[2023] KEMC 219 (KLR)
The court found that liability had already been determined by interlocutory judgment entered against the defendants due to their failure to appear or defend the suit. The only issue for determination was the quantum of damages. The plaintiff proved special damages of KES 4,440 by production of receipts. For general...
Source-derived case information.
- Citation
- [2023] KEMC 219 (KLR)
- Parties
- Plaintiff: Kilunda Maundu; Defendant: Frederick Ouru Mageto; Defendant: Joseph Omaiko Moturi
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 6407 of 2019
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- JP Aduke
- Legal Topics
- Road Traffic Accidents, Negligence, Personal Injury, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kilunda Maundu
Plaintiff
Frederick Ouru Mageto
Defendant
Joseph Omaiko Moturi
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendants were liable in negligence for the road traffic accident causing injury to the plaintiff.
- 2 Whether the plaintiff is entitled to general and special damages as claimed.
Ratio Decidendi
The court found that liability had already been determined by interlocutory judgment entered against the defendants due to their failure to appear or defend the suit. The only issue for determination was the quantum of damages. The plaintiff proved special damages of KES 4,440 by production of receipts. For general damages, the court considered the nature of the injuries (fracture of the wrist), relevant case law, inflation, and the cost of living, and awarded KES 300,000. The court thus entered judgment for the plaintiff for both general and special damages, costs, and interest at court rates.
Court Disposition
Judgment for the plaintiff.
Orders
- General damages of KES 300,000 awarded to the plaintiff.
- Special damages of KES 4,440 awarded to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
Maundu v Mageto & another (Civil Suit 6407 of 2019) [2023] KEMC 219 (KLR) (12 June 2023) (Judgment)
Neutral citation: [2023] KEMC 219 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Civil Suit 6407 of 2019
JP Aduke, SRM
June 12, 2023
Between
Kilunda Maundu
Plaintiff
and
Frederick Ouru Mageto
1st Defendant
Joseph Omaiko Moturi
2nd Defendant
Judgment
1. The Plaintiff filed this suit against the defendants after he sustained injuries following a road traffic accident on 06/03/2019 at a road in Reuben Slums in Nairobi. In the plaint on record, the plaintiff avers he was a lawful pedestrian living his best life when the Defendant and his servant/agent/authorized driver of motor cycle registration number KMER 723R negligently and carelessly drove the said motor cycle and caused it to hit the Plaintiff causing the Plaintiff to suffer injuries.
2. The Plaintiff blames the Defendants and their agents/authorized servants for causing the said accident. The Plaintiff further avers that the said accident was solely caused by the negligence of the Defendants.
3. The particulars of injuries sustained by the Plaintiff are captured in para 6 of the Plaint while the particulars of alleged negligence are captured in para 4 of the Plaint. The Plaintiff prays for general damages for pain and suffering, special damages, costs of the suit and interest at court rates.
4. Return of Service on Record shows that the defendants were served with the suit papers. Judgement in default of appearance was entered against the 1st and 2nd Defendant on 09th of January 2020. The formal proof hearing proceeded before Hon Omollo, who has since moved to the Small Claims Court. Parties filed written submissions.
5. The issue for determination before this court is one:
1. Quontum 6. With respect to Liability, I have seen an entry of the interlocutory judgement on file. This, in my view, settles the issue of liability.
7. The Plaintiff prays for General Damages, Special Damages, Costs of the Suit and any other relief. With respect to Special Damages, the Plaint prays for KES 4,440/- as captured in para 6 of the Plaint. I have seen receipts on record attesting to KES 4,440/-. It is settled principle that special damages must be pleaded and proved. I find that KES 4,440/- has been pleaded and proved and award the same.
8. With respect to general damages, I have considered all the submissions on record and the authorities annexed thereto. I have also considered all the exhibits on record. In particular, I have relied on the reasoning of the court in Kweri Peter & others vs Ann Wanjiku Maina [2017] eKLR where the court awarded general damages for comparable injuries. The plaintiff in this instance suffered a fracture of the wrist (radius) when the accident happened. Taking into account that no amount of damages can restore the Plaintiff to what he was prior to the said accident, the rate of inflation and cost of living, I hereby award KES 300,000/- as general damages.
9. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 300,000/-2. Special damages KES 4,440/-3. Costs of the suit.4. Interest on 1 and 3 above at court rates.
10. The Plaintiff shall have costs in this suit and interests at court rates from the date of this judgement until payment in full.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 12TH JUNE 2023 AT 10AM.In the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- ............(Name, Signature, Date)3. For the Defence: .......................(Name, Signature, Date)