Caselaw

THE JUDICIARY IN THE CHIEF MAGISTRATE'S COURT AT NAKURU [ A. P. NDEGE; SPM] CIVIL SUIT NUMBER E748 OF 2023 TIMOTHY WANGAI MUTHUGIA------------------------------------------------------- PLAINTIFF =VRS JOEL KABITHI WANDERI---------------------------------------------------------1 ST DEFENDANT FRANCIS WANDERI A.K.A FRANCIS NGARI WANDERI-------------------2 ND DEFENDANT JUDGMENT 1. On or about 10/07/2023, the Plaintiff was a lawful pillion passenger of motor cycle registration number KMDR – 797 J HAOJUE) and while at KFA roundabout along Nakuru- Eldoret Highway, the lawful/ designated/ authorised driver of motor vehicle KAX – 432 B SUBARU FORESTER so carelessly, negligently, and/or recklessly drove, managed and/or controlled the

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e748of2023timothywangaimuthugiaplaintiff versusjoelkabithiwanderi1stdefendantfranciswanderiakafrancisngariwanderi2nddefendanttjudgment same and thereby permitting it and/or causing the same to collide with the plaintiff/ motor cycle that he was travelling aboard as a result of which the Plaintiff was occasioned serious bodily injuries. 2. The defendants have already agreed to be 85% liable for the accident and the resultant injuries and loss. The Plaintiff sued vide a Plaint dated 09/11/2023, and also pleaded special damages of Kshs. 21,900/- being the medical expenses of Kshs. 1,350/-, medical- legal report of Kshs. 20,000/- and search at KRA of Kshs. 550/-.1 3. When the matter came up before me for hearing on 26/09/2025, only the plaintiff testified, mainly relying on his statement and documents filed herein. There was no evidence tendered by the defence to challenge the injuries that he sustained herein. I thus find that the plaintiff has been able to prove to the required standards that he sustained the injuries pleaded, i.e. blunt injuries to the neck, left shoulder and knee joint leading to soft tissue inquires. I will therefore go straight to the quantum. 4. I find the injuries herein, that is multiple soft tissue injuries, comparable to the ones sustained by the victims in the authorities cited by the learned counsel for the plaintiff. General damages are however damages at large whose 1 Refer to paragraph 5 of the Plaint Page 2 of 6

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e748of2023timothywangaimuthugiaplaintiff versusjoelkabithiwanderi1stdefendantfranciswanderiakafrancisngariwanderi2nddefendanttjudgment purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has repeatedly been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation. Awards ought to be reasonable and must be assessed with moderation bearing in mind that large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see TAYAB VRS KINANU [1983] KLR 114 and WEST (H) & SON LTD VRS SHEPHERD [1964] AC 326, 345). Damages must therefore be within limits set by decided cases and also within the limits that the Kenyan economy can afford (see NYOTA TISSUE PRODUCTS VRS LAWRENCE KUBOKA & 4 OTHERS [2020] eKLR) 5. There is however no one best formula of assessing damages in injury claims. Such assessment is an act of art rather than science. In HCCC NO. 752/1993 MUTINDA MATHEKA VS GULAM YUSUF that was cited by Warsame, Ag. J (as he then was) in JENIPHER MILAY O. OKUKU VRS KENYA BUS SERVICES LTD (KISUMU HC MISC. CIVIL APPL. 172/2001), Wambilyangah J., held that the Page 3 of 6

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e748of2023timothywangaimuthugiaplaintiff versusjoelkabithiwanderi1stdefendantfranciswanderiakafrancisngariwanderi2nddefendanttjudgment court will essentially consider the nature of the injuries suffered, the period of recuperation etc.2 6. I am also aware of the other guiding principles in awarding general damages such as: - damages should be within the limits set out by decided cases, within my pecuniary jurisdiction, within the limits that the Kenyan economy can afford and must be commensurate to the kind of injury, and extent of pain and suffering. Guided by the above principles, I find that Kshs. 450,000/= proposed by the learned counsel for the plaintiff shall adequately compensate the plaintiff herein. I do therefore award the same subject to his 15% contribution in liability as consented to herein. 7. On Special Damages, I have been able to find proof of Kshs. 20,000/- being medico-legal report vide PEXH. No. 7; Kshs. 1,350/-, being medical or treatment expenses vide the same PEXH. No. 7 (bundle of receipts); and Kshs. 550/- being vehicle inquiry fee vide PEXH. NO.8.The plaintiff has thus been able to prove the special damages pleaded at Kshs. 21,900/-. I do therefore hereby award the same as special damages and which is also subject to the plaintiff’s 15% contribution as consented to herein. 2 See SIMON TAVETA VRS MERCY MUTITU NJERU [2014] eKLR, as cited in JAMES OKONGO VRS ELMAT SAGWE OGEGA [2021] eKLR Page 4 of 6

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thejudiciaryinthechiefmagistrate’scourtatnakuruapndegespmcivilsuitno.e748of2023timothywangaimuthugiaplaintiff versusjoelkabithiwanderi1stdefendantfranciswanderiakafrancisngariwanderi2nddefendanttjudgment CONCLUSION AND DISPOSAL ORDERS 8. Judgment is hereby therefore entered for the plaintiff against the defendants herein as follows: i) General damages for pain and suffering of Kshs. 382,000/= ii) Special damages of Kshs. 18,615/= iii) Costs of the suit and interest at court rates. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU IN OPEN COURT THIS 29th __ DAY OF __July____, 2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintiff's counsel: Kurere h/b Njuguna Defence counsel: n/a Plaintiff: n/a 1st Defendant: n/a Page 5 of 6

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