https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/451

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MILIMANI** **MCC NO.E1495 OF 2026** **MOHAMED ABDI ......................................................................PLAINTIFF** **-VERSUS-** **LEONARD MAINGI KAMAU …….……………..………..… 1ST DEFENDANT** **PAUL KANYI MWANGI …………………………………..…2ND DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff filed a Plaint dated 9th July ,2024 seeking Judgment against the Defendants for: 2. **General damages** for pain, suffering, loss of amenities and loss of earning capacity. 3. **Future medical expenses** – Kshs. 250,000/= for removal of the metal plates and implants. 4. **Special damages** – Kshs. 1,646,455/=, being medical and related expenses. 5. **Costs of the suit.** 6. **Interest on the above amounts at court rates.** 7. **Any other or further relief** that the Court may deem just and expedient. 8. The Plaintiff avers that on or about the 24th day of June ,2025 along Voi Road /Kirinyaga road, the Plaintiff was lawfully using the road when the 2nd Defendant so negligently and recklessly drove, managed and /or controlled motor vehicle registration number KCD 057 A Isuzu mini bus that the same knocked down and /or violently hit the plaintiff 9. As a result, the Motor Vehicle Registration Number KCD 057 A hit two other motor vehicles KCV 109 A Isuzu minibus and KCT 711 Toyota Hiace 10. He blamed the 2nd Defendant for negligence and as a result the Plaintiff sustained injuries. 11. The Plaintiff attributes the accident to the negligence of the 2nd Defendant, for which he contends that the 1st Defendant is vicariously liable. He seeks damages for the injuries sustained, medical expenses and future medical treatment. 12. The Defendant was served but did not enter appearance. **Interlocutory Judgement** was entered on **24th June,2026** against the Defendants and the matter proceeded for Formal Proof hearing on 1st July,2026. **Evidence of the Plaintiff** 1. The Plaintiff ,Dr.Mohamed Abdi testified as PW1 and adopted his witness The Plaintiff gave dated 19th February ,2025 as his evidence in chief and List of Documents produced as **P Exhibit 1- 13]** 2. The Plaintiff states that on **24th June 2025**, he was lawfully walking along Voi Road/Kirinyaga Road when the 2nd Defendant, while driving motor vehicle registration number **KCD 057A Isuzu Minibus**, knocked him down. He stated that the vehicle was being driven at a high speed and without due care and attention, and that the accident was wholly attributable to the negligence of the 2nd Defendant. 3. The accident was reported to the police and recorded under OB No. 155/24/06/2025. Following the accident, the Plaintiff was admitted to hospital and underwent surgery during which metal plates and implants were inserted. He testified that he continued to experience pain and restricted movement and that his doctors had advised him that he would require a further surgical procedure to remove the metal plates and implants. 4. The Plaintiff stated that he sustained a segmental tibial shaft fracture, a medial malleolus fracture, injuries to the scalp, and severe pain and soft tissue injuries, which resulted in continuing discomfort. He further testified that the injuries restricted his mobility and affected his ability to work for a considerable period, resulting in loss of income. 5. The Plaintiff also claimed to have incurred medical and related expenses and anticipated further medical expenses for the removal of the metal plates and implants. He relied on the treatment records, medical documentation, police abstract and other documentary evidence in support of his claim. 6. On 1st July ,2026 I directed the Plaintiff to file Written Submissions . **Plaintiff’s Submissions dated 1st July ,2026** 1. The Plaintiff’s Written Submissions are dated 7th July 2026. On liability, the Plaintiff submitted that the accident was wholly caused by the negligence of the 2nd Defendant, who was driving Motor Vehicle Registration Number **KCD 057A**, which was owned by the 1st Defendant. 2. The Plaintiff relied on the NTSA records confirming the 1st Defendant as the registered owner of the motor vehicle and submitted that the 1st Defendant was vicariously liable for the negligent acts of the 2nd Defendant, who was acting as his driver, servant or agent. 3. The Plaintiff further relied on the principle that the registered owner of a motor vehicle is presumed to be its owner unless the contrary is proved. Reliance was placed on **Jane Wairimu Turana v Githae John Vickery & Equity Bank Ltd & Munene Don [2013] eKLR** on the principles of agency and vicarious liability. The Plaintiff therefore urged the Court to find the Defendants jointly and severally liable for the accident. 4. On the injuries sustained, the Plaintiff submitted that he suffered a **segmental fracture of the tibial shaft, fracture of the medial malleolus, scalp injuries, severe pain and soft-tissue injuries**, resulting in continuing discomfort and restricted mobility. He submitted that he underwent open reduction and internal fixation, including intramedullary nailing of the tibia and fixation of the medial malleolus. He further contended that he was left with surgical scars and would require future surgery for removal of the metal implants. It was therefore submitted that the injuries were serious and had significantly affected his mobility and quality of life. 5. On General Damages, the Plaintiff submitted that an award of between **Kshs.1,200,000/=** and **Kshs.1,500,000/=** would be fair and reasonable compensation for pain, suffering and loss of amenities. He relied on comparable authorities, including **Mburu & Another v Mwangi [2026] KEHC 5016 (KLR)** and **Mwangangi & another v Kagai [2023] KEHC 20627 (KLR)**, taking into account the nature and severity of the injuries, the surgical intervention undertaken, continuing pain, restricted mobility and the effect of inflation. 6. In respect of future medical expenses, the Plaintiff claimed Kshs.250,000/= for the anticipated removal of the metal plates and implants. He submitted that future medical expenses had been specifically pleaded and strictly proved through the medical evidence on record. Reliance was placed on **Mburu & Another v Mwangi (supra)** and **Investment & Another v Lomala [2023] KEHC 78 (KLR)** in support of the claim. 7. The Plaintiff further submitted that the injuries had adversely affected his earning capacity, particularly due to the continuing pain and restricted mobility. He contended that loss of earning capacity is distinct from loss of future earnings and may be awarded where injuries diminish a person’s ability to work and earn an income. He relied on **Mburu & Another v Mwangi (supra)** and other authorities in support of the claim. 8. With regard to special damages, the Plaintiff submitted that he had specifically pleaded and strictly proved special damages amounting to **Kshs.1,646,455.66** through the documentary and medical evidence produced before the Court. 9. In conclusion, the Plaintiff urged the Court to enter Judgment against the Defendants jointly and severally and award him the pleaded damages, together with costs of the suit and interest. **Liability** 1. I have considered the evidence adduced by PW1in this case. I have also carefully read the Plaintiffs Written Submissions dated 7th July ,2026. The only issues that this Court will determine are: 2. Who is liable for the said accident and to what extent? 3. What is the Quantum of damages awardable? 4. Who is liable to pay costs of this suit?. 5. On the issue of liability, the Plaintiffs pleaded and testified that the accident was caused by the driver of Motor Vehicle Registration Number KCD 057 A who negligently drove it and caused the accident. 6. In light of the evidence on record the only reasonable conclusion is that the suit Motor Vehicle was owned by the 1st Defendant and was being driven by the 2nd Defendant on the material day. This evidence was not controverted. 7. 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. 8. The Plaintiff pleaded and testified that the accident was caused by the 2nd Defendant who carelessly and negligently drove Motor Vehicle Registration Number KCD 057 A causing the accident. 9. 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.”** 10. 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.”** 11. In the circumstances, I find that the 2nd 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 2nd 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. 12. In light of the contents of the Certificate of Official Search produced herein, the only reasonable conclusion is that the suit Motor Vehicle was owned by the 1st Defendant. 13. The next issue is whether the suit Motor Vehicle was being driven by the 2nd Defendant as an agent of the 1st Defendant . The testimony of the Plaintiff that the said Motor Vehicle was being driven by the 2nd Defendant was not controverted. On whether it was being driven by her as an Agent for the 1st 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 2nd Defendant was driving the suit Motor Vehicle as a servant or Agent of the 1st Defendant hence the 1st Defendant is vicariously liable. The Plaintiff's evidence was uncontroverted. 16. The 2nd 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** 1. I have considered the pleadings, the evidence adduced by the Plaintiff, the medical reports produced in evidence and the submissions on quantum. The Plaintiff pleaded and testified that he sustained a segmental fracture of the tibial shaft, fracture of the medial malleolus, scalp injuries, severe pain and soft-tissue injuries and permanent discomfort. 2. The orthopaedic report from Aga Khan University Hospital, the Home Doctors Online Clinic records, the P3 Form and the medical report by Dr. Edward A. Jenner describe the accident as a high-energy pedestrian-vehicle trauma resulting in a segmental tibial fracture and medial malleolus fracture. 3. The injuries were surgically managed through intramedullary nailing of the tibia and internal fixation of the medial malleolus. The medical evidence further indicates that the Plaintiff's postoperative course was uncomplicated and that he was progressing appropriately on follow-up. 4. The Plaintiff proposed an award of between **Kshs.1,200,000/= and Kshs.1,500,000/=** for pain, suffering and loss of amenities. I have considered the authorities relied upon by the Plaintiff as well as other comparable decisions. 5. In **Brookside Dairy Limited v Peter Butata Wanjohi [2018] eKLR**, the injuries comprised a compound segmental fracture of the right tibia and fibula, fracture of the right medial malleolus, fracture of the left lateral malleolus and blood loss, together with physical and psychological pain. An award of **Kshs.563,416/=** was upheld. The injuries in that case were, in certain respects, more extensive than those sustained by the Plaintiff herein. 6. Similarly, in **Savanna International Ltd v Muka [2022] KEHC 675 (KLR)**, the High Court considered comparable cases involving fractures of the tibia/fibula and malleolus. The Court noted that in **Clement Gitau v GKK [2016] eKLR**, an award of **Kshs.600,000/=** for a fracture of the tibia/fibula and bruises to the neck was upheld on appeal. In the same decision, the Court ultimately considered **Kshs.400,000/=** appropriate for the injuries before it. 7. More recently, in **Ruso v Njiriri [2024] KEHC 11349 (KLR)**, the Plaintiff sustained, among other injuries, fractures of the tibia and fibula, a segmental fracture of the tibia and fractures of the malleoli, together with soft-tissue injuries. The High Court, taking into account the nature of the injuries, the medical evidence, prevailing awards and inflation, reduced the award of general damages from **Kshs.900,000/=** to **Kshs.700,000/=**. 8. The foregoing authorities demonstrate that the Court must consider the particular injuries, treatment undertaken and the extent of recovery, while striving for consistency with comparable awards. 9. In the present case, the Plaintiff sustained two significant fractures of the lower limb, one being a segmental fracture, and required operative intervention by way of intramedullary nailing and internal fixation. 10. I have also taken into account the scalp injuries, soft-tissue injuries, pain suffered and the period of recovery. On the other hand, the medical evidence shows that the Plaintiff had an uncomplicated postoperative course, was recovering well, had no current pain or implant-related complications and remained under outpatient orthopaedic supervision. No specific percentage of permanent incapacity has been established. 11. I have further considered the passage of time and the need to ensure that the award reflects the current value of money. While the authorities cited provide useful guidance, no two injuries are exactly alike. The award must therefore be fair and reasonable in the circumstances of this particular case. 12. Having considered the totality of the evidence, the nature and severity of the fractures, the surgical intervention undertaken, the pain and suffering endured, the period of recovery and the comparable authorities, I find that an award of **Kshs.1,200,000/=** is fair and reasonable compensation for pain, suffering and loss of amenities. 13. Accordingly, I award the Plaintiff **Kshs.1,200,000/=** as general damages for pain, suffering and loss of amenities. **Future Medical Expenses** 1. The Plaintiff submitted that he is entitled to **Kshs.250,000/=** as future medical expenses, being the estimated cost of removal of the metal implants inserted during surgery for the tibial and medial malleolus fractures. The claim was pleaded and the Plaintiff relied on the medical evidence confirming the surgical intervention and presence of the implants. 2. The applicable principle is settled that future medical expenses, though awarded under general damages, are in the nature of a special claim and must be specifically pleaded and proved. 3. In **Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR**, the Court of Appeal held that such expenses must be specifically pleaded and proved, while an approximate sum may be pleaded where the precise cost may vary. The same principle was reiterated in **Kenya Bus Services Ltd v Gituma (2004) 1 EA 91**. In **Mikua v Nthiga [2025] KEHC 12439 (KLR)**, the High Court similarly held that future medical expenses must be specifically pleaded and proved, although mathematical precision is not required. 4. The Medical Report confirms that the Plaintiff sustained a segmental fracture of the left tibia and medial malleolus fracture, treated by intramedullary nailing and open reduction and internal fixation. 5. However, the subsequent medical evidence shows that he is recovering well, with well-healed wounds, no current pain, no implant-related complications, and continued outpatient orthopaedic management. Significantly, the report does not recommend removal of the implants, further surgery, or any specific future procedure. The recommended physiotherapy, radiographs and orthopaedic reviews constitute ongoing post-operative management. 6. This case is distinguishable from **Mburu & Another v Kinge [2024] KEHC 1889 (KLR)**, where removal of an implant was specifically recommended by the doctor, its approximate cost established, and the claim consequently awarded. Similarly, in **Musembi v Kiptala & Another [2025] KEHC 10126 (KLR)**, the future operation was specifically pleaded and strictly proved. In contrast, **Kiriha v Matiama [2023] KEHC 3856 (KLR)** underscores that a claim for future medical expenses cannot succeed where the evidence does not sufficiently establish the necessity and cost of the proposed treatment. 7. In the present case, although the Plaintiff underwent significant surgical intervention, there is no expert recommendation for removal of the implants or any other specific future procedure. The claim of Kshs.250,000/= is therefore unsupported by the medical evidence and would amount to an award based on speculation. 8. I accordingly find that the Plaintiff has failed to prove his claim for future medical expenses to the required standard. The claim is therefore dismissed, and no award is made under this head. **Loss of Earning Capacity/Loss of Future Earnings** 1. The Plaintiff submitted that the injuries sustained had adversely affected his earning capacity due to continuing pain and restricted mobility. He contended that loss of earning capacity is distinct from loss of future earnings and is compensable where an injury diminishes a person's ability to work and earn an income. 2. The distinction between the two heads is well established. In **S.J. v Francesco Di Nello & Another [2015] eKLR**, the Court of Appeal held that loss of future earnings relates to real and assessable loss which must be proved by evidence, whereas loss of earning capacity concerns diminution in earning capacity and is ordinarily compensated as part of general damages once established. 3. In **Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR**, the Court of Appeal explained that loss of earning capacity may be awarded where an injury diminishes a person's chances of obtaining or retaining employment or of earning at the same level as before the accident. The Court of Appeal has more recently reiterated that the claim concerns the risk that disability will diminish a Claimant's ability to return to work at the same level or to secure suitable employment in the future. 4. In the present case, although the Plaintiff pleaded and submitted on loss of earning capacity, there is insufficient evidence before the Court to quantify an actual loss of future earnings. There is no satisfactory evidence of the Plaintiff's pre-accident income, employment position, or a specific period during which he was unable to earn. Further, the medical evidence indicates that the Plaintiff underwent successful surgical management and was progressing appropriately on follow-up. 5. There is also no specific medical assessment establishing a permanent percentage disability or demonstrating the extent to which his future earning capacity has been diminished. 6. Loss of future earnings is a claim for actual pecuniary loss and must be specifically pleaded and proved. On the evidence before me, that threshold has not been met. 7. As regards loss of earning capacity, while such a claim does not necessarily require proof of actual loss of employment, there must nevertheless be evidence demonstrating diminution of earning capacity. In the absence of evidence establishing such diminution, I am unable to make a separate award under this head. 8. Accordingly, the claim for loss of earning capacity/loss of future earnings is declined. **Special Damages** 1. I have considered the Plaintiff’s claim for special damages in the sum of Kshs.1,646,455/= the Pleadings, the evidence adduced and the documentary exhibits produced in support thereof. 2. It is trite that Special Damages must not only be specifically pleaded but must also be strictly proved. In **Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716,** the Court of Appeal held that special damages must be specifically claimed and strictly proved, the degree of certainty and particularity depending on the nature of the claim. 3. The Plaintiff claimed, among other items, Kshs.5,000/= for a medical report, physiotherapy expenses, Kshs.550/= for a police abstract, Kshs.550/= for a Motor Vehicle search, Kshs.4,750/= and Kshs.3,096/= in medical expenses, as well as Kshs.857,436/= supported by an invoice. However, the evidential position is that receipts were produced only for the Motor Vehicle search of Kshs.550/=, Kshs.4,750/= and Kshs.3,096/=. 4. The law requires proof that the claimed expenditure was actually incurred. In **Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR**, the Court of Appeal held that an invoice is not proof of payment and that a claimant seeking special damages must demonstrate actual payment. This principle has recently been reaffirmed in **Njoroge v Murithi [2025] KEHC 9022 (KLR)**, where the Court held that an invoice, without evidence of payment, does not satisfy the requirement of strict proof. 5. Similarly, in **Christine Mwigina Akonya v Samuel Kairu Chege [2017] KEHC 1484 (KLR)**, the High Court emphasised that a claimant must demonstrate that the payment was actually made and that a pro forma invoice, without more, does not constitute proof of payment. The same principle was applied in **Wanjiru v Mwangi & Another [2025] KEHC 1669 (KLR)**, where the Court reiterated that, particularly in medical claims, actual receipts are required to establish expenditure and an invoice alone will not suffice. 6. I therefore find that the invoice of Kshs.857,436/=, without a corresponding receipt or other satisfactory evidence of payment, does not strictly prove that the Plaintiff actually incurred and paid that sum. The amount is consequently not awardable as special damages. 7. Similarly, the claim of Kshs.5,000/= for the medical report has not been proved, there being no receipt evidencing payment. The claim for physiotherapy expenses is likewise unsupported by receipts or other satisfactory evidence of actual payment. The sum of Kshs.550/= for the Police Abstract is also not proved, as no receipt was produced in support of that expenditure. 8. The position is different with respect to the three items for which actual receipts were produced. The Plaintiff produced a receipt for **Kshs.550/=** being the Motor Vehicle search, a receipt for **Kshs.4,750/=**, and another receipt for **Kshs.3,096/=**. These amounts constitute direct documentary evidence of expenditure and are therefore strictly proved. Indeed, in **Chege & Another v Gikanga [2025] KEHC 14258 (KLR)**, the High Court upheld an award for a motor vehicle search where a receipt from the relevant authority had been produced, emphasising that the amount proved by credible documentary evidence is the amount awardable. 9. I therefore find that the Plaintiff has proved the following Special Damages: 10. Motor vehicle Search ...............................................Kshs.550.00 11. Medical Expense(Receipt No KA000836870) ......Kshs.4,750.00 12. Medical Expense (Receipt No.KA000836881)......Kshs.3,096.00 **Total ..................................................................Kshs. 8,396.00.00** 1. The remaining items, including the Kshs.857,436/= invoice, medical report, physiotherapy expenses and Police Abstract, were either unsupported by receipts or otherwise not strictly proved. They cannot be awarded merely because they were pleaded or particularised. As stated in **Njoroge v Murithi [2025] KEHC 9022 (KLR)**, only the amount actually proved by evidence can properly be awarded as special damages. 2. Accordingly, although the Plaintiff pleaded special damages of **Kshs.1,646,455/=**, I find that he has strictly proved only **Kshs.8,396/=**. The balance of the claim for special damages is dismissed for want of strict proof. **Disposition** 1. Having considered the pleadings, evidence, medical reports, submissions and the applicable law, I find that the Plaintiff has proved his case against the Defendants on a **balance of probabilities.** 2. I have further found that the claims for **future medical expenses** and **loss of earning capacity/loss of future earnings** were not proved and therefore no award is made under those heads. 3. Accordingly, I enter **Judgment for the Plaintiff against the Defendants jointly and severally** as follows: 4. General Damages.........................................Kshs.1,200,000.00 5. Special Damages............................................Kshs 8,396.00.00 6. Future Medical Expenses …………………..……….Not proved 7. Loss of earning capacity/loss of future earnings..Not proved **TOTAL .....................................................................** **Kshs.1,208,396.00** **(Kenya Shillings One Million, Two Hundred and Eight Thousand, Three Hundred and Ninety-Six).** 1. **Interest on General Damages at court rates from the date of this Judgment until payment in full;** 2. **Interest on Special Damages at court rates from the date of filing suit until payment in full; and** 3. The Plaintiff shall have Costs of the suit. 4. 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 presence of :** Mr.Hasea for the Plaintiff Defendant: Absent Court Assistant: Phoebe.