https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/632

Wakoli (Suing as the Mother and Legal Representative of the Estate of Vallary Mutoro (Deceased)) v Auto Mega Limited & another (Civil Case E028 of 2025) [2026] KEMC 632 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEMC 632 (KLR) Republic of Kenya In the Bungoma Law Courts Civil Case E028 of 2025 TO Omono, SRM July 14, 2026 Between Christine Nelima Wakoli (Suing as the Mother and Legal Representative of the Estate of Vallary Mutoro (Deceased)) Plaintiff and Auto Mega Limited 1st Defendant Dalmus Okumu Wamalwa 2nd Defendant Judgment 1.The Plaintiff instituted this suit on behalf of Vallary Mutoro (Deceased) through an Amended Plaint amended on 14th November 2025, seeking judgment against the Defendants jointly and severally for:-a)General damagesb)Future medical expensesc)Special damages Kshs. 5,550,/=d)Costse)Interestf)Any other relief this Honourable court may deem fit to grant 2.The Plaintiff averred that the cause of action herein arose on 01st December 2024 along Namwacha – Sang’alo road when the Defendants’ motor vehicle registration number KDC 540 D reportedly veered off the road and knocked the deceased near Sang’alo Primary School’s gate, thereby causing the deceased bodily injuries enumerated in paragraph 6 of the Amended Plaint. 3.The Plaintiff further averred that the accident occurred due to the Defendants' negligence as set out in paragraph 5A of the Amended Plaint. 4.The 1st Defendant neither entered appearance nor filed a Statement of Defence despite being duly served with the Plaintiff’s pleadings and the Summons to Enter Appearance. Consequently, an interlocutory judgment was entered against them. 5.The 2nd Defendant entered appearance and responded to the Amended Plaint herein through an Amended Statement of Defence amended on 12th January 2026 putting the Plaintiff to strict proof of all the averments in the Amended Plaint. The 2nd Plaint also blamed the occurrence of the accident on the deceased’s negligent acts and omissions set out in paragraph 5 of the Amended Statement of Defence. 6.The 2nd Defendant urged this court to dismiss the Plaintiff’s case with costs. 7.In response, the Plaintiff filed a Reply to the Amended Statement of Defence reiterating her averments in the Amended Plaint on record. 8.It is against this backdrop that this court set down this matter for hearing for the Plaintiff and the 2nd Defendant to prove their respective cases on a balance of probabilities. 9.A summary of the evidence led by the parties is set out below. Evidence Plaintiff’s Case 10.PW1 Christine Nelima Wakoli is the deceased’s mother. She adopted her witness statement dated 16th January 2025 and her further statement dated 14th November 2025 as her evidence in chief. She also produced all the documents filed herein by the Plaintiff as exhibits. 11.She stated in cross–examination that the accident caused the deceased to sustain injuries to the chest, ribs, abdominal area, and on one of the leg joints. Whereas she claimed that the accident injuries caused the deceased’s death, she conceded that the deceased’s certificate of death was explicit that the deceased died as a result of severe anaemia due to ectopic pregnancy. 2nd Defendant’s Case 12.The 2nd Defendant did not call any witnesses in this matter since the Plaintiff and the 2nd Defendant selected Bungoma CMC CC No. E028 of 2025 as a test suit on liability Analysis & Determination 13.This court has given due regard to the pleadings, evidence, the written submissions, as well as the authorities on record. 14.The Plaintiff and the 2nd Defendant adopted Bungoma CMC CC No. E028 of 2025 as a test suit on liability. Liability in the said test suit was determined in the ratio of 80%:20% in favour of the Plaintiff against the Defendants jointly and severally. 15.In the circumstances, the only issue for determination is quantum. Quantum of Damages (a) General damages for pain and suffering 16.The Plaintiff pleaded in paragraph 5A of the Amended Plaint herein that the accident caused the deceased to sustain chest pains on the right side, a painful right loin, a swollen right knee joint, lacerations on the left foot, a headache, tenderness over the right knee joint, tenderness on the right ankle joint, and psychological trauma. 17.The uncontroverted deceased’s P3 form dated 02nd December 2024, treatment notes from Bungoma County Referral Hospital dated 02nd December 2024, and the medical report dated 02nd December 2024 by Dr. Mulianga Ekesa corroborated the Plaintiff’s averments on the injuries sustained by the deceased as a result of the accident. 18.Given the foregoing, this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident caused the deceased to sustain moderate multiple soft tissue injuries and psychological trauma as set out in paragraph 5A of the Amended Plaint herein. 19.In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore vs Geoffrey Mwenda [2004] eKLR, where the Court of Appeal stated as follows:“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 20.This court has given due regard to the Plaintiff’s and the 2nd Defendant’s written submissions on quantum. 21.The Plaintiff submitted that an award of Kshs. 300,000/= was sufficient under this head by placing reliance on Mara Tea Factory Limited v Lilian Bosibori Nyandika [2021] eKLR cited in Thuo & another v Nanzala (Civil Appeal E075 of 2022) [2024] KEHC 2978 (KLR) where the court set aside the award of Kshs. 400,000 and substituted it with an award of Kshs 300,000 where the plaintiff had sustained a head injury, deep cut wound on the head, bruises on the frontal part of the head, tenderness on the chest, dislocation of the left wrist joint, and multiple cut wounds on the upper and lower limbs. 22.Clearly, the injuries sustained by the Plaintiff in the case cited by the Plaintiff for an award of Kshs. 300,000/= under this head involved a Plaintiff who sustained more serious injuries than the ones sustained by the deceased herein. That authority is not applicable in this case. 23.The 2nd Defendant, on his part, urged this court to make an award of Kshs. 100,000/= under his head by citing 2024 and 2025 decisions where courts awarded Kshs. 150,000/= for multiple moderate soft tissue injuries. It is interesting that whereas the authorities relied upon by the 2nd Defendant were for awards of Kshs. 150,000/= for moderate multiple soft tissue injuries, he urged this court to make an award of Kshs. 100,000/= without considering the passage of time and inflation trends in this country since the time the authorities he cited were made. This shows that an award of Kshs. 100,000/=, which the 2nd Defendant was urging this court to make in 2026, is inordinately low. 24.The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR), where the court made an award of Kshs. 150,000/= for multiple soft tissue injuries, including a deep cut on the forehead and a blunt injury to the right knee. 25.In Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR), the court made an award of Kshs. 150,000/= for a head injury, left and right leg injury, superficial bruises to both knees, face, and scalp, chest injury, soft tissue injuries on the fingers, bruises, and lacerations on various parts of the body. 26.In Asino & another v Nyakundi (Civil Appeal E006 of 2021) [2026] KEHC 1750 (KLR), Kshs. 200,000/= was awarded for bruises on the right leg; blunt trauma to the right knee; bruises on the left leg; and blunt trauma to the left knee. 27.Guided by the authorities above, and more particularly the Asino case (supra), being a recent decision, and considering that the Plaintiff sustained psychological trauma as a result of the accident, this court makes an award of Kshs. 200,000/= under this head. (b) Future medical expenses 28.The Plaintiff pleaded for future medical expenses in the Amended Plaint herein. 29.It is common ground that the Plaintiff (deceased), who required the future medical expenses pleaded in the Amended Plaint, unfortunately died. This means that the claim for future medical expenses cannot be sustained since there is no one to incur future medical expenses as a result of the injuries sustained from the accident herein. 30.The Plaintiff’s counsel had the option of including a claim for medical expenses, if any, incurred by the deceased to manage any pain arising from the accident’s injuries, at the time of amending the Amended Plaint. He did not. Parties are bound by their pleadings. 31.Were the deceased alive, considering that Dr. Ekesa did not state how much the deceased would have required for future medical expenses, and for how long, this court would have exercised its discretion and awarded Kshs. 10,000/= for the deceased’s painkillers and psychosocial support. 32.Given the reasons above, this court declines to make an award for future medical expenses. (c) Special Damages 33.The Plaintiff pleaded for Special Damages of Kshs. 5,550/=. The receipt for the medical report for Kshs. 4,000/=, NTSA motor vehicle search receipt for Kshs. 550/=, and the court fees receipt for Kshs. 1,000/= for the Grant Ad Litem proved the pleaded Special Damages to the required standards. 34.Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 5,550/=. Determination 35.The upshot of the foregoing is that judgment is hereby entered jointly and severally against the Defendants in the following terms:-(a)Liability – 80%:20% in favour of the Plaintiff(b)General damages - Kshs. 200,000/=(c)Special Damages - Kshs. 5,550/=Grand Award -Kshs. 205,550/=Less 20%Net Award - Kshs. 164,440/= 36.The General Damages and future medical expenses 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. 37.The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 38.Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 14TH DAY OF JULY 2026T.O. OMONOSENIOR RESIDENT MAGISTRATEIn the presence of:Mr. Bwonchiri for the PlaintiffMs. Muthoni for the 2nd DefendantC/A: Mr. Rioba