Manase Kuria Kamau v Gideon Weitirori Ole Sanamwala

Defendant was the beneficial, equitable, legal and/or registered owner or manager of motor vehicle registration number KCX 129R and was vicariously liable for the acts or omissions of its driver, servant or agent. 4. The Plaintiff pleaded that on 5th June 2024, while he was a lawful pedestrian along the Narok–Nakuru Road at Saiyet area, the Defendant’s motor vehicle was negligently, recklessly and carelessly driven, causing it to lose control, veer onto his path and knock him down. The particulars of negligence included excessive speed, failure to keep proper control and lookout, failure to stop or take evasive action, driving on the wrong side of the road, improper overtaking, failure to observe traffic rules and failure to warn other road users. The Plaintiff relied on the doctrines of res ipsa loquitur, the Highway Code and the Traffic Act. 5. As a result of the accident, the Plaintiff claimed to have sustained severe head injury with loss of consciousness, brain contusion and intraparenchymal bleeding; an open fracture of the right tibia and fibula; non-union; and osteomyelitis. He stated that he was treated as an inpatient at Nakuru Teaching and Referral Hospital on two occasions and was subsequently examined by an independent doctor. 6. The Plaintiff claimed special damages of Kshs.471,568, comprising Kshs.6,000 for a medical assessment report, Kshs.550 for a motor vehicle search, Kshs.165,018 in treatment expenses, and Kshs.300,000 for future treatment, together with any further medical expenses proved at trial. He further pleaded that he reported the accident at Narok Police Station, recorded a statement and was issued with a P3 form and Police Abstract. NAROK MCCC NO. E303 OF 2024 Page 2 of 14

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7. The Plaintiff averred that despite issuing a demand and notice of intention to sue, the Defendant had failed or refused to compensate him. He therefore sought general damages, special damages, costs of the suit and interest, together with such further relief as the Court may deem appropriate. C. EVIDENCE i. Plaintiff’s Evidence 8. PW1, Manase Kuria Kamau, the Plaintiff, testified that he is a resident of Nyahururu and identified himself by National Identity Card Number 25057134. He adopted his witness statement dated 10th December 2024 as his evidence in chief and produced the documents contained in his list of documents dated the same date as Plaintiff’s Exhibits 1–9. He stated that he had not fully recovered from the injuries sustained and prayed that judgment be entered in accordance with the Plaint. 9. In his adopted statement, the Plaintiff testified that on 5 th June 2024, he was lawfully walking along the Narok–Nakuru Road at Saiyet area when motor vehicle registration number KCX 129R, which he attributed to the Defendant, was negligently, recklessly and carelessly driven, managed or controlled, lost control, veered onto his path and knocked him down. He blamed the Defendant for the accident. 10.The Plaintiff stated that, as a result of the accident, he sustained a severe head injury with loss of consciousness, brain contusion and intraparenchymal bleeding; an open fracture of the right tibia and fibula; and subsequently developed non-union and osteomyelitis. He testified that he was admitted and treated at Nakuru Teaching and Referral Hospital on two occasions and was also examined by an independent doctor, Dr. J. Sokobe. NAROK MCCC NO. E303 OF 2024 Page 3 of 14

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11.The Plaintiff further testified that he incurred medical and related expenses, including Kshs.6,000 for the medical assessment report, Kshs.550 for the search of motor vehicle registration number KCX 129R, and Kshs.165,018 in treatment expenses. He also claimed Kshs.300,000 for further treatment. He produced receipts and other supporting documents in proof of the expenses claimed. 12.The Plaintiff stated that following the accident, he reported the matter at Narok Police Station, recorded a statement and was issued with a P3 form and Police Abstract. He further testified that he instructed his advocates to issue a demand and statutory notice to the Defendant and the Defendant's insurer, but no response was received. He consequently instituted the present suit seeking compensation for the injuries and losses suffered, together with costs of the suit. 13.The documentary evidence produced by the Plaintiff included the demand notice and postage certificate, statutory notice and postage certificate, treatment records from Nakuru Teaching and Referral Hospital, medical report and receipt from Dr. J. Sokobe, receipts for special damages, his National Identity Card, Police Abstract, P3 form, and the NTSA search records and receipt relating to motor vehicle registration number KCX 129R. D. PARTIES ' SUBMISSIONS. i. The Plaintiff’s Submissions. 14.The Plaintiff submitted that the suit arose from a road traffic accident that occurred on 5th June 2024 along the Narok–Nakuru Road at Saiyet area, in which he was knocked down by motor vehicle registration number KCX 129R. The Defendant neither entered appearance nor filed a defence, resulting in default judgment being entered on 29th July 2025, after which the matter NAROK MCCC NO. E303 OF 2024 Page 4 of 14

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proceeded by way of formal proof. The Plaintiff testified on 7 th July 2026 and produced documentary evidence in support of his claim. The submissions addressed liability, quantum and costs. 15.On liability, the Plaintiff submitted that the Defendant was liable for the accident on account of negligent management and control of the motor vehicle. Relying on Elizabeth Gathoni Thuku (Suing as the Legal Representative of the Estate of Charles Gitonga Wathuta) v Peter Kamau Maina & Another, the Plaintiff submitted that liability in a civil claim turns principally on determining who acted carelessly or recklessly so as to cause the accident. It was further submitted that under section 107 of the Evidence Act, Cap. 80, the initial burden of proving negligence rested upon the Plaintiff, which burden had been discharged through his oral and documentary evidence. The Plaintiff contended that the Defendant owed a duty of care to other road users, including pedestrians, and that the unchallenged evidence established that the Plaintiff was a lawful pedestrian, the Defendant's motor vehicle was negligently controlled, and the accident caused the pleaded injuries. Reliance was placed on Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR for the proposition that uncontroverted evidence stands unless it is inherently incredible. The Plaintiff therefore urged the Court to find the Defendant liable for the accident and resulting injuries. 16.On quantum, the Plaintiff submitted that the purpose of damages in personal injury claims is to compensate the injured party for the consequences of the injuries sustained, and that assessment of damages is a matter within the Court's discretion. The Plaintiff relied on Ratemo v Ogaro (Civil Appeal E098 of 2021) [2024] KENSC 14539 (KLR) (18 November 2024) in support of the principle governing assessment of damages. In respect of special damages, the NAROK MCCC NO. E303 OF 2024 Page 5 of 14

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Plaintiff sought Kshs.171,568, which he submitted had been specifically pleaded and proved through receipts and other documentary evidence. He further sought Kshs.300,000 for future medical expenses, contending that the same had been specifically pleaded and supported by the medical report of Dr. J. Sokobe. Reliance was placed on Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR), where the Court of Appeal held that future medical expenses must be specifically pleaded and proved, and that although the amount need not be exact, it must constitute a reasonable estimate supported by medical evidence. 17.As regards general damages, the Plaintiff submitted that he sustained severe injuries, namely a severe head injury accompanied by loss of consciousness, brain contusion and intraparenchymal bleeding, an open fracture of the right tibia and fibula, non-union and osteomyelitis. He contended that the injuries occasioned substantial pain, prolonged treatment and loss of amenities. He initially referred to an award of Kshs.1,500,000 in Isaac K. Chemjor & Another v Laban Kiptoo [2019] KENSC 1129 (KLR) as a comparable award, but urged the Court, taking into account the passage of time and prevailing economic conditions, to award Kshs.3,500,000 as general damages for pain, suffering and loss of amenities. 18.On costs, the Plaintiff relied on section 27 of the Civil Procedure Act, Cap. 21, submitting that costs ordinarily follow the event. Reliance was further placed on Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR, where the Court affirmed that a successful party should ordinarily be awarded costs unless there is a good reason to depart from that position. The Plaintiff therefore urged the Court to award him the costs of the suit, having established NAROK MCCC NO. E303 OF 2024 Page 6 of 14

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his claim and having demonstrated that demand and statutory notices had been served upon the Defendant and the insurer. 19.In conclusion, the Plaintiff urged the Court to enter judgment in his favour and award Kshs.3,500,000 as general damages, Kshs.171,568 as special damages, Kshs.300,000 as future medical expenses, together with costs of the suit and interest. E. ISSUES FOR DETERMINATION 20.From the pleadings, evidence and submissions, the issues arising for determination are: i. Whether the Plaintiff proved the Defendant’s liability for the accident; ii. Whether the Plaintiff is entitled to general damages and, if so, the appropriate award; iii. Whether the Plaintiff proved the claim for special damages of Kshs.171,568/= and future medical expenses of Kshs.300,000/=; and iv. Who should bear the costs of the suit. F. ANALYSIS AND DETERMINATION i. Liability 21.The Plaintiff bears the legal burden of proving the facts upon which his claim is founded. Section 107(1) of the Evidence Act, Cap. 80 provides that: NAROK MCCC NO. E303 OF 2024 Page 7 of 14

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“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.” 22.Sections 108 and 109 of the Evidence Act further provide for the incidence of the burden of proof in civil proceedings. The Court of Appeal in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR affirmed that the legal burden rests upon the party who substantially asserts the affirmative of the issue, although the evidential burden may shift depending on the circumstances of the case. 23.The standard applicable is proof on a balance of probabilities. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal explained that the burden is discharged where the evidence establishes that an occurrence was more probable than not. 24.In the present case, the Plaintiff testified that on 5th June 2024 he was a lawful pedestrian along the Narok–Nakuru Road at Saiyet area when motor vehicle registration number KCX 129R lost control, veered onto his path and knocked him down. He attributed the accident to the negligent driving and management of the motor vehicle. 25.The Plaintiff's evidence was not challenged by any evidence from the Defendant. Indeed, the Defendant neither entered appearance nor filed a defence, leading to interlocutory judgment being entered on 29 th July 2025. The matter thereafter proceeded by way of formal proof. 26.The Plaintiff produced, among other documents, the Police Abstract, P3 form, NTSA search records relating to motor vehicle registration number KCX 129R, NAROK MCCC NO. E303 OF 2024 Page 8 of 14

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treatment records, medical report and receipts. The NTSA search record supported the Plaintiff's pleading regarding the motor vehicle. The Police Abstract and P3 form further corroborated the occurrence of the accident and the injuries complained of. 27.The absence of a defence or evidence from the Defendant does not, by itself, relieve the Plaintiff of the obligation to establish his claim. However, once the Plaintiff placed before the Court credible evidence which remained wholly unrebutted, there was no competing version of how the accident occurred. 28.The position was aptly stated in Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR, where the Court observed that uncontroverted evidence stands unless it is inherently incredible. In the present case, I find no reason to regard the Plaintiff's testimony as inherently incredible. 29.I therefore find that the Plaintiff proved, on a balance of probabilities, that motor vehicle registration number KCX 129R was negligently driven and controlled, lost control and knocked him down while he was a lawful pedestrian. The pleaded particulars of negligence are consequently proved. 30.I further find that the accident and the injuries suffered by the Plaintiff are causally connected. There is no evidence before the Court of any intervening cause or contributory negligence on the part of the Plaintiff. Accordingly, the Defendant is held 100% liable for the accident and the injuries sustained by the Plaintiff. ii. General damages 31.The purpose of general damages in a personal injury claim is to compensate the claimant for pain, suffering and loss of amenities, and not to enrich him. The NAROK MCCC NO. E303 OF 2024 Page 9 of 14

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assessment is discretionary and must take into account the nature and extent of the injuries, comparable awards and the passage of time. 32.In Charles Oriwo Odeyo v Apollo Justus Andabwa & Another [2017] eKLR, the Court stated that an award of damages should be commensurate with the injuries sustained; previous awards are useful guides; inflation and changes in the value of money should be considered; and awards should neither be inordinately high nor inordinately low. 33.The Plaintiff sustained a severe head injury with loss of consciousness, brain contusion and intraparenchymal bleeding; an open fracture of the right tibia and fibula; and subsequently developed non-union and osteomyelitis. He was admitted at Nakuru Teaching and Referral Hospital on two occasions and required further treatment. 34.These are substantial injuries involving both neurological trauma and serious injury to the right lower limb, complicated by non-union and osteomyelitis. The injuries are consequently more serious than a simple fracture of the tibia and fibula. 35.The Plaintiff relied on Isaac K. Chemjor & Another v Laban Kiptoo [2019] KEHC 1129 (KLR), where the High Court upheld an award of Kshs.1,500,000/= for general damages in respect of serious injuries. The Court emphasized the established principle that comparable injuries should attract comparable awards. 36.I have considered that authority together with the nature of the injuries in the present case. I have also taken into account the principle that previous awards NAROK MCCC NO. E303 OF 2024 Page 10 of 14

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are guides rather than binding precedents, and that each case must be determined on its own facts. 37.In the circumstances, and considering the severity of the Plaintiff's injuries, the complications of non-union and osteomyelitis, the period of treatment and the continuing effects complained of, I find that an award of Kshs.2,500,000/= is fair and reasonable compensation for pain, suffering and loss of amenities. iii. Special damages and future medical expenses 38.Special damages must be specifically pleaded and strictly proved. The Court of Appeal reaffirmed this principle in Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR) and explained that claims falling under special damages require specific pleading and proof. 39.In the present case, the Plaintiff pleaded expenses for the medical assessment report, motor vehicle search and treatment. He produced receipts in support of the expenses. The amounts pleaded and supported by the evidence are Kshs.6,000/= for the medical assessment report, Kshs.550/= for the motor vehicle search and Kshs.165,018/= for treatment, making a total of Kshs.171,568/=. 40.I am satisfied that these sums were specifically pleaded and sufficiently proved by the documentary evidence produced by the Plaintiff. I therefore award Kshs.171,568/= as special damages. 41.The Plaintiff also pleaded and claimed Kshs.300,000/= for future medical expenses. Unlike expenses already incurred, future medical expenses are in the nature of special damages and must be specifically pleaded and proved by medical evidence. The Court of Appeal in Tracom Limited & Another v NAROK MCCC NO. E303 OF 2024 Page 11 of 14

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Hassan Mohamed Adan [2009] KECA 48 (KLR) held that the need for future medical care is a special claim which must be pleaded and proved, although an approximate amount may be pleaded because the exact future cost may depend on circumstances obtaining when treatment is undertaken. 42.In the present case, the Plaintiff specifically pleaded Kshs.300,000/= for further treatment. His medical report by Dr. J. Sokobe was produced in evidence and was not challenged. The medical evidence supports the need for further treatment arising from the injuries sustained in the accident. 43.I therefore find that the Plaintiff has proved the claim for future medical expenses and award him Kshs.300,000/= under this head. iv. Costs 44.Section 27(1) of the Civil Procedure Act, Cap. 21 provides that costs of and incidental to all suits shall follow the event unless the Court, for good reason, orders otherwise. 45.In Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] KEHC 7064 (KLR), the High Court reiterated that the successful party should ordinarily be awarded costs unless there exists a good reason to depart from that position. 46.The Plaintiff has succeeded in establishing his claim. There is no reason to depart from the general rule that costs follow the event. The Plaintiff is therefore entitled to the costs of the suit. G. DISPOSITION NAROK MCCC NO. E303 OF 2024 Page 12 of 14

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47.In the result, judgment is hereby entered for the Plaintiff against the Defendant at 100% liability in the following terms: a. General damages for pain, suffering and loss of amenities – Kshs.2,500,000/=; b. Special damages – Kshs.171,568/=; c. Future medical expenses – Kshs.300,000/=; d. Costs of the suit; and e. Interest on the general damages and future medical expenses at court rates from the date of this judgment until payment in full, and interest on the special damages at court rates from the date of filing suit until payment in full. 48.The total monetary award, exclusive of costs and interest, is therefore Kshs.2,971,568/=. 49.It is so ordered. Dated, Signed, and Delivered at Narok This 22nd Day of September, 2026. HON. H.M. NYABERI CHIEF MAGISTRATE In the Presence of: NAROK MCCC NO. E303 OF 2024 Page 13 of 14

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Court Assistant: Mr. Danson Solian Plaintiff’s Advocate: Mr. Gaylord Defendant’s Advocate: No Appearance NAROK MCCC NO. E303 OF 2024 Page 14 of 14

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