https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/286

Mutua v Mutwiwa (Civil Case E307 of 2024) [2026] KEMC 286 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEMC 286 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E307 of 2024 YA Shikanda, SPM July 10, 2026 Between Josephine Syombua Mutua Plaintiff and Theophilus Waema Mutwiwa Defendant Judgment The Claim 1.Josephine Syombua Mutua (hereinafter referred to as the plaintiff) filed this suit on 21/11/2024 vide a plaint of even date. She sued Theophilus Waema Mutwiwa (hereinafter referred to as the defendant) on account of a road traffic accident that allegedly occurred on 22/1/2023 at Kisingo area along Wote-Makindu road. The plaintiff averred that on the above stated date, she was lawfully walking along the said road when the defendant so negligently and carelessly drove motor vehicle registration number KDH 193D that it knocked down the plaintiff from behind as a result of which the plaintiff sustained serious bodily injuries, loss and damage for which she holds the defendant liable. 2.The defendant was sued as the registered owner and driver of motor vehicle registration number KDH 193D at the material time. The plaintiff pleaded several particulars of negligence as against the plaintiff as well as the particulars of injuries sustained and those of special damages. She prayed for judgment against the defendant for: 1.General damages for pain, suffering and loss of amenities; 2.Special damages of Ksh. 5,050/=; 3.Costs of the suit and interest. The Defendant’s Defence 3.The defendant entered appearance on 9/6/2025 and filed a written statement of defence on 2/9/2025 after interlocutory judgment was set aside. The defendant admitted being the owner and driver of motor vehicle registration number KDH 193D at the material time. He further admitted occurrence of the accident on 22/1/2023 involving motor vehicle registration number KDH 193D and the plaintiff but denied the plaintiff’s version on how the accident occurred. The defendant averred that the accident was solely caused or substantially contributed to by the negligence of the plaintiff. He pleaded several particulars of negligence against the plaintiff and alleged that the plaintiff was the author of her own misfortune. The defendant pleaded the doctrine of volenti non fit injuria. The defendant denied the particulars of injuries, loss and damage and prayed for the plaintiff’s suit to be dismissed with costs. Consent on Liability and Evidence 4.On 31/3/2026, the parties recorded a consent in which they agreed to apportion liability at 40% against the plaintiff and 60% against the defendant. The parties further agreed to admit their claim supporting documents in evidence without calling the makers thereof and to file written submissions on quantum. The consent was adopted as an order of the court. Main Issues for Determination 5.In my opinion, 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 6.The plaintiff proposed a sum of Ksh. 800,000/= in general damages and relied on the following authorities:a.Vincent Mbogholi v Harrison Tunje Chilalya [2017] KEHC 7765 (KLR) in which the plaintiff and respondent in the appeal sustained fracture of the left tibia leg bone (medial malleolus), blunt object injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe. The trial court awarded Ksh. 500,000/= in general damages on 8/4/2015. On appeal, the award was affirmed on 22/2/2017;b.Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR) in which the 3rd plaintiff and 3rd respondent in the appeal sustained sustained a single fracture of the right tibia and fibula and fractures of the upper teeth.The trial court awarded Ksh. 1,300,000/= in general damages on 26/10/2018. On appeal, the award was reduced to Ksh. 500,000/= on 25/4/2019. 7.The plaintiff also prayed to be awarded special damages of Ksh. 5,050/= as pleaded as well as costs of the suit and interest. The Defendant’s Submissions 8.The defendant proposed a sum of Ksh. 400,000/= in general damages and relied on the following authorities:a.Igoki v Kanini [2023] KEHC 20715 (KLR) in which the plaintiff and appellant in the appeal sustained a fracture of the right tibia bone. The trial court awarded Ksh. 150,000/= in general damages on 3/10/2022. On appeal, the award was enhanced to Ksh. 300,000/= on 13/7/2023;b.Kamau v Masasi [2025] KEHC 5390 (KLR) in which the plaintiff and respondent in the appeal sustained fracture of the left distal fibula bone, dislocation of the left ankle joint, broken teeth on the upper jaw, tenderness on the chest, left leg and upper lip with a cut wound, injuries to the left wrist joint, cut wound to the nose, injury to the abdomen and cut wound to the left leg. The trial court awarded Ksh. 450,000/= in general damages on 25/7/2022.On appeal, the award was affirmed on 24/4/2025;c.Nyambura v Njuguna & another [2024] KEHC 4185 (KLR) in which the plaintiff and appellant in the appeal sustained closed fracture of the left tibia fibula, deep cut wound on the left big toe, crush to the left 2nd toe leading to disarticulation of the distal phalanx, deep cut wound on the left heel, soft tissue injuries to the right leg, soft tissue injuries to the right hand and blunt injury to the lower back. The trial court awarded Ksh. 400,000/= in general damages on 11/3/2022. On appeal, the award was affirmed on 30/4/2024. 9.On special damages, the defendant proposed a sum of Ksh. 1,550/= and 60% of the total costs to the plaintiff. Analysis and Determination 10.I have carefully considered the evidence on record and given due regard to the submissions made by the parties as well as the authorities relied upon. Quantum 11.The medical evidence on record indicates that the plaintiff sustained the following injuries following the accident:i.Blunt injury on the right leg;ii.Fracture of the right tibia bone;iii.Fracture of the right fibula bone. 12.I find that there is sufficient evidence to prove that the plaintiff sustained injuries as a result of the accident. Given the finding on liability, the plaintiff is thus entitled to damages as against the defendant. 13.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. 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 Pain, Suffering and Loss of Amenities 18.I have considered the injuries sustained by the plaintiff. The plaintiff suffered injuries which were classified as grievous harm in the P3 form. In my opinion, the authorities relied upon by the parties are comparable. On my part, I have considered the following authorities: 1. Julie Akoth Onyango v Daniel Otieno Owino & another [2020] eKLR. 17.The plaintiff and appellant in the appeal sustained a compound fracture of the tibia and fibula of the left leg, cuts on both legs, pain in the thighs and left hand. Ksh. 600,000/= was awarded in general damages on 19/6/2019. On appeal, the award was reduced to Ksh. 500,000/= on 29/5/2020. 2. Tirus Mburu Chege & another v JKN (minor suing through the Next Friend and mother DWN & another [2018] eKLR. 18.The minor plaintiff and respondent in the appeal sustained fractures of the tibia and fibula on both legs, blunt injury on the forehead, broken front tooth, nose bleeding and consistent loss of consciousness. The trial court awarded Ksh. 800,000/= on 20/5/2015. On appeal, the award was reduced to Ksh. 500,000/= on 3/10/2018. 19.Given the nature of the injuries sustained by the plaintiff herein and the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. 700,000/= in general damages would suffice. I award the same. Special Damages 20.The plaintiff pleaded special damages as follows:a.Obtaining P3 form………………………………………...…Ksh. 1,000/=b.Official search……………………………………………………..Ksh. 550/=c.Medical report………………………………………………...Ksh. 3,500/=Total…………………………………………………………………Ksh. 5,050/= 21.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" 22.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.” 23.The receipt for the medical report was not produced in evidence. Consequently, special damages pleaded and proved amount to Ksh. 1,550/=. I award the same. Disposition 24.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. 700,000/=2.Special damages………………………………………………………………….….....….Ksh. 1,550/=Total……………………………………………………………………….Ksh. 701,550/=Less 40% contribution………………………………………………………………..Ksh.280,620/=Balance due to the plaintiff……………………………………………………….Ksh. 420,930/= 25.The plaintiff is also awarded interest on the damages as well as 60% of the total costs of the suit. 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.” 26.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.” 27.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) 28.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). Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full and on special damages, from the date of filing suit to the date of judgment/decree. DATED, SIGNED AND DELIVERED VIA CTS THIS 10TH DAY OF JULY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.