https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/312

Raiji v Chogoria Girls High School (Sued through Board of Governors Chogoria Girls Secondary School) (Civil Case 8 of 2017) [2026] KEMC 312 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEMC 312 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 8 of 2017 YA Shikanda, SPM June 9, 2026 Between Stanley Nkonge Raiji Plaintiff and Chogoria Girls High School (Sued through Board of Governors Chogoria Girls Secondary School) Defendant Judgment The Claim 1.Stanley Nkonge Raiji (hereinafter referred to as the plaintiff) filed this suit on 25/1/2017 vide a plaint dated 23/1/2017. The plaintiff sued the Board of Governors Chogoria Gilrs High School (hereinafter referred to as the defendant) on account of a road accident that allegedly occurred on 7/12/2016 at Kyulu area along Mombasa-Nairobi Highway. The plaintiff averred that on the material day, he was lawfully travelling as a passenger in motor vehicle registration number KBN 131E belonging to the defendant when the same was negligently, recklessly and/or carelessly driven by the defendant’s driver at a high speed and without due regard to the passengers that the driver lost control and rammed into motor vehicle registration number KAT 336P/ZC 4677, thereby occasioning the plaintiff serious injuries. 2.The defendant was sued as the registered owner of motor vehicle registration number KBN 131E at the material time. The plaintiff pleaded several particulars of negligence against the defendant but owing to the consent on liability, I will not reproduce them. The plaintiff pleaded the particulars of injuries and those of special damages and prayed for judgment against the defendant for:a.General damages;b.Special damages of Ksh. 3,500/=;c.Costs of the suit;d.Interest. The Defendant’s Defence 3.The defendant entered appearance on 13/3/2017 and filed a statement of defence on the same day. The defendant admitted that its motor vehicle was involved in an accident on 7/12/2016 but denied that the accident was as a result of negligence on the part of its driver. The defendant averred that the accident occurred as a result of negligence on the part of the driver of motor vehicle registration number KAT 336P/ZC 4677 as well as the plaintiff. It pleaded several particulars of negligence against the plaintiff and the driver of motor vehicle registration number KAT 336P/ZC 4677. The defendant prayed that the plaintiff’s suit be dismissed with costs. Consent On Liability and Evidence 4.on 16/2/2026 the parties agreed to adopt the finding on liability in a related matter being civil case No. 7 of 2017 in which the defendant was held 100% liable. Further on 5/5/2026, the parties recorded a further consent in which they agreed that the plaintiff’s claim supporting documents be admitted in evidence without calling the makers thereof. The consents were adopted as orders of the court. The parties then filed written submissions on quantum. Main Issues for Determination 5.In view of the consent(s), the main issues for determination are as follows:i.Whether the plaintiff sustained injuries and suffered loss as a result of the accident;ii.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;iii.Who should bear the costs of this suit? The Plaintiff's Submissions 6.The plaintiff proposed a sum of Ksh. 800,000/= in general damages and relied on the authority of Robinson Njoroge v Daniel Ombasa [2021] eKLR in which the plaintiff and respondent in the appeal sustained a deep cut wound to the head leading to soft tissue injuries, soft tissue injuries to both hands and blunt injury to the right hip joint leading to severe soft tissue injuries. The trial court awarded Ksh. 300,000/= on 6/11/2018. On appeal, the award was affirmed on 12/7/2021. On special damages, the plaintiff urged the court to award Ksh. 3,550/= as well as costs of the suit and interest. The Defendant’s Submissions 7.The defendant proposed a sum of Ksh. 40,000/= in general damages and relied on the authority of Eldoret Grains Limited v Simiyu [2025] KEELRC 1264 (KLR) in which the plaintiff and respondent in the appeal sustained a cut wound on the right ankle. The trial court awarded Ksh. 100,000/= in general damages on 5/12/2014. On appeal, the award was reduced to Ksh. 40,000/= on 30/4/2025. It was not clear what the defendant’s proposal on special damages was. Analysis and Determination 8.I have carefully considered the evidence on record and given due regard to the submissions made by the parties. There is medical evidence on record to show that the plaintiff sustained a deep cut wound on the left ear. There is no contrary evidence. It is therefore my finding that the plaintiff sustained an injury and owing to the finding on liability, the plaintiff is entitled to damages as against the defendant. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. This Court has to bear in mind the principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 9.I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that:“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.” 10.The following principles are germane in assessing damages for personal injury claims:i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered;ii.The award should be commensurate to the injuries suffered;iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit;iv.Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration;v.Awards should not be inordinately too high or too low. 11.Based on the above principles, I proceed to assess the damages payable as follows. General Damages for Pain, Suffering and Loss of Amenities 12.I have considered the injuries sustained by the plaintiff. The medical evidence produced by the plaintiff indicates that the plaintiff was treated as an outpatient. I have further considered the submissions made by the parties on quantum as well as the authorities relied upon. The authorities relied upon by the parties are relevant. On my part, I have considered the following authority: a. Kenblest Limited v John Mutisya Wambua [2016] eKLR. 13.The plaintiff and respondent in the appeal sustained cut wounds on the head and left forearm. The trial court awarded Ksh. 220,000/= in general damages in 2010. On appeal, the award was reduced to Ksh. 150,000/= on 2/3/2016. 14.The plaintiff herein sustained a single injury. Given the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh.80,000/= in general damages would suffice. I award the same. Special Damages 15.plaintiff pleaded special damages as follows:a.Medical report…………………………….Ksh. 3,000/=b.Motor vehicle search…………………..…Ksh. 500/= 16.It is trite law that special damages must bespecifically pleaded andstrictly proved. In Nizar Virani t/a Kisumu Beach Resort- v - Phoenix of East Africa Assurance Co. Ltd the court said: -“It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 17.In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratcliffe v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 18.The only claim that was proven was that of the medical report. Consequently, I awardKsh. 3,000/= as special damages. Disposition 19.In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendant. Consequently, I make the following awards: 1.General damages for pain, suffering and loss of amenities...........Ksh. 80,000/= 2.Special damages………………………………………………………………………..…..Ksh. 3,000/=Total…………………………………………………………………………….…………………....…..Ksh. 83,000/= 20.The plaintiff is also awarded interest on the damages as well as costs of the suit. 21.The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that:“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” 22.In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that:“First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:a.The period from the date the suit is filed to the date when the Court gives its judgment; andb.The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” 23.Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows:“It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied) 24.From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full whereas interest on special damages shall accrue from the date of filing suit to the date of judgment. DATED, SIGNED AND DELIVERED VIA CTS THIS 9TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.