https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/330

Muiruri v Kung’u (Civil Case E084 of 2025) [2026] KEMC 330 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEMC 330 (KLR) Republic of Kenya In the Murang'a Law Courts Civil Case E084 of 2025 GK Waithira, SRM July 8, 2026 Between Grace Muthoni Muiruri Plaintiff and Margaret Wanja Kung’u Defendant Judgment 1.In her plaint dated 23rd April 2025, the plaintiff averred that she was a passenger travelling aboard Tuktuk registration number KTWC 455E along Murang’a/Kambirwa road at Kongoini ACK Church area, when the defendant or her driver lost control of her motor vehicle registration number KDH 886Y and rammed into the Tuktuk from behind. This caused the Tuktuk land into a ditch and overturn. 2.The plaintiff claimed that she had sustained lumbar hypolordosis, and blunt soft tissue injuries on the anterior chest, on the left elbow with a cut wound, on the right thigh with a cut wound and on the right thumb. Her claim against the defendant was for special damages, general damages, loss of earnings, loss of future earnings, future medical expenses, costs of the suit and interest. 3.Interlocutory judgment was entered against the defendant who did not file a response within the stipulated time. Issues, Analysis and Determination 4.The sole issue for determination in the matter is the assessment of quantum. Interlocutory judgment having been entered against the defendant, the question of liability was resolved in favor of the plaintiff. (See Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR) I. General Damages 5.The plaintiff has sought general damages for the pain and suffering she experienced as a result of the injuries sustained in the accident. In assessing an award under this head, the court is required to consider the awards made for similar injuries, bearing in mind that no two cases can have the same exact injuries and disability effects, and each case must be determined based on its peculiar facts. The court is also required to consider the fact that damages must not only be within the limits set out by decided cases but also be within the limits of the Kenyan economy. Further, rising inflation should also be considered while assessing damages. (See Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR) ) 6.The injuries pleaded by the plaintiff were confirmed by the entries made in the copy of the P3 form and the medical report produced by the plaintiff. This court was urged to award the plaintiff a sum of Kshs. 650,000/= for the injuries sustained. The proposal was based on the fact that the plaintiff’s injuries had been classified as “maim” degree in the plaint. 7.In the case of Gicharu & another v Richard & another (Civil Case 300 of 2014) [2024] KEHC 12736 (KLR) (Civ) (15 October 2024) (Judgment), where the plaintiff had sustained spine injury, lumbar hyperlordosis, degenerative desiccation and annulus fibroses bulge, the court awarded the plaintiff a sum of Kshs. 2,000,000/= for pain and suffering. The plaintiff’s incapacity in that case was assessed at 100 per cent. 8.The court in the case of Benvar Estates Limited v Wasike (Civil Appeal E013 of 2025) [2026] KEHC 2755 (KLR) (5 February 2026) (Judgment) upheld an award of Kshs. 1,500,000/=. The plaintiff in that case had sustained head injuries with a brain concussion and lost consciousness, displaced fractures of vertebral C6 to T1 with muscle spasm and spondylosis, compression fracture thoracic vertebral T8, fracture of the right radius, severe soft tissue injuries of the lumbar region of the back resulting into lumbar hypo lordosis, due to muscle spasm and lower spondylosis, soft tissue injuries of the right wrist joint and forearm, soft tissue injuries of the left wrist joint and soft tissue injuries of the right knee joint. 9.In the instant suit, the plaintiff sustained superficial soft tissue injuries on the chest, left elbow, right thigh and right thumb as well as the decrease of nerves to her spine. The severity of her injuries were classified as “maim” in the P3 form. The form defines a maim injury as destruction or permanent disabling of the body. The plaintiff’s injuries were however not as severe as those sustained in the foregoing authorities. Notably, the plaintiff in this case did not sustain any fractures. Considering these facts, this court awards the plaintiff a sum of Kshs. 650,000/= for general damages. II. Future Medical Expenses 10.The plaintiff sought a sum of Kshs. 28,800/= in future medical expenses for a four-year long course of physiotherapy and pain-relieving medication. Future medical expenses are damages in the nature of special damages which must not only be pleaded with a degree of certainty but must also be proved. In this case, the plaintiff relied on the medical report dated 15th March 2025 to support her claim. In his said report, Dr. P.K. Mwangi estimated that the plaintiff would spend Kshs. 600/= per month on analgesics and physiotherapy for an indefinite period of time. This court therefore finds that the plaintiff proved her claim for future medical expenses to the required standard. The sum of Kshs. 28,800/= is allowed under this head. III. Loss of Earnings 11.In the case of Fairley V John Thomson Ltd [1973] 2 Lloyd’s Law Reports which was cited with approval in the case of S J v Francesco Di Nello & another [2015] KECA 606 (KLR) the court made a distinction between an award for loss of earnings and loss of future earning capacity in the following terms;“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.” 12.A claim for loss of earnings must therefore be proved through production of evidence. 13.The plaintiff stated that following the accident, she was put on bed rest. She was unable to undertake her farming activities, which had resulted to her loss of earnings. In his medical report, Dr. P.K. Mwangi noted that the plaintiff had limitations in flexing the back. Her injuries had resulted in spine osteoarthritis and she would require pain relieving medication and physiotherapy for an indefinite period. Although the plaintiff claimed that she earned about Kshs. 13,200/= to Kshs. 15,000/= per month from farming, she did not produce documentary proof of her earnings. She however produced photographs to prove her livelihood as a farmer. The court in the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] KECA 202 (KLR) observed that insisting on documentary proof of earnings would disadvantage many Kenyans who do not keep records yet they earn a livelihood from farming. Based on her unchallenged evidence, the average earnings of the plaintiff as a farmer is Kshs. 14,000/= per month. She is therefore awarded a sum of Kshs. 70,000/= for lost earnings for the 5-month period between the occurrence of the accident and the filing of the claim. IV. Loss of Future Earnings 14.The plaintiff’s learned counsel has urged this court to award the plaintiff a sum of Kshs. 720,000/= for loss of future earnings. It is submitted that the plaintiff is 56 years old and would have worked up to the retirement age of 60 years earning a monthly income of Kshs. 15,000/=. 15.The respondent in the case of Gatobu v Murerwa (Civil Appeal E127 of 2023) [2026] KEHC 5845 (KLR) (28 April 2026) (Judgment) sustained a permanent disability of 70 per cent from a road traffic accident. The court in that matter considered the fact that farming is a physically demanding activity which would be difficult for the respondent given his physical condition. The court in that matter upheld a global award of Kshs. 600,000/= for loss of future earnings. This court similarly finds that an award of Kshs. 600,000/= is suitable for loss of future earnings. V. Special Damages 16.The plaintiff also sought a sum of Kshs. 12,666/= in special damages. She claimed that she had spent a sum of Kshs. 9,116/= in medical expenses, Kshs. 3,000/= to obtain the medical report and Kshs. 550/= for the copy of records. She was required to strictly prove her claim for special damages and did so by availing copies of receipts to prove her expenses. She is therefore entitled to the sums sought in special damages. Conclusion 17.The upshot of the foregoing is that judgment is entered in favor of the plaintiff against the defendant for a sum of Kshs. 1,311,466/= made up as follows;a.Liability is entered wholly in favour of the plaintiff against the defendant;b.General damages for pain and suffering - Kshs. 600,000/=c.Future medical expenses - Kshs. 28,800/=d.Loss of earnings - Kshs. 70,000/=e.Loss of future earnings- Kshs. 600,000/=f.Special damages- Kshs. 12,666/=. 18.The above award shall attract interest at court rates from the date of judgment until payment in full. 19.The plaintiff shall have the costs of this suit. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF JULY 2026.HON. GRACE WAITHĨRASENIOR RESIDENT MAGISTRATEJudgment read on the virtual platform in the presence of;C/A JeremiahMr. Ndonga h/b for Mr. Mbuthia for the plaintiffNo appearance for the defendant