Masale v Unigroup Transporters Ltd (Civil Case E066 of 2025) [2025] SCC 30 (KLR)

5. Parties agreed to proceed by way of documents only as provided for under Section 30 of the SCC Act. I have perused and considered the documents and pleadings as filed as well as the submissions filed by parties. Issue For Determination. a. Whether the Respondent is liable for the accident. b. What is the quantum of damages awardable if any. c. Who bears costs of the claim. Analysis And Determination. Whether the respondent is liable for the accident. 6. It is the claimant’s testimony that she was hit by the respondent’s motor vehicle while standing by the stage. The respondent’s driver of the suit motor vehicle admits and confirms the occurrence of the accident although gave a difierent account of how it happened but the fact that the claimant was injured as a result of the accident is not disputed by the respondent’s driver. 7. It is the claimant’s testimony that the suit motor vehicle veered ofi the road and violently hit her causing her serious injuries. The respondent on the other hand states that it is indeed a pair of wheels had disconnected from the vehicle and were rolling across the left side and which caused a cloud of dust and as a result it hit the claimant and also smashed the metal structure door of a nearby shop. 8. That he then stopped the vehicle and found the claimant on the ground and had lost her consciousness after being hit by the tyres from his vehicle and which had landed in a nearby shop causing havoc on their way. Given the narration by the respondent and the fact that there was a cloud of dust and the fact that she lost consciousness, it is understandable that possibly she could not tell exactly whether it was the vehicle that hit her or the pair of tyres and as such I do not agree with the respondent in his submissions that the claim is not proved on that account or liability should apportion as against the respondent on that basis. 9. The respondent’s witness was clear as to how the accident happened. He never intimated that the claimant did any thing that contributed to the occurrence of the accident. Infact he asserts that prior to the accident he had seen the claimant standing on the left side of the road. It is thus clear that she had nothing to do with the occurrence of the accident and as such the particulars of negligence pleaded against her cannot hold any water. 10. The respondent in his submissions has pleaded and urged the court to find that the accident occurred as a result of factors beyond his control and could not have foreseen that the tyres would dislodge and/ or disengage while in motion and relied on a certificate of test and examination dated 9th May 2025 which indicate that there were no pre-accident defects. 11. Given the set of circumstances leading to the accident as narrated by the respondent, I do not think that the accident was beyond the control of the respondent. The tyres disconnected. This could only mean that the same were not well fixed and/or tightly afixed to the axle and that had been done, then the tyres would not have disconnected and this was negligence on the part of the respondent. 12. The respondent in a desperate bid to avoid liability and assert that the accident was caused by factors beyond the control of the respondent, he has placed reliance on a number of cases but all those https://new.kenyalaw.org/akn/ke/judgment/scc/2025/30/eng@2025-11-13 2

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cases speak of a situation of a tyre burst which most respectfully have not direct correlation with the circumstances obtaining in this matter as there is no tyre burst in this case. 13. On the question of proof of liability, the Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR did succinctly profiered that ; “ The determination of liability in a road trafic case is not a scientific afiair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: “To determine what caused an accident from the point of view of legal liability is a most dificult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…” 14. Since the occurrence of the accident is not denied save for the manner in which it occurred which is excusable in the circumstances and as explained and not fatal to the claim, I do find that the claimant proved the claim on a balance of probabilities and as such the respondent is held 100% liable for the accident. What is the quantum of damages awardable if any. 15. It is the claimant’s case that as a result of the accident she sufiered the following injuries; bruises on the face, left upper arm and left ankle as well as swollen painful, tender right hip and right ankle and fracture of the right superior and inferior pubic rami. 16. The respondent on the other hand denies the fracture aspect of the injuries sustained on the strength of the 2nd medical report by their own doctor who did not find any evidence of fracture treatment. 17. I have perused of the medical documents, abstract and the P3 filed herewith. The abstract classifies the injuries as grievous harm. The discharge summary from Tsavo comprehensive medical annex suggests that an xray of the hip joint was suspected under investigations subtitle. Further the report dated 5/6/2025 from Taita Taveta County -Moi County Referral hospital indicate that there are fractures of both the right superior and inferior ramus. Furthermore, the report from Kinoo medical clinic dated 9/5/2025 opines that the claimant as a result of the accident sustained 10% permanent degree of incapacity. 18. The 2nd medical examination report dated 3/11/2025 opines that at present the claimant has fully recovered with no deformity and/or permanent incapacity. 19. The court is now faced with the 2 reports which are all speaking at cross purposes. One speaks of fractures and 10% permanent incapacity whereas the other one opines that there was no fracture and there is no permanent incapacity as the Xray done on the right hip was normal. Each party is asking the court to consider their respective report and disregard the other. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/30/eng@2025-11-13 3

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20. A look at the report filed by the claimant, they were prepared within a month or 2 of examining the claimant whereas for the respondent it was prepared some 8 days ago and 5 months after the occurrence of the accident and it therefore follows what the doctors examined at the time of the accident would therefore be difierent from what Dr. Udayan Sheth examined and at the centre of the 2 examinations is the issue of the fracture. 21. It is possible that Dr. Udayan did not see any fractures as he did not conduct any X-RAY and never made any suggestion as to how he arrived at the finding that “X-ray right hip was normal”. There is no suggestion that he even examined the claimant’s xray films to arrive at that conclusion. He further opines that upon examination there was no limp and movement of the right hip is full and painless. Despite all these findings, it is possible that the claimant sufiered a fracture going by the initial treatment notes and reports and by the time she was re examined a few days ago she might have healed from the injuries sustained. 22. That does not in any way suggest that she did not sufier any fracture. The only safe conclusion I can make in the circumstances is that the claimant is almost or she is fully healed from the injuries she sustained as a result of the accident as the report clearing her of any fractures and/or permanent incapacity was done months after the accident. 23. Given the observations above, I can only safely conclude that indeed the claimant sustained a fracture injury among other injuries and she has healed from the fracture injury based on the report by Dr. Udayan R. Sheth and having found so I now proceed to assess the quantum for pain and sufiering awardable based on the injuries sustained. 24. It is trite law that no two cases can be completely similar but it is a settled principle that comparable injuries should attract comparable awards see the case of Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR. 25. From the documents filed and analysis above, the nature of the main injury as sustained by the claimant is a fracture and others were soft tissue injuries. 26. The claimant has on her part suggested Kshs.900,000/= as adequate compensation for pain and sufiering. The respondent has urged the court to award Kshs.100,000/= should the court find that no fractures were sufiered by the claimant and if the vice versa is true then the court to award Kshs.450,000/= and reliance has been placed on a number of authorities as cited in the submissions. 27. In S A O (Minor Suing Thro next Friend) M O O v Registered Trustees, Anglican Church of Kenya Maseno North Parish [2017] KEHC 4905 (KLR) the court made revised upwards an award of Kshs.200,000/= to Kshs.600,000/= for the following injuries;Head injury with brain concussion and damage of right lower mandible jaw and left cheekBlunt chest injuryMultiple friction lacerations/ bruises on right elbow jointFracture of right tibia/fibula at midshaft regionCompound fracture left tibia/fibula at distal metaphysicMultiple cut wounds on left lower limb involving thigh down to knee regionFracture left ankle joint involving malleolus bonesDislocation right ankle joint 28. In Gogni Rajope Construction Company Limited Vs Francis Ojuok Olewe, Civil Appeal No. 1 OF 2014, Majanja J(RIP). reduced the award of Kshs 800,000/= to Kshs 350,000/= for the following injuries; fracture of radius and ulna and dislocation of elbow joint. 29. Taking cue from the case of Odinga Jacktone Ouma(Supra) and the cases cited by the respondent, it is clear that injuries cannot be exactly similar and that fractures have always attracted higher awards compared to soft tissue injuries and considering all those authorities, the rate of infiation and the https://new.kenyalaw.org/akn/ke/judgment/scc/2025/30/eng@2025-11-13 4

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passage of time, I am inclined to award the claimant Kshs.550,000/= as general damages for pain and sufiering. 30. On special damages, Kshs.3,550/= has been pleaded. That is for medical report and motor vehicle search. All those have been proved by way of receipts and are allowed as prayed. 31. The claimant has also pleaded for Kshs.96,000/= as future medical expenses for physiotherapy. The basis of this is the report of Dr. G.K.Mwaura who has proposed a total 48 sessions for physiotherapy at the rate of Kshs.2,000/= per session. 32. The report was prepared sometimes in June 2025 and since the sessions were for 4 months, it is the expectation of the court that she has undergone the 48 sessions of the physiotherapy and must have concluded by October 2025. There is no evidence that she has been undergoing such sessions and given that from the report of Dr.Udayan R. Sheth, the only conclusion is that she does not require them sessions any more as she has fully healed with no limping. 33. If that is true and she underwent the 48 sessions and incurred those expenses, then she ought to have strictly proved them by way of receipts. This is not the case herein. There is no indication that she has began such sessions and/or she hasn’t at all. I do therefore find that this particular expense has not been proved to the required standards based on the reasons aforementioned and those raised by the respondent in submissions and I proceed to dismiss the prayer for future medical expenses. Who bears costs of the claim? 34. The claimant having been successful in the matter and that costs follow events she is awarded costs of the claim. Conclusion And Disposition. 35. The upshot of the foregoing I make the following final orders; a. The claim contained in the statement of claim dated 11th September 2025 is allowed in the following terms. Liability 100% General damages Kshs.550,000/= Special damages Kshs. 3,550/= total Kshs.553,550/= 36. b. The claimant is awarded costs and interests from the date of judgment until payment in full. c. Let the file be closed forthwith. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI SMALL CLAIMS COURT THIS 13TH DAY OF NOVEMBER 2025 F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Fathiya Loo. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/30/eng@2025-11-13 5

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Kiwinga for the Claimant. Lenjo H/B Onyango for the respondent. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/30/eng@2025-11-13 6

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