Mulinge v Maisha Steel (EA) Limited & another (Civil Suit E076 of 2026) [2026] KEMC 343 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATES COURT AT KALOLENI** **CIVIL SUIT NO. E076 OF 2026** **SAMUEL MULI MULINGE…………………………………………………PLAINTIFF** **VERSUS** **MAISHA STEEL (EA) LIMITED……………………………………1ST DEFENDANT** **MAISHA STELL (EA) LIMITED……………………………………2ND DEFENDANT** **JUDGMENT** **Background** 1. The plaintiff seeks the following reliefs: 2. General damages. 3. Special damages. 4. Costs and interest. 5. The defendants despite being served did not appear nor file statements of defence and as such interlocutory judgment was sought and entered. **Plaintiff’s Case** 1. On 30th January 2026 the plaintiff was driving motor vehicle registration number KCK 702H at Dam View area along Kaloleni - Mariakani Road when the defendants’ motor vehicle registration number KDG 678W/ZG7784 was so negligently controlled or managed made an abrupt U – Turn causing it to ram into motor vehicle registration number KCK 702H and as a result thereof the plaintiff sustained injuries. 2. The plaintiff holds the position that the accident was caused by the negligence and carelessness of the defendants or their driver. Particulars of negligence on the part of the defendants’ or their driver have been pleaded together with particulars of injuries the plaintiff sustained alongside particulars of special damages. **Evidence** 1. **PW1 - Samuel Muli Mulinge** adopted his filed witness statement dated 6/2/2026 as his testimony in chief. He also produced documents contained in his filed list of documents as exhibits. The plaintiff blamed the defendants’ driver for causing the accident by making a U – Turn at a wrong spot. He finally sought for compensation. **Analysis and Determination** 1. This court has thus considered the pleadings herein and the totality of the evidence on record and the submissions filed. I find that the issues that arise for determination are: 2. Liability 3. Quantum. 4. Costs. 5. The plaintiff is required to establish his case on a balance of probabilities. 1. It is also a principle of law that whoever lays a claim before the court against another has the burden to prove it. Section 107 of the [Evidence Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1963/46) provides as follows:- ***(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** **Liability** 1. On liability, it is my finding that the defendants despite being served did not appear nor file a defence. This court finds that the plaintiff’s case is uncontroverted. The plaintiff also testified and produced the necessary exhibits in support of the case herein. Secondly, the police abstract produced indeed confirms the occurrence of the said accident as pleaded and that the plaintiff sustained injuries. 2. In **Shukri & another v Odhiambo & another (Civil Case 1 of 2022) [2025] KEHC 18227 (KLR) (28 November 2025) (Judgment)**it was held as follows ***“Every driver on a road owes a duty of care to other road users and must have regard to the conditions of the road at the time including any objects that could be on the road including animals”*** 1. The court having evaluated the evidence herein finds that the defendants’ driver breached his duty of care by making U – Turn at a wrong spot thus ramming into the plaintiff’s vehicle. The court therefore holds the defendants 100% vicariously liable who as per the police abstract and copy of records produced were the owners of the motor vehicle herein. 2. In **Masinde v Wanunda (Civil Appeal E021 of 2021) [2023] KEHC 17246 (KLR)** **(12 May 2023) (Judgment)** it was held as follows with regards to the contents of a police abstract: ***“Once the police abstract was placed on record, showing him to be the owner*** ***of the motor vehicle, the burden shifted to him, to disprove that. The police*** ***abstract is a document generated by the police, based on material on the*** ***motor vehicle itself. There is an insurance sticker which shows the insured owner of the vehicle, and in this instance, that insured owner appeared, on the insurance sticker, as the appellant. Burden shifted to him to challenge that evidence, either by demonstrating that he was not the person named in the police abstract, or otherwise. He did not, and the case, as presented by the respondent, stood. The trial court was not in error.”*** **Quantum** 1. The plaintiff pleads that he sustained the following injuries: 2. Cut/laceration on the lower lip. 3. Blunt trauma on the left hand 4. Blunt trauma to the chest. 5. Blunt trauma to the back. 6. Blunt trauma to the knees. 7. Dr. Darius Kiema in his medical report dated 6/2/2026 confirms those injuries . The treatment notes and the P3 form which were produced as exhibits also speak to the said injuries. 8. In **Equity Bank of Kenya Limited vs David Githuu Kuria (2020) eKLR,** the High Court awarded Kshs 250,000/= for blunt injury (tender) anterior chest wall, cut wounds left knee and swollen tender left knee 9. In the case of [**Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2020/4128)**[2020] eKLR** the high court awarded the sum of Kshs. 150,000/- for blunt object injury to the lower lip, blunt object injury to the chest, and blunt object injury to the left wrist. 10. Further, in **Harun Muyoma Boge v Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR**, the High Court held as follows **“The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”** 1. Looking at the totality of the injuries sustained by the plaintiff alongside effluxion of time and inflation rates a figure of **Kshs. 300,000/=** as general damages for pain and suffering is sufficient compensation which this court then grants. **Special Damages** 1. The court of appeal in **Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716**, held as follows; **“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”** 1. The plaintiff pleaded special damages of Kshs. 5,700/=. The plaintiff produced a receipt for preparation of the medical report amounting to Kshs. 2000/=, and copy of records receipt of Kshs. 550/= and company search receipt amounting to Kshs. 650/= The court therefore finds that special damages that were pleaded and proved amounted to **Kshs. 3,200/=** which are hereby then granted. **Costs** 1. On costs, Section 27(1) of the Civil Procedure Act, provides that: ***“ Subject to such conditions and limitations as may be prescribed…the costs of and incidental to all suits shall be in the discretion of the court, and the court shall have full power to determine by whom and out of what property and to what extent such costs are to be paid... “*** 1. In **Kirugi v Jan Japan (K) Limited & another (Civil Appeal E011 of 2023) [2026] KEHC 4486 (KLR) (12 March 2026) (Ruling)** the High Court held as follows: ***“The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others {2014} eKLR emphasized that while the general rule is that costs follow the event, the Court retains a wide discretion which must be exercised judiciously and not mechanically, and held that “Costs follow the event but the court has discretion to determine otherwise depending on the circumstances of the case.”*** 1. In **William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526** the High Court held as follows: **“*In ordinary civil cases, a case may be determined in favour of a*** ***party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”*** 1. The plaintiff having established his case against the defendants on a balance of probabilities is awarded costs of the suit. **Summary of Prayers Granted.** 1. In conclusion therefore, I accordingly enter judgment in favour of the plaintiff against the defendants jointly and severally as follows: 2. **Liability 100% against the defendants.** 3. **General damages -Kshs. 300,000/=** 4. **Special damages – Kshs. 3,200/=** **Total - Kshs. /= 303,200/= (Plus interest at court rates from the date of filing suit till payment in full.** 1. **The plaintiff is also awarded costs of the suit.** Judgment Dated, Signed and Delivered at Kaloleni this 23rd Day of July 2026. **G. M. MOKUA** **RESIDENT MAGISTRATE** **In the presence of:** **Miss. Nyambura for the Plaintiff.** **N/A for the Defendants.** **Sam - Court Assistant.**