https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/181

**REPUBLIC OF KENYA** **N THE CHIEF MAGISTRATE’S COURT AT MARIAKANI** **CIVIL SUIT NO. E022 OF 2024** **YVONNE WANJIKU IRUNGU……………PLAINTIFF** **=VS=** **=VERSUS=** **ABDALLA MWINYI MWAGUO……………………………..DEFENDANT** **JUDGMENT** **Background of the matter** 1. The matter is for determination on the question of quantum of damages as the case was undefended. Interlocutory judgment entered on 4/2/2026 and case proceeded: Formal proof hearing on 1/4/2026, with Mr. Okoko advocate appearing for plaintiff. **Yvonne Wanjiku Irungu plaintiff** testified adopting her witness statement for 5/12/2023 and produced documents in bundle for 5/12/23 filed 15/2/2024 as ***exhibits 1-7 exhibit 1 medical examination p3 form, exhibit 2 police abstract, exhibit 3 treatment notes; medical report exhibit 4, receipts exhibit 5, statutory notice exhibit 6, demand letter exhibit 7.*** 2. The plaintiff testified that she is still living with scars on the face. The job she was in was administration, when she resumed after staying home to recover she had been replaced. 3. **PLEADINGS:** The Plaintiff’s claim was filed on 15/2/2024 vide plaint dated Plaint dated 5/12/2023 through Kihoro & Company advocates for plaintiff. 4. Reliefs sought: General damages for pain suffering and loss of amenities**,** *Special damages Kshs. 2,000/= for medical report particularized in paragraph 9 of the Plaint; future medical costs paragraph 8 of plaint;* Cost of suit and Interest. 5. Plaint dated 5/12/2023 filed 15/2/2024. The motor vehicle blamed for the accident is registration number KDB 269M/ZG 4409 FAW: pleaded paragraph 4 of the Plaint: a the cause of action is negligence of the driver/owner of KDB 269M/ZG 4409 FAW: on grounds that the driver of the said vehicle owner or agent and/or employee of the owner, so negligently, recklessly, and/or carelessly drove the said vehicle that he lost control of the same and hit motor vehicle registration number KDB 618Y that the Plaintiff was lawfully aboard on **28/7/2023.** Particulars of negligence of the driver of KDB 269M/ZG 4409 FAW: are pleaded in paragraph 9( a-n)of the plaint, in summary that he was reckless careless in the manner he controlled and drove the said vehicle; he drove without care and attention for other road users; veered off the proper lane; he failed to exercise due care and skills to avoid the accident; he lost control of the vehicle and hit vehicle registration number KDB 618Y that the Plaintiff was aboard. 6. After causing the accident the said driver fled the scene of the accident. The plaintiff was injured as a result. Injuries sustained are pleaded in paragra**phs 5 and 6 of the plaint:** plaintiff sustained the severe injuries: particularised a) *Cuts, lacerations, bruises and abrasions right cheek area; b) Injury left eye – embedded glass particle causing ulceration; c) Blunt trauma to lower abdomen leading to uterine injury with vaginal bleeding.* The injuries suffered by the plaintiff predisposed her to: *a) Risk of uterine rapture in future pregnancies; or during labor due to the uterine injury; b) the scars on right cheek will be of cosmetic and psychological impact* 7. Plaintiff was assessed by **Dr. Darius Wambua Kiema** in the Report dated 25th September 2023 to have sustained partial permanent disability / incapacity two percent (2%) considering the injuries suffered and expected bone remodelling, due to post traumatic pathological skin lesions, and the risk of uterine rupture in future pregnancies/delivery. The degree of the injuries was classified as **grievous harm i**n the P3 Form, thus the impact of the injuries on the plaintiff is serious impairment and endangers life permanently. 8. Submissions: Plaintiff filed Submissions dated 27/4/2026. After submissions, on 30/4/26 judgment was reserved. Plaintiff ***prays for: -A. General damages- Kshs. 1, 200,000/=;B. Special damages Kshs. 2,000/=; C. Cost of this suit*** ***D. Interest on (A), and (B) until payment in full.*** 1. The plaintiff prays for relief as pleaded in the plaint and submits award of Kshs. ***1,200,000/=*** for pain and suffering will be just considering that she was injured as shown in Dr. Kiema’s report and at a time when she was ripe for for child bearing 29years. Given the uterine injury plaintiff must now reassess and think twice about pregnancy given the risk of uterine rapture she the injuries predisposed her to. The plaintiff has cited a decision submitted to involve injuries comparable to those she suffered **MEHARI TEWOLDGE T/A MEHARI TRANSPORTERS LTD V DAMUS MUASYA MAINGI [2013] KEHC 3712 (KLR).** Plaintiff submits the court upheld an award of Kshs. 1,500,000 for injuries involving internal damage and long-term complications. 2. The injuries in this case have enduring and life-altering consequences to the plaintiff are aggravated as the blunt trauma to lower abdomen led to uterine injury with vaginal bleeding and there risk of uterine rapture in future pregnancies or during labor due to the uterine injury. 3. Plaintiff relies on the **medical report** produced. The cuts, lacerations, bruises and abrasions on the right cheek area left scars on right cheek which will be of cosmetic and psychological impact. 2% permanent partial incapacity affecting overall functioning and quality of life. The reproductive risk and cosmetic disfigurement are factors relevant in determining a reasonable award. 4. The plaintiff has proved the case on a balance of probabilities. Had the driver of the said vehicle been careful in his driving, the accident would not have resulted and the plaintiff would not have suffer the injuries. The defendant should be held 100% liable for the accident and the resulting injuries and damages suffered by the plaintiff. 5. Plaintiff prays for general damages of Kshs. 1,200,000/= for pain, suffering and loss of amenities; Special Damages: as she incurred Kshs 2,000/= cost for medical report and treatment. Costs: cost follows the event. Plaintiff submits the defendant should be held liable for the accident and should shoulder costs of the suit. Plaintiff prays for 6. The plaintiff’s submissions dated 27/4/ 2026 are filed By Kihoro & Company Advocates For The Plaintiff. 7. **Analysis and findings:** The court has considered the evidence tendered by the plaintiff, and the submissions. 8. As was held in DT Dobie & Co. Ltd Vs Wanyonyi Wafula Chebukati (2014) eKLR. An excerpt of Dennings J from a case cited in the DT Dobie case***"....….****.proof of a balance or preponderance of probabilities means a**win, however narrow. A draw is not enough”…..So………………, where both parties explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained*" 9. The plaintiff’s case has not been challenged. The evidence plaintiff has tendered proves the accident occurred as pleaded. The only account of how the accident occurred is that given on oath by the plaintiff. The defendant failed to defend the suit though served. Case of **North End Trading Company Limited carrying on business under registered name Kenya Refuse Handlers Limited= Vs =The City Council of Nairobi** **(2019)** eKLR, most aptly sums up the consequences of the defendant *failing to call evidence* even where a defence has been filed.The holding by J. A. Makau judge in **paragraphs 15 and 21** in **North End case c**ited by the plaintiff **“*………………****The failure to call evidence means the evidence adduced by the plaintiff remain uncontroverted and therefore unchallenged. In s****uch a situation the plaintiff is taken to have proved its case on a balance of probability in absence of the defendant’s evidence.*** *Where the Plaintiff has given evidence and documents to support his case, a defence in which no evidence has been adduced to support the averments, cannot be used to challenge the Plaintiff's case. In absence of the defendant's evidence, the Plaintiff is taken to have proved its case on a balance of probability………………………..”* 10. On **liability issue,** the court is satisfied and finds the plaintiff's evidence to be credible that the driver of the vehicle driver of KDB 269M/ZG 4409 FAW was careless in the manner he drove and controlled the said vehicle resulting in the occurrence of the accident. Particulars of negligence are pleaded in paragraph 9( a-n) of the plaint. 11. The court agrees with the plaintiff’s submission that evidence adduced is uncontroverted as the defendant did not tender any evidence. **Occurrence of the accident** is affirmatively proved by evidence of PW 1 plaintiff and the exhibits tendered. The only *explanation* that the court has been offered as to how the accident occurred is the narration by PW1. 12. The Police abstract ***exhibit 2*** confirms the plaintiff was one of the passengers injured in the accident. Abstract from Mackinon traffic ref OB 08/28/07/23 shows one Abdalla Mwinyi Mwaguo driver of KDB 269M /ZG 4409 FAW was charged for causing death by dangerous driving in TR case E 440/2023 *fatal injury in regard to one Lilian Njoroge.* 13. The uncontested information on the accident of 28/7/2023 stated in the police abstract dated 27th September 2023 confirms the occurrence of the accident. It shows vehicles involved in the accident KDB 269M/ZG 4409 FAW, and KDB 618Y which plaintiff was lawfully aboard. Without evidence to the contrary as in this case, the court finds the information contained in the police abstract supports the evidence of the plaintiff: confirms the occurrence of the accident and the person faulted for causing the accident **Abdalla Mwinyi Mwaguo**, sued in this case. He was blamed as driver of KDB 269M/ZG 4409 FAW. 14. The court finds the defendant **Abdalla Mwinyi Mwaguo**, is liable for negligence. The court finds the defendant is ***wholly liable for the accident of 28/7/2023 and the resulting injuries sustained by the plaintiff.*** 15. The finding on liability in this case shall apply in Mariakani Civil Case no. E024 of 2024 DIANA ROSE IRUNGU =VERSUS= ABDALLA MWINYI MWAGUO, as the plaintiff here and in the case mentioned were both passengers in motor vehicle KDB 618Y on 28/7/2023 when the defendant here hit the said vehicle and resulted injuries sustained in the respective cases. 16. **Quantum of damages:** The considerations in assessing damages are the *nature of injuries sustained* and a*wards made in comparable cases* such that awards made should be reasonably within the ranges of awards made by the superior courts in comparable cases. The cost of inflation must be factored in where older awards are considered. 17. The case cited by the plaintiff MEHARI above, is remote in comparability of injuries. The case decided on appeal by Lady Justice B. Thuranira Jaden, 11/4/2013 largely involved fractures to the ribs, chest, tibia and fibula. The one injury that may somewhat relate to the nature of injuries in the current case is that of blunt abdominal trauma with laceration of the liver. The injured man suffered severe internal bleeding as a result of that injury. The decision does not assist court as the plaintiff's case here requires a look at how courts have compensated plaintiffs whose reproductive health is negatively impacted due to injuries sustained. 18. This court has thus considered the decision in Peace Kemuma Nyang'era= Vs= Michael Thuo & another (2014) eKLR. In 2014 Justice Aburili awarded the Plaintiff Kshs. 2.5million for pain, suffering and loss of amenities. The injuries were: fractures of sacrum bone-lowest back bone spine, fracture of right Superior pubic ramus- right hip bone, fracture of right ischium bone of the pelvis- lower part as one sits, haematoma on both thighs, haematoma in the lumbar-sacral- lower part of spine between the buttocks. She underwent 3 surgeries and had implants affixed at the fractured pelvis and lower back. ***Due to multiple fractures on pelvis plaintiff had high risk of difficulties in pregnancy and child birth.*** She developed permanent limping gait due to the fractures to the pelvis, with permanent incapacity assessed at 45%. 19. On severity of injuries the case **Peace Kemuma** no doubt involved more severe injuries than those in this case. 20. The Plaintiff in this case no doubt suffered severe injuries, pleaded and proved. Injuries pleaded in paragraphs 5 and 6 of the plaint:a) *Cuts, lacerations, bruises and abrasions right cheek area; b) Injury left eye – embedded glass particle causing ulceration; c) Blunt trauma to lower abdomen leading to uterine injury with vaginal bleeding.* Its pleaded the injuries suffered by the plaintiff predisposed her to: *a) Risk of uterine rapture in future pregnancies; or during labor due to the uterine injury; b) the scars on right cheek will be of cosmetic and psychological impact* 21. The court is satisfied that plaintiff suffered severe injuries: injuries were classified as **grievous harm i**n the P3 Form exhibit 1. 22. The medical report by Dr. Darius Wambua Kiema dated 25th September 2023 was produced as **exhibit 4.** Assessed the plaintiff to have sustained partial permanent disability / incapacity 2% considering the injuries suffered and expected bone remodelling, due to post traumatic pathological skin lesions, and the risk of uterine rupture in future pregnancies/delivery. 23. Dr. Kiema’s report shows the impact of the injuries sustained by the plaintiff have predisposed her permanently. Plaintiff not only faces risk of uterine rupture during pregnancy or in labour but also has to face life with multiple scars on the right cheek. As a young lady there is no doubt that such scars will have psychological impact upon her as stated in the medical report. 24. **On** the issue of quantum of damages to be awarded to the plaintiff, the court bears in mind that in assessment of damages as was stated by Court of Appeal in **Simon Taveta vs Mercy Mutitu Njeru Civ Appeal 26 of 2013 (2014) eKLR** ..*"The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past"* 25. Having considered the evidence on record the court finds the award sought by the plaintiff of **Kshs. 1,200,000/=** is just to award in this case. This award will earn interest at court rates from the date of judgment until paid in full. 26. **Special damages** pleaded Kshs. 2,000/=have been proved Vide plaintiff's exhibits 5. The court ***awards Kshs. 2,000/= pleaded and proved.*** This award will earn interest at court rates from the date of suit 15/2/2024 until paid in full. 27. Costs: the plaintiff served both demand letter exhibit 7 upon the defendant and statutory notice upon the insurance GA Insurance Limited exhibit 6 duly stamped received 13/10/2023. 28. The court awards the Plaintiff costs of suit with interest. JUDGMENT DATED, SIGNED & DELIVERED THIS…**26th.DAY OF……JUNE…**..2026 **T. N. SINKIYIAN, Principal Magistrate** IN PRESENCE OF: For the plaintiff:………ABSENT…………...………………. Kihoro & Co. Advocates Defendant ……ABSENT Court Assistant:…MICHAEL WESONGA.