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MagistratePartially AllowedCivil Suit No 18 of 2013· [2014] KEMC 7 (KLR)

SK (Suing Thro' his Mother and Next Friend ENM) v Mwangi (Civil Suit 18 of 2013) [2014] KEMC 7 (KLR)

Principal Magistrates' Court (Judiciary of Kenya)
5 June 2014
936 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cut an accident victim's compensation by 30% because he partly caused the crash, and only paid expenses he had listed in court documents and proved with receipts.

What this practically means

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Executive summary

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This is a first-instance magistrates' court judgment from Nyahururu in a road traffic accident claim. The plaintiff, SK, a minor suing through his mother and next friend ENM, sued the defendant, Francis Karumba Mwangi, for general and Kshs. 5,600/= special damages arising from an accident of 31st July 2012 involving the defendant's motor vehicle registration number KYG 938. By a consent recorded on 13th March 2014, the defendant agreed to bear 70% liability and the plaintiff 30%, leaving only the assessment of damages for trial. Two witnesses testified: the plaintiff and his mother, who produced treatment documents from Ol Kalau District Hospital, a P3 form, a discharge summary from Nakuru Provincial General Hospital and a medical report by Dr. Wellington K. Kiamba. In submissions, the parties agreed the injuries were soft tissue injuries to the forehead, right elbow joints and left lower limb; the plaintiff urged an award of Kshs. 150,000/= relying on the Kiwanjani Hardware case, while the defendant proposed Kshs. 70,000/= citing two High Court decisions on soft tissue injuries. The court found the Kenya Power & Lighting Limited v Samson Machuma Makori case most comparable, awarded Kshs. 180,000/= general damages after adjusting for inflation, and Kshs. 5,000/= special damages, being only the pleaded and proved medical report fee; the unproved P3 form fee and unpleaded receipts were disallowed. Applying the 70% consent, judgment was entered for the plaintiff at Kshs. 126,000/= general and Kshs. 3,500/= special damages, with costs of the suit.

Key legal issues

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01

Assessment of general damages for soft tissue injuries

Holding

An award of Kshs. 180,000/= (before liability apportionment) was appropriate for the pleaded and agreed soft tissue injuries, adopting the comparable award of Kshs. 80,000/= in the Kenya Power & Lighting Co. Ltd case and adjusting for inflation.

Reasoning

The parties agreed in submissions that Dr. Kiamba's medical report (PEXH. No. 10A) disclosed soft tissue injuries to the forehead, right elbow joints and left lower limb. The court found the injuries in the Kenya Power & Lighting case (soft tissue injuries to the face, chin, left rib cage and right knee) almost similar. The fracture and abdominal injury were neither pleaded nor pursued in submissions, so were disregarded. Inflation since the 1999 award justified enhancement from Kshs. 80,000/= to Kshs. 180,000/=.

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Pleading and proof of special damages

Holding

Only Kshs. 5,000/= of the pleaded Kshs. 5,600/= was recoverable, being the medical report fee actually proved; the P3 form cost of Kshs. 600/= was pleaded but not proved, and other proved receipts related to unpleaded expenses.

Reasoning

The plaintiff produced several receipts for treatment and other expenses, but only pleaded Kshs. 5,600/= comprising the medical report fee and the P3 form cost. Of that pleaded sum, only the Kshs. 500/= medical report fee was proved by receipt (PEXH No. 10B). Special damages must be both pleaded and proved, so the unpleaded receipts were excluded and the unproved P3 fee was disallowed.

p. 2
03

Effect of the consent on liability

Holding

The consent recorded on 13.03.2014 apportioning liability at 70% (defendant) and 30% (plaintiff) reduced the final judgment amounts to Kshs. 126,000/= general and Kshs. 3,500/= special damages.

Reasoning

The parties negotiated and recorded a consent before the court in which the defendant agreed to shoulder 70% liability while the plaintiff bore 30%. The assessed damages were therefore scaled down: 70% of Kshs. 180,000/= is Kshs. 126,000/= and 70% of Kshs. 5,000/= is Kshs. 3,500/=. The trial was confined to assessment of damages only.

p. 2

Legal principles established

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  • General damages for personal injuries are assessed by comparison with awards in comparable cases, adjusted for inflation since the date of the earlier award.
  • Special damages must be both specially pleaded and strictly proved; expenses proved but not pleaded, or pleaded but not proved, are not recoverable.

Court orders

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  1. 1.Judgment entered in favour of the plaintiff and against the defendant in the sum of Kshs. 126,000.00 being general damages
  2. 2.Judgment in the sum of Kshs. 3,500.00 being special damages
  3. 3.The plaintiff to also get the costs of the suit

Authorities

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Cases cited (3)

  • Kiwanjani Hardware Ltd & Anor v Nicholas Mule Mutinda
    Machakos HCCCA No. 16 of 2008
  • Eastern Produce (K) Ltd (Savana Estate) v Gilbert Muhunzi Makotsi (2013)eKLR
    (2013)eKLR
  • Kenya Power & Lighting Limited v Samson Machuma Makori (2008)eKLR
    (2008)eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a tort claim for damages arising from a road traffic accident (no specific provision cited 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, "SK (Suing Thro' his Mother and Next Friend ENM) v Mwangi (Civil Suit 18 of 2013) [2014] KEMC 7 (KLR)", Case Analysis (2014). Civil Suit No 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/7/eng@2014-06-05

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