Mary Wambui Mukai v John Karanu Wachira & Moses Mwangi Njoroge

republicofkenyainthechiefmagistrate’scourtatnakurucivilsuitno410of2023marywambuimukaiversusjohnkaranuwachi ra1stdefendantmosesmwanginjoroge2nddefendantjudgment accident was solely caused by the 2 nd Defendant who drove motor vehicle KCF 891M, TOYOTA MATATU, negligently and at a high speed when he swerved in the opposite lane thereby causing a head on collision with motor vehicle registration number KCE 688J. That as a result, the plaintiff sustained scalp hematoma and soft tissue injuries of the right shoulder joint. 3. The plaintiff particularized her claim of Defendants’ negligence in Paragraph 6 of hER Plaint, further amended on 12/05/2025. The 1 st Defendant has been sued in his capacity as the registered owner of the motor vehicle, while the 2 nd Defendant as the driver. The Defendants in their Statement of Defense aver that the Plaintiff and/or driver of motor vehicles registration numbers KCE 688J negligently contributed to the accident. The Defendants, however, did not call any witness in support of their case 4. The plaintiff testified as PW1 and relied on her documents filed alongside the plaint herein as his exhibits in support of his case. At the close of the hearing and submissions, the accident has not been challenged. The Plaintiff is the only witness who testified. She further called the police officer, PW2, NO. 253122 PC ALEX KIOGORA, as her witness. She also produced various exhibits. The, Defendants, on the other hand, never adduced any evidence at all either in support of their defense and or to controvert Plaintiff’s evidence on liability. Page 2 of 6

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republicofkenyainthechiefmagistrate’scourtatnakurucivilsuitno410of2023marywambuimukaiversusjohnkaranuwachi ra1stdefendantmosesmwanginjoroge2nddefendantjudgment That being the case, liability and quantum are basically the issues of determination from the evidence tendered by the Plaintiff. Determination on liability and quantum 5. On liability, the plaintiff testified as PW1, adopted her statement and produced various exhibits on which she blames the accident solely on the Defendants. According to the Plaintiff’s oral and documentary evidence, which is well on record before this court, the accident was caused wholly and solely by the negligence of the Defendants as per the particulars of the negligence pleaded in Paragraph 6 of the Further Amended Plaint, as the 2nd Defendant drove at a high speed that he lost control of the motor vehicle, and thereby veered into the lane of motor vehicle KCE 688J in which the plaintiff was travelling, as a result of which the plaintiff sustained the injuries. Plaintiff’s evidence remains unchallenged as the defendants have not tendered any evidence to controvert the plaintiff’s evidence or support their defense. 6. In an action for negligence, the burden of proof falls on the party alleging to establish each element of the negligence, hence it is for the Plaintiff herein to adduce evidence of facts on which she bases her claim. It must be established that there was a duty of care which was breached resulting to loss and damage to the Plaintiff. The Plaintiff herein therefore has a duty to prove her case on a Page 3 of 6

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republicofkenyainthechiefmagistrate’scourtatnakurucivilsuitno410of2023marywambuimukaiversusjohnkaranuwachi ra1stdefendantmosesmwanginjoroge2nddefendantjudgment balance of probabilities that the Defendants were so negligent so as to occasion the accident that led to the Plaintiff’s injuries. The onus may shift to the Defendants if the Defendant pleads that the Plaintiff was contributory to the accident. 7. The Plaintiff has discharged her duty of burden of proof through the oral and documentary evidence on record before this honorable court a position of which is unchallenged as the defendants have not adduced any evidence to controvert the plaintiffs evidence or and support their defense. I refer to the case of LINUS NGANGA KIONGO & 3 OTHERS V TOWN COUNCIL OF KIKUYU [2012] e KLR where the court held that if the defendant fails to call evidence in support of his case, the evidence adduced by the plaintiff against him remains uncontroverted and therefore unchallenged. This leads to the irresistible conclusion that the Defendants were 100% liable for the accident from the evidence adduced in court. 8. On quantum, I do find the medical evidence adduced by the plaintiff herein, mainly, the P3 form, and Dr. Wellington K. Kiamba’s medical report, have been able to prove that the plaintiff herein sustained the injuries pleaded. I do not find material contradictions therein. Page 4 of 6

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republicofkenyainthechiefmagistrate’scourtatnakurucivilsuitno410of2023marywambuimukaiversusjohnkaranuwachi ra1stdefendantmosesmwanginjoroge2nddefendantjudgment 9. I am aware of the guiding principles in awarding general damages such as: damages should be within the limits set out by decided cases, within my pecuniary jurisdiction, within the limits that the Kenyan economy can afford and must be commensurate to the kind of injury, and extent of pain and suffering. I rely on the case of WEST AND SONS V SHEPHERD [1964] eKLR, where Lord Morris stated that in assessing damages in injuries cases, comparable injuries should be compensated by comparable awards. 10.I find that the injuries sustained by the plaintiff herein are in the same class or category with those sustained by the victims in the authorities cited by the learned counsel for the plaintiff. I thus do hereby rely on the same and award the plaintiff Kshs. 450,000/- as general damages for pain and suffering herein. 11.As to special damages, it is trite that the plaintiff is only entitled to special damages pleaded and proved by way of evidence usually through receipts. Plaintiff pleaded the following in paragraph 6 of the Further Amended Plaint; a. Medical Report – Kshs. 8,000.00 b. Medical Expenses - Kshs. 1,811.00 12.As correctly submitted by the learned counsel for the defendant, the plaintiff has only been able to prove Kshs. 8,000/- medical report vide PEXH. NO. 4B. Some receipts for various medical expenses totaling to Kshs. 1511/- were also Page 5 of 6

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republicofkenyainthechiefmagistrate’scourtatnakurucivilsuitno410of2023marywambuimukaiversusjohnkaranuwachi ra1stdefendantmosesmwanginjoroge2nddefendantjudgment produced as PEXH. NO.7. I thus do find the plaintiff entitled to award of special damages pleaded and proved amounting to Kshs. 9,511/=. 13. Judgment is therefore hereby entered against the defendants herein jointly and or severally, and in favor of the plaintiff herein for Kshs. 450,000/- being general damages for pain and suffering, and Kshs. 1,511/- being special damages. Plaintiff also gets the costs of this suit and interest. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS… 06th …DAY OF …October...2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintiff’s Counsel: n/a Defendants’ Counsel: Mwira Plaintiff: n/a 1st Defendant: n/a 2nd Defendant: n/a Page 6 of 6

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