https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/246

Ooga v Jay Transporters Limited & another (Civil Case E193 of 2025) [2026] KEMC 246 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 246 (KLR) Republic of Kenya In the Narok Law Courts Civil Case E193 of 2025 EM Mutuku, RM June 30, 2026 Between Caleb Nyakundi Ooga Plaintiff and Jay Transporters Limited 1st Defendant Shrirang Enterprises Limited 2nd Defendant Judgment 1.The Plaintiff instituted this suit vide a plaint dated 16th June 2025 seeking special damages of Kshs.30,350.00, general damages for pain and suffering, cost of future operations, loss of income and or damages for diminished earning capacity, costs of the suit and interest, and any other relief that this court may deem fir to grant. 2.The Defendant appeared and filed a defence to the case dated 12th August 2025. 3.When the case came up for hearing parties recorded a consent in the following terms:By consent of both parties, judgment is hereby entered at the ratio of 85:15 in favour of the Plaintiff against the Defendants jointly and severally.That the Plaintiff’s statement dated 16th June 2025 be adopted as his evidence in chief.That the documents in the list dated 16th June 2025 be adopted as exhibit 1 – 10. 4.By the list of documents dated 16th June 2025, the Plaintiff produced the following documents;Copy of IDDemand letter dated 17th March 2025Medical report by Dr. Wellington K. KiambaP3 formPolice abstractMotor vehicle copy of records for KBX 835JMotor vehicle copy of records for ZE3346NTSA receipt ref. no. 2YJABNM for Kshs.550.00NTSA receipt ref. no. 2E4AKZZ for Kshs.550.00Receipt by Dr. W. K. Kiamba for Kshs.12,000.00Receipt from Narok County Referral Hospital for Kshs.2,250.00Receipt from Minto Taxi Cabs & Services for Kshs.15,000.00 5.Directions on filing of submissions were given and at the time of writing this judgment all the parties had filed their written submissions. Issues For Determination: 6.I have considered the pleadings, witness statements and documentary evidence produced and both parties’ written submissions together with the cited authorities; as well as the relevant law. Consent judgment on liability was already recorded at the ratio of 85:15 in favour of the Plaintiff. 7.The issues arising for determination by this court are:i.What is the quantum of damages awardable?ii.What orders ensue? Analysis and Determination: Quantum: 8.The Plaintiff pleaded that he sustained depressed fracture of the skull, deep cut wound on the nose, deep cut wound on the upper lip, cut wound on the left knee, blunt injury to the right knee, blunt injury to the chest, blunt injury to the back, blunt injury to the shoulder, and blunt abdominal injury. The injuries are corroborated by the medical report and the P3 form. Both P3 form and medical report have classified the injuries as grievous harm. 9.In Mbaka Nguru and Another vs. James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR the Court of Appeal stated:The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions. 10.The Plaintiff relied on the cases of James Thiongo Githiri vs. Nduati Njuguna Ngugi [2012] eKLR; and, Kornelius Kweya Ebichet vs. C&P Shoe Industries Ltd [2008] eKLR; and proposed an award of Kshs.2,000,000.00 in general damages. 11.The Defendant has proposed and award of Kshs.500,000.00 while relying on Watu Credit Co. Ltd vs. Matere (Civil Appeal E055 of 2023) 2025 KEHC 2608 (KLR); and, Kariuki vs. Maina alias Peter Murimi (suing through next friend Rosemary Muthoni (Civil Appeal E009 of 2023) (2025) KEHC 7831. 12.I have considered the authorities cited by the Plaintiff. The injuries suffered by the victim in James Thiongo Githiri vs. Nduati Njuguna Ngugi included fracture of the right leg at three places and one fracture on the left leg. The fracture of the right tibia and fibula mal-united resulting into a permanent deformity and permanent disability was assessed at 50%. In the case of Kornelius Kweya Ebichet vs. C&P Shoe Industries Ltd the victim sustained a mid-shaft, fibular fracture and a distal third tibia fracture, there was wasting of the leg muscles, he also had a sinus measuring about 10 cm with foul smelling seropurulent discharge. The doctors opinion was that the victim was still subjected to pain and life morbidity, there was non-union and progressive chronic osteomyelitis of the left tibia bone, part of the bony tissue was lost due to osteomyelitis with the effect of resulting in abnormal leg movement at the fracture site and that he would remain permanently disabled. I find the injuries sustained by the Plaintiff in the instant case to be less serious compared to the injuries in the two cases. 13.As for the authorities cited by the Defendants, in Watu Credit Co. Ltd vs. Matere the victim had suffered head injury with loss of consciousness, depressed skull fractures, cut wound on the forehead, laceration, 7 bruises on the right shoulder and laceration on the right elbow. The victim was awarded Kshs.750,000.00 but an appeal was dismissed for failure to file a decree with the Judge noting that he would have awarded 500,000.00 in general damages. In Kariuki vs. Maina alias Peter Murimi (suing through next friend Rosemary Muthoni, the victim had sustained severe head injury, Convulsions and loss of consciousness, Liner frontal bone fracture extending to sagittal suture, Right orbital region swelling with foreign bodies, Bruise and cut wounds above, on the right side and below the right eye, Right upper lip dep cut wound, Deep bruise over left shoulder, Multiple bruises over posterior right shoulder area, Left upper arm cut wound, Posterior left elbow cut wound, Multiple right forearm cuts and bruises wound, Deep cut multiple wounds at the back right hand, Multiple bruise wounds on the right hand. On appeal the award was reviewed to Kshs.500,000.00. I find the authorities cited by the Defendant to be comparable in the circumstances. 14.Having regard to the above analysis and the injuries suffered by the Plaintiff, that as a result of the depressed fracture of the skull he is at a risk of developing post traumatic epilepsy, the authorities cited, inflation rates and comparable trends; I find that a sum of Kshs.750,000.00 in general damages for pain and suffering would sufficiently compensate the Plaintiff and accordingly award Kshs.750,000.00. Special Damages: 15.It is trite law that special damages must be specifically pleaded and strictly proved, see the decision of the court of appeal in Virani t/a Kisumu Beach Resort vs. Phoenix of East Africa Assurance Company Ltd [2004] eKLR. 16.The Plaintiff claims special damages of Kshs.30,350.00 that is medical and transport expenses of Kshs.17,250.00, medical report Kshs.12,000.00 and motor vehicle search. The Defendants have not opposed the special damages and additionally, the Plaintiff produced receipts proving the special damages of Kshs.30,350.00 which is awarded. Future Medical Expenses: 17.It is trite law that future medical costs are in the nature of special damages but parties need not plead the exact figure. On this issue, the Court of appeal in Kenya Power & Lighting Company Limited vs. AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment) held as follows:As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the Respondents did during their testimony. 18.The Plaintiff pleaded for costs of future operations. I have perused the medical report filed by the Plaintiff and there is no indication that he will need any future operations or in that matter a proposal of future medical expenses. Accordingly, I agree with the Defendants the claim for future medical expenses has not been proved and therefore fails. Loss of Earnings And/or Damages for Dimished Earning Capacity: 19.The Plaintiff pleaded that prior to the accident he was an artisan earning about Kshs.30,000.00 per month which he has lost and continues to lose and prayed for compensation until when he will recover and or damages for diminished earning capacity. 20.In SJ vs. Franscesco Di Nello & Another (2005) eKLR the Court of Appeal held as follows:Claims under the leads of loss of future earning capacity are discretionary different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as domination in earning capacity in earnings capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence.On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. 21.Other than pleading loss of income in the statement of claim and witness statement, the Claimant has not filed any evidence to prove his losses. However in the submissions it is pleaded in the alternative that the minimum wage of a casual laborer under the Regulation of Wages (General) (Amendment) Order 2024. The minimum wage proposed was Kshs.16,113.75. 22.It must be noted that the accident occurred on 27th February 2024 and the plaintiff was examined by Dr. Wellington K. Kiamba on 16th March 2024 barely a month after the accident and there was no assessment of any degree of permanent incapacity. I therefore find that the Plaintiff’s ability to work and earn a living was not in any way diminished as a result of the accident. 23.As for the loss of income, the Defendants proposed a global award of Kshs.250,000.00 since the Plaintiff had not specified the exact period within which he was unable to work. The Defendants relied on Simon Mungai Kariuki vs. Fatma Hassan [2017] KEHC 6354 (KLR). I have perused the authority relied on and there was no global award made with relation to loss of earnings. 24.As already stated, the Plaintiff was examined by Dr. Wellington K. Kiamba barely a month after the accident and no incapacitation was noted. It is not lost to me however, that the Plaintiff had suffered a depressed fracture of the scalp and was therefore unable to work for a while. I however limit that period to three months since the medical report was clear that he had not fully recovered. Since the Plaintiff has no evidence of his monthly income I am inclined to rely on the Regulation of Wages (General) (Amendment) Order 2024 proposed by the Plaintiff. Although the Plaintiff stated that he lives in Kariobangi in Nairobi county where the minimum wage of an ungraded artisan is Kshs.21,748.92; the Plaintiff has proposed a minimum monthly wage of Kshs.16,113.75. going by the proposed monthly minimum wage, the Plaintiff lost a total income of Kshs.48,341.25 for the period of three months. 25.Accordingly, the Plaintiff is awarded Kshs.48,341.25 as loss of income. The claim for diminished earning capacity to fails. Disposition: 26.In the upshot, judgment is hereby entered in favour of the Plaintiff against the Defendants for: -a.Liability: 85%b.General damages Kshs.750,000.00c.Loss of income Kshs.48,341.25d.Special damages Kshs.30,350.00Sub-total KSHS.828,691.25.Less 15% Kshs.124,303.69TOTAL KSHS.704,387.56. 27.The Defendants to pay costs of the suit and interests at court rates from the date hereof until payment in full. 28.It is so ordered. READ, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAROK THIS 30TH DAY OF JUNE, 2026.E.M. MUTUKURESIDENT MAGISTRATEIn the presence of:Ms. Jeptanui h/b for Chelangat for the Plaintiff.Ms. Amera h/b for Ms. Achieng for the Defendant.C/A Lewis