[2023] KEMC 207 (KLR)
The court found that although the plaintiff pleaded for general and special damages arising from a fatal road accident allegedly caused by the defendants' negligence, there was a complete absence of documentary evidence to support the claims. No receipts, death certificate, police abstract, or grant of letters of...
Source-derived case information.
- Citation
- [2023] KEMC 207 (KLR)
- Parties
- Plaintiff: Salome Nyaboke Onsumu (Suing as the Legal Representative of the Estate of the Late James Mbugua Njoroge); Defendant: Judith Biyaki Nyabera; Defendant: another
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E11830 of 2021
- Procedural Posture
- Civil Suit / Judgment After Formal Proof/default Judgment
- Outcome
- Plaintiff's claim dismissed for want of proof; no damages or costs awarded.
- Judges
- JP Aduke
- Legal Topics
- Fatal Accidents, Negligence, Damages Assessment, Proof of Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Nyaboke Onsumu (Suing as the Legal Representative of the Estate of the Late James Mbugua Njoroge)
Plaintiff
Judith Biyaki Nyabera
Defendant
another
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof/default Judgment
Legal Issues
- 1 Whether the plaintiff proved entitlement to general and special damages under the Fatal Accidents Act and Law Reform Act.
- 2 Whether the plaintiff proved the pleaded special damages by evidence.
- 3 Whether the absence of supporting documents precludes an award of damages.
Ratio Decidendi
The court found that although the plaintiff pleaded for general and special damages arising from a fatal road accident allegedly caused by the defendants' negligence, there was a complete absence of documentary evidence to support the claims. No receipts, death certificate, police abstract, or grant of letters of administration were produced, either physically or on the Judiciary CTS portal. The court reiterated the settled legal principle that special damages must be specifically pleaded and strictly proved, and that awards under the Fatal Accidents Act and Law Reform Act require documentary proof of death and legal representation. In the absence of such proof, the court declined to...
Court Disposition
Plaintiff's claim dismissed for want of proof; no damages or costs awarded.
Orders
- General damages for pain and suffering: NIL
- Special damages: NIL
Full Case Text
Judgment text and source record
20 paragraphs
Onsumu (Suing as the Legal Representative of the Estate of the Late James Mbugua Njoroge) v Nyabera & another (Civil Suit E11830 of 2021) [2023] KEMC 207 (KLR) (11 July 2023) (Judgment)
Neutral citation: [2023] KEMC 207 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Civil Suit E11830 of 2021
JP Aduke, SRM
July 11, 2023
Between
Salome Nyaboke Onsumu (Suing as the Legal Representative of the Estate of the Late James Mbugua Njoroge)
Plaintiff
and
Judith Biyaki Nyabera & another
Defendant
Judgment
1. The Plaintiff filed this suit against the defendants as the legal representative to the estate of the late James Mbugua Njoroge after he sustained fatal injuries due to a road accident which occurred on the 17th December 2018. In the plaint on record, the plaintiff avers that the deceased was a driver of motorcycle registration number KMDS 112Z along Thika Road in Nairobi, when the defendant so negligently drove the motor vehicle registration number KCJ 627H causing motor vehicle registration number KCJ 627H to lose control and violently collide with the motorcycle above.The plaintiff blames the defendants and his authorized agent for causing the accident. The plaintiff further avers that the accident was caused solely by the negligence of the defendants and their agents.
2. The particulars of the alleged negligence are captured in paragraph 9 of the Plaint. The plaintiff prays for general damages under the Fatal Accidents Act and the Law Reform Act, special damages of KES 1,770/-, costs of the suit and interest.Return of service on records shows that the defendant was served with the suit papers. The defendant failed to enter appearance within the stipulated time. As a result default judgment was entered on 18th August 2022. The matter proceeded to formal proof hearing. At the hearing thereof, the plaintiff relied on the pleadings and statements on record as evidence in chief and prayed for reliefs as in the plaint. Parties filed written submissions.The issue for determination before this court is one:
1. Quontum;Quantum
3. 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 Kshs. 1,770/- as captured in paragraph 15a the plaint. I have not seen receipts on record attesting to the same. It is a settled principle that special damages must be pleaded and proved. I find that Kshs. 1,770/- has been pleaded and not proved as at the date of writing this judgment and I decline to award the same.With respect to general damages, I have considered all the submissions on record and the authorities cited. I have also considered all exhibits on record. In particular, I have relied on the reasoning of the court in Wilson Nyamai Ndeto & Anor versus China Wu Yi Limited & Anor (2017) eKLR where the court awarded damages and outlined the principles to consider in awarding damages under the Law Reform Act and the Fatal Accidents Act. In the present case, I have not seen any documents in support of the Plaint before me, either on the Judiciary CTS portal or on the physical file. I am aware that the judiciary CTS/ efiling portal has been having challenges in the past two weeks. This means that among other things, I have not seen any receipts/death certificate/police abstract/certified copy of grant of letters of administration intestate et al.
4. The net effect of this, is that I am unable to award any damages in respect of awards under the Law Reform Act and the Fatal Accidents Act in the absence of confirmation that would issue from seeing the aforementioned documents on file/on the electronic Judiciary CTS portal.In conclusion, I enter judgment in favor of the plaintiff as follows;a.General damages for pain and suffering NILb.Special damages Kshs. NILc.Loss of Expectation of Life NILd.Loss of dependency NILe.Costs of the suit NIL
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AND DELIVERED IN THE PRESENCE/ABSENCE OF THE PARTIES THIS 11TH JULY 2023 AT 12PM.In the presence of :Court Assistant: ………………..………………………………………………………………(Name, Signature, Date)Counsel for the Plaintiff- …………………….…………………………………………………………..(Name, Signature, Date)For the Defence: ……………………………………………….………………………………..(Name, Signature, Date)