https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12807

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **CIVIL SUIT NO.E5334 OF 2025** **AGGREY MUTUBWA AMUKOYA** ............................................. **PLAINTIFF** **VERSUS** **BRIAN KAMAU** ............................................................... **1ST DEFENDANT** **STELLA WAIRIMU WANJALA** ........................................ **2ND DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff filed a Plaint dated 15th July ,2025 seeking Judgment against the Defendant for: 2. General damages for pain, suffering and loss of amenities of life; 3. Special damages totalling Kshs.10,905.00 as pleaded under Paragraph 5 of the Plaint 4. Costs of the suit 5. Interest on (a) (b) and (c) above at court rates 6. The Plaintiff avers that on or about the 8th March ,2025, he was a lawful rider of motor cycle registration number KMGE 996Q along Kiambu road opposite Carmsan Motors when the 1st Defendant and /or driver /agent /servant so negligently and carelessly drove, managed and /or controlled motor vehicle registration number KCS 706 K such that the same was allowed to lose control and hit the Plaintiff and as a consequence the plaintiff sustained serious injuries. 7. The Defendant was served but did not enter appearance. **Interlocutory Judgement** was entered on **16th April,2026** by Hon.M.Malingu against the Defendants and the matter proceeded for Formal Proof hearing on 1st July,2026. 8. The Plaintiff Aggrey Amukoya Mutubwa testified as PW1 and adopted his witness statement dated 15th July ,2025 as his evidence in chief and the List of Documents **P Exhibit 1 -10.** He sought to be compensated as per the Plaint . 9. it was the Plaintiff’s at evidence that he was lawfully riding his Motorcycle along Kiambu Road when, near Carman Motors, the Motor Vehicle veered from its lane into his lane and collided with his motorcycle, causing him to fall and sustain bodily injuries. 10. He attributes the accident to the negligence of the 1st Defendant and/or his driver, agent or servant, including driving carelessly and negligently, failing to have due regard for the safety of other road users, and driving at an excessive speed. He further holds the 2nd Defendant vicariously liable for the acts and omissions of the 1st Defendant and/or his driver, agent or servant. 11. As a result of the accident, the Plaintiff sustained a ***fracture of the right collar bone and blunt impact injury to the right shoulder****.* He was initially taken to Nazareth Hospital and was thereafter referred to Aster Hospital, where he received further treatment. Owing to the fracture, he underwent surgery during which a metal plate was inserted to stabilize the fracture and facilitate healing. He states that he will require a further surgical procedure for removal of the metal plate and consequently claims future medical expenses as contained in the Medical Report. 12. On 1st July ,2026 I directed the Plaintiff to file his Written Submissions . **Plaintiff’s Submissions dated 13th July ,2026** 1. The Plaintiff submitted that the suit arose from a road traffic accident involving Motor Vehicle Registration KCS 706K and the Plaintiff, which occurred along Kiambu Road, opposite Carman Motors. 2. The Plaintiff contended that the 1st Defendant and/or his driver, agent or servant negligently drove and/or managed the Motor Vehicle, causing it to lose control, veer from its lane and encroach onto the Plaintiff’s path, thereby occasioning the accident and resulting in serious injuries. The Plaintiff relied on his Witness Statement; oral testimony and the Police Abstract to establish the occurrence of the accident. 3. The Plaintiff further submitted that the Defendants failed to enter appearance despite being duly served, resulting in Interlocutory Judgment being entered against them. At the formal proof hearing, the Plaintiff testified virtually in support of his case. He urged the Court to find the Defendants 100% liable, with the 2nd Defendant being vicariously liable for the acts and/or omissions of the 1st Defendant and/or his driver, agent or servant. 4. On quantum, the Plaintiff submitted that he sustained a **fracture of the right collar bone (clavicle)** and a **blunt impact injury to the right shoulder**, as confirmed by the medical report of Dr. W. M. Wokabi dated 3rd April 2025, produced as **(P Exhibit 2).** He urged the Court to award **Kshs.1,000,000.00** as General Damages for pain, suffering and loss of amenities, taking into account the nature of the injuries, inflation and prevailing economic circumstances. In support, he relied on **Odinga Jackstone Ouma v Moureen Achieng Odera [2016] eKLR**, on the principle that comparable injuries should attract comparable awards, and **Lawrence Wairimu Wainyoike & Another v Joseph Letting [2021] KEHC 801 (KLR)**, where Kshs.800,000/= was awarded for a clavicle fracture and soft-tissue injuries. 5. The Plaintiff also claimed special damages of Kshs.10,905/=, comprising Kshs.750/= for the Motor Vehicle search report, Kshs.3,000/= for the medical report and Kshs.7,355/= in medical expenses. 6. Finally, the Plaintiff submitted that, having succeeded on the merits, he was entitled to costs of the suit under Section 27 of the Civil Procedure Act. He further submitted that, pursuant to Section 26 of the Civil Procedure Act, interest on the awards should accrue as appropriate until payment in full. **Liability** 1. I have considered the evidence adduced by PW1in this case. I have also carefully read the Plaintiffs Written Submissions dated13th July,2026. The only issues that this Court will determine are: 2. Who is liable for the said accident and to what extent? 3. What is the Quantum of damages awardable? 4. Who is liable to pay costs of this suit? 5. On the issue of liability, the Plaintiffs pleaded and testified that the accident was caused by the driver of Motor Vehicle Registration Number KCS 706 K who negligently drove it and caused the accident. 6. From the evidence on record, the only reasonable conclusion is that the suit Motor Vehicle was owned by the 2nd Defendant and driven by the 1st Defendant on the material day. The testimony of the Plaintiff was not controverted. 7. In light of the contents of the Certificate of Official Search produced herein, the only reasonable conclusion is that the suit Motor Vehicle was owned by the 2nd Defendant. 8. The next issue is whether the suit Motor Vehicle was being driven by the 1st Defendant as an agent of the 2nd Defendant. The testimony of the Plaintiff that the said Motor Vehicle was being driven by the 1st Defendant was not controverted. 9. On whether it was being driven by him as an Agent for the 2nd Defendant , **Chesoni, Ag. JA** (as he then was) in **Mwona Ndoo -Vs- Kakuzi Ltd. (1982-1988) 1 KAR 523** held: ***“It was not established that the employee was on a frolic of his own since there was no evidence as to what he was doing on that road and how far that road was from the estate. Without that evidence the reasonable presumption is that he was on his master’s business.”*** 10. Similarly, in **Kenya Bus Services Limited -Vs- Humphrey [2003] KLR 665; [2003] 2 EA 519** the Court of Appeal held that:***“...where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible. This presumption is made stronger by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was being driven for the joint benefit of the owner and the driver.”*** 11. In the premises, I find that the 1st Defendant was driving the suit Motor Vehicle as a servant or Agent of the 2nd Defendant hence the 2nd Defendant is vicariously liable. The Plaintiff's evidence was uncontroverted. 12. The 1st Defendant should have avoided the accident at all costs which was foreseeable. He caused the same since he was driving at a high speed and was not in a position to control the Motor Vehicle when he caused the accident . 13. I therefore find the Defendants 100% liable for the accident. **Quantum** 1. The Plaintiff pleaded and testified that he sustained a fracture of the right collar bone (clavicle) and a blunt impact injury to the right shoulder. 2. The discharge summary from Aster Healthcare, treatment records from Nazareth Hospital and the Medical Report by Dr. W. M. Wokabi dated 3rd April 2025 support the Plaintiff’s evidence on the nature and extent of the injuries sustained. 3. The medical evidence shows that the Plaintiff underwent surgical fixation of the right clavicle fracture with a metal plate, which occasioned post-operative pain. 4. He thereafter underwent rehabilitation of the right shoulder and clavicle. Dr. Wokabi opined that healing was expected to take up to twelve months and assessed the Plaintiff as having approximately 10% permanent disability. The Doctor further recommended eventual removal of the metal plate at an estimated cost of Kshs.100,000/= at a medium-cost hospital. 5. On quantum, the Plaintiff submitted that he was entitled to **Kshs.1,000,000/=** as General Damages for pain, suffering and loss of amenities. He relied on **Odinga Jackstone Ouma v Moureen Achieng Odera [2016] eKLR**, for the principle that comparable injuries should attract comparable awards. He further relied on **Lawrence Wairimu Wainyoike & Another v Joseph Letting [2021] KEHC 801 (KLR)**, where the Court awarded **Kshs.800,000/=** for, inter alia, a clavicle fracture and soft-tissue injuries. 6. I have considered the nature and extent of the injuries sustained by the Plaintiff, the treatment undertaken, the fact that he underwent surgery, the period of rehabilitation and the permanent disability assessed at approximately 10%. I have also considered the authorities cited by the Plaintiff and the principle that comparable injuries should, as far as possible, attract comparable awards. 7. In **Lawrence Wairimu Wainyoike & Another v Joseph Letting (supra)**, the Court awarded Kshs.800,000/= for injuries which included a clavicle fracture. The present case, however, involved surgical fixation of the fracture and the medical evidence establishes a residual permanent disability of approximately 10%. I therefore consider the Plaintiff's injuries to be somewhat more serious than those in the cited authority. 8. Taking into account all the foregoing factors, I find an award of **Kshs.850,000/=** to be fair and reasonable compensation for pain, suffering and loss of amenities. I accordingly award the Plaintiff **Kshs.850,000/=** under this head. **Future Medical Expenses** 1. The Plaintiff further claimed Kshs.100,000/= as future medical expenses, being the estimated cost of removal of the metal plate surgically inserted during treatment of the clavicle fracture. The claim is supported by the medical report of Dr. W. M. Wokabi, who recommended eventual removal of the plate and estimated the cost of the procedure at Kshs.100,000/= at a medium-cost hospital. 2. The law on future medical expenses is settled. In **Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR**, the Court of Appeal held that although future Medical Expenses are awarded under the rubric of general damages, the claim is in the nature of a special claim and must be specifically pleaded and proved. The Court, however, recognizes that a future expense cannot always be proved with the same mathematical precision as an expense already incurred, given that the actual cost may depend on circumstances obtaining in the future. 3. In the present case, the Plaintiff has specifically pleaded the claim and has placed before the Court medical evidence establishing both the need for the future procedure and its estimated cost. The recommendation for removal of the metal plate is not speculative but emanates from the treating medical evidence. I am therefore satisfied that the claim has been proved on a balance of probabilities 4. Accordingly, I award the Plaintiff **Kshs.100,000.00** as future medical expenses. **Special Damages** 1. The Plaintiff also pleaded and strictly proved **Special Damages of Kshs.10,905.00** by producing receipts in support thereof. I therefore award the Plaintiff the said sum as Special Damages. **Conclusion** 1. Having considered the Pleadings, the evidence on record, the submissions by the parties and the applicable law, I find that the Plaintiff has proved his case against the Defendants on a **balance of probabilities**. I accordingly enter Judgment for the Plaintiff against the Defendants, **jointly and severally,** as follows: 2. General Damages................................................Kshs.850,000.00 3. Future Medical Expenses......................................Kshs.100,000.00 4. Special Damages.................................................. **Kshs. 10,905.00** **TOTAL ....................................................................Kshs.960,905.00** ***(Kenya Shillings nine hundred and sixty thousand, nine hundred and five )*** 1. **Interest on General Damages and Future Medical Expenses** at court rates from the date of this Judgment until payment in full; 2. **Interest on Special Damages** at court rates from the date of filing suit until payment in full; and 3. **Costs of the suit.** 4. Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **12.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 12TH DAY OF AUGUST,2026** **In the presence of :** Mr.Mwenja Holding Brief for Mr.Wanjohi for the Plaintiff Defendant: Absent Court Assistant: Phoebe.