Mogaka v Mutiro

5. The Defendant was served but did not enter appearance. Interlocutory Judgement was entered on 5th April,2018 against the Defendants and the matter proceeded for Formal Proof hearing on 2nd July,2026. The Plainti's Case 6. The Defendant did not enter a Defence and Interlocutory Judgment was entered against her. The matter therefore proceeded for formal proof on the question of the damages payable to the Plainti. 7. On 19th August 2026, the Plainti, through his advocate Mr. Musyoki, proceeded with the formal proof. The Plainti adopted his witness statement dated 30 March 2016 as his evidence and produced the documents in his bundle as P Exhibits 1–7). He urged the Court to enter judgment in accordance with the Plaint. 8. The Plainti's submissions dated 18th August 2026 were thereafter led. The Plainti submitted that the evidence established that the accident was caused by the negligence of the Defendant's driver, servant or agent. Reliance was placed on the doctrine of res ipsa loquitur and the decision in Mwaka Chije Barisa v Abdul Hakim Abdala & Another [2018] eKLR. 9. On quantum, the Plainti submitted that he sustained a fracture of the right tibia and bula, which was supported by the treatment notes, P3 Form and medical report. He proposed an award of Kshs. 900,000.00 as General Damages for pain, suering and loss of amenities. He relied, inter alia, on Gitau Peris v Gerald Njoroge Chege [2020] eKLR, where Kshs. 800,000 was awarded for more extensive injuries that included a compound fracture of the right tibia and bula. The Plainti also relied on H. West & Son Ltd v Shephard [1964] AC 326 for the principle of comparable awards. 10. The Plainti further submitted that he had specically pleaded and proved Special Damages of Kshs. 4,200.00 and urged the Court to award the same. Analysis and Issues for Determination 10. From the pleadings, evidence and submissions, the issues falling for determination are: a. Whether the Plainti proved his case on liability notwithstanding the interlocutory judgment; b. What quantum of general damages is appropriate for the injuries sustained by the Plainti; c. Whether the Plainti proved the claim for special damages; and d. Who should bear the costs of the suit and interest. Liability 11. The evidence before the Court is that the Plainti was a lawful passenger in motor vehicle registration number KBY 287H on 1 September 2015 when the vehicle was involved in an accident. The Plainti's evidence is that the vehicle was being driven at an excessive speed, hit a pothole and, as a result, he was thrown out of the vehicle and subsequently ran over by the vehicle. 12. The Defendant did not enter a defence and did not controvert the Plainti's pleadings or evidence. More importantly, Interlocutory Judgment had already been entered against the Defendant. The purpose of the formal proof was therefore principally to establish the damages to which the Plainti was entitled. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/939/eng@2026-09-23 2

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13. In any event, the circumstances of the accident, as narrated by the Plainti, point to negligence on the part of the person who had control of the Motor Vehicle. The doctrine of res ipsa loquitur is applicable where the circumstances of an accident are such that, in the ordinary course of things, the accident would not have occurred without negligence and the instrumentality causing the accident was under the control of the Defendant or her agent. 14. I am satised that the Plainti established, on a balance of probabilities, that the accident was caused by the negligence of the Defendant's driver, servant or agent. The Defendant, as the registered owner of the vehicle, is consequently liable for the negligence of her authorised driver, servant or agent. 15. I therefore enter Judgment on liability at 100% against the Defendant. Quantum 16. The Plainti's evidence is that he sustained a fracture of the right tibia and bula. The medical evidence and treatment documents produced in evidence support the injuries pleaded and relied upon by the Plainti. 17. The assessment of General Damages is an exercise of judicial discretion. The Court must consider the nature and extent of the injuries, the pain and suering endured, the eect of the injuries on the Plainti's life and comparable awards made in similar cases. 18. The guiding principle is that comparable injuries should, as far as possible, attract comparable awards. In Simon Taveta v Mercy Mutitu Njeru, Civil Appeal No. 26 of 2013 [2014] eKLR, the Court of Appeal held that the context in which compensation is evaluated is determined by the nature and extent of the injuries and comparable awards made in the past. The Court further emphasised that no two cases are exactly alike. 19. Similarly, in H. West & Son Ltd v Shephard [1964] AC 326, the Court emphasised the desirability of reasonable uniformity in the assessment of damages and that, as far as possible, comparable injuries should attract comparable awards. This principle has consistently been applied by Kenyan courts. 20. I have considered the authority of Gitau Peris v Gerald Njoroge Chege [2020] eKLR, relied upon by the Plainti. In that case, the claimant sustained, among other injuries, a compound fracture of the right tibia and bula, together with other injuries and permanent disability, and the High Court awarded Kshs. 800,000.00 as General Damages for pain and suering. 21. The Plainti's injuries in the present case, on the evidence before me, are less extensive than those in Gitau Peris. The latter involved a compound fracture together with additional injuries and a 30% permanent disability. The award of Kshs. 800,000.00 in that case therefore provides useful guidance, but cannot be mechanically applied. 22. I have also considered other comparable authorities. In Hussein Sambur Hussein v Shari A. Abdulla Hussein & 2 Others [2022] eKLR, the claimant sustained fractures of the right tibia and bula, a dislocation of the right ankle and other injuries, with 18% permanent incapacity, and an award of Kshs. 700,000 was maintained on appeal. 23. In New Nairobi United Services Ltd & Another v Kiiru [2023] KEHC 22149 (KLR), the Court referred to authorities where awards of Kshs. 800,000.00 had been made for comparable tibia and bula fractures, including Gitau Peris v Gerald Njoroge Chege. 24. More recent decisions also demonstrate that awards must take into account the passage of time and ination, while maintaining consistency with established awards. In Mmbaya v Watu Nominee Co.Ltd https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/939/eng@2026-09-23 3

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& Another [2025] KEHC 11473 (KLR), the Court expressly recognised the eect of ination and the passage of time when considering older comparable awards. 25. I have carefully considered the authorities, the nature of the Plainti's injuries and the submissions made. Taking into account the passage of time since the earlier comparable awards, but bearing in mind that the Plainti sustained a fracture of the right tibia and bula without evidence before me of the additional injuries or permanent disability present in some of the cited authorities, I nd that an award of Kshs. 800,000.00 is fair and reasonable compensation for pain, suering and loss of amenities. 26. I accordingly award the Plainti Kshs. 800,000.00 as General Damages. Special Damages 27. The Plainti pleaded Special Damages of Kshs.4,200.00 Special Damages must be specically pleaded and strictly proved. 28. I have considered the documents produced by the Plainti. The Plainti has demonstrated the expenditure pleaded under this head and I am satised that the sum of Kshs.4,200.00 has been proved. 29. I therefore award the Plainti Kshs.4,200.00 as Special Damages. Disposition 30. In the result, Judgment is entered for the Plainti against the Defendant as follows: General damages for pain, suering and Loss of Amenities.......................................................Kshs.800,000.00 Special Damages......................................................... Kshs4,050.00 Total ...........................................................................Kshs.804,050.00 31. The Plainti shall have the costs of the suit. Interest on the General Damages shall accrue at court rates from the date of this Judgment until payment in full, while interest on the Special Damages shall accrue at court rates from the date of ling suit until payment in full. 30 Days Right of Appeal. JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 23RD DAY OF SEPTEMBER,2026 __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE In the Absence of parties Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/939/eng@2026-09-23 4

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