https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/450

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **CIVIL SUIT NO.E6132 OF 2025** **KEFFER MURIITHI MUGWIKA......................................................PLAINTIFF** **-VERSUS-** **DAVID WAWERU KURIA aka DAVID MWANGI …….……… DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff vide a Plaint dated 28th August ,2025 sought Judgment against the Defendant for: 2. General damages for the injuries sustained; 3. Special damages of Kshs. 5,550; 4. Interest on the damages at Court rates; and 5. Costs of the suit. 6. The Plaintiff, Quinto Imokat Ono, has sued Leonard Maingi Kamau, the registered owner of Motor Vehicle KDJ 428X (Bus/Coach), arising from a road traffic accident that occurred on or about 1 April 2025 along Mombasa Road. The Plaintiff alleges that the Defendant’s driver, agent, servant or employee negligently drove the vehicle and caused it to collide from behind with Motorcycle KGMN 946K, on which the Plaintiff was riding. 7. The Plaintiff attributes the accident to negligence, including excessive speed, careless and reckless driving, failure to brake or take evasive action, failure to maintain a safe following distance, failure to exercise due care, and failure to observe the Highway Code and basic traffic rules. He also relies, where applicable, on the doctrine of res ipsa loquitur, the Traffic Act and the Highway Code. 8. As a result of the accident, the Plaintiff sustained a **bruised right knee, bruises and swelling of the left knee, a bruised left elbow, back pain, and blunt injuries to the left shoulder and lower back accompanied by pain.** 9. He further claimed **special damages of Kshs. 5,550.00**, comprising Kshs. 550 for a copy of records and Kshs. 5,000 for the medical report. The Plaintiff contended that the Defendant was **vicariously liable for the negligence of his driver, agent, servant or employee** in causing the accident. 10. The Defendant was served but did not enter appearance. **Interlocutory Judgement** was entered on **12th February,2026** by Hon.M.Malingu against the Defendants and the matter proceeded for Formal Proof hearing on 2nd July,2026. 11. PW1, Quinto Imokat Ono, adopted his Witness Statement dated 28th August ,2025 as his evidence in Chief and produced the documents in his list as **(P Exhibit 1–7).** 12. It is his evidence that on the 1st April 2025 at about 8:40 am he was riding motor cycle registration number KMGM 946K along Mombasa Road, Bellevue, near Shell petrol station when Motor Vehicle Registration Number KCJ 428X hit me from behind. He was carrying one pillion passenger who was to drop at Airtel Offices when the accident occurred . 13. He blamed the driver of Motor Vehicle Registration Number KCJ 428X for driving carelessly, recklessly and for not keeping a reasonable distance as is expected of an experienced driver, thereby causing him serious injuries. 14. On 2nd July ,2026 I directed the Plaintiff to file his Written Submissions. ### **Plaintiff’s Written Submissions dated 13th July ,2026** 1. The Plaintiff submits that the Defendant is **100% liable** for the accident of **1st April 2025,** contending that the Defendant’s driver negligently drove motor vehicle **KDJ 428X,** causing it to collide with the Plaintiff’s Motorcycle from behind. The Plaintiff argues that the Defendant, as the vehicle owner, is **vicariously liable** for the driver’s negligence. 2. On **quantum,** the Plaintiff states that he sustained soft-tissue injuries, namely a **bruised right knee, left knee bruising with swelling, bruised left elbow, back pain and left shoulder pain.** He submits that an award of **Kshs. 400,000.00** would adequately compensate him for pain and suffering and loss of amenities. 3. To support the proposed award, the Plaintiff relies on **Poa Link Services Co. Ltd v Sindani Boaz Bonzemo**, where an award of **Kshs. 350,000** was made for injuries including blunt injury to the chest, bruises to the lower abdomen, right hip, thigh and knee. He also cites **Onchoka v Mwangi [2023] KEHC 1850 (KLR)**, where **Kshs. 350,000** was awarded for soft-tissue injuries. The Plaintiff argues that, considering inflation and the passage of time, **Kshs. 400,000.00** is reasonable. 4. Regarding **Special Damages,** the Plaintiff submits that these were specifically pleaded and proved, and asks the Court to award the amount claimed upon consideration of the receipts and Medical Report. 5. The submissions also annex and rely on the cited authorities concerning assessment of damages for soft-tissue injuries. In particular, the authorities emphasise that comparable injuries should attract comparable awards, while allowing for changes in economic circumstances and inflation. 6. He further alleges that the Defendant is vicariously liable for the negligence of his driver, agent, servant or employee. **Liability** 1. I have considered the evidence adduced by PW1, the documents produced in evidence and the Plaintiff's Written Submissions dated 13th 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 is awardable; and 4. Who should bear the costs of the suit. 5. On the issue of liability, the Plaintiff pleaded that the accident was caused by the negligence of the Defendant's **driver, servant and/or agent.** The Plaintiff further specifically pleaded that the Defendant was **vicariously liable** for the negligence of his driver, servant and/or agent. The Plaintiff testified that Motor Vehicle Registration Number **KCJ 428 X** was negligently driven and collided with his motorcycle from behind. 6. The Police Abstract produced in evidence identifies **David Wambua** as the driver of Motor Vehicle Registration Number KCJ 428 X at the material time. More importantly, the **Copy of Records produced by the Plaintiff confirms that Motor Vehicle Registration Number KCJ 428 X was registered in the name of the Defendant, Leonard Maingi Kamau.** The Copy of Records therefore corroborates the Plaintiff's evidence as to ownership of the suit motor vehicle. 7. It is therefore established from the documentary evidence before the Court that the suit motor vehicle belonged to the Defendant and that, at the material time, it was being driven by **David Wambua,** as reflected in the Police Abstract. The Plaintiff's evidence on these matters was not controverted. 8. The fact that David Wambua was not joined as a Defendant does not, in the circumstances of this case, defeat the Plaintiff's claim. The Plaintiff did not seek judgment against David Wambua personally. His case, as expressly pleaded, was that the accident was caused by the negligence of the Defendant's driver, servant and/or agent and that the Defendant was consequently **vicariously liable** for that negligence. 9. The doctrine of vicarious liability imposes liability upon an employer or principal for the tortious acts of an employee or agent committed in the course of employment or agency. In **Anyanzwa v Gasperis [1981] KLR**, the Court of Appeal held that liability may attach to the owner where the person driving the vehicle was his servant or agent and was acting in the course of such employment or agency. 10. In the present case, the Copy of Records establishes that the motor vehicle belonged to the Defendant, while the Police Abstract identifies David Wambua as the driver thereof at the material time. 11. The Defendant, being the registered owner of the vehicle, was in the best position to explain the circumstances under which his vehicle was being driven by David Wambua. No evidence was adduced by the Defendant to controvert the Plaintiff's evidence or to demonstrate that David Wambua was driving the vehicle without the Defendant's authority or outside the scope of his employment or agency. 12. I therefore find, on a balance of probabilities, that **David Wambua was the Defendant's driver, servant and/or agent** at the material time and was driving Motor Vehicle Registration Number KCJ 428 X in that capacity. His non-joinder as a Defendant does not affect the Plaintiff's claim against the Defendant based on vicarious liability. 13. As regards the manner in which the accident occurred, the Plaintiff testified that the Defendant's motor vehicle collided with his motorcycle from behind. There was no evidence tendered to suggest that the accident was caused by any negligence on the part of the Plaintiff or that the accident was otherwise unavoidable. The Plaintiff's evidence on the occurrence of the accident and the manner in which it occurred remained uncontroverted. 14. I find that the driver of Motor Vehicle Registration Number KCJ 428 X failed to exercise reasonable care and control of the motor vehicle and thereby caused the accident. The negligence of David Wambua is, in the circumstances, attributable to the Defendant under the doctrine of vicarious liability. 15. In the premises, I find that the Plaintiff has proved his case against the Defendant on a balance of probabilities. I accordingly find the Defendant, **Leonard Maingi Kamau, 100% liable** for the accident and the resultant injuries sustained by the Plaintiff. **Quantum** 1. The Plaintiff pleaded and testified that he sustained a bruised right knee, bruising and swelling of the left knee, a bruised left elbow, back pain, and a blunt injury to the left shoulder and lower back accompanied by pain. The Plaintiff's evidence is supported by the **Police Surgeon Medical Report dated 1st April 2025** and the medical report prepared by **Dr. C. O. Okere**. Dr. Okere opined that the Plaintiff sustained bruises to the left elbow and right knee, as well as a blunt injury to the left shoulder and lower back, all associated with pain. 2. On examination, bruised wounds were noted on the left elbow and forearm and the right knee. The movements of the left shoulder joint were tender, while the lumbosacral region was tender on flexion. The doctor classified the injuries as **harm.** 3. The Plaintiff submitted that the injuries were soft-tissue injuries and proposed an award of **Kshs.400,000.00** as General Damages for pain, suffering and loss of amenities. 4. In support of the proposed award, the Plaintiff relied on **Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR**, where the Court considered a claim involving soft-tissue injuries and upheld an award of **Kshs.350,000.00** as General Damages. The Court observed that the award was fair, taking into account the inflationary trends affecting the economy. 5. The Plaintiff also relied on **Onchoka v Mwangi [2023] KEHC 18505 (KLR)**. In that case, the Respondent sustained soft-tissue injuries to the chest, back and abdomen, together with pain and swelling of the right ankle. The trial Court awarded **Kshs.350,000.00** as General Damages. On appeal, the High Court upheld the award, finding that it was not excessive in view of the injuries sustained. 6. In **Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR**, the third Plaintiff sustained multiple soft-tissue injuries, including injury to the left elbow joint and injuries to both ankles, and was awarded **Kshs.350,000.00** as General Damages. The case has subsequently been relied upon by the High Court in assessing compensation for comparable soft-tissue injuries. 7. Similarly, in **Francis Ochieng & another v Alice Kajimba [2015] eKLR**, the High Court reduced an award of Kshs.500,000 to **Kshs.350,000** for multiple soft-tissue injuries. The decision was considered alongside the authorities in **Onchoka v Mwangi.** 8. I have considered the foregoing authorities and the submissions by the Plaintiff. The assessment of general damages is discretionary, and the Court must endeavour to ensure that comparable injuries attract comparable awards, while at the same time taking into account the particular circumstances of each case and the passage of time. 9. In the present case, the Plaintiff sustained soft-tissue injuries involving the knees, left elbow, left shoulder and lower back. There is medical evidence of tenderness and pain. However, there is no evidence of fractures, surgical intervention, permanent incapacity or permanent disability. The injuries were classified as **harm** and the medical evidence does not disclose any serious residual complications. 10. I have also considered the more recent decision in **Nduruhu & another v Maina [2025] KEHC 8895 (KLR)**, where the High Court upheld an award of **Kshs.350,000.00** for soft-tissue injuries, noting the earlier authority of **Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi*.*** This provides further support for an award within the region of **Kshs.350,000.00** for injuries of this nature. 11. Taking into account the nature and extent of the injuries proved, the medical evidence, the comparable authorities and the passage of time, I find that the sum of **Kshs.350,000**.**00** would constitute fair and reasonable compensation for pain, suffering and loss of amenities. 12. I therefore decline the Plaintiff's proposal of Kshs.400,000.00 and award him **Kshs.350,000.00 as General Damages for pain, suffering and loss of amenities.** ### **Special Damages** 1. The Plaintiff pleaded and proved Special Damages in the sum of **Kshs.5,550.00**, comprising Kshs.550.00 for a copy of records and **Kshs.5,000.00** for the Medical Report. Special Damages must be specifically pleaded and strictly proved. Having considered the documentary evidence produced in support of the claim, I find the amount of **Kshs.5,550.00** proved and award the same. ### **Disposition** 1. Accordingly, Judgment is entered for the Plaintiff against the Defendant as follows: 2. **General damages ..................................................**Kshs.350,000.00 3. **Special Damages** .......................................................Kshs.5,550.00 **Total............................................................................. Kshs.355,550.00** 1. The Plaintiff shall have the **costs of the suit and interest on the general damages from the date of Judgment until payment in full, and interest on the special damages from the date of filing suit until payment in full, at court rates.** 2. 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 Absence of Parties Court Assistant: Phoebe.