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MagistratePartially AllowedNot stated in the judgment as provided (arising from Bungoma CMC Criminal Case No. E222 of 2022)· [2026] KEMC 599 (KLR)

Aluda v Kutukhulu (Civil Case E158 of 2024) [2026] KEMC 599 (KLR)

Magistrates' Court (Bungoma)
6 February 2026
TOT.O. Omono
1,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Bungoma court ordered an assailant to pay Kshs. 277,500 for assault, but reduced the payout because the victim's paperwork claimed a slightly wrong amount.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant for general and special damages arising from an assault on 11th February 2022 in Kanduyi, in which the Defendant allegedly hit him on the head with a blunt object, slapped him and dragged him on the ground. The incident was reported to police and both men were charged with affray in Bungoma CMC Criminal Case No. E222 of 2022; the Defendant pleaded guilty and was fined Kshs. 20,000, while the Plaintiff denied the charge and was acquitted under section 210 of the Criminal Procedure Act on 26th July 2023. The Plaintiff claimed general damages, special damages of Kshs. 78,000 (medical report fees, hospital bills, advocate fees and court fees), and interest. The Defendant neither entered appearance nor filed a defence, so the matter proceeded by formal proof. PW1 (the Plaintiff) and PW2 (a bodaboda rider who witnessed the assault) testified. The court, guided by section 107(1) of the Evidence Act and authority holding that a plaintiff must prove his case even in uncontroverted formal proof, found the assault proved on a balance of probabilities and held the Defendant 100% liable. On quantum, the court distinguished Onyango v Odep (Kshs. 160,000, no scars) and applied Onyango v Obura (Kshs. 180,000, comparable injuries), awarding Kshs. 200,000 in general damages. Applying the rule that special damages must be specifically pleaded and strictly proved, and noting the pleaded items totalled Kshs. 77,500, it awarded that sum rather than the Kshs. 78,000 claimed. Judgment was entered for a net award of Kshs. 277,500, with interest on general damages from judgment and on special damages from filing suit, plus costs.

Key legal issues

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01

Liability for assault in formal proof

Holding

The Defendant was held 100% liable for the assault on 11th February 2022

Reasoning

The testimony of PW1 and PW2, read with the proceedings from the criminal case, showed the Defendant assaulted the Plaintiff. The legal burden remained on the Plaintiff notwithstanding the Defendant's absence, but the Plaintiff's uncontroverted evidence satisfied it on a balance of probabilities and shifted the evidential burden to the Defendant, who led no evidence to controvert it.

p. 5
02

Assessment of general damages

Holding

General damages of Kshs. 200,000 awarded for multiple moderately soft tissue injuries with scars

Reasoning

Comparable injuries should attract comparable awards. The injuries were held comparable to those in Onyango v Obura, where Kshs. 180,000 was awarded, and considering the passage of time since that decision, Kshs. 200,000 was deemed reasonable compensation for the moderately soft tissue injuries and ugly scars.

p. 6
03

Special damages pleading and proof

Holding

Special damages of Kshs. 77,500 held pleaded and proved, not the Kshs. 78,000 claimed

Reasoning

Although the Plaintiff claimed Kshs. 78,000 and produced receipts proving that amount, a calculation of the pleaded items totalled Kshs. 77,500. Special damages must be specifically claimed and strictly proved, and parties are bound by their pleadings, so the court awarded the pleaded figure of Kshs. 77,500.

p. 7

Legal principles established

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  • The burden of proof lies with the person who alleges, even where the case proceeds by formal proof and is uncontroverted
  • Comparable injuries should attract comparable awards in the assessment of general damages
  • Special damages must be specifically pleaded and strictly proved

Court orders

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  1. 1.Liability entered 100% in favour of the Plaintiff
  2. 2.General damages of Kshs. 200,000 awarded
  3. 3.Special damages of Kshs. 77,500 awarded (net award Kshs. 277,500)
  4. 4.General damages to accrue interest at court rate from the date of judgment till payment in full
  5. 5.Special damages to accrue interest at court rate from the date of filing suit till payment in full
  6. 6.Plaintiff granted the costs of the suit

Authorities

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Legislation

  • Evidence Act, Cap 80 Laws of KenyaSection 107(1)
  • Criminal Procedure ActSection 210

Cases cited (7)

  • Onyango v Odep (Civil Appeal E178 of 2023) (2024) KEHC 11370 (KLR)
    KEHC 11370 (KLR)
  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR
    [2016] eKLR
  • Kirugi and Another Vs Kabiya & 3 others (1987) KLR 347
    (1987) KLR 347
  • Gichinga Kibutha –vs- Caroline Nduku (2018) eKLR
    (2018) eKLR
  • Simon Taveta v Mercy Mutitu Njeru Civil Appeal 26 of 2013 [2014] eKLR
    [2014] eKLR
  • Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR)
    [2024] KEHC 11506 (KLR)
  • Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716
    [1985] KLR 716
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the tort claim in assault (Plaint dated 15th April 2024)

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, "Aluda v Kutukhulu (Civil Case E158 of 2024) [2026] KEMC 599 (KLR)", Case Analysis (2026). Not stated in the judgment as provided (arising from Bungoma CMC Criminal Case No. E222 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/599/eng@2026-02-06

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