Mbaki v Chedu & Another [2023] KEMC 154 (KLR)

Mbaki v Chedu & Another (Civil Suit E544 of 2020) [2023] KEMC 154 (KLR) (7 June 2023) (Judgment)

Neutral citation: [2023] KEMC 154 (KLR)

Republic of Kenya

In the Chief Magistrate's Court (Milimani Law Courts)

Civil Suit E544 of 2020

JP Aduke, SRM

June 7, 2023

Between

Mercy Waruino Mbaki

Plaintiff

and

Said Chedu & Another

Defendant

Judgment

1. The Plaintiff filed this suit against the defendants after she sustained injuries following a road traffic accident on 02nd Sept 2019 along 1st Avenue in Eastleigh in Nairobi. In the plaint available on record, the plaintiff avers she was a lawful pedestrian trying to board motor vehicle registration number KBC 769S when the Defendants either acting as servant/agent/authorized driver of motor vehicle registration number KBC 769S negligently drove the said motor vehicle that it sped off before the Plaintiff boarded 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 7 of the Plaint while the particulars of alleged negligence are also captured in para 5 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. The suit is defended. At the hearing thereof, the Plaintiff called one witness who testified and adopted their statement on file as their evidence in chief. The Defence was absent on the date of hearing in spite of service from the return of service available on file. The Plaintiff Counsel prayed that the court close the defence case in their absence. The court allowed this oral application and closed the defence case. Parties filed and exchanged submissions. The issues for determination before this court are two:

1. Liability; 5. With respect to Liability, I have seen a copy of the Abstract from Police Records confirming further details in respect of the accident victim and the said motor vehicle registration number KBC 769S. I have seen a copy of the Motor Vehicle Search Records confirming that the 1st defendant was the registered owner of the said motor vehicle as at 22nd January 2020. I have also relied on the testimony of PW1 on record. This confirmation and chronology settles the issue of liability in my view. For the avoidance of doubt, I find that liability is apportioned at a ratio of 100% in favor of the Plaintiff against the defendants.

- 2. Quontum 6. The Plaintiff prays for General Damages, Special Damages, future medical expenses, Costs of the Suit and any other relief. With respect to Special Damages, the Plaint prays for KES 10,825/- as captured in the Plaint. I have seen receipts on record attesting to KES 10,825/-. It is settled principle that special damages must be pleaded and proved. I find that KES 10,825/- has been pleaded and proved and award the same.

7. 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 Civil Appeal Number 126 of 2018 Benuel Bosire v Lydia Kemunto Mokora[2019]eKLR and Patrisiah Adhiammbo Omolo vs Emily Mandala[2020] EKLR where the courts awarded general damages for comparable injuries. From the documents on record, the plaintiff in this instance suffered a fracture of the right lower limb and soft tissue injuries when the accident happened. Taking into account that no amount of damages can restore the Plaintiff to what she was prior to the said accident, the rate of inflation and cost of living, I hereby award KES 350,000/- as general damages for pain and suffering.

8. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 350,000/-2. Special damages KES 10,825/-3. Costs of the suit.4. Interest on 1 and 3 above at court rates.

9. The Plaintiff shall have costs in this suit and interests as outlined above from the date of this judgement until payment in full.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 07TH JUNE 2023 IN THE ABSENCE/PRESENCE OF THE PARTIES AT 3PM.In the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- ………N/A…………….…………………………………………………………..(Name, Signature, Date)3. For the Defence: ……………N/A………………………………….………………………………..(Name, Signature, Date)