Okwara v Tietie

6. PW1 Mombo Mariam Okwara adopted her witness statement dated 23rd July 2025 as her evidence in chief. She testified that the accident occurred along Moi Avenue within Bungoma town when the Defendant’s motor vehicle, which was being driven at a high speed, lost control and knocked her from behind, causing her to sustain severe injuries. 7. She produced all the documents in her list of documents dated 23rd July 2025 as exhibits. ANALYSIS AND DETERMINATION 8. This court has given due regard to the pleadings, the evidence on record, as well as the Plaintiff’s written submissions. 9. It is settled law in this jurisdiction 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.’’ 10. The duty of a party to prove the averments in their pleadings on a balance of probabilities as demanded by section 107 of the Evidence Act is not lessened even in instances where a case proceeds by way of formal proof. 11. The above legal position can be gleaned from Kirugi and Another Vs Kabiya & 3 Others (1987) KLR 347, where 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.” 12. Similarly, 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. 13. Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved her case on a balance of probabilities. 14. The record shows that an interlocutory judgment was entered against the Defendant. The Court of Appeal in Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors

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[2016] KECA 95 (KLR) stated as follows on the consequence of entering an interlocutory judgment against a Defendant: “It is now settled that once interlocutory judgment has been entered the question of liability becomes a foregone conclusion. In Felix Mathenge -v- Kenya Power Lighting Company Limited [Civil Appeal No. 215 of 2002] UR, the Court held: "The role of the court after entering interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages". 15. It is abundantly clear from the authority above that the entry of an interlocutory judgment against the Defendant settled the issue of liability in this case. Therefore, the Defendant must be held 100% liable for the accident. 16. The foregoing inclines this court to find that the only issue for determination is quantum. Quantum of Damages (a) General Damages for pain and suffering 17. The Plaintiff pleaded that the accident caused her to sustain a degloving injury to the right leg, and an open fracture of the right ankle. 18. The uncontroverted Plaintiff’s discharge summary from Bungoma County Referral Hospital dated 26th April 2025, the Medical Report dated 17 th June 2025 by Dr. Sokobe, and the P3 form on record produced by the Plaintiff corroborated the Plaintiff’s testimony that she sustained the severe injuries pleaded in paragraph 6 of the Plaint. 19. It is against this backdrop that this court finds and holds that the accident occasioned the Plaintiff a degloving injury to the right leg, and an open fracture of the right ankle. 20. The law in this jurisdiction is that comparable injuries must attract comparable awards (see Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR). 21. 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

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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. 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. 22. This court has given due regard to the guidelines in the authorities above, as well as the Plaintiff’s written submissions on quantum. 23. The Plaintiff submitted that an award of Kshs. 800,000/= was sufficient under this head. The Plaintiff relied on authorities where the Plaintiffs sustained injuries not comparable to the injuries suffered by the Plaintiff in this case. Those authorities are not applicable in this case. 24. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Njagi & another v Ngai (Civil Appeal E004 of 2024) [2025] KEHC 16471 (KLR) where the court awarded general damages of Kshs. 450,000/= for an open bimalleolar fracture of the right ankle and soft tissue injuries in November 2025. 25. Guided by the authority above, this court awards the Plaintiff general damages of Kshs. 450,000/=. (b) Future medical expenses 26. The Plaintiff pleaded for future medical expenses of Kshs. 200,000/= in her Plaint 27. The medical report on record by Dr. Sokobe shows that the Plaintiff requires Kshs. 200,000/= for open reduction and internal fixation. 28. The evidence on record on the claim for future medical expenses satisfied the threshold for a claim for medical expenses set out by the Court of Appeal in Tracom Limited & Another – vs-Hasssan Mohamed Adan [2009] eKLR. 29. In the absence of any other medical evidence to controvert Dr. Sokobe’s evidence on the cost of the Plaintiff’s future medical expenses, this Court awards the Plaintiff Kshs. 200,000/= under this head. (c)Special Damages 30. The Plaintiff pleaded for special damages of Kshs. 13,750/= as particularized in paragraph 7 of her Plaint.

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31. The receipts for special damages on record from NTSA and Dr. Sokobe proved special damages of Kshs. 6,550/=. 32. Given the above, this court finds that the Plaintiff pleaded and proved Special Damages of Kshs. 6,550/=. DETERMINATION 33. Given the foregoing, judgment is entered against the Defendant in the following terms:a. Liability……………………………………….100% b. General Damages…………………...………Kshs. 450,000/= c. Future Medical Expenses…………………..Kshs. 200,000/= d. Special Damages……………………...…….Kshs. 6,550/= Net Award…………………………Kshs. 656,550/= 34. 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. 35. The Plaintiff will have the costs of this suit. 36. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 07th day of September 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: C/A: Mr. Rioba

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