Ndungu v Ouma [2023] KEMC 185 (KLR)

Ndungu v Ouma (Civil Suit E12523 of 2021) [2023] KEMC 185 (KLR) (13 June 2023) (Judgment)

Neutral citation: [2023] KEMC 185 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Civil Suit E12523 of 2021

JP Aduke, SRM

June 13, 2023

Between

Ann Wambui Ndungu

Plaintiff

and

Samuel Onyango Ouma

Defendant

Judgment

1. The Plaintiff filed this suit against the defendants after she sustained injuries following a road traffic accident on 11th October 2021 in Dandora Phase 2 along Kenyatta Road in Nairobi. In the plaint on record, the plaintiff avers she was a lawful pedestrian living her best life when the Defendant and driver of motor vehicle registration number KDD 822W saloon negligently and carelessly drove the said motor vehicle and caused it to lose control and 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 and the alleged instances of negligence by the defendant are as captured in para 5 and 4 of the Plaint. The Plaintiff prays for general damages, special damages, loss of earnings, 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 parties recorded a consent on liability which was endorsed by this court in favour of the Plaintiff in the ratio of 80:20 on 17th October 2022

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

6. 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. I have seen receipts on record attesting to 3000 + 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.

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 Johnstone Koech vs Maalim Ibrahim Abdi HCCA 51 of 2017 (Narok) where the court awarded general damages for comparable injuries. The plaintiff in this instance suffered soft tissue injuries in the nature of a sprain on the right knee 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 100,000/- as general damages.

8. The plaintiff prayed for damages on account of loss of earnings. It is settled law that loss of earnings is in the nature of special damages. There exists a plethora of legal authorities on this. As at the date of writing this judgment, I have not seen any documentary proof of proof of earnings of the plaintiff prior to the sprain. I am therefore unable to ascertain the nature of work or gainful employment, if any that the plaintiff used to engage in before the plaintiff sprained her leg. In view of this, I decline to make any awards on this account.

9. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 100,000/-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 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 13TH JUNE 2023AT 1135HRS IN THE PRESENCE OF PARTIES.In the presence of :Court Assistant: Benjamin Kombe.Counsel for the Plaintiff- …………………….…………………………………………………………..(Name, Signature, Date)For the Defence: ……………………………………………….………………………………..(Name, Signature, Date)