https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/467

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **CIVIL SUIT NO.E6242 OF 2024** **KEFFER MURIITHI MUGWIKA......................................................PLAINTIFF** **-VERSUS-** **DAVID WAWERU KURIA aka DAVID MWANGI …….……… DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff filed a Plaint dated 9th July ,2024 seeking Judgment against the Defendant for: 2. General damages for pain, suffering and loss of amenities of life; 3. Special damages of Kshs. 7,100.00; 4. Costs of the suit and interest; 5. The Plaintiff avers that on or about the 16th April ,2024 the Plaintiff was walking alongside Ngarariga area along Nairobi – Nakuru road, when the Defendant negligently drove managed or controlled and unroad worthy Motor Vehicle KAL 572 Q that its tyre came out and he lost control of the vehicle and collided with the Plaintiff who sustained injuries and suffered loss and damage . 6. As a consequence of the accident, the Plaintiff claims to have sustained blunt trauma index finger and elbow, blunt trauma lower back and chest and disability of 2% . 7. The Defendant was served but did not enter appearance. **Interlocutory Judgement** was entered on **15th February,2025** by Hon.M.Malingu against the Defendants and the matter proceeded for Formal Proof hearing on 1st July,2026. 8. PW1, Keffer Muriithi Mugwika, adopted his Witness Statement dated 9th July 2024 and produced the documents in his list as **(P Exhibit 1–6)**. He testified that on 16th April 2024, while walking along the Nairobi–Nakuru Road at Ngarariga, Motor Vehicle KAL 572Q, allegedly driven and owned by the Defendant, was involved in an accident after one of its tyres came off and the vehicle knocked him down. He sustained injuries but testified that he had since healed. He attributed the accident to the Defendant’s negligence and relied on the documentary evidence produced in support of his claim. 9. On 1st July ,2026 i directed the Plaintiff to file his Submissions . **Plaintiff’s submissions dated 1st July ,2026** 1. The Plaintiff stated that Interlocutory Judgment had been entered against the Defendant in default of appearance and urged the Court to proceed to assess damages. He submitted that he sustained soft tissue injuries, namely blunt trauma to the left index finger, elbow, lower back and chest, as confirmed by the medical evidence. Relying on the authorities cited, he proposed an award of **Kshs. 220,000.00** for pain, suffering and loss of amenities. 2. The Plaintiff further submitted that he had proved Special Damages of Kshs.7,100.00 through the medical documents and receipts produced in evidence. He therefore sought a total award of **Kshs. 227,100.00** together with costs of the suit and interest. **Liability** 1. I have considered the evidence adduced by PW1in this case. I have also carefully read the Plaintiffs Written Submissions dated 1st July,2026. The only issues that this Court will determine are: 2. Who is liable for the said accident and to what extent? 3. What is the Quantum of damages awardable? 4. Who is liable to pay costs of this suit? 5. On the issue of liability, the Plaintiffs pleaded and testified that the accident was caused by the driver of Motor Vehicle Registration Number KAL 572 Q who negligently drove it and caused the accident. 6. In light of the evidence on record the only reasonable conclusion is that the suit Motor Vehicle was owned and driven by the Defendant on the material day. The testimony of the Plaintiff was not controverted. 7. In the premises, I find that the Defendant was driving the suit Motor vehicle as a servant or agent of the Defendant hence the Defendant is liable. The Plaintiff's evidence was uncontroverted. 8. In the upshot therefore, I find that the Defendant should have avoided the accident at all costs which was foreseeable. He caused the same since he was driving at a high speed and was not in a position to control the Motor Vehicle when he collided into the Plaintiff’s Motorcycle from behind . 9. I therefore find the Defendant 100% liable for the accident. **Quantum** 1. The Plaintiff pleaded and testified that he sustained***blunt trauma to the left index finger, lower back and chest***, with a resulting **2*% permanent incapacity****.* The treatment notes from Nairobi Healthcare Hospital, the P3 Form and the Medical Report by Dr. P. M. Wambugu support the Plaintiff’s evidence. Dr. Wambugu found residual swelling, tenderness and stiffness of the left index finger at the proximal interphalangeal joint and assessed the degree of permanent incapacity at 2%. I am therefore satisfied that the pleaded injuries were proved. 2. Counsel for the Plaintiff proposed an award of **Kshs.220,000/=** for pain, suffering and loss of amenities. In support, Counsel relied on **M.A. Bayusuf & Sons Ltd v Grace Adhiambo Opondo [2008] eKLR**, where Kshs.200,000/= was awarded for soft-tissue injuries, and **Musau & Another v Ngugi (Civil Appeal No. E310 of 2021) [2025] KEHC 5044 (KLR),** where an award of Kshs.220,000/= was upheld. The latter is particularly instructive as a recent decision, although the injuries therein were not identical to those in the present case. 3. I have also considered the decision in **Kaimosi Tea Estate v Boaz Madahana Mwendo [2014] KEHC 5166 (KLR),** where Kshs.75,000/= was awarded for an injury involving the left index finger. The authority is distinguishable on the nature and extent of the injuries and the award was made in 2014. The passage of time and inflation must also be taken into account. 4. The guiding principle is that comparable injuries should attract, as far as possible, comparable awards, while recognising that each case must be determined on its own facts. Previous awards are therefore guides and not binding tariffs. The Court must consider the nature and extent of the injuries, residual effects and any permanent incapacity, while ensuring that the award is fair and reasonable. 5. In the present case, I have considered the soft-tissue injuries, the residual swelling and stiffness of the left index finger, the 2% permanent incapacity, the comparable authorities and the effect of inflation. I find the proposed sum of **Kshs.220,000.00** to be fair and reasonable compensation for pain, suffering and loss of amenities. 6. I accordingly award the Plaintiff **Kshs.220,000.00** as General Damages for pain, suffering and loss of amenities. **Special Damages** 1. The Plaintiff also pleaded and strictly proved **Special Damages of Kshs. 7,100.00** by producing receipts in support thereof. I therefore award the Plaintiff the said sum as Special Damages. **Disposition** 1. The Plaintiff has proved his case against the Defendant on a balance of probability and I proceed to enter Judgment for the Plaintiff against the Defendant as follows: 2. General Damages................................................Kshs.220,000.00 3. Special Damages......................................................Kshs 7,100.00 4. **TOTAL ....................................................................Kshs.227,100.00** ***(Kenya Shillings two hundred and twenty seven thousand one hundred)*** 1. **Interest on General Damages at court rates from the date of this Judgment until payment in full;** 2. **Interest on Special Damages at court rates from the date of filing suit until payment in full; and** 3. Costs of the suit. 4. Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **12.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 12TH DAY OF AUGUST,2026** **In the presence of :** M/s Kanana for the Plaintiff Defendant: Absent Court Assistant: Phoebe.