https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11888

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT MILIMANI** **CIVIL SUIT NO.E 5257 OF 2020** **EDWARD NZYOKA MUTUA........................................................PLAINTIFF** **-VERSUS-** **DANIEL NJUGUNA NGANGA...............................................DEFENDANT** **JUDGMENT** **Introduction** The Plaintiff commenced this suit by a Plaint dated 11th September 2020 seeking general damages, special damages of Kshs. 35,000, costs and interest arising from a road traffic accident which occurred on 7th March 2020 along Chiromo Road, Nairobi. He pleaded that while lawfully walking to work, he was knocked down by Motor Vehicle Registration Number KBA 190Q, owned and driven by the Defendant, and attributed the accident wholly to the Defendant's negligence. The Defendant filed a Statement of Defence dated 25th January 2022 denying negligence and contending that the Plaintiff was solely or substantially to blame for the accident for allegedly attempting to cross the road at an undesignated point without keeping a proper lookout. Although the Defendant participated in the proceedings through cross-examination and Written Submissions, no evidence was called in support of the Defence. The Plaintiff testified that on 7th March 2020 at about 7.00 a.m., while walking along Chiromo Road on his way to work, he was struck from behind by the Defendant's Motor Vehicle, causing him to lose consciousness. He was treated at Kenyatta National Hospital and later at Makueni Level 4 Hospital. He produced treatment notes, medical reports, receipts, a Police Abstract, a P3 Form and a copy of records confirming ownership of the offending motor vehicle. The Plaintiff also called a Police Officer from Parklands Police Station who produced the Police Abstract and confirmed that police records identified the Defendant's Motor Vehicle as having been involved in the accident, although he conceded that he was not the Investigating Officer and that no traffic charges had been preferred. The Defendant did not testify or call any witnesses. Consequently, the averments contained in the Statement of Defence remained mere allegations unsupported by evidence. The law is settled that pleadings do not constitute evidence. In **CMC Aviation Ltd v Cruisair Ltd (No. 1) [1987] KLR 103**, the Court held that **"Pleadings contain the averments of the parties concerned until they are proved or disproved, or there is admission of them or any of them by the parties. They are not evidence and no decision could be based on them."** Similarly, in **Trust Bank Ltd -Vs- Paramount Universal Bank Ltd & 2 Others [2009] eKLR**, the Court emphasized that parties are bound to prove the averments contained in their pleadings by admissible evidence**.**Nonetheless, the Defendant's failure to adduce evidence did not relieve the Plaintiff of the legal burden of proof. Under **Sections 107, 108 and 109 of the Evidence Act**, and as held by the Court of Appeal in **Kirugi & Another -Vs-Kabiya & 3 Others (1987) KLR 347**, **"the burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard by way of formal proof."** In his submissions, the Plaintiff argued that he had discharged that burden through consistent oral testimony corroborated by documentary evidence. Counsel submitted that the Defendant, as a driver, owed a duty of care to other road users and breached that duty by driving at an excessive speed, failing to keep a proper lookout and failing to avoid the collision. The Plaintiff further invoked the doctrine of **res ipsa loquitur**, relying on **Embu Public Road Services Ltd -Vs- Riimi [1968] EA 22**, where the Court stated:**"Where the circumstances of the accident give rise to the inference of negligence, the doctrine of res ipsa loquitur applies and the burden shifts to the defendant to provide an explanation consistent with the absence of negligence."** On quantum, the Plaintiff submitted that he sustained blunt head trauma with loss of consciousness, a laceration to the right parieto-occipital region and soft tissue injuries to the right hip, and proposed an award of **Kshs. 400,000.00** in general damages together with **Kshs.35,000.00** in special damages, which he contended had been specifically pleaded and strictly proved. The Defendant, on the other hand, submitted that the Plaintiff had failed to prove negligence notwithstanding the absence of defence evidence. Reliance was placed on Section 107 of the Evidence Act, **Kirugi & Another -Vs- Kabiya & 3 Others (1987) KLR 347**, and **Phyllis Wangui Kitavi & Another v Stephen Parasho Kaito [2021] eKLR** for the proposition that the legal burden of proof rests upon the Plaintiff throughout and is not lessened merely because the Defendant does not testify. Counsel argued that the Plaintiff admitted he never saw the Motor Vehicle before impact and that the police witness was neither an eyewitness nor the investigating officer. In the alternative, the Defendant urged the Court to find the Plaintiff 20% contributorily negligent, apportioning liability at 80:20 in the Plaintiff's favour. On quantum, it was submitted that the Plaintiff sustained only soft tissue injuries from which full recovery was expected, warranting an award of Kshs.150,000 in general damages, while only Kshs.21,800.00 had been strictly proved as special damages. **Analysis and Determination** Having carefully considered the pleadings, the evidence adduced and the rival submissions, the Court is of the respectful view that the following issues arise for determination: 1. Whether the Plaintiff has proved negligence against the Defendant on a balance of probabilities. 2. Whether the Plaintiff contributed to the occurrence of the accident. 3. Whether the Plaintiff is entitled to the reliefs sought. 4. Who should bear the costs of the suit. **Whether the Plaintiff proved negligence** The law relating to the burden of proof is settled. Sections 107, 108 and 109 of the Evidence Act place the legal burden upon the party who asserts a fact. The Plaintiff was therefore required to establish, on a balance of probabilities, that the accident occurred through the negligence of the Defendant. The Court of Appeal in **Kirugi & Another -Vs- Kabiya & 3 Others (1987) KLR 347** held that the burden of proof remains with the plaintiff even where the defendant fails to call evidence. Similarly, in **Statpack Industries Ltd -Vs- James Mbithi Munyao [2005] eKLR**, the Court reiterated that negligence is never presumed and must be proved by evidence. In the present case, the Plaintiff testified that he was lawfully walking along Chiromo Road when he was struck from behind by the Defendant's motor vehicle. His evidence was corroborated by medical records demonstrating that he sustained injuries consistent with a road traffic accident and by the Police Abstract linking the Defendant's vehicle to the accident. Although the Police Officer admitted that he was not the investigating officer and that no traffic charges had been preferred against the Defendant, that fact is not conclusive of civil liability. It is trite that criminal proceedings and civil proceedings are distinct, and the absence of criminal charges does not absolve a defendant from civil liability where negligence is otherwise established. The Defendant elected not to testify. Consequently, the Court was left without any evidence contradicting the Plaintiff's version of events. The averments contained in the Defence therefore remained mere allegations. In **CMC Aviation Ltd -Vs-Cruisair Ltd (No.1) [1987] KLR 103**, the Court held that Pleadings are not evidence. Likewise, in **Trust Bank Ltd -Vs- Paramount Universal Bank Ltd & 2 Others [2009] eKLR**, the Court observed that allegations in Pleadings cannot take the place of proof. While Cross-Examination exposed certain aspects of the Plaintiff's evidence, particularly that he did not see the vehicle before impact, the Court notes that the Plaintiff consistently maintained that he was struck from behind. A pedestrian who is hit from behind cannot ordinarily be expected to have seen the approaching vehicle. That admission therefore does not, without more, negate the Plaintiff's evidence. The Court further notes that the Defendant, being the driver of the Motor Vehicle, was in the best position to explain how the accident occurred. His decision not to testify deprived the Court of any alternative account. The Court of Appeal in **Embu Public Road Services Ltd -Vs-Riimi [1968] EA 22** recognized that where the circumstances of an accident raise an inference of negligence, an evidential burden shifts to the defendant to offer an explanation. In the present case, no such explanation was forthcoming. Upon evaluating the entire evidence, the Court is satisfied that the Plaintiff has proved, on a balance of probabilities, that the Defendant failed to exercise the degree of care expected of a reasonable driver. The Defendant was therefore negligent. **Whether the Plaintiff Contributed to the Occurrence of the Accident** The Defendant submitted that the Plaintiff was substantially to blame for the accident and urged the Court to apportion liability at 80:20 in favour of the Defendant. However, that submission was not supported by any evidence. The law is well settled that submissions, however persuasive, do not constitute evidence. In **Daniel Toroitich Arap Moi -Vs-Mwangi Stephen Muriithi & Another [2014] eKLR**, the Court of Appeal emphasized that submissions are merely arguments of counsel and cannot substitute evidence. The Plaintiff's evidence that he was lawfully walking along the road when he was struck from behind remained uncontroverted. Although he admitted that he did not see the approaching Motor Vehicle before the impact, the Court does not consider that admission to amount to contributory negligence. A pedestrian who is struck from behind cannot reasonably be expected to anticipate the negligent conduct of an approaching driver. The Defendant neither testified nor produced any evidence demonstrating that the Plaintiff suddenly entered the roadway or otherwise acted negligently. In the absence of such evidence, there is no factual basis upon which the Court can attribute any degree of blame to the Plaintiff. Accordingly, I find that the Defendant was wholly liable for the occurrence of the accident and apportion liability at 100% against the Defendant. **Quantum** The only issue remaining for determination is the appropriate award of general damages for pain, suffering and loss of amenities. The applicable principles governing the assessment of general damages are settled. The assessment of damages is an exercise of judicial discretion guided by the nature and extent of the injuries sustained and awards made in comparable cases. In **Butt v Khan [1982–1988] 1 KAR 1**, the Court of Appeal held that an appellate court will only interfere with an award of damages where it is shown that the trial court acted on wrong principles, misapprehended the evidence, or made an award so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. Similarly, in **Kemfro Africa Ltd t/a Meru Express Services & Another v A. M. Lubia & Another (No. 2) [1987] KLR 30**, the Court of Appeal stated that comparable injuries should, as far as possible, attract comparable awards, although no two cases are exactly alike. The Plaintiff pleaded and testified that as a result of the accident he sustained: * Blunt head trauma; * Loss of consciousness; * Laceration of the right parieto-occipital region; * Soft tissue injury to the right hip; and * Blunt injury to the right hip joint. The Plaintiff testified that following the accident he was rushed to Kenyatta National Hospital where he received emergency treatment before continuing treatment and rehabilitation at Makueni Level 4 Hospital. The medical report by Dr. Mutunga confirms the above injuries and concludes that they were soft tissue injuries. The doctor further opined that although complete healing was anticipated, recovery would be gradual. The Plaintiff submitted that the injuries, particularly the blunt head trauma accompanied by loss of consciousness and the deep laceration to the scalp, coupled with the prolonged course of treatment, justified an award of **Kshs. 400,000.00** as general damages. The Defendant did not dispute the injuries sustained but submitted that they were purely soft tissue injuries from which full recovery was expected. Counsel therefore proposed an award of **Kshs. 150,000.00** relying on recent comparable authorities. I have carefully considered the pleadings, the medical evidence, the submissions of counsel and the authorities cited. In **Muguro -Vs- Morris (Civil Appeal E054 of 2024) [2025] KEHC 5361 (KLR)**, the High Court held that an award of Kshs. 300,000 for multiple soft tissue injuries was excessive and substituted it with an award of **Kshs. 130,000.00**, observing that the claimant had substantially recovered and suffered no permanent disability. Likewise, in **Nyoga Hauliers -Vs- Okoddi (Civil Appeal No. 57 of 2022) [2023]**, the High Court reduced an award of **Kshs. 250,000.00** to **Kshs. 150,000.00** where the respondent had sustained a head injury with brief loss of consciousness together with chest and soft tissue injuries, the Court finding that the injuries had healed without permanent incapacity. Further, in **Kitheka -Vs- Muthemi & Another (Civil Appeal E129 of 2024) [2026] KEHC 2008 (KLR)**, the High Court enhanced an award from **Kshs. 55,000** to **Kshs. 100,000** for multiple soft tissue injuries after considering the nature of the injuries and the prognosis of full recovery. The above authorities demonstrate that awards for uncomplicated soft tissue injuries generally range between Kshs. 100,000 and Kshs. 150,000. However, each case turns on its own peculiar facts. In the present case, although Dr. Mutunga classified the injuries as soft tissue injuries with no permanent incapacity, the Plaintiff sustained blunt head trauma accompanied by loss of consciousness and a laceration to the parieto-occipital region of the scalp. The evidence also shows that he required emergency treatment at Kenyatta National Hospital before continuing treatment at Makueni Level 4 Hospital over a considerable period. These circumstances distinguish the present case from ordinary soft tissue injury cases and justify an award above the lower range reflected in the authorities relied upon by the Defendant. At the same time, there is no evidence of fractures, neurological deficit, permanent disability, or residual incapacity. The medical evidence is unanimous that complete recovery was expected, albeit gradual. Consequently, the Plaintiff's proposed award of Kshs. 400,000.00 would, in my view, be excessive when measured against recent comparable awards. Balancing all the relevant considerations, namely the nature of the injuries, the period of treatment, the favourable prognosis, the comparable authorities cited by the parties, and the principle that similar injuries should attract similar awards, I am satisfied that an award of **Kshs. 250,000.00** as General Damages for pain, suffering and loss of amenities is fair, reasonable and commensurate with the injuries sustained. Accordingly, I award the Plaintiff **Kshs. 250,000.00** as General Damages for pain, suffering and loss of amenities. **Special Damages** Special Damages must specifically be pleaded and proved. The same has been pleaded at **Kshs.35,000.00** but only **Kshs.21,150.00** has been proved by way of receipts. I proceed to award **Kshs.21,150.00** under this head. **Conclusion** The Plaintiff has proved his case against the Defendants on a balance of probability and I proceed to enter Judgment for the Plaintiff against the Defendant as follows: Liability Defendant 100% liable General Damages..........................................................Kshs.250,000.00 Special Damages..............................................................Kshs21,150.00 **TOTAL .............................................................................Kshs.271,150.00** ***(Kenya Shillings two hundred and seventy one thousand ,one hundred and fifty)*** 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 Maina Holding Brief for M/s Mwangi for the Defendant Plaintiff :Absent Court Assistant: Phoebe.