Moses Baya Shida v Kinatwa Prestige Limited

6; demand letter exhibit 7, copy of Identity card copy exhibit 8, exhibit 9 motor vehicle search records KDP 447S Matatu exhibit 9. 6. Plaintiff closed on 20/68/2026. The matter was not defended. 7. Plaintiff with leave filed closing submissions dated 20/8/2026. 8. The issues identified for determination in the plaintiff’s submissions: plaintiff submits that with entry interlocutory judgment 4/6/2026 liability issue was determined 100% liability against the defendant. Thus the only question of quantum of damages is to be determined here. Case relied upon for the submission on liability: Patrick Mwenda Bucha VS Raphael Mainka Ole Seya & Ano (2007) eKLR. 9. Plaintiff submits he has demonstrated he suffered injuries as pleaded and proposes as reasonable compensation Kshs. 400,000/= general damages for pain suffering and loss of amenities. 10. Special damages: Kshs. 2,150/= pleaded and proved. The Plaintiff incurred medical treatment expenses of Kshs. 150/= and incurred cost Kshs. 2,000/= paid to Dr. Ajoni Adede for the medical exam done. Report dated 30th October, 2024 is relied upon. Having produced receipts Pexh-4 and Pexh-5, special damages were not only specifically pleaded but also proved and thus an award Kshs. 2,150/= be made to the plaintiff. 11. Who bears the costs of the suit? Costs & Interest: costs follow the event as the Plaintiff proved the case on a balance of probabilities and should be awarded costs of suit. 12. Plaintiff relies on supporting documents produced as exhibits: the P3 form, treatment notes from Mariakani SubCounty Hospital and a Medical report prepared by Dr. Ajoni Adede dated 30th October, 2024 produced as Pexh-2, Pexh-3 and Pexh4 respectively and urges court to find the Defendant 100% liable for causing the accident and in finding so to be guided by HCCC 1091 of 2002 PATRICK MWENDA BUCHA VS RAPHAEL MAINKA OLE SEYA & ANO (2007) eKLR where it was held; “Once an interlocutory judgment has been entered, liability is at 100% against the defendant.”. 13. Cases relied upon in support of the award; Catherine Wanjiru & 3 others vs Gibson Theuri Gichubi HCC No. 320 of 1998: The 1st plaintiff in this case had suffered injury to the left ankle, injuries on the leg and injuries on the chest and court awarded the 1st plaintiff a global sum of Kshs. 300,000. The 3rd MARIAKANI SPMCC E037 OF 2025 /Judgment/Soft tissue injuries 2

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plaintiff who had suffered multiple soft tissue injuries, injury on the left elbow joint and injuries on both ankles was awarded Kshs. 350,000/=. Plaintiff submits in the current case Moses: suffered soft tissue injuries similar to the Plaintiffs in the Catherine case above, and plaintiff testified that he has not fully recovered; he experiences pain from the injuries. 14. Special damages of Kshs. 2,150/=: Submits as result of the accident, the Plaintiff incurred medical treatment expenses of Kshs. 150/-. He also incurred Kshs. 2,000/- being expenses in obtaining Dr. Ajoni Adede’s report dated 30/10/2024. These expenses were supported by the production of receipts indicating the same as Pexh-4 and Pexh-5. 15. That were it not for the defendant and/or his authorized driver’s, servant and and/or employee’s negligent actions the plaintiff would not have suffered. Costs of suit be awarded to plaintiff.Plaintiff has discharged his burden of proving his case on the required balance of probability. Costs follow the event. 16. Submissions dated 20th August, 2026. 17. ANALYSIS AND FINDINGS: The court has considered the evidence tendered by the plaintiff and the plaintiff’s submissions. 18. 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 (plaintiff), and the court had no reason to disbelieve his testimony.’’. 19. With a default Interlocutory Judgment in favour of the plaintiff, the question of liability for the accident is settled as the defendant failed to defend the suit despite due service. 20. The holding in David Mwangi Kariuki & another Vs Stephen Mwangi &another (2017)eKLR by Justice Mulwa that a police abstract does not prove how the accident occurred,and that it was upon the respondent in the matter before that court, to call and tender credible evidence on how the accident MARIAKANI SPMCC E037 OF 2025 /Judgment/Soft tissue injuries 3

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occurred, and to prove the negligence on the driver’s part is applies in this case. 21. The plaintiff’s uncontroverted testimony supported by the exhibits tendered prove causation of the accident. Plaintiff as an eye witness narrated how the matatu driver of KDP 4476S the matatu plaintiff was travelling in, caused the accident. Police abstract exhibit 1 shows the plaintiff was a passenger in KDP 447S on 27/10/2024 accident was reported under O OB 03/27/10/2024 at Mariakani police Traffic. The vehicles involved in the 7am accident are the ones involved in this case KDP 447S and KAY 337K/ZC5746 Actros. Moses Baya Shida is among those injured; injury: harm. The adopted witness statement dated 16/12/2024 is supported by the police abstract produced as exhibit 1. 22. The police abstract shows driver for KDP 447S one Oanda was investigated for driving without due care. The result of investigation paragraph 7 of the police abstract indicates matatu KDP 447S, for Kinatwa Sacco was to blame for the accident. 23. Causation and proof of liability for the accident. The plaintiffs case as pleaded and his testimony consistently blames the occurrence of the accident on the negligence of the driver of the matatu plaintiff was travelling in KDP 447S. This court finds the plaintiff’s evidence is uncontroverted, and finds that plaintiff PW 1 was injured on 27/10/2024 while traveling as a passenger. 24. The court finds the occurrence of the accident is proved to the required standard. The plaintiff’s claim against the defendant as owner of the matatu has been proved as required in the law. Ownership of the motor vehicle was proved vide motor vehicle copy of records exhibit 9. 25. The plaintiff’s testimony has not been rebutted. Neither the driver of the matatu nor the owner defended the negligence case. 26. The court finds the plaintiff was injured as he has pleaded and he has adduced evidence that proves the nature of the injuries. 27. It is worth noting that this court dismissed civil case no. E036/2025 where the accident the subject of this case was also in issue, and equally found occurrence of the accident of 27/10/2024 had been established. That suit was however dismissed for reasons of the plaintiff in that case self contradictory evidence that tilted balance in favour of the MARIAKANI SPMCC E037 OF 2025 /Judgment/Soft tissue injuries 4

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defendant in that case. Each case is determined on its own merits. 28. This court finds both occurrence and causation have been proved and the defendant's liability established, 100%. 29. On quantum: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 inflation must be factored in where older awards are considered. 30. The plaintiff’s submissions on quantum have been considered. The proposed award of Kshs. 400,000/= general damages for pain, suffering and loss of amenities is reasonable. Plaintiff’s submissions on quantum are founded given the nature of injuries suffered: soft tissue injuries that did not result in any partial or permanent disability. 31. General damages: In the circumstance the court finds the award proposed by the plaintiff is reasonable. General damages award for pain, suffering and loss of amenities is assessed at Kshs. Kshs. 400,000/= as prayed, in favour of plaintiff against the defendant. The general damages award to earn interest at court rates from the date of this Judgment until paid in full. 32. Special Damages: total pleaded and particularised: Kshs. 2,150/=; receipts have been produced: medical receipts: Kshs. 150/= and medical report by Dr. Ajoni Adede receipt for Kshs. 2,000/= produced. Court awards Kshs. 2,150/= special damages, the same shall earning interest from date of suit until full payment, had liability been proved 33. The reliefs sought in the plaint are warranted. 34. On costs of suit: the defendant shall have costs of suit borne by the plaintiff. Appeal to Malindi High Court. Right of appeal as prescribed. 35. Copy of the judgment be forwarded via email given that the CUC afternoon meeting rendered reading of the judgment in plaintiff’s presence difficult. JUDGMENT DATED, SIGNED & DELIVERED THIS 24th DAY OF SEPTEMBER 2026 T. N. SINKIYIAN, Principal Magistrate IN PRESENCE OF: Plaintiff:Represented by: Bosire & Partners Advocates: ABSENT MARIAKANI SPMCC E037 OF 2025 /Judgment/Soft tissue injuries 5

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Defendant: ABSENT Court Assistant:…Zulekha & Wesonga MARIAKANI SPMCC E037 OF 2025 /Judgment/Soft tissue injuries 6

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