Njoroge v Benson & 3 others [2023] KEMC 153 (KLR)

Njoroge v Benson & 3 others (Civil Suit 4615 of 2018) [2023] KEMC 153 (KLR) (10 July 2023) (Judgment)

Neutral citation: [2023] KEMC 153 (KLR)

Republic of Kenya

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

Civil Suit 4615 of 2018

JP Aduke, SRM

July 10, 2023

Between

Ajelika Njeri Njoroge

Plaintiff

and

Gachiri Mwithiga Benson & 3 others

Defendant

Judgment

1. The Plaintiff filed this suit against the defendant after she sustained injuries following a road traffic accident on 10/05/2017 along Nothern Bypass. In the plaint on record, the plaintiff avers she was a lawful passenger aboard motor vehicle registration number KBB 812A when the Defendants and their servant/agent/authorized driver of motor vehicle registration number KAY 264S negligently drove the said motor vehicle and caused to it to hit motor vehicle registration number KBB 812A thereby causing an accident causing the Plaintiff to suffer soft tissue 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 captured in para 6 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 entered appearance and filed a defence. The suit proceeded defended. At the hearing thereof, the plaintiff called two witnesses who testified on oath, relied on the statements on record as evidence in chief and produced documents in support of the claim before me. The defence called one witness who testified on oath.

5. The issues for determination before this court are two: 1. Liability

2. Quontum

6. With respect to Liability, I have seen the abstract from police records confirming the particulars of the accident and the involved parties. I have also seen the motor vehicle copy of records confirming ownership of the blamed motor vehicle. 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 2640/- as captured in the Plaint. I have seen receipts on record attesting to KES 2,640/- It is settled principle that special damages must be pleaded and proved. I find that KES 2,640/- 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 and HB (minor suing through mother and next friend DKM) versus Jasper Nchonga and another [2021} 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 she was prior to the said accident, the rate of inflation and cost of living, I hereby award KES 80,000/- as general damages.

9. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 80,000/-2. Special damages KES 2,640/-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 AtienoSRMJUDGEMENT SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 10TH JULY 2023 AT 11. 3AMIn 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)