Moses Musyoka Daud v John Ngugi Macharia & Boniface Fundi

3. The Plaintiff pleaded that as a result of the accident he sustained fractures involving the right 2nd, 3rd, 4th and 5th metacarpals, pain in the right foot, difficulty walking and a surgical scar, with metal implants remaining in situ. He pleaded permanent incapacity at 8%, future medical expenses of Kshs.150,000/= for removal of the implants, special damages of Kshs.22,310/=, and damages for diminished earning capacity, in addition to general damages, costs and interest. The pleadings and Plaintiff's evidence confirm the accident date as 31st July 2023 and the Plaint was filed on 24th April 2024. THE PLAINTIFF'S CASE 4. The Plaintiff testified as PW1. He stated that he was a boda boda operator and that on 31st July 2023 he was riding Motorcycle Registration Number KMEU 479A towards Donholm. He testified that he was wearing a helmet and reflector jacket. 5. His evidence was that Motor Vehicle Registration Number KCD 868Z, travelling in the same direction, was being driven at excessive speed and in a reckless and careless manner. The motor vehicle veered from its lane and knocked him down. He consequently sustained serious injuries. This evidence is consistent with his written statement in which he described the manner in which the accident occurred. 6. Immediately following the accident, the Plaintiff was taken to Mama Lucy Kibaki Hospital, where he received first aid. He was thereafter referred to Victory Hospital, where he was admitted on 2nd August 2023 and discharged on 6th August 2023. He subsequently attended medical reviews. He later reported the accident at Makongeni Police Station, where he recorded his statement and was issued with a P3 form and Police Abstract. 7. The Plaintiff testified that he was a casual labourer at Apex Steel Company, earning approximately Kshs.731/= per day, and that because of his injuries he was no longer able to fully resume his work. 8. During Cross-Examination, PW1 maintained that he was injured in the accident and explained that he sustained injuries to his right hand/fingers for which metal implants were inserted. He stated that he had not fully recovered and continued to experience the effects of the injuries.

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9. PW1 adopted his witness statement dated 19th April 2024 as his evidence in chief and relied on the documents produced on his behalf. He maintained that Motor Vehicle Registration Number KCD 868Z was responsible for the accident and sought compensation. Documentary Evidence on Liability 10. The Plaintiff produced and relied upon the Copy of Records, which indicates that the 1st Defendant, John Ngugi Macharia, was the registered owner of Motor Vehicle Registration Number KCD 868Z. The ownership evidence was not rebutted by any defence witness or documentary evidence. 11. The Plaintiff also produced the Police Abstract dated 14th August 2023. The abstract identifies Motor Vehicle Registration Number KCD 868Z as the vehicle involved in the accident and records Boniface Fundi, the 2nd Defendant, as the driver on the material date. The Abstract further indicates that the matter was still pending under investigations. 12. I have considered the evidential value of the Police Abstract. A Police Abstract, by itself, is not conclusive proof of negligence. The fact that the abstract indicated that investigations were pending does not, however, extinguish the Plaintiff's civil claim. The court must determine negligence on the totality of the evidence presented before it. 13. In Mutiga Kamai alias Japhet Mutia Kamai v Pius Muthuri Mukaria [2020] eKLR, the High Court held that a Police Abstract is prima facie evidence of the occurrence of an accident and that where the Plaintiff gives direct evidence of how the accident occurred, the absence of completed police investigations does not prevent the court from determining liability. The court in that case found liability at 100% where the Plaintiff's direct evidence was not rebutted. 14. Similarly, in Kennedy Muteti Musyoka v Abedinego Mbole [2021] eKLR, the High Court observed that civil liability may be proved notwithstanding the fact that the traffic matter is still pending investigation, where there is independent evidence establishing negligence. THE DEFENCE CASE

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15. The Defendants filed a joint Statement of Defence dated 13th May 2024, filed in court on 17th May 2024. They denied ownership, negligence, the occurrence of the accident in the manner pleaded, the injuries and the claim for damages. In the alternative, they alleged that the accident was wholly or substantially caused by the Plaintiff's own negligence. The Defence specifically pleaded that the Plaintiff failed to take adequate precautions for his safety and failed to comply with traffic rules. 16. However, at the hearing, the Defendants did not call any witness to substantiate the matters pleaded in their Defence. In particular, the 1st Defendant did not testify to rebut the Copy of Records showing him as the registered owner of motor vehicle KCD 868Z; the 2nd Defendant did not testify to deny that he was driving the vehicle on the material date; and no investigating officer was called to challenge the Plaintiff's account of the accident. 17. The Defendants did not also file the Written Submissions which the Court had directed them to file. The Court therefore has before it the Plaintiff's evidence and submissions, together with the documentary evidence properly admitted in evidence, but no defence testimony or written submissions. 18. I am nevertheless mindful that the failure by the Defendants to call evidence does not automatically entitle the Plaintiff to judgment. The Plaintiff still bears the legal burden of proving his case on a balance of probabilities. Section 107 of the Evidence Act places the burden upon the person who asserts the existence of a fact. The High Court has recently reiterated that a Plaintiff must establish his case even where the Defendant elects not to call evidence as was held in Kamau v Kariuki [2024] KEHC 15214 (KLR). PLAINTIFF'S WRITTEN SUBMISSIONS 19. The Plaintiff filed Written Submissions dated 7th August 2026. He submitted that the accident occurred on 31st July 2023 and that Motor Vehicle KCD 868Z was negligently driven, veered from its lane and knocked him down while he was riding Motorcycle KMEU 479A. 20. The Plaintiff submitted that his evidence was uncontroverted because the Defendants called no witness. He relied on the Police Abstract, NTSA records, treatment

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records and medical evidence. He cited Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR on the effect of failure by a party to adduce evidence. 21. On quantum, the Plaintiff proposed Kshs.1,500,000/= as general damages. He relied on authorities including Amos Oloo Odoyo v Augustine Mwalo Kirande and Mutiga Kamai alias Japhet Mutia Kamai v Pius Muthuri Mukaria. He further sought Kshs.150,000/= as future medical expenses, Kshs.22,310/= as special damages and damages for diminished earning capacity. 22. The Plaintiff proposed a multiplier of 35 years and calculated diminished earning capacity at Kshs.9,210,600/=, or alternatively sought a global award of Kshs.6,000,000/=. ANALYSIS AND DETERMINATION 23. Having considered the pleadings, the evidence, the documents produced and the submissions, I find the following issues arise for determination: a) Whether the Plaintiff proved that the accident occurred as pleaded; b) Whether the 1st Defendant was the owner of Motor Vehicle Registration Number KCD 868Z; c) Whether the 2nd Defendant was driving the said Motor Vehicle on the material date; d) Whether the Defendants were negligent and liable for the accident; e) Whether the Plaintiff contributed to the occurrence of the accident; f) What injuries did the Plaintiff sustain; g) What damages is the Plaintiff entitled to; h) Who should bear the costs of the suit and interest. Whether the accident occurred 24. The occurrence of the accident is established by the direct evidence of PW1, the Police Abstract, the medical records and the medical reports. PW1 gave a clear account of the accident and the treatment that followed. His evidence was not shaken in any material respect during cross-examination. 25. The medical evidence independently confirms that the Plaintiff was involved in a road traffic accident on 31st July

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2023 and was treated for fractures sustained in the accident. The report by Dr. Jenipher Kahuthu records the accident as having occurred on 31st July 2023 and confirms treatment at Victory Hospital, including K-wire treatment for fractures of the right 2nd to 5th metacarpals. 26. I therefore find, on a balance of probabilities, that the accident occurred on 31st July 2023. Ownership of Motor Vehicle KCD 868Z 27. The Copy of Records produced by the Plaintiff establishes that the 1st Defendant was the registered owner of motor vehicle KCD 868Z. 28. Section 8 of the Traffic Act provides that the person in whose name a Motor Vehicle is registered is deemed to be the owner unless the contrary is proved. The courts have repeatedly recognized that registration is prima facie evidence of ownership, subject to rebuttal. In Kon'ani v Kukhumbilo [2023] KEHC 17543 (KLR) , the High Court reaffirmed that registration is prima facie evidence of ownership under section 8 of the Traffic Act. 29. In the present case, the Copy of Records was not rebutted. Although the Defence denied ownership, no evidence was called to demonstrate that the record was inaccurate or that ownership had changed. 30. I accordingly find that the 1st Defendant was the registered owner of Motor Vehicle KCD 868Z at the material time. Whether the 2nd Defendant was the Driver 31. The Police Abstract dated 14th August 2023 records the 2nd Defendant, Boniface Fundi, as the driver of motor vehicle KCD 868Z on the material date. 32. More importantly, the 2nd Defendant, despite being specifically named in the suit as the driver, did not enter the witness box to deny that he was driving the motor vehicle. 33. I therefore find on a balance of probabilities that Boniface Fundi was driving motor vehicle KCD 868Z on 31st July 2023. Liability

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34. The Plaintiff's evidence was that he was riding his Motorcycle lawfully towards Donholm when the Defendants' vehicle, which was travelling in the same direction, was driven at excessive speed, veered from its lane and knocked him down. 35. The particulars of negligence pleaded included excessive speed, failure to keep a proper lookout, driving without due care and attention, failure to control the vehicle, failure to slow down, stop, brake or swerve to avoid the collision and other negligent acts. 36. That evidence was not rebutted. The Defendants had specifically pleaded that the Plaintiff was negligent, but did not call the 2nd Defendant or any other witness to establish any of the alleged contributory negligence. 37. The doctrine of res ipsa loquitur, though pleaded, does not relieve the Plaintiff of his initial burden of proving negligence. In the present case, however, I do not need to rely exclusively upon the doctrine because PW1 gave direct evidence of the manner in which the accident occurred. 38. I find the Plaintiff's evidence credible and consistent with the surrounding documentary and medical evidence. His account that the motor vehicle veered into his path and knocked him down was not displaced. 39. The Defendants' pleading that the Plaintiff was not wearing a helmet is also unsupported by evidence. PW1 specifically testified that he was wearing a helmet and reflector jacket. There is no evidence before the Court that his alleged failure to wear protective equipment contributed to the accident or to the injuries. 40. I therefore find that the Plaintiff has proved negligence against the 2nd Defendant on a balance of probabilities. Vicarious Liability of the 1st Defendant 41. The Plaintiff also pleaded vicarious liability against the 1st Defendant. The Copy of Records establishes ownership while the Police Abstract establishes that the 2nd Defendant was the driver. 42. The principle in Kansa v Solanki [1969] EA 318, as applied in Kenya Bus Services Ltd v Humphrey [2003] KLR 665, is that where it is proved that a vehicle caused damage through negligence, in the absence of evidence to the contrary, a presumption arises that it was driven by a

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person for whose negligence the owner is responsible. The presumption may be rebutted by evidence showing that the driver was not acting as the owner's servant or agent. 43. In this case, the 1st Defendant did not enter the witness box to rebut the presumption. There is no evidence that the 2nd Defendant was using the vehicle without the 1st Defendant's authority or for purposes wholly unrelated to the 1st Defendant. 44. The 1st Defendant, being the registered owner, was in the circumstances under an evidential obligation to explain the circumstances under which the vehicle was being driven by the 2nd Defendant. No such explanation was offered. 45. I therefore find the 1st Defendant vicariously liable for the negligence of the 2nd Defendant. 46. Accordingly, I find the Defendants jointly and severally liable at 100% for the accident and the injuries sustained by the Plaintiff. Effect of the Investigations Police Abstract indicating Pending 47. I have not overlooked the fact that the Police Abstract dated 14th August 2023 indicated that the matter was still pending investigations. 48. The fact that investigations were pending does not, in the circumstances of this case, prevent the Court from determining civil liability. The Police Abstract is not being treated as conclusive evidence of negligence. Rather, it corroborates the occurrence of the accident, the identity of the vehicle and the driver. Liability is founded principally on the direct testimony of PW1, which remained uncontroverted. 49. The distinction is important. In Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] KEHC 8336 (KLR), the High Court stated that a police abstract, standing alone, does not establish negligence where investigations are pending. However, that principle does not assist the Defendants here because there is independent direct evidence from the Plaintiff as to how the accident occurred, and that evidence was never rebutted.

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Injuries Sustained by the Plaintiff 50. The medical evidence establishes that the Plaintiff sustained fractures involving the right 2nd, 3rd, 4th and 5th metacarpals, which required surgical treatment and insertion of metal implants. 51. Dr. Jenipher Kahuthu's report dated 23rd January 2024 records that the fractures had united, but the Plaintiff had healed surgical scars and stiffness of the right metacarpophalangeal joints. The doctor assessed permanent physical disability at 8% and noted that screws remained in situ. 52. The second medical report by Dr. Cyprianus Okoth Okere, which was relied upon in the proceedings, is particularly relevant. Dr. Okere examined the Plaintiff and opined that he sustained fractures of the right 2nd, 3rd, 4th and 5th metacarpals, classified the injuries as grievous harm, assessed permanent incapacity at 8%, and recommended removal of the implants in future at an estimated cost of Kshs.150,000/=. 53. The medical evidence therefore demonstrates that although the fractures had united, the Plaintiff was left with residual stiffness and an 8% permanent incapacity, together with the need for future removal of the implants. General Damages for Pain, Suffering and Loss of Amenities 54. The purpose of general damages is to compensate the injured party, as far as money can, for pain, suffering, loss of amenities and the consequences of the injuries. The award should be reasonable and comparable injuries should, as far as possible, attract comparable awards, while allowing for the passage of time and inflation. 55. In Amos Oloo Odoyo v Augustine Mwalo Kirande [2012] eKLR, the claimant sustained, among other injuries, fractures of the 1st and 2nd metacarpals and other injuries. The High Court considered an award of Kshs.600,000/= as general damages reasonable in the circumstances, although liability was apportioned.

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56. In Mutiga Kamai alias Japhet Mutia Kamai v Pius Muthuri Mukaria [2020] eKLR, the claimant sustained fractures of the 2nd, 3rd and 4th metacarpal digits, a severed extensor tendon and other injuries, with permanent disability assessed at 40%. The High Court considered the injuries and reduced the award from Kshs.800,000/= to Kshs.650,000/=. 57. In Philip Mwago v Lilian Njeri Thuo [2019] eKLR , an award of Kshs.500,000/= was upheld for a fracture of the humerus with permanent disability assessed at 8%. 58. In Wambugu v Onchomba [2024] KEHC 12252 (KLR) , the High Court dealt with a claimant who had sustained a fracture requiring an implant and considered the evidence relating to the future cost of implant removal. The case is also relevant to the treatment of future medical expenses where the medical evidence supports the need for removal of an implant. 59. In Odhiambo v Njoka & Another [2024] KEHC 2495 (KLR), the court considered injuries accompanied by 8% permanent disability and future removal of metal implants and upheld an award of Kshs.2,500,000/= in circumstances involving more extensive injuries. The case demonstrates that the nature and extent of the injuries and residual disability remain central to assessment. 60. The Plaintiff in the present case suffered four fractures of the right hand, underwent surgical treatment, has residual stiffness, has metal implants in situ and has an assessed permanent incapacity of 8%. However, his fractures have united, his walking gait was found to be normal at the later examination, and the injuries are less extensive than those in authorities attracting awards in excess of Kshs.1 million. 61. Taking into account the nature of the injuries, the surgical intervention, the residual stiffness, the 8% permanent incapacity, the need for removal of the implants and the passage of time since the comparable awards were made, I find that Kshs.1,000,000/= is a fair and reasonable award for pain, suffering and loss of amenities. 62. I therefore award the Plaintiff Kshs.1,000,000/= under this head. Future Medical Expenses

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63. The Plaintiff pleaded Kshs.150,000/= for future medical expenses relating to removal of the metal implants. 64. Future medical expenses are a form of special damage and must be specifically pleaded and proved. In Mutwti v Peter & 3 Others [2022] KEHC 10084 (KLR) , the High Court emphasized that future medical expenses must be specifically pleaded and supported by medical evidence. 65. In the present case, the amount of Kshs.150,000/= is not speculative. It is specifically pleaded and is directly supported by the medical opinion of Dr. Cyprianus Okoth Okere. The doctor recommended removal of the implants at an estimated cost of Kshs.150,000/=. 66. The absence of a defence witness to challenge that medical opinion is significant. The second medical report was not displaced by any contrary medical evidence. 67. In Wambugu v Onchomba [2024] KEHC 12252 (KLR) , the High Court considered a medical opinion by Dr. Cyprianus Okoth Okere recommending Kshs.150,000/= for future removal of an implant and upheld the entitlement to future medical expenses where the recommendation remained uncontroverted. 68. I therefore award the Plaintiff Kshs.150,000/= as future medical expenses. Special Damages 69. The Plaintiff pleaded Special Damages of Kshs.22,310/= and submitted that the same had been specifically pleaded and strictly proved by the documentary evidence produced before the Court. 70. It is trite that special damages must not only be specifically pleaded but must also be strictly proved. In the present case, I have carefully considered the documents produced in support of the claim. The Plaintiff claimed Kshs.10,000/= for the doctor's court attendance and Kshs.5,000/= for police attendance. However, no receipts or other satisfactory documentary evidence were produced to prove payment of those two amounts. The mere pleading or assertion of expenditure is insufficient to discharge the burden of strict proof. 71. Accordingly, the sum of Kshs.15,000/= comprising Kshs.10,000/= for doctor's court attendance and Kshs.5,000/= for police attendance is disallowed.

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72. The balance of the pleaded special damages, amounting to Kshs.7,310/=, having been specifically pleaded and proved, is hereby awarded to the Plaintiff. 73. I therefore award the Plaintiff Kshs.7,310/= as special damages. Diminished Earning Capacity 74. The Plaintiff also seeks damages for diminished earning capacity. He testified that he was a casual labourer at Apex Steel Company earning approximately Kshs.731/= per day, which translates to approximately Kshs.21,930/= per month. He stated that he could no longer fully resume his previous work. 72. The law distinguishes between loss of earnings and diminished earning capacity. Loss of earnings refers to actual ascertainable income lost and must be specifically pleaded and proved. Diminished earning capacity, on the other hand, compensates for the reduction in a person's ability to compete in the labour market as a result of the disability. 73. In Butler v Butler [1984] KLR 225, the Court of Appeal explained the distinction and identified factors such as age, qualifications, remaining working life, disability and previous employment as relevant to an award for loss of earning capacity. The courts have also recognized that there is no rigid mathematical formula and that a global award may be appropriate. The same principles were recently restated in Real Tillak Enterprises v Wambua [2025] KEHC 11102 (KLR). 74. In the present case, there is evidence of the Plaintiff's occupation and daily earnings, although no documentary employment records were produced. More importantly, the medical evidence establishes an 8% permanent incapacity affecting the right hand. The right hand is an important functional limb for a person engaged in manual and boda boda-related work. 75. I am, however, unable to adopt the proposed 35-year multiplier and award of Kshs.9,210,600/= because the Plaintiff did not place before the Court sufficient evidence of his age, remaining working life, precise employment history or guaranteed income over the proposed period. A multiplier

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approach would therefore introduce a considerable element of speculation. 76. A global award is more appropriate. In Real Tillak Enterprises v Wambua, the High Court upheld a global award of Kshs.500,000/= where the claimant had permanent incapacity and evidence showed continuing difficulty in performing physically demanding work 77. Considering the Plaintiff's occupation as a casual labourer, his evidence of earnings, the 8% permanent incapacity and the residual stiffness of the right hand, I award Kshs.500,000/= for diminished earning capacity. DISPOSITION 78. Having considered the pleadings, evidence and submissions, I find that the Plaintiff has proved his case on a balance of probabilities and is entitled to judgment against the Defendants. Accordingly, Judgment is hereby entered in favour of the Plaintiff, Moses Musyoka Daud, against the 1st and 2nd Defendants, jointly and severally, in the following terms: Liability: The Defendants are held 100% liable for the accident and injuries sustained by the Plaintiff. General damages for pain, suffering and loss of amenities............................................ Kshs.1,000,000.00 Diminished earning Kshs.500,000.00 capacity................................. Future medical expenses........................................ Kshs.150,000.00 Special damages........................................................ Kshs.7,310.00 Total......................................................................... Kshs.1,657,310.00

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(Kenya shillings one million, six hundred and fiftyseven thousand, three hundred and ten ) 79. The sum awarded as special damages shall attract interest from the date of filing suit, while the general damages and other damages shall attract interest at court rates from the date of this Judgment until payment in full. 80. The Plaintiff shall have the costs of the suit. 81. It is so ordered. 30 days Right of Appeal __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 30.9.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 30TH DAY OF SEPTEMBER ,2026 In the presence of : M/s Kasina for the Plaintiff Defendant: Absent Court Assistant: Phoebe.

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