https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/380

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT** **MILIMANI COMMERDCIAL COURTS** **NAIROBI** **CIVIL SUIT NO E3620 OF 2024** **CHELANGAT STELLA................................................................. PLAINTIFF** **-VERSUS-** **GEORGE MEUTHENGIA KIBE ........................................ 1ST DEFENDANT** **CHARLES KAROBIAH................................................... 2ND DEFENDANT** **JUDGEMENT** **Introduction** The Plaintiff vide a Plaint dated 18th July ,2024 sought Judgment against the Defendants jointly and severally for : 1. General Damages for pain, suffering and loss of amenities 2. Special Damages kshs.28,010.00 3. Costs of this suit 4. Interest on (i) (ii)(c)& (iii)above 5. Any other relief that this Honourable Court may deem fit to grant The Plaintiff's claim arises from a road traffic accident alleged to have occurred on 11th November ,2023 along Outering Road. She pleaded that while lawfully walking along the roadside, the Defendants' motor vehicle, registration number **KBX 400D**, was negligently driven on the wrong side of the road, lost control and knocked her down, causing her serious injuries. The Defendants denied liability, disputed the occurrence of the accident, the alleged negligence, the injuries sustained, and the claim for damages. However, they did not call any witnesses or adduce any evidence at the hearing, leaving the Plaintiff's evidence uncontroverted. The Plaintiff called two witnesses. PW1,No. 58516 CPL Fairfax Masinde, testified that according to police records, the accident occurred on 11th November 2023 at about 6.00 p.m. involving motor vehicle registration number KBX 400B, a Mitsubishi Fuso lorry, and the Plaintiff, a pedestrian. He stated that the investigating officer found that the vehicle was travelling from Donholm towards Quarry on the service lane when it knocked down the Plaintiff, who sustained serious injuries and was taken to Mama Lucy Hospital. He testified that the driver was blamed for driving on the wrong side of the road, that investigations were still pending, and that the driver was at large. He produced the Police Abstract as **P Exhibit 10.** During cross-examination, he confirmed that he had not produced the sketch map and stated that the Plaintiff was walking on a road predominantly used by pedestrians and was not crossing the road when the accident occurred. PW2, Stella Chelangat, testified that on 11th November ,2023 she was walking along Outering Road near Equity Bank First Turn towards Donholm when the Defendants' motor vehicle knocked her down while being driven on the wrong side of the road. She maintained that she was walking on the roadside used by pedestrians and was not crossing the road. She sustained injuries, was treated at Mama Lucy Hospital, and continued to experience pain, requiring medication and limiting her ability to perform heavy duties. She blamed the driver and the owner of the motor vehicle for the accident and sought compensation. During cross-examination, she reiterated that she was walking near a footbridge, there was no zebra crossing at the scene, and she was not crossing the road when she was hit. In re-examination, she maintained that she was walking along the roadside, that the driver was on the wrong side of the road, and that she continued to suffer pain during strenuous activities. **Liability** I have carefully considered the pleadings, the evidence adduced by the Plaintiff, the Defence filed by the Defendants, and the Written Submissions by both parties. The issues for determination on liability are: a) Who was responsible for the occurrence of the accident and to what extent; and b) Whether the 1st Defendant is vicariously liable for the negligence of the driver of the suit motor vehicle. The Plaintiff's case is that on 11th November 2023 she was lawfully walking along the pedestrian side of Outering Road when Motor Vehicle Registration Number **KBX 400D** was negligently driven on the wrong side of the road and knocked her down, thereby occasioning the injuries complained of. PW2 consistently testified that she was not crossing the road but was walking along the roadside reserved for pedestrians. Her evidence was corroborated by PW1, Corporal Fairfax Masinde, who produced the Police Abstract and testified that the driver was blamed for driving on the wrong side of the road. Although investigations were still pending, PW1 maintained in cross-examination that the Plaintiff was not crossing the road when the accident occurred and that the road where the accident occurred was mainly used by pedestrians. The Defendants submitted that the Plaintiff failed to discharge the burden of proof under Sections 107, 108 and 109 of the Evidence Act. They contended that negligence cannot be inferred merely because an accident occurred and that the Plaintiff failed to establish, by credible evidence, how the accident happened. They further argued that the Plaintiff's evidence was inconsistent as to whether she was standing by the roadside or crossing the road and that no independent eyewitness was called. The Defendants also submitted that the Police Abstract was not proof of negligence, particularly because the investigating officer did not testify and investigations had not been concluded. They therefore urged the Court to dismiss the suit or, in the alternative, to apportion liability against the Plaintiff for contributory negligence. I have carefully considered those submissions. While the burden of proof rests upon the Plaintiff, that burden is discharged on a balance of probabilities. Once a prima facie case is established, the evidential burden shifts to the Defendant to rebut the evidence adduced. In the present case, although the Defendants filed a Statement of Defence denying negligence and alleging contributory negligence, they did not call any witness or produce any evidence in support of those allegations. Their Defence therefore remained a mere denial. The Court of Appeal in **CMC Aviation Ltd -Vs-Cruisair Ltd (No. 1) [1987] KLR 103** stated: **"Pleadings contain the averments of the three parties concerned until they are proved or disproved. They are not evidence and no decision could be based on them. Proof is by evidence."** Similarly, in **Trust Bank Limited -Vs- Paramount Universal Bank Limited & 2 Others [2009] eKLR**, the Court held that:**"It is trite law that where a party fails to call evidence in support of its case, its pleadings remain mere statements of fact since such pleadings are not evidence."** In view of the foregoing authorities, the Defendants' allegations of contributory negligence and denial of liability remained unsubstantiated. I have also considered the alleged inconsistencies raised by the Defendants. Having evaluated the entire record, I find that they are not material. The Plaintiff consistently maintained that she was walking on the roadside and not crossing the road when she was knocked down. PW1 corroborated that account. The minor discrepancies pointed out by the Defence do not go to the root of the Plaintiff's case and do not discredit her otherwise credible testimony. The Defendants further argued that the Police Abstract was insufficient to establish negligence. While I agree that a Police Abstract alone is not conclusive proof of liability, in this case it did not stand alone. It was supported by the oral testimony of PW1 and PW2, both of whom gave a consistent account that the motor vehicle was being driven on the wrong side of the road where pedestrians ordinarily walked. The Plaintiff also pleaded the doctrine of **res ipsa loquitur**. In **Esther Nduta Mwangi & Another -Vs- Hussein Dairy Transporters Ltd, Machakos HCCC No. 46 of 2007**, Lenaola J. (as he then was) held: **"Although the Defendant denied the accident but pleaded in the alternative that the accident was as a result of negligence on the part of the deceased, the Defendant chose to call no evidence whatsoever, and that being the case the particulars of negligence on the part of the deceased were not proved and are mere allegations. The Plaintiff, on the other hand, pleaded the doctrine of res ipsa loquitur and produced documents including the Police Abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine of res ipsa loquitur was pleaded, the burden of proof was shifted to the Defendant to disprove the particulars of negligence attributed to him."** Likewise, in **Public Trustee -Vs-City Council of Nairobi [1965] EA 758**, the Court stated:**"The maxim res ipsa loquitur applies only where the causes of the accident are unknown but the inference is very clear from the nature of the accident and the Defendant is therefore liable if he does not produce evidence to counteract the inference."** The circumstances of this case justify the application of that doctrine. The evidence establishes that the suit Motor Vehicle was being driven on the wrong side of the road where pedestrians ordinarily walked. No explanation whatsoever was offered by the Defendants as to how the accident occurred or why the vehicle left its proper lane. The inference of negligence was therefore not displaced. I further find that there is no evidential basis upon which to attribute contributory negligence to the Plaintiff. The allegation remained a mere pleading unsupported by any evidence. Regarding vicarious liability, the evidence establishes that Motor Vehicle Registration Number KBX 400D belonged to the 1st Defendant and was being driven by the 2nd Defendant on the material day. There was no evidence that the 2nd Defendant was acting outside the course of his employment.In **Mwona Ndoo -Vs- Kakuzi Ltd (1982–1988) 1 KAR 523**, Chesoni Ag. JA held:**"It was not established that the employee was on a frolic of his own... Without that evidence the reasonable presumption is that he was on his master's business."** Similarly, in **Kenya Bus Services Ltd -Vs- Humphrey [2003] KLR 665; [2003] 2 EA 519**, the Court of Appeal stated:**"...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."** Applying those principles to the present case, I find that the 2nd Defendant was driving the suit motor vehicle as the servant or agent of the 1st Defendant. Consequently, the 1st Defendant is vicariously liable for the negligence of the 2nd Defendant. Having considered the totality of the evidence, I am satisfied that the Plaintiff proved her case on a balance of probabilities. The evidence establishes that the accident occurred solely because the 2nd Defendant negligently drove the suit motor vehicle on the wrong side of the road and knocked down the Plaintiff, who was lawfully walking on the roadside. The Defendants failed to rebut that evidence or establish any contributory negligence on the part of the Plaintiff. Accordingly, I find the Defendants jointly and severally 100% liable for the accident. **Quantum** The Plaintiff pleaded that as a result of the accident she sustained the following injuries: 1. Fracture of the pelvis at the left anterior and posterior pubic rami; 2. Blunt injury to the left upper and lower limbs; 3. Blunt injury to the hip; and 4. Severe pain, mental anguish and discomfort. The Plaintiff testified that following the accident she was rushed to Mama Lucy Kibaki Hospital where she was treated. Her evidence was corroborated by the treatment records, including the sick sheet, laboratory request form, abdominal ultrasound report from P.CEA Kikuyu Hospital and the medical report prepared by Dr. Cyprianus Okoth Okere dated 6th December 2023. Upon examination, Dr. Okoth found that the Plaintiff had sustained a fracture of the pelvis involving the left anterior and posterior pubic rami, blunt injury to the lower limb and blunt injury to the hip. He opined that the injuries were consistent with a road traffic accident and classified them as grievous harm. At the time of examination, the Plaintiff continued to experience pain arising from the injuries. The medical report therefore confirmed that the Plaintiff had suffered significant trauma as a result of the accident. The Defendants relied on the medical report prepared by Dr. Ashwin Madhiwala dated 25th February 2025. Dr. Madhiwala similarly confirmed that the Plaintiff had sustained a non-displaced fracture of the left superior and inferior pubic rami of the pelvis. He noted that the Plaintiff had been treated conservatively with bed rest and medication after the fracture was confirmed by X-ray. At the time of his examination, approximately fifteen months after the accident, the Plaintiff complained of occasional pain in the left leg and pelvic region, particularly after walking long distances. However, clinical examination revealed no external injuries, swelling, tenderness or scarring. The Plaintiff walked with a normal gait, had full range of motion of the left hip joint and required no walking aid. Dr. Madhiwala concluded that the pelvic fracture had healed well, that the Plaintiff had no permanent disability, and that she had only suffered temporary incapacity for approximately six weeks before making a full recovery. The Court has carefully considered both medical reports. There is no contradiction between them. Dr. Cyprianus Okoth examined the Plaintiff shortly after the accident when the injuries were still acute and appropriately classified them as grievous harm. Dr. Madhiwala examined the Plaintiff much later after the healing process had taken place and assessed the long-term outcome of the injuries. Both reports consistently confirm that the Plaintiff sustained a pelvic fracture. The later report merely demonstrates that, with treatment and the passage of time, the fracture healed without permanent disability. The Plaintiff urged the Court to award **Kshs.1,700,000.00** as General damages, relying on **Milicent Atieno Ochuonyo -Vs- Katola Richard [2015] eKLR** and **Azhar Ali -Vs-Sheikha Mohamed [2020] eKLR**. I have considered those authorities. However, they involved claimants who sustained more extensive injuries, including multiple fractures and more serious residual complications than those suffered by the Plaintiff herein. The injuries in those cases were therefore more severe, justifying the higher awards made by the courts. Consequently, they are distinguishable from the present case. The Defendants proposed an award of **Kshs.400,000.00**, relying on **Mutisiah Isaac -Vs- Leah Wangui Kanyingi [2016]eKLR**, where the plaintiff sustained fractures of the superior and inferior pubic rami together with a leg wound and was awarded **Kshs.400,000.00**. They also relied on **George Okewo Osawa -Vs- Sukari Industries Ltd [2019] eKLR**, where the Court awarded **KShs.400,000.00** for an isolated pelvic fracture. Further reliance was placed on **Ali Malik Brothers Motor (K) Ltd & Another -Vs-Emmanuel Oduor Onyango [2018] eKLR**, where an award of **KShs.700,000.00** was upheld because the claimant sustained a pelvic fracture accompanied by additional serious injuries. The Defendants correctly distinguished that authority on the basis that the claimant therein suffered more severe associated injuries than the Plaintiff in the present case. I have also considered the decision in **Kihara & Another -Vs- Situma [2022] KEHC 15666 (KLR)**, where the High Court reviewed authorities involving pelvic fractures and observed that awards for comparable pelvic fractures generally ranged between **Kshs. 300,000.00** and **Kshs.700,000.00**, depending on the extent of the injuries, associated complications and whether permanent incapacity resulted. The guiding principle in the assessment of general damages is that comparable injuries should attract comparable awards, while bearing in mind inflation and the particular circumstances of each case. The award should fairly compensate the injured party without resulting in unjust enrichment. In the present case, the Plaintiff sustained a painful pelvic fracture which was initially assessed as grievous harm. Nevertheless, the medical evidence establishes that the fracture healed satisfactorily, she regained normal mobility, she has full movement of the hip joint, and she was left with no permanent disability. Her only residual complaint is occasional pain after prolonged walking. The authorities relied upon by the Plaintiff represent the higher end of the spectrum and involved more severe injuries, while those relied upon by the Defendants represent the lower range and were decided several years ago. Taking into account the comparable decisions, the medical findings in both reports, the Plaintiff's full recovery, the absence of permanent incapacity and the effects of inflation, I am persuaded that an award of **Kshs.650,000.00** as General Damages for pain, suffering and loss of amenities is fair, reasonable and consistent with current comparable awards. Accordingly, I award the Plaintiff General Damages of **Kshs. 650,000** for pain, suffering and loss of amenities. **Special Damages** Special Damages must specifically be pleaded and proved. The same has been pleaded at **Kshs.28,010.00** but only **Kshs.13,010.00** has been proved by way of receipts and I proceed to award the same. No receipts were produced to justify the Doctor’s Court attendance fees of Kshs.10,000.00 and the Police Court attendance fees of Kshs.5,000.00 **Conclusion** The Plaintiff has proved her case against the Defendants on a balance of probability and I proceed to enter Judgment for the Plaintiff against the Defendants jointly and severally as follows: Liability Defendants 100% liable for the accident General Damages..........................................................Kshs.650,000.00 Special Damages.............................................................Kshs 13,010.00 **TOTAL .............................................................................Kshs.663,010.00** ***(Kenya Shillings six hundred and sixty three thousand and ten )*** The Plaintiff shall also have costs of the suit and interest as follows: * 1. On General Damages, from the date of Judgment until payment in full. 2. On Special Damages from the date of filing suit until payment in full. 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **29.7.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 29TH DAY OF JULY,2026** **In the presence of :** M/s Owino for the Plaintiff Mr. Mwanzia Holding Brief for Mr.Ndumia for the Defendant Court Assistant: Phoebe.