https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/707

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E406 OF 2025** **ELISHA WANGILA MUKHWANA…………..…………..………….…………PLAINTIFF** **VERSUS** **MOHAMED HUSSEIN ALI…….……………….…………..………………...DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the Defendant through a Plaint dated 12th September 2025, where he sought judgment against the Defendant for: 2. *General damages past, present and future medical and nursing expenses* 3. *Future medical expenses Kshs. 75,000/=* 4. *Special damages Kshs. 38,320/=* 5. *Costs* 6. *Interest* 7. *Any other relief this Honourable Court may deem fit to grant* 8. The cause of action arose on 22nd April 2025 when the Plaintiff was lawfully riding his motorcycle registration number KMGN 039 P (“the motorcycle”) along Bungoma – Webuye road when the Defendant’s motor vehicle registration number KCR 711 D (“the motor vehicle”) reportedly veered off its lane and knocked the motorcycle thereby occasioning the Plaintiff bodily injuries. The Plaintiff blamed the occurrence of the accident on the Defendant’s negligent acts and omissions particularized in paragraph 4 of the Plaint. 9. The Defendant entered appearance and filed his Statement of Defence denying the occurrence of the accident and putting the Plaintiff to strict proof of all the averments in his Plaint. 10. In the alternative, the Defendant pleaded that if the accident occurred, then the same was caused by the Defendant’s negligence. The Defendant urged this court to dismiss this suit with costs. 11. The foregoing prompted this court to fix this matter for hearing for the Plaintiff and the Defendant to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Elisha Wangila Mukhwana** testified that he was driving his motorcycle from Webuye general direction heading towards Bungoma general direction on the extreme left side of the road as one faces Bungoma when the motor vehicle which was coming from the opposite direction encroached onto his lane while overtaking another motor vehicle ahead and knocked him. He added that the accident caused him to sustain multiple fractures and soft tissue injuries. He also stated that he was taking driving lessons at Kisiwa Technical Training College at the time of the accident. 2. He produced all the documents filed as exhibits. 3. In cross-examination, he stated that he was joining the Bungoma – Webuye road from the Nzoia direction when the accident occurred. He reiterated that the point of impact was in his lane. **Defendant’s Case** 1. **DW1 Mohammed Hussein Ali** adopted his witness statement dated 11th February 2026 as his evidence in chief. He testified that he was driving from the Bungoma general direction to the Webuye general direction when the Plaintiff emerged from a feeder road, riding his motorcycle, and encroached into his lane without giving way, thus causing the accident. 2. He further stated that he applied brakes and swerved to the extreme left to prevent the occurrence of the accident without success. 3. He maintained in cross-examination that the accident occurred in his lane on the left side of the road as one faces the Webuye general direction. He blamed the Plaintiff for joining the road suddenly and hitting his motor vehicle. **Additional Evidence** 1. The parties herein recorded a consent on 02nd July 2026 admitting the Plaintiff’s 2nd medical report dated 08th May 2026 by Dr. Daniel Osir as an exhibit. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, the written submissions, as well as the authorities cited by the parties herein. 2. It is common ground that the accident herein occurred and that the said accident caused the Plaintiff to sustain bodily injuries. The Defendant also admitted that he was driving the motor vehicle at the time of the accident. Therefore, the issues that commend to this court for determination are liability and quantum. **Liability** 1. The evidence on record on how the accident occurred is largely a blame game between the Plaintiff and the Defendant. The parties herein took the position that the accident occurred in their respective lanes. 2. In the absence of sketch maps, inspection reports, the accident’s investigating officer’s testimony, or the testimony of another eyewitness, the evidence on record is barely adequate for this court to apportion liability between the Plaintiff and the Defendant. This does not mean that this court will fold its arms and fail to apportion liability in this case. The path to be taken by a court in such a situation was explained by the Court of Appeal in **Abbay Abubakar Haji Patuma Ali Abdulla Vs Freight Agencies Ltd [1984] KECA 14 (KLR),** where the court held that: *“The trial judge rightly applied to the facts before him the relevant law enunciated by Spry, V P in Lakhamshi v Attorney General, (1971) E A 118, 120 for such cases which - It is now settled law in East Africa that where the evidence relating to a traffic is insufficient to establish the negligence of any party, the court must hold the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if Negligence on his part cannot properly be inferred from the circumstances of the accident.”* 1. It is against this backdrop that this court finds the Plaintiff and the Defendant equally to blame for the occurrence of the accident. **Quantum of Damages** 1. **General Damages for pain and suffering** 2. The Plaintiff pleaded in paragraph 5 of his Plaint that the accident caused him to suffer soft tissue injuries, a comminuted fracture of the left tibia, fracture of the left fibula, fracture of the left patella, and psychological trauma. 3. Dr. Ekesa’s medical report dated 06th May 2025 and Dr. Osir’s medical report dated 08th May 2026 corroborated the Plaintiff’s averments on the injuries he suffered as a result of the accident. 4. In the circumstances, this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident caused him to sustain soft tissue injuries, a comminuted fracture of the left tibia, fracture of the left fibula, and a fracture of the left patella. 5. The law in this jurisdiction is that the assessment of damages must take into account the principle in the case of **Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR** that comparable awards should compensate comparable injuries. 6. In **Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR,** where Nambuye, J. (as she then was) listed the following principles on assessment of damages: 7. *Damages should not be inordinately too high or too low* 8. *They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered* 9. *Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.* 10. *Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment.* 11. This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record on quantum. 12. This court finds the following authorities applicable in this case. In **Mikua v Nthiga (Civil Appeal E001 of 2023) [2025] KEHC 12439 (KLR),** the High Court upheld an award of general damages of Kshs. 800,000/= for a Plaintiff who suffered a compound tibia fibula fracture of the right lower limb, degloving injuries to the distal third of the right leg and ankle, and extensive tissue injuries to the right lower limb. 13. Finally, in **Kanyi alias Samson Munene & another v Warui (Civil Appeal E050 of 2025) [2026] KEHC 5550 (KLR),** the court awarded Kshs. 800,000/= in general damages for soft tissue injuries, right leg tibia/fibula fracture, short ankle back slab in situ, and painful, swollen left lower limb with open fracture of the distal tibia/fibula. 14. Guided by the authorities above, this court makes an award of Kshs. 800,000/= under this head. 15. **Future medical expenses** 16. The Plaintiff pleaded for future medical expenses of between Kshs. 50,000/= - Kshs. 75,000/= in paragraph 5 of his Plaint for the removal of implants. The medical report on record by Dr. Ekesa corroborated the Plaintiff’s claim for future medical expenses for the removal of implants in line with the holding by the Court of Appeal in **Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR.** 17. The Defendant submitted that given that Dr. Ekesa only gave an estimate for the removal of the implants, this court ought not to award the Plaintiff future medical expenses of Kshs. 75,000/=. 18. A reading of Dr. Ekesa’s medical report shows that it was explicit that the cost of the future medical expenses of between Kshs. 50,000/= - 75,000/= would vary depending on the health facility. 19. Ordinarily, a lower figure for future medical expenses is usually a medic's estimate for the cost of a particular medical procedure in a public facility while the higher figure is usually the cost of the same in a private facility. 20. The Plaintiff’s treatment notes on record show that the fractures sustained by the Plaintiff were surgically fixed in a private facility. All factors holding constant, it follows that the implants arising from the said surgical procedure will be removed from the same private facility. This calls for the adoption of the higher figure of Kshs. 75,000/= proposed by Dr. Ekesa. 21. In any event, the sum of Kshs. 75,000/= claimed by the Plaintiff for the removal of the implants is within the cost of the removal of implants set out under the Medical Practitioners and Dentists (Professional Fees) Rules, 2016. 22. The foregoing inclines this court to award the Plaintiff Kshs. 75,000/= for the removal of the implants. **(c)Special Damages** 1. The Plaintiff pleaded for special damages of Kshs. 38,320/= as particularized in paragraph 5 of his Plaint. 2. The receipts for specials on record from NTSA, Bungoma County Referral Hospital, Dr. Ekesa, Potent Orthomedicals Limited, Bungoma Orthopaedic, and Amylin Chemist proved the pleaded special damages of Kshs. 38,320/=. 3. The Defendant submitted that this court ought not to award the Plaintiff special damages sought through receipts without revenue stamps. The Defendant cited various High Court decisions in support of this position. 4. It is given that some of the receipts from Potent Orthomedicals Limited and Bungoma Orthopaedic produced by the Plaintiff to claim treatment expenses do not have revenue stamps. The other receipts for specials on record are ETR receipts which do not require revenue stamps. 5. With respect, the position taken by the Defendant on the admissibility of receipts without revenue stamps in claiming special damages is a misapprehension of the law. 6. The Court of Appeal in **Paul N. Njoroge v Abdul Sabuni Sabuni [2015] eKLR** stated as follows regarding this issue: "The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A [2007] eKLR..."(Emphasis added) 1. The Court of Appeal in the Njoroge case (supra) also proceeded to reiterate its position on the matter by emphasizing the position earlier adopted by **Law J.** (as he then was) in **Suderji Nanji Limited v Bhaloo [1958] EA 762** that: "...before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty ... The appellant has never been given the opportunity to pay the requisite stamp and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2ndDefendant/Respondent and he must be given the opportunity...We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported non-compliance with the Stamp Duty Act. At all events, the act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof..."(Emphasis added) 1. Guided by the authority above, this court finds that the receipts for specials on record are admissible, and the same proved the pleaded sum of Kshs. 38,320/=; therefore, the same is awarded as prayed by the Plaintiff. **DETERMINATION** 1. Given the foregoing, judgment is entered against the Defendant in the following terms:- 1. *Liability……………………………………….50%:50%* 2. *General Damages…………………...………Kshs. 800,000/=* 3. *Future Medical Expenses…………………..Kshs. 75,000/=* 4. *Special Damages……………………...…….Kshs. 38,320/=* *Less 50%* ***Net Award…………………………Kshs. 456,660/=*** 1. The General Damages and the Future Medical Expenses will accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 2. The Plaintiff will have the costs of this suit less the ratio of liability. 3. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma, this 04th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Wanjala h/b for Bwonchiri for the Plaintiff Mr. Oyoo h/b for Kiprotich for the Defendant C/A: Mr. Rioba