herein, the Plaintifi sustained a cut wound on the left chin, blunt injury to the chest, blunt injury to the right hip, and fracture of the left ulna. 18. 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. 19. 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 sufiered but not to enrich a party, and as such they should be commensurate to the injuries sufiered c. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. d. Where past awards are taken into consideration as guides an element of infiation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 20. This court has given due regard to the guidelines in the authorities above, as well as the parties’ written submissions on quantum. 21. The Plaintifi submitted that an award of Kshs. 1,500,000/= was suficient under this head. The injuries sustained by the Plaintifis in the cases cited by the Plaintifi’s counsel in support of an award of Kshs. 1,500,000/= under this head involved Plaintifis who sustained more severe injuries than those sustained by the Plaintifi herein. Therefore, those authorities are not applicable in this court. 22. The Defendant, on the other hand, submitted that an award of Kshs. 250,000/= was suficient under this head. The Defendant relied on decisions rendered in 2015 and 2020 in support of the award of Kshs. 250,000/= under this head. Given the lapse of time from the date those decisions were rendered, the said authorities do not apply to this case. 23. The injuries sustained by the Plaintifi in this case are almost similar to the injuries sustained by Plaintifis in the cases set out below. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/758/eng@2026-04-14 3

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24. In Mary Akinyi Atella v Omondi Beatrice Monica [2021] eKLR, the court awarded general damages of Kshs. 500,000/= for a fracture of the right ulnar shaft, and dislocation of the left elbow. 25. In Kairithia v Achieng (Civil Appeal E003 of 2025) [2026] KEHC 1902 (KLR), the High Court upheld an award of Kshs. 500,000/= for Injury to the back, chest tenderness, fracture of the right radial bone, swollen and bruised left knee joint, and stitched cut wound on the right leg. 26. Guided by the authorities above, this court makes an award of Kshs. 500,000/= under this head. B. Special Damages 27. The Plaintifi pleaded in paragraph 6 of his Plaint that this court ought to award him Special Damages of Kshs. 23,750/= comprising Kshs. 15,000/= for treatment costs, Kshs. 6,000/= for the medical report, Kshs. 2,000/= for filling the P3 form, Kshs. 200/= for the Police Abstract, and Kshs. 550/= for the copy of records. 28. Where a Plaintifi pleads Special Damages, the law obligates the Plaintifi to strictly prove the same before an award is made in their favour. 29. The Plaintifi conceded through her written submissions that there were no receipts to prove the claim for Kshs. 2,000/= for filling the P3 form and Kshs. 200/= for the Police Abstract. 30. The receipts for specials produced before this court by the Plaintifi proved Special Damages of Kshs. 6,000/= for the medical report, Kshs. 9,580/= for treatment expenses at Bungoma West Hospital, and Kshs. 550/= for the copy of records. 31. It is against this backdrop that this court finds and holds that the Plaintifi pleaded and proved Special Damages of Kshs. 16,130/= Determination 32. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: a. Liability………………………………………100% b. General Damages…………………...………Kshs. 500,000/= c. Special Damages……………………...…….Kshs. 16,130/= Total Award………………………..Kshs. 516,130/= 33. 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. 34. The Plaintifi will have the costs of this suit. 35. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 14TH DAY OF APRIL 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/758/eng@2026-04-14 4

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Ms. Chebet for the Plaintifi Ms. Kinyanjui for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/758/eng@2026-04-14 5

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