https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/394

Katundu v DWA Estate Limited (Civil Case 475 of 2015) [2026] KEMC 394 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEMC 394 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 475 of 2015 YA Shikanda, SPM July 23, 2026 Between Boniface Muendo Katundu Plaintiff and DWA Estate Limited Defendant Judgment The Claim 1.Boniface Muendo Katundu (hereinafter referred to as the plaintiff) filed this suit on 12/10/2015 vide a plaint dated 9/10/2015. The plaintiff sued Dwa Estate Limited (hereinafter referred to as the defendant) on account of an industrial accident that allegedly occurred on 24/7/2015 at Dwa Estate Limited, while the plaintiff was in the course of his employment with the defendant. The plaintiff averred that it was a term of the contract of employment between him and the defendant and/or it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while he was engaged upon his work and not to expose him to a risk of injury. 2.The plaintiff further averred that on the material day, he was changing spreader tips with his colleagues when his colleague suddenly and without warning, twisted the spreader tips causing the wheel to move in the opposite direction, as a result of which the plaintiff’s left middle finger was chopped off. That the said injury, loss and damage was occasioned to the plaintiff by reason of the negligence and/or breach of statutory duty on the part of the defendant, their servants or agents. The plaintiff pleaded several particulars of negligence against the defendant but in view of the consent on liability, I will not reproduce them. 3.The plaintiff further pleaded the particulars of injuries sustained as well as those of special damages and prayed for judgment against the defendant for:a.General damages;b.Special damages;c.Costs of the suit and interest. The Defendant’s Defence 4.The defendant entered appearance on 9/12/2015 and filed a statement of defence on the same day. The defendant denied the allegations contained in the plaint and in particular denied that the plaintiff was its employee, denied the existence of a contract of employment between the defendant and the plaintiff, denied that it was its duty to take all reasonable precautions for the safety of the plaintiff while engage upon the said employment and denied the occurrence of the accident. The defendant further denied the particulars of injuries and special damages pleaded by the plaintiff as well as the particulars of negligence and/or breach of statutory duty. In the alternative, the defendant averred that the accident, if at all, was solely caused by the plaintiff. The defendant pleaded several particulars of negligence as against the plaintiff and prayed that the plaintiff’s suit be dismissed with costs. Consent on Liability and Evidence 5.On 20/4/2026, the parties recorded a consent in the following terms:a.Judgment on liability be entered in the ratio of 20% against the plaintiff and 80% against the defendant;b.The plaintiff’s claim supporting documents filed in court be admitted in evidence without calling the makers;c.Parties to file submissions on quntum. 6.The consent was adopted as an order of the court. Main Issues for Determination 7.In my view, the main issues for determination are as follows:i.Whether the plaintiff sustained injuries and suffered loss as a result of the accident;ii.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;iii.Who should bear the costs of this suit? The Plaintiff's Submissions 8.On quantum, the plaintiff submitted a sum of Ksh. 700,000/= in general damages and relied on alleged authorities, whose copies were not annexed. The plaintiff further prayed for special damages of Ksh. 3,000/= as well as costs of the suit and interest. The Defendant’s Submissions 9.The defendant proposed an award of between Ksh. 200,000/= and Ksh. 300,000/= in general damages. The defendant also relied on alleged authorities whose copies were not annexed. The defendant had no objection to the award of Ksh. 3,000/= as special damages. Analysis and Determination 10.I have carefully considered the evidence on record and given due regard to the submissions made by the parties. Quantum 11.The medical evidence on record indicates that the plaintiff sustained the following injury:a.Traumatic amputation of the 3rd digit of the left hand. 12.The same injury was pleaded in the plaint. There is no contrary evidence with respect to the plaintiff's injuries. There is sufficient evidence to prove that the plaintiff sustained injuries as a result of the accident. Given the fact that the defendant has been partially held liable for the accident, the plaintiff is thus entitled to damages as against the defendant. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. 13.This Court has to bear in mind the principles that guide assessment of damages as espoused in //**West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 14.I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that:“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.” 15.The Court of Appeal in Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730 held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.” 16.The following principles are germane in assessing damages for personal injury claims:i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered;ii.The award should be commensurate to the injuries suffered;iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit;iv.Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration;v.Awards should not be inordinately too high or too low. 17.Based on the above principles, I proceed to assess the damages payable as follows. General Damages for and Suffering. 18.I have considered the injury sustained by the plaintiff. On my part, I have further considered the following authorities: 1. West Kenya Sugar Co Ltd v Joseph Sore Shirambula [2021] KEELRC 2149 (KLR). 19.The plaintiff and respondent in the appeal herein sustained an amputation of the distal phalanx left index finger at the distal interphalangeal joint and crush injury to the left index finger. The trial court awarded Ksh. 600,000/= on 26/8/2015. On appeal, the award was reduced to Ksh. 450,000/= on 17/2/2021. 2. Otieno v General Motors East Africa Ltd & 2 others [2022] KEHC 11475 (KLR). 20.The plaintiff and appellant in the appeal sustained soft tissue injury to the face, traumatic amputation of the left thumb at the proximal phalanx, fracture of the middle phalanx of the left finger and severe soft tissue injury of the left hand. The trial court awarded Ksh. 250,000/= on 30/9/2019. On appeal, the award was enhanced to Ksh. 450,000/= on 14/7/2022. 21.The victims in the above authorities sustained injuries that were more severe that the plaintiff herein. Given the nature of the injuries sustained by the plaintiff herein, the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. 350,000/= in general damages would suffice. I award the same. Special Damages. 22.The plaintiff pleaded special damages as follows:a.Medical report………………….Ksh. 3,000/= 23.It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort- v - Phoenix of East Africa Assurance Co. Ltd the court said: “It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 24.In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratcliffe v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 25.The claim was sufficiently proven. Consequently, I award Ksh. 3,000/= as special damages. Disposition 26.In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendant. Consequently, I make the following awards:1.General damages for pain, suffering and loss of amenities...........Ksh. 350,000/=2.Special damages…………………………………………………………………..…...…..Ksh. 3,000/=Total…………………………………………………………………………….………..……………...Ksh. 353,000/=Less 20%........................................................................................................Ksh. 70,600/=Balance payable to the plaintiff……………………………..………………………….……Ksh. 282,400/= 27.The plaintiff is also awarded interest on the damages as well as costs of the suit. The defendant will pay 80% of the costs payable to the plaintiff. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that:“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” 28.In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that:“First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:a.The period from the date the suit is filed to the date when the Court gives its judgment; andb.The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” 29.Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (Civil Appeal NO.6 of 2012, UGSC 4(8th April 2015) stated in part, as follows:“It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.”(Emphasis supplied) 30.From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). 31.Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full whereas interest on special damages shall accrue from the date of filing suit to the date of judgment. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 23RD DAY OF JULY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.