https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/799

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NAKURU** **CIVIL SUIT NO.E866 OF 2025** **TIMOTHY NJUE JACKSON ……………………………………….. PLAINTIFF** **-VERSUS-** **THE COUNTY GOVERNMENT OF NAKURU …….…….……… DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff, Timothy Njue Jackson, filed a Plaint dated 22nd August 2025 seeking Judgment against the Defendant for: a) General damages; b) Special damages in the sum of **Kshs.155,780.00**; c) Costs of future medical treatment and expenses; d) Damages for loss of earning capacity; e) Costs of the suit; f) Interest on the awards under paragraphs (a), (b), (c) and (d), as well as costs under paragraph (e), from the date of Judgment until payment in full; and g) Any other or further relief that this Honourable Court may deem just and expedient to grant. 1. The Plaintiff pleaded that on 28th December 2021, while driving a public service vehicle, he was involved in a road traffic accident in which he sustained serious injuries to his right lower limb, including compound fractures and extensive soft tissue injuries. He was initially taken to St. Joseph's Mission Hospital, where he received first aid and was thereafter transferred to Nakuru Level 5 Hospital for further treatment. 2. The Plaintiff's case is that upon admission at Nakuru Level 5 Hospital, he was treated with antibiotics and painkillers and his wounds were cleaned and dressed. The injuries initially appeared to be improving but his condition subsequently deteriorated. The Plaintiff alleged that the external fixation devices were removed and the wounds continued to deteriorate, eventually developing infection and extensive loss of soft tissue. 3. The Plaintiff was subsequently referred to AIC Kijabe Mission Hospital in February 2022 for further treatment.At Kijabe Hospital, he underwent further surgical intervention. Despite the treatment administered, the right lower limb could not be salvaged and the Plaintiff ultimately underwent amputation of the right leg. 4. The Plaintiff attributed the deterioration of his condition and the eventual amputation to negligence and breach of duty of care on the part of the medical practitioners at Nakuru Level 5 Hospital. The particulars pleaded included failure to properly manage and treat his wounds; failure to prevent infection; failure to provide adequate and appropriate medical treatment; failure to properly monitor his condition; and failure to exercise the requisite professional skill and care. 5. The Plaintiff further pleaded that as a direct consequence of the Defendant's negligence, he suffered permanent physical disability, pain and suffering, loss of amenities and diminished earning capacity. He stated that he had been working as a driver and that following the amputation he could no longer continue with his occupation. 6. The Plaintiff pleaded special damages of **Kshs.155,780.00** future medical expenses, loss of earning capacity, costs of the suit and interest. 7. The Plaint was accompanied by, among other documents, the Plaintiff's Medical Report, medical examination report, discharge summary from Nakuru Level 5 Hospital, referral and medical documentation from AIC Kijabe Hospital, photographs depicting the amputation and an order extending the period for institution of the suit. The documentary evidence therefore principally relates to the Plaintiff's treatment, the subsequent amputation and the continuing consequences of the injury. 8. The Defendant was duly served but failed to enter appearance or file a Defence. Consequently, Interlocutory Judgment was entered on 21st April 2026 by Hon. V. O. Adet The matter thereafter proceeded to formal proof on 6th July 2026. 9. On 5th August 2026, the Court directed the Plaintiff to file his Written Submissions by close of business on the same date. **The Plaintiff's Evidence** 1. PW1, Timothy Njue Jackson, adopted his Witness Statement as his evidence-in-chief and produced the documents contained in his List of Documents dated 22nd August 2025 and the supplementary list of documents as exhibits. 2. PW1 testified that on 28th December 2021 he was involved in a road traffic accident while driving a Public Service vehicle. He sustained serious injuries to his right leg and was initially taken to St. Joseph's Mission Hospital before being transferred to Nakuru Level 5 Hospital. 3. He testified that at Nakuru Level 5 Hospital his wounds were cleaned and dressed and he was placed on antibiotics and painkillers. He stated that despite the treatment, the condition of the leg deteriorated and he was eventually referred to AIC Kijabe Hospital. 4. PW1 testified that at AIC Kijabe Hospital he underwent further treatment and surgery but his right leg could not be saved and was ultimately amputated. He told the Court that since the amputation he had been unable to continue working as he had done before the accident and had consequently lost his source of livelihood. 5. The discharge and referral records support the history of the Plaintiff's treatment following the accident and his subsequent referral for specialized treatment. The documentary record further confirms the eventual amputation of the right leg. 6. The Medical Report by Dr. M. S. Malik, Consultant Surgeon, provides further detail on the nature and severity of the Plaintiff's injuries. The report states that the Plaintiff sustained compound fractures of the lower third of the right femur and the right ankle as a result of the accident. He was admitted to hospital, where he was treated with antibiotics and painkillers and the fractures were internally fixed. 7. The report further records that the Plaintiff subsequently developed wound sepsis. Although the wounds were cleaned and dressed, the condition of the right lower limb continued to deteriorate, with significant loss of soft tissue. The metal plates and tendons in the lower leg became exposed and, according to the medical opinion, the leg could not be salvaged. The Plaintiff consequently underwent amputation of the right leg at a level approximately 30 centimetres below the tip of the greater trochanter. 8. The Medical Report further records that following the amputation, the Plaintiff continued to experience difficulty walking and was using crutches. He also had a discharging sinus at the amputation stump, which required further treatment, and there was a likelihood of an infected piece of bone at the amputated site which would require removal to eradicate the infection. 9. Dr. Malik further opined that the Plaintiff would require a prosthetic leg at an estimated cost of Kshs.300,000.00 which would require replacement approximately every five years. 10. On disability, Dr. Malik concluded that the Plaintiff suffered total incapacity of a temporary nature for a period of three months, followed thereafter by partial incapacity of a permanent nature. Applying the assessment under the Work Injury Benefits Act, the doctor assessed the Plaintiff's permanent physical disability at 50%. 11. The medical evidence therefore establishes that the Plaintiff's injuries were severe, resulted in the permanent loss of his right leg and continue to affect his mobility and ability to work. The medical report also establishes the need for a prosthetic limb and the likelihood of future medical intervention. 12. The Plaintiff also produced photographs depicting his condition following the amputation. **Analysis and Determination** 1. From the pleadings, evidence and submissions, the following issues arise for determination: 2. Whether liability against the Defendant was established and, if so, to what extent; 3. What damages are payable to the Plaintiff under the respective heads pleaded; 4. Whether the claim for special damages of Kshs.155,780.00 was proved; 5. Whether the Plaintiff is entitled to future medical expenses; 6. Whether the Plaintiff proved loss of earning capacity or loss of future earnings; and 7. Who should bear the costs of the suit. **Liability** 1. The Defendant was served with the Plaint but did not enter appearance or file a defence. Interlocutory Judgment was consequently entered on **21st April 2026**. 2. The legal effect of an interlocutory judgment in a claim for pecuniary damages is that the Plaintiff proceeds to formal proof for purposes of establishing the quantum of damages payable. The interlocutory judgment does not, however, dispense with the requirement that the Plaintiff place before the Court sufficient evidence to enable the Court to assess the damages flowing from the cause of action. 3. Medical negligence ordinarily requires proof of a duty of care, breach of that duty and a causal connection between the breach and the injury complained of. In **BJC v Mochache & Another [2025] KECA 60 (KLR)**, the Court of Appeal reiterated that medical practitioners owe their patients a duty to exercise reasonable care and skill, while cautioning that an adverse medical outcome does not, by itself, establish negligence. 4. The standard applicable to medical practitioners is that of the ordinary competent practitioner possessing the requisite skill. This principle is commonly associated with **Bolam v Friern Hospital Management Committee [1957] 1 WLR 582** and has been applied by Kenyan courts in determining claims based on medical negligence. 5. In the present matter, however, the Defendant did not participate in the proceedings and did not place before the Court any evidence challenging the Plaintiff's account of the treatment, the alleged breach of duty, the subsequent infection or the causal connection between the treatment and the eventual amputation. 6. The Plaintiff's evidence is that he presented with severe injuries to the right lower limb, was treated at Nakuru Level 5 Hospital, subsequently developed wound infection and deterioration of the limb, was referred to AIC Kijabe Hospital and ultimately underwent amputation. That evidence is supported by the medical documentation produced. 7. In the absence of any contrary evidence, and the interlocutory Judgment having been entered against the Defendant, I find that the Defendant is **100% liable** for the injuries and consequential loss proved by the Plaintiff. **Quantum** 1. The fundamental principle in the assessment of damages is that an injured person should receive fair and reasonable compensation for the loss and suffering occasioned by the wrong, but should not be placed in a position of enrichment. 2. In assessing General Damages, the Court must consider the nature and extent of the injuries, the degree of permanent disability, the pain and suffering endured, the effect upon the Plaintiff's enjoyment of life and comparable awards made in cases involving broadly similar injuries. **General Damages for Pain, Suffering and Loss of Amenities** 1. The Plaintiff suffered exceptionally serious injuries. The evidence establishes compound fractures of the right femur and ankle, prolonged treatment, wound sepsis, extensive loss of soft tissue, exposure of fixation material and tendons, continuing infection and, ultimately, amputation of the right leg. 2. The consequences did not end with the amputation. The Plaintiff continued to experience difficulty walking, required crutches, had a discharging sinus at the stump and remained at risk of requiring further treatment. He has also been assessed at 50% permanent physical disability and requires a prosthetic limb. 3. The injury has consequently had a profound effect upon his mobility, independence, livelihood and enjoyment of life. 4. In **Otieno & another v Keraru [2024] KEHC 17034 (KLR)**, the High Court considered a case involving amputation of a leg and assessed general damages at **Kshs.2,500,000**, taking into account the nature of the injuries and the circumstances of the case. 5. In **Muchina v Wanjiku & 4 others [2025] KEHC 1817 (KLR)**, the Court considered serious injuries involving amputation and permanent disability and awarded **Kshs.3,000,000.00** as general damages. 6. Similarly, in **Maina v Pkemoi [2025] KEHC 3967 (KLR)**, the High Court considered comparable awards and upheld an award of **Kshs.3,000,000** for amputation of a leg. 7. In the present case, the Plaintiff's injuries are particularly grave. They involved not merely amputation but compound fractures, prolonged treatment, wound sepsis, extensive tissue loss, continuing infection and eventual loss of the limb. The medical evidence establishes permanent disability at 50%. 8. Taking into account the authorities, the nature of the injuries, the permanent loss of the right leg, the pain and suffering endured, loss of amenities and the continuing consequences of the disability, I find **Kshs.3,000,000.00** to be a fair and reasonable award for pain, suffering and loss of amenities. **Future Medical Expenses** 1. The Plaintiff also seeks the costs of future medical treatment and expenses. 2. Future medical expenses constitute a distinct head of damages and must be supported by credible medical evidence demonstrating the necessity of the future treatment and, where possible, its estimated cost. 3. In the present case, Dr. Malik's report expressly states that the Plaintiff requires a prosthetic leg costing approximately **Kshs.300,000.00,** with replacement every five years. The report also identifies the continuing medical concerns relating to the amputation stump. 4. The medical evidence therefore provides a sufficient basis upon which the Court can make an award for the prosthetic limb. A claimant cannot reasonably be expected to produce a receipt for a medical expense which has not yet been incurred. What is required is cogent medical evidence establishing the necessity and reasonable estimated cost. 5. In **Akhwaba Olubuliera Nicodemus v Patrick Afuma Wetende [2020] eKLR**, the Court considered the medical evidence relating to an artificial limb and recognized the propriety of an award for future medical requirements where the need was established by medical evidence. 6. I therefore award the Plaintiff **Kshs.300,000.00** for the cost of a prosthetic limb. 7. I do not, however, make a further separate award for repeated replacement of the prosthesis over the Plaintiff's lifetime in the absence of evidence establishing his remaining life expectancy and the precise number and cost of replacements that would be required. The award of **Kshs.300,000.00** is therefore confined to the prosthetic limb presently recommended by the medical expert. **Loss of Earning Capacity and Loss of Future Earnings** 1. The Plaintiff pleaded loss of earning capacity and testified that before the accident he worked as a driver but following the amputation he could no longer continue with his work. 2. It is important to distinguish between loss of future earnings and loss of earning capacity. The two heads are related but legally distinct. 3. The Court of Appeal authoritatively addressed the distinction in **Mumias Sugar Company Limited v Francis Wanalo [2007] KECA 485 (KLR)**. The Court explained that compensation for loss of future earnings is awarded for a **real and assessable loss proved by evidence**, whereas compensation for diminution of earning capacity is concerned with the reduction in the claimant's ability to earn in the labour market as a consequence of disability. 4. The Court of Appeal further held in *Mumias Sugar* that loss of earning capacity may be awarded whether or not the claimant is employed at the time of trial. Where the claimant is employed, the award compensates for the risk of losing employment or suffering diminished chances of obtaining alternative employment. Where the claimant is unemployed, the award compensates for the risk that he may be unable to obtain employment or suitable employment in the future. The Court emphasized that there is **no fixed formula** for assessing loss of earning capacity and that the award may be token, modest or substantial depending on the circumstances of each case. 5. In ***Mumias Sugar*,** the Court of Appeal also cautioned against mechanically applying the multiplier/multiplicand approach to a claim which is properly one for loss of earning capacity. In that case, an award of Kshs.2,016,000 based on a multiplicand and multiplier was set aside and substituted with a global award of Kshs.500,000. The Court considered the degree of disability and the actual diminution in the claimant's employment prospects. 6. The distinction has subsequently been reaffirmed by the Court of Appeal. In **Jubilee Haulers Limited & 2 others v Brian Muchiri Waihenya [2021] KECA 923 (KLR)**, the Court reiterated that loss of earning capacity is compensated as general damages once proved and that there is no mathematical formula for its assessment. The relevant factors include the claimant's age, qualifications, disability, expected income and remaining working life. 7. Similarly, the Court of Appeal has emphasized that **loss of future earnings** requires proof of the actual income that would have been earned, whereas loss of earning capacity concerns diminution of earning power. Where actual earnings and the basis for calculating future earnings are not proved, the Court should not simply assume a multiplicand and multiplier. 8. Applying these principles to the present case, the Plaintiff has not placed before the Court sufficient documentary evidence of his actual earnings as a driver to support a claim for loss of future earnings calculated on a conventional multiplier/multiplicand basis. There is no reliable evidence of his monthly or annual income from which such a mathematical calculation can properly be made. 9. That, however, does not defeat his claim for loss of earning capacity. The evidence establishes that the Plaintiff was working as a driver before the accident and that he has now lost his right leg. Dr. Malik has assessed his permanent physical disability at **50%**. His ability to undertake driving work, as well as other employment requiring physical mobility, has been substantially diminished. 10. The Plaintiff's circumstances therefore fall squarely within the principle in *Mumias Sugar*. His claim is not merely speculative. The permanent disability creates a real and substantial diminution in his ability to compete in the labour market and earn income in the manner he did before the accident. 11. The evidence before the Court also indicates that the Plaintiff is an older person. The medical examination records his age as 61 years. At that stage of life, the Court must take into account the shorter remaining working life, the contingencies of employment and life generally, and the fact that the Plaintiff has not proved a specific monthly income. 12. In **Akhwaba Olubuliera Nicodemus v Patrick Afuma Wetende [2020] eKLR**, the Court considered a claimant who had suffered amputation of a leg and permanent incapacity and adopted a global approach to loss of earning capacity where the evidence did not support a precise mathematical computation. 13. I am persuaded that a global award, rather than a multiplier/multiplicand calculation, is appropriate in the circumstances of this case. It would be speculative to assume a particular monthly income and multiply it over a number of years in the absence of satisfactory proof of earnings. 14. Taking into account the Plaintiff's age, his former occupation as a driver, the complete loss of his right leg, the 50% permanent physical disability, his substantially reduced ability to compete for employment and the contingencies of life and employment, I find **Kshs.800,000.00** to be a fair and reasonable award for loss of earning capacity. 15. For avoidance of doubt, this award is for loss of earning capacity and not for proved loss of future earnings. The Court has avoided duplication or overlap between the award for pain, suffering and loss of amenities and the award for diminished earning capacity, in accordance with the guidance in ***Mumias Sugar Company Limited v Francis Wanalo*.** **Special Damages** 1. The Plaintiff pleaded special damages of **Kshs.155,780.00** 2. The law is settled that special damages must be specifically pleaded and strictly proved. The fact that a particular sum is pleaded does not, by itself, entitle a claimant to the award. 3. In **Hahn v Singh [1985] KLR 716**, the Court of Appeal stated the established principle that special damages must not only be specifically claimed but must also be strictly proved. 4. In the present case, the documents produced by the Plaintiff principally comprise medical reports, medical examination records, discharge and referral documentation and photographs. The list of documents does not disclose receipts or other documentary evidence sufficient to strictly prove expenditure amounting to **Kshs.155,780.00** 5. Although the Plaintiff pleaded the amount and testified generally regarding his treatment, strict proof is still required. The Court cannot award special damages merely because the amount has been pleaded. 6. I therefore decline to award the sum of **Kshs.155,780.00** claimed as Special Damages. **Conclusion** 1. The evidence before the Court establishes that the Plaintiff suffered catastrophic injuries to his right lower limb following the accident. The injuries included compound fractures of the right femur and ankle, wound sepsis, extensive soft tissue loss and infection, ultimately resulting in amputation of the right leg. 2. The Medical Evidence establishes that the consequences of the injury are permanent. The Plaintiff has been assessed at 50% permanent physical disability, continues to experience difficulty walking, requires a prosthetic limb and remains at risk of requiring further treatment. 3. The injury has also substantially diminished the Plaintiff's ability to earn a living. He was a driver before the accident and the loss of his right leg has materially affected his ability to continue in that occupation. In accordance with *Mumias Sugar*, the appropriate compensation is therefore for diminution of earning capacity rather than an unproved mathematical claim for future earnings. 4. Having considered the evidence, the Pleadings, the Medical Reports and the applicable authorities, I find the following awards to be just and reasonable. **Disposition** 1. Judgment is hereby entered for the Plaintiff against the Defendant as follows: | | | | --- | --- | | **Head of Damage** | **Award** | | General damages for pain, suffering and loss of amenities | **Kshs.3,000,000.00** | | Future medical expenses – prosthetic limb | **Kshs.300,000.00** | | Loss of earning capacity | **Kshs.800,000.00** | | Special damages | **Nil** | | **TOTAL** | **Kshs.4,100,000.00** | 1. Accordingly, the final orders of the Court are: 1. Liability is entered against the Defendant at 100%. 2. The Plaintiff is awarded **Kshs.3,000,000.00** as General Damages for pain, suffering and loss of amenities. 3. The Plaintiff is awarded **Kshs.300,000.00** for future medical expenses being the established cost of a prosthetic limb. 4. The Plaintiff is awarded **Kshs.800,000.00** for loss of earning capacity. 5. The claim for Special Damages of **Kshs.155,780.00** is dismissed for want of strict proof. 6. The Plaintiff shall have the costs of the suit. 7. Interest on the awards under Paragraphs (b), (c) and (d) shall accrue at court rates from the date of this Judgment until payment in full. 2. The total award to the Plaintiff is therefore **Kshs.4,100,000.00** exclusive of costs and interest. 3. Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **26.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 26TH DAY OF AUGUST,2026** **In the presence of :** M/s Chepngetich for the Plaintiff Defendant: Absent Court Assistant: Phoebe.