Maundu v Mageto & another [2023] KEMC 219 (KLR)

Maundu v Mageto & another (Civil Suit 6407 of 2019) [2023] KEMC 219 (KLR) (12 June 2023) (Judgment)

Neutral citation: [2023] KEMC 219 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Civil Suit 6407 of 2019

JP Aduke, SRM

June 12, 2023

Between

Kilunda Maundu

Plaintiff

and

Frederick Ouru Mageto

1st Defendant

Joseph Omaiko Moturi

2nd Defendant

Judgment

1. The Plaintiff filed this suit against the defendants after he sustained injuries following a road traffic accident on 06/03/2019 at a road in Reuben Slums in Nairobi. In the plaint on record, the plaintiff avers he was a lawful pedestrian living his best life when the Defendant and his servant/agent/authorized driver of motor cycle registration number KMER 723R negligently and carelessly drove the said motor cycle and caused it to hit the Plaintiff causing the Plaintiff to suffer injuries.

2. The Plaintiff blames the Defendants and their agents/authorized servants for causing the said accident. The Plaintiff further avers that the said accident was solely caused by the negligence of the Defendants.

3. The particulars of injuries sustained by the Plaintiff are captured in para 6 of the Plaint while the particulars of alleged negligence are captured in para 4 of the Plaint. The Plaintiff prays for general damages for pain and suffering, special damages, costs of the suit and interest at court rates.

4. Return of Service on Record shows that the defendants were served with the suit papers. Judgement in default of appearance was entered against the 1st and 2nd Defendant on 09th of January 2020. The formal proof hearing proceeded before Hon Omollo, who has since moved to the Small Claims Court. Parties filed written submissions.

5. The issue for determination before this court is one:

1. Quontum 6. With respect to Liability, I have seen an entry of the interlocutory judgement on file. This, in my view, settles the issue of liability.

7. The Plaintiff prays for General Damages, Special Damages, Costs of the Suit and any other relief. With respect to Special Damages, the Plaint prays for KES 4,440/- as captured in para 6 of the Plaint. I have seen receipts on record attesting to KES 4,440/-. It is settled principle that special damages must be pleaded and proved. I find that KES 4,440/- has been pleaded and proved and award the same.

8. With respect to general damages, I have considered all the submissions on record and the authorities annexed thereto. I have also considered all the exhibits on record. In particular, I have relied on the reasoning of the court in Kweri Peter & others vs Ann Wanjiku Maina [2017] eKLR where the court awarded general damages for comparable injuries. The plaintiff in this instance suffered a fracture of the wrist (radius) when the accident happened. Taking into account that no amount of damages can restore the Plaintiff to what he was prior to the said accident, the rate of inflation and cost of living, I hereby award KES 300,000/- as general damages.

9. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 300,000/-2. Special damages KES 4,440/-3. Costs of the suit.4. Interest on 1 and 3 above at court rates.

10. The Plaintiff shall have costs in this suit and interests at court rates from the date of this judgement until payment in full.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 12TH JUNE 2023 AT 10AM.In the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- ............(Name, Signature, Date)3. For the Defence: .......................(Name, Signature, Date)