https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/722

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E020 OF 2025** **JOB WEKESA WANYAMA……………………………………………………...PLAINTIFF** **VERSUS** **JOEL MAKOKHA MANG’OLI SAKWA....………………………...............DEFENDANT** **JUDGMENT** The Plaintiff moved this court vide a Plaint dated 09th January 2025 praying for judgment against the Defendant for:- 1. *Special Damages aforesaid of Kshs. 44,973/=* 2. *General damages for pain, suffering, loss of amenities and future medical expenses* 3. *Costs of the suit* 4. *Interest on (a),(b) and (c) from the date of filing the suit; and* 5. *Any other or further relief that this Honourable court may deem just to grant* The Plaintiff’s case arose from a road traffic accident that reportedly occurred on 21st May 2024 at around 1730hrs along Webuye – Bungoma road when the Plaintiff was riding motor cycle registration number KMFP 785 K. The said motorcycle was reportedly hit by motor vehicle registration number KBJ 138 N, thereby causing the Plaintiff bodily injuries for which he now seeks compensation. The Plaintiff blamed the occurrence of the accident on the Defendants’ negligence. The particulars of negligence attributed to the Defendant are as set out in paragraph 3 of the Plaint herein. Despite being duly served with the Plaint and the Summons to Enter Appearance, the Defendant neither entered appearance nor filed a Statement of defence. Consequently, on 26th February 2025, an interlocutory judgment was entered against the Defendant hence this matter proceeded by way of formal proof. **Plaintiff’s Case** **PW1 Job Wekesa Wanyama** adopted his witness statement dated 09th January 2025 as his evidence in chief. He produced the documents listed in his list of documents dated 09th January 2025 as exhibits. **Defendant’s Case** The Defendant neither entered appearance nor filed a Statement of Defence. **ISSUES FOR DETERMINATION** This court has duly considered the evidence placed before this court, and the pleadings filed by the Plaintiff. There is uncontroverted evidence as evidenced by the police abstract herein that the accident herein occurred on the date set out in the Plaint. There is also no dispute as evidenced by the copy of records that motor vehicle registration number KBJ 138 N was owned by the Defendant at the time of the accident. It is also given that the Plaintiff sustained injuries as a result of the accident herein. Whereas this case was undefended, this court is reminded that the Plaintiff still bears the burden of proving his case to the required standards. This position is buttressed by the holding in **Gichinga Kibutha Vs Caroline Nduku (2018) eKLR** where the Court held that; *“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”* Given the foregoing, this court holds and finds that the only issues that commend to this court for determination are:- 1. Liability 2. Quantum **Liability** The Plaintiff attributed the cause of the accident herein to the Defendant’s negligence as set out in paragraph 3 of the Plaint herein and his witness statement adopted as his evidence in chief. PW1’s version of events on how the accident herein occurred was not controverted by the Defendant. In the absence of evidence to the contrary, this court finds no reason to disbelieve PW1’s version of events on how the accident herein occurred. It is against this background that this court finds and holds the Defendant 100% liable for the occurrence of the accident herein. **Quantum of Damages** 1. **General Damages for pain and suffering** The Plaintiff’s P3 form dated 04th June 2024(Pexh. 2), and the Plaintiff’s treatment notes dated 22nd May 2024 from Elgon View Medical Cottage (Pexh.3), when read together, show that arising from the accident herein, the Plaintiff sustained moderate soft tissue injuries assessed as harm. Interestingly, the Plaintiff’s Plaint and the medical report dated 09th January 2025 (Pexh. 11) contained more serious injuries than the ones set out in the Plaintiff’s P3 form and treatment notes produced before this court. This court notes that whereas the P3 form assessed the Plaintiff’s injuries as harm, the medical report shows that the Plaintiff suffered permanent disability as a result of the accident herein. Ordinarily, where one suffers permanent disability, the degree of injury is assessed as grievous harm. The makers of the P3 form and the medical report herein were not called as witnesses to explain the variance in the nature of injuries suffered by the Plaintiff set out in the said medical documents and the Plaintiff’s P3 form herein. When confronted with a situation almost similar to the one obtaining in this case regarding the variance on the nature of injuries suffered by a Plaintiff in treatment notes, medical report, and P3 form, Ng’arng’ar J in **Thuku v Musembi & another (Civil Appeal E143 of 2023) [2024] KEHC 8211 (KLR)** rendered himself thus: *This court agrees with the findings of the trial court and the evidence of DW1 that the dental injuries only emerged when the 1st respondent visited Dr. Wokabi. Since they were not captured in the P3 form and in other treatment notes, they cannot formulate a basis for compensation in respect to this accident.(Emphasis added)* Njagi J in**Erick Kenyamanyara v Moses & another (Civil Appeal 360 of 2015) [2024] KEHC 11241 (KLR)** when confronted with a similar situation expressed himself as follows: *…How then did injuries that were indicated in the P3 form as simply “harm” transform into such severe injuries as claimed by Dr. Wandugu? I am not convinced that the findings in the medical report of Dr. Wandugu are reliable. They are not backed by treatment notes from the hospital where the appellant was treated. In the premises I decline to rely on the said report in making an award for damages. I find that the appellant sustained injuries as stated in the P3 form…(Emphasis added)* The authorities above show that a medical report is not a stand-alone document. The basis of a medical report is the treatment notes and the P3 form. There is no way, in the absence of a reasonable explanation by a medic, that a medical report will contain more serious injuries than the ones set out in the treatment notes and the P3 form. Therefore, this court will not rely on the injuries set out in the medical report herein to determine quantum. In the circumstances, this court finds and holds that the Plaintiff suffered moderate soft tissue injuries as set out in the P3 form herein. The Plaintiff did not file submissions as directed by this court. The law on award of damages is well settled in this jurisdiction. The Court of Appeal in **Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR** stated that “comparable injuries should attract comparable awards” The Plaintiff’s injuries herein being soft tissue injuries which merely amounted to harm are almost similar to those of the respondent in **Maore Vs Mwenda [2004] eKLR** where the respondent sustained injuries involving; injury to the right shoulder, injury to the chest, Injury to the back, and injury to the left leg with haematoma, the Court of Appeal allowed the appeal and entered judgment for Kshs.100,000/= reducing the award from Kshs. 300,000/=. In **FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR**, an award of Kshs 60,000/- was enhanced to Kshs 100,000/- where the minor had sustained soft tissue injuries, which were blunt object injury to the head, neck, limbs thorax and abdomen. In **Makami v Obong’o (Civil Appeal E062 of 2021) [2023] KEHC 922 (KLR)** the respondent sustained soft tissue injuries involving marked swelling and bruises on the forehead, marked neck and chest pain and cut wound on the right elbow joint and right knee joint. He was treated as an outpatient. The court made an award of Kshs 80,000/=. The authorities above show that for the injuries comparable to injuries sustained by the Plaintiff herein, courts make awards ranging from Kshs. 80,000/= to Kshs. 100,000/=. Guided by the authorities cited above, and considering the fact that the Plaintiff was treated as an inpatient, this court is of the considered view that an award of Kshs. 100,000/= under this head would be sufficient compensation in the circumstances. 1. **Future Medical Expenses** The Plaintiff prayed for general damages for future medical expenses. The evidence on record did not support this prayer, therefore, this prayer is declined. 1. **Special Damages** The Plaintiff pleaded at paragraph 4 of the Plaint herein for Special Damages of Kshs. 550/= for NTSA search, Kshs. 14,423/= for treatment and medical expenses, and Kshs. 30,000/= legal fees for demand notice all totaling to Kshs. 44,973/=. It is the law that Special Damages must be pleaded and strictly proved. The Plaintiff placed before this court receipts to prove the expenditure of Kshs. 44,973/= This court takes great exception with the claim for Kshs. 30,000/= being legal fees for demand notice issued before the filing of this suit. It is this court’s considered view that such a claim cannot be properly claimed as Special Damage. Such fees can only be claimed during the assessment of costs of this suit. To this end, this court draws inspiration from the holding by PJ Otieno J. in **Kwendo v Attorney General & another (Civil Appeal 11 of 2019) [2024] KEHC 1530 (KLR)** where the learned judge expressed himself thus: *‘…The Court however finds that demand letter is a claim for legal fees that is awardable at taxation not in the suit as special damages. That sum is disallowed…’* For the reasons above, this court disallows the claim for Kshs. 30,000/= for legal fees for the demand notice. In the circumstances, this court holds and finds that the Plaintiff pleaded and proved Special Damages of Kshs. 14,973/=. **DISPOSITION** The upshot of the foregoing is that judgment is hereby entered jointly and severally against the Defendants in the following terms:- 1. ***Liability – 100% in favour of the Plaintiff*** 2. ***General damages - Kshs. 100,000/=*** 3. ***Special Damages - Kshs. 14,973/=*** ***Net Award - Kshs. 114,973/=*** The General Damages will accrue interest at court rate from the date of this judgment till payment in full while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. The Plaintiff will have the costs of this suit. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma this 22nd day of May 2025** **T.O. OMONO** **RESIDENT MAGISTRATE** **In the presence of:** **Plaintiff** **C/A: Albert**