https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/180

Irungu v Mwaguo (Civil Suit E024 of 2024) [2026] KEMC 180 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEMC 180 (KLR) Republic of Kenya In the Mariakani Law Courts Civil Suit E024 of 2024 TN Sinkiyian, PM June 26, 2026 Between Diana Rose Irungu Plaintiff and Abdalla Mwinyi Mwaguo Defendant Judgment Background of the Matter 1.The matter is for determination on the question of quantum of damages as the case was undefended. Interlocutory judgment entered on 4/2/2026 and case proceeded: Formal proof hearing on 1/4/2026, with Mr. Okoko advocate appearing for plaintiff. 2.Plaintiff, a nail technician testified adopting her witness statement for 5/12/2023 and produced documents in bundle for 5/12/23 filed 15/2/2024 as exhibits 1-7 exhibit 1 medical examination p3 form, exhibit 2 police abstract, exhibit 3 treatment notes; medical report exhibit 4, receipts exhibit 5, statutory notice exhibit 6, demand letter exhibit 7. 3.She testified that she stopped working as she suffered fractures on the face and is living with scars. She suffers from loss of sense of smell and has pain in the ear. Since the accident her forehead having been scarred, she looks very different. She prayed for compensation per Plaint. Pleadings: 4.The Plaintiff’s claim was filed on 15/2/2024 vide plaint dated Plaint dated 5/12/2023 through Kihoro & Company advocates for plaintiff. 5.Reliefs sought: General damages for pain suffering and loss of amenities, Special damages Kshs. 2,000/= for medical report and medical expenses Kshs. 7,380/= particularized in paragraph 9 of the Plaint; future medical costs paragraph 8 of plaint; Cost of suit and Interest. 6.Cause of action: in the Plaint dated 5/12/2023 filed 15/2/2024. The motor vehicle blamed for the accident is registration number KDB 269M/ZG 4409 FAW: pleaded paragraph 4 of the Plaint: a the cause of action is negligence of the driver/owner of KDB 269M/ZG 4409 FAW: on grounds that the driver of the said vehicle owner or agent and/or employee of the owner, so negligently, recklessly, and/or carelessly drove the said vehicle that he lost control of the same and hit motor vehicle registration number KDB 618Y that the Plaintiff was lawfully aboard on 28/7/2023. Particulars of negligence of the driver of KDB 269M/ZG 4409 FAW: are pleaded in paragraph 9( a-n)of the plaint, in summary that he was reckless careless in the manner he controlled and drove the said vehicle; he drove without care and attention for other road users; veered off the proper lane; he failed to exercise due care and skills to avoid the accident; he lost control of the vehicle and hit vehicle registration number KDB 618Y that the Plaintiff was aboard. 7.After causing the accident the said driver fled the scene of the accident. The plaintiff was injured as a result. Injuries sustained are pleaded in paragraphs 5 and 6 of the plaint: plaintiff sustained the severe injuries: particularised a) Cuts, lacerations, bruises and abrasions right cheek area; b) Injury left eye – embedded glass particle causing ulceration; c) Blunt trauma to lower abdomen leading to uterine injury with vaginal bleeding. The injuries suffered by the plaintiff predisposed her to: a) Risk of uterine rapture in future pregnancies; or during labor due to the uterine injury; b) the scars on right cheek will be of cosmetic and psychological impact 8.Injuries are pleaded at paragraph 5 and 6 of the plaintHead injury with:i. Loss of consciousness; ii. Deep cut/ degloving injury right frontal-parietal area; b) Loss of sense of smell; c) Blunt trauma to the right ear with recurring blockage. The injuries led to the plaintiff being exposed to:a) Loss of sense of smell, b) Recurring hearing loss/ ear blockage; c) Extensive scar on the right parietal area will be of psychological and cosmetic impact, traumatic loss of sense of smell, recurring right ear blockage leading to auditory distortion. 9.Permanent disability / incapacity: plaintiff pleads as assessed by Dr. Darius Kiema she suffered twelve percent (12%) partial permanent disability / incapacity as a result of the injuries suffered. 10.Submissions: Plaintiff filed Submissions dated 27/4/2026. After submissions, on 30/4/26 judgment was reserved. Plaintiff prays for: -A. General damages- Kshs. 1, 400,000/=; b. Future medical coexpenses Kshs. 132,000/= C. Special damages Kshs. 9,380/=; C. Cost of this suit, D. Interest on (A), (B)and (C) until payment in full. 11.The plaintiff prays for relief as pleaded in the plaint and submits award of Kshs. 1, 400,000/= for pain and suffering will be just considering that she was injured as shown in Dr. Kiema’s report. The Plaintiff suffered head injury with loss of consciousness, a deep cut and degloving injury to the right frontal-parietal area, loss of sense of smell, blunt trauma to the right ear with recurring blockage, and permanent partial disability assessed at 12%. 12.The plaintiff has cited several decisions submitted to involve injuries comparable to those she suffered: Mwangi & another v Nyaaga (Civil Appeal E35 of 2022) [2023] KEHC 24970 (KLR) (3 November 2023) (Judgment) summed up that the claimant sustained a head injury, forehead laceration,and permanent loss of left eyesight resulting from the accident. Recognizing the seriousness of the neurological and sensory damage, the court awarded Kshs. 1,000,000 in general damages and Kshs. 8,650 in special damages. Maureen Mary Wamwitha Nduru V Hill Top Primary School And High School [2009] eKLR - Civil Suit 221 of 2007. 13.The Plaintiff submits the condition in her case is aggravated by: Loss of sense of smell (permanent anosmia); blunt trauma to the right ear with recurring blockage and auditory disturbance. 14.Plaintiff relies on the medical report produced. Plaintiff submits she has proved the case on a balance of probabilities. Had the driver of the said vehicle been careful in his driving, the accident would not have resulted and the plaintiff would not have suffered the injuries. The defendant should be held 100% liable for the accident and the resulting injuries and damages suffered by the plaintiff. Analysis and Findings: 15.The court has considered the evidence tendered by the plaintiff, and the submissions. 16.Given that the plaintiff herein and the plaintiff in Mariakani CC E 022 of 2024 were both passengers on board the same vehicle KDB 618Y and were injured on the same date 28/7/2023, this court will not reiterate the question of liability, having found the defendant the driver of the vehicle driver of KDB 269M/ZG 4409 FAW was careless in the manner he drove and controlled the said vehicle resulting to occurrence of the accident, and found defendant Abdalla Mwinyi Mwaguo, liable for negligence, and wholly liable for the accident of 28/7/2023, the court enters a similar finding herein on liability as in CC. E022 of 2024. 17.The defendant is thus liable for resulting injuries sustained by the plaintiff in this case as well. 18.Quantum of damages: The considerations in assessing damages are the nature of injuries sustained and awards made in comparable cases such that awards made should be reasonably within the ranges of awards made by the superior courts in comparable cases. The cost of inflation must be factored in where older awards are considered. 19.Among the cases cited by the plaintiff none is availed the court has accessed and considered [2009] KEHC 1717 (KLR) Maureen Mary Wamwitha Nduru V Hill Top Primary School And High School [2009] KEHC 1717 (KLR). The injuries in that case suffered by a minor were: ‘’severe head injuries with compound fracture of the right parietal scalp;(b)Resultant abnormal behaviour and loss of concentration;(c)Severe episodic headaches;(d)Disposition to post traumatic epilepsy;(e)Ugly and extensive facial scars.’’. The decision is by R.N. Sitati Judge delivered Nairobi this 4th September 2009. 20.This court finds the injuries in that case comparable to those in the case at hand to the extent of the injury suffered to the the frontal-parietal area in this case. The injury in this case was. A deep cut/ degloving injury right frontal-parietal area while in Maureen’s case it was a compound fracture of the right parietal scalp. The injuries proved in this case now at hand were a) Head injury, with i. Loss of consciousness, ii. Deep cut/ degloving injury right right frontal-parietal area, b) Loss of sense of smell, c) Blunt trauma to the right ear with recurring blockage. Dr. Kiema’s report shows the injuries exposed the plaintiff to: a) Loss of sense of smell; b) Recurring hearing loss/ ear blockage; c) Extensive scar on the right parietal area will be of psychological and cosmetic impact. 21.The Plaintiff in this case no doubt suffered severe injuries pleaded and proved. Injuries pleaded in paragraphs 5 and 6 of the plaint:a) Cuts, lacerations, bruises and abrasions right cheek area; b) Injury left eye – embedded glass particle causing ulceration; c) Blunt trauma to lower abdomen leading to uterine injury with vaginal bleeding. Its pleaded the injuries suffered by the plaintiff predisposed her to: a) Risk of uterine rapture in future pregnancies; or during labor due to the uterine injury; b) the scars on right cheek will be of cosmetic and psychological impact. 22.The court is satisfied that the plaintiff suffered severe injuries: injuries were classified as grievous harm in the P3 Form exhibit 1. The medical report by Dr. Darius Wambua Kiema dated 25th September 2023 was produced as exhibit 4. The injuries sustained have left the plaintiff with 12% permanent partial incapacity as assessed by Dr. Kiema. The injuries have thus affected the quality of her life. 23.On the issue of quantum of damages to be awarded to the plaintiff, the court bears in mind that in assessment of damages as was stated by Court of Appeal in Simon Taveta vs Mercy Mutitu Njeru Civ Appeal 26 of 2013 (2014) eKLR .."The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past" 24.Therefore while on severity of injuries the case Maureen cited by plaintiff involved more severe injuries than those in this case at hand, considering the award proposed by the plaintiff in this case is Kshs. 1,400,000/= lower than that awarded in Maureen’s case cited, court finds the award proposed by plaintiff Kshs.1,400,000/= for pain, suffering and loss of amenities is just to award. 25.Having considered the evidence on record the court finds the award sought by the plaintiff of Kshs. 1,400,000/= is just to award in this case. This award will earn interest at court rates from the date of judgment until paid in full. 26.Future medical expenses: Plaintiff pleaded that the would require medical attention in the future pleaded in paragraph 8 of the Plaint. Dr. Kiema has in his report given his opinion on areas of treatment where plaintiff will incur future costs: ENT Consultation (three sessions) estimated KES 12,000; Provision for ENT surgery estimated at KES 120,000/=.. Dr. Kiema has provided a basis for the future costs having confirmed that plaintiff leaves with recurring hearing loss/ear blockage, and loss of sense of smell. She thus needs to be attended to try alleviate the condition. The court awards plaintiff Kshs. 132,000/= future medical expenses. 27.Special damages pleaded totalling Kshs. 9,380/=have and has proved the said expenses. The court awards Kshs. Kshs. 9,380/= on special damages. This award will earn interest at court rates from the date of suit 15/2/2024 until paid in full. 28.Summed up: awards made are: General damages for pain suffering and loss of amenities Kshs. 1,400,000/=, Special damages Kshs. 2,000/= for medical report and medical expenses Kshs. 7,380/= total Kshs. 9,380= future medical expenses Kshs. 132,000/= with Interest. 29.Costs: the plaintiff served both demand letter exhibit 7 upon the defendant and statutory notice upon the insurance GA Insurance Limited exhibit 6 duly stamped received 13/10/2023. 30.The court awards the Plaintiff costs of suit with interest. JUDGMENT DATED, SIGNED & DELIVERED THIS……26TH…….DAY OF………JUNE………..2026 T. N. SINKIYIANPRINCIPAL MAGISTRATEIn presence of:For the plaintiff:……Absent……………...…………………….Kihoro & Co. AdvocatesDefendant …Absent…………………………..Court Assistant:…Michael Wesonga…………………………………