https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/165

Kariuki v John & another (Civil Suit E6018 of 2024) [2026] KEMC 165 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEMC 165 (KLR) Republic of Kenya In the Chief Magistrate's Court (Milimani Law Courts) Civil Suit E6018 of 2024 LA Mumassabba, PM June 24, 2026 Between Lynn Margaret Nyambura Kariuki Plaintiff and Paul Njenga John 1st Defendant Luther Kusyenya Wafula 2nd Defendant Judgment Introduction 1.The Plaintiff vide a Plaint dated 24th October ,2024 sought Judgment against the Defendants for:a.General Damages for pain, suffering and loss of amenitiesb.Special Damages as pleadedc.Costs of this suitd.Interest on (a) (b)(c)& (d)at court ratese.Any other relief that this Honourable Court may deem fit to grant 2.The claim arises from a road traffic accident alleged to have occurred on 29th June 2024 along Haile Selassie Avenue involving motor vehicle registration number KBN 251R, in which the Plaintiff was travelling as a passenger. The Plaintiff contends that the accident was caused by the negligence, recklessness, and careless driving of the 1st Defendant and/or his agent, resulting in bodily injuries and consequent loss and damage. 3.The Defendants filed a Defence denying liability and disputing the Plaintiff's allegations regarding ownership, control, and negligence in relation to motor vehicle KBN 251R. They put the Plaintiff to strict proof of the occurrence of the accident, the alleged injuries, and the special damages claimed. In the alternative, they pleaded contributory negligence on the part of the Plaintiff and denied the applicability of the doctrine of res ipsa loquitur. The Defendants further contended that the Plaint disclosed no reasonable cause of action and prayed for dismissal of the suit with costs. They indicated their intention to rely on documentary evidence including police records, medical and inspection reports, and to call the investigating officer, the driver, and a medical expert as witnesses at the trial. 4.The plaintiff testified as PW1and adopted her witness statement dated 24th October ,2024 as her evidence in chief Liability 5.I have considered the evidence adduced by PW1in this case. I have also carefully read the Plaintiffs Written Submissions dated 9th March ,2026. The only issues that this Court will determine are:a)Who is liable for the said accident and to what extent?.b)What is the Quantum of damages awardable?c)Who is liable to pay costs of this suit?. 6.On the issue of liability, the Plaintiffs pleaded and testified that the accident was caused by the driver of Motor Vehicle Registration Number KBN 251 R Toyota Hiace when the driver of the said motor vehicle hit a cab at a round about, thereby causing the accident 7.In light of the evidence on record the only reasonable conclusion is that the suit Motor Vehicle was owned by the 2nd Defendant and was being driven by the 1st Defendant on the material day. This evidence was not controverted. 8.This testimony was corroborated by the Police Abstract and the evidence of PW1. The Defendants were to blame for the accident. Accordingly, based on that evidence I find that the suit Motor Vehicle was being driven by the Defendant. 9.The Plaintiff pleaded and testified that the accident was caused by the 1st Defendant who carelessly and negligently drove Motor Vehicle Registration Number KBN 251 R causing the accident. 10.The doctrine of res ipsa loquitor Is applicable in this case. Justice Lenaola (as he then was) in the case of Esther Nduta Mwangi & Another -Vs- Hussein Dairy Transporters Limited Machakos HCCC No 46 of 2007, held that:“Although the Defendant denied the accident but pleaded in the alternative that the accident was as a result of negligence on the part of the deceased, the Defendant chose to call no evidence whatsoever, and that being the case the particulars of negligence on the part of the deceased were not proved and are mere allegations...The Plaintiff, on the other hand pleaded the doctrine of res ipsa loquitor and produced documents including Police Abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine of res ipsa loquitor was pleaded, the burden of proof was shifted to the Defendant to disprove the particulars of negligence attributed to him.” 11.Similarly, in Public Trustee -Vs -City Council of Nairobi [1965] EA 758, it was held that: “The maxim res ipsa loquitor applies only where the causes of the accident are unknown but the inference is very clear from the nature of the accident and the Defendant is therefore liable if he does not produce the evidence to counteract the inference. If the causes are sufficiently known, the case ceases to be one where the facts speak for themselves and the Court has to determine whether or not, from the known facts, negligence is to be inferred.” 12.In the circumstances, I find that the 1st Defendant was expected to drive safely on the road. He was negligent and was driving without due care and attention hence causing the accident. He was expected to drive prudently and be on the lookout, vigilant and observe all traffic rules while on the road.I find that the 1st Defendant should have avoided the accident at all costs which was foreseeable. He caused the same since he was driving at a high speed and was not in a position to control the Motor Vehicle when he caused the accident. 13.The next issue is whether the suit Motor Vehicle was being driven by the 1st Defendant as an agent of the 2nd Defendant . The testimony of the Plaintiff that the said Motor Vehicle was being driven by the 1st Defendant was not controverted. On whether it was being driven by her as an Agent for the 2nd Defendant , Chesoni, Ag. JA (as he then was) in Mwona Ndoo -Vs- Kakuzi Ltd. (1982-1988) 1 KAR 523 held: “It was not established that the employee was on a frolic of his own since there was no evidence as to what he was doing on that road and how far that road was from the estate. Without that evidence the reasonable presumption is that he was on his master’s business.” 14.Similarly, in Kenya Bus Services Limited -Vs- Humphrey [2003] KLR 665; [2003] 2 EA 519 the Court of Appeal held that:“...where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible. This presumption is made stronger by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was being driven for the joint benefit of the owner and the driver.” 15.In the premises, I find that the 1st Defendant was driving the suit Motor Vehicle as a servant or Agent of the 2nd Defendant hence the 2nd Defendant is vicariously liable. The Plaintiff's evidence was uncontroverted. 16.The 1st Defendant should have avoided the accident at all costs which was foreseeable. He caused the same since he was driving at a high speed and was not in a position to control the Motor Vehicle when he caused the accident . 17.I therefore find the Defendants 100% liable for the accident. Quantum 18.The Plaintiff pleaded and testified that he sustained blunt soft tissue injuries on the right side of the chest and deep cut wounds on the right leg. The treatment notes from Mbagathi Hospital ,P3 Form and the medical report by Dr.W.M.Wokabi dated 25th September, 2024 supports the Plaintiff's evidence on the injury he sustained. 19.I have considered the evidence, the Medical Report and Pleadings herein. I am satisfied that the Plaintiff sustained the aforesaid injuries. 20.The Counsel for the Plaintiff submitted that the Plaintiff should be awarded Kshs.350,000/= as General Damages. According to the Plaintiff , the law is settled that compensation in personal injury claims is intended not to enrich the victim but to restore them, as far as money can, to the position they were in before the accident. The Court of Appeal in Simon Taveta -Vs- Mercy Mutitu Njeru [2014] eKLR reaffirmed that: “Comparable injuries should attract comparable awards to ensure consistency andfairness in compensation. In Kemboi & another v Khasoha [2026] KEHC 2329 (KLR), the High Court upheld a substantial award of Kshs. 500,000/= for purely soft tissue injuries including blunt chest injury and degloving injury on the left foot. The Court observed that soft tissue injuries, though sometimes overlooked, warrant adequate redress and must be assessed against current economic realities and inflationary trends. The Plaintiff also relies on the decision in Charles Gichuki -Vs-Emily Kawira Mbuba & Another [2018]KEHC 1635 (KLR), where the Court awarded Kshs. 300,000/= for blunt injuries involving the right side of the face, shoulders, chest and left thigh. The Plaintiff submits that the injuries in that case are comparable to the injuries sustained by the Plaintiff herein. Considering that the said decision was delivered in 2018, the Plaintiff submits that a higher award is justified in light of inflation and the passage of time. Similarly, in Onyango & Another -Vs- Nyaikamba (Civil Appeal E1095 of 2023) [2025]KEHC 6154 (KLR), the High Court upheld an award of Kshs. 350,000/= for soft tissue injuries to the face, chest, and limbs, observing that the award was consistent with prevailing judicial trends and proportionate to the pain and suffering endured. 21.The penultimate issue is whether the Plaintiff is entitled to damages and if so, what is the quantum. That the Plaintiff sustained injuries is not in doubt. 22.I have considered the cited authorities, the age of the same, inflation and all the relevant factors. The purpose of damages is not to punish the Defendant but to compensate the Plaintiff. 23.In my view, the injuries sustained by the Plaintiff in the decisions he has referred me to are more severe than those sustained by the Plaintiff herein. 24.I now proceed to analyse the following decisions, while appreciating that no two injuries can be exactly the same. I now proceed to analyse the following decisions, while appreciating that no two injuries can be exactly the same. George Kinyanjui T/A Climax Coaches &Anor -Vs- Hussein Mahad Kuyale [2016]eKLR where the High Court reviewed downwards an award of Kshs.650,000/= to Kshs.109,890/= for soft tissue injuries. Purity Wambui Muriithi -Vs- Highlands Mineral Water Company Ltd [2015]eKLR the Court of Appeal revised downwards an award by the High Court of Kshs.700,000/= to Kshs.150,000/= for injuries to the left elbow, pelvic region, lower back and left knee. Dickson Ndungu Kirembe -Vs- Theresai Atieno & 4 Others [2014]eKLR the High Court reviewed downwards an award of Kshs.255,000/= to Kshs.127,500/= for soft tissue injuries which produced no complications Channan Agricultural Contractors Ltd -Vs- Fred Barasa Mutayo [2013]eKLR the High Court reviewed downwards an award of Kshs.250,000.00 to Kshs.150,000.00 for moderate soft tissue injuries that were expected to heal in eight months’ time. 25.The award of Kshs.300,000.00 proposed by the Plaintiff is therefore excessive. Comparing the above cited cases, passage of time and inflation, I find that an award of Kshs.150,000.00 would suffice. Special Damages 26.Special Damages must specifically be pleaded and proved. The same has been pleaded at Kshs.6,700.00 but only Kshs.4,700.00 has proved by way of receipts and I proceed to award the same . Conclusion 26.Liability Defendants 100% liable for the accident 27.The Plaintiff has proved his case against the Defendants on a balance of probability and I proceed to enter Judgment for the Plaintiff against the Defendants jointly and severally from the date of filing suit with costs and interests as follows:General Damages.............................Kshs.150,000.00Special Damages.............................Kshs 4,700.00Total ......................................Kshs.154,700.00(Kenya Shillings one hundred and fifty four thousand, seven hundred )30 Days Right of Appeal. JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 24TH DAY OF JUNE ,2026L.A. MUMASSABBAPRINCIPAL MAGISTRATEIn the presence of :Mr.Mashet for the PlaintiffMr.Ndirangu for the DefendantCourt Assistant: Phoebe.