Blessings Wanyonyi Wafula (Suing through father and next friend Evans Wekesa Barasa) v Moranga Anyoka Getange and Elija Ogoti Anyoka

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E475 OF 2024** **BLESSINGS WANYONYI WAFULA (Suing through father and next friend EVANS WEKESA BARASA)………………………………………………………………...................PLAINTIFF** **VERSUS** **MORANGA ANYOKA GETANGE....………………………..................1ST DEFENDANT** **ELIJA OGOTI ANYOKA…………………………………………………2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the Defendants through a Plaint dated 30th October 2024, praying for judgment against the Defendants jointly and severally for:- 2. *General damages, past, present and future medical and nursing expenses* 3. *Future medical expenses* 4. *Special damages Kshs. 9,550/=* 5. *Costs* 6. *Interest* 7. *Any other relief this Honourable Court may deem fit to grant* 8. The background of this case is that on 31st August 2024, the Plaintiff was a lawful fare-paying passenger in motor vehicle registration number KDH 392 Q (in this judgment referred to as (“the subject motor vehicle”) along Bungoma – Mumias road when the said motor vehicle reportedly lost control, leading to the road accident herein thereby occasioning the Plaintiff bodily injuries and loss hence this suit. 9. The Plaintiff blamed the occurrence of the accident on the Defendants’ negligence as set out in paragraph 5 of the Plaint. They also relied on the doctrine of res ipso loquitor. 10. The 1st Defendant neither entered appearance not filed a Statement of Defence. This prompted this court, upon being moved by the Plaintiffs, to enter interlocutory judgment against the 1st Defendant. 11. On the part of the 2nd Defendant, he entered appearance and filed a Statement of Defence denying the occurrence of the accident and the particulars of negligence attributed to them. He pleaded in the alternative that if the accident herein occurred then the same was solely caused by the deceased’s negligence. 12. The foregoing prompted this court to set down this matter for hearing and determination. The evidence placed before this court during the hearing is summarized below. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Dr. Ombongi Haron** of Bungoma County Referral Hospital produced the Plaintiff’s outpatient card dated 31st August 2024 from the facility and the Plaintiff’s P3 form dated 02nd September 2024 as exhibits. 2. He stated in cross-examination that the Plaintiff sustained soft tissue injuries. 3. **PW2 Dr. Mulianga Ekesa** testified that he examined the Plaintiff on 02nd September 2024 after the Plaintiff had been involved in a road traffic accident on 31st August 2024. He produced the Plaintiff’s medical report dated 02nd September 2024 showing that the Plaintiff soft tissue injuries and suffered psychological trauma as a result of the accident. 4. He also testified that the Plaintiff would need around Kshs. 15,000/= for future medical expenses for anti-inflammatory agents and psychosocial support 5. **PW3 Evans Wekesa** adopted his witness statement dated 03rd October 2025 as his evidence in chief. He also produced the documents in the Plaintiff’s list of documents herein not produced by the other witnesses as exhibits. He added that the Plaintiff is till on medication for headaches arising from the accident. 6. He added in cross-examination that he still buys the Plaintiff painkillers to ease the Plaintiff’s pain arising from the injuries the Plaintiff sustained as a result of the accident. **Defendants’ Case** 1. The Defendants neither called witnesses nor produced exhibits in support of their case. **ANALYSIS & DETERMINATION** 1. This court has duly considered the Plaintiff’s pleadings, exhibits, the evidence on record, as well as the written submissions filed by the parties herein. 2. Liability between the parties herein was settled in the test suit; Bungoma CMC CC No. E529 of 2024, in the ratio of 100% in favour of the Plaintiff. 3. In the circumstances, the only issue for determination is quantum. **Quantum** 1. **General damages for Pain and Suffering** 2. The Plaintiff’s uncontroverted evidence on record shows that, arising from the accident herein, the Plaintiff sustained a painful swelling on the hind head, low back pains, and psychological trauma as a result of the accident. The said injuries were assessed as harm. 3. It is also worth noting that the Plaintiff was treated as an outpatient. 4. The settled position on the award of damages in this jurisdiction is that comparable injuries must attract comparable awards (see **Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR).** 5. This court has given due regard to the authorities cited by the parties on quantum. 6. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in **Makami v Obong'o (Civil Appeal E062 of 2021) [2023] KEHC 922(KLR),** the Court substituted the award of Kshs.100,000/-with Kshs.80,000/-for marked swelling and bruises on the forehead, marked neck and chest pain, cut wound on the right elbow joint and right knee joint. 7. In **Rege v LA (Minor suing through her father and next friend GAA) (Civil Appeal E111 of 2021) [2022] KEHC 16634 (KLR),** an award of Ks.400,000/- was substituted with that of Kshs.80,000/-for bruises on the right hand, blunt trauma to the right hand and chest contusion. 8. Guided by the authority above, and taking into consideration the lapse of time since the decision above was made, this court is of the considered view that an award of Kshs. 100,000/= will be reasonable compensation under this head. 9. **Future medical expenses** 10. The Plaintiff pleaded for future medical expenses for future treatment and check-ups in paragraph 7 of his Plaint. 11. The Court of Appeal in **Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR** stated as follows regarding claims for future medical expenses: - *“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -* *“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof...”* *We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”* 1. The Plaintiff, having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintiff needed to surmount before an award under this head is made is to prove the pleaded future medical expenses. 2. The medical report dated 10th March 2025 by Dr. Ekesa (PW2) shows that the Plaintiff needs money for anti-inflammatory drugs and psychosocial support. 3. PW3’s witness statement on record shows that the Plaintiff is still using painkillers for the pain and aches arising from the accident.PW2 assessed the cost of future medical expenses at Kshs. 15,000/= 4. In the absence of evidence to controvert PW2’s assessment of the future medical expenses at Kshs. 15,000/=, this court finds and holds that the Plaintiff pleaded and proved future medical expenses of Kshs. 15,000/=. **(c)Special Damages** 1. The Plaintiff pleaded in paragraph 6 of his Plaint Special Damages of Kshs. 9,550/= comprising of Kshs. 4,000/= for the medical report, Kshs. 550/= for copy of records, and Kshs. 5,000/= for treatment expenses. 2. It is well settled in this jurisdiction that Special Damages must be pleaded and strictly proved before they are awarded as restated in **Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716**, where the Court of Appeal held as follows:- *“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”* 1. The receipts for specials from Dr. Ekesa, NTSA, and Life care Hospital Bungoma placed before this court by the Plaintiff proved on a balance of probabilities the Special Damages of Kshs. 9,550/= pleaded by the Plaintiff. 2. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 9,550/=. **DETERMINATION** 1. For the reasons above, judgment is hereby entered jointly and severally against the Defendants in the following terms:- 2. *Liability – 100% favour of the Plaintiff* 3. *General damages - Kshs. 100,000/=* 4. *Future medical expenses -Kshs. 15,000/=* 5. *Special Damages - Kshs. 9,550/=* ***Total Award - Kshs. 124,550/=*** 1. The General Damages will accrue interest at court rate from the date of this judgment till payment in full while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 2. The Plaintiff will have the costs of this suit. 3. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma this 21st day of April 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Wanyama for the Plaintiff Mr. Ojou for the Defendants C/A: Mr. Rioba