Mtange v Ondari & 3 others [2023] KEMC 212 (KLR)

Mtange v Ondari & 3 others (Civil Suit E7616 of 2020) [2023] KEMC 212 (KLR) (19 June 2023) (Judgment)

Neutral citation: [2023] KEMC 212 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Civil Suit E7616 of 2020

JP Aduke, SRM

June 19, 2023

Between

Josphat Mafori Mtange

Plaintiff

and

David Ondari & 3 others

Defendant

Judgment

1. The Plaintiff filed this suit against the defendant after he sustained injuries following a road traffic accident on 31/01/2020 along Valley Road in Nairobi. In the plaint on record, the plaintiff avers he was a lawful passenger aboard motor vehicle registration number KAX 213S when the 1st , 2nd, 3rd and 4th Defendants and his servant/agent/authorized driver of motor vehicle registration number KAX 213S negligently drove the said motor vehicle and caused it to lose control and collide with motor vehicle registration KCK 347Y causing an accident 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 4 of the Plaint while the particulars of alleged negligence are captured in para 4a of the Plaint. The Plaintiff prays for general damages, special damages, costs of the suit and interest.

4. Return of Service on Record shows that the defendants were served with the suit papers. The defendants neither entered appearance nor filed a response. As a result, judgement in default was entered against the defendant. The suit is undefended. At the hearing thereof, the plaintiff called one witness who testified on oath, and produced documents in support of the claim before me.

5. The issue for determination before this court is one:1. Quontum

6. With respect to Liability, I note that judgment in default was entered against the defendants on 15th March 2022. This settles the issue of liability. For the avoidance of doubt, I find that liability is apportioned at a ratio of 100. 00 in favor of the Plaintiff.

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 3,550/- as captured in para 4 of the Plaint. I have seen receipts on record attesting to KES 3,000 + 550/-. It is settled principle that special damages must be pleaded and proved. I find that KES 3,550/- 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 Eldoret HCC 107 of 2018 Samwel Martin Njoroge Kamunyu vs Mildred Barasa where the court awarded general damages for comparable injuries. The plaintiff in this instance suffered soft tissue injuries 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 150,000/- as all inclusive general damages.

9. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 150,000/-2. Special damages KES 3,550/-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 as above 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 19TH JUNE 2023 AT 11AMIn 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)