https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/492

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCCC/E207/2024 ALPHAXARD MUTE NDUNGU VS KENNEDY KIMANI MAINA JUDGMENT 1. It is the plaintiff’s case that on 17 th August 2024, he was walking at the junction towards Tuthumba building in Sagana town, along Murang’a/Sagana road when the defendant drove his motor vehicle registration number KCP 614C negligently, causing it to ram into him and occasion him grievous injuries. The plaintiff averred that he had sustained a fracture of the left fibula, head injuries that consisted of loss of consciousness and scalp contusions causing swelling and blunt soft tissue injuries to the chest and back. He sought general damages for pain, suffering and loss of amenities, special damages in the sum of Kshs. 5,750/=, interest and costs of the suit. 2. The defendant, in his statement of defence dated 16 th September 2025 denied the entire claim and averred in the alternative, that if the accident had occurred as alleged, it had been caused by the plaintiff’s negligence. 3. When the matter came up for hearing, the plaintiff testified and called PC Julia Nduta (PW1) as a witness. The defendant’s case was closed without calling any witness. Directions were thereafter taken for filing of written submissions. # ISSUES 1. The two issues for determination in this case are the apportionment of liability and assessment of quantum. # LIABILITY 1. The plaintiff claimed that he was walking at the junction towards a building in Sagana Town along Murang’a/Sagana road when the defendant lost control of his vehicle and rammed into him. The fact that the defendant is the registered owner of motor vehicle registration number KCP 614C (“the subject vehicle”) was not disputed. A copy of motor vehicle records produced by the plaintiff satisfactorily proved the ownership of the vehicle. 2. The point of divergence between the parties is the circumstances that led to the occurrence of the accident. While the plaintiff asserted that the defendant caused the accident due to his negligent driving, the defendant claimed that the plaintiff had caused the accident by crossing the road without ensuring his safety. During cross examination, the plaintiff told the court that the accident occurred while he crossed the road at a busy section of the road. He informed the court that the area did not have a zebra crossing and added that in his estimation, the defendant was over speeding when the accident occurred. PC Julia Nduta (PW1) similarly stated that the police abstract had noted that the defendant was to blame for the accident. 3. Although the defendant claimed that the plaintiff had caused the accident due to his negligence, no evidence was adduced in support of this assertion. In the case of [***CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd) (Civil Application 12 of 1978) [1978] KECA 9 (KLR) (18 May 1978) (Judgment)***](https://kenyalaw.org/akn/ke/judgment/keca/1978/9/eng%401978-05-18)Madan J. held as follows on the probative value of pleadings; 1. *The pleadings contain the averments of the three parties concerned. Until they are proved, or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven. Averments in no way satisfy, for example, the following definition of “evidence” in Cassell’s English Dictionary, p 394:* *Anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.* * 1. *The pleadings in a suit are not normally evidence. They may become* *evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.* * 1. The statement of defence filed by the defendant could not take the place of evidence. Having asserted that the plaintiff contributed to the occurrence of the accident due to his negligence, it was upon the defendant to adduce evidence in support of his claim. The defendant did not discharge his onus to prove the assertions made in the defence. Consequently, the plaintiff’s narration of the events that led to the occurrence of the accident were unchallenged. 2. Accordingly, this court finds that the plaintiff proved on a balance of probabilities that he was hit by the defendant’s vehicle while lawfully crossing the road. The plaintiff testified that the accident had occurred at a busy section of the road in an area with no zebra crossing. Given these conditions, a prudent driver was required to drive at a slow speed particularly on a section of the road close to a junction. It was the plaintiff’s unchallenged evidence that the defendant was over speeding at the material time. This court therefore finds that the defendant did not discharge his duty of care to the plaintiff and caused the accident by driving negligently given the circumstances. Consequently, the defendant is found wholly liable for the accident. # QUANTUM * + 1. **GENERAL DAMAGES** 1. The injuries enumerated by the plaintiff in his pleadings are a reiteration of the medical report prepared by Dr. W.M. Wokabi on 17th September 2024. The plaintiff also produced a P3 form filled at Sagana sub-county hospital and a discharge summary from Sagana Cottage Hospital to prove the extent of his injuries. For the injuries sustained by the plaintiff, to wit, fracture of the left fibula, head injuries that consisted of loss of consciousness and scalp contusions causing swelling and blunt soft tissue injuries to the chest and back, the plaintiff’s learned counsel urged this court to award the plaintiff a sum of Kshs. 700,000/= in general damages. No proposals were made by the defendant’s counsel who did not file written submissions. 2. The plaintiff’s counsel relied on the case of ***Vincent Mbogholi v Harrison Tunje Chilyalya HCCA No. 32 of 2015 [2017] eKLR*** where the plaintiff who had sustained a fracture of the left tibia, blunt object injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe was awarded a sum of Kshs. 500,000/=. 3. He also relied on the case of ***Alphonce Muli Nzuki vs Brian Charles Ochuodho [2014] eKLR*** where the plaintiff who had sustained a compound comminuted fracture of the right tibia and fibula and degloving injury of the right leg and foot was awarded Kshs. 800,000/=. 4. The court was also referred to the case of ***Pauline Gesare Onami v Samuel Changamure & Another (2017) eKLR*** where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of the left tibia and fibula bone, laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs, midshaft was awarded Kshs. 600,000/=. 5. The general principle in awarding damages is that comparable injuries should as far as possible be compensated by comparable awards. The court is required to consider the assessment of damages for similar injuries, bearing in mind that no two cases can have the same exact injuries and disability effects, and each case must be determined based on its peculiar facts. The court is also required to consider the fact that damages must not only be within the limits set out by decided cases but also be within the limits of the Kenyan economy. Further, rising inflation should also be taken into account while assessing damages. (See ***Mohamed*** [***Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/71/eng%401986-09-02) 6. The court must also bear in mind that monetary damages cannot effectively compensate a person who has sustained injuries as held in the case of [***Akamba Public Road Services v Abdikadir Adan Galgalo [2016] KEHC 2339 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/2339/eng%402016-10-25) thus; *“53. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.”* * 1. With the foregoing principles in mind, this court has assessed the plaintiff’s injuries against those sustained in the cited authorities. The court notes that firstly, the authorities referred to by the plaintiff are nearly a decade old. They cannot therefore be an accurate representation of the current trends in the assessment of damages. Secondly, this court notes that the injuries in the cases referred to are more severe when compared to those sustained in the present case. The plaintiff herein did not sustain numerous soft tissue injuries, a compound comminuted fracture, a degloving injury or multiple fractures as in the cases cited, respectively. He sustained a single fracture of the lower part of the leg, superficial soft tissue injuries to the chest and back and loss of consciousness. This court has considered the case of analysis of the court in ***Kiama v Mutiso (Civil Appeal 40 of 2023) [2024] KEHC 5135 (KLR) (13 May 2024) (Judgment)*** where the court held as follows; *“According to the plaint, the Respondent suffered a fracture of the left tibia bone (upper 1/3) and a blunt injury to the left leg and thigh. The Appellant produced the medical report prepared by Dr Ajoni Adede dated 05.08.2020. The doctor assessed 8% permanent partial disability and noted that there would be stiffness of the left knee and that the fracture site would be predisposed to arthritis and would suffer accelerated bone and joint wear and tear. He observed that the soft tissue would leave no residual disability. Dr Udayan Sheth who examined the Respondent on 05.08.2022 noted that he had fully recovered with no deformity or permanent incapacity...* 1. *The question then is whether Kshs. 700,000.00 was excessive in the circumstances. The cases cited by the Appellant were decided between 2017 and 2020 thus even taking into account the element of inflation, I would think the award is on the higher side. I therefore hold that the award of Kshs. 700,000.00 is excessive in the circumstances. I reduce the amount to Kshs. 400,000.00.* 2. *I allow the appeal to the extent that I set aside the award of Kshs. 700,000.00 awarded as general damages and substitute it with an award of Kshs. 400,000.00 subject to the agreed liability. The Appellant is awarded costs of Kshs. 20,000.00 as against the Respondent.* 1. This court has considered the foregoing authorities, the injuries sustained by the plaintiff and the rate of inflation since the decisions were made, it wards the plaintiff general damages of Kshs. 450,000/=. # B. SPECIAL DAMAGES * 1. The plaintiff also sought a sum of Kshs. 5,750/= in special damages being the sum of Kshs. 3,000/= spent in obtaining the medical report, Kshs. 2,200/= spent in medical expenses and Kshs. 550/= for obtaining the motor vehicle search. The plaintiff was not only required to strictly plead the claim for special damages but was also required to prove the claim as they cannot be inferred from the facts. (See ***Hahn V Singh [1985] KECA 129 (KLR)*** 2. The plaintiff produced copies of receipts to prove the expenses sought for preparation of the medical report, and for obtaining the copy of records and is therefore entitled to a sum of Kshs. 3,550/= in special damages. # CONCLUSION * 1. In sum, judgment is entered in favor of the plaintiff against the defendant for a sum of Kshs. 453,550/= made up as follows; 1. Liability is entered wholly in favour of the plaintiff against the defendant; 2. General damages for pain and suffering - Kshs. 450,000/= 3. Special damages- Kshs. 3,550/= 1. The plaintiff shall have the costs of this suit. 2. Interest shall accrue on the award and costs at court rates from the date of judgment until payment in full. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 5TH DAY OF AUGUST 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **JUDGMENT READ ON THE VIRTUAL PLATFORM AT 11:22 A.M. IN THE PRESENCE OF;** **C/A MR. MUYA** **MR. OJANJI H/B FOR MS. WAMAITHA FOR THE PLAINTIFF MS. NDUTA H/B FOR MR. ISOE FOR THE DEFENDANT** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-08-10 13:59:34