https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/462

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCCC/E293/2025 ERICK MWANZIA MUTUA ALIAS ERICK MUTUA VS SUSAN NYAMBURA MWAURA AND STANLEY GITHINJI MAINA JUDGMENT 1. On 10th January 2025, at about 9:00 a.m., the plaintiff was riding motor cycle registration number KMGL 980H along Murang’a/Kenol road at Wanjii area when the 2nd defendant, who was driving the 1 st defendant’s motor vehicle registration number KBJ 245R hit the plaintiff’s motorcycle as a result of which the plaintiff sustained personal injuries. In his plaint dated 2nd October 2025, the plaintiff enumerated his injuries as follows; 1. Head injuries resulting in; 1. multiple skin lacerations, 2. complex orbital and skull fractures, 3. intracranial hemorrhage, 4. brain edema, 5. loss of consciousness; 2. Injury on the right eye with chemosis, proptosis, ectropion and conjunctival injection; and 3. Bruises over the right shoulder area. 2. The plaintiff claimed that the accident had occurred due to the defendants’ negligence. He therefore sought damages for pain, suffering and loss of amenities, special damages of Kshs. 28,555/=, costs of the suit and interest. 3. The defendants did not enter appearance or file a defence despite service. Interlocutory judgment was therefore entered against the defendants and the matter scheduled for formal proof hearing. The plaintiff testified as the sole witness in the matter. His learned counsel thereafter filed his written submissions, which this court has duly considered. # ISSUES, ANALYSIS AND DETERMINATION 1. As already noted above, interlocutory judgment was entered against the defendants who did not participate in the matter despite service. It has been held that where interlocutory judgment is entered against a defendant who fails to enter appearance or file a defence, the question of liability is resolved in favor of the plaintiff. (See [***Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/95/eng%402016-11-25) Accordingly, the sole issue for determination is the assessment of damages. 1. In assessing general damages, 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)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/71/eng%401986-09-02) 2. The injuries pleaded by the plaintiff tally with what is set out in the medical report prepared by Dr. Ndirangu Karomo on 13th May 2025. Dr. Karomo noted that the plaintiff had been admitted to the ICU and discharged on 23rd January 2025 with instructions to seek maxillofacial review at Kenyatta National Hospital. At the time of his examination, a few months after the accident, Dr. Karomo noted that the plaintiff was experiencing recurrent headaches that rarely resolved on taking painkillers and had blurred vision and increased lacrimation of the left eye. The plaintiff also produced copies of treatment notes and a hospital discharge summary from Murang’a Level 5 Hospital to support these findings. 3. For the injuries sustained by the plaintiff, learned counsel urged this court to award the plaintiff a sum of Kshs. 2,500,000/= in general damages. He relied on the case of [***EBEREGE TEA FACTORY CO. LTD. & another v SABINA MORAA***](https://kenyalaw.org/akn/ke/judgment/kehc/2012/1163/eng%402012-10-25) [***(suing through the next of Friend and Uncle ROBERT ONDIEKI ONGAGA)***](https://kenyalaw.org/akn/ke/judgment/kehc/2012/1163/eng%402012-10-25)[***[2012] KEHC 1163 (KLR)***](https://kenyalaw.org/akn/ke/judgment/kehc/2012/1163/eng%402012-10-25) where an award of Kshs. 1,750,000/= in general damages was upheld. The respondent in that matter had sustained a cut wound on the head, cerebral contusion, bruises on the scalp, bruises and lacerations on both hands and bruises on both legs. There was no hope of the respondent ever recovering her normal mobility thus her permanent disability was assessed at 95 per cent. 1. Counsel also relied on the case of ***Gerald Musungu Otwani v Kulsum Alibhai and Another [2006] eKLR*** where the plaintiff who had sustained a severe head injury which caused brain damage and permanent loss of the right eye, multiple facial, arm and leg bruises and scalp lacerations was awarded Kshs. 2,500,000 for pain and suffering. 2. Further reliance was placed on the case of [***James Njau Kariuki V Mary Goreti Wakwibubi & Another [2007] KEHC 2593 (KLR)***](https://kenyalaw.org/akn/ke/judgment/kehc/2007/2593/eng%402007-04-20) where the plaintiff who had sustained a laceration on the forehead of 7 cm, bruises and facial cut wounds on the bridge of the nose and over the left eyebrow area, cut left alae nasal, deep cut wound left knee joint, dislocation of the left knee joint, fracture of left acetabulum with left hip dislocation, fracture of the left femur and soft tissue injuries on the left side of the chest. The plaintiff in that matter was awarded general damages in the sum of Kshs. 3,000,000/=. 3. The plaintiff in the present case did not lose mobility nor did he suffer brain damage as in the cases of ***Eberege Tea Factory Co. Ltd. & Another (supra)*** and ***Gerald Musungu Otwani (supra)***. It is however evident that his injuries were severe as the plaintiff was admitted to the ICU and discharged nearly a fortnight after he was involved in the accident. This court also notes that the plaintiff sustained an orbital and skull fracture and internal bleeding in the head. At the time of his examination by Dr. Karomo, a few months after the accident, he was still suffering from frequent headaches that could not resolve with analgesics and his left eye sight had not fully recovered. 4. From the authorities relied on by the plaintiff, the injuries in the case ***James Njau Kariuki (supra)*** are most comparable to the injuries sustained in the present case. The plaintiff ***James Njau Kariuki (supra)*** sustained severe skeletal injuries, soft tissue injuries and soft tissue injuries to the head. Considering the injuries sustained in the present case and the rate of inflation since that decision was made, this court finds that a sum of Kshs. 2,500,000/= suffices in general damages in the present case. # SPECIAL DAMAGES 1. The plaintiff also sought a sum of Kshs. 28,555/= in special damages being the sum of Kshs. 5,000/= for preparation of the medical report, Kshs. 23,005/= for treatment and Kshs. 550/= for the copy of records. The plaintiff was not only required to strictly plead the claim for special damages but was also required to prove the claim as they cannot be inferred from the facts. (See ***Hahn V Singh [1985] KECA 129 (KLR)*** 2. The plaintiff produced copies of receipts to prove the expenses sought for preparation of the medical report, for treatment and for obtaining the copy of records and is therefore entitled to the sums sought in special damages. # CONCLUSION 1. In the end, judgment is entered in favor of the plaintiff against the defendants jointly and severally for a sum of Kshs. 2,528,555/= made up as follows; 1. Liability is entered wholly in favour of the plaintiff against the defendants; 2. General damages for pain and suffering - Kshs. 2,500,000/=; and 3. Special damages- Kshs. 28,555/=; 2. The plaintiff shall have the costs of this suit. 3. Interest shall accrue on the above award and costs at court rates from the date of judgment until payment in full. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 5TH DAY OF AUGUST 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **JUDGMENT READ ON THE VIRTUAL PLATFORM AT 11:21 A.M. IN THE PRESENCE OF;** **C/A JEREMIAH** **MR. NDUNG’U FOR THE PLAINTIFF** **NO APPEARANCE FOR THE DEFENDANT** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-08-10 14:30:16