https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/790

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E992 OF 2025** **LOREEN ANYANGO OCHIENG..................................................................PLAINTIFF** **VERSUS** **SAMEER SAIDI........................................................................................DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff, instituted this suit against the Defendant, vide a Plaint dated 24th May 2025 and filed on 1st July 2025, seeking compensation for injuries allegedly sustained in a road traffic accident which occurred on 23rd December 2024. 2. The Plaintiff pleaded that at all material times the Defendant was the beneficial, registered and/or insured owner of motor vehicle registration number KDS 828C, Toyota Land Cruiser, which was being driven by the Defendant, his authorised driver, agent, employee and/or servant. The NTSA copy of records subsequently produced identifies Sameer Saidi as the registered owner of KDS 828C. 3. The Plaintiff's case is that on the material day she was lawfully and carefully walking along a pedestrian pathway on a feeder road along Ratna–Kongowea Road, heading towards the main road, when KDS 828C, which was travelling in the same direction, veered from the road onto the pedestrian pathway and struck her from behind. She sustained bodily injuries as a consequence. 4. The Defendant did not defend the suit. The record, as confirmed by the Plaintiff's written submissions, shows that interlocutory judgment was entered against the Defendant on 11th September 2025, and the same has neither been set aside nor varied. 5. The matter thereafter proceeded to formal proof. The Plaintiff adopted her witness statement filed on 1st July 2025 as her evidence and produced the documents contained in her list of documents as PExhibits 1–10. 6. The Plaintiff subsequently filed written submissions dated 3rd July 2026 in which she urged the Court to find the Defendant 100% liable and to award her KShs. 350,000 as general damages, KShs. 2,550 as special damages, costs and interest. **Plaintiff's case** 1. In her witness statement, the Plaintiff reiterated the circumstances pleaded in the Plaint. She stated that she was walking along the pedestrian pathway when the Defendant's vehicle veered onto the pathway and hit her from behind. 2. Following the accident, the Plaintiff testified that she was rushed to Premier Hospital, where she received treatment. She thereafter obtained a P3 form from Coast General Teaching and Referral Hospital. 3. The Plaintiff complained of and pleaded the following injuries: Blunt trauma to the lower back; Blunt trauma to both knees; Bruises/abrasions on both feet; and Bruise/abrasion on the right elbow. 4. The injuries were supported by treatment records from Premier Hospital, the P3 form and a medical report prepared by Dr. Darius Wambua Kiema of My Clinic. The medical report records the same injuries and describes them as soft tissue injuries. The doctor was of the opinion that the injuries were expected to heal with no permanent disability or incapacity anticipated. 5. The Plaintiff further produced a police abstract, demand correspondence, statutory notice to the insurer, the NTSA motor vehicle search and receipts relating to the medical report and search expenses. **Issues for determination** 1. Having considered the pleadings, evidence and written submissions, the issues arising for determination are: 2. Whether liability has been established against the Defendant; 3. What amount, if any, should be awarded as general damages for pain, suffering and loss of amenities; 4. Whether special damages have been proved; and 5. Who should bear the costs of the suit. Liability 1. The Plaintiff pleaded that the accident was occasioned by the negligence, recklessness and/or carelessness of the Defendant or his authorised driver. The particulars pleaded included driving at an excessive speed, failure to keep a proper lookout, failure to have due regard to other road users, failure to stop or swerve to avoid the accident, failure to keep a proper lane and driving dangerously in the circumstances. 2. The Plaintiff also invoked the doctrine of res ipsa loquitur. More importantly, interlocutory judgment was entered against the Defendant on 11th September 2025. It remains on record and has not been set aside. 3. The Plaintiff referred the Court to Patrick Mwenda Bucha v Raphael Mainka Ole Seya & Another, HCCC No. 1091 of 2002 [2007] eKLR, for the proposition that where interlocutory judgment has been regularly entered, liability against the defaulting defendant stands established. 4. In the present matter, no defence was filed placing the Plaintiff's account of the accident in controversy. Neither was any evidence led suggesting contributory negligence on her part. 5. The Plaintiff's evidence is that she was walking on a designated pedestrian pathway when the Defendant's vehicle left the road and struck her from behind. That evidence is uncontroverted. I therefore find the Defendant 100% liable for the accident. General damages 1. The object of an award of general damages is, as far as money can reasonably do so, to compensate a claimant for the pain, suffering and loss of amenities occasioned by the injuries sustained. The Court must endeavour to achieve reasonable consistency with comparable awards while appreciating that no two injuries or claimants are entirely identical. 2. The Plaintiff sustained: Blunt trauma to the lower back; Blunt trauma to both knees; Bruises/abrasions to both feet; and Bruise/abrasion to the right elbow. There was no fracture, dislocation, head injury or internal organ injury established. The medical evidence categorises the injuries as soft tissue injuries. The medical report further records that no permanent disability or incapacity was anticipated. This is a significant consideration in assessing quantum. The Plaintiff proposes an award of KShs. 350,000. 3. Counsel relied firstly on Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi, HCCC No. 320 of 1998. In that matter, the 1st plaintiff, who suffered injuries to the left ankle, legs and chest, was awarded KShs. 300,000, while the 3rd plaintiff, who sustained multiple soft tissue injuries, an injury to the left elbow joint and injuries to both ankles, was awarded KShs. 350,000. 4. Counsel also cited Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021] KEELRC 2012 (KLR). The claimant therein sustained a blunt injury to the chest and bruises to the lower abdomen, right hip joint, thigh and knee. The trial court awarded KShs. 350,000 as general damages and the High Court upheld that award. 5. In affirming the award in Poa Link, the Court considered that the injuries were multiple soft tissue injuries from which the claimant had recovered without incapacitation or complications. The Court also considered previous awards ranging from KShs. 60,000 to KShs. 350,000 and concluded that KShs. 350,000 represented fair compensation in that case. 6. The Plaintiff further relied on Charles Gichuki v Emily Kawira Mbuba & Another [2018] eKLR. There, the claimant suffered blunt injuries to the right side of the face, shoulders, chest and left thigh. On appeal, the High Court reduced an award of KShs. 400,000 to KShs. 300,000. 7. In Charles Gichuki, the High Court considered a range of awards for soft tissue injuries, including awards of KShs. 90,000 and KShs. 100,000, before ultimately concluding that KShs. 300,000 was reasonable and commensurate with the injuries before it. 8. I have considered those authorities alongside the nature of the Plaintiff's injuries. Although the injuries affected several areas of the body, they remained uncomplicated soft tissue injuries. There was no permanent incapacity. Equally, the Court must take into account the passage of time since some of the comparable awards relied upon were made and the general erosion in the value of money. 9. The Court must nevertheless guard against merely adopting a figure proposed in submissions without relating it to the precise injuries proved. Awards must remain proportionate to the actual harm sustained. 10. In my view, an award of KShs. 300,000 as general damages for pain, suffering and loss of amenities would fairly and reasonably compensate the Plaintiff for the injuries proved. I therefore award the Plaintiff KShs. 300,000 under this head. Special damages 1. The Plaintiff pleaded special damages as follows: 2. Medical report – KShs. 2,000; 3. Motor vehicle search fees – KShs. 550; Total – KShs. 2,550. 1. It is settled that special damages must not merely be pleaded but must also be strictly proved. 2. The Plaintiff produced documentation supporting the medical report fee of KShs. 2,000. The My Clinic invoice reflects a charge of KShs. 2,000 for the medical examination report. 3. The Plaintiff also produced the NTSA receipt dated 12th April 2025, showing a copy of records logbook fee of KShs. 500 and an eCitizen access fee of KShs. 50, giving a total of KShs. 550. 4. The Plaintiff's authority of Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo similarly reiterates the requirement that a claimant seeking special damages must specifically plead and prove the expenditure by receipts. In the present matter, the pleaded special damages correspond with the documentary evidence produced. I therefore award the Plaintiff KShs. 2,550 as special damages. Documentary discrepancies 1. I have noted certain discrepancies in the documents and submissions. The Plaintiff's witness statement refers to the police abstract as having been dated 21st March 2024, yet the accident pleaded and testified to occurred on 23rd December 2024. This is plainly chronologically inconsistent. 2. I have also noted that whereas the medical report relied upon is dated 11th March 2025, the Plaintiff's submissions under the heading of special damages refer to the report as dated 21st March 2025. Elsewhere in the same submissions, counsel correctly identifies it as dated 11th March 2025. 3. These discrepancies do not, however, affect the substance of the Plaintiff's claim. The accident date is consistently pleaded as 23rd December 2024; the treatment and medical evidence relates to the injuries arising from that accident; and the medical report actually produced is identifiable and supports the injuries pleaded. I therefore regard the inconsistent references to dates as errors which do not displace the substantive and uncontroverted evidence before the Court. Costs and interest 1. Costs ordinarily follow the event. The Plaintiff has succeeded in her claim and there is no reason to depart from the general rule. The Plaintiff shall therefore have the costs of the suit. 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 suit until payment in full. Final orders 1. In the result, judgment is hereby entered in favour of the Plaintiff against the Defendant as follows: 2. Liability- 100% against the Defendant 3. General damages for pain, suffering and loss of amenities- KShs. 300,000 4. Special damages- KShs. 2,550 Total- KShs. 302,550 1. The Plaintiff is additionally awarded costs of the suit. 2. Interest on general damages shall run at court rates from the date of judgment until payment in full, while interest on special damages shall run 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 27TH AUGUST 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**