Shikuku v Hamon Engineering Ltd & another (Civil Suit 1286 of 2025) [2026] KEMC 210 (KLR) (30 June 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **CIVIL SUIT NO.1286 OF 2025** **HESBORN IBRAHIM SHIKUKU.....................................................PLAINTIFF** **-VERSUS-** **HAMON ENGINEERING LTD ………. ………..…….……… 1ST DEFENDANT** **ADOLPHUS KIPTANUI ……………………………...……….2ND DEFENDANT** **JUDGEMENT** **Introduction** The Plaintiff filed a Plaint dated 27th February ,2025 seeking Judgment against the Defendant for: 1. General damages for pain, suffering and loss of amenities; 2. Special damages of Kshs. 7,637.00; 3. Costs of the suit and interest; and 4. Any other relief the Court may deem fit to grant The Plaintiff avers that on **30th September 2024 at about 5.20 p.m,** while lawfully riding Motorcycle Registration No. **KMEV 219P** along Ngong Road near Adams Arcade, the 2nd Defendant negligently drove Motor Vehicle Registration No. **KDB 122T,** lost control and collided with the Plaintiff's Motorcycle from behind, causing him to fall and sustain injuries. He contends that the accident was solely occasioned by the negligence of the 2nd Defendant, for whose acts the 1st Defendant, as the registered owner of the Motor Vehicle, is vicariously liable. The Plaintiff alleges that the 2nd Defendant drove at an excessive speed, failed to exercise due care and attention, drove carelessly and negligently, operated a defective Motor Vehicle, failed to slow down, stop or swerve to avoid the collision, failed to maintain a safe distance, and thereby caused the accident. As a consequence of the accident, the Plaintiff claims to have sustained blunt injuries to the chest, upper and lower limbs, bruises on both knees and palms, blood loss, soft tissue injuries, and physical and psychological pain. He further claims **special damages of Kshs. 7,637.00,** comprising **Kshs. 3,000** for the medical report, **Kshs. 550** for the copy of records, and **Kshs. 4,087.00** for medical expenses. The Defendant was served but did not enter appearance. Interlocutory Judgement was entered on 15th October 2025 by Hon. M.Malingu against the Defendants and the matter proceeded for Formal Proof hearing on 10th June ,2026. PW1 Hesborn Ibrahim Shikuku testified as PW1 and adopted his Witness Statement dated 27th February ,2025 and the List of Documents produced as (**P Exhibit 1 -8**). In his Witness Statement, the Plaintiff states that he is a Kenyan citizen residing in Nairobi County. He recalls that on 30th September 2024, while lawfully riding Motorcycle Registration No. KMEV 219P along Ngong Road at Adams, the 2nd Defendant negligently drove Motor Vehicle Registration No. KDB 122T, lost control and rammed into his motorcycle from behind, causing him to fall and sustain serious injuries. He states that immediately after the accident he was treated at The Nairobi Women's Hospital and later discharged. On 1st October 2024, he reported the accident at Kilimani Police Station, where he was issued with a Police Abstract and a P3 Form. The Plaintiff blames the 2nd Defendant entirely for the accident, alleging that he drove carelessly and negligently by failing to exercise due care, failing to maintain a safe distance, and failing to slow down, stop or swerve to avoid the collision. He concludes by stating that he has filed the present suit to seek compensation for the injuries sustained, the medical expenses incurred, and the costs of the suit. **Plaintiff’s Submissions** The Plaintiff's written submissions are **dated 10th June 2026.** The Plaintiff submits that the issues for determination are **liability** and **quantum of damages.** On **liability,** the Plaintiff submits that the accident was wholly caused by the negligence of the 2nd Defendant, who breached the duty of care owed to other road users by driving carelessly, failing to exercise due care and attention, failing to maintain a safe distance, and failing to slow down, stop or swerve to avoid colliding with the Plaintiff's motorcycle from behind. He relies on his oral testimony, witness statement, the Police Abstract, which attributes blame for the accident to Motor Vehicle Registration No. KDB 122T, and the authority of **Mary Njeri Murigi -Vs- Peter Macharia & Another [2016] eKLR**, in which the Court held that a driver owes a duty of care to other road users because a motor vehicle is a potentially lethal instrument. The Plaintiff further submits that the Defendants failed to enter appearance and file a defence, resulting in interlocutory judgment being entered in his favour, and therefore urges the Court to find the Defendants 100% liable for the accident. On **quantum,** the Plaintiff submits that the medical evidence, including the treatment notes, P3 Form and medical report, confirms that he sustained blunt injuries to the chest, upper and lower limbs, bruises on both knees and palms, blood loss, soft tissue injuries, and physical and psychological pain. He further states that he continues to experience chest pain during strenuous activities and that the medical report indicates he will be left with scars of cosmetic significance. In support of his claim for general damages, he relies on **Lake Naivasha Growers -Vs- Muigai Thuka [2020] eKLR**, where Kshs. 250,000 was awarded for soft tissue injuries; **Charles Gichuki -Vs- Emily Kawira Mbuba & Another [2018] eKLR**, where Kshs. 300,000 was awarded for blunt injuries; and **Poa Link Services Co. Ltd & Another -Vs- Sindani Boaz Bonzemo [2021] eKLR**, where Kshs. 350,000 was awarded for blunt chest injuries and bruises. The Plaintiff contends that, taking into account inflation and the nature of his injuries, an award of **Kshs. 500,000.00** in general damages is fair and reasonable. He further relies on **Margaret Wangui Kioko -Vs- Muus Kenya Limited (High Court Civil Case No. 2005 of 1999)** for the principle that special damages must be specifically pleaded and strictly proved, and submits that his claim for **Kshs. 7,637.00** in special damages was duly pleaded and proved by receipts and should therefore be awarded together with costs of the suit and interest. **Liability** I have considered the evidence adduced by PW1in this case. I have also carefully read the Plaintiffs Written Submissions dated10th Jun e,2026. The only issues that this Court will determine are: 1. Who is liable for the said accident and to what extent? 2. What is the Quantum of damages awardable? 3. Who is liable to pay costs of this suit? On the issue of liability, the Plaintiffs pleaded and testified that the accident was caused by the driver of Motor Vehicle Registration Number KDB 122 T who negligently drove it and caused the accident. In light of the evidence on record the only reasonable conclusion is that the suit Motor Vehicle was owned by the 1st Defendant and driven by the 2nd Defendant on the material day. The testimony of the Plaintiff was not controverted. The next issue is whether the suit Motor Vehicle was being driven by the 2nd Defendant as an agent of the 1st Defendant. Once again, the testimony of the Plaintiff that the said Motor Vehicle was being driven by the 2nd Defendant was not controverted. This testimony was corroborated by the Police Abstract. Accordingly, based on that evidence I find that the suit Motor Vehicle was being driven by the 2nd Defendant. On whether it was being driven by him as an Agent for the 1st Defendant, **Chesoni, Ag. JA** (as he then was) in **Mwona Ndoo Vs. Kakuzi Ltd. (1982-1988) 1 KAR 523** held: ***“It was not established that the employee was on a frolic of his own since there was no evidence as to what he was doing on that road and how far that road was from the estate. Without that evidence the reasonable presumption is that he was on his master’s business.”*** Similarly, in **Kenya Bus Services Limited -Vs- Humphrey [2003] Klr 665; [2003] 2 EA 519** the Court of Appeal held that:***“...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 whose negligence the owner is responsible. This presumption is made stronger 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 being driven for the joint benefit of the owner and the driver.”*** In the premises, I find that the 12nd Defendant was driving the suit Motor vehicle as a servant or agent of the 1st Defendant hence the 1st Defendant is vicariously liable. The Plaintiff's evidence was uncontroverted. In the upshot therefore, I find that the 2nd Defendant should have avoided the accident at all costs which was foreseeable. He caused the same since he was driving at a high speed and was not in a position to control the Motor Vehicle when he collided into the Plaintiff’s Motorcycle from behind . I therefore find the Defendants 100% liable for the accident. **Quantum** The Plaintiff pleaded and testified that he sustained : 1. Blunt chest injuries; 2. Blunt injuries to the upper limbs; 3. Blunt injuries to the lower limbs; 4. Bruises on both knees and palms; 5. Blood loss; 6. Soft tissue injuries; and 7. Physical and psychological The treatment notes from Nairobi Women’s Hospital and the Medical Report by Dr.Roger Hanington Kayo and the P3 Form supports the Plaintiff's evidence on the injury he sustained. I have considered the evidence, the Medical Report and Pleadings herein. I am satisfied that the Plaintiff sustained the aforesaid injuries. The Counsel for the Plaintiff submitted that the Plaintiff should be awarded Kshs.500,000/= as General Damages. He relied on the decision he relies on the decisions in **Lake Naivasha Growers -Vs- Muigai Thuka [2020] eKLR**, where Kshs. 250,000 was awarded for soft tissue injuries; **Charles Gichuki -Vs-Emily Kawira Mbuba & Another [2018] eKLR**, where Kshs. 300,000 was awarded for blunt injuries; and **Poa Link Services Co. Ltd & Another -Vs- Sindani Boaz Bonzemo [2021] eKLR**, where Kshs. 350,000 was awarded for blunt chest injuries and bruises. The penultimate issue for determination is whether the Plaintiff is entitled to damages and, if so, the appropriate quantum. The Plaintiff pleaded and testified that as a result of the accident, he sustained blunt chest injuries, blunt injuries to the upper and lower limbs, bruises on both knees and palms, blood loss, soft tissue injuries, and physical and psychological pain. His testimony was corroborated by the treatment notes from Nairobi Women's Hospital, the P3 Form, and the medical report prepared by **Dr. Roger Hannington Kayo**, all of which confirm the nature of the injuries sustained. I am therefore satisfied that the Plaintiff proved, on a balance of probabilities, that he sustained the aforesaid injuries as a consequence of the accident. The Plaintiff urged the Court to award **Kshs. 500,000.00** as general damages and relies on the aforesaid authorities . I have carefully considered the pleadings, the evidence on record, the medical documents, the submissions by counsel and the authorities cited. The principles governing the assessment of General Damages are well settled. In **Butt v Khan [1977] 1 KAR 1**, the Court of Appeal held that an appellate court will only interfere with an award of damages where it is so inordinately high or low as to represent an entirely erroneous estimate or where the trial court acted on wrong principles. Similarly, in **Kemfro Africa Ltd t/a Meru Express Services & Another -Vs-Lubia & Another (No. 2) [1987] KLR 30**, the Court held that comparable injuries should, as far as possible, attract comparable awards, while recognizing that no two cases are exactly alike. I have also considered the authorities relied upon by the Plaintiff. While the decisions in **Lake Naivasha Growers v Muigai Thuka [2020] eKLR** and **Charles Gichuki -Vs- Emily Kawira Mbuba & Another [2018] eKLR** are persuasive, I note that the injuries sustained by the claimants therein were more severe than those sustained by the Plaintiff herein. On the other hand, I find **Poa Link Services Co. Ltd & Another -Vs- Sindani Boaz Bonzemo [2021] eKLR** to be the most comparable authority. In that case, the High Court upheld an award of **Kshs. 350,000.00** as General Damages where the Claimant sustained blunt chest injuries, bruises and other soft tissue injuries, which are substantially similar to the injuries sustained by the Plaintiff in the present case. Further, **Dr. Roger Hannington Kayo** opined that the Plaintiff suffered soft tissue injuries from which recovery would be gradual with medication and that he would be left with multiple scars of cosmetic significance. There was, however, no evidence of fractures, permanent incapacity or permanent disability. Guided by the principles in **Butt v Khan (supra)** and **Kemfro Africa Ltd t/a Meru Express Services & Another -Vs- Lubia & Another (No. 2) (supra)**, and taking into account the nature of the injuries sustained, the medical evidence on record, the comparable awards and the effects of inflation, I am satisfied that an award of **Kshs. 350,000.00** as general damages for pain, suffering and loss of amenities is fair, reasonable and commensurate with the injuries sustained by the Plaintiff. **Special Damages** The Plaintiff also pleaded and strictly proved **Special Damages of Kshs. 7,637** by producing receipts in support thereof. I therefore award the Plaintiff the said sum as Special Damages. **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 jointly and severally as follows: 1. General Damages................................................Kshs.350,000.00 2. Special Damages......................................................Kshs 7,637.00 3. **TOTAL ....................................................................Kshs.357,637.00** ***(Kenya Shillings three hundred and fifty seven thousand ,six hundred and thirty seven)*** 1. Interest on Special Damages at court rates from the date of filing suit and on General Damages from the date of this Judgment until payment in full; and 2. Costs of the suit. 3. Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **30.6.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 30TH DAY OF JUNE,2026** In the Absence of parties Court Assistant: Phoebe.