Musyoka v Mutua (Civil Case E254 of 2024) [2026] KEMC 105 (KLR)

3. e. Driving carelessly without caring about the safety of the passengers on board; f. Negligently joining the highway without due care and attention; g. Failing to ensure that the said motor vehicle was in proper working condition especially its brakes so as to avoid the accident. The plaintifi further pleaded particulars of injuries sustained as well as those of special damages. She relied on the doctrine of Res ipsa loquitor and prayed for judgment against the defendant for: a. General damages; b. Special damages for Ksh. 25,000/=; c. Costs and interest of the suit. The Defendant’s Defence 4. The defendant entered appearance and filed a statement of defence. The defendant denied that he was the registered and beneficial owner or insured of motor vehicle registration number KDB 780W, denied being in possession and control of the said motor vehicle, denied the occurrence of the accident, denied that the plaintifi was a passenger in the said motor vehicle, denied that the motor vehicle was recklessly and negligently driven and denied that the plaintifi sustained injuries. The defendant denied that the accident was solely caused by the careless and reckless driving by the defendant or his driver and denied the particulars of negligence pleaded in the plaint. 5. In the alternative, the defendant averred that if the accident occurred, which was denied, then the same was not in any way due to negligence of the defendant’s driver or any action attributable to the defendant but the same was caused by or substantially contributed to by the negligence of the plaintifi and the driver of motor vehicle registration number KCZ 185Y/ZF 9507. The defendant pleaded the following particulars of negligence against the plaintifi: 6. a. Failing to fasten seat belt; b. Engaging the driver of motor vehicle registration number KDB 780W in an animated conversation; c. Failing to adhere to the Traffic Act and the Highway Code. The defendant further pleaded the following particulars of negligence or contributory negligence of the driver of motor vehicle registration number KCZ 185Y/ZF 9507: a. Driving a defective motor vehicle; b. Driving at a high and excessive speed in the circumstances; c. Failing to exercise any or proper control and/or maintain suficient look out for motor vehicle registration number KDB 780W; d. Overtaking while it was not safe to do so; e. Failing to exercise due regard for other road users and to adhere to road trafic rules while overtaking; f. Failing to slow down, swerve, stop and/or control the said motor vehicle so as to avoid the accident; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 2

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7. g. Driving under the infiuence of alcohol and other intoxications; h. Encroaching and/or driving into the lane of motor vehicle registration number KDB 780W. The defendant denied the applicability of the doctrines of Res ipsa loquitor and vicarious liability and in the alternative, relied wholly on the Highway Code, the Traffic Act and the doctrine of Volenti non fit injuria. The defendant denied that the plaintifi sufiered any loss and damage. He denied having been served with a notice of intention to sue or demand letter and prayed that the plaintifi’s suit be dismissed with costs. The Evidence The plaintifi ’s Case 8. Only the Plaintifi testified in support of his case. She adopted her statement filed in court as part of her testimony. The plaintifi testified that on 16/6/2024 she was lawfully travelling as in motor vehicle registration No. KDB 780W along Nairobi-Mombasa road. That when they reached near Pipeline area in Mtito Andei, the driver drove carelessly and recklessly by over speeding without due care and attention and caused the motor vehicle to get involved in an accident with motor vehicle registration No. KCZ 185Y/ZF 9507. The plaintifi stated that she sustained injuries as a result of the accident. He blamed the driver of the motor vehicle that she had boarded for the accident. The plaintifi produced documents in support of her case. The Defendant’s Case 9. The defendant did not call any witness. Main Issues for Determination 10. In my opinion, the main issues for determination are as follows: i. Whether an accident occurred on 16/6/2024 near Pipeline area in Mtito Andei along Mombasa-Nairobi road involving motor vehicles registration numbers KDB 780W and KCZ 185Y/Z 9507; ii. Whether the plaintifi was a passenger in motor vehicle registration number KDB 780W at the material time; iii. Whether the defendant was the owner of motor vehicle registration number KDB 780W at the material time; iv. Who was to blame for the accident? v. Whether the defendant is vicariously liable for the accident; vi. Whether the plaintifi sustained injuries and sufiered loss as a result of the alleged accident; vii. Whether the plaintifi is entitled to damages and if so, the nature and quantum thereof; viii. Who should bear the costs of this suit? The Plaintifi's Submissions 11. The plaintifi relied on her evidence on record. I note that the plaintifi introduced a new version of how the accident occurred in her submissions. The version given in the submissions was not part of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 3

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the evidence on record. The plaintifi submitted that she was a mere passenger and that the defendant did not join the other motor vehicle to these proceedings. The plaintifi urged the court to hold the defendant 100% liable. 12. On quantum, the plaintifi submitted a sum of Ksh. 250,000/= in general damages and relied on the following authority: 1. 13. G4S Security Services Ltd v Oyugi Obiria [2018] eKLR The plaintifi and respondent in the appeal sustained blunt trauma to the neck, blunt injury to the back, tenderness to the right ear, blunt injury to anterior chest wall and swollen right hand. The trial court awarded Ksh. 180,000/= in general damages on 19/11/2014. On appeal, the award was afirmed on 21/11/2018. The plaintifi further urged the court to award special damages of Ksh. 5,000/=. The Defendant’s Submissions 14. The defendant also filed written submissions. He also addressed the submissions on evidence that was not adduced at the trial. The submissions mention a police oficer yet no police oficer testified in this case. The defendant contended that the evidence was scanty and not suficient to hold him liable. That the plaintifi had not proven her case on a balance of probability. The defendant urged the court to dismiss the suit with costs. The defendant relied on the authorities of Nzoia Sugar Company Limited v David Nalyanya [2008] eKLR and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. 15. On quantum, the defendant proposed as sum of Ksh. 80,000/= and relied on certain authorities but only attached a copy for the authority of HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR, in which an award of Ksh. 60,000/= in general damages for blunt object injury to the head and neck, thorax, abdomen and limbs, made on 22/10/2019 was afirmed on 6/4/2021. On special damages, the defendant argued that doctor’s and police attendance fees were part of costs but not special damages. He urged the court to disregard the claim and relied on the authority of Masinga Ndonga Ndonge v Kualam Limited [2016] eKLR. The defendant argued that the court should only award what was specifically pleaded and strictly proved by way of receipts save for the doctor’s and police oficer’s attendance fees. Analysis and Determination 16. I have carefully considered the evidence on record and given due regard to the submissions made by the parties. From the testimony of the plaintifi and the documents produced in evidence, I have no doubt that an accident occurred on 16/6/2024 near Pipeline area in Mtito Andei along Mombasa-Nairobi road involving motor vehicles registration numbers KDB 780W and KCZ 185Y/ZF 9507. There is also suficient evidence to show that the plaintifi was a passenger in motor vehicle registration number KDB 780W at the time of accident. The police abstract produced in evidence confirmed the position. In any event, the plaintifi's evidence was not controverted by the defence. 17. The plaintifi produced in evidence a copy of records from the Registrar of motor vehicles which indicates that the defendant was the registered owner of motor vehicle registration number KDB 780W as at 18/9/2024. The police abstract produced in evidence also indicates that the defendant was the owner of the said motor vehicle at the time of the accident. The defendant did not attend court to deny that he was the owner of the said motor vehicle. I am satisfied that the defendant was the owner of motor vehicle registration No. KDB 780W at the time of accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 4

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Liability 18. There is only one version regarding the accident. This was the version that was given by the plaintifi. It is the duty of the plaintifi to establish or prove negligence on the part of the defendant. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintifi must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held thus: “ The burden was always on the plaintifi to prove his case on the balance of probabilities even if the case was heard on formal proof.” 19. In the authority of Eastern Produce (K) Limited v Christopher Atiado Osiro [2006] KEHC 3200 (KLR), the court held: “ It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, where it was held that ‘there is as yet no liability without fault in the legal system in Kenya, and a plaintifi must prove some negligence against the defendant where the claim is based on negligence’. I have in mind the description of negligence as is to be found in Salmond and Heuston on The Law of Torts 19th Edn. where it is described as ‘conduct, not a state of mind – conduct which involves an unreasonably great risk of causing damage……….negligence is the omission to do something much a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human afiairs, would do, or doing something, which a prudent and reasonable man would not do.’ (Underlining is mine) The position is laid more clearly as ‘In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby sufiered by the person to whom the duty was owing.’ (Lord Wrigur in Lochgelly Iron and Coal Co. v M’Mullan [1934] A. C. I, 25).” 20. The evidence of the plaintifi is that the driver of motor vehicle registration number KDB 780W drove carelessly, recklessly and/or negligently by over speeding without due care and attention and that he permitted the motor vehicle to get involved in an accident with another motor vehicle. I find the statement to be vague. The statement is in the plaint as well as the witness statement of the plaintifi which was adopted as part of her testimony. The plaintifi did not clearly state how the accident occurred. It would appear that the plaintifi was not sure of what exactly happened. There is no clear evidence of what the driver of motor vehicle registration number KDB 780W did or failed to do so as to cause the accident. Merely stating that he “permitted it to get involved in an accident with motor vehicle registration number KCZ 185Y/ZF 9507” does not make any sense. 21. In her evidence in-chief, the plaintifi did not clearly state how the accident occurred. When she was cross-examined by counsel for the defendant, she stated that both motor vehicles were heading in the same direction and that the motor vehicle she had boarded was ahead. In further cross-examination, the plaintifi stated that the other motor vehicle hit the one she was travelling in on the left side where she was seated. It is not clear how the motor vehicle behind rammed on the left of the motor vehicle ahead. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 5

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The plaintifi was too economical with the facts of the case. If the other motor vehicle was behind and that it rammed into the defendant’s motor vehicle, why is the plaintifi blaming the defendant’s driver? 22. In the authority of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR), the Court of Appeal held: “ Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is suficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed the burden on the appellant to prove that the collision was not due to his negligence.” 23. If motor vehicle registration number KCZ 185Y/ZF 9507 was behind and rammed into the side of motor vehicle registration number KDB 780W, it would imply that the driver of the former motor vehicle was overtaking on the left. How and where did the collision occur? The question that remains unanswered is who was then on the wrong, or caused and or contributed to the accident? From the record it is dificult to blame the defendant for the accident given the foregoing scenario. The mere fact that an accident involving the two vehicles occurred does not per se translate into the defendant's driver being culpable. It was the duty of the plaintifi to call evidence to prove the particulars of negligence or any one of them that she attributed to the defendant's driver. I do not think that the plaintifi discharged this burden. 24. The version given by the plaintifi in her submissions was not in evidence. Submissions cannot take the place of evidence. This was held by the Court of Appeal in the authority of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, in the following words: “ Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ ‘marketing language’, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 25. From the evidence on record, I am unable to ascertain how and where the two motor vehicles collided, if at all. The evidence on record does not portray a meaningful picture of what transpired on the material day. The plaintifi relied on the doctrine of Res ipsa loquitor. In the leading case of Scott v London and St Katherine Docks Co (1865) 3 H & C 596, Erle CJ at page 600 held as follows: “ There must be reasonable evidence of negligence. But, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it afiords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care”. 26. In Black’s Law Dictionary 9th Edition page 1424, the principle is defined as follows: “ [Latin “the thing speaks for itself”] Torts. The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case. Often shortened to res ipsa.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 6

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The Dictionary goes further to explain the circumstances the Court will infer negligence as follows: “ The phrase ‘res ipsa loquitur’ is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintifi’s prima facie case, and present a question of fact for the defendant to meet with an explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature as to justify a jury, in light of common sense and past experience, in inferring that the accident was probably the result of the defendant’s negligence, in the absence of explanation or other evidence which the jury believes.” “ It is said that res ipsa loquitur does not apply if the cause of the harm is known. This is a dark saying. The application of the principle nearly always presupposes that some part of the causal process is known, but what is lacking is evidence of its connection with the defendant’s act or inference that the defendant’s negligence was responsible. It must of course be shown that the thing in his control in fact caused the harm. In a sense, therefore, the cause of the harm must be known before the maxim can apply.” “ Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintifi in particular cases to establish the defendant’s likely negligence. Hence the res ipsa loquitur doctrine, properly applied, does not entail any covert form of strict liability … The doctrine implies that the court does not know, and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of the causes of the type or category of accidents involved.” 27. Kennedy L.J. in Russel v L. & S. W. Ry [1908] 24 T.L.R. 548 at p. 551 held as follows: “ ….that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without. The res speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is some want of reasonable care under the circumstances.” 28. The Learned Judge then continued: “ Res ipsa loquitur does not mean, as I understand it, that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implies negligence. That is absurd. It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of.” 29. In Henderson v Henry E Jenkins & Sons [1970] AC 282 at 301 Lord Pearson stated: “ In an action for negligence the plaintifi must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintifi’s action fails. The formal burden https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 7

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of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintifi’s favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential of proof resting on the defendants...” 30. In the case of Embu Public Roads Services Ltd v Riimi (1968) EALR 22, the Court of Appeal held as follows: “ The doctrine of res ipsa loquitor is one which a plaintifi, by proving that an accident occurred, in the circumstances in which an accident should not have occurred thereby discharges in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident.” 31. From the foregoing, it is clear that the doctrine of res ipsa loquitor applies only where circumstances are established which afiord reasonable evidence (in the absence of explanation by the defendant) that the incident leading to the injuries arose from their negligence. In an appropriate case, the plaintifi establishes a prima facie case by relying upon the fact of the incident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintifi will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the incident. 32. Loosely speaking, this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case. On the basis of the evidence on record, a prima facie case of negligence has not been established as there is no causal link between the driver of the accident motor vehicle and the injuries that were sustained by the plaintifi. The doctrine, in my view, will not apply to the circumstances of this case. It is not reasonably possible to decide on the evidence on record as to who is to blame for the accident. I find no suficient evidence to hold the driver of motor vehicle registration number KDB 780W liable for the accident. That being the case, the defendant cannot be held vicariously liable. Quantum 33. The upshot of the above considerations is that the plaintifi’s suit is for dismissal. The practice of the courts is that even where the court dismisses a claim for general damages, the trial court is obliged to assess the quantum of damages that it would have awarded had the claim been proven. The position has been upheld time and again by the superior courts. For instance, in the case of Gladys Wanjiru Njaramba v Globe Pharmacy and another [2014] eKLR, the court observed that: “ It is trite law that the trial court was under duty to assess the general damages payable to the plaintifi even after dismissal of the suit. This position is confirmed by the Court of Appeal in the case of Mordekai Mwangi Nandwa versus Bhogals Garage CA No. 124 of [1993] (UR) Where the court held that the that damages be assessed even if the case is dismissed does not imply writing an alternative judgment.”. The position was afirmed by the Court of Appeal in the case of Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR. 34. The medical evidence on record indicates that the plaintifi sustained the following injuries: a. Blunt injury to the head; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 8

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35. b. Cut wound on the forehead; c. Blunt injuries to the neck; and d. Blunt injuries to the anterior chest wall. There is no contrary evidence. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. This Court has to bear in mind the principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said: “ But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 36. I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that: “ In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintifi and the defendant. …………………..the plaintifi cannot be fully compensated for all the loss sufiered but the court should aim at compensating the plaintifi fairly and reasonably but in the process should not punish the defendant.” The following principles are germane in assessing damages for personal injury claims: 37. i. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries sufiered; ii. The award should be commensurate to the injuries sufiered; iii. Awards in decided cases are mere guides and each case should be treated on its own facts and merit; iv. Where awards in decided cases are to be taken into consideration then the issue of or element of infiation has to be taken into consideration; v. Awards should not be inordinately too high or too low. Based on the above principles, I proceed to assess the damages payable as follows. General Damages for pain, sufiering and loss of amenities 38. I have considered the injuries sustained by the plaintifi. The medical evidence produced by the plaintifi indicates that the plaintifi was treated as an outpatient. I have further considered the submissions made by the parties on quantum as well as the authorities relied upon. The authorities relied upon by the parties are comparable. On my part, I have considered the following authorities: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 9

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1. Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR. The plaintifi and respondent in the appeal sustained rugged cut wounds on the temporal region of the head, soft tissue injuries to the neck, anterior chest, lower back, shoulders, right hand as well as swelling and bruises on the right index finger and both legs. The trial court awarded Ksh. 250,000/= in general damages on 26/5/2021. On appeal, the award was afirmed on 3/3/2022. 2. Ochola v Owuor [2024] KEHC 7689 (KLR). The plaintifi and respondent in the appeal sustained soft tissue injuries to the right shoulder joint, soft tissue injuries to the anterior chest wall, soft tissue injuries to the neck, back and both knees. The trial court awarded Ksh. 250,000/= on 12/5/2022. On appeal, the award was reduced to Ksh. 150,000/= on 25/6/2024. 3. Pascal v Ouko [2023] KEHC 24463 (KLR). The plaintifi and respondent in the appeal sustained chest contusion, blunt injuries to the back, scalp, neck, upper limbs and lower limbs and lacerations to the right knee. The trial court awarded Ksh. 200,000/= in general damages on 21/12/2021. On appeal, the award was reduced to Ksh. 150,000/= on 18/10/2023. Given the age of the awards in the above authorities coupled with the vagaries of infiation, I find that an award of Ksh. 200,000/= in general damages would have suficed. I would have awarded the same. Special Damages 39. The plaintifi pleaded special damages as follows: a. Medical report…………………………………..….Ksh. 5,000/= b. Police oficer’s court attendance fee……Ksh. 10,000/= c. Doctor’s court attendance fee……………..Ksh. 10,000/= Total…………………………………………………….Ksh. 25,000/= It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/ a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said: “It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 40. In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintifi in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratclifie v Evans [1832] 2 Q.B. 524 an English leading case on pleading and proof of damage: “ The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 10

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Only Ksh, 5,000/= for the medical report was proven as per the law. I would have awarded the same as special damages. I further agree with the defendant that attendance costs for the doctor and police oficer cannot be claimed as special damages. They would form part of costs of the suit. Disposition 41. In summary, I hold that the plaintifi has failed to prove her case on a balance of probabilities as against the defendant. Consequently, the plaintifi’s suit is hereby dismissed with costs to the defendant. I am reminded of the famous quotation by Lord Goddard, C.J. in Bonham Carter v Hyde Park Hotel Ltd [1948] 64 T.R. 177 wherein he observed thus: “ Plaintifis must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying, 'this is what I have lost, I ask you to give me these damages'. They have to prove it.” DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 27TH DAY OF APRIL, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/105/eng@2026-04-27 11

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