https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/472

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAIROBI** **MILIMANI CIVIL DIVISION** **CIVIL SUIT NO .E1586 OF 2026** **JACKLINE BWARI HEZRON ......................................................PLAINTIFF** **-VERSUS-** **GILBERT MAONGA ABERI ……………………….…….……… DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff filed a Plaint dated 20th January ,2026 seeking Judgment against the Defendant for: 2. General damages 3. Special damages in the sum of Kshs.9,550.00 4. Future Medical expenses in the sum of Kshs.100,000/= 5. Costs of this suit 6. Interest on (a), (b) and (c)) at Court rates 7. The Plaintiff avers that on or about the 7th day of June ,2025, he was a lawful passenger for hire and reward via Bolt service in the Defendant’s Motor Vehicle, traveling along Kangundo road, Nairobi. She alleges that while she was seated in the front passenger seat, the Defendant so negligently and recklessly managed, controlled and drove the said Motor Vehicle that he caused it to veer off the road and plunge into a ditch as a consequence she suffered injuries, loss and damage . 8. The Defendant was served but did not enter appearance. Interlocutory Judgement was entered on 27th April,2026 by Hon.M.Malingu against the Defendants and the matter proceeded for Formal Proof hearing on 1st July,2026. 9. PW1, Jackline Bare Hezron , adopted his Witness Statement dated 29th January ,2026 and produced the documents in his list as **(P Exhibit 1–11)**. 10. The Plaintiff, states that her claim arises from a road traffic accident that occurred on **7th June 2025**. She had requested a ride through the Bolt Application and was accepted by the Defendant, who was driving motor vehicle registration **KDN 264W.** She boarded the vehicle as the front-seat passenger, while her nanny and child occupied the rear seats, and they proceeded along **Kangundo Road.** 11. During the journey, the Plaintiff observed the Defendant **continuously using his mobile phone while driving,** thereby becoming distracted and failing to maintain proper attention and lookout. 12. The Defendant subsequently lost control of the vehicle, which veered off the road and plunged into a ditch. The Plaintiff was violently jolted forward and sustained injuries. She was rescued from the scene and taken to **Mama Lucy Kibaki Hospital,** where she received emergency treatment and subsequent medical management. 13. The Plaintiff particularised her injuries as comprising a ***cut wound on the forehead; blunt soft-tissue injuries to the anterior chest wall with tenderness; a fracture of the right tibia/fibula; blunt soft-tissue injuries to the right leg accompanied by tenderness and loss of function; and bruises to both knees****.* 14. She states that the accident caused her considerable physical pain, psychological trauma and financial loss through medical expenses. 15. According to the Plaintiff, her treatment remains ongoing and she requires **future surgery for removal of the implants** inserted following the fracture. The estimated cost of the procedure is stated to be **Kshs. 100,000.00** at a medium-cost hospital. 16. She attributes the accident wholly to the Defendant’s negligent driving, particularly his use of a mobile phone while driving, and seeks Judgment in accordance with the prayers in the Plaint. 17. On 1st July ,2026 I directed the Plaintiff to file her Written Submissions . **Plaintiff’s Submissions dated 9th July ,2026** 1. The Plaintiff in her Submissions dated 9th July ,2026 submitted that she had proved her case on a balance of probabilities and urged the Court to find the Defendant 100% liable for the accident. 2. She testified that on 7th June ,2025, she was lawfully travelling as a fare-paying passenger in Motor Vehicle Registration Number KDN 264W when the vehicle was driven at an excessive speed, lost control, veered off Kangundo Road and plunged into a ditch. 3. It was argued that the Defendant offered no satisfactory explanation for the occurrence of the accident. The Plaintiff therefore relied on the doctrine of **res ipsa loquitur**, submitting that the circumstances of the accident were consistent with negligence on the part of the Defendant’s driver. 4. The Plaintiff further submitted that the Defendant’s driver owed her a duty to exercise reasonable care and control of the motor vehicle, which duty was breached by driving at excessive speed and failing to maintain proper control of the vehicle. The Court was consequently urged to find the Defendant wholly liable for the accident. 5. On quantum, the Plaintiff submitted that the medical evidence established that she sustained a fracture of the right tibia and fibula, a forehead wound and chest-wall injuries, resulting in 15% permanent incapacity. 6. She continued to experience pain, limitation of movement and loss of amenities and required a further surgical procedure for removal of the metallic implants. It was submitted that the nature and long-term consequences of the injuries justified an award of **Kshs. 1,000,000/=** as General Damages. 7. In support of the proposed award, the Plaintiff relied on authorities including **Jackson Mbaluika Mwanangi v Onesmus Nzoka & Another [2021] eKLR** , where the High Court enhanced an award from Kshs.330,000/= to **Kshs.600,000/=** for injuries including a fracture of the femur and shoulder injury, and **Jacinta Kendi & another v Rose Kimondo Cheboi [2020]eKLR**, where **Kshs.1,200,000/=** was awarded for a tibia/fibula fracture, soft-tissue injuries and blood loss. 8. The Plaintiff also sought Kshs.100,000/= for future medical expenses, supported by the medical evidence indicating the need for removal of the metallic implants and a further surgical procedure. 9. She claimed **Kshs.9,550/=** as special damages, being the medical expenses and other specifically pleaded and proved costs. 10. The Plaintiff submitted that the special damages had been specifically pleaded and proved through receipts, while the claim for future medical expenses was supported by the medical report. 11. She therefore sought judgment against the Defendant for **Kshs.1,000,000/= as general damages, Kshs.100,000/= as Future Medical Expenses, Kshs.9,550/= as special damages, together with costs of the suit and interest thereon.** **Liability** 1. I have considered the evidence adduced by PW1, the pleadings on record and the Plaintiff’s Written Submissions dated 9th July 2026. The issues for determination are: 2. Whether the Defendant is liable for the accident and, if so, to what extent; 3. What quantum of damages, if any, is awardable to the Plaintiff; and 4. Who should bear the costs of the suit? 5. On the issue of liability, the Plaintiff pleaded and testified that on the material date, he was travelling as a passenger in Motor Vehicle Registration Number **KDN 264 W**, which was being driven by the Defendant. 6. The Plaintiff’s evidence was that the Defendant negligently and recklessly drove and controlled the said motor vehicle, causing it to veer off the road and plunge into a ditch. 7. The particulars of negligence pleaded against the Defendant were that he: 8. drove while distracted by the unlawful use of a mobile phone; 9. failed to maintain a proper lookout for the road and prevailing conditions; 10. failed to maintain adequate control of the motor vehicle; 11. drove at an excessive speed in the circumstances; and 12. failed to properly steer, slow down or apply the brakes so as to avoid the motor vehicle veering into the ditch. 13. The Plaintiff’s testimony regarding the occurrence of the accident and the manner in which it happened was not controverted. 14. There was no evidence tendered by the Defendant to rebut the Plaintiff’s account or to demonstrate that the accident was caused by circumstances beyond the Defendant’s control. 15. The evidence on record establishes that the Defendant was the driver and person in control of the suit motor vehicle at the material time. 16. Further, the circumstances of the accident attract the application of the doctrine of ***res ipsa loquitur****.* The Motor Vehicle was under the control and management of the Defendant, and it veered off the road and plunged into a ditch while being driven. 17. Such an occurrence, in the ordinary course of events, would not ordinarily happen if the person in control of the vehicle exercised reasonable care. 18. The evidential burden therefore shifted to the Defendant to provide a reasonable explanation for the occurrence of the accident. No such explanation was tendered. 19. I am mindful that the doctrine of *res ipsa loquitur* does not dispense with the Plaintiff’s obligation to establish a prima facie case of negligence. 20. In the present case, however, the Plaintiff gave direct evidence as to how the accident occurred and specifically attributed the accident to the Defendant’s negligent driving. The doctrine therefore reinforces, rather than substitutes, the Plaintiff’s evidence on negligence. 21. A driver owes a duty to other road users and, in particular, passengers in the vehicle under his control, to exercise reasonable care and skill in the manner in which the vehicle is driven. 22. In the present case, the Defendant failed to maintain proper control of the Motor Vehicle and drove in circumstances that resulted in the vehicle veering off the road and plunging into a ditch. The Defendant’s conduct amounted to a breach of the duty of care owed to the Plaintiff. 23. In the circumstances, I find that the accident was caused by the Defendant’s negligence. The Plaintiff has established, on a balance of probabilities, that the Defendant was responsible for the occurrence of the accident. There is no evidence upon which this Court can attribute any contributory negligence to the Plaintiff. 24. Consequently, I find the Defendant **100% liable** for the accident and the injuries sustained by the Plaintiff. **Quantum** 1. The Plaintiff pleaded and testified that she sustained ***a cut wound to the forehead; blunt soft-tissue injuries to the anterior chest wall with associated tenderness; a fracture of the right tibia and fibula; blunt soft-tissue injuries to the right leg*** with tenderness and loss of function; and bruises to both knees. 2. She further testified that the injuries resulted in **15% permanent incapacity**. The Plaintiff’s evidence is corroborated by the discharge summary from Megalife Hospital, the P3 Form and the medical report prepared by Dr. Titus Ndetei Nzina. 3. The medical evidence confirms that the Plaintiff sustained severe soft-tissue injuries and fractures of the right lower limb, sustained a soft-tissue injury to the forehead leaving a scar, and developed deformity and surgical scarring at the fracture site. 4. The doctor assessed permanent functional incapacity of the right lower limb at **15%**. He further opined that the Plaintiff would require removal of the implants after adequate healing of the fractures, at an estimated cost of **Kshs.100,000/=**. 5. The Plaintiff submitted that an award of **Kshs.1,000,000/=** would be reasonable, relying, inter alia, on **Jackson Mbaluika Mwanangi v Onesmus Nzoka & another [2021]eKLR** and **Jacinta Kendi & Another v Rose Kimondo Cheboi [2020] eKLR.** 6. In assessing general damages, the Court is guided by the well-established principle that an award should compensate the claimant fairly for pain, suffering and loss of amenities, while ensuring that comparable injuries attract comparable awards. 7. The Court must also take into account the passage of time and the prevailing level of awards. 8. I have considered the authorities cited by the Plaintiff as well as more recent comparable decisions. In **Tirus Mburu Chege & Another v JKN & Another (2018) eKLR**, the Court of Appeal reduced an award of Kshs.800,000/= to **Kshs.500,000/=** for fractures of the tibia and fibula of both legs, together with a blunt injury to the forehead, among other injuries. 9. More recently, in **Mmbaya v Watu Nominee Co. Ltd & another [2025] KEHC 11473 (KLR),** the High Court considered a case involving tibia and fibula fractures and implants which might subsequently require removal. 10. The Court enhanced the award of general damages to **Kshs.700,000/=**, taking into account the implants and the passage of time and inflation. 11. Of particular relevance is **Mburu & Another v Nkoiboni & Another [2026] KEHC 1062 (KLR),** where the Court upheld an award of **Kshs.1,200,000/=** for open fractures of the tibia and fibula, deformity of the leg and **15% permanent incapacity**. That case is, however, distinguishable in that the fractures were open and the Plaintiff suffered a more pronounced deformity. 12. Further, in **Musembi v Kiptala & Another [2025] KEHC 10126 (KLR),** the High Court considered fractures of the distal third of the right tibia and fibula, severe soft-tissue injuries, a blunt injury to the anterior chest wall and other soft-tissue injuries. Although permanent disability was assessed at 20%, the Court ultimately substituted an award of Kshs.850,000/= with **Kshs.500,000/=**, having regard to comparable awards. 13. I also proceed to analyse the following decisions, while appreciating that no two injuries can be exactly the same.**Samwel Mwangi Kamau -Vs- Joseph M Kimemia & Another [2004] eKLR *Justice L.Kimaru J awarded Kshs.1,000,000/=*** as General Damages for a Claimant who sustained the following injuries: **Head injury – As a result of the head injury the Plain tiff has a paralysis of the left upper limb due to intra cranial haemorrhage and depressed fracture of the left temporal bone. It in the assessment of the Doctor this was a permanent disability.(ii) Fracture of the right tibia and fibula which had malunited resulting in a permanent deformity. According to his prognosis the Plaintiff would be unable to walk for long distances.(iii) Laceration and bruises on the forehead and right hand which had healed but left prominent scars.**In **Mohamed Juma Salaa & Another -Vs- B.A.O [2010]eKLR**, the Respondent sustained cut wound of skull, trauma of side of the head, severe dorsum injury upper arm, loss of biceps and triceps muscles and loss of arm and skin. 14. Loss of skin was put at 90% and deformity at 20% to the body. He assessed the injury at 20%.Justice Makhandia upheld an award of Kshs.950,000.00 by the Lower Court. 15. In reaching an appropriate award, the Court ought to consider the value of the Shilling and the state of the economy. 16. The Court should avoid astronomical awards but strive to ensure that the final award makes sense and fairly compensates the Claimant **Kigaari -Vs- Aya [1982-88]1 KAR 768, Ugenya Bus Service -Vs- Gachoki NKU CA CIVIL APPEAL NO.66 OF 1981 [1982] eKLR** and **JABANE -VS- OLENJA [1986] KLR 661)**. 17. In assessing damages, the Court looks at cumulative effect of the injuries suffered and awards what it considers a fair compensation bearing in mind that the Plaintiff cannot be returned to the position she was in before the injuries were suffered and that the damages are intended to compensate the Plaintiff. 18. In so doing, it should be realized that no two cases are the same or identical nor do individual Plaintiffs respond the same way to treatment and the effects vary even the injuries are not dissimilar. 19. There is need for consistency in awarding damages for injuries that are not dissimilar and the current value of the shilling and the economy have to be considered. 20. But it would be pointless to give astronomical awards which in the end would be impossible to pay, nevertheless awards must make sense and measly sums for severe injuries would make nonsense of the law. 21. A balance must therefore be struck in which tortuous wrongs result in fair compensation. 22. In the present case, unlike some of the authorities cited, the Plaintiff sustained not only a fracture of the right tibia and fibula but also significant soft-tissue injuries, a forehead scar, deformity and surgical scarring of the right lower limb. 23. Most significantly, the medical evidence establishes 15% permanent functional incapacity and the need for a further procedure for removal of the implants. These are factors which, in my view, justify an award above the lower range of the authorities involving fractures which healed without permanent functional impairment. 24. Taking into account the nature and extent of the injuries, the permanent incapacity, the residual deformity and scarring, the need for future implant removal, the authorities cited and the need to maintain reasonable consistency in awards, I find that an award of **Kshs.1,000,000/=** as suggested by the Plaintiff is fair and reasonable compensation for pain, suffering and loss of amenities. **Future Medical Expenses** 1. The Plaintiff claimed future medical expenses for removal of the metallic implants. Dr. Titus Ndetei Nzina confirmed that the implants would require removal after adequate healing of the fractures and estimated the cost at Kshs.100,000/=. 2. The medical evidence sufficiently establishes both the necessity and cost of the anticipated procedure. The claim was therefore specifically pleaded and proved. Accordingly, the Plaintiff is awarded **Kshs.100,000/=** as future medical expenses for removal of the metallic implants. **Special Damages** 1. The Plaintiff also pleaded and strictly proved **Special Damages of Kshs.9,550.00** by producing receipts in support thereof. I therefore award the Plaintiff the said sum as Special Damages. **Disposition** 1. The Plaintiff has proved her case against the Defendant on a balance of probability and I proceed to enter Judgment for the Plaintiff against the Defendant jointly and severally as follows: 2. General Damages.............................................Kshs.1,000,000.00 3. Future Medical Expenses……………….………….Kshs.100,000.00 4. Special Damages......................................................Kshs 9,550.00 **TOTAL .................................................................Kshs.1,109,550.00** ***(Kenya Shillings one million ,one hundred and nine thousand ,five hundred and fifty )*** 1. Interest on **General Damages and Future Medical expenses** from the date of this Judgment until payment in full while Interest on **Special Damages which** from the date of filing suit until payment in full. 2. The Plaintiff shall have Costs of the suit. 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **12.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 12TH DAY OF AUGUST,2026** **In the presence of :** M/s Kemunto Holding Brief for Mr.Mugambi for the Plaintiff Defendant: Absent Court Assistant: Phoebe.