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Magoma v Ndoro (Civil Case E1906 of 2024) [2026] KEMC 481 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 481 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E1906 of 2024 EM Mwamuye, SRM July 30, 2026 Between Joyce Kerubo Magoma Plaintiff and Nyawa Ndoro Defendant Judgment Background 1.The Plaintiff instituted this suit by way of an Amended Plaint seeking damages arising from a road traffic accident which occurred on 21st January 2024 along the Mombasa–Malindi Road at Magongo Stage. She sought general damages, special damages amounting to Kshs.23,444, costs of the suit and interest. 2.The Defendant entered appearance and filed a Statement of Defence dated 7th November 2025 denying ownership of Motor Vehicle Registration No. KBJ 679D Nissan Matatu, denying negligence and, in the alternative, pleaded contributory negligence against the Plaintiff. 3.The Plaintiff thereafter filed a Reply to Defence joining issue with the Defendant and reiterating the contents of the Plaint. 4.The matter proceeded for hearing on 22nd April 2026. The hearing date had been taken by consent of both parties. Despite having notice of the hearing date, the Defendant neither attended court nor tendered any evidence. Consequently, the Plaintiff testified, produced her documentary evidence and thereafter closed her case. The defence case was accordingly marked as closed without any evidence being adduced. 5.Both parties subsequently filed written submissions. The Plaintiff's Case 6.The Plaintiff testified that on 21st January 2024 at about 9.00 a.m., she was lawfully standing at the bus stage along the pedestrian pathway at Magongo Stage on the Mombasa–Malindi Road when Motor Vehicle Registration No. KBJ 679D Nissan Matatu, driven by the Defendant's authorised driver, veered off the road onto the pedestrian pathway and knocked her. 7.She testified that she had not encroached onto the road and had done nothing to contribute to the occurrence of the accident. 8.Following the accident she sustained: Fracture of the left tibia; Fracture of the left fibula; and Cut wound on the left middle finger. She was initially treated at Coast General Teaching and Referral Hospital before receiving subsequent treatment at Mikindani Hospital. 9.The Plaintiff produced the following documents: Police Abstract; P3 Form; Treatment notes; Medical Report by Dr. Ajoni Adede dated 3rd December 2024; Medical receipts; Receipt for the medical report; Motor vehicle search; Insurance notice; Demand letter; National Identity Card. 10.The Plaintiff testified that she incurred medical expenses amounting to Kshs.21,444 and paid Kshs.2,000 for the preparation of the medical report. She prayed for judgment against the Defendant as pleaded. The Defence 11.The Defendant filed a Statement of Defence denying ownership of Motor Vehicle Registration No. KBJ 679D, denying negligence and denying the injuries pleaded. In the alternative, the Defendant pleaded that should an accident be proved, then it was wholly or substantially caused by the Plaintiff's own negligence. 12.However, despite filing the Defence, the Defendant did not attend court on the hearing date which had been taken by consent and did not call any witness to support the averments contained in the Defence. 13.Accordingly, the Defence remained a mere statement of allegations unsupported by evidence. Issues for Determination 14.Having considered the pleadings, evidence and submissions, the issues falling for determination are:i.Whether the Defendant is liable for the accident.ii.Whether the Plaintiff proved her injuries.iii.Whether the Plaintiff is entitled to damages and, if so, the quantum thereof.iv.Who should bear the costs of the suit. Liability 15.The Plaintiff was the only witness who testified before this Court. Her evidence was clear, consistent and remained unchallenged. She testified that she was standing on the pedestrian pathway when the Defendant's motor vehicle veered off the road and knocked her. Her testimony is corroborated by: the Police Abstract; the P3 Form; treatment notes; and the Medical Report. 16.The Police Abstract further indicates that investigations were carried out and the Defendant's driver was blamed for the occurrence of the accident. Although the Defendant denied liability in his Defence, no evidence was tendered to rebut the Plaintiff's evidence. 17.It is now settled law that pleadings are not evidence. 18.The Court of Appeal in CMC Aviation Ltd v Cruisair Ltd (No.1) [1978] KLR 103 held that pleadings contain allegations which must be proved by evidence. A party who merely files pleadings without adducing evidence leaves those pleadings unsupported. 19.Similarly, in Motex Knitwear Limited v Gopitex Knitwear Mills Limited [2009] eKLR, the court held that where no evidence is called in support of a defence, the defence remains mere allegations. 20.The Defendant herein had every opportunity to testify. More importantly, the hearing date had been taken by consent. There is therefore no suggestion that he lacked notice of the proceedings. Instead, he chose not to participate. 21.The Court therefore finds that the Plaintiff's evidence remains wholly uncontroverted. Further, the particulars of contributory negligence pleaded against the Plaintiff equally remained unsupported by evidence. No witness was called to demonstrate that the Plaintiff failed to keep a proper lookout or contributed in any manner to the accident. 22.The Plaintiff consistently maintained that she was standing at the designated bus stage on the pedestrian pathway when the motor vehicle veered off the road. Nothing was placed before the Court to displace that evidence. I therefore find that the Plaintiff has proved her case on a balance of probabilities. Accordingly, I hold the Defendant 100% liable for the accident. Assessment of Damages 23.Having found the Defendant wholly liable, the Court must now determine the appropriate quantum of damages payable to the Plaintiff. 24.It is trite that the purpose of an award of general damages is to compensate an injured party for pain, suffering and loss of amenities. Such compensation should neither enrich the claimant nor amount to a punitive award against the tortfeasor. The guiding principle remains that comparable injuries should, as far as possible, attract comparable awards while taking into account the passage of time, inflation and the prevailing economic conditions. 25.The Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR reiterated that awards in similar cases should be comparable though no two cases are exactly alike. Similarly, in Butt v Khan [1982-88] KAR 1, the Court held that an appellate court will only interfere where an award is so inordinately high or low as to represent an entirely erroneous estimate. 26.The Plaintiff sustained: Fracture of the left tibia; Fracture of the left fibula; and cut wound on the left middle finger. The medical evidence consists of the P3 Form, treatment notes from Coast General Teaching and Referral Hospital, treatment records from Mikindani Hospital and the Medical Report by Dr. Ajoni Adede dated 3rd December 2024. The P3 Form classified the injuries as harm. The Plaintiff underwent treatment for the fractures and attended follow-up clinics. No permanent incapacity or permanent disability was assessed. The Plaintiff proposed an award of Kshs.1,500,000 as general damages. 27.The Court will now consider the authorities relied upon.i.George William Awuor v Beryl Awuor Ochieng [2020] eKLR- The Respondent in that appeal sustained: Fracture of the right femur; Compound fractures of the left tibia and fibula. The medical evidence further established that the femur fracture required surgical fixation using an intramedullary nail, with a future operation anticipated for removal of the implant. The appellate court reduced the award of Kshs.2,000,000 made by the trial court and substituted it with Kshs.1,200,000 as general damages. The injuries in that case were more severe than those sustained by the Plaintiff herein because, in addition to fractures of the tibia and fibula, there was a fracture of the femur requiring operative fixation and future surgery. While the present Plaintiff sustained fractures of the tibia and fibula, there was no evidence of a femoral fracture, surgical fixation using implants or any future surgery. Accordingly, although the authority is helpful in demonstrating the current range of awards for fractures involving the lower limb, the injuries therein are more serious than those before this Court.ii.Robert Mwaniki Ndwiga v Agatha Kaugi Riungu, Civil Appeal No. 16 of 2016 The claimant sustained: Fracture of the right radius; Fracture of the distal right tibia. The fractures healed with malunion and the medical evidence established that reconstructive orthopaedic surgery would be required at an estimated cost of Kshs.100,000. The appellate court enhanced the award from Kshs.500,000 to Kshs.1,050,000. The injuries in that authority are slightly more severe than those sustained by the Plaintiff because they resulted in malunion and necessitated future reconstructive surgery. The Plaintiff herein sustained fractures of the tibia and fibula but no evidence was led to show malunion, deformity, future surgery or permanent disability. This authority is therefore broadly comparable but involves additional complications absent in the present matter.iii.Joash Nyabicha v Kenya Tea Development Authority & Another, Civil Appeal No. 302 of 2010- The claimant sustained a fracture of the right leg and was awarded Kshs.1,000,000. Although the injury profile in that case involved fewer fractures than the present case, the award was made in 2013, over a decade ago. Taking into account inflation and the decline in the purchasing value of money, the authority remains useful in showing the progression of awards for long bone fractures. The Plaintiff herein sustained fractures involving both the tibia and fibula together with a cut wound to the finger, making her injuries broadly comparable, though not identical.iv.Francis Ndungu Wambui & 2 Others v VK (A Minor) [2019] eKLR- The claimant sustained: Soft tissue injuries; Compound fracture of the distal tibia and fibula; Loss of consciousness. The trial court awarded Kshs.1,000,000, which was upheld on appeal. The injuries in that authority are more severe than those suffered by the Plaintiff herein because they involved compound fractures and head injury resulting in loss of consciousness. The Plaintiff suffered simple fractures of the tibia and fibula without evidence of neurological injury or loss of consciousness. 28.Having carefully considered the foregoing authorities, the Court notes that: The Plaintiff suffered fractures of two long bones, namely the left tibia and left fibula. She also sustained a cut wound on the left middle finger. There is no evidence of permanent disability. There is no evidence of malunion. There is no evidence that surgical implants were inserted. There is no evidence of future medical expenses. There is no evidence of shortening of the limb or residual deformity. 29.The authorities cited by the Plaintiff generally involve either: additional fractures such as femoral fractures; compound fractures; surgical fixation using implants; malunion; permanent deformities; or future surgical intervention. 30.Consequently, while they provide guidance, they involve injuries that are, in most instances, more severe than those sustained by the Plaintiff. Nevertheless, the Court must also take judicial notice of inflation and the current trend of awards for fractures involving the tibia and fibula. 31.In my discretion and bearing in mind the need for consistency in awards while avoiding both under-compensation and excessive awards, I am satisfied that an award of Kshs.500,000 for pain, suffering and loss of amenities is fair, reasonable and commensurate with the injuries sustained by the Plaintiff. 32.The Plaintiff sought Kshs.1,500,000. In my respectful view, that figure would be on the higher side considering the absence of permanent incapacity, deformity or future surgery. 33.Conversely, an award significantly below Kshs.500,000 would not adequately reflect current trends in awards for fractures involving both the tibia and fibula. I therefore award Kshs.800,000 as general damages. Special Damages 34.The Plaintiff pleaded special damages amounting to Kshs.23,444 comprising:Medical expenses – Kshs.21,444; andMedical report fees – Kshs.2,000. 35.It is now settled that special damages must not only be specifically pleaded but must also be strictly proved. The Court of Appeal in Hahn v Singh [1985] KLR 716 reiterated that special damages must be specifically pleaded and strictly proved. 36.From the documentary evidence produced before Court, the Plaintiff tendered receipts evidencing:Medical expenses amounting to Kshs.21,444; andMedical report charges of Kshs.2,000. 37.The receipts were admitted into evidence without objection and no contrary evidence was adduced by the Defendant. The Court is therefore satisfied that the Plaintiff strictly proved special damages in the sum of Kshs.23,444, which I award in full. Costs 38.Under Section 27 of the Civil Procedure Act, costs ordinarily follow the event unless the Court, for good reason, orders otherwise. The Plaintiff has succeeded in establishing liability and has substantially succeeded in her claim. I find no reason to depart from the general rule. The Plaintiff shall therefore have the costs of the suit. Interest 39.The Plaintiff is also entitled to interest. Accordingly: General damages shall attract interest at court rates from the date of this Judgment until payment in full. Special damages shall attract interest at court rates from the date of filing the suit, having been specifically pleaded and proved, until payment in full. Final Orders 40.In the result, Judgment is entered for the Plaintiff against the Defendant as follows:a.Liability- The Defendant is found 100% liable for the accident.b.General Damages- Pain, suffering and loss of amenities: Kshs.800,000c.Special Damages- Kshs.23,444Total Award: 823,444/=d.Costs of the suit.e.Interest on general damages at court rates from the date of this Judgment until payment in full.f.Interest on special damages at court rates from the date of filing suit until payment in full.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE