REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL CASE NO. E177 OF 2025 ANDREW NYONGESA……………... …………………………………………...PLAINTIFF VERSUS BOARD OF MANAGEMENT KABUCHAI GIRLS & ANOTHER……...DEFENDANT JUDGMENT 1. The Plaintiff sued the Defendants through a Plaint dated 25 th April 2025, praying for judgment against the Defendants jointly and severally for:a) General damages, past, present and future medical and nursing expenses b) Future medical expenses c) Special damages Kshs. 7,000/= d) Costs e) Interest f) Any other relief this Honourable Court may deem fit to grant 2. The Plaintiff pleaded that on 28th February 2025, while lawfully riding on motor cycle registration number KMDR 787 W along Bungoma – Mumias road around Kabula area, the Defendant’s motor vehicle registration number KDA 914 P lost control and knocked him from behind, thereby occasioning him severe bodily injuries. 3. Further, the Plaintiff pleaded that the accident was solely caused by the Defendants’ negligence as enumerated in paragraph 5 of the Plaint. 4. It is the Plaintiff’s case that the accident caused him to sustain bodily injuries, as particularized in paragraph 6 of the Plaint as well as loss thereby necessitating the filing of this suit for general damages and special damages.
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5. The Defendants entered appearance and filed a Statement of Defence dated 30th May 2025 blaming the Plaintiff for wholly causing and/or substantially contributing to the occurrence of the accident through acts of negligence set out in paragraph 6 of the said Statement of Defence. 6. The Defendant denied the particulars of negligence attributed to them by the Plaintiff. They urged this court to dismiss this suit with costs. EVIDENCE 7. On 02nd February 2026, the parties herein recorded a consent admitting the Plaintiff’s witness statement on record and the documents filed by the Plaintiff as evidence and exhibits respectively. They also recorded a consent on liability in the ratio of 90%:10% in favour of the Plaintiff. 8. The Defendants neither filed nor produced any documents as exhibits in support of the averments in their Statement of Defence on record.. ANALYSIS & DETERMINATION 9. This court has duly considered the Plaintiff’s pleadings, exhibits, and all the evidence on record. 10. Given the consent on record on liability, the only issue for determination is quantum. Quantum (a) General damages for Pain and Suffering 11. The Plaintiff’s uncontroverted evidence on record shows that arising from the accident herein, the Plaintiff sustained lacerations to the scalp, right hand, left hip joint region, and the left leg. The lacerations healed, leaving scars on the Plaintiff’s side, head, and hind as well as over the left hip joint region. The Plaintiff also suffered psychological trauma as a result of the accident.
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12. This court has given due regard to the authorities cited by the parties on quantum. 13. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR), where the court awarded Kshs. 180,000/= for a Plaintiff who sustained multiple soft tissue injuries as well as psychological trauma with extensive post-injury scars. 14. Guided by the authority above, and taking into consideration the lapse of time since the decision above was made, this court is of the considered view that an award of Kshs. 200,000/= will be reasonable compensation under this head. (a) Future medical expenses 15.The Plaintiff pleaded for future medical expenses for future treatment and check-ups in paragraph 7 of his Plaint. 16.The Court of Appeal in Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR stated as follows regarding claims for future medical expenses: “…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: “And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof...”
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We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…” 17.The Plaintiff, having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintiff needed to surmount before an award under this head is made is to prove the pleaded future medical expenses. 18.The medical report dated 10th March 2025 by Dr. Ekesa shows that the Plaintiff needs anti-inflammatory agents and psychosocial support. 19.The Plaintiff’s witness statement on record shows that the Plaintiff is still using painkillers for the pain and aches arising from the accident. 20.The foregoing shows that the Plaintiff pleaded and proved the claim for future medical expenses. 21.However, Dr. Ekesa did not testify before this court to lead evidence on the cost of the anti-inflammatory agents and psychosocial support, and the duration of the said future treatment. 22.Be that as it may, having considered the nature of injuries sustained by the Plaintiff, and his current health complaints, it is this court’s considered view
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that an award of Kshs. 10,000/= will be sufficient compensation for the Plaintiff’s painkillers under this head. (c)Special Damages 23. The Plaintiff pleaded in paragraph 6 of his Plaint Special Damages of Kshs. 7,000/= comprising of Kshs. 4,000/= for the medical report, Kshs. 550/= for copy of records, and Kshs. 2,450/= for treatment expenses. 24. It is well settled in this jurisdiction that Special Damages must be pleaded and strictly proved before they are awarded as restated in Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, where the Court of Appeal held as follows:“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 25. The receipts for specials placed before this court by the Plaintiff proved on a balance of probabilities the pleaded Special Damages of Kshs. 7,000/= pleaded by the Plaintiff. 26. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 7,000/=. DETERMINATION 27. For the reasons above, judgment is hereby entered jointly and severally against the 1st and 3rd Defendants in the following terms:(a) Liability – 50%: 50% between the 1st Defendant and the 3rd Defendant in favour of the Plaintiff (b) General damages - Kshs. 200,000/= (c) Future medical expenses -Kshs. 10,000/= (d) Special Damages - Kshs. 7,000/=
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Grand Award - Kshs. 217,000/= Less 10% Net Award Kshs. 195,300/= 28. The General Damages will accrue interest at court rate from the date of this judgment till payment in full while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 29. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 30. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 16th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintiff Mr. Ojou for the Defendants C/A: Mr. Rioba
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