https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/396

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CIVIL CASE NO E093 OF 2021** **CHRISTOPHER NGONGO MULANDI………..………………….……………………………………....PLAINTIFF** **VERSUS** **JOSEPH MUTUKU NDAVI…………………………………………………………....................1ST DEFENDANT** **JOHN MOSES MACHARIA……………………………………………………………………………2ND DEFENDANT** **JUDGMENT** **THE CLAIM** Christopher Ngongo Mulandi (hereinafter referred to as the plaintiff) filed this suit on 12/4/2021 vide a plaint dated 22/12/2020. The plaintiff sued Joseph Mutuku Ndavi and John Moses Macharia (hereinafter referred to as the 1st and 2nd defendants respectively) on account of a road traffic accident that allegedly occurred on 15/9/2019 along Emali-Wote road. The plaintiff averred that on the material day, he was lawfully and carefully travelling as a passenger aboard motor vehicle registration number KCE 203B when the said motor vehicle was so recklessly and carelessly driven that it veered off the road and overturned, thereby occasioning the plaintiff severe injuries, loss and damage. The defendants were sued as the registered and/or beneficial owners of motor vehicle registration number KCE 203B at the material time. The plaintiff relied on the doctrine of *Res ipsa loquitor* and pleaded the following particulars of negligence against the driver of motor vehicle registration number KCE 203B: 1. Driving the said motor vehicle at an excessively high speed in the circumstances; 2. Driving the said motor vehicle without due care and attention; 3. Driving the said motor vehicle so dangerously and/or negligently and without regard to the passengers on board and particularly the plaintiff; 4. Driving the said motor vehicle recklessly and in total violation of the Traffic rules; 5. Failure to slow down, stop, brake, swerve and/or take other reasonable step to avoid the said accident; 6. Driving a defective motor vehicle; 7. Causing the accident. The plaintiff further pleaded particulars of injuries sustained as well as those of special damages and prayed for judgment against the defendant for: 1. General damages; 2. Special damages for Ksh. 9,220/=; 3. Costs of the suit; 4. Interest. **INTERLOCUTORY JUDGMENT** The record indicates that the defendants failed to enter appearance and file their defences and upon request by the plaintiff, interlocutory judgment was entered against them on 23/9/2021. Thereafter, the defendants applied to have the judgment set aside. The application was allowed on condition that the defendants pay the plaintiff thrown away costs of Ksh. 30,000/= within 30 days from 18/9/2023 when the ruling was delivered. The defendants did not bother to pay the thrown away costs and as a result, the interlocutory judgment reverted. The matter then proceeded as an undefended cause. **THE EVIDENCE** ***The plaintiff’s Case*** Only the plaintiff testified in support of his case. He adopted his statement filed in court as part of his testimony. The plaintiff also adopted the documents filed in court as part of his evidence. The evidence of the plaintiff was that on 15/9/2021 he was travelling as a passenger in motor vehicle registration number KCE 203B along Emali-Wote road. That upon reaching Mwanyani area, the driver who was driving at a high speed lost control of the motor vehicle. The plaintiff testified that the motor vehicle veered off the road and overturned, thereby occasioning him severe bodily injuries. The plaintiff stated that he went to hospital for treatment. He blamed the driver of the accident motor vehicle for the accident. The plaintiff urged the court to order for his compensation. **MAIN ISSUES FOR DETERMINATION** In my opinion, the main issues for determination are as follows: 1. Who was to blame for the accident? 2. Whether the defendants are vicariously liable for the accident; 3. Whether the plaintiff sustained injuries and suffered loss as a result of the accident; 4. Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof; 5. Who should bear the costs of this suit? **THE PLAINTIFF'S SUBMISSIONS** The plaintiff filed written submissions and submitted that there being interlocutory judgment against the defendants, the issue of liability becomes settled at 100% against the defendants. The plaintiff urged the court to find the defendants 100% vicariously liable. On quantum, the plaintiff proposed a sum of Ksh. 350,000/= and relied on the following authorities: 1. ***Francis Ochieng & another v Alice Kajimba [2015] eKLR.*** The plaintiff and respondent in the appeal sustained head injuries, subconjuctival, haemorrhage and periorbital sccymosis on both eyes. The trial court awarded Ksh. 500,000/= on 18/2/2014. On appeal, the award was reduced to Ksh. 350,000/= on 2/6/2015. 1. ***Robinson Njoroge v Daniel Ombasa [2021] eKLR.*** The plaintiff and respondent in the appeal sustained a deep cut wound on the head leading to soft tissue injuries, soft tissue injury to both hands and blunt injury to right hip joint leading to severe soft tissue injuries. The trial court awarded Ksh. 300,000/= in general damages on 16/11/2018. On appeal, the award was affirmed on 12/7/2021. 1. ***Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR.*** The plaintiff and respondent in the appeal sustained blunt injury to the chest, bruises of the lower abdomen, bruises of the right hip joint, bruises of the thigh and bruises on the knee. The trial court awarded Ksh. 350,000/= in general damages on 28/12/2018. On appeal, the award was affirmed on 10/3/2021. **ANALYSIS AND DETERMINATION** I have carefully considered the evidence on record and given due regard to the submissions made by the plaintiff. **Liability** As indicated earlier, there is interlocutory judgment against the defendants. Ordinarily, where interlocutory judgment has been entered, the issue of liability becomes settled. This position has been confirmed by various judicial pronouncements. In the case of ***Abdullahi Ibrahim Ahmed (Suing as The Personal Representative of The Estate of Anisa Sheikh Hassan (Deceased)) v Lem Lem Teklue Muzolo [2013] eKLR***, the Court of Appeal stated thus: ***"..............save to reiterate what is now settled law that once interlocutory judgment has been entered the question of liability becomes a foregone conclusion.............we can do no better than to repeat what was said by this court in the case of Felix Mathenge v Kenya Power & Lighting Co. Ltd. Civil Appeal No. 215 of 2002 that:-*** ***The role of the Court after entering the interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages.”*** Consequently, I find the driver of the accident motor vehicle 100% liable for the accident. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, *respondeat superior*, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. In the case of ***Morgan v Launchbury [1972] ALL ER 606***, it was held, *inter alia*, that: ***“To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.”*** Similarly, In **Kaburu *Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR*** the Court of Appeal held that: ***“Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.****”* Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of***Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519***, the Court of Appeal cited ***Kansa v Solanki [1969] EA 318*** wherein it was heldthat: ***“ 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 whosenegligence the owner is responsible *( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker 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 still being driven for the joint benefit of the owner and the driver.”*** There is no evidence to show that the driver of the accident motor vehicle was on a frolic of his own and not driving in the course of his employment. In fact, the police abstract produced in evidence indicates that the 2nd defendant was the driver of the accident motor vehicle at the material time. There is no contrary evidence. Consequently, I find the defendants 100% liable, with the 2nd defendant being **100% vicariously liable** for the accident. **Quantum** The medical evidence on record indicates that the plaintiff sustained the following injuries: 1. Tenderness of the right side of the chest; 2. Tenderness of the right scapula; and 3. Laceration on the proximal and posterior aspect of the right elbow joint. There is no contrary evidence. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. This Court has to bear in mind the principles that guide assessment of damages as espoused in ***West (HI) and Sons Ltd v Shepherd [1964] AC 326*** where Lord Morris said: ***“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”.*** I am also guided by Lord Denning’s decision in ***Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332*** which was adopted in the case of ***Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR*** where Wendoh, J stated that: ***“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.”*** The following principles are germane in assessing damages for personal injury claims: 1. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered; 2. The award should be commensurate to the injuries suffered; 3. Awards in decided cases are mere guides and each case should be treated on its own facts and merit; 4. Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration; 5. Awards should not be inordinately too high or too low. Based on the above principles, I proceed to assess the damages payable as follows. **General Damages for pain, suffering and loss of amenities** I have considered the injuries sustained by the plaintiff. The medical evidence produced by the plaintiff indicates that the plaintiff was treated as an outpatient. I have further considered the submissions made by the plaintiff on quantum as well as the authorities relied upon. The authorities are comparable. On my part, I have considered the following authorities: 1. ***Ochola v Owuor [2024] KEHC 7689 (KLR).*** The plaintiff and respondent in the appeal sustained soft tissue injuries to the right shoulder joint, soft tissue injuries to the anterior chest wall, soft tissue injuries to the neck, back and both knees. The trial court awarded Ksh. 250,000/= on 12/5/2022. On appeal, the award was reduced to Ksh. 150,000/= on 25/6/2024. 1. ***Pascal v Ouko [2023] KEHC 24463 (KLR).*** The plaintiff and respondent in the appeal sustained chest contusion, blunt injuries to the back, scalp, neck, upper limbs and lower limbs and lacerations to the right knee. The trial court awarded Ksh. 200,000/= in general damages on 21/12/2021. On appeal, the award was reduced to Ksh. 150,000/= on 18/10/2023. The plaintiff herein sustained comparable injuries to those sustained by the victims in the above authorities. Given the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. **250,000/=** in general damages would suffice. I award the same. **Special Damages** The plaintiff pleaded special damages as follows: 1. Motor vehicle search………………………....Ksh. 550/= 2. Medical report…………………………………Ksh. 5,000/= 3. Medical and related expenses……...….Ksh. 3,670/= Total…………………………………………………Ksh. 9,220/= It is trite law that special damages must be **specifically pleaded** and **strictly proved**. In ***Nizar Virani t/a Kisumu Beach Resort- v - Phoenix of East Africa Assurance Co. Ltd*** the court said: ***“It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded"*** In ***Ouma v Nairobi City Council [1976] KLR 304*** after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in ***Ratcliffe v Evans [1832] 2Q.B. 524*** an English leading case on pleading and proof of damage: ***" The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”*** The special damages were sufficiently proven as required by law. Consequently, I award **Ksh. 9,220/=** as special damages. **DISPOSITION** In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendants. Consequently, I make the following orders: 1. Judgment is hereby entered for the plaintiff as against the defendants jointly and severally for the following awards: 2. General damages……………………………………………….............Ksh. 250,000/= 3. Special damages……………………………………………….…………..…..Ksh. 9,220/= Total…………………………………………………………………………….………………………**.Ksh. 259,220/=** The plaintiff is also awarded interest on the damages as well as costs of the suit as against the defendants. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that: ***“(1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.*** ***(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”*** In the case of ***Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR***, the courtstated that: ***“First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.*** ***Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:*** ***a. The period from the date the suit is filed to the date when the Court gives its judgment; and*** ***b. The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.”*** Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of ***Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4*** (8th April 2015) stated in part, as follows: ***“It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.”***(Emphasis supplied*)* From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see ***Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR).*** Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full whereas interest on special damages shall accrue from the date of filing suit to the date of judgment. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 28TH DAY OF JULY, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**