https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/194

Kimuya v Buuri & another (Civil Case E332 of 2024) [2026] KEMC 194 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 194 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Case E332 of 2024 PA Ndege, SPM June 25, 2026 Between John Mwangi Kimuya Plaintiff and Jackson Kathurima Buuri 1st Defendant Elijah Kamau Waweru 2nd Defendant Judgment 1.The suit herein was initiated by the plaintiff, against the defendants, for compensation, arising from a road traffic accident, which happened on 05/05/2021 or thereabouts, along the Eldoret-Nakuru road at Ngata area, when the 3rd Defendant negligently, recklessly and carelessly drove, managed and/or controlled motor vehicle registration number KCT 808W TOYOTA VOXY that it hit, collided and/or rammed into a stationery motor vehicle whereupon an accident occurred and the plaintiff was injured. 2.The 2nd and 3rd Defendants are the only remaining defendants herein. They filed their Statements of Defence dated 20/05/2024 and 06/09/2024, respectively denying liability but failed to attend the hearing on 18/07/2025 when the plaintiff had a field day by presenting his now unchallenged evidence and thereafter closing his case. The two defendants did not also participate in subsequent proceedings including the filing of submissions herein, despite evidence of having been served. This matter thus appears to be like a formal proof proceeding even despite the two defendants herein having filed their statement of defence which are still on record herein. 3.The plaintiff was the sole witness in his case. he testified and adopted his statement further produced several documentary evidence as per his list filed herein. At the close of hearing and submissions, two issue emerge for determination:a.Whether the defendant is liable for the accident, and, if yes, to what extent?b.Whether the plaintiff is entitled to the reliefs sought?Basically, it is a determination on liability and quantum. 4.The Defendants did not call any witness to testify in Court. I am alive to the fact that even without the Defendant’s testimony, the Plaintiff is obliged to prove his case on a balance of probabilities. In the case of Kerai Ghanshyam v James Wambua Muendo [2021] eKLR, the court stated as follows: -14.I am alive to the Court of Appeal’s position in Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR that espouses the correct legal position that:“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 5.In the above case, the court held that submissions and pleadings alone do not amount to evidence. The appellant in the lower court failed to tender evidence and hence the respondent’s evidence remained uncontroverted. Further, in the case of Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the decision in Edward Muriga through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997 stated that:In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence. 6.Guided by the above cases, I find that the statements in the defence filed herein remain mere allegations having not been substantiated orally in court by the Defendants to controvert the Plaintiff’s testimony. The Defence in this case consequently contains mere allegations that were not substantiated in evidence, and I so find. 7.On liability, the plaintiff’s counsel has submitted that the totality of the Plaintiff’s uncontroverted evidence on record, is that it was the motor vehicle registration Number KCT 808W coming from Eldoret direction heading towards Nakuru along the aforesaid road that rammed onto a moto vehicle that was stationery causing the subject accident. That the driver of the aforesaid motor vehicle was careless and driving a defective vehicle. that the police abstract presented herein also blamed the motor vehicle KCT 808W for the accident. 8.I do agree with these submissions. There is no other evidence to disprove negligence on the part of the defendants herein for having solely caused the accident herein as sued herein. I do therefore find them jointly and severally liable for the accident herein at 100%. Liable. 9.The Court of Appeal in Nancy Ayemba Ngaira vrs Abdi Ali [2010] eKLR, stated as follows as regard proof of vehicle ownership by other means such as police abstracts:The is no doubt that the registration certificate obtained from the Registrar of motor vehicles will show the name of the registered owner of a motor vehicle. But the indication thus shown on the certificate is not final proof that the sole owner is the person whose name is shown. Section 8 of the Traffic Act is fully cognizant of the fact that a different person, or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership: actual ownership; beneficial ownership; possessory ownership. A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant that the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the Police Abstract, showed on a balance of probabilities, that 1st defendant was one of the owners of the matatu in question. 10.I thus do rely on the police abstract, PEXH. No. 2, a motor vehicle assessment report, produced herein as PEXH. NO. 7, and a sale agreement produced herein as PEXH. NO. 9 to find that the remaining defendants herein were the owners, actual and beneficial, of the said motor vehicle that rammed into the plaintiff’s motor vehicle and do therefore find them 100% liable. 11.In Nyambati Nyaswabu Erick Vrs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same. 11.I have gone through the medical evidence adduced herein, and I do rely on Dr Obed Omuyoma’s Medical Report produced herein as PEXH. NO. 4A, when considered together with the other evidence sucsh as the P3 form, produced herein as PEXH. NO. 9, that the plaintiff sustained the injuries pleaded. 12.Learned counsel for the plaintiff relied on the authorities of Catherine Wanjuku Kingori & 3 Others Vrs Gibson Theuri Gichumbi (2005) E Klr, Coast Broadway Co. Ltd Vrs Elizabeth Alaka Achebi [2015] E Klr, And Mulwa & Anor. Vrs Nzai [2024] KEHC 6898 (KLR) and submitted for an award of Kshs. 350,000/=. 13.Upon review of the decision mentioned above, it should be abundantly clear that the injuries sustained therein almost commensurate to the ones sustained by the victim herein. I shall therefore go with the proposal by the plaintiff’s counsel and award Kshs. 350,000 as proposed, for the injuries herein. 14.It is trite law that special damages must be pleaded and proved. See Mohammed Ali & another v Sagoo Radiators Limited [2013] eKLR (Civil Appeal No. 231 of 2005) wherein the Court adopted the holding of the High Court in Hahn vs Singh [1985] KLR 716 that:… special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves. 11.The Plaint claimed for Kshs. 7470/- special damages as particularized in Paragraph 9 thereof. I find that only Kshs. 3000/- costs of the medical report, Kshs. 1520/- hospital bills and Kshs 1650/- for the searches has been proved by PEXH. Nos 4B, 6 and 8 respectively. I do therefore assess the special damages awardable herein at Kshs. 6,170/=. 12.I consequently therefore enter judgment in favour of the plaintiff and against the defendants for the sum of Kshs. 356,170/-, costs of the suit and interest on all the sums herein at court rates. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT NAKURU, THIS 25TH DAY OF JUNE. 2026ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Plaintiff’s Counsel: n/a2nd Defendant’s Counsel: n/a3rd Defendant’s Counsel: n/aPlaintiff: n/a2nd Defendant: n/a3rd Defendant: n/a