Alivitsa v Kanyanya (Civil Case E341 of 2025) [2026] KEMC 803 (KLR)

3. The Plaintiff blamed the occurrence of the accident on negligence by the Defendant and the Defendant’s servant as enumerated in paragraph 3 of the Plaint. 4. The Plaintiff further averred in her Plaint that the accident caused her bodily injuries set out in paragraph 4 of the Plaint, and suffer loss and damage thereby necessitating the failing of this suit for an award of damages. 5. The Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served with the Summons to Enter Appearance and the Plaint. In the circumstances, this matter proceeded by way of formal proof. EVIDENCE Plaintiff’s case 6. PW1 Eusters Alivitsa adopted her witness statement dated 21st July 2025 as her evidence in chief. Her testimony was that the accident herein occurred when motor vehicle registration number KTWC 296 Y she had lawfully boarded was hit by the Defendant’s motor vehicle registration number KCX 323 D. 7. She also produced the documents in her list of documents dated 21 st July 2025 as exhibits. Plaintiff’s Written Submissions 8. The Plaintiff submitted that the questions for determination by this court were whether the Defendant was negligent and liable for the accident, whether the Plaintiff sustained injuries, pain, suffering, and loss as a result of the Defendant’s negligence, and whether the Plaintiff is entitled to special and general damages as prayed in the Plaint, and what should be the quantum thereof.

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9. On whether the Defendant was negligent and liable for the accident, the Plaintiff submitted that the particulars of negligence pleaded in the Plaint, and the doctrine of res ipsa loquitur are enough to impute negligence on the Defendant. 10.The Plaintiff added that the Defendant the beneficial owner and the person in control of motor vehicle registration number KCX 323 D was vicariously liable for her driver’s acts or omissions. 11.The Plaintiff urged this court to make an award of Kshs. 2,200/= pleaded in the Plaint given that the receipts on record had proved as much. The Plaintiff’s counsel placed reliance on Hahn v Singh (1985) KLR 716 for the position that where pleaded special damages are proved the same must be awarded. 12.It was also submitted by the Plaintiff’s counsel that the multiple soft tissue injuries sustained by the Plaintiff ought to attract an award of Kshs. 300,000/= for pain and suffering. The Plaintiff’s counsel cited several authorities in support of the proposed award for pain and suffering. 13.On future medical expenses, the Plaintiff submitted that her medical report on record confirmed that she needed money for physiotherapy and analgesic treatment. The Plaintiff proposed an award of Kshs. 50,000/= under this head. ANALYSIS & DETERMINATION 14.This court has given due regard to the pleadings, the evidence on record, the written submissions filed, as well as the authorities cited by the Plaintiff. As earlier stated in this judgment, this matter was heard through formal proof.

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15.It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, reiterates this legal principle as follows: ‘’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.’’ 16.In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, it was stated that a Court should not take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. 17.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.” 18.The common thread running through the authorities above is that the Plaintiff, even in the absence of evidence to the contrary by the Defendant, like in the instant case, is duty-bound to prove his case on a balance of probabilities. 19.Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved her case on a balance of probabilities. 20.The police abstract dated 29th January 2025(Pexh.6) shows that the accident herein involving motor vehicle registration number KTWC 296 Y and motor vehicle registration number KCX 323 D occurred on 06th January 2025 along

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Bungoma Hospital road. It also shows that the said accident was reported at Bungoma Police Station vide OB. No. 115/06/01/2025. 21.Further, a reading of the said police abstract reveals that the Plaintiff who was a passenger was injured as a result of the accident. 22.The copy of records dated 07th January 2025 (Pexh.7), on the other hand, shows that the Defendant was the registered owner of motor vehicle registration number KCX 323 D at the time of occurrence of the accident herein. 23.The said police abstract and the copy of records herein are public documents. The law in this jurisdiction is that there is a rebuttable presumption of truth in the entries made by public officers in public documents (see section 83 of the Evidence Act). 24.In the absence of evidence to controvert the contents of the said documents, this court is inclined to find that the accident herein occurred as set out in the police abstract and that the Plaintiff was injured as a result of the said accident. 25.Given the foregoing, this court is of the considered view that the only issues for determination are liability and quantum. Liability 26.The evidence on record shows that the Plaintiff was a passenger in motor vehicle registration number KTWC 296 Y at the time of the accident. Therefore, she was neither in control of the said motor vehicle nor the motor vehicle registration number KCX 323 D which were involved in the accident. 27.It goes without saying that the motor vehicles which were involved in the accident owed the Plaintiff a duty of care to ensure that the Plaintiff reached

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her destination safely. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 28.The liability of a passenger in an accident is well settled in this jurisdiction. In Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR, 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. 29.The authority above shows that in the absence of evidence to prove negligence on the part of a passenger, a passenger cannot be held liable for the causation of an accident. (See also Rosemary Wanjiku Kungu –VsFrancis Mutua Mbuvi & Another (2014) eKLR and Viviane Anyango Onyango –Vs- Charity Wanjiku (2017) eKLR). 30.There is no evidence on record to suggest that the Plaintiff acted negligently, leading to the occurrence of the accident. 31.Accidents do not just occur, they are caused either by acts of God, human error, or mechanical failure. There is nothing on record to suggest that the accident herein was caused by an act of God. This accident must have been caused by acts or omissions by the drivers of the two motor vehicles involved in the accident. 32.The Plaintiff had the option of suing either of the drivers or suing them jointly. She chose to sue the Defendant’s driver. Nothing suggests that the Defendant’s driver was on their own frolic at the time of the accident. Therefore, the Defendant must be held vicariously liable for her driver’s acts or omissions.

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33.It is against this backdrop that this court finds and holds the Defendant 100% liable for the occurrence of the accident. Quantum of Damages (a) General Damages for pain and suffering 34.This court has duly considered the contents of the Plaintiff’s P3 form dated 15th January 2025 (Pexh.1), and the medical report dated 06th August 2025 (Pexh.10) by Dr. Isaac Obore. The medical documents corroborate the averments in the Plaint regarding the injuries sustained by the Plaintiff as a result of the accident. 35.Given the above, this court finds and holds that, arising from the accident herein, the Plaintiff sustained the injuries enumerated in paragraph 4 of the Plaint. 36.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. 37.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. 38.This court has given due regard to the guidelines in the authorities above, as well as the Plaintiff’s written submissions on quantum. 39.The Plaintiff submitted that an award of Kshs. 300,000/= was sufficient under this head. 40.The injuries suffered by the Plaintiff are almost similar to the injuries sustained by Plaintiffs in the cases below. 41.In Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR), the Plaintiff 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 on the affected body parts as well as psychological trauma with extensive post injuries scar. The court made an award of Kshs. 180,000/=. 42.In Kabue v Chepngetich & another (Civil Appeal E004 of 2023) [2025] KEHC 2471 (KLR), the court upheld an award of Kshs. 180,000/= for multiple soft tissue injuries. 43.In QVA (Minor Suing Through her Mother and Next Friend MGO) v Ogedah (Civil Appeal E055 of 2022) [2024] KEHC 480 (KLR), the court made an award of Kshs. 200,000/= for a Plaintiff who sustained a cut wound on the forehead leading to soft tissue injuries, blunt injury to the anterior chest wall leading to soft tissue injuries, severe soft tissue injuries of the hand, soft tissue injuries of both arms, and soft tissue injuries of both legs.

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44.Guided by the authorities above and considering that the Plaintiff herein is likely osteo arthritis of the wrist joint, this court is of the considered view that an award of Kshs. 200,000/= under this head is reasonable compensation for the injuries sustained by the Plaintiff in this case. (b)Future Medical Expenses 45.It is well settled in this jurisdiction that a claim for future medical expenses must be pleaded and proved before the same is awarded. 46.The Plaintiff pleaded in paragraph 5 of her Plaint that she needed future medical expenses. 47.The medical report dated 06th August 2025 (Pexh.10) by Dr. Isaac Obore shows that the Plaintiff needs future medical expenses for physiotherapy and analgesics. 48.It is noteworthy that Dr. Obore did not state the cost of the future medical expenses or the duration the Plaintiff would require the pain killers to fully recover, or the number of physiotherapy sessions the Plaintiff required for full recovery. 49.The Plaintiff’s counsel submitted that an award of Kshs. 50,000/= was sufficient under this head. This court wonders where the figure of Kshs. 50,000/= was plucked from by the Plaintiff’s counsel. 50.In the absence of credible evidence by the Plaintiff to support the proposed award of Kshs. 50,000/= under this head, the Plaintiff must be reminded of the words of Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177: “Plaintiffs must understand that if they bring actions for damages, it is for them to prove damages, it is not enough to write down the particulars and, so to speak, throw them at the head of the court,

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saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it", 51.Be that as it may, the Plaintiff proved through the medical evidence on record that she needed future medical expenses for analgesics and physiotherapy. In the circumstances, this court exercises its discretion and awards the Plaintiff Kshs. 20,000/= for future medical expenses. (c)Special Damages 52.The Plaintiff pleaded for special damages of Kshs. 2,200/= as particularized in paragraph 4 of her Plaint. 53.The receipts for specials on record proved the pleaded Special Damages. 54.Consequently, this court finds that the Plaintiff pleaded and proved Special Damages of Kshs. 2,200/=. DETERMINATION 55.Given the foregoing, judgment is entered against the Defendant in the following terms:a. Liability……………………………………….100% b. General Damages…………………...………Kshs. 200,000/= c. Future Medical Expenses…………………..Kshs. 20,000/= d. Special Damages……………………...…….Kshs. 2,200/= Total Award…………………………Kshs. 222,200/= 56.The General Damages and the Future Medical Expenses 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. 57.The Plaintiff will have the costs of this suit. 58.Judgment accordingly.

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Read, signed, and delivered in open Court at Bungoma this 19th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Omeri for the Plaintiff C/A: Mr. Rioba

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