https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/419

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **CIVIL CASE NO. E002 OF 2026** **JOSPHINE ROBI MOTATIRO…………………………………….PLAINTIFF** **VERSUS** **SOLOMON MAHIRI CHACHA…………………………………DEFENDANT** **JUDGMENT** 1. The plaintiff in plaint dated 3rd February 2026 sued the defendant seeking for general damages for pain, suffering and loss of amenities, special damages for Kshs. 22,960/=, costs of the suit and interest as a result of a road traffic accident that occurred on 9/12/2025. 2. The plaintiff averred that she was lawfully and carefully walking as a pedestrian when motor vehicle registration number KDU 134N Toyota Rav 4 was negligently and/or carelessly controlled and/or driven by the defendant his authorized driver, servant and/or agent that it lost control, veered off its lawful lane and violently hit the pedestrian as a consequence whereof the plaintiff sustained bodily injuries and has suffered loss and damage. 3. The defendant on the other hand entered appearance and filed defence dated 13th February, 2026 denying all the averments contained in the plaint save for expressly admitted. **Liability** 1. The issue of liability was agreed upon by the parties on 10/6/2026 where by judgment on liability was entered by consent in the ratio of 80%;20% in favour of the plaintiff as against the defendant. Thus the only issue for determination is on quantum. **Quantum** 1. On this issue the plaintiff pleaded that as a result of the accident she sustained right facial deep cut wound, deep cut wounds on the swollen knees, bruises at the forearms, degloving injury with periosteal stripping at right knee patella, fracture lateral malleolus stable with ankle dislocation, swollen thighs distal aspect thigh and skulls of tissue noted with hematoma at front aspect. 2. In proving the said injuries the plaintiff produced discharge summary which shows the plaintiff was diagnosed with bleeding from facial aspect knees with bruises at right knee, deep cut wound right facial aspect, degloving injuries at right and left distal aspect of thigh. She also produced a P3 form and medical report. The medic concluded in the report that the nature of injuries were of grievous harm with 40% permanent disability. 3. PW1 when she testified she said that she sustained injuries on the back, fracture on both legs at the knee and ankles, head injuries, right hand was injured, injured on the mouth and a cut wound on the head. She was in hospital for 6 days. 4. In cross examination she first stated that implants were fixed and later changed that it was only a plaster. She was fractured on the legs. She has no X-Ray films. X-ray was done at Kehancha Sub County Hospital but she does not have X-Ray request form. She also stated that without the X-Ray film we cannot confirm the fracture. 5. DW1 Dr. ZEPH GAYA produced report dated 11/5/2026 in which he said the plaintiff sustained severe soft tissue injuries. The plaintiff did not have any fractures and there is permanent disability awardable. 6. Counsel for the plaintiff proposed a sum of Kshs. 1,000,000/= as general damages and relied on the following cases; 7. In **Easy Coach v Emily Nyangasi (2017) eKLR,** the High Court awarded Kshs. 700,000/= for soft tissue injuries with the most serious injuries on the right hand which healed with a 10cm scar with keloid formation on the elbow on the right leg which was treated through grafting and healed with 18cm scar on right thigh, 26cm scar on the right leg, 268cm scar below knee and 12cm scar right foot. 8. In **Toyota Kenya Limited v Adero (Civil Appeal E188 of 2023) (2024) KEHC 12056 (KLR)** In this case the plaintiff sustained multiple soft tissue injuries and fracture of the right femur. General damages were awarded at Kshs. 900,000/=. 9. In **China Railway No. 10 Engineering Group Co. Limited v Osugo (Civil Appeal 4 of 2022) (2024) KEHC 2662 (KLR)** the High Court awarded Kshs. 800,000/= as general damages for the following injuries: * Head injury with cut wound on the scalp * Blunt trauma to the neck * Chest contusion. * Right shoulder dislocation. * Bruises on the lower back. * Right tibia fracture. * Right fibula fracture 1. In **Kironyo v Nene (Civil Appeal E197 of 2021) (2022) KEHC 15604 (KLR)** In this case the plaintiff suffered fracture lateral malleolus of the right ankle joint, severe soft tissue injuries of the right thigh. General damages were awarded at Kshs. 1,000,000/=. 2. In **Kimita v Travel Budget Express & another (Civil Appeal E042 of 2022 (2024) KEHC 6435 (4 June 2024)** the High Court, Nzioka J upheld an award of Kshs. 800,000/= as reasonable for the plaintiff who had sustained the following injuries: * Fracture distal end of tibia * Severe soft tissue injury of the left leg. * Deep cut wound of the forehead leading to severe soft tissue injuries. * Deep cut wound on the left arm leading to soft tissue injuries. * Deep cut wound on the chin. 1. Counsel for the defendant submitted that the plaintiff proved that she sustained soft tissue injuries. That the courts have held that initial treatment notes are crucial in determining the actual injuries sustained by the plaintiff immediately after the accident occurred. They relied on the case of **Joseph Kiptoo Kogo v Eastern Produce (K) Limited (2011) eKLR,** where it was held that; ***“The view of this court is that since none of the two doctors had the opportunity of examining the appellant no sooner had he been injured, they had to rely on the initial treatment notes and documents to re-examine the appellant and form their own opinions.*** ***The treatment notes were therefore the most crucial evidence in establishing the injuries actually suffered by the appellant as a result of the material accident on the material date. The award of general damages has to be based on the nature of injuries.”*** 1. Counsel submitted that the plaintiff produced the discharge summary as exhibit-3 which was the initial treatment notes. The same indicate that the plaintiff sustained a deep cut wound on the right facial aspect, degloving injuries at the right and left distal aspect of the thigh. That the plaintiff was treated by cleaning, dressing and suturing and was given antibiotics. It indicates that radiology was to be conducted to rule out fracture on the right malleolus. However, the results of the said radiology were not indicated since, from the discharge summary, the plaintiff was advised to use crutches and to come for removal of stitches. 2. Counsel for the defendant submitted that there is no indication whatsoever on whether the plaintiff sustained a fracture as alleged. There is no mention on whether plaster of paris was applied or surgery conducted to fix the metal implants. The initial treatment notes also do not indicate whether the same were ever removed, if at all they were put as alleged. PW1 admitted that no plaster or metal implants were placed on her legs. No X-Ray film or radiographs were produced to show that she sustained a fracture. They submitted that the allegation of fracture was for the purposes of exaggerating the injuries sustained by the plaintiff so that the amount awarded can be exaggerated. 3. They relied on the case of **Blootex Limited v Muyanga & 4 others (Civil Appeal E103 OF 2023(2026) KEHC 4391 (KLR) (19 March 2026) (Judgment)** where the court held that ***“Indeed, the 1st respondent also pointed out that the first respondent did not prove that she sustained fractures as she never produced the x-rays and the doctor admitted that he was approached by the lawyer to compile the medical report without relying on x-ray. That the 1st respondent was misleading the court when she said she suffered fractures and yet she was only treated with pain killers and no treatment was given for the alleged fractures…….*** ***The relevance by the 1st respondent to prove her injuries with x-rays and the improvised doctor’s evidence who filled a medical report without x-rays leaves the court with no option but to hold that there was no material evidence sufficient for the court to hold that she sustained fractures as alleged.”*** 1. Counsel for the defendant submitted that the medical report should be disregarded as the same was unsupported. He urged the court to dismiss the plaintiff’s suit as she had not proved the injuries. However, should the court be of a different view, they submitted that the plaintiff has proved that she sustained soft tissue injuries which have healed and proposed a sum of Kshs. 60,000/= as general damages. They relied on the case of **HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another (2021)KEHC 7971 (KLR)** where the Appellate Court upheld the trial court’s decision in awarding general damages of Kshs. 60,000/= to the plaintiff who sustained soft tissue injury to the head, neck, thorax, abdomen and limbs. 2. The Court of Appeal in [**Charles Oriwo Odeyo v Apollo Justus Andabwa & Another**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/4447)**[2017] eKLR** noted that; **“The assessment of damages in personal injury case by court is guided by the following principles: -** **An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.** **The award should be commensurable with the injuries sustained.** **Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.** **Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.** **The awards should not be inordinately low or high (See Boniface Waiti & another v Michael Kariuki Kamau (2007) eKLR.”** 1. In [**Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd**](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/528)**[2013] eKLR** it was held that; ***“The general method of approach for assessing damages is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases”.*** 1. The plaintiff pleaded to have sustained a fracture lateral malleolus. I do agree with the defendant’s submissions that this injury was not proved to the required standard. The plaintiff did not produce any X-ray film and report to support his claim for a fracture. The treatment also received does not reveal that she was treated of a fracture. This means that the plaintiff did sustain soft tissue injuries with no permanent disability. The medical report by Elijah Mwitah was exaggerated on the issue of fracture and permanent disability as it is not backed by the initial treatment notes. 2. The above said, I have considered the awards given by different courts in the following cases where the plaintiffs sustained injuries that are comparable to the ones sustained by the Plaintiff herein 3. In [**H. Young Construction Company Ltd v Richard Kyula Ndolo**](https://kenyalaw.org/akn/ke/judgment/kehc/2014/3152)**[2014]eKLR** where the plaintiff sustained degloving injuries to the left leg, with loss of stud over calf muscles and blunt injury to the left ankle leg. The Appellant Court reduced an award of Kshs. 350,000/= to Kshs. 250,000/= 4. In [**Spin Knit Limited v Johnstone Otara**](https://kenyalaw.org/akn/ke/judgment/kehc/2006/2008)**[2006] eKLR** where the court awarded the plaintiff Kshs. 300,000/= for suffering a degloving injury to the right hand. 5. In [**Al Samah Enterprises Limited & Abubakar Omar v DM (minor suing through mother and next friend CGK**](https://kenyalaw.org/akn/ke/judgment/kehc/2016/2389)**[2016] eKLR**where the court sustained degloving injury extending from the right knee to the leg. The plaintiff was expected to heal with 10% disability due to scaring on the right leg and thigh and was awarded Kshs. 400,000/= which the appellate court affirmed. 6. In [**Blue Horizon Travel Co. Ltd**](https://kenyalaw.org/akn/ke/judgment/kehc/2020/8431)**v Kenneth Njoroge (2020) KEHC 8431(KLR)** the injuries the Respondent had sustained :-a)Bruises on the scalp, b)Bruises on the neck, c)Bruises on the abdomen, d)Bruises on the lower back, e)Cut wound on the left thumb, f)Cut wound on the left palm, g) Sublaxation of the left shoulder joint In the judgment, the trial court included fracture of 3rd and 9th ribs and also cut wound on the left foot near the ankle without amendment of the plaint. On appeal, High Court substituted the award of Kshs. 650,000/= with Kshs. 400,000/-. 1. The defendant witness DW1 in his report concluded that the plaintiff sustained severe soft tissue injuries because of the deep cuts and as such the plaintiff may develop early Post Traumatic Osteoarthritis of both knees. He also stated that the scars are hypertrophied, ugly and permanent. Ultimately, the injury sustained by the plaintiff was not as serious or as grave as those in the cases cited by the plaintiff. The figure suggested by the defendant is too low compared to the injuries sustained by the plaintiff. Doing the best I can, I award the plaintiff Kshs. 500,000/= as general damages. **Special Damages** 1. Under this head the plaintiff pleaded for Kshs. 22,960/=. On special damages, it is trite law that for special damages to be awarded, they must be specifically pleaded and also strictly proved. It was held as follows in **Maritim & Another –v- Anjere (1990-1994) EA 312 at 316** in this regard: ***“It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.”*** 1. In proving this claim the plaintiff produced receipt Kshs. 550/= for copy of records only. The plaintiff did not produce receipt for the police abstract, medical report, P3 Form thus the same cannot be awarded. The plaintiff produced an invoice from Kehancha Sub County Hospital for Kshs. 10,080/= for medical expenses which amount was paid by NHIF. This means that it not the plaintiff who paid the same and she is not entitled to the same. This is fortified by the decision in the case of **Kimathi alias Kimathi Murithi v KWK (Minor suing through FKR) (Civil Appeal E037 of 2022) (2024) KEHC 776 (KLR) (31 January 2024) (Ruling)** where the court while dismissing the receipt paid by NHIF stated that: **“*While it is admitted that the respondent spent Kshs. 46,035, the receipt from St. Theresa Hospital-Kiirua dated 22/3/2016 shows that Kshs. 18,000/= was paid by NHIF leaving a balance of Kshs. 28,035/=. Therefore, the sum of Kshs. 46,035/= is set aside and substituted with Kshs. 28,035/=”.*** 1. On the issue that the receipt produced for Kshs. 550/= lacks the stamp duty stamp, does not hold as the same was not issued by the plaintiff but by a state corporation. Under this head I award the strictly proved amount of Kshs. 550/=. The special damages are not subject to contribution. 2. In conclusion I hereby enter judgment in favour of the plaintiff as against the defendant in the following terms: 3. 80% :20% in favour of the plaintiff as against the defendant 4. General damages……………………………………...Kshs. 500,000/= Less 20%..................................................................Kshs. (100,000/=) Kshs. 400,000/= 1. Add special damages………………………………….Kshs. 550/= Total………………………………………………….Kshs. 400,550/= The plaintiff will have costs of the suit and interest on special damages from the date of filing suit and on general damages from the date of this judgment till payment in full. **Dated, Signed and Delivered in open Court at Kehancha on this 31st day of July, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Kigera…….Court Assistant** **Plaintiff……….absent** **Defendant……..absent** **Advocate for plaintiff…….. Ms. Ooro present** **Advocate for defendant….. Mr. Omwenga present** **Court: 30 days right of appeal and stay of execution granted.**