Chitsala v Royal Liner Express Ltd

3. Injuries pleaded: paragraph 6 (I) pleaded under (a-c): Deep wound cut on 2nd index nger of right hand; fracture of 2nd distal phalange bone right nger; brunt (sic) object injury to the right hip. 4. On 18/3/2026 interlocutory judgment was entered on liability for the accident upon request by the plainti due to the defendant's default in appearance and defence. 5. Trial: Matter proceeded on 10. 6.2026. Mr. Otwere present for plainti. 1 witness testied plainti Mnani Mwameri Chitsala, a resident of Samburu Kinango. He adopted his Statement dated 7/11/2025 and bundle of documents dated 7/11/2025 as exhibits 1 to 9, and additional documents in bundle dated 16/2/2026 as exhibits 10 and 11. (Item 4 a and b in the initial list and the receipt in the 2nd bundle be received. The documents in bundle of 16/2/2026 be received as exhibits: medical report by Dr. Adede and the receipt Exhibit 4a and 4b. PW 1 was injured while alighting from mv no. his right hand nger when the door shut suddenly as plainti was alighting; driver drove o before plainti had alight. Plainti blamed the driver for negligence, and he thus sued the owner of the vehicle. 6. Plainti closed case on 10/6/2026 and led closing submissions. ……..Plainti led closing submissions dated 25/6/2026 and the matter was on 15/7/2026 reserved for judgment. 7. In the submissions in E208 OF 2025: On quantum the plainti proposed in his submissions dated 25/6/2026. Plainti submits on general damages of Kshs.700, 000/= as reasonable compensation. Plainti submits relying on the medical report by Dr. Adede produced as exhibit 4a that he has proved he sustained injuries sustained as pleaded. 8. The plainti has referred to several cases in the Paragraph 7 plaint (Demand & Notice: that despite making formal demand and serving notice of intention to sue, upon the defendant, the defendant has failed or neglected to compensate the plainti. Plainti suered loss and continues to suer great pain as a result of the accident. He therefore seeks Prayers/ Reliefs Sought as pleaded(a) General damages; (b) Special damages; Costs of and incidentals to this suit plus interest at court rates. 9. Prayer b. Special damages pleaded at Paragraph 6 of the plaint: Kshs. 2,000/= medical report; medical expenses Kshs. 700/= ; copy of records Kshs. 550/= total Kshs. 3, 250/=. Have been proved through exhibits 4b receipt from Dr. Adede; bundle of receipts produced as exhibit 5: receipt from Tsunza medical care Kshs. 700/= ; receipt from NTSA for copy of records Kshs. 550/= 10. The court awards the plainti special damages Kshs. Kshs. 3, 250/=. Pleaded and proved. The award shall earn interest at court rates from the date of suit 1/12/2025 until paid in full. 11. Judgment is entered in favour of the plainti against the defendant for the awards above stated. 12. The court awards the Plainti costs of suit with interest at court. Defendants shall bear plainti’s costs of suit. 13. Analysis and ndings: The court has considered the evidence tendered by the plainti and the plainti’s submissions. 14. On question of occurrence of the accident, and liability for the causing the said accident,as was held in case North End Trading Company Limited carrying on business under registered name Kenya Refuse Handlers Limited= Vs =The City Council of Nairobi (2019) eKLR, a party that fails to defend suit and adduce evidence in support of its pleaded case renders the other party's evidence as one the Court has no basis to disbelieve. The words of Justice Alnashir Visram Uneek Electrical Co. Ltd Civ appeal 676/2002 precisely addresses that aspect. Judge Visram ‘’………the defence did not provide any evidence to the contrary. ……………Here the court had no choice. The only evidence before it was that of the respondent (plainti), and the court had no reason to disbelieve his testimony.’’. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/871/eng@2026-09-09 2

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15. With a default Interlocutory Judgment in favour of the plainti, the question of liability for the accident is settled as the defendant failed to defend the suit despite due service. This court nds the plainti’s evidence is uncontroverted, and nds that on 25/5/2025. PW 1 was injured while alighting from the Scania bus registration no KBQ 008C Scania. Plainti’s right hand nger was smashed when the door shut suddenly as plainti was alighting. His testimony that the driver of the bus drove o suddenly before plainti had alighted, causing the bus door to hit his right index (2nd nger) is uncontroverted. This court is satised that the driver of the bus was negligent, and plainti suered injuries as a result. The Search from NTSA exhibit 8 shows the bus registration no. KBQ 008C Scania was at 29/5/2025 owned by Royal Liner Express Limited. The defendant in this case. and he thus sued the owner of the vehicle. 16. The defendant as owner of the said vehicle is to blame for the accident as owner of the vehicle and vicariously liable. The information in the police abstract exhibit 7 shows vehicle registration no. KBQ 008C Scania owned by Royal Liner Express Limited, insured by Directline Assurance ltd was blamed for the the accident. The plainti Mnani Mwameri, a passenger is indicated as person injured: Nature of injury harm. 17. The police abstract is in reference to OB 8/25/05/2025 shows a report was made at Samburu Trac base. This court thus conrms the judgment on liability. 18. Only the quantum of damages is thus for determination here. The considerations in assessing damages are the nature of injuries sustained; awards made in comparable cases such that awards made should be reasonable within the ranges of awards made by the superior courts in comparable cases. The cost of ination must be factored in where older awards are considered. 19. whether or not injuries pleaded have been proved; On the nature of injuries: in the plaint Injuries pleaded: paragraph 6 (I) pleaded under (a-c): Deep wound cut on 2nd index nger of right hand; fracture of 2nd distal phalange bone right nger; brunt (sic) object injury to the right hip. 20. The injuries are conrmed by both the p3 form exhibit ……and medical report Dr. Adede exhibit 4a. The injuries as conrmed by Dr. Adede in exhibit 4a are: report by Dr. Ajoni Adede upon examining Mnani nani Mwameri Chitsala the doctor concluded that he was injured: fractured the right nger bone index distal phalanx; right 2nd nger deformity; right 2nd nger stiness; defective right hand power and precision grips, which he assessed as 3% permanent partial disability. He opined that the fracture sites remain weak points for life even if bones unite; exposing plainti to accelerated bone and joint wear and tear; He conrmed the fracture from the Xray for 25/5/2025, and the p3 form as well as treatment notes conrm the injuries. 21. This court is satised that as assessed by Dr. Adede the plainti suered injuries as pleaded which have left him nger deformity on the right 2nd nger; stiness on 2nd nger and a defective right hand power and precision grips; fractures accelerate bone and joint wear and tear; fracture sites remain weak points for life even if bones unite. 22. The Injuries in this case were classied in the p3 form as Harm. Exhibit 6 from Samburu Sub county hospital dated 27/5/2025. 23. Proposed award by plainti Kshs. 700,000/= is considered. The availed decision in Kalei & another Vs Mooke & another Civil Appeal E003 of 2023 (2026) KEHC 4259 KLR (9 February 2026) Judgment Neutral Citation (2026 KEHC 4259 (KLR) has been considered. 24. In that case Kalei & another Vs Mooke & another. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/871/eng@2026-09-09 3

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25. appeal, the decision was made 9/2/2026 by Lady Justice Mumbua T. Matheka. It is a very recent decision. The issue for determination before the judge in the said appeal was whether or not Kshs. 400,000/= (paragraph 5 of the judgment) general damages for pain and suering was too high to warrant the court’s interference. The injuries in the cases were blunt injuries to the anterior chest wall; blunt injuries to the right ankle joint with swelling of the right ankle joint. 26. Judge Matheka was satised from the medical reports availed as stated in paragraphs 28 -32 of the decision that the medical reports showed that plainti had suered severe soft tissues injuries and while he had healed without any scars by the time the nal report was prepared; in assessing compensation the period prior to recovery when the plainti was limping due to pain and had to use an additional crutch to walk as his functioning leg was the leg injured could be ignored. Paragraph 39 and 40 of the decision. The judge found that the trial court had properly assessed damages taking into account not only the nature of injuries: soft tissue injuries but also the complications that the said soft injuries caused him. 27. The judge upheld the lower court award Kshs. 400,000/= nding that the award had not been demonstrated to be too high in the circumstances to warrant the award being disturbed. The appeal was dismissed with costs to the 1st respondent plainti. 28. The injuries in that case were not as severe in nature and extent as those involved in the case now at hand. 29. This court has considered, case of Charles Wangicho Ndungu & another Vs Gabriel Wahinya Munene (2022) KEHC 3023 KLR. The decision by Lady Justice G.W. Ngenye, relatively recent decision made on 21/4/2022. In that case Charles Wangicho the injuries proved as set out in paragraph 24 of the judgment were that ‘’grievous harm injuries were sustained and that the injuries would continue to be aggravated due to the advanced age of the respondent in that case. There was an apparent deformity on the left wrist with protruding distal radius bone and that there was weakened grip of the left hand (Paragraph 25).The judge found the report on soft tissue injuries relied upon by the appellant had not been adduced in court. It showed less severe injuries: cut wound on the right side forehead and bruises on the face; bruises on both legs and mouth injury with pain to the upper central incisor teeth. The judge awarded Kshs. 700,000/= on appeal setting aside an award by the trial court of Kshs. 1,000,000/ =. 30. In the case now before court Mnani plainti has proved to this court that he was injured on 25/5/2025 CHECK; the injuries. The injuries are conrmed by both the p3 form exhibit ……and medical report Dr. Adede exhibit 4a. 31. The injuries as conrmed by Dr. Adede in exhibit 4a are: report by Dr. Ajoni Adede upon examining Mnani nani Mwameri Chitsala the doctor concluded that he was injured: fractured the right nger bone index distal phalanx; right 2nd nger deformity; right 2nd nger stiness; defective right hand power and precision grips, which he assessed as 3% permanent partial disability. He opined that the fracture sites remain weak points for life even if bones unite; exposing plainti to accelerated bone and joint wear and tear. He conrmed the fracture from the Xray for 25/5/2025, and the p3 form as well as treatment notes conrm the injuries. 32. This court is satised that as assessed by Dr. Adede the plainti suered injuries as pleaded which have left him nger deformity on the right 2nd nger; stiness on 2nd nger and a defective right hand power and precision grips; fractures accelerate bone and joint wear and tear; fracture sites remain weak points for life even if bones unite. 33. General damages: In the circumstance the court nds the award proposed by the plainti is reasonable. A general damages award for pain, suering and loss of amenities is assessed at Kshs. Kshs. 700,000/ https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/871/eng@2026-09-09 4

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= as prayed, in favour of plainti against the defendant. The general damages award to earn interest at court rates from the date of this Judgment until paid in full. 34. Prayer b. Special damages pleaded at Paragraph 6 of the plaint: Kshs. 2,000/= medical report; medical expenses Kshs. 700/= ; copy of records Kshs. 550/= total Kshs. 3, 250/=. Have been proved through exhibits 4b receipt from Dr. Adede; bundle of receipts produced as exhibit 5: receipt from Tsunza medical care Kshs. 700/= ; receipt from NTSA for copy of records Kshs. 550/= 35. The court awards the plainti special damages Kshs. Kshs. 3, 250/=. Pleaded and proved. The award shall earn interest at court rates from the date of suit 1/12/2025 until paid in full. 36. Judgment is entered in favour of the plainti against the defendant for the awards above stated. 37. Awards in summary Judgment is entered in favour of the plainti against the defendant for the awards above stated: Kshs. 700,000/= general damages for pain suering and loss of amenities; Kshs. 3,250/= special damages with interest at court rates from date judgment and date of suit 1/12/2025 respectively. Costs of suit: Plainti issued demand letter to the defendant. 38. Cost of suit follows the event. The court awards the Plainti costs of suit against the defendant. 39. Appeal to Malindi High Court. Right of appeal as prescribed. JUDGMENT DATED, SIGNED & DELIVERED THIS 9TH DAY OF SEPTEMBER 2026 T. N. SINKIYIAN PRINCIPAL MAGISTRATE In presence of: For the plainti: Mr. Otwere: present Otieno Otwere & Associates Advocates Defendant:……absent. Court Assistant: Zulekha https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/871/eng@2026-09-09 5

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