https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/484

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E661 OF 2025** **KASSIM SALIMU WIRA...............................................................................PLAINTIFF** **VERSUS** **RENTWORKS EAST AFRICA LIMITED……………………………...……1ST DEFENDANT** **NATIONAL POLICE SERVICE THROUGH THE OFFICER COMMANDING STATION, INUKA POLICE STATION………………………………………………..2ND DEFENDANT** **OFFICE OF THE ATTORNEY GENERAL…………………..……………3RD DEFENDANT** **JUDGMENT** **Background** 1. By a Plaint dated 2nd May 2025, the Plaintiff, Kassim Salimu Wira, instituted this suit seeking compensation for personal injuries and material damage arising from a road traffic accident which occurred on 16th February 2025. 2. The accident involved Motor Cycle/Tuk Tuk Registration Number KTWC 651Q, which was being driven by the Plaintiff, and Motor Vehicle Registration Number GKB 258U, a Toyota Land Cruiser registered in the name of the 1st Defendant and operated by the National Police Service. 3. The Plaintiff pleaded that the accident occurred at about 5.00 p.m. along the Likoni–Ukunda Road near Check Point area when Motor Vehicle Registration Number GKB 258U was driven at a high speed from behind and collided with his motor tricycle. 4. The Plaintiff sought: 5. General damages for pain, suffering and loss of amenities; 6. Damages for diminished earning capacity; 7. Future medical expenses; 8. Special damages of Kshs. 77,800; 9. Costs of the suit; and 10. Interest. 11. The 1st Defendant admitted that it was the registered owner of Motor Vehicle Registration Number GKB 258U but denied liability, the injuries, the alleged permanent disability, loss of earning capacity, future medical expenses and special damages. In the alternative, it attributed the occurrence of the accident to the Plaintiff’s negligence. 12. The 2nd and 3rd Defendants similarly denied liability and pleaded, in the alternative, that the accident was caused wholly or substantially by the Plaintiff’s negligence. They also disputed the injuries and damages claimed. **The Evidence** 1. The Plaintiff’s case was heard on 15th October 2025. The Plaintiff called four witnesses in support of his case. The Plaintiff testified as PW1. His evidence was that he earned his livelihood as a commercial Tuk Tuk driver, transporting passengers within Mombasa County. He stated that he earned approximately Kshs. 2,000 per day. 2. He testified that on 16th February 2025 he was lawfully driving Motor Cycle/Tuk Tuk Registration Number KTWC 651Q from Ukunda towards Likoni when Motor Vehicle Registration Number GKB 258U collided with his vehicle. 3. He sustained bodily injuries, was treated at Mombasa Hospital and was later examined by Dr. Darius Wambua Kiema. He also testified that his motor tricycle was damaged and was assessed by Kibmat Loss Assessors (E.A.) Limited. 4. The Plaintiff’s evidence was supported by a police officer, a representative of Kibmat Loss Assessors (E.A.) Limited and Dr. Darius Wambua Kiema. 5. The assessment report by Kibmat Loss Assessors indicated that the Plaintiff’s motor tricycle had sustained damage consistent with a rear-end collision. The vehicle was found to be repairable at an estimated cost of Kshs. 67,200. Dr. Kiema examined the Plaintiff on 14th March 2025 and confirmed the following injuries: L1 vertebral body compression fracture; L4/L5/S1 posterior disc bulges with compression of exiting nerve roots; Blunt trauma to the right side of the forehead; Bruises and abrasions on the left elbow region; Bruises and abrasions on the left fifth finger; Blunt trauma to the right lateral abdomen; Blunt trauma to the right ankle; and bruises and abrasions on the left knee. 6. Dr. Kiema assessed the Plaintiff’s permanent incapacity at 25%. He expressed the opinion that the Plaintiff was predisposed to recurring lower back pain, post-traumatic spondylosis, radiculopathy, weakness at the fracture site and diminished capacity to work and undertake activities of daily living. 7. Dr. Kiema further recommended future medication estimated at Kshs. 5,000 per month for one year and twenty physiotherapy sessions at Kshs. 2,500 per session, bringing the estimated future medical expenses to Kshs. 110,000. 8. The 1st Defendant did not call oral evidence. It closed its case upon the production, by consent, of the medical report of Dr. Udayan R. Sheth dated 28th May 2025 as Defence Exhibit 1. Dr. Sheth confirmed that the Plaintiff sustained: A compression fracture of the first lumbar vertebra; Bruises over the left elbow and knee; Soft tissue injury to the forehead; and L4/L5 and L5/S1 disc protrusions compressing the exiting nerve roots. 9. At the time of the second examination, the Plaintiff complained of back pain. Dr. Sheth noted mild tenderness over the lower back and mildly painful lumbar movement. He found no neurological deficit or radiation of pain into the legs. He assessed permanent incapacity at 5%. The 2nd and 3rd Defendants did not call any witnesses. **Consent on Liability** 1. Before the determination of the suit, the parties entered into a consent on liability in the following terms: 2. 20% against the Plaintiff; and 3. 80% against the Defendants. 4. The same consent admitted the medical report of Dr. Udayan R. Sheth dated 28th May 2025 as Defence Exhibit 1. Liability having been settled by consent, the only issue requiring determination is the quantum of damages payable to the Plaintiff. **Plaintiff’s submissions** 1. The Plaintiff submitted that an award of Kshs. 2,000,000 would constitute fair compensation for pain, suffering and loss of amenities. On diminished earning capacity, the Plaintiff submitted that although Dr. Kiema assessed incapacity at 25% and Dr. Sheth assessed it at 5%, the Court should adopt a median incapacity of 15%. He sought a global award of Kshs. 500,000 for diminished earning capacity, relying principally on Bagala v Doshi & Company (Hardware) Limited, Mujunde v Yislam and Mururi v Tezo Quarries Limited & Others. 2. The Plaintiff further sought: Future medical expenses of Kshs. 110,000; Material damage of Kshs. 67,200; and special damages of Kshs. 77,800. **1st Defendant’s submissions** 1. The 1st Defendant proposed an award of Kshs. 1,200,000 for pain, suffering and loss of amenities. The 1st Defendant urged the Court to prefer Dr. Sheth’s assessment of 5% permanent incapacity, arguing that his examination was undertaken later than Dr. Kiema’s examination. 2. Regarding diminished earning capacity, the 1st Defendant submitted that the Plaintiff had not produced documentary evidence proving earnings of Kshs. 2,000 per day. It urged the Court to dismiss the claim or, in the alternative, award a global sum of Kshs. 200,000. 3. The 1st Defendant opposed the claim for future medical expenses on the ground that the Plaintiff had not undertaken physiotherapy and was not taking medication when examined by Dr. Sheth. It also opposed the material damage and special damages claims on the ground that the same had not been strictly proved. **Issues for Determination** 1. The issues for determination are: 2. The appropriate award for pain, suffering and loss of amenities; 3. Whether the Plaintiff is entitled to damages for diminished earning capacity; 4. Whether the claim for future medical expenses was proved; 5. Whether the claim for material damage and special damages was proved; and 6. Costs and interest. **Analysis and Determination** General damages for pain, suffering and loss of amenities 1. The Plaintiff sustained an L1 vertebral body compression fracture, L4/L5 and L5/S1 posterior disc bulges with compression of the exiting nerve roots, blunt trauma to the forehead, blunt trauma to the right lateral abdomen and ankle, together with bruises and abrasions to the left elbow, left fifth finger and left knee. 2. Both Dr. Darius Wambua Kiema and Dr. Udayan R. Sheth agreed on the existence of the lumbar vertebral fracture and disc pathology. The point of divergence between the two experts concerned the extent of permanent incapacity, Dr. Kiema assessing it at 25% while Dr. Sheth assessed it at 5%. Dr. Sheth's later examination, however, confirmed that although the Plaintiff continued to complain of back pain, there was no neurological deficit or radiation of pain into the lower limbs. 3. The Court is not bound to adopt either assessment in its entirety. The degree of permanent incapacity is but one factor in assessing damages. What is material is the nature of the injuries, the residual symptoms, the prognosis and the comparable awards made by the courts. 4. I have carefully considered the authorities cited by both parties.The Plaintiff relied on Mumias Sugar & Company Limited v Mohammed Kweyu Shaban, where the claimant sustained prolapsed lumbar discs together with cervical spine injuries, a humeral fracture and neurological symptoms, attracting an award of Kshs. 1,750,000. The injuries in that case were more extensive than those sustained by the present Plaintiff. 5. In Rotich v Mutai, the claimant suffered severe blunt back injuries and prolapsed lumbar discs, for which an award of Kshs. 2,500,000 was upheld. That authority represents the higher end of awards for serious spinal injuries. 6. Similarly, in James Nyaboga Masogo v Kipkebe Limited, the claimant sustained compression injuries affecting the spinal cord together with prolapsed intervertebral discs and vertebral injuries. Those injuries disclose more significant spinal involvement than in the present case. 7. On the other hand, the Defendant relied on Trax Kenya Limited & Another v Dan Otieno Lwango, where the claimant sustained an L1 vertebral wedge compression fracture together with multiple abrasions. The High Court reduced the award from Kshs. 950,000 to Kshs. 850,000. While the Plaintiff herein sustained a comparable vertebral fracture, his injuries were more serious because they were accompanied by L4/L5 and L5/S1 disc bulges with compression of the exiting nerve roots, multiple blunt injuries and continuing back pain. 8. The Defendant also relied on Oriental Construction Company Limited v Newton Kigora, where the claimant sustained an L2 vertebral compression fracture with retropulsion, spinal canal stenosis, kyphosis, ligament tears, bone marrow oedema and paravertebral haematoma. The High Court awarded Kshs. 1,500,000. Those injuries were materially more severe than those sustained by the Plaintiff herein, whose medical evidence disclosed neither spinal canal stenosis, kyphotic deformity, ligamentous injury nor neurological deficit. 9. Having compared the Plaintiff's injuries with the authorities cited, I am satisfied that the Plaintiff's injuries fall between those considered in Trax Kenya Limited and Oriental Construction Company Limited. They are undoubtedly more serious than the former owing to the additional lumbar disc pathology, but appreciably less severe than the latter where the claimant suffered extensive structural spinal damage and associated complications. 10. In my discretion, and bearing in mind the principles that comparable injuries should attract comparable awards while making allowance for the passage of time and inflation, I find that an award of Kshs. 1,300,000 for pain, suffering and loss of amenities is fair, reasonable and commensurate with the injuries proved. Diminished earning capacity 1. Diminished earning capacity concerns the impairment of a person’s ability to earn income in the future. It is distinct from a claim for specific past or future loss of earnings. 2. The Plaintiff testified that he worked as a commercial Tuk Tuk driver and earned approximately Kshs. 2,000 per day. His occupation as a motor tricycle driver was supported by his driving licence, insurance documents, motor vehicle records and the circumstances in which the accident occurred. 3. The Plaintiff did not, however, produce business records, bank statements, M-Pesa statements, tax returns or other documentary evidence establishing a regular daily income of Kshs. 2,000. 4. The absence of documentary proof does not necessarily mean that the Plaintiff had no income or earning capacity. The Court takes judicial notice that persons operating within the informal sector may not maintain formal accounting records. 5. Nevertheless, the pleaded daily earnings cannot safely form the basis of a multiplier calculation in the absence of reliable documentary evidence. 6. The Plaintiff was approximately 50 years old at the time of the medical examinations. His occupation required prolonged sitting, mobility, use of the lower back and the ability to control a motor vehicle. A lumbar vertebral fracture and persistent lower back pain would reasonably reduce his efficiency, endurance and competitiveness as a commercial driver. 7. Although the Plaintiff did not establish that he was totally unable to work, the evidence establishes a real risk that his continuing back pain and permanent incapacity will reduce his earning ability. 8. A global award is therefore more appropriate than a multiplier approach. Taking into account the Plaintiff’s age, occupation, absence of formal proof of income, the nature of the permanent injury and the medical assessments, I award Kshs. 350,000 for diminished earning capacity. Future medical expenses 1. A claim for future medical expenses must be specifically pleaded and supported by medical evidence. The Plaintiff specifically pleaded future medication at Kshs. 5,000 per month for one year and physiotherapy at Kshs. 2,500 per session for twenty sessions. Dr. Kiema recommended the medication and physiotherapy and gave the estimated costs. The claim was therefore both pleaded and medically supported. 2. The fact that the Plaintiff had not undertaken physiotherapy by the time Dr. Sheth examined him does not, without more, disprove the medical need for it. A claimant may delay treatment due to financial constraints. Further, the purpose of an award for future medical expenses is to place the claimant in a position to obtain treatment that has not yet been undertaken. 3. I accordingly find that the claim was proved on a balance of probabilities and award: Medication: Kshs. 60,000; and Physiotherapy: Kshs. 50,000.The total award for future medical expenses is therefore Kshs. 110,000. Material damage and special damages 1. Special damages must be specifically pleaded and strictly proved. Strict proof does not necessarily mean proof by receipts alone in every case. The nature of the claim and the available documentary and oral evidence must be considered. 2. The Plaintiff pleaded the following special damages: Item Amount Motor vehicle assessment Kshs. 4,000 Motor vehicle repairs Kshs. 67,200 Treatment expenses Kshs. 4,050 Medical report Kshs. 2,000 Motor vehicle search Kshs. 550 Total Kshs. 77,800 1. The assessment report prepared by Kibmat Loss Assessors itemised the damaged parts and estimated repairs at Kshs. 67,200. The assessor’s representative testified and produced the report. The report described the motor tricycle as repairable and set out the parts and labour costs. 2. The documentary bundle also included receipts for the motor vehicle assessment, medical report, search and other expenses. The Plaintiff’s list of documents expressly identified the receipts relied upon. 3. The motor vehicle repair claim of Kshs. 67,200 is not a separate additional award from the special damages pleaded. It forms part of the pleaded total of Kshs. 77,800. Awarding it separately would amount to double compensation. 4. I am satisfied that the Plaintiff proved the special damages claimed on a balance of probabilities. I therefore award Kshs. 77,800 as special damages. 5. Judgment is hereby entered in favour of the Plaintiff against the Defendants jointly and severally as follows: 6. General damages for pain, suffering and loss of amenities: Kshs. 1,300,000; 7. Damages for diminished earning capacity: Kshs. 350,000; 8. Future medical expenses: Kshs. 110,000; 9. Special damages: Kshs. 77,800; 10. Gross damages: Kshs. 1,837,800; Less 20% contributory negligence: Kshs. 367,560; and Net award: Kshs. 1,470,240. 1. The Plaintiff shall have the costs of the suit. 2. Interest on general damages, diminished earning capacity and future medical expenses shall accrue at court rates from the date of this judgment until payment in full. 3. Interest on special damages shall accrue at court rates from the date of filing the suit until payment in full. Orders accordingly **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**