Wanje v Azan Motors Limited & 2 others (Civil Case E001 of 2025) [2025] KEMC 193 (KLR) (16 May 2025) (Interim Judgment)

Wanje v Azan Motors Limited & 2 others (Civil Case E001 of 2025) [2025] KEMC 193 (KLR) (16 May 2025) (Interim Judgment) Neutral citation: [2025] KEMC 193 (KLR) Republic of Kenya In the Lamu Law Courts Civil Case E001 of 2025 FM Mulama, RM May 16, 2025 Between Luganje Kahindi Wanje Plaintiff and Azan Motors Limited 1st Defendant Ahmed Abdi 2nd Defendant Mohamed Bwana 3rd Defendant Interim Judgment Introduction. 1.On or about 11/12/2024 along Witu-Kibaoni road at Pangoni area while the plaintiff was riding motor cycle registration number KMGL 877E the defendants and/or their authorized driver negligently drove managed and/or controlled motor vehicle registration number KDR 739V that the same lost control and hit motor cycle registration number KMGL 877E as a result whereof the plaintiff sustained severe injuries. 2.That as a result of the accident which was caused by the negligence of the respondent’s driver and/or agent which particulars have been pleaded, the claimant sustained injuries to which he wholly holds the respondents liable jointly and severally. 3.The claimant further avers that he sustained cut wound on the left big toe, left lower limb and blunt injury to the left knee and now pleads for compensation in terms of general and special damages of Kshs.2,550/=. 4.The defendants were duly served but failed and/or refused to enter appearance and on 11/4/2025, interlocutory judgement was entered against them. 5.I have considered the pleadings and the submissions as well as the testimony of the plaintiff.Issue For Determination.a.Whether the defendants are liable for the accident.b.What is the quantum of damages awardable if any.c.Who bears costs of the claim. Analysis And Determination. Whether the defendants are liable for the accident. 6.As already stated interlocutory judgment was entered as against the respondent. In the case of William Wagura Maigua vs Elbur Flora Limited (2012) eKLR Justice William Ouko(as he then was) held thus;“the defendant though served with summons to enter appearance or file defence within the stipulated time on 21/10/2011 interlocutory judgment was entered in favour of the plaintiff and the matter was fixed for formal proof. In this case as no appearance or response was filed. The issue of liability was settled in favour of the plaintiff through entry of interlocutory judgement on 21/10/2011 and the plaintiff was under no obligation to call evidence to prove it” 7.In this matter, similar situation obtains. The defendants were served but to date they have not entered appearance and interlocutory judgement having been entered on 11/4/2025 settles the issue of liability. The court therefore makes a finding that the defendants are 100% liable for the accident jointly and severally. What is the quantum of damages awardable if any. 8.It is the plaintiff’s case that he sustained cut on the left big toe, cut on the left lower limb and blunt injury to the left knee. In support of this, he produced treatments notes from Witu sub county referral hospital, P3, abstract as well as the medical report from Gama Medical clinic dated 27/1/2025 all of which confirm the injuries sustained by the plaintiff and which as per the medical report indicate that he sustained soft tissue injuries with no permanent disability. 9.It is trite law that comparable injuries should attract comparable awards see the case of Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR. 10.I have occasion to peruse the authorities relied upon by the plaintiff in his submissions to wit the case of John Wambua vs Mathew Makau Mwalolo & another [2020] eKLR where an award of Kshs.120,000/= was affirmed by the high court for injuries to the right shoulder and a blunt injury to the right big toe and on the basis of this authority he has suggested an award of Kshs.180,000/= 11.On my part I have considered the following 2 authorities. 12.In the case of Peter Kioko & another vs Hellen Muthee Muema [2018] eKLR and in the case of National Cereals & Produce Board vs Protas Wafula Wanyama [2018] eKLR the courts awarded Kshs.200,000/= for amputation of the left big toe. This decisions were cited and relied upon with approval in the case of John Kipkemboi & another vs Bramwel Vukinu[2020] eKLR 13.in the case of Bernard Makau vs Prime Steel limited [2018] eKLR the appellate court maintained an award of Kshs.100,000/= as general damages where the respondent sustained a fracture on his toe and soft tissue injuries. 14.From the 2 authorities I have cited relate to a fracture and amputation of the toe and left big toe and were made in 2018. The injuries relating to a fracture and amputation are very serious than those sustained by the plaintiff herein. 15.Considering the rate of inflation and the passage of time and the fact that the injuries were not severe, I proceed to make an award of Kshs.150,000/= as adequate compensation for pain and suffering. 16.On special damages, it is trite law that they have to be specifically pleaded and proved. The claimant has pleaded Kshs.2,550/= being costs incurred in obtaining the medical report and the motor vehicle copy of records. The same have been proved through a receipt dated 27/1/2025 for Kshs.2,000/= and 17/1/2025 for Kshs.550/= and the same are allowed. Who bears costs of the claim? 17.The basic rule on attribution of costs is that costs follow the event. It is also well recognized that the principle costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case. 18.The claimant having been successful in the matter she is awarded costs of the claim. COnclusion And Disposition. 19.The upshot of the foregoing I make the following final orders;a.The plaint dated 12th February 2025 is allowed in the following terms.Liability 100%General damages Kshs.150,000/=Special damages Kshs. 2,550/=Total Kshs.152,550/=b.The plaintiff is awarded costs and interests from the date of judgment until payment in full. 20.Orders accordingly. **DATED, SIGNED AND DELIVERED AT LAMU PRINCIPAL MAGISTRATES COURT THIS 16****TH****DAY OF MAY 2025.****F.M. MULAMA****RESIDENT MAGISTRATE** In the presence of:Court Assistant:- Fathiya Loo.Ms. Mwombe for the plaintiff