https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/525

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **CIVIL SUIT NO.E307 OF 2024** **RICHARD MAGORI OIGARA ....................................................PLAINTIFF** **-VERSUS-** **BATELEUR EAGLE SAFARIS LTD…..…………………….……… DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff filed a Plaint dated 9th July ,2024 seeking Judgment against the Defendant for: 2. General damages for pain, suffering and loss of amenities of life; 3. Special damages of Kshs. 5,500.00; 4. Costs and interest; 5. The Plaintiff avers that on or about the 6th July ,2022 he was lawfully travelling as a passenger in motor vehicle registration number GKB 237 y (KDK 151M ) along Muranga road near Guru Nanak Hospital when the Defendant’s authorized driver managed and controlled the said motor vehicle negligently ,recklessly and carelessly that he caused it to veer of its correct lane and land into a ditch causing the Plaintiff to sustain severe bodily injuries ,endured and continues to endure pain and suffered loss and damage . 6. The Defendant was served but did not enter appearance. **Interlocutory Judgement** was entered on **12th May ,2025** by Hon.M.Malingu against the Defendant and the matter proceeded for Formal Proof hearing on 1st July,2026. 7. PW1, Richard Magori Oigara adopted his witness statement dated 17th January 2024 as his evidence in chief and list of documents produced as P Exhibit 1- 7 The Plaintiff alleges that the Defendant’s driver, servant or agent drove the vehicle negligently and recklessly, causing it to veer from its lane and violently land in a ditch, thereby causing him severe injuries. 8. As a result of the accident, the Plaintiff sustained a **head injury comprising right frontal, occipital and left parietal punctate contusional haemorrhages,** as well as **frictional facial burns/bruises.** He was rushed to hospital for treatment and states that he suffered loss and pain. 9. The Plaintiff attributes the accident to the negligence of the Defendant’s driver, including **failure to keep a proper lookout, driving at an excessive speed in the circumstances, failure to maintain proper control of the vehicle, driving without due care and attention, failure to have sufficient regard for the safety of other road users, failure to brake, stop, swerve or slow down to avoid the accident, and driving recklessly and carelessly.** 10. He therefore instituted the suit seeking **compensation for the injuries and loss suffered as a result of the Defendant’s negligence, together with the costs of the suit.** 11. On 8th July ,2026 I directed the Plaintiff to file his Submissions . **Plaintiff’s Written Submissions dated 9th July ,2026** 1. The Plaintiff submits that following the endorsement of Judgment on **8th July 2026,** the matter proceeded to formal proof. It is argued that a regularly entered interlocutory judgment conclusively determined liability against the Defendant at **100%**, leaving the Court only to assess the quantum of damages. In support, the Plaintiff relies on **Paul Muigoro t/a Spotted Zebra v Bulent Gullbahar Remax Realtors [2016] eKLR*,*** where the Court held that an interlocutory judgment regularly entered is final on liability and the remaining issue is the assessment of damages. 2. On quantum, the Plaintiff submits that he sustained a **head injury involving right frontal, occipital and left parietal punctate contusional haemorrhages**, as well as **frictional facial burns and bruises.** He relied on the medical report by **Dr. J. W. Siboko dated 15th February 2023**, theCase Summary from Kenyatta National Hospital and the P3 Form, which confirmed the injuries and classified them as grievous harm with **5% incapacity.** The Plaintiff further testified that he had not fully recovered, continued to experience pain and was unable to work. On that basis, and taking into account the severity of the injuries and inflation, the Plaintiff proposes an award of **Kshs.800,000.00** as general damages for pain, suffering and loss of amenities. He relies on **Ondimu v Keragori*,* Civil Appeal No. E198 of 2024, [2025] KEHC 15086 (KLR),** where Kshs. 500,000 was awarded, and **Elizaphen Mokaya Bogonko v Fredrick Omondi Otuna [2022] KEHC 2892 (KLR)*,*** where an award of Kshs.500,000.00 was upheld for comparable injuries. 3. The Plaintiff further claims **Kshs. 5,550.00 as Special Damages,** submitting that the amount was specifically pleaded and proved by production of receipts. He therefore urges the Court to award the full amount. He also seeks the **costs of the suit.** **Liability** 1. I have considered the evidence adduced by PW1 and carefully read the Plaintiff’s Written Submissions dated 9th July 2026. The issues for determination are: 2. Who is liable for the accident and to what extent? 3. What quantum of damages is awardable? 4. Who is liable to pay the costs of the suit? 5. On the issue of liability, the Plaintiff pleaded and testified that the accident was caused by David Njeru, the driver of Motor Vehicle Registration No. GKB 237 Y (KDK 151 M), who negligently drove the said motor vehicle and thereby caused the accident. David Njeru was, however, not sued as a Defendant in this suit. 6. The evidence on record establishes that although the said motor vehicle was being driven by David Njeru at the material time, the motor vehicle was owned by the Defendant. The Defendant, as the registered owner of the motor vehicle, did not adduce evidence to rebut the Plaintiff's evidence or to demonstrate that David Njeru was driving the vehicle without its authority or that the Defendant had no responsibility for the manner in which the vehicle was being driven. 7. The fact that the driver was not joined as a Defendant does not, in itself, absolve the owner of the motor vehicle from liability where the evidence establishes that the vehicle was being driven with the owner's authority and in the course of the driver's engagement. The principle of vicarious liability permits an employer or owner to be held liable for the negligent acts of a driver acting within the scope of his employment or authority. 8. In the present case, the Plaintiff's evidence that the accident was caused by the negligent driving of David Njeru remains uncontroverted. The Defendant, being the owner of the subject motor vehicle, did not call evidence to displace the inference arising from the evidence on record. I therefore find that the negligence of David Njeru is attributable to the Defendant on the principle of vicarious liability. 9. Consequently, I find the Defendant wholly liable for the accident at 100%. **Quantum** 1. I have considered the evidence adduced by the Plaintiff, the medical documents produced in evidence, the submissions by counsel and the authorities relied upon. The Plaintiff pleaded and testified that he sustained a head injury comprising right frontal, occipital and left parietal punctate contusional haemorrhages, together with frictional facial burns and bruises. The discharge summary and radiological report from Kenyatta National Hospital, as well as the medical report by Dr. J. W. Siboko dated 15th February 2023, corroborate the nature of the injuries sustained. 2. Dr. Siboko opined that the Plaintiff sustained a head injury which was managed neuro-conservatively at Kenyatta National Hospital. He further noted that the Plaintiff required follow-up with a neurologist and assessed the injuries as grievous harm, with an estimated permanent incapacity of 5%. I therefore accept that the Plaintiff sustained significant head injuries which went beyond mere soft tissue injuries and which had a continuing effect on him. 3. The Plaintiff has urged the Court to award Kshs. 800,000/= as General Damages for pain, suffering and loss of amenities. In support of the proposed award, reliance was placed on **Ondimu v Keragori (Civil Appeal E198 of 2024) [2025] KEHC 15086 (KLR),** in which the High Court upheld an award of Kshs.500,000/= for comparable injuries. The Plaintiff also relied on **Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR,** where the High Court reduced an award of Kshs. 850,000/= to Kshs. 500,000/= for comparable injuries. 4. The principle applicable in the assessment of general damages is that comparable injuries should, as far as possible, attract comparable awards. The Court must, however, bear in mind that no two injuries are exactly alike and that the assessment remains an exercise of judicial discretion based on the particular circumstances of each case. The purpose of General Damages is to compensate the injured party for pain, suffering and loss of amenities and not to provide a windfall. 5. In **Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR,** the Plaintiff had sustained a head injury with loss of consciousness, fracture of the right zygoma, multiple facial lacerations and other soft tissue injuries. The High Court found the award of Kshs.850,000/= excessive in comparison with comparable authorities and substituted it with Kshs.500,000/=. The Court specifically emphasized the need for comparable injuries to attract comparable awards. 6. Similarly, in **Ondimu v Keragori (Civil Appeal E198 of 2024) [2025] KEHC 15086 (KLR),** the High Court upheld an award of Kshs. 500,000/= as General Damages after considering comparable authorities and the nature of the injuries sustained. The decision is particularly useful as a recent authority demonstrating the level of awards considered reasonable for significant head and associated injuries. 7. I have also considered the decision in ***P. N. Mashru Limited v Omar Mwakoro Makenge,*** where the Plaintiff suffered substantially more severe injuries, including loss of consciousness, fracture of the femur, fracture of the temporal bone with haematoma, head injury with brain oedema, left subdural haematoma and 5% incapacity, and an award of approximately Kshs. 1.1–1.2 million was made. That decision is distinguishable from the present case because the injuries therein were considerably more extensive. 8. In the present case, the Plaintiff suffered intracranial contusional haemorrhages affecting three regions of the brain, namely the right frontal, occipital and left parietal regions, together with facial burns and bruises. He required admission and neuro-conservative management and continues to require neurological follow-up. The medical evidence further places permanent incapacity at 5%. These are serious injuries and warrant a substantial award. However, there is no evidence before the Court of skull fracture, prolonged loss of consciousness, surgical intervention, seizures, or other complications of the nature demonstrated in the more serious authorities. 9. I am therefore not persuaded that an award of Kshs. 800,000/= is justified on the evidence and the comparable authorities. Taking into account the nature and extent of the injuries, the continuing neurological follow-up, the assessed 5% permanent incapacity, the passage of time and the need to maintain consistency with awards for comparable injuries, I find an award of **Kshs. 500,000/=** to be fair and reasonable compensation for pain, suffering and loss of amenities. 10. Accordingly, I award the Plaintiff **Kshs. 500,000/=** as General Damages for pain, suffering and loss of amenities. **Special Damages** 1. The Plaintiff also pleaded and strictly proved **Special Damages of Kshs.5,500.00** by producing receipts in support thereof. I therefore award the Plaintiff the said sum as Special Damages. **Disposition** 1. The Plaintiff has proved his case against the Defendant on a balance of probability and I proceed to enter Judgment for the Plaintiff against the Defendant as follows: 2. General Damages................................................Kshs.500,000.00 3. Special Damages......................................................Kshs 5,500.00 **TOTAL ....................................................................Kshs.505,500.00** ***(Kenya Shillings five thousand and five, five hundred )*** 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. Costs of the suit. 4. Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **19.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 19TH DAY OF AUGUST,2026** In the Absence of parties Court Assistant: Phoebe.