Nyambura v Kiarie

thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment casing the same to smash, plough into, hit and or collide with the Plaintiff/ motor cycle herein as a result of which he sustained serious bodily injuries and his motorcycle herein was seriously/ extensively damaged. 2. The Defendant in his Statement of Defence has denied the occurrence of the accident and liability. In the alternative, it attributed the accident to the negligence on the part of the plaintiff and or his passenger. The defendant did not however adduce any evidence to challenge or controvert the overwhelming evidence given by the plaintiff of how the accident herein happened and the resultant injuries, loss and damages that was caused to him and his motor cycle. These denials and averments by the defendant therefore remain mere denials and averments with no evidential backing. The plaintiff cannot therefore be said to have contributed to the accident in absence of any evidence to prove the same. In the case of ISINYA ROSES LTD V ZAKAYO NYONGESA [2016] e KLR, it was held that if only the plaintiff testifies and the defendant fails to tender any evidence to controvert his evidence or to prove particulars of contributory negligence on his part as pleaded in the defence, contributory negligence remains unproved in the circumstances. Page 2 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment 3. I thus do hereby agree with the learned counsel for the Plaintiff that the totality of the Plaintiff’s uncontroverted evidence is to the effect that the driver of the motor vehicle herein was the one wholly and solely liable for the collision herein, since no other evidence was tendered by the Defendant to challenge or controvert the same and hence the defendant is to be held solely and wholly liable for the same. The allegations and pleadings in his Statement of Defence, in the absence of evidence to prove them, remain bare allegations and or pleadings and those averments in themselves cannot in any way be said to have controverted the plaintiff’s evidence and testimony in court. In the case of LINUS NGANGA KIONGO & OTHERS V TOWN COUNCIL OF KIKUYU [2012] e KLR, the court held that if a defendant fails to call evidence in support of his case, the evidence adduced by the plaintiff against him remains uncontroverted and therefore unchallenged and given that proof in civil cases is on a balance of probabilities, the plaintiff is entitled to succeed in the circumstances. 4. Further, in the case of REGINA WANGECHI V ELDORET EXPRESS COMPANY LTD [2008] e KLR, the court held that: - Page 3 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment In any action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence on the part of the Defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides some answer adequate to displace that inference. 5. Moreover, in the case of FRANCIS MURANGIRI JOSIAH & ANOTHER V STANLEY MUTUNGA [2017] eKLR, a driver who had hit a pedestrian while off the road was held solely and wholly liable for the accident for reasons among others, driving while absent minded and for failure to exercise a proper look out or have regard to the safety/ welfare of the pedestrian. 6. It is on the basis of the foregoing that I find that the plaintiff has been able to prove on a balance of probabilities that the driver of the suit motor vehicle herein is 100% liable for the accident herein which makes the defendant herein 100% primarily and or vicariously liable for the same being the owner and/or user of the same as pleaded in the Plaint and confirmed by the evidence on record, police abstract and motor vehicle copy of records herein. Page 4 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment 7. It is common ground from the medical evidence adduced by both sides 1 herein that the victim herein sustained the injuries pleaded, i.e. oblique fracture proximal end of the left fibula, severe soft issue injuries of the left leg, dislocation of the left acromio clavicular joint and blunt injury to the anterior chest wall leading to soft tissue injuries. I will therefore go straight to the quantum. 8. Whereas there were authorities cited in the submissions herein, I find the injuries herein not comparable to any of them. General damages are however damages at large whose purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has repeatedly been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation2. Awards ought to be reasonable and must be assessed with moderation bearing in mind that large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including 1 A second medical report was produced by consent without calling the maker as Dexh. No. 1. It was the only evidence adduced by the defendant. 2 See West (H) and Sons Ltd v Shepherd [1964] AC 326 Page 5 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment inflation (see TAYAB VRS KINANU [1983] KLR 114 and WEST (H) & SON LTD VRS SHEPHERD [1964] AC 326, 345). Damages must therefore be within limits set by decided cases and also within the limits that the Kenyan economy can afford (see NYOTA TISSUE PRODUCTS VRS LAWRENCE KUBOKA & 4 OTHERS [2020] eKLR) 9. There is however no one best formula of assessing damages in injury claims. Such assessment is an act of art rather than science. In HCCC NO. 752/1993 MUTINDA MATHEKA VS GULAM YUSUF that was cited by Warsame, Ag. J (as he then was) in JENIPHER MILAY O. OKUKU VRS KENYA BUS SERVICES LTD (KISUMU HC MISC. CIVIL APPL. 172/2001), Wambilyangah J., held that the court will essentially consider the nature of the injuries suffered, the period of recuperation etc.3 Guided by the above principles, I find that Kshs. 900,000/= shall adequately compensate the plaintiff herein. I do therefore award the same. 10.On Special Damages, I have only been able to find proof of Kshs. 20,000/being medico-legal report vide PEXH. No. 10A; Kshs. 4,500, being medical or treatment expenses vide PEXH. Nos. 10B and 12; and Kshs. 550/- being 3 See SIMON TAVETA VRS MERCY MUTITU NJERU [2014] eKLR, as cited in JAMES OKONGO VRS ELMAT SAGWE OGEGA [2021] eKLR Page 6 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment vehicle inquiry fee vide PEXH. NO.13. I do therefore hereby award the same at Kshs. 25,050/- as special damages. 11.On repair costs, the same form part of special damages which under our jurisprudence must be specifically pleaded and strictly proven, through actual cash receipts or a valid professional assessment. This means that the plaintiff herein was required to plead and prove the exact financial loss and detail the specific items or parts damaged in the pleadings. This was however not the case herein. The plaintiff did not state the parts damaged and repaired, and did not detail those parts in Paragraph 7 of the Plaintiff. I shall therefore not award the same. 12.As to the loss of income/ earnings, I do agree that the principle of restitutio in integrum applies and the plaintiff is entitled to such compensation that will restore him back to the position he would have been if the injury had not occurred. It is the plaintiff’s case that he used to work as a motor cycle boda operator within Nakuru city earning about Kshs. 1,000/- per day. Copies of the motor cycle’s logbook and a sale agreement dated 22/05/2018 were produced herein. The log book is however not in the name of the purported seller of the motor cycle and I thus find that there is no clear evidence that the plaintiff Page 7 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment herein owned a motor cycle that he was using to operate a boda boda transportation business. He did not also produce his driving license to prove that he was a qualified rider. I thus do hereby also dismiss this claim of loss of earning for want of proof. CONCLUSION AND DISPOSAL ORDERS 13.Judgment is hereby therefore entered for the plaintiff against the defendant herein as follows: i) General damages for pain and suffering of Kshs. 900,000/= ii) Special damages of Kshs. 25,050/= iii) Costs of the suit and interest at court rates. DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS ___10TH _____ DAY OF ____SEPTEMBER______, 2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Page 8 of 9

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e584of2023danielchegenyamburaplaintiffve rsusstephenmwanikikiariedefendantjudgment Plaintiff's counsel: n/a Defence counsel: Nasimiyu Plaintiff: n/a Defendant: n/a Nasimiyu: Praying for 30 days stay of execution. CT: 30 days stay granted as prayed. Page 9 of 9

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