Mnani Mwameri Chitsala v Royal Liner Express Limited

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MARIAKANI** **CIVIL SUIT NO.E208 OF 2025** **MNANI MWAMERI CHITSALA....................PLAINTIFF** **=VERSUS=** **ROYAL LINER EXPRESS LIMITED ………………………...DEFENDANT** **JUDGMENT** **Background of the matter** 1. The plaintiff’s negligence claim against the defendant was lodged vide Plaint dated **7/11/2025** filed through Otieno Otwere & Associates filed **on 1/12/2025.** Prayers: sought General Damages for pain suffering and loss of amenities; Special damages pleaded under Paragraph 6 of the plaint: Kshs. 2,000/= medical report; medical expenses Kshs. 700/= ; copy of records Kshs. 550/= total Kshs. 3, 250/=; Costs of suit and interest at court rates and any other relief as court deems just. 2. Defendant ***Royal Liner Express Limited*** is sued as the REgistred / beneficial owner of motor vehicle **KBQ 008C Scania** was at 29/5/2025 owned by seeking relief against the said defendant on grounds that plaintiff was unlawfully injured due to negligence of the driver agent servant of the defendant when on 25/5/2025 the plaintiff’s finger was smashed/hit by the door of the said bus as he was alighting from the said bus at Samburu stage on 25/5/2025 about 7.30pm. Paragraphs 3 and 4 of the plaint. Particulars of negligence are set out under paragraph 4 and a to j) which are summed up that defendant;s driver servant was reckless and negligent in the manner he drove off too fast when the plaintiff was alighting from the bus failing to stop and driving offf too fast without due care and attention to his passenger and the plaintiff’s right finger was smashed by/hit by the door of the bus as the driver recklessly drove off. particulars of negligence of the defendant, authorised driver, servant and or agent…plaintiff was severely injured and he holds the defendant liable vicariously for the negligent acts of its authorized driver/agent. 3. **Injuries pleaded: paragraph 6 (I) pleaded under (a-c): *Deep wound cut on 2nd index finger of right hand; fracture of 2nd distal phalange bone right finger; brunt (sic) object injury to the right hip.*** 4. On 18/3/2026 interlocutory judgment was entered on liability for the accident upon request by the plaintiff due to the defendant's default in appearance and defence. 5. Trial: Matter proceeded on 10. 6.2026. Mr. Otwere present for plaintiff. 1 witness testified plaintiff **MNANI MWAMERI CHITSALA**, a resident of Samburu Kinango. He adopted his Statement dated 7/11/2025 and bundle of documents dated 7/11/2025 as *exhibits 1 to 9*, and additional documents in bundle dated 16/2/2026 as exhibits 10 and 11. (Item 4 a and b in the initial list and the receipt in the 2nd bundle be received. The documents in bundle of 16/2/2026 be received as exhibits: *medical report by Dr. Adede and the receipt* ***Exhibit 4a and 4b.*** PW 1 was injured while alighting from mv no. his right hand finger when the door shut suddenly as plaintiff was alighting; driver drove off before plaintiff had alight. Plaintiff blamed the driver for negligence, and he thus sued the owner of the vehicle. 6. **Plaintiff closed case on 10/6/2026 and filed closing submissions. ……..**Plaintiff filed **closing submissions** dated 25/6/2026 and the matter was on 15/7/2026 reserved for judgment. 7. **In the submissions in E208 OF 2025:** On quantum the plaintiff proposed in his **submissions dated 25/6/2026.** Plaintiff submits on general damages of **Kshs.700, 000/=** as reasonable compensation. **Plaintiff submits** relying on the medical report by Dr. Adede produced as **exhibit 4a that he has proved** he sustained injuries sustained as pleaded. 8. The plaintiff has referred to several cases in the Paragraph 7 plaint (Demand & Notice: that despite making formal demand and serving notice of intention to sue, upon the defendant, the defendant has failed or neglected to compensate the plaintiff. Plaintiff suffered loss and continues to suffer great pain as a result of the accident. He therefore seeks Prayers/ Reliefs Sought as pleaded(a) General damages; (b) Special damages; Costs of and incidentals to this suit plus interest at court rates. 9. Prayer b. Special damages pleaded at Paragraph 6 of the plaint: K*shs. 2,000/= medical report; medical expenses Kshs. 700/= ; copy of records Kshs. 550/= total* ***Kshs. 3, 250/=.*** *Have been proved through exhibits 4b receipt from Dr. Adede; bundle of receipts produced as* ***exhibit 5:*** *receipt from Tsunza medical care Kshs. 700/= ; receipt from NTSA for copy of records Kshs. 550/=* 10. The court awards the plaintiff special damages Kshs. ***Kshs. 3, 250/=. Pleaded and proved.*** The award shall earn interest at court rates from the date of suit **1/12/2025** until paid in full. 11. Judgment is entered in favour of the plaintiff against the defendant for the awards above stated. 12. The court awards the Plaintiff costs of suit with interest at court. Defendants shall bear plaintiff’s costs of suit. 13. **Analysis and findings:** The court has considered the evidence tendered by the plaintiff and the plaintiff’s submissions. 14. On question of occurrence of the accident, and liability for the causing the said accident,as was held in case **North End Trading Company Limited carrying on business under registered name Kenya Refuse Handlers Limited= Vs =The City Council of Nairobi (2019) eKLR, a** party that fails to defend suit and adduce evidence in support of its pleaded case renders the other party's evidence as one the Court has no basis to disbelieve.The words of Justice Alnashir Visram Uneek Electrical Co. Ltd Civ appeal 676/2002 precisely addresses that aspect. Judge Visram ‘’………the defence did not provide any evidence to the contrary. *……………Here the court had no choice. The only evidence before it was that of the respondent (plaintiff), and the court had no reason to disbelieve his testimony.’’*. 15. **W**ith a default Interlocutory Judgment in favour of the plaintiff, the **question of liability for the accident is settled as t**he defendant failed to defend the suit despite due service. This court finds the plaintiff’s evidence is uncontroverted, and finds that on 25/5/2025. PW 1 was injured while alighting from the Scania bus registration no **KBQ 008C Scania.** Plaintiff’s right hand finger was smashed when the door shut suddenly as plaintiff was alighting. His testimony that the driver of the bus drove off suddenly before plaintiff had alighted, causing the bus door to hit his right index (2nd finger) is uncontroverted. This court is satisfied that the driver of the bus was negligent, and plaintiff suffered injuries as a result. The Search from NTSA ***exhibit 8*** shows the bus registration no. **KBQ 008C Scania** was at 29/5/2025 owned by ***Royal Liner Express Limited.*** The defendant in this case. and he thus sued the owner of the vehicle. 16. The defendant as owner of the said vehicle is to blame for the accident as owner of the vehicle and vicariously liable. The information in the **police abstract exhibit 7** shows vehicle registration no. **KBQ 008C Scania** owned by ***Royal Liner Express Limited,*** insured by Directline Assurance ltd was blamed for the the accident. The plaintiff Mnani Mwameri, a passenger is indicated as person injured: Nature of injury harm. 17. The police abstract is in reference to OB 8/25/05/2025 shows a report was made at Samburu Traffic base. This court thus confirms the judgment on liability. 18. Only **the quantum of damages** is thus for determination here. The considerations in **assessing damages** are the nature of injuries sustained; awards made in comparable cases such that awards made should be reasonable within the ranges of awards made by the superior courts in comparable cases. The cost of inflation must be factored in where older awards are considered. 19. whether or not injuries pleaded have been proved; On the nature of injuries: *in the plaint* **Injuries pleaded: paragraph 6 (I) pleaded under (a-c): *Deep wound cut on 2nd index finger of right hand; fracture of 2nd distal phalange bone right finger; brunt (sic) object injury to the right hip.*** 20. The injuries are confirmed by both the **p3 form exhibit ……and medical report Dr. Adede exhibit 4a.** The injuries as confirmed by Dr. Adede in exhibit 4a are: report by **Dr. Ajoni Adede** upon examining Mnani *nani Mwameri Chitsala the doctor concluded that he was injured:* ***fractured the right finger bone index distal phalanx; right 2nd finger deformity; right 2nd finger stiffness;******defective right hand power and precision*** grips, which he assessed as ***3% permanent partial disability.*** He opined that the fracture sites remain weak points for life even if bones unite; exposing plaintiff to accelerated bone and joint wear and tear; He confirmed the fracture from the Xray for 25/5/2025, and *the p3 form as well as treatment notes confirm the injuries.* 21. This court is satisfied that as assessed by Dr. Adede the plaintiff suffered injuries as pleaded which have left him *finger deformity on the right 2nd finger; stiffness on 2nd finger and a defective right hand power and precision grips; fractures accelerate bone and joint wear and tear; fracture sites remain weak points for life even if bones unite.* 22. The Injuries in this case were classified in the **p3 form as Harm.** Exhibit 6 from Samburu Sub county hospital dated 27/5/2025. 23. Proposed award by plaintiff Kshs. 700,000/= is considered. The availed decision in **Kalei & another Vs Mooke & another Civil Appeal E003 of 2023 (2026) KEHC 4259 KLR (9 February 2026) Judgment Neutral Citation (2026 KEHC 4259 (KLR) has been considered.** 24. **In that case Kalei & another Vs Mooke & another.** 25. **appeal, the** decision was made 9/2/2026 by Lady Justice Mumbua T. Matheka. It is a very recent decision. The issue for determination before the judge in the said appeal was whether or not *Kshs. 400,000/= (paragraph 5 of the judgment) general damages for pain and suffering was too high to warrant the court’s interference. The injuries in the cases were blunt injuries to the anterior chest wall; blunt injuries to the right ankle joint with swelling of the right ankle joint.* 26. Judge Matheka was satisfied from the medical reports availed as stated in paragraphs 28 -32 of the decision that the medical reports showed that plaintiff had suffered *severe soft tissues injuries* and while h*e had healed without any scars by the time the final report was prepared*; in assessing compensation the *period prior to recovery when the plaintiff* was limping *due to pain and had to use an additional crutch to walk as his functioning leg was the leg injured could be ignored.* Paragraph 39 and 40 of the decision. The judge found that the trial court had properly assessed damages taking into account not only the nature of injuries: *soft tissue injuries but also the complications that the said soft injuries caused h*im. 27. The ju***dge upheld the lower court award Kshs. 400,000/=*** finding that the award had not been demonstrated to be too high in the circumstances to warrant the award being disturbed. The *appeal was dismissed with costs to the 1st respondent plaintiff.* 28. The injuries in that case were *not as severe in nature and extent as those involved* in the case now at hand. 29. This court has considered, case of **Charles Wangicho** **Ndungu & another Vs Gabriel Wahinya Munene (2022) KEHC 3023 KLR.** The decision by Lady Justice G.W. Ngenye, relatively recent decision made on 21/4/2022. In that case **Charles Wangicho** the injuries proved as set out in paragraph 24 of the judgment were that ‘’*grievous harm injuries were sustained and that the injuries would continue to be aggravated due to the advanced age of the respondent in that case. There was an apparent deformity on the left wrist with protruding distal radius bone and that there* ***was*** *weakened grip of the left hand (*Paragraph 25).The judge found the report on soft tissue injuries relied upon by the appellant had not been adduced in court. It showed less severe injuries: *cut wound on the right side forehead and bruises on the face; bruises on both legs and mouth injury with pain to the upper central incisor teeth.* The judge awarded **Kshs. 700,000/=** on appeal setting aside an award by the trial court of **Kshs. 1,000,000/=.** 30. In the case now before court Mnani plaintiff has proved to this court that he was injured on 25/5/2025 CHECK; the injuries. The injuries are confirmed by both the p3 form exhibit ……and medical report Dr. Adede exhibit 4a. 31. The injuries as confirmed by Dr. Adede in exhibit 4a are: report by **Dr. Ajoni Adede** upon examining Mnani *nani Mwameri Chitsala the doctor concluded that he was injured:* ***fractured the right finger bone index distal phalanx; right 2nd finger deformity; right 2nd finger stiffness;******defective right hand power and precision*** grips, which he assessed as 3% permanent partial disability. He opined that the fracture sites remain weak points for life even if bones unite; exposing plaintiff to accelerated bone and joint wear and tear. He confirmed the fracture from the Xray for 25/5/2025, and *the p3 form as well as treatment notes confirm the injuries.* 32. This court is satisfied that as assessed by Dr. Adede the plaintiff suffered injuries as pleaded which have left him *finger deformity on the right 2nd finger; stiffness on 2nd finger and a defective right hand power and precision grips; fractures accelerate bone and joint wear and tear; fracture sites remain weak points for life even if bones unite.* 33. *General damages: In the circumstance the court finds the award proposed by the plaintiff is* ***reasonable.*** A ***general damages award*** for pain, suffering and loss of amenities is assessed at Kshs. ***Kshs. 700,000/=*** *as prayed, in favour of plaintiff against the defendant. The* general damages award to earn interest at court rates from the date of this Judgment until paid in full. 34. Prayer b. Special damages pleaded at Paragraph 6 of the plaint: K*shs. 2,000/= medical report; medical expenses Kshs. 700/= ; copy of records Kshs. 550/= total* ***Kshs. 3, 250/=.*** *Have been proved through exhibits 4b receipt from Dr. Adede; bundle of receipts produced as* ***exhibit 5:*** *receipt from Tsunza medical care Kshs. 700/= ; receipt from NTSA for copy of records Kshs. 550/=* 35. The court awards the plaintiff special damages Kshs. ***Kshs. 3, 250/=. Pleaded and proved.*** The award shall earn interest at court rates from the date of suit **1/12/2025** until paid in full. 36. Judgment is entered in favour of the plaintiff against the defendant for the awards above stated. 37. **AWARDS in summary** Judgment is entered in favour of the plaintiff against the defendant for the awards above stated: ***Kshs. 700,000/= general damages for pain suffering and loss of amenities; Kshs. 3,250/= special damages with interest at court rates from date judgment and date of suit 1/12/2025 respectively.* Costs of suit:** Plaintiff issued demand letter to the defendant. 38. Cost of suit follows the event. The court awards the Plaintiff costs of suit against the defendant. 39. Appeal to Malindi High Court. Right of appeal as prescribed. **JUDGMENT DATED, SIGNED & DELIVERED THIS ………9th..….DAY OF September 2026 T. N. SINKIYIAN, Principal Magistrate** **IN PRESENCE OF:** **For the plaintiff: Mr. Otwere: present** Otieno Otwere & Associates Advocates **Defendant:……absent.** **Court Assistant: Zulekha** **T. N. SINKIYIAN, Principal Magistrate**