Zaweriah Wangari Gikenye v Naftali Ngugi Kuria

circumstances, driving without due care and attention, failing to exercise proper control of motor vehicle registration number KBD 848 U, failing to stop, slow down or otherwise manoeuvre the vehicle so as to avoid the accident, and such other particulars of negligence as might be inferred from the circumstances of the accident. 6) The Plaintiff further relied on the provisions of the Traffic Act, Cap. 403 of the Laws of Kenya, the Highway Code and the doctrine of res ipsa loquitur. 7) The Plaintiff testified on oath and adopted her witness statement as her evidence in chief. She explained the circumstances under which the accident occurred and how she sustained injuries. Her evidence was that she was a lawful passenger in Motor Vehicle registration number KBD 848 U and that she was injured when the vehicle started moving while she was in the process of alighting. 8) The Plaintiff produced documentary evidence in support of her case, including the Police Abstract, P3 Form, medical report, medical treatment documents and receipts relating to the expenses incurred. The Plaintiff submitted that the Police Abstract corroborated the occurrence of the accident and involvement of the subject motor vehicle, while the medical documentation established the nature and extent of the injuries suffered. 9) The medical evidence established that the Plaintiff sustained multiple lacerations on the face, pain in the left temporomandibular joint with difficulty opening the mouth, facial bruising around the right periorbital region, bruising of the upper lip and lower chin, extrusion and mobility of tooth 21, fracture of tooth 11, deranged occlusion on the left, fracture of the symphyseal region of the mandible and mobility of the fractured segment of the mandible. 10) The Plaintiff testified that she suffered pain and trauma and incurred medical expenses as a result of the accident. She pleaded and claimed Special Damages of Kshs.57,951.00 comprising Kshs.500.00 for the Police Abstract and Kshs.57,451.00 for medical expenses. 11) In her written submissions, the Plaintiff urged the Court to award Kshs.600,000 .00 as General Damages for pain, suffering and loss of amenities. She relied, inter alia, on Mutisya & Another v Khaemba (Civil Appeal E183 of 2023) [2024] KEHC 9019 (KLR) and Mugoye v Siso t/a

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Jogoce’s Group (Civil Appeal E147 of 2023) [2024] KEHC 13031 (KLR). The Plaintiff submitted that, having regard to the nature and extent of the injuries, medical evidence, comparable authorities and the passage of time, Kshs.600,000.00 would constitute fair compensation. 12) With regard to special damages, the Plaintiff submitted that the sum of Kshs.57,951.00 had been specifically pleaded and strictly proved through the receipts and supporting documents produced before the Court. She therefore urged the Court to award the said sum together with costs and interest. THE DEFENDANT'S CASE 13) The Defendant did not enter appearance or file a defence within the prescribed period. 14) Following service and the Defendant's failure to defend the suit, interlocutory judgment was entered against the Defendant and the matter proceeded to formal proof. 15) The Defendant did not participate in the formal proof proceedings. No witness was called on behalf of the Defendant and no documentary evidence was tendered to controvert the Plaintiff's evidence concerning the occurrence of the accident, the circumstances in which it occurred, the injuries sustained or the expenses incurred. 16) The Defendant also did not file written submissions. Consequently, there is no evidence or submission from the Defendant challenging the Plaintiff's account of the accident, the medical evidence, the quantum claimed or the special damages pleaded. 17) Nevertheless, the absence of a defence or participation by the Defendant does not automatically entitle the Plaintiff to the reliefs sought. The Plaintiff retains the legal burden of proving her claim to the requisite standard. PROCEDURAL HISTORY 18) The Plaintiff filed the suit seeking compensation arising from the accident of 30th November ,2023. 19) Following the Defendant's failure to enter appearance and defend the suit, interlocutory judgment was entered and the matter was listed for formal proof. 20) The formal proof hearing proceeded on 9th September, 2026, when the Plaintiff testified and produced the documentary evidence relied upon in support of her claim.

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21) The Plaintiff thereafter filed her written submissions. The Defendant neither participated in the proceedings nor filed submissions. ANALYSIS AND DETERMINATION AND ISSUES FOR DETERMINATION 22) The issues arising for determination are whether the accident occurred in the manner pleaded by the Plaintiff; whether the Defendant was negligent and liable for the accident; whether the injuries pleaded by the Plaintiff were proved; what amount of general damages should be awarded; whether the special damages claimed were specifically pleaded and strictly proved; and what orders should issue as to costs and interest. LIABILITY 23) Section 107(1) of the Evidence Act provides that 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. Section 108 places the evidential burden upon the person who would fail if no evidence were given by either side. 24) The applicable standard in civil proceedings is proof on a balance of probabilities. In Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that the burden of proving allegations made in a Plaint rest upon the Plaintiff and that the burden is not discharged merely because the Defendant has failed to adduce evidence. 25) In the present case, the Plaintiff gave direct evidence that she was a lawful passenger in motor vehicle registration number KBD 848 U and that, while she was in the process of alighting at Queensway, the vehicle suddenly moved, causing her to fall. 26) The Plaintiff's evidence was supported by the Police Abstract and medical documentation produced before the Court. Her evidence concerning the occurrence of the accident and her subsequent treatment was not challenged. 27) A driver owes passengers a duty to exercise reasonable care for their safety. That duty includes ensuring that the vehicle does not move before a passenger has safely alighted. 28) In Embu Public Road Services Ltd v Riimi [1968] EA 22, the Court recognised the Application of the doctrine of res ipsa loquitur where the circumstances of an accident give

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rise to an inference of negligence. The doctrine does not dispense with the Plaintiff's legal burden but may place an evidential burden upon the Defendant to provide an explanation. 29) In the present matter, the Plaintiff was a passenger and had no control over the operation or movement of the motor vehicle. Her evidence was that the vehicle moved while she was still alighting. That evidence was not controverted. 30) The Defendant, being in control of the motor vehicle, was under a duty to ensure that the Plaintiff had safely alighted before moving the vehicle. No explanation was given as to why the vehicle moved before she had completed the process of alighting. 31) I therefore find, on a balance of probabilities, that the accident occurred substantially in the manner pleaded by the Plaintiff and that the Defendant was negligent in moving or allowing motor vehicle registration number KBD 848 U to move before the Plaintiff had safely alighted. 32) I consequently find the Defendant 100% liable for the accident and the injuries suffered by the Plaintiff. INJURIES 33) The medical evidence establishes that the Plaintiff sustained multiple facial lacerations, pain in the left temporomandibular joint with difficulty opening the mouth, right periorbital, upper lip and lower chin bruising, extrusion and mobility of tooth 21, fracture of tooth 11, deranged occlusion and a fracture of the symphyseal region of the mandible with mobility of the fractured segment. 34) The injuries were therefore not confined to soft tissue. They affected the Plaintiff's face, jaw, temporomandibular joint and teeth. The Court is satisfied that the injuries pleaded by the Plaintiff were proved and were causally connected to the accident of 30th November 2023. GENERAL DAMAGES 35) The Plaintiff claimed and submitted for an award of Kshs.600,000.00 as General Damages for pain, suffering and loss of amenities. 36) The guiding principle is that comparable injuries should, as far as possible, attract comparable awards, while recognising that no two cases are exactly alike. In Stanley Maore v Geoffrey Mwenda [2004] eKLR, the Court of Appeal emphasised the importance of consistency in awards for

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comparable injuries. The Court must nevertheless consider the particular facts and injuries established in each case. 37) In Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, the Court of Appeal similarly held that assessment of damages requires consideration of the nature and extent of the injuries and comparable awards. 38) In Ahmed Mzee Famau T/A Najaa Coach Limited & Another v Veronicah Ngii Muia [2017] eKLR, the claimant sustained a fracture of the lower jaw/right mandible together with other injuries and was awarded Kshs.500,000.00 as General Damages. The case is relevant because the Plaintiff herein also sustained a mandibular fracture. 39) In Kweri Peter & 2 Others v Ann Wanjiku Maina [2017] eKLR, the claimant sustained skeletal injuries and loss of two upper incisor teeth and was awarded Kshs.600,000.00. The decision is a useful comparator because the Plaintiff herein sustained significant dental trauma in addition to a mandibular fracture. 40) In BK Suing Through His Mother and Next Friend EM v Wilson Gitari Mburugu [2020] eKLR, an award of Kshs.400,000.00 was made for multiple facial injuries, injuries to the thorax, abdomen and upper limbs, severe injuries to the maxilla and mandible resulting in loss of five teeth and cuts on the lip. The authority demonstrates the range of awards made for significant facial, jaw and dental injuries. 41) In Mutisya & Another v Khaemba (Civil Appeal E183 of 2023) [2024] KEHC 9019 (KLR), the High Court considered several authorities involving facial and dental injuries. The Court ultimately substituted an award of Kshs.1,500,000.00 with Kshs.750,000.00, noting that the injuries before it were principally soft-tissue injuries, together with a head injury and loss of eight teeth, while cases attracting higher awards involved more serious multiple fractures. 42) The Plaintiff also relied on Mugoye v Siso t/a Jogoce’s Group (Civil Appeal E147 of 2023) [2024] KEHC 13031 (KLR). In that case, the High Court awarded Kshs.4,000,000.00 for substantially more serious facial and maxillofacial injuries, including significant disability and reconstructive surgery. The authority is therefore

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distinguishable on the basis of the considerably greater severity of the injuries. 43) In Sancha v Oeri & Another (Civil Appeal No. 1 of 2022) [2023] KEHC 4145 (KLR), an award of Kshs.800,000.00 was made for substantially more extensive maxillofacial and dental injuries, including fractures and loss of an upper incisor. That case consequently provides a higher comparative reference rather than an exact equivalent of the present injuries. 44) The authorities demonstrate that awards for facial, mandibular and dental injuries vary according to the combination and severity of the injuries proved. In the present case, the Plaintiff suffered a mandibular fracture together with facial lacerations, TMJ pain and difficulty opening the mouth, facial bruising, dental trauma and deranged occlusion. 45) I have considered the Plaintiff's written submissions and the authorities relied upon. I have also considered the comparable decisions and the need to avoid either overcompensation or an award that fails to reasonably compensate the Plaintiff for the pain, suffering and loss of amenities proved. 46) Having regard to the totality of the injuries, the medical evidence, the pain and suffering endured, the involvement of the mandible, TMJ and teeth, the facial injuries, the dental trauma, the comparable authorities and the passage of time, I find that the amount of Kshs.600,000 proposed by the Plaintiff is fair and reasonable. 47) Accordingly, as proposed by the Plaintiff and upon my independent assessment of the evidence and authorities, I award the Plaintiff Kshs.600,000.00 as General Damages for pain, suffering and loss of amenities. SPECIAL DAMAGES 48) The Plaintiff pleaded Special Damages of Kshs.57,951.00,comprising Kshs.500.00 for the Police Abstract and Kshs.57,451.00 in medical expenses. She submitted that the amount had been specifically pleaded and strictly proved through the receipts and supporting documents produced before the Court. 49) The established principle is that special damages must be specifically pleaded and strictly proved. In Hahn v Singh,

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Civil Appeal No. 42 of 1983 [1985] KLR 716, the Court of Appeal affirmed that special damages must not only be specifically claimed but must also be strictly proved. 50) Having considered the receipts and supporting documentary evidence produced by the Plaintiff, I am satisfied that the pleaded special damages were proved to the required standard. I therefore award the Plaintiff Kshs.57,951.00 as Special Damages. CONCLUSION AND DISPOSITION 51) In the result, I find that the Plaintiff has proved her case on a balance of probabilities. The Defendant is held 100% liable for the accident and the injuries sustained by the Plaintiff. 52) Judgment is accordingly entered in favour of the Plaintiff against the Defendant as follows: Kshs.600,000.00 as General Damages for pain, suffering and loss of amenities; Kshs.57,951.00 as Special Damages; making a total award of Kshs.657,951.00 General damages for Pain , suffering and loss Amenities.......................................Kshs.600,000.00 of Special Damages ............................................................Kshs.57,951.00 Total ............................................................................ ...Kshs.657,951.00 53) The Plaintiff is awarded the costs of the suit. 54) Interest on Special Damages shall accrue from the date of filing the suit until payment in full while Interest on General damages shall accrue from the date of delivery of this Judgment until payment in full. 30 days' Right of Appeal.

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__________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 30.9.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 30TH DAY OF SEPTEMBER,2026 In the presence of : M/s Thuo Holding Brief for Mr.Kimani for the Plaintiff Defendant: Absent Court Assistant: Phoebe.

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