Mucheru v Mithamo & another (Civil Suit 768 of 2023) [2025] KEMC 35 (KLR)
The bottom line
#A Nakuru court awarded a road accident victim over Kshs 2.6 million, but cut his claim where he lacked proof, especially for future lost earning capacity.
What this practically means
#Executive summary
#Key legal issues
#Proof of injuries pleaded
The plaintiff sustained the injuries pleaded as a result of the accident; the two medical reports, P3 form and radiological reports all agree.
Despite defence counsel's contrary submissions, the court found that both medical reports (by Dr. Mugenya for the plaintiff and Dr. M. S. Malik for the defence) agreed on the injuries sustained, corroborated by the P3 form and radiological reports admitted by consent without calling witnesses.
Quantum of general damages for pain and suffering
Kshs. 3,000,000/= awarded (Kshs. 2,250,000/= after 25% contribution), anchored on Gabriel Mwasguma vrs Mohammed Sajjad with adjustment for inflation and passage of time.
Applying the principle that comparable injuries should attract comparable awards factoring in inflation and the capacity of the Kenyan economy, the court adopted the 2015 award of Kshs. 3,000,000/= in Gabriel Mwasguma, finding the plaintiff's injuries only slightly less serious, and awarded the same sum subject to the consented 25% liability.
Loss of earnings vs loss of earning capacity
Loss of earnings awarded at minimum wage (Kshs. 15,201.15 x 8 months = Kshs. 121,608/=) for the 8-month incapacitation; claim for loss of future earning capacity dismissed for lack of evidence.
The court distinguished loss of income (special damage requiring strict proof) from loss of earning capacity (general damages). Using minimum wage for a general worker, it awarded 8 months' lost earnings. The earning capacity claim failed because no evidence or submissions showed the plaintiff lost his capacity to work as a businessman or salesman.
Future medical expenses
Awarded Kshs. 180,000/= (Kshs. 135,000/= after contribution), enhancing the Kshs. 150,000/= award in Hellen Atieno Oduor for a similar procedure to account for rising costs of living.
Following Tracom and the subsequent Court of Appeal decisions in Kenya Power & Lighting Co v Amk and Forwarding Company Ltd v Kisilu, the court held an approximate pleaded figure suffices. Faced with conflicting expert evidence on the cost of the future operation, it adopted the Hellen Atieno Oduor benchmark, enhanced for inflation, as proposed by plaintiff's counsel.
Cost of domestic help
Kshs. 12,000/= per month for the 8 months of incapacitation awarded, i.e. Kshs. 96,000/= (Kshs. 72,000/= after contribution).
The plaintiff pleaded and testified that he required a domestic helper at Kshs. 12,000/= per month. The court tied the award to the medically supported period of incapacitation of 8 months rather than an open-ended period, subject to the consented 25% contribution.
Special damages
Kshs. 157,585/= proved (Kshs. 118,188/= after contribution), being Kshs. 8,000/= medical report, Kshs. 149,035/= medical receipts and Kshs. 550/= motor vehicle search.
Although Kshs. 170,485/= was pleaded, only Kshs. 149,035/= of the medical expenses was proved by the receipts produced (PEXH. No. 10), together with the medical report fee and search certificate cost. Special damages must be strictly proved, so the award was limited to the proved amounts, subject to the 25% contribution.
Legal principles established
#- Loss of earnings is a special damage that must be specifically pleaded and strictly proved, while loss of earning capacity is compensated as general damages once proved.
- Future medical expenses, though within general damages, must be specifically pleaded; it suffices to plead an approximate sum since exact future costs cannot be ascertained.
- General damages must be reasonable, moderate, and comparable awards should be made for comparable injuries, taking into account inflation and the prevailing economic circumstances.
Court orders
#- 1.General damages for pain and suffering of Kshs. 2,250,000/=
- 2.Damages for Loss of Earning: Kshs. 91,206/=
- 3.Costs of Future Medication/Removal of implant: Kshs. 135,000/=
- 4.Cost of Domestic Help: Kshs. 72,000/=
- 5.Special damages of Kshs. 118,188/=
- 6.Costs of the suit and interest at court rates
- 7.30 days stay of execution granted as prayed by the defence
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over personal injury claims (pecuniary jurisdiction referenced in the principles applied); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mucheru v Mithamo & another (Civil Suit 768 of 2023) [2025] KEMC 35 (KLR)", Case Analysis (2025). Civil Suit No 768 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/35/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.