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MagistratePartially AllowedCivil Suit No E369 of 2022· [2024] KEMC 54 (KLR)

Ichami v Bakemark Limited (Civil Suit E369 of 2022) [2024] KEMC 54 (KLR)

Magistrates' Court
30 May 2024
ANA.P NDEGE
1,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru magistrate awarded a road accident victim about Kshs. 366,000 for soft tissue injuries, lifting older awards to account for inflation.

What this practically means

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Executive summary

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This was a first-instance road traffic accident claim arising from an accident on 29th September 2021 along the Gilgil-Nakuru road at Mbaruk area within Nakuru County, involving motor vehicle registration number KDB 382E in which the plaintiff was a lawful passenger. Liability was settled by consent on 13th February 2024 at 90:10 in favour of the plaintiff against the defendant, leaving only quantum for determination. The plaintiff, the sole witness, produced his medical report by Dr. Steven Onyango dated 18/11/2021 showing soft tissue injuries to the left anterior chest, multiple bruises on the back, bruises and laceration on the angle of the joint, and numbness of the left lower limb. The defendant's medical report dated 7/3/2023 described abrasional wound on the right foot, blunt trauma to the chest, back and left leg, with full recovery. The plaintiff's counsel submitted for Kshs. 450,000/= while the defendant proposed Kshs. 150,000/=. Applying the comparable-injuries principle and the authorities cited, and considering inflation and the rise in the cost of living since the Kshs. 300,000/= award in Robinson Njoroge (2021), the court awarded Kshs. 400,000/= as general damages. Relying on the Jogoo Kimakia principle that special damages must be specifically pleaded and proved, the court found the pleaded special damages of Kshs. 6,690/= proved by receipts. The plaintiff was held entitled to Kshs. 406,690/= less 10% contribution, a net of Kshs. 366,021/=, plus costs and interest. A 30-day stay of execution was granted unopposed.

Key legal issues

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01

Quantum of general damages for soft tissue injuries

Holding

General damages of Kshs. 400,000/= awarded, being a comparable award for soft tissue injuries adjusted upward for inflation from prior awards of Kshs. 300,000/- and Kshs. 150,000/- relied on by the parties

Reasoning

The court applied the comparable-injuries principle from Denshire Muteti Wambua and H. West & Son, considering the medical reports of both Dr. Onyango (plaintiff) and the defendant's doctor, which described blunt trauma and soft tissue injuries with full recovery. It compared the awards in Michael Okello, Robinson Njoroge and Justine Nyamweya Ochoki, and uplifted the Kshs. 300,000/- 2021 award to account for inflation and cost of living.

p. 2
02

Proof of special damages

Holding

Special damages of Kshs. 6,690/= proved by production of receipts for the medical report (Kshs. 6,000), motor vehicle search (Kshs. 550) and a receipt attached to the demand letter (Kshs. 140)

Reasoning

Restating the rule in Jogoo Kimakia Bus Services that special damages must be specifically pleaded, the court found the plaintiff had produced receipts totalling Kshs. 6,690 and thus proved the special damages pleaded.

p. 3

Legal principles established

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  • Comparable injuries should as far as possible be compensated by comparable awards, keeping in mind the correct levels of awards in similar cases
  • Special damages must be specifically pleaded
  • Where expert opinion conflicts, the court may prefer expert evidence corroborated by exhibits

Court orders

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  1. 1.General damages of Kshs. 400,000/= for pain and suffering awarded to the plaintiff
  2. 2.Special damages of Kshs. 6,690/= awarded as pleaded and proved
  3. 3.Total award of Kshs. 406,690/= subject to 10% contributory negligence, leaving a net of Kshs. 366,021/=
  4. 4.Costs of the suit to the plaintiff
  5. 5.Interest on the award
  6. 6.30 days stay of execution granted

Authorities

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Cases cited (7)

  • Denshire Muteti Wambua vs Kenya Power and Lightning Company
    (2013) e KLR
  • H. West and Son ltd vs Shepherd
    (1964) AC 326
  • Michael Okello vs Priscilla Atieno
    (2019) e KLR
  • Robinson Njoroge vs Daniel Ombasa
    Naivasha H.C.C.A No 64 of 2018, (2021) e KLR
  • Justine Nyamweya Ochoki & Another v Jumaa Karisa Kipingwa
    (2020) eKLR
  • Shah & another vs Shah & other
    (2003) 1 EA
  • Jogoo Kimakia Bus services ltd v Electrocom International Ltd
    (1992) KLR 777
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a road traffic accident claim (not expressly 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, "Ichami v Bakemark Limited (Civil Suit E369 of 2022) [2024] KEMC 54 (KLR)", Case Analysis (2024). Civil Suit No E369 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/54/eng@2024-05-30

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