Peter Muthoka Nzula v Medutieki Leiyan & Eco Urban Waste Management Limited

servant. The 2nd Defendant was consequently pleaded to be vicariously liable for the negligence of the 1st Defendant. 4. The particulars of negligence pleaded against the Defendants included driving at an excessive speed in the circumstances, failing to maintain proper control of the Motor Vehicle, driving without due regard to the safety of pedestrians, driving carelessly, failing to stop, slow down, swerve or otherwise control the vehicle so as to avoid the accident, failing to take adequate precautions for the safety of the Plaintiff and failing to keep a proper lookout. 5. The Plaintiff pleaded that as a consequence of the accident he sustained multiple fractures of the right superior pubic rami, traumatic urethral injury with urethral strictures, blunt trauma to the abdomen and chest and severe soft-tissue injuries. 6. The Plaintiff further pleaded special damages of Kshs.18,725.00 comprising medical report charges, Police Abstract charges, medical expenses and the cost of obtaining the copy of records. He prayed for general damages, special damages, costs of the suit, interest and any other relief that the Court may deem fit and just to grant. INTERLOCUTORY JUDGMENT AND FORMAL PROOF 7. The record indicates that the Defendants were duly served but failed to enter appearance and/or file a Defence within the prescribed period. Consequently, Interlocutory Judgment was entered against the Defendants on 2nd September 2026. 8. The matter thereafter proceeded to formal proof hearing on 16th September 2026, when the Plaintiff testified and closed his case. 9. The entry of Interlocutory Judgment did not, however, constitute an assessment of unliquidated damages. The Plaintiff was still required to formally prove the nature and extent of his injuries and the damages claimed. 10. This principle was considered in MJI (Suing through father and guardian ad litem) LIS v Stephen Ndung'u [2018] eKLR, where the Court recognized that where a claim includes general and Special Damages, the matter proceeds to formal proof for purposes of assessing the damages payable.

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11. I therefore proceed to consider the evidence adduced by the Plaintiff and the applicable law. THE PLAINTIFF'S EVIDENCE 12. The Plaintiff, Peter Muthoka Nzula, testified as PW1. He adopted his Witness Statement dated 21st December 2012 as his evidence in chief and relied upon the documents filed in support of his case. 13. The Plaintiff testified that on 21st November 2011, he was along Dunga Road near Mater Hospital in Nairobi, where he was loading garbage into a motor vehicle. 14. His evidence was that the 1st Defendant suddenly reversed Motor Vehicle Registration Number KAR 452S without hooting or giving any warning of his intention to reverse. 15. The vehicle knocked him down and thereafter ran over him. He was subsequently taken to hospital and admitted at Kenyatta National Hospital for more than two weeks. 16. After discharge, he continued to receive treatment at various medical facilities, including Mater Hospital, Kiambu District Hospital, Thika Level 5 Hospital and AIC Kijabe Hospital. 17. He testified that he continued to suffer pain and urinary difficulties and that he had required a urine catheter. He further stated that the injuries affected his ability to undertake ordinary employment. 18. The Plaintiff relied on the copy of records, police abstract, P3 form, consultation and laboratory request forms from Kenyatta National Hospital, the medical report by Dr. Wangata, attendance cards from various medical facilities, Xray request forms, referral notes and treatment notes. 19. The medical records show substantial pelvic and urethral injuries. The medical report by Dr. Theophilus Wangata records a fracture of the superior ramus of the right pubic bone, urethral stricture and a deep laceration to the right knee. It further records right-sided hip pain, urinary complications and erectile dysfunction. 20. The records from Thika Level 5 Hospital and Kiambu District Hospital demonstrate continued treatment and referral for the pelvic and urethral complications. The P3 Form, radiological investigations and laboratory records from

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Kenyatta National Hospital further corroborate the Plaintiff's evidence regarding the injuries and subsequent treatment. THE PLAINTIFF'S SUBMISSIONS 21. The Plaintiff submitted that liability had been established because his evidence regarding the occurrence of the accident was uncontroverted. 22. He submitted that the copy of records established that Motor Vehicle Registration Number KAR 452S belonged to the 2nd Defendant, while the Police Abstract identified the 1st Defendant as the driver. 23. The Plaintiff submitted that the 1st Defendant was negligent in reversing the vehicle without warning and without maintaining a proper lookout. 24. On quantum, the Plaintiff relied on authorities concerning pelvic fractures and urethral injuries, particularly Penina Waithira Kaburu v L P [2019] eKLR and Nyakundi v Kiabusa [2026] KEHC 6655 (KLR) . He urged the Court to award Kshs.3,000,000.00 as General Damages. 25. The Plaintiff also sought Kshs.18,725.00 as Special Damages and Kshs.150,000.00 as future medical expenses, together with costs and interests. ANALYSIS AND DETERMINATION 26. From the Pleadings, evidence and Submissions, the following issues arise for determination: a) Whether the Plaintiff proved liability against the Defendants; b) Whether the 2nd Defendant is vicariously liable for the acts of the 1st Defendant; c) What injuries were sustained by the Plaintiff; d) What amount of General Damages is appropriate; e) Whether the Plaintiff proved his claim for special damages; f) Whether the Plaintiff is entitled to future medical expenses; and g) Who should bear the costs of the suit and interest. LIABILITY

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27. The starting point is that the burden of proving negligence rests upon the Plaintiff. Sections 107, 108 and 109 of the Evidence Act place the burden upon the person who asserts a fact to prove its existence. 28. The Court of Appeal in Nandwa v Kenya Kazi Ltd [1988] KLR 488 stated the general principle that in an action for negligence the burden is upon the Plaintiff to prove that the accident was caused by the negligence of the Defendant. The Court further recognized that where the Plaintiff establishes facts raising a prima facie inference of negligence, the evidential burden may shift to the Defendant to provide an adequate explanation. This principle has continued to be applied by the courts. 29. In the present case, the Plaintiff did not merely rely on the fact that an accident occurred. He gave direct evidence of the manner in which it occurred. 30. His evidence was that the 1st Defendant suddenly reversed Motor Vehicle KAR 452S without hooting or giving any indication that he intended to reverse, thereby knocking him down. 31. A driver undertaking a reversing manoeuvre owes a duty to exercise reasonable care and to ensure that the path behind the vehicle is reasonably clear before undertaking the manoeuvre. The driver must maintain a proper lookout and take reasonable precautions for the safety of other road users. 32. The Plaintiff's evidence is consistent with the particulars of negligence pleaded in the Plaint, particularly failure to maintain proper control, failure to keep a proper lookout, failure to give adequate warning and failure to take reasonable precautions for his safety. 33. The Defendants did not appear at the formal proof hearing to challenge that evidence. They did not cross-examine the Plaintiff and did not call evidence explaining how the accident occurred. 34. I am nevertheless conscious that the absence of a defence does not automatically relieve the Plaintiff of the burden of proof. The Plaintiff must still establish his case on a balance of probabilities. 35. In my view, he did so. His testimony concerning the accident is direct, coherent and consistent with the pleaded

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case and is corroborated by the documentary evidence identifying the Motor Vehicle and the driver. 36. I therefore find that the Plaintiff established negligence against the 1st Defendant. 37. The Plaintiff produced the copy of records showing that Motor Vehicle Registration Number KAR 452S was registered in the name of the 2nd Defendant, Eco Urban Waste Management Limited. The Police Abstract identified Medutieki Leiyan, the 1st Defendant, as the driver. 38. There was no evidence from the Defendants challenging either the ownership or the identity of the driver. 39. The legal position concerning the relationship between ownership of a Motor Vehicle and responsibility for the acts of the driver was considered by the Court of Appeal in Kenya Bus Services Ltd v Humphrey [2003] KLR 665 , where the Court cited Kansa v Solanki [1969] EA 318 and recognized that, where a vehicle is proved to have caused damage through negligence, a presumption may arise, absent evidence to the contrary, that it was being driven by a person for whose negligence the owner is responsible. 40. The principle has continued to be applied by the Courts. In Car & General (Trading) Limited v Muriitthi & Muriithi & Another [2024] KEHC 3668 (KLR), the Court considered the principle in Kansa v Solanki regarding the responsibility of a vehicle owner for the negligent driving of the person in control of the vehicle. 41. I have also considered Morgan v Launchbury [1972] 2 All ER 606, which explains that an agency relationship may be established where the driver was using the vehicle at the owner's express or implied request or in performance of a task delegated by the owner. 42. In the present case, the evidence is stronger than mere proof of ownership. The Plaintiff specifically pleaded that the 1st Defendant was the driver, agent and/or servant of the 2nd Defendant, and the police abstract identifies the 1st Defendant as the driver of the 2nd Defendant's vehicle on the material date. 43. There is no contrary evidence that the vehicle had been sold, hired out, lent to an independent third party or was being driven without the authority of the 2nd Defendant.

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44. I accordingly find that the 1st Defendant was driving motor vehicle KAR 452S in circumstances giving rise to liability on the part of the 2nd Defendant. VICARIOUS LIABILITY 45. Vicarious liability arises where the tortious act is committed by an employee or agent in the course and scope of employment or authority. The Court of Appeal has recognized this principle in Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR. 46. The evidence before this Court establishes that the 2nd Defendant was the registered owner of the Motor Vehicle and that the 1st Defendant was its driver. The pleaded relationship between the two has not been challenged. 47. In Mbaaya v Crown Bus Services Limited [2026] KEMC 64 (KLR), the Court, considering the principles in Kenya Bus Services Ltd v Humphrey and Kansa v Solanki, reiterated that where a motor vehicle is driven by a person other than the owner, a rebuttable presumption may arise that the driver was acting as the owner's agent. 48. Applying those principles to the evidence before me, I find that the 1st Defendant was acting as the driver, agent and/or servant of the 2nd Defendant at the material time. 49. I therefore find the 1st Defendant directly liable in negligence and the 2nd Defendant vicariously liable for the negligence of the 1st Defendant. 50. There is no evidence of contributory negligence on the part of the Plaintiff. No such evidence was placed before the Court and the Defendants did not participate in the proceedings. 51. I consequently find the Defendants 100% liable, jointly and severally, for the accident and the injuries proved to have resulted from it. INJURIES SUSTAINED 52. The Plaintiff pleaded multiple fractures of the right superior pubic rami, traumatic urethral injury with urethral strictures, blunt trauma to the abdomen and chest and severe soft-tissue injuries. 53. The medical evidence substantially corroborates the Plaintiff's account.

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54. Dr. Wangata's Medical Report records a fracture of the superior ramus of the right pubic bone, urethral stricture and a deep laceration to the right knee. The Plaintiff was noted to have right-sided hip pain, a suprapubic catheter and pelvic tenderness. The doctor also recorded erectile dysfunction and urinary complications. 55. The medical records further demonstrate that the Plaintiff underwent investigations and treatment at several facilities. The referral notes from Thika Level 5 Hospital and Kiambu District Hospital show continuing management of the pelvic and urethral complications. 56. The P3 form and the Kenyatta National Hospital radiology and laboratory records further corroborate the history of injury and treatment. 57. I find that the Plaintiff proved, on a balance of probabilities, that he sustained substantial pelvic and urethral injuries and that those injuries resulted in continuing complications. 58. The medical evidence supports continuing complaints of right hip/pelvic pain, urinary difficulties and urethral stricture, as well as erectile dysfunction. 59. GENERAL DAMAGES 60. The principles governing assessment of general damages are well settled. The Court is required to consider the nature and extent of the injuries, pain and suffering, treatment undergone, residual effects and loss of amenities. 61. The Court should also consider comparable decided cases. In Stanley Maore v Geoffrey Mwenda, Nyeri CA Civil Appeal No. 147 of 2002 [2004] eKLR, the Court of Appeal stated that comparable injuries should, as far as possible, attract comparable awards, bearing in mind the prevailing level of awards in similar cases. 62. The principle is not that previous awards establish a fixed tariff. Each case must be considered on its own evidence and circumstances. 63. In Penina Waithira Kaburu v L P [2019] eKLR, the claimant suffered pelvic fractures and urethral stricture with the possibility of recurrence and danger of impotence. An award of Kshs.2,000,000/= was upheld. The case is relevant because it involved the significant combination of pelvic and urological injuries.

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64. In Pramukh Group Systems Limited t/a PG Security Limited v Mazera [2023] KEHC 21123 (KLR) , the claimant suffered a urethral tear, multiple pelvic fractures, hip stiffness and acute urinary retention, with medical evidence indicating permanent partial disability and future medical intervention. The High Court upheld the lower court's award of Kshs.2,500,000/= in General Damages. 65. The authorities considered in Pramukh Group Systems Limited v Mazera included Peace Kemuma Nyang'era v Michael Thuo & Another [2014] eKLR, where Kshs.2,500,000/= was awarded for a sacral fracture, pelvic fractures and associated injuries, and Millicent Atieno Ochuonyo v Katola Richard [2015] eKLR, where Kshs.2,000,000/= was awarded for pelvic injuries including a fractured right pubic ramus. 66. I have also considered the recent decision in Nyakundi v Kiabusa [2026] KEHC 6655 (KLR). The claimant sustained multiple fractures and urethral injury resulting in multiple urethral strictures and requiring further medical intervention. The trial court awarded Kshs.2,000,000/= as General Damages, which was upheld on appeal. The High Court also emphasized that evidence concerning complications such as urological difficulties may be relevant to general damages, although a distinct award for loss of sexual function requires appropriate pleading. 67. In the present case, the Plaintiff sustained multiple pelvic fractures together with traumatic urethral injury and urethral stricture. He underwent treatment at several medical facilities and was left with continuing urinary difficulties and pain. The Medical Evidence also records erectile dysfunction. 68. I have taken into account the nature and extent of the injuries, the treatment undertaken, the continuing complications, the effect of the injuries on the Plaintiff's ordinary life and the comparable awards in the authorities cited above. 69. I also take into account the fact that the accident occurred in 2011 and that awards must be considered against the prevailing level of awards, while avoiding the danger of treating previous awards as fixed tariffs. 70. Taking all these matters into account, I find that an award of Kshs.2,500,000/= is fair and reasonable compensation for pain, suffering and loss of amenities.

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71. I accordingly award the Plaintiff Kshs.2,500,000/= as General Damages for pain, suffering and loss of amenities. SPECIAL DAMAGES 72. The Plaintiff pleaded Special Damages in the sum of Kshs.18,725/=, particularized as follows: a) Medical Report – Kshs.2,000/=; b) Police Abstract – Kshs.200/=; c) Medical expenses – Kshs.16,025/=; and d) Copy of records – Kshs.500/=. 73. The law is settled that Special Damages must be specifically pleaded and strictly proved. In Hahn v Singh [1985] KLR 716, the Court of Appeal held that special damages must not only be specifically claimed but must also be strictly proved. This principle has continued to be applied by the courts. 74. Similarly, in Owade & Another v Njoroge [2023] KEHC 18567 (KLR), the High Court reiterated that special damages must be specifically pleaded and proved. 75. In the present case, the Plaintiff specifically pleaded special damages of Kshs.18,725/=. However, upon consideration of the documentary evidence tendered in support of the claim, I find that the Plaintiff strictly proved special damages amounting to Kshs.12,825/=. 76. Accordingly, since Special Damages must be both specifically pleaded and strictly proved, I find that the Plaintiff has proved the sum of Kshs.12,825/=. 77. I therefore award the Plaintiff Kshs.12,825/= as special damages, notwithstanding that the amount pleaded was Kshs.18,725/=. FUTURE MEDICAL EXPENSES 78. The Plaintiff submitted for an award of Kshs.150,000/= as future medical expenses. 79. The law regarding future Medical Expenses has developed over time. In Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR) , the Court of Appeal held that future medical expenses are in the nature of a special claim and must be pleaded and proved.

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80. However, subsequent decisions have clarified that it is not necessarily essential for a Plaintiff to plead an exact figure where the future cost cannot reasonably be ascertained at the time of filing suit. 81. In Forwarding Company Limited & Another v Kisilu; Gladwell (Third Party) [2022] KECA 96 (KLR) , as discussed in subsequent decisions, the Court recognized the difficulty of requiring an exact sum for expenditure that has not yet been incurred. The Plaintiff should nevertheless plead the need for future treatment and provide a reasonable basis for the anticipated expense. 82. In the present case, the difficulty is that the Plaint does not specifically plead future medical expenses as a separate head of claim. The prayer is for general damages, special damages, costs, interest and any other relief that the Court may deem fit. 83. The Plaintiff's submissions subsequently sought Kshs.150,000/= under this head, but a submission cannot substitute for a substantive pleading where the opposing party was entitled to notice of the claim. 84. I therefore decline to make a separate award of Kshs.150,000/= for future medical expenses. 85. This does not mean that the medical evidence concerning the continuing consequences of the injuries is disregarded. That evidence has been taken into account in assessing the overall seriousness of the injuries and the award of General Damages. CONCLUSION AND DISPOSITION 86. Having considered the pleadings, the oral evidence of PW1, the documentary evidence, the Plaintiff's written submissions and the applicable authorities, I find that the Plaintiff has proved his case on a balance of probabilities. 87. I find that the 1st Defendant negligently drove and/or reversed Motor Vehicle Registration Number KAR 452S, thereby causing it to knock down the Plaintiff. 88. I find further that the 2nd Defendant was the registered owner of the Motor Vehicle and, on the evidence before the Court, is vicariously liable for the negligence of the 1st Defendant.

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89. I find the Defendants 100% liable, jointly and severally, for the accident and the injuries proved to have resulted therefrom. 90. I further find that the Plaintiff proved that he sustained substantial pelvic and urethral injuries, including pelvic fractures and urethral stricture, with continuing urinary complications and other residual effects. 91. Accordingly, Judgment is entered for the Plaintiff against the Defendants jointly and severally as follows: a) General damages for pain, suffering and loss of amenities..........................Kshs.2,500,000.00 b) Special Damages....................................................Kshs.12,825.00 c) Future Medical Expenses............................................................Nil TOTAL .................................................................K shs.2,512,825.00 d) General Damages shall attract interest at court rates from the date of this Judgment until payment in full while Special Damages shall attract interest at court rates from the date of filing the suit until payment in full. e) The Plaintiff shall have the costs of the suit. 30 Days Right of Appeal. __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 7.10.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 7TH DAY OF OCTOBER ,2026 In the Presence of : Mr.Muyundo for the Plaintiff Defendant: Absent Court Assistant: Phoebe.

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