https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/678

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MARIAKANI** **CIVIL SUIT NO.E023 OF 2026** **CHAKA KEA JUMA .....................PLAINTIFF** **=VERSUS=** **KYOGA HAULIERS KENYA LIMITED………………………...DEFENDANT** **JUDGMENT** **Background of the matter** 1. The plaintiff’s negligence claim against the defendant KYOGA HAULIERS KENYA fast track claim, was lodged on February 4, 2026 by way of a Plaint dated 30th January, 2026 filed through A.N. Kamau & Co. Advocates. 2. The Plaintiff sued the defendant as the insured owner of motor vehicle KCZ 422M/ZG3034 seeking relief on grounds that he was unlawfully injured due to negligence of the driver agent servant of the defendant. Plaintiff claims relief from the defendant as the registered/beneficial owner of motor vehicle registration KCZ 422M/ZG3034 (Mercedes Benz / Trailer) for the negligence alleged. Particulars of negligence are set out under paragraph 5 ‘particulars of negligence of the defendants and or their authorised driver, servant and or agent *a) Driving at a very excessive speed without any regard to other road users; b) Driving negligently; c) Failing to exercise due care and skills in managing the motor vehicle registration number KCZ 422M/ZG3034 make MERCEDES BENZ/TRAILER; d) Driving recklessly without regard to other road users; e) Veering off the road; f) Encroaching pedestrian pathway; g) Failing to apply brakes, slowdown, and or stop in sufficient time or at all to avoid the said accident; h) Driving without due care and attention thereby causing the accident; i) Failing to steer in a clear and proper course; j) Employing an incompetent driver; k) Driving carelessly; l) Failing to maintain a proper lookout or in any other way manage the said motor vehicle as so to avoid the accident].* 3. Circumstances of the accident: plaintiff pleads he was lawfully and carefully walking off the road heading towards Nairobi general direction on or about 16th January, 2026, at the Shimoni area along the Nairobi-Mombasa Road when the defendant's motor vehicle registration KCZ 422M/ZG3034 (Mercedes Benz / Trailer) traveling toward Mombasa, was allegedly driven carelessly, negligently, recklessly, at high speed, and without proper lookout or regard for other road users that the driver lost control of the vehicle, veered off the road, encroached onto the pedestrian pathway, violently knocked the plaintiff, causing him severe injuries, loss, and damages for which the defendant should be held liable or vicariously liable. 4. Injuries pleaded: i. Fracture of the right humerus; ii. Bruises on the right1st right toe; iii. Abrasions on the right 1st toe; iv. Bruises on the left temporal region; v. Abrasions on the left temporal region; vi. Cut wound on the right temporal region; vii. Partial Permanent disability/ incapacity rated at 7% due to: a. Post traumatic arthritis on the right shoulder/ elbow joint; b. Stiffness on the right shoulder/ elbow joint; c. Fracture sites are point of weakness and can easily fracture in future; d. A lifetime of recurring post traumatic pains on the right forearm area especially when working and during cold weather; e. Diminished functional capacity to work and undertake daily activities of life. 5. Particulars of Special Damages: Medical report: Kshs. 2,000.00; P3 form: Kshs. 2,500; Motor vehicle search: Kshs. 550. Total Special Damages: Kshs. 5,050/=. Plaintiff has pleaded in Paragraph 7 Future Medical Expenses for: Painkillers & Bone/Joint Medication: Kshs. 3,000 per month for at least six months (Total: Kshs. 18,000/=; Physiotherapy Kshs. 12,000 for twenty (20) physiotherapy sessions at Moi County Hospital, thus total claim for Future Medical Expenses: Kshs. 30,000/=. 6. Plaintiff seeks in Paragraph 8 award for Loss of Earning Capacity pleading that prior to the accident, as a 43-year-old healthy, talented driver he was earning approximately Kshs. 30,000 per month. As a result of the accident he has been rendered 7% functionally disabled; his ability to drive and perform core duties has been significantly impaired. He has suffered loss or diminution of his earning capacity. 7. Paragraph 11 (Demand & Notice: that despite making formal demand and serving notice of intention to sue, upon the defendant and statutory notice upon the insurer, the defendant has refused, neglected, or ignored to make good the Plaintiff's claim, rendering the suit necessary. 8. The plaintiff has been bedridden at home following the accident. He lost the ability to work because his right arm is yet to heal and he suffers frequent recurring pains that will adversely affect his future work activities. 9. He therefore seeks Prayers/ Reliefs Sought as pleaded(a) General damages; (b) Special damages; (c) Future Medical Expenses; (d) Diminished future earning capacity; (e) Costs of and incidentals to this suit plus interest at 14%; (f) Interest on (a), (b) & (c) above. 10. Trial: Matter proceeded to formal hearing on 18/6/2026 after interlocutory judgment was entered on liability for the accident upon request by the plaintiff due to the defendant's default in appearance and defence. 11. The plaintiff **Chaka Kea Juma** testified adopting his witness statement 15/1/2026 as his evidence and he produced the documents in his Bundle of Documents dated 30/1/2026 as exhibits ***1 to 14. Ms*** Nyambura advocate appeared for the plaintiff. 12. Plaintiff filed **closing submissions** dated 15/6/2026 and the matter was reserved for judgment. 13. The plaintiff **in his submissions** prayed for judgment as per relief sought in the plaint and has urged relying on decided cases that **Kshs. 800,000/= i**s just to award under general damages for pain, suffering, and loss of amenities. Reiterating the injuries as stated in the medical report: Fracture of the right humerus; Cut wound, abrasions, and bruises on the left/right temporal region; bruises and abrasions on the right 1st toe; the resultant disability 7% permanent disability/incapacity due to post-traumatic arthritis in the right shoulder/elbow joint, joint stiffness, recurring post-traumatic pain (especially during cold weather/work), and reduced strength at the fracture site. 14. Cases relied upon to justify the Award: ***Beko v Kimani* [2025] KEHC 14515 (KLR)** – Award of Kshs. 650,000/= upheld for a left humerus fracture with 2% permanent incapacity and ***Gatwiri & Anor v Irungu* [2025] KEHC 12849 (KLR) –** Award of Kshs. 700,000/= for a fractured humerus, soft tissue injuries, and 5% permanent disability. Plaintiff submits he has proved Kshs. 5,050/= for special damages as pleaded: being Medical Report: Kshs. 2,000/=; P3 Form: Kshs. 2,500/=; Motor Vehicle Search / Copy of Records: Kshs. 550/= having tendered receipts for all three items were produced as exhibits in court. He seeks cost: Painkillers & Bone/Joint Medication: Kshs. 3,000/= per month for six (6) months = Kshs. 18,000/= and Physiotherapy Sessions: 20 sessions at Moi County Hospital = **Kshs. 12,000/-.** 15. The Plaintiff prays for **Kshs. 300,000/=** under the head o**f Diminished Future Earning Capacity** urging that due to the impact of Injuries he suffered: fracture to his right humerus he bears a 7% permanent disability, post-traumatic arthritis, stiffness in the right shoulder and elbow joints, and recurrent pain during work. The injury being on his upper limb has affected his functionality. He was prior to the accident working as a driver and now with the injuries his ability has reduced. And thus his efficiency, competitiveness, and overall capacity to perform in the labor market is diminished. 16. He was aged 43 at the time of the accident earning approximately Kshs. 30,000/= per month which he used to support his family. Case cited to support award of Kshs. 300,000/= *Mumias Sugar Company Ltd v Wanalo* [2007] KECA 485 (KLR). Plaintiff submits that decision established that compensation for loss of earning capacity is payable even if the Plaintiff continues to work, provided their future employment chances/competitiveness in the labor market have been diminished. 17. **Analysis and findings:** The court has considered the evidence tendered by the plaintiff and the plaintiff’s submissions. 18. On question of occurrence of the accident, and liability for the causing the said accident,as was held in case **North End Trading Company Limited carrying on business under registered name Kenya Refuse Handlers Limited= Vs =The City Council of Nairobi (2019) eKLR, a** party that fails to defend suit and adduce evidence in support of its pleaded case renders the other party's evidence as one the Court has no basis to disbelieve.The words of Justice Alnashir Visram Uneek Electrical Co. Ltd Civ appeal 676/2002 precisely addresses that aspect. Judge Visram ‘’………the defence did not provide any evidence to the contrary. *……………Here the court had no choice. The only evidence before it was that of the respondent (plaintiff), and the court had no reason to disbelieve his testimony.’’*. 19. **W**ith a default Interlocutory Judgment in favour of the plaintiff, the **question of liability for the accident is settled as t**he defendant failed to defend the suit despite due service. This court finds the plaintiff’s evidence is uncontroverted, and finds that the accident on **January 16, 2026** along the Nairobi-Mombasa Road, **Shimoni area** **resulted from the negligence of the driver of** vehicle registration **KCZ 422M/ZG3034** . The plaintiff was a pedestrian lawfully walking off the road as he has pleaded and testified and he was injured when the driver of the said vehicle lost control of the vehicle, veered off the road unto the pedestrian pathway, violently knocking him down. The defendant as owner of the said vehicle is to blame for the accident as owner of the vehicle and vicariously liable. 20. The information in the police abstract exhibit 3 shows vehicle registration no. involved are KCZ 422M /ZG 3034 insured by GA Insurance ltd owned by Kyoga Hauliers Co. Ltd was involved in the accident, on 16/1/2026 at Shimoni area and Chaka Kea Juma a pedestrian was injured as per p3 form. The police abstract is in reference to OB 10/17/01/2026 report made at Taru Traffic base. This court thus confirms the judgment on liability. 21. Only the quantum of damages is thus for determination here. The considerations in **assessing damages** are the nature of injuries sustained; awards made in comparable cases such that awards made should be reasonable within the ranges of awards made by the superior courts in comparable cases. The cost of inflation must be factored in where older awards are considered. 22. The injuries pleaded have therefore been proved. 23. The Plaintiff prays for **Kshs. 300,000/=** under the head of Diminished Future Earning Capacity 24. The court awards the plaintiff **Kshs. 800,000/=** *as general damages for pain, suffering and loss of amenities.* The award shall earn interest at court rates from the date of this Judgment until paid in full 25. The **medical report by Doctor Darius Wambua Kiema (My Clinic LLP) exhibit 1** has been considered. The report is uncontested. The court thus has no reason to depart from its findings. The only issue noted is that it appears to have a contradictory stamp for 15/1/2026 which seems to be an **inadvertent error.** The report indicates that Chaka was examined 1 month after the accident. From the history Chaka gave the doctor, the accident was on 16/1/2026. A month later is when Dr. Kiema examined the plaintiff. The court finds the error in dating does not affect the substance of the report. Its a detailed report showing the medical history documents considered by the doctor: treatment notes at Moi county, X ray at Ice Cold Imaging showing the fracture on right forearm (right humerus). Dr. Kiema has included images figures 1 to 4 showing Pop slab cast on the right forearm with arm sling; left temporal area cut sutured; and bruised right big toe. The plaintiff thus suffered fracture of the right humerus alongside minor soft-tissue injuries (abrasions/bruises); the doctor assessed partial permanent disability at only 7%.The authorities cited are relevant in nature of injuries and degree of disability is lower in the 2 cases. 2% and 5%. 26. The plaintiff's injuries as pleaded are proved through the medical report of Dr. Kiema exhibit 1. 27. The cases cited by plaintiff involve similar injuries to those suffered in this case. In **Beko Vs Kimani**, justice W. Musyoka upheld an award of Kshs. 650,000/= on general damages, noting at paragraph 7 that injuries involved were fracture of the lateral epicondyle of the right humerus, pain on the right elbow, tenderness on the right epicondyle of the humerus on palpation, and 2% partial disability assessed in that case. The trial court decision made on 26/1/2024 was upheld by the High Court on 15/10/2025. 28. The case **Gatwiri** cited on appeal the award of Kshs. 1.2 million on general damages, was reviewed down to Kshs. 700,000/= by Judge AC Mrima on 18/9/2025 noting at paragraph 22 that injuries involved were fracture of the humerus, soft tissue injuries and a degloving wound on the right upper arm. 5% partial disability assessed in that case. 29. With passage of time as the 2 decisions are for 2025, this court finds award of Kshs. 800,000/= proposed by the plaintiff in this case is fair. 30. The court awards Kshs. 800,000/= as general damages to Chaka in this case, to earn interest at court rates from date of judgment until paid in full. 31. **Loss / Diminution of Future Earning Capacity. Loss of capacity:** principles in *Mumias Sugar Co. Ltd v Wanalo*, considered. Proof is on a balance of probabilities, and such loss may be separately claimed apart from the general damages award. The plaintiff pleaded diminished capacity to earn. The Plaintiff has adduced his driving license and though no specific receipts or statements to prove Kshs. 30,000/= monthly as earned as a driver, the court finds it likely that as a driver he would be able to earn that much a month. 32. A 7% disability rating while not total incapacity has significantly reduced plaintiff’s ability and he would require time to reorient himself to be able to function as a driver with the new reality. The awa***rd of Kshs. 300,000/= sought is thus reasonable to award and is thus awarded as prayed.*** 33. On **Future Medical Expenses** the doctor’s recommendation is adopted by court: Kshs. 18,000/= for ongoing medication over 6 months awards. In Dr. Kiema’s report breakdown is given: Painkillers & Bone/Joint Medication: Kshs. 3,000/= per month for six (6) months = Kshs. 18,000/= And Physiotherapy Sessions: 20 sessions at Moi County Hospital = Kshs. 12,000/=. The medical report is an expert opinion and the same having not been contested, this court finds it just to adopt recommended future costs.Thus the court awards ***plaintiff total Kshs. 30,000/= future medical expenses.*** 34. **Special damages:** it is pleaded that the plaintiff Kshs. 5,050/= as pleaded and proved. The court is satisfied with proof tendered for the medical report Kshs. 2,000/, and for copy of records Kshs. 550/=. The cost Kshs. 2,500/= for p3 form no receipt produced though the P3 form was produced as exhibit. This court thus finds it just to award the cost for p3 form as well. 35. The court thus awards **Kshs. 5,050/= on special damages**. This award shall earn interest at court rates from the date **of suit 4*/2/2026*** until paid in full. 36. Judgment is entered in favour of the plaintiff against the defendant for the awards above stated: ***Kshs. 800,000/= general damages for pain suffering and loss of amenities; Kshs. 5,050/= special damages.*** *Future medical expenses:* painkillers and Physiotherapy **Kshs. 30,000/- as recommended by Dr. Kiema; diminished earning capacity** awa***rd of Kshs. 300,000/=.*** 37. **Costs of suit:** Plaintiff issued demand letter to the defendant and statutory notice to the insurer GA Insurance. 38. Cost of suit follows the event. The court awards the Plaintiff costs of suit against the defendant. 39. Appeal to Malindi High Court. Right of appeal as prescribed. **JUDGMENT DATED, SIGNED & DELIVERED THIS ……21st ….DAY OF .…AUGUST 2026** **IN PRESENCE OF:** **For the plaintiff:** **………ABSENT.……………………** **A.N. KAMAU & CO ADVOCATES** **Defendant:…ABSENT.** **Court Assistant:…Wesonga** **T. N. SINKIYIAN, Principal Magistrate**