https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/469

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E1908 OF 2024** **FELIX ISULI MBUVU...................................................................................PLAINTIFF** **VERSUS** **BOSS FREIGHT TERMINAL LIMITED......................................................DEFENDANT** **JUDGMENT** **Background** 1. Plaintiff instituted this suit by way of a Plaint dated 31st December 2024 which was subsequently amended by an Amended Plaint dated 20th March 2025 and later by a Further Amended Plaint dated 11th April 2025. The Plaintiff seeks general damages, special damages, damages for loss of future earnings, future medical expenses, costs of the suit and interest arising from injuries sustained in a road traffic accident which occurred on 30th December 2023. 2. The Defendant entered appearance and filed a Statement of Defence dated 9th June 2025, later amended, denying liability and putting the Plaintiff to strict proof of all the allegations contained in the Plaint. 3. The hearing commenced on 1st August 2025 when the Plaintiff testified and adopted his witness statement together with the documents contained in his list and supplementary lists of documents. The Plaintiff was cross-examined by counsel for the Defendant. The Plaintiff's case proceeded on 12th November 2025, upon which he closed his case. 4. The Defendant thereafter elected not to call the driver of the subject motor vehicle despite having filed his witness statement. Instead, on 14th May 2026, the Defendant produced the medical report prepared by Dr. Udayan R. Sheth dated 21st March 2025 and thereafter closed its case. 5. Both parties subsequently filed written submissions together with authorities which I have carefully considered. **Pleadings** 1. The Plaintiff pleaded that on 30th December 2023 at approximately 10.30 a.m., he was lawfully standing on the pedestrian walkway along Archbishop Makarios Road near Three Coins Hotel when Motor Vehicle Registration No. KC 0013 Mercedes Benz Axor Lorry, owned by the Defendant and driven by its authorised driver, servant and/or agent, negligently veered off the road onto the pedestrian walkway and knocked him together with four parked motor vehicles. 2. He pleaded that as a consequence of the accident he sustained multiple fractures involving the pelvis and left femur, rupture of the urinary bladder, urethral injury resulting in post-traumatic urethral stricture together with multiple soft tissue injuries. 3. The Plaintiff attributed the accident entirely to the negligence of the Defendant's driver and sought: General damages; Special damages amounting to Kshs.1,082,216; Loss of future earnings; Future medical expenses; Costs and interest. 4. The Defendant denied ownership of the motor vehicle as pleaded, denied negligence and alternatively pleaded that if any accident occurred, then the same was wholly or substantially caused by the Plaintiff who allegedly failed to exercise reasonable care for his own safety. **Evidence** Plaintiff's Case 1. The Plaintiff testified that on the material day he was standing on the pedestrian walkway when the Defendant's lorry left the roadway and knocked him. Following the collision, he sustained serious injuries and was admitted at Coast General Teaching and Referral Hospital for approximately sixty-seven (67) days. 2. He underwent several surgical procedures including fixation of fractures, repair of the urinary bladder and continued treatment for urethral complications. He further testified that despite treatment he continues to experience pain, difficulty walking and urinary complications. 3. He produced treatment notes, discharge summaries, receipts, Police Abstract, P3 Form and the medical report prepared by Dr. Darius Kiema. 4. The Plaintiff further testified that before the accident he worked as a tyre repairer earning approximately Kshs.800 per day but due to the injuries sustained he can no longer undertake the physically demanding work he previously performed. **Defendant's Case** 1. The Defendant denied liability. Although it had filed a witness statement by its driver, Mohamed Juma Malipo, no oral evidence was led from him during trial. Instead, the Defendant produced only the medical report prepared by Dr. Udayan R. Sheth dated 21st March 2025 and thereafter closed its case. Consequently, the Plaintiff's evidence on the occurrence of the accident was not challenged by oral testimony from either the driver or any investigating police officer. **Issues for Determination** 1. Having considered the pleadings, evidence and submissions, the following issues arise for determination: 2. Whether the Defendant was liable for the accident. 3. Whether the Plaintiff sustained the pleaded injuries. 4. Whether the Plaintiff is entitled to the reliefs sought. 5. Who should bear costs. **Liability** 1. The burden of proving negligence rests upon the Plaintiff by virtue of Sections 107, 108 and 109 of the Evidence Act. The Defendant has submitted that negligence was not proved because: investigations were pending; no criminal charges had been preferred against the driver; no sketch map was produced. I respectfully disagree. 2. The standard in civil proceedings is proof on a balance of probabilities and not proof beyond reasonable doubt. The fact that no criminal proceedings were instituted against the driver does not absolve him or his employer from civil liability. Civil liability is determined independently upon the evidence adduced before the court. 3. The Plaintiff consistently maintained that he was standing on the pedestrian walkway when the Defendant's motor vehicle veered off the road and knocked him. The Police Abstract produced before court classified the Plaintiff as a pedestrian. 4. Significantly, the Defendant's own filed witness statement acknowledges that the Defendant's driver was driving the subject motor vehicle on the material date and that the Plaintiff was struck by the vehicle. The divergence lies only in the circumstances leading to the collision. However, despite filing that witness statement, the Defendant elected not to call the driver to testify. That omission is significant. The Plaintiff's testimony therefore remained substantially uncontroverted regarding the manner in which the accident occurred. 5. Where a party fails to call the very witness who possesses direct knowledge of the occurrence, the court is entitled to draw an adverse inference that such evidence would not have supported that party's case. 6. The Defendant also pleaded contributory negligence. However, no evidence whatsoever was tendered demonstrating: how the Plaintiff allegedly failed to keep a proper lookout; where exactly he was standing; whether he suddenly crossed the road; or how he contributed to the occurrence of the accident. Pleadings are not evidence.Having failed to adduce evidence in support of contributory negligence, the Defendant cannot succeed merely because such allegations were pleaded. 7. I therefore find that the Plaintiff has proved on a balance of probabilities that the accident occurred due to the negligence of the Defendant's driver.Accordingly, I apportion liability 100% against the Defendant. **Whether the Plaintiff Sustained the Pleaded Injuries** 1. The occurrence and extent of the Plaintiff's injuries are not seriously disputed. Indeed, the Defendant produced its own independent medical report prepared by Dr. Udayan R. Sheth, thereby acknowledging that the Plaintiff sustained injuries in the accident of 30th December 2023. The principal area of disagreement is not the occurrence of the injuries but rather the degree of permanent incapacity and the appropriate quantum of damages. 2. The Court therefore proceeds to evaluate the two medical reports. Comparative Analysis of the Medical Evidence; 3. Medical Report by Dr. Darius Kiema- Dr. Darius Kiema examined the Plaintiff and documented the following injuries: Fracture of the left sacral iliac bone; Bilateral superior pubic rami fractures; Bilateral inferior pubic rami fractures; Fracture of the left distal femur; Rupture of the urinary bladder; Urethral injury resulting in post-traumatic urethral stricture; Bruises and abrasions over the waist; Cuts and lacerations over the right elbow and forearm; Cuts and lacerations over both thighs. The report notes that following the accident the Plaintiff: remained admitted for approximately 67 days; underwent operative fixation of the pelvic fractures; underwent fixation of the left femur; underwent surgical repair of the ruptured urinary bladder; required insertion of a suprapubic catheter; continued to attend orthopaedic follow-up clinics. Dr. Kiema further observed that the Plaintiff continued to complain of: persistent pelvic pain; pain around the left knee; difficulty in walking; difficulty passing urine; pelvic instability. According to Dr. Kiema, the Plaintiff is at risk of: post-traumatic osteoarthritis; recurrent pain; weakness around the fracture sites. He assessed permanent incapacity at 55% and recommended future treatment comprising: removal of orthopaedic implants; urethroplasty; continued pain medication. 4. Report by Dr. Udayan R. Sheth- Dr. Udayan R. Sheth examined the Plaintiff on 21st March 2025. He similarly recorded that the Plaintiff sustained: comminuted fracture of the distal third of the left femur; bilateral displaced superior and inferior pubic rami fractures; fracture of the left sacral ala; ruptured urinary bladder with urethral injury; multiple bruises involving the right wrist, right forearm and both thighs. The treatment history recorded by Dr. Sheth substantially mirrors that of Dr. Kiema. He notes that the Plaintiff underwent: catheterisation; internal fixation of the femur using an intramedullary nail and screws; fixation of pelvic fractures using plates and screws; repair of the urinary bladder; insertion of a suprapubic catheter. Dr. Sheth further records that the Plaintiff was subsequently admitted for: urethroplasty between 1st October 2024 and 13th October 2024; and treatment of urinary tract infection between 10th December 2024 and 17th December 2024.Upon examination he observed: extensive surgical scars; restricted movement of the left knee; painful movement of both hips; the Plaintiff walking with crutches; intermittent pelvic pain; intermittent thigh pain; difficulty passing urine. Unlike Dr. Kiema, Dr. Sheth assessed permanent incapacity at 30%. He nevertheless agreed that removal of the implants would eventually be necessary and estimated the cost thereof at approximately Kshs.100,000. Comparison of the Two Medical Reports 1. Having carefully analysed both reports, this Court notes that there is remarkable consistency between them regarding the nature of the injuries sustained. Both doctors agree that the Plaintiff sustained: Pelvic fractures. Left femur fracture. Ruptured urinary bladder. Urethral injury. Multiple soft tissue injuries. 2. Both doctors equally agree that the Plaintiff underwent: major orthopaedic surgery; bladder repair; catheterisation; prolonged hospitalization; subsequent follow-up treatment. 3. Similarly, both doctors agree that the Plaintiff continues to experience residual disability manifested by: pain; restricted movement; urinary complications. 4. The principal differences between the two reports are relatively narrow. 5. Permanent Incapacity- Dr. Kiema assessed permanent incapacity at 55% whereas Dr. Sheth assessed it at 30%. Neither doctor explained the precise formula employed in arriving at the respective percentages. However, disability percentages are opinions and are not binding upon the Court. They merely aid the Court in appreciating the long-term effects of the injuries.What ultimately matters is the actual evidence of residual disability demonstrated before the Court. In the present matter both doctors agree that: movement remains restricted; the Plaintiff still experiences pain; urinary complications persist; further treatment remains necessary. Accordingly, whether the disability is 30% or 55%, the Plaintiff undoubtedly sustained serious permanent residual disability. 6. Future Medical Expenses- Dr. Kiema recommended: implant removal; urethroplasty; pain medication. Dr. Sheth agreed only with the need for implant removal and estimated the cost at Kshs.100,000. However, Dr. Sheth did not expressly dispute the need for continued urological management. Indeed, his own report acknowledges that the Plaintiff had undergone urethroplasty and later required admission due to urinary tract infection. That history strongly suggests that urinary complications remained ongoing. 7. Residual Complaints- Again both doctors substantially agree. Each records: pain; reduced mobility; urinary difficulty; limitation of knee movement. Accordingly, there is no material contradiction regarding the Plaintiff's present condition. Findings on Medical Evidence 1. This Court finds that both reports substantially corroborate each other.The Defendant's medical report does not undermine the Plaintiff's case. Rather, it independently confirms the occurrence of: multiple pelvic fractures; left femur fracture; rupture of the urinary bladder;urethral injury; permanent residual disability. The only meaningful disagreement concerns the degree of permanent incapacity and the estimated cost of future treatment. 2. In my view, Dr. Kiema's report is more comprehensive regarding the long-term consequences of the injuries, particularly the orthopaedic and urological sequelae. Dr. Sheth's report, however, reinforces the essential findings and does not materially contradict them. I therefore accept that the Plaintiff sustained multiple grievous orthopaedic and urological injuries resulting in permanent residual disability, chronic pain, restricted mobility, urinary complications, and the need for future medical intervention. **Quantum of Damages** 1. Having found the Defendant wholly liable, the Court now turns to the appropriate assessment of damages.In doing so, the Court is guided by the settled principle that awards should be fair, reasonable, and broadly comparable to awards made in cases involving similar injuries, while bearing in mind the passage of time and inflation. Comparable cases serve as guides rather than rigid precedents, and each case must ultimately be decided on its own facts. **Assessment of Quantum** 1. The principles governing assessment of damages in personal injury claims are now well settled. An award of damages is intended to fairly compensate an injured party for the pain suffered, the loss of amenities of life and the permanent consequences of the injuries sustained. While no two cases are identical, courts strive to achieve consistency by considering awards made in comparable cases, adjusted for the peculiar facts of each case, the passage of time and inflation. 2. The Court has carefully considered all the authorities relied upon by both parties. General Damages for Pain, Suffering and Loss of Amenities Plaintiff's Authorities 1. Dorothy Kanyua Mbaka & Another v P.S. In Charge of Department of Defence & Another- The Plaintiff relied upon this authority in urging the Court to award Kshs.8,000,000. From the facts of that case, the claimant sustained catastrophic injuries attracting an award of approximately Kshs.10,000,000. However, that authority is distinguishable. The injuries in that case were considerably more devastating, involving permanent disabilities of a far greater magnitude than those sustained by the present Plaintiff. The level of incapacity, loss of function and long-term dependence was substantially higher. Although the Plaintiff herein suffered extremely serious injuries, they cannot properly be equated with the catastrophic injuries in Dorothy Kanyua Mbaka. Consequently, while the case demonstrates the applicable principles, it cannot serve as the closest comparator. Defendant's Authorities 1. David Waweru Kamau v Paul Ngugi Mwaura & Another- The claimant sustained: fracture of the superior pubic ramus; fracture of the inferior pubic ramus; separation of the sacroiliac joint; paralysis of the upper limb. General damages of Kshs.850,000 were awarded. The present Plaintiff sustained: bilateral superior pubic rami fractures; bilateral inferior pubic rami fractures; fracture of the sacral iliac bone; distal femur fracture; ruptured urinary bladder; urethral injury; post-traumatic urethral stricture. 2. Unlike the claimant in David Waweru Kamau, the Plaintiff herein also underwent multiple orthopaedic procedures, bladder repair, prolonged catheterisation and subsequent urethroplasty. The injuries before this Court are therefore considerably more extensive. Accordingly, an award of Kshs.850,000 would not adequately compensate the Plaintiff. 3. T.A.M. (Minor) v Richard Kirimi Kinoti & Another- The claimant suffered: fracture of the femur; insertion of a metal plate; admission for approximately four weeks; removal of the implant at a later date. The Court awarded Kshs.850,000. Again, this authority is of limited assistance. Although both claimants sustained femoral fractures requiring fixation, the Plaintiff herein additionally sustained: four pelvic fractures; rupture of the urinary bladder; urethral injury; urethral stricture; pelvic instability. He was also admitted for approximately 67 days, considerably longer than the claimant in T.A.M. The injuries in the present matter are therefore significantly more severe. 4. Miganiko v Hakika Transporters- This authority bears the closest resemblance to the present case. The claimant therein sustained: multiple pelvic fractures; ruptured urinary bladder; intra-abdominal injuries. Following treatment, the claimant continued to suffer: pelvic deformity; inability to stand for prolonged periods; painful sexual intercourse; permanent residual disability. General damages of Kshs.500,000 were awarded. The Plaintiff herein similarly sustained: multiple pelvic fractures; ruptured urinary bladder; prolonged catheterisation; residual urinary complications. However, the Plaintiff additionally suffered: fracture of the distal femur requiring fixation;post-traumatic urethral stricture; repeated hospital admissions; urethroplasty; continuing restriction of knee movement. The injuries before this Court are therefore more extensive than those in Miganiko. Further, the award in that matter was made many years ago and must necessarily be adjusted to account for inflation and the prevailing trend in comparable awards. Comparison of the Authorities 1. Having considered all the authorities cited, the Court finds that it is unable to adopt either party's proposed figure.The Plaintiff's proposed award of Kshs.8,000,000 is excessive when viewed against current comparable awards. Conversely, the Defendant's proposal of Kshs.850,000 fails to adequately reflect the injuries sustained by the Plaintiff. 2. Taking into account: the multiplicity of fractures; the extensive surgical intervention; the prolonged admission of approximately 67 days; the continuing urinary complications; the permanent residual disability confirmed by both medical experts; inflation; the comparable authorities, I find that an award of Kshs.4,000,000 under the head of pain, suffering and loss of amenities is fair, reasonable and commensurate with the injuries sustained. **Special Damages** 1. The law is settled that special damages must be specifically pleaded and strictly proved. The Plaintiff pleaded special damages amounting to Kshs.1,082,216.The Defendant submits that several receipts were duplicated or illegible and urges the Court to award only Kshs.721,950. 2. I have carefully examined the documentary evidence. While some receipts are faint, they were produced without objection during trial. The Defendant neither objected to their production nor challenged their authenticity through cross-examination or contrary evidence. 3. The Court of Appeal has consistently held that objections to documentary evidence ought to be raised at the time of production. A party cannot remain silent during trial and subsequently seek to impeach the documents in submissions. The Plaintiff has therefore proved special damages in the pleaded sum of Kshs.1,082,216. **Future Medical Expenses** 1. Both doctors agree that removal of the orthopaedic implants will be required. Dr. Kiema recommends: implant removal; urethroplasty; pain medication, at a combined estimated cost of Kshs.338,000. Dr. Sheth estimates only the implant removal at Kshs.100,000, but does not dispute the Plaintiff's ongoing urological complications. 2. The Plaintiff had already undergone urethroplasty and subsequent admission for urinary tract infection by the time of Dr. Sheth's examination. That evidence demonstrates that his urinary condition had not completely resolved. The Court is therefore satisfied that future medical intervention remains probable. 3. However, while the need for future treatment is established, the precise costs of pain medication and further urological procedures are not supported by the same degree of specificity as the implant removal. Balancing the evidence from both experts, I award Kshs.250,000 for future medical expenses. **Cost of Medical Report** 1. The Plaintiff specifically pleaded and proved payment of Kshs.2,000 for the medical report. The same is awarded. **Loss of Future Earnings** 1. The Plaintiff pleaded that he worked as a tyre repairer earning Kshs.800 per day. Unlike many formal employment claims, earnings in the informal sector may be proved by oral evidence, as recognised in Jacob Ayiga Maruja & Another v Simeon Obayo. However, the Court must still be satisfied, on a balance of probabilities, that the pleaded income and resulting loss are established with sufficient certainty. 2. Here, the Plaintiff did not produce documentary proof of his daily earnings. Nonetheless, the Defendant led no evidence to controvert his occupation or to challenge that he was engaged in manual tyre repair work before the accident. The injuries sustained—particularly the pelvic fractures, distal femur fracture, chronic pain and urinary complications—plainly diminish his ability to perform heavy manual labour. 3. The Plaintiff pleaded loss of future earnings, but the evidence more directly demonstrates a diminution of earning capacity rather than a complete inability to earn any income. The law recognises this distinction, as explained in Butler v Butler [1984] KLR 225. A person may remain capable of some gainful activity while nevertheless suffering a substantial reduction in their competitiveness in the labour market. 4. In the interests of substantive justice and bearing in mind the pleaded facts, I find that the Plaintiff has proved a substantial loss of earning capacity arising from the accident. Rather than adopting the multiplier proposed by the Plaintiff, which is based on unverified daily earnings over a lengthy working life, I consider a global award to be the more appropriate approach. I therefore award Kshs.1,500,000 for loss of earning capacity. **Final Orders** 1. Judgment is entered for the Plaintiff against the Defendant as follows: Head of Claim Award (Kshs.) General damages for pain, suffering and loss of amenities 4,000,000 Special damages 1,082,216 Future medical expenses 250,000 Medical report 2,000 Loss of earning capacity 1,500,000 **Total 6,834,216** 1. Accordingly, I make the following orders: 2. Liability is entered 100% against the Defendant. 3. The Plaintiff is awarded a total of Kshs. **6,834,216** 4. Special damages shall attract interest at court rates from the date of filing suit until payment in full. 5. General damages, future medical expenses and loss of earning capacity shall attract interest at court rates from the date of this judgment until payment in full. 6. The Plaintiff shall have the costs of the suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**