https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/471

Mwinyikombo v Ngao (Civil Case E463 of 2025) [2026] KEMC 471 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 471 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E463 of 2025 EM Mwamuye, SRM July 30, 2026 Between Said Ali Mwinyikombo Plaintiff and Saida Amani Ngao Defendant Judgment Introduction 1.The Plaintiff instituted this suit through a Plaint dated 24th February 2025, seeking judgment against the Defendant for:a.Special damages of KShs. 3,600 together with interest at court rates;b.General damages;c.Costs of the suit and interest thereon; andd.Any other relief the Court may deem fit and just to grant. 2.The claim arises from a road traffic accident alleged to have occurred on 1st January 2025 at about 3.00 p.m. along Bombolulu Estate, Mombasa, involving the Plaintiff, who was using a wheelchair, and Motor Vehicle Registration No. KCS 749T, a Nissan March registered in the Defendant’s name. 3.The Defendant did not enter appearance or file a defence despite service. The matter consequently proceeded by way of formal proof. The Plaintiff testified and relied upon his witness statement and documentary evidence filed in support of the claim. His evidence was not subjected to cross-examination and no evidence was presented in rebuttal. 4.The Plaintiff subsequently filed written submissions dated 15th June 2026. The Plaintiff’s Case 5.The Plaintiff’s evidence was that, on the material date, he was lawfully proceeding along Bombolulu Estate using his wheelchair when Motor Vehicle Registration No. KCS 749T, Nissan March, was driven without due care and attention, lost control, veered off its path and collided with him. 6.The force of the collision allegedly crushed and extensively damaged his wheelchair and caused him bodily injuries. He was thereafter taken to Coast General Hospital, where he received treatment as an outpatient. He later underwent further medical examination by Dr. Darius Wambua Kiema. 7.The NTSA record showed that the subject vehicle was registered in the name of the Defendant. The Plaintiff further testified that demand and statutory notices were issued to the Defendant and the relevant insurer, but no settlement was made. Issues for Determination 8.Having considered the pleadings, evidence, documents and submissions, the issues arising for determination are:a.Whether the Plaintiff proved negligence against the Defendant;b.Whether the Plaintiff proved that he sustained the pleaded injuries and losses;c.What award should be made in general damages;d.Whether special damages and future medical expenses are recoverable; ande.Who should bear costs and interest. Liability 9.The burden of proving negligence rests upon the Plaintiff. The fact that a suit proceeds by formal proof does not automatically entitle a plaintiff to judgment. The Plaintiff must still prove his case on a balance of probabilities. 10.The Plaintiff testified that the Defendant’s vehicle veered off its path and struck him while he was lawfully using his wheelchair along the estate road. His evidence on the manner in which the accident occurred was not challenged. 11.The Police Abstract and Occurrence Book record corroborated the occurrence of the accident and the involvement of Motor Vehicle Registration No. KCS 749T. The NTSA copy of records established that the Defendant was the registered owner of that vehicle. Photographs produced by the Plaintiff depicted substantial damage to his wheelchair. 12.In Njuguna v Shisanya (Civil Appeal E546 of 2024) [2026] KECA 1089 (KLR), relied upon by the Plaintiff, the Court reiterated that negligence is established by proving a breach of a duty of care resulting in damage and that motorists owe a high standard of care to other road users. 13.The Plaintiff also relied on UAP Insurance Company Limited v Odeyo (Civil Case No. 3 of 2018) [2026] KEHC 2441 (KLR), where the Court recognised that credible evidence which remains unchallenged and uncontroverted may properly be acted upon. 14.Uncontroverted evidence is, however, not necessarily conclusive. It must be evaluated against the applicable standard of proof. In the present case, the Plaintiff’s account is internally consistent and is supported by the police documents, ownership records and photographs. 15.The Plaintiff pleaded the doctrine of res ipsa loquitur. A motor vehicle leaving its proper path and colliding with a person lawfully using a wheelchair beside or along an estate road is an occurrence which, in the ordinary course of events, calls for an explanation from the person controlling the vehicle. 16.No explanation was offered by the Defendant as to how the vehicle left its path, whether any unavoidable event occurred or what precautions were taken to avoid the collision. The evidential inference of negligence therefore remained unrebutted. 17.I am satisfied that the Plaintiff established, on a balance of probabilities, that the accident was caused by the negligence of the driver of Motor Vehicle Registration No. KCS 749T. 18.As the registered owner, the Defendant was sued on the basis that the vehicle was being driven by herself or her authorised driver. That evidence was not controverted. I accordingly find the Defendant 100% liable for the accident. Injuries Sustained 19.The Plaintiff pleaded and proved the following injuries:a.Fracture of the right distal femur;b.Fracture of the head of the right fibula;c.Pain in the right knee and ankle joint;d.Stiffness of the right lower limb; ande.Post-traumatic stress disorder. 20.The treatment notes, P3 Form, X-rays and medical report were consistent with the Plaintiff’s evidence that he sustained fractures around the right knee region. The medical report noted continuing pain and stiffness and the likelihood of future degenerative complications, including post-traumatic arthritis. 21.The medical evidence further indicated that the Plaintiff had a pre-existing mobility disability arising from poliomyelitis. Before the accident, he relied on a wheelchair for movement. The fractures therefore affected a limb and body system already compromised by the pre-existing condition. 22.The Court must distinguish between the Plaintiff’s pre-existing disability and the additional injury attributable to the accident. The Defendant is not liable for the pre-existing poliomyelitis. She is, however, liable for the extent to which the fractures, pain, stiffness and damage to the Plaintiff’s wheelchair worsened his mobility and general quality of life. 23.The submissions refer at one point to 10% permanent partial disability. The earlier summary of the medical evidence suggested a higher percentage. In assessing damages, I place greater weight on the nature of the proved fractures, the residual symptoms and the prognosis than on the inconsistent percentage appearing in the submissions. General Damages 24.The Plaintiff proposed an award of between KShs. 1,500,000 and KShs. 2,000,000 for pain, suffering and loss of amenities. In assessing general damages, the Court must consider:a.The nature and severity of the injuries;b.The number and location of the fractures;c.The treatment received;d.The degree of residual incapacity;e.The prognosis and likelihood of future complications;f.Comparable awards; andg.Inflation and the passage of time. 25.Awards in comparable cases provide guidance but do not establish an inflexible tariff. No two injuries or claimants are identical. Comparison with the Authorities Relied Upon 26.Njuguna v Shisanya- In Njuguna v Shisanya, the claimant sustained a segmental fracture of the left tibia. The fracture was treated conservatively and united well, although a subsequent report assessed permanent impairment at 20%. The trial court awarded KShs. 500,000, which was upheld on appeal in June 2026. 27.The present Plaintiff sustained two fractures, namely a distal femur fracture and a fracture of the fibular head. The injuries involved the knee region and resulted in persistent pain and stiffness. They are therefore more extensive than the single tibial fracture in Njuguna v Shisanya. Moreover, their functional impact was heightened by the Plaintiff’s pre-existing poliomyelitis and dependence on a wheelchair. An award higher than KShs. 500,000 is therefore justified. 28.Florence Njoki Mwangi v Peter Chege Mbitiru- In Florence Njoki Mwangi v Peter Chege Mbitiru [2014] eKLR, the claimant sustained substantially more severe injuries, including femoral fractures, a degloving injury requiring skin grafting, amputation of the right foot behind the ankle joint and multiple cuts to the forehead. The award cited was KShs. 700,000 in 2014. 29.Those injuries were markedly more serious than the Plaintiff’s injuries, particularly because they included amputation and extensive soft-tissue damage. Although inflation must be considered, the authority does not support an award of KShs. 1,500,000 to KShs. 2,000,000 for the injuries in the present case without further adjustment for the significant difference in severity. 30.Sammy Mugo Kinyanjui & Another v Kairo Thuo- In Sammy Mugo Kinyanjui & another v Kairo Thuo [2017] eKLR, the claimant sustained fractures of the tibia and fibula of both legs. The High Court substituted an award of KShs. 1,000,000 with KShs. 600,000 in 2017. Bilateral tibia and fibula fractures are anatomically more extensive than the Plaintiff’s unilateral distal femur and fibular head fractures. Nevertheless, the present Plaintiff’s recovery and functional impact must be viewed in the context of his pre-existing inability to walk normally and reliance on assistive mobility. Adjusted for inflation and the Plaintiff’s particular vulnerability, the authority supports an award above KShs. 600,000 but substantially below the upper range proposed by the Plaintiff. 31.EWO v Chairman, Board of Governors, Agoro Yombe Secondary School- In EWO (suing as next friend of COW) v Chairman, Board of Governors, Agoro Yombe Secondary School [2018] eKLR, the claimant sustained fractures involving the femur, tibia and fibula. An award of KShs. 800,000 was upheld in 2018. The claimant in that authority sustained more numerous fractures than the present Plaintiff. However, the passage of approximately eight years and the present Plaintiff’s residual pain, stiffness and pre-existing disability justify an award in the vicinity of, or moderately above, the inflation-adjusted value of that award. 32.Kimani v Meresey- In Kimani v Meresey (Civil Appeal E087 of 2022) [2025] KEHC 4819 (KLR), the claimant suffered: A fracture of the distal end of the left femur; A shattered left patella; A fracture of the proximal left tibia with bone loss; and Severe soft-tissue injuries to the knee.The appellate court substituted an award of KShs. 600,000 with KShs. 1,200,000. Although both cases involve a distal femur fracture and injuries around the knee, the injuries in Kimani v Meresey were materially more severe. They included a shattered patella, bone loss, an additional tibial fracture and severe soft-tissue damage. The present Plaintiff did not suffer a shattered patella, bone loss or comparable extensive soft-tissue injury. Accordingly, the award in the present case should be below KShs. 1,200,000. 33.Otieno & Another v Owido- In Otieno & another v Owido (Civil Appeal E007 of 2025) [2026] KEHC 1357 (KLR), the Court considered several authorities involving multiple fractures, amputations and serious knee injuries and found that an award of KShs. 1,000,000 was not excessive. The collection of authorities considered in that decision concerned injuries ranging from bilateral fractures to amputations, bone loss and severe soft-tissue trauma. The Plaintiff’s injuries fall below the most serious cases in that range but are more serious than a single uncomplicated fracture. Appropriate Award 34.The Plaintiff sustained two fractures around the right knee, persistent pain, stiffness and an adverse prognosis. The injuries further impaired a claimant who already depended on a wheelchair due to poliomyelitis. 35.On the other hand: There was no amputation; There was no bone loss; There was no shattered patella; No surgery or internal fixation was demonstrated; The injuries were unilateral; and the disability attributable solely to the accident was not consistently stated. The proposed range of KShs. 1,500,000 to KShs. 2,000,000 is therefore excessive when compared with the authorities relied upon. 36.Taking into account the injuries, the Plaintiff’s vulnerability, residual symptoms, future risk of arthritis, inflation and the cited comparable awards, I find KShs. 700,000 to be fair and reasonable compensation for pain, suffering and loss of amenities. Special Damages 37.The Plaintiff pleaded special damages totalling KShs. 3,600, comprising:a.Police Abstract – KShs. 1,000;b.Medical report – KShs. 2,000; andc.Medical expenses – KShs. 600. 38.Special damages must be specifically pleaded and strictly proved. The Plaintiff produced receipts and supporting documents relating to the pleaded expenses. I therefore award KShs. 3,600 as special damages. Future Medical Expenses 39.The medical report recommended:a.Painkillers and anticonvulsant medication estimated at KShs. 3,000 per month for six months, amounting to KShs. 18,000; andb.Twenty physiotherapy sessions at KShs. 650 per session, amounting to KShs. 13,000. 40.The Plaintiff consequently sought KShs. 31,000 for future medical expenses in the submissions. Future medical expenses are a special form of damages. They must be specifically pleaded and proved. The Plaintiff’s Plaint sought general damages and special damages of KShs. 3,600 but did not specifically plead future medical expenses of KShs. 31,000 41.A party is bound by its pleadings, and submissions cannot amend a plaint or introduce a substantive monetary claim that was not pleaded.The claim for KShs. 31,000 as future medical expenses is therefore declined, notwithstanding the medical recommendation. Damage to the Wheelchair 42.The Plaintiff proved that his wheelchair was extensively damaged. The photographs show damage to the wheelchair, and the Plaint described damage to its wheels, frame, chain and pedal system. 43.However, no specific monetary amount was pleaded for repair or replacement of the wheelchair, and no quotation, valuation, repair invoice or receipt was produced establishing its monetary value. 44.Property damage constitutes special damage and must be specifically pleaded and strictly proved. The Court is consequently unable to make a separate monetary award for the wheelchair. 45.The destruction of the wheelchair and its effect on the Plaintiff’s mobility have nevertheless been considered in assessing general damages. Disposition 46.Judgment is hereby entered for the Plaintiff against the Defendant as follows:a.General damages for pain, suffering and loss of amenities KShs. 700,000Special damages KShs. 3,600Total KShs. 703,600b.The award is subject to 100% liability against the Defendant. There is therefore no deduction for contributory negligence.c.The claim for future medical expenses of KShs. 31,000 is declined for want of pleading.d.The Plaintiff shall have the costs of the suit.e.Interest shall accrue:i.On general damages from the date of this judgment until payment in full; andii.On special damages from the date of filing suit until payment in full, at court rates.Orders accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE