https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/387

**REPUBLIC OF KENYA** **IN THE NAKURU LAW COURTS** **CIVIL CASE 969 OF 2019** **PA NDEGE, SPM** **NYAMIAKA OKARI EDWARD…………………………………PLAINTIFF** **VERSUS** **REUBEN WAITHAKA MACHARIA……………………….1T DEFENDANT** **SAMMY MAINA NGANGA…………………………………2ND DEFENDANT** **JUDGEMENT** 1. The Plaintiff in this case, **NYAMIAKA OKARI EDWARD**, is praying for judgment against the Defendants for general and special damages of Kshs. 138,550/=, future medical expenses of Kshs. 300,000/- costs and interest. The claim arises out of a road traffic accident that occurred on or about the 19th day of November 2019, as a consequence of which the plaintiff sustained serious body injuries. 2. The Plaintiff was travelling in motor vehicle registration number KCK 603H TOYOTA VAN along Nakuru – Njoro road when at Ngata area or thereabouts, the accident herein occurred. It’s the Plaintiff’s case that the accident was solely caused by the 2nd Defendant who drove the said motor vehicle so carelessly, recklessly, negligently and at a high speed that he lost control of the said motor vehicle and hit motor vehicle registration number KCK 238X. That as a result, the plaintiff sustained bruises on the left arm, blunt head injury, brain injury with extra dural hematoma, soft tissue injuries to the left thigh and fractured left femur. 3. The plaintiff particularized his claim of Defendant’s negligence in Paragraph 4 of his Plaint dated 09/08/2019. The 1st Defendant has been sued in his capacity as the registered owner of the motor vehicle, while the 2nd Defendant as the driver. The Defendants in their Statement of Defense aver that the Plaintiff and/or driver of motor vehicles registration numbers KCK 238X negligently contributed to the accident. The Defendants, apart from producing **Dr Jenipher Kahuthu’s medical report** as **DEXH. No. 1**, did not call any witness in support of their case 4. The plaintiff testified as PW1 and called a PW2, **Number 64360 PC JAMLECK NGARE**, from Njoro Police Station, PW2, as his witness. Plaintiff also relied on his documents filed alongside the plaint herein as his exhibits in support of his case. 5. At the close of the hearing and submissions, the accident has not been challenged. The Plaintiff and the Police Officer are the only witnesses who testified and produced various exhibits as the Defendants never adduced any evidence at all either in support of their defense and or to controvert Plaintiff’s evidence on liability. That being the case, liability and quantum are basically the issues of determination from the evidence tendered by the Plaintiff. **Determination on liability and quantum** 1. On liability, the plaintiff testified as PW1, adopted his statement and produced various exhibits on which he blames the accident solely on the Defendants. According to the Plaintiff’s oral and documentary evidence, which is well on record before this court, the accident was caused wholly and solely by the negligence of the Defendants as per the particulars of the negligence pleaded in Paragraph 4 of the Plaint, as he drove at a high speed that he lost control of the motor vehicle that he hit motor vehicle KCK 238X as a result of which the plaintiff sustained serious injuries. Plaintiff’s evidence remains unchallenged as the defendants have not tendered any evidence to controvert the plaintiff’s evidence or support their defense. 2. The Police Officer Number 64360 PC JAMLECK NGARE testified as PW2 and confirmed that the 2nd Defendant was charged with a traffic offence for causing the accident herein. The officer was however not the Investigating Officer in this case. in cross-examination, she went ahead to blame the drivers of both vehicles herein. Her evidence, however, carries less weight and probative value than that of the Plaintiff as she was not the Investigating Officer and hers is therefore a report-based hearsay. I rely on the case cited of ***Alfred Mutual Ndutu V Peter Musau Wambua [2019] e KLR*** where the court held that evidence of a police officer who was not the investigating officer and never visited the scene of the accident could not be admitted as evidence of fact as his account was not something he had witnessed or concluded from investigations. 3. In an action for negligence, the burden of proof falls on the party alleging to establish each element of the negligence, hence it is for the Plaintiff herein to adduce evidence of facts on which he bases his claim. It must be established that there was a duty of care which was breached resulting to loss and damage to the Plaintiff. The Plaintiff herein therefore has a duty to prove his case on a balance of probabilities that the Defendants were so negligent so as to occasion the accident that led to the Plaintiff’s injuries. The onus may shift to the Defendants if the Defendant pleads that the Plaintiff was contributory to the accident. 4. The Plaintiff has discharged his duty of burden of proof through the oral and documentary evidence on record before this honorable court a position of which is unchallenged as the defendants have not adduced any evidence to controvert the plaintiffs evidence or and support their defense. I refer to the case of ***Linus Nganga Kiongo & 3 Others V Town Council of Kikuyu [2012] e KLR*** where the court held that if the defendant fails to call evidence in support of his case, the evidence adduced by the plaintiff against him remains uncontroverted and therefore unchallenged. This leads to the irresistible conclusion that the Defendants were 100% liable for the accident from the evidence adduced in court. 5. On quantum, I do find the medical evidence adduced by the plaintiff herein, mainly, the P3 form, discharge summary, radiological report, and Dr. Titus Ndeti Nzina’s medical, when considered alongside DEX. No.1, have been able to prove that the plaintiff herein sustained the injuries pleaded. I do not find material contradictions therein. 6. I am aware of the guiding principles in awarding general damages such as: damages should be within the limits set out by decided cases, within my pecuniary jurisdiction, within the limits that the Kenyan economy can afford and must be commensurate to the kind of injury, and extent of pain and suffering. I rely on the case of ***West and Sons V Shepherd [1964] eKLR***, where Lord Morris stated that in assessing damages in injuries cases, comparable injuries should be compensated by comparable awards. 7. There was however no serious authority or decided case that was pointed out by the parties herein which had injuries that were almost comparable to the ones sustained by the plaintiff herein. My research, however, led me to the case of ***Kipkoech v Mella (Civil Appeal E323 of 2023) [2025] KEHC 3956 (KLR) (27 March 2025) (Judgment),*** where the victim was awarded Kshs. 1,200,000/- for injuries that are almost similar to the ones sustained herein. After factoring in inflation, I do hereby award the plaintiff herein Kshs. 1,400,000 as general damages for pain and suffering herein. 8. As to special damages, it is trite that the plaintiff is only entitled to special damages pleaded and proved by way of evidence usually through receipts. Plaintiff pleaded the following in paragraph 5 of the plaint; 9. Medical Expense-Kshs. 135,000.00 10. KRA Search – Kshs. 550.00 11. Medical Report – Kshs. 3,000.00 12. I however find that the **medical receipts** produced herein proves Kshs. 132,700/-as the medical expenses, while the **NTSA Invoice** produced herein proves item b. this court has perused the file severally and has failed to find a receipt fir the medical report as itemized in c hereinabove. I thus do find the plaintiff entitled to award of special damages pleaded and proved amounting to Kshs. 133,250/=. 13. On the cost of future medication, I do find that the 2 medical reports herein agree that the plaintiff shall require Kshs. 100,000/- as costs for future medical expenses. I thus do hereby award the same. The same shall be used to remove nailing once the fracture has adequately united. 14. Judgment is therefore hereby entered against the defendants herein jointly and or severally, and in favor of the plaintiff herein for **Kshs. 1,400,000/- being general damages for pain and suffering**, **Kshs. 133,250/- being special damages** and **Kshs. 100,000/-** being costs of future medical expenses. Plaintiff also gets the costs of this suit and an interest. **DATED, SIGNED AND DELIVERED AT NAKURU THIS…28th …DAY OF …July....2026** **ALOYCE-PETER-NDEGE** **SENIOR PRINCIPAL MAGISTRATE** *In the presence of;* **Plaintiff’s Counsel: n/a** **Defendants’ Counsel: Cherotich** **Plaintiff: n/a** **1st Defendant: n/a** **2nd Defendant: n/a** Cherotich: Praying for 45 days stay of execution. CT: 45 days stay granted as prayed.