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MagistratePartially AllowedNot stated in the judgment· [2014] KEMC 6 (KLR)

JW ( Suing Through His Father and Next Friend PKN) v Mwangi (Civil Case 17 of 2013) [2014] KEMC 6 (KLR)

Principal Magistrate's Court
23 October 2014
ANAloyce Peter Ndege
445 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyahururu court awarded a road accident victim Kshs. 122,500 after cutting his claim down to only the damages he could actually prove.

What this practically means

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Executive summary

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This was a road traffic accident claim in which the plaintiff, James Wachira, was struck by the defendant's vehicle KYG 938 along the Engineer–Ol Kalau road at Rironi market, sustaining soft tissue injuries to the lower back, left wrist and multiple bruises. Liability was settled by consent on 13 March 2014 at 70% against the defendant and 30% against the plaintiff, leaving quantum as the sole issue for determination. On 4 September 2014 the parties by consent produced the police abstract, treatment card, receipts, discharge summary, P3 form and medical report. Directions were issued for written submissions; only the plaintiff's submissions were filed by the mention date of 16 October 2014. The court, applying the principle that comparable injuries should attract comparable awards subject to inflation and the rising cost of living, held that the injuries in Kiwanjani Hardware Ltd & Another v Nicholas Mule Mutinda (2008) eKLR, cited by the plaintiff's counsel, were clearly more serious than those proved, and assessed general damages at Kshs. 170,000/= subject to the plaintiff's 30% contribution. Special damages of Kshs. 5,000/= were proved by receipt and similarly apportioned. Judgment was entered for the plaintiff in Kshs. 119,000/= general damages and Kshs. 3,500/= special damages, totalling Kshs. 122,500/=, with costs of the suit to the plaintiff. The judgment was delivered at Nyahururu in open court on 23 October 2014 by Aloyce Peter-Ndege, Ag. Principal Magistrate.

Key legal issues

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01

Assessment of general damages for soft tissue injuries

Holding

Kshs. 170,000/= awarded in general damages before apportionment, reduced to Kshs. 119,000/= after the 30% liability contribution

Reasoning

The court considered the plaintiff's submissions and the proved injuries. It distinguished the Kiwanjani Hardware Ltd authorities cited by the plaintiff, holding those injuries were clearly more serious than the soft tissue injuries pleaded and proved. Applying the comparability principle with regard to inflation and rising cost of living, it fixed general damages at Kshs. 170,000/= subject to the consented 30% liability apportionment.

p. 2
02

Proof of special damages

Holding

Only specially proved sums are awardable; Kshs. 5,000/= proved by receipt, reduced to Kshs. 3,500/= after apportionment

Reasoning

Special damages must be specifically pleaded and proved. Of the amounts pleaded, only Kshs. 5,000/= was supported by a receipt (PEXH No. 5B). That sum was awarded subject to the plaintiff's 30% contribution on liability as consented to, yielding Kshs. 3,500/=.

p. 2

Legal principles established

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  • Comparable injuries should attract comparable awards, subject to inflation and the rising cost of living among other considerations

Court orders

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  1. 1.Judgment entered in favour of the plaintiff: Kshs. 119,000/= general damages for pain and suffering (after 30% apportionment)
  2. 2.Kshs. 3,500/= special damages
  3. 3.Total award of Kshs. 122,500/=
  4. 4.Plaintiff to get the costs of the suit

Authorities

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Cases cited (1)

  • KIWANJANI HARDWARE LTD. & ANOTHER =VRS= NICHOLAS MULE MUTINDA
    (2008) eKLR
Jurisdiction invoked
Original civil suit for damages in respect of a road traffic accident (tort claim); no specific constitutional or statutory provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JW ( Suing Through His Father and Next Friend PKN) v Mwangi (Civil Case 17 of 2013) [2014] KEMC 6 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/6/eng@2014-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.