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MagistratePartially AllowedCivil Suit No 1239 of 2019· [2025] KEMC 101 (KLR)

Nderitu v Wakiinama Ltd & another (Civil Suit 1239 of 2019) [2025] KEMC 101 (KLR)

Chief Magistrate's Court at Nakuru
9 May 2024
ANAloyce Peter Ndege
1,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court awarded a road accident passenger KShs 200,000 for soft tissue injuries, but cut special damages because she had no receipts.

What this practically means

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Executive summary

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This was a first-instance road traffic accident claim for assessment of damages. The plaintiff, a fare-paying passenger in motor vehicle KCP 509T, was injured in an accident on the Nakuru-Ravine road allegedly caused by the negligent driving of the defendant's vehicle KCB 135J. She suffered soft tissue injuries to the anterior chest wall and left leg. By consent, judgment on liability was entered at 85% against the defendant, leaving quantum for assessment. The plaintiff testified and produced her documents; the defence closed without calling any witness, and parties filed written submissions. The plaintiff's counsel cited a 2019 High Court award of Kshs. 200,000/= for comparable soft tissue injuries and proposed the same figure, adjusted for inflation; the defence proposed Kshs. 50,000/=. Applying the principles that assessment of damages is an art rather than a science and that comparable injuries should attract comparable awards, the court awarded general damages of Kshs. 200,000/=. On special damages, only the proved items (official search Kshs. 550, medical report Kshs. 7,000 and medical expenses Kshs. 100) were awarded, totalling Kshs. 7,650/= of the Kshs. 10,850/= pleaded. The court found a demand notice dated 20/11/2019 sufficient. Judgment was entered for Kshs. 207,650/= less 15% contribution, netting Kshs. 176,502.50, with costs of the suit and interest at court rates. A 30-day stay was granted by consent. Note: the parties themselves are not named in the judgment text.

Key legal issues

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01

Assessment of general damages for soft tissue injuries

Holding

Kshs. 200,000/= awarded, aligning with the 2019 award in Swiss Contact Ltd & Peter Munguti Kieti vrs Esther Another and adjusting for inflation

Reasoning

The court applied the settled principles: awards should be within limits of decided cases, within pecuniary jurisdiction, affordable to the economy and commensurate with the injury. The plaintiff's soft tissue injuries bore a closer relation to those in the authority cited by her counsel; any variation was taken care of by the rise in cost of living and inflation since the date of that award.

p. 2
02

Proof of special damages

Holding

Only items proved by receipts were awarded; Kshs. 7,650/= out of the Kshs. 10,850/= pleaded

Reasoning

Special damages must be specifically pleaded and proved. Of the pleaded items, only the official search (Kshs. 550), medical report cost (Kshs. 7,000) and medical expenses (Kshs. 100) were proved by the exhibits produced, so only those sums were awarded.

p. 3
03

Demand notice before action

Holding

A demand letter dated 20/11/2019 (PEXH NO. 2) was found sufficient

Reasoning

Contrary to the defence submission that no demand notice was issued, the court found on the exhibits that a demand letter dated 20/11/2019 had been issued before action and held it sufficient.

p. 3

Legal principles established

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  • Assessment of damages is an exercise of art rather than science, guided by the nature of injuries, period of recuperation and comparable awards
  • Special damages must be both pleaded and proved by evidence, usually receipts
  • Courts aim to compensate comparable injuries with comparable awards, adjusted for inflation

Court orders

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  1. 1.Judgment entered against the defendant in favour of the plaintiff for Kshs. 207,650.00 being general and special damages, less 15% contribution per the consent judgment on liability, giving a net of Kshs. 176,502.50
  2. 2.Plaintiff awarded general damages of Kshs. 200,000/= for pain and suffering
  3. 3.Special damages awarded of Kshs. 7,650/= (official search Kshs. 550, medical report Kshs. 7,000, medical expenses Kshs. 100)
  4. 4.Plaintiff to get the costs of the suit and interest at court rates
  5. 5.30 days stay of execution granted upon defence counsel's application, without objection; defence to be supplied with a copy of the judgment upon payment of necessary costs

Authorities

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Cases cited (4)

  • Swiss Contact Ltd & Peter Munguti Kieti Vrs Esther Another
    [2019] eKLR
  • Mutinda Matheka Vs Gulam Yusuf
    HCCC No. 752 of 1993
  • Jenipher Milay O. Okuku Vrs Kenya Bus Services Ltd
    Kisumu HC Misc. Civil Appl. 172/2001
  • Ndungu Dennis Vrs Ann Wangari Ndirangu
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a negligence claim for damages; award made within the court's pecuniary jurisdiction

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, "Nderitu v Wakiinama Ltd & another (Civil Suit 1239 of 2019) [2025] KEMC 101 (KLR)", Case Analysis (2024). Civil Suit No 1239 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/101/eng@2025-05-09

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