Nzioka v Mukula & another (Civil Case E180 of 2022) [2026] KEMC 496 (KLR) (8 July 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MURANG’A** **MCCC NO. E180 OF 2022** **HENRY NGUGI NZIOKA …......................................................... PLAINTIFF** **VERSUS** **MWANGI MUKULA ............................................................ 1ST DEFENDANT** **KELVIN MWANGI NJOROGE ........................................... 2ND DEFENDANT** **JUDGMENT** 1. The plaintiff herein claims that on 25th March 2022, he was travelling as a pillion passenger aboard a motorcycle that was being ridden along Kenol/Murang’a road. On reaching Karuguini area, the 1st defendant drove the 2nd defendant’s motor vehicle registration number KCW 282D (herein “the subject vehicle”) recklessly causing it to veer off its lane and hit the motorcycle. The plaintiff claimed that he sustained a closed fracture of the left mid shaft femur as a result of the accident. His claim against the defendants was for general damages for pain and suffering, future medical expenses, special damages, costs and interest. 2. Interlocutory judgment was entered against the 1st defendant who did not enter appearance in the matter or file a defence. For his part, the 2nd defendant, responded to the claim vide a defence dated 7th November 2025. He denied the entire claim and averred in the alternative that if the accident had occurred as alleged, it had been caused by the plaintiff who was not wearing protective gear at the material time. He also claimed that the plaintiff put himself on the path of the vehicle. 3. When the matter came up for hearing, the plaintiff testified as the sole witness in support of his case while Lewis Mwangi Mukuria (DW1) testified in support of the 2nd defendant’s case. 4. The parties thereafter filed their written submissions which this court has duly considered. **ISSUES** 1. The two issues for determination in this case are the apportionment of liability and assessment of quantum. **LIABILITY** 1. The plaintiff’s case is that he was travelling as a pillion passenger aboard a motorcycle when the defendant’s driver veered off his lane and hit the motorcycle causing him to sustain injuries. The plaintiff testified that it was night time and the defendant’s driver had his full lights on. The rider managed to evade the vehicle but the plaintiff’s left leg was hit. 2. DW1, on the other hand, testified that he encountered an oncoming vehicle that was overtaking while encroaching onto his lane. In a bid to evade the imminent head on collision, he swerved to the left side of the road and collided into an unidentified motorcycle which was riding on the wrong side of the road without its lights on. 3. According to both the plaintiff and DW1, the accident occurred at night when road users are expected to be doubly careful when navigating through traffic. It is also an agreed fact that the defendant’s vehicle collided into the motorcycle on which the plaintiff was travelling as a pillion passenger. Although DW1 blamed an oncoming vehicle for encroaching onto his lane, he did not have the driver of the said vehicle joined to this suit as a third party. And while he blamed the rider of the motorcycle for riding the motorcycle on the wrong side of the road, he also failed to have him joined to the present suit. 4. The court in the case of ***Kinyua v Murage (Civil Appeal E016 of 2023) [2024] KEHC 7882 (KLR) (11 June 2024) (Judgment)***held as follows on laying blame on persons not party to a suit; *“32. The respondent was blaming the driver who was not party to the suit. The court cannot apportion liability between parties who were not party to the suit. The rider was not joined and as such I cannot apportion liability. The evidence led showed the respondent was to blame. Had he thought for once that the Rider is to blame, he ought to have done one of the following: -* *a. Join the rider as a party, and* *b. Plead and prove the rider was to blame.”* 1. Similarly, the rider of the motorcycle and the driver of the vehicle that allegedly encroached onto DW1’s lane were not party to this suit as the defendant did not take any steps to have them joined to the suit. Consequently, this court declines to apportion liability among individuals that were not party to the suit. 2. Further, although the defendant blamed the plaintiff for causing the accident, he did not demonstrate how he contributed to its occurrence. Being a passenger aboard a motorcycle, the plaintiff had no control over the manner in which it was ridden. The plaintiff could therefore not have put himself on the way of the oncoming vehicle as pleaded in the defence. 3. Ultimately, this court finds DW1 wholly liable for the accident. He was required to be on the look out for other road users and exercise caution while he drove at night. The fact that he hit the motorcycle shows that he was not driving carefully given the circumstances prevailing at the time. As the registered owner of the subject vehicle, the 2nd defendant is held to be vicariously liable for the accident. **QUANTUM** 1. **GENERAL DAMAGES** 2. The nature and severity of the injuries sustained by the plaintiff were confirmed in the hospital discharge summary dated 11th April 2022, the P3 form and the medical report dated 27th May 2022. Those documents confirmed that the plaintiff sustained a closed fracture of the left mid shaft femur. 3. For these injuries, the plaintiff’s learned counsel urged this court to make an award of Kshs. 950,000/=. Counsel relied on the case of [***Peter Namu Njeru v Philemone Mwagoti [2016] KEHC 6386 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/6386/eng%402016-02-19)where the plaintiff who had sustained comminuted crush fracture of the distal ½ of the right radius, avulsion fracture of the right ulna styloid process and a fracture of the right 6th rib on the posterior aspect was awarded a sum of Kshs. 700,000/=. 4. She also relied on the case of [***Pestony Limited & Another v Samuel Itonye Kagoko [2022] KEHC 1146 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1146/eng%402022-03-24)where the High Court awarded the plaintiff a sum of Kshs. 800,000/= for a fracture of the left femur and swollen tender thigh. In that matter, the respondent was admitted in hospital for 3 months and the long-term effects of his injuries was assessed by doctors to be between 4 to 5 per cent permanent incapacitation. 5. Further reliance was placed on the case of [***Kenya Nut Industries Limited v Alexander Mwangi Mwai [2020] KEHC 9137 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9137/eng%402020-01-20) where the respondent sustained soft tissue injuries, dislocation of the right hip joint, fracture of the right acetabulum and comminuted fracture of the right patella. 6. The defendant’s learned counsel on the other hand urged this court to award the plaintiff a sum of Kshs. 400,000/=. She relied on the case of [***Kiama vs Mutiso (Civil Appeal 40 of 2023) [2024] KEHC 5135 (KLR) (13 May 2024) (Judgment)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/5135/eng%402024-05-13) where an award of Kshs. 700,000/= was substituted with an award of Kshs. 400,000/= in the matter where the respondent had sustained a fracture of the upper 1/3 of the left tibia bone and related soft tissue injuries. 7. This court was also referred to the case of [***Juma v Makanga (Civil Appeal E035 of 2024) [2025] KEHC 4220 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4220/eng%402025-04-04) where the respondent was awarded a sum of Kshs. 600,000/= in place of an award of Kshs. 700,000/=. The respondent in that matter had sustained comminuted fractures of the right tibia and fibula. 8. In assessing quantum, the court is required to consider the assessment of damages for similar injuries, bearing in mind that no two cases can have the same exact injuries and disability effects. Each case must therefore be determined based on its peculiar facts. The court is also required to consider the fact that damages must not only be within the limits set out by decided cases but also be within the limits of the Kenyan economy. Further, rising inflation should also be considered while assessing damages. (See ***[Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/71/eng%401986-09-02)*** 9. This court has analyzed the authorities cited by the parties in light of the foregoing principles and finds that the injuries sustained in the decisions relied upon by the plaintiff were more severe when compared to those he sustained. His was a closed fracture of the left leg whereas the claimants in the matters cited in support of his proposal sustained multiple fractures on different parts of the body alongside other injuries with long term effects. In contrast, the injuries sustained in the authorities cited by the defendant related to comparable injuries. Considering those decisions and the time passage since they were made, this court awards the plaintiff a sum of **Kshs. 450,000/=** in general damages for pain and suffering. 10. **FUTURE MEDICAL EXPENSES** 11. Future medical expenses are damages in the nature of special damages which must not only be pleaded with a degree of certainty but must also be proved. Although the plaintiff did not plead the exact amount sought in future medical expenses, he referred to the medical report for the sums sought. This reference was sufficient to put the defendant on notice of the claim made. In his evidence before this court, the plaintiff testified that implants were still affixed to his leg. The medical report dated 27th May 2022 estimated that the plaintiff would require a sum of Kshs. 60,000/= to have the implants removed. The claim for future medical expenses was therefore proved to the required standard. 12. **SPECIAL DAMAGES** 13. The plaintiff also sought a sum of Kshs. 3,550/= in special damages. He claimed that he had spent Kshs. 3,000/= obtaining the medical report and Kshs. 550/= obtaining the motor vehicle search. The claimant produced receipts to prove these expenses. To that extent, the plaintiff pleaded and strictly proved his claim for special damages. **CONCLUSION** 1. In sum, judgment is entered in favor of the plaintiff against the defendants jointly and severally for a sum of **Kshs. 513,550/=** made up as follows; 1. Liability is entered wholly in favour of the plaintiff against the defendants; 2. General damages for pain and suffering - Kshs. 450,000/= 3. Future medical expenses- Kshs. 60,000/= 4. Special damages- Kshs. 3,550/= 2. The above award shall attract interest at court rates from the date of judgment until payment in full. 3. The plaintiff shall have the costs of this suit. **DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF JULY 2026.** **HON. GRACE WAITHĨRA** **SENIOR RESIDENT MAGISTRATE** **JUDGMENT READ ON THE VIRTUAL PLATFORM IN THE PRESENCE OF;** **C/A JEREMIAH** **MS. MWENJE FOR THE PLAINTIFF** **NO APPEARANCE FOR THE 1ST DEFENDANT** **MS. KALOI FOR THE 2ND DEFENDANT**