REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL CASE NO. E213 OF 2025 ERICK FITONJE MWEYU…………………………………………..……... ………..PLAINTIFF VERSUS ANDREW OMONDI OWINO……………………….………. ………………….DEFENDANT JUDGMENT 1. The Plaintiff sued the Defendant through a Plaint dated 07 th May 2025 seeking judgment against the Defendant for: a) General damages b) Special damages of Kshs. 10,750/= c) Costs of this suit d) Interest on (a), (b) and (c) above e) Any other relief as this Honourable Court may deem fit to grant 2. The Plaintiff pleaded that the cause of action herein arose on 27 th March 2025 while he was a lawful fare-paying passenger aboard motor vehicle registration number KCV 288 P (“the motor vehicle”) along Bungoma – Mumias road at Sibembe area when the motor vehicle lost control and rolled, thereby causing him severe bodily injuries, loss, and damage, hence this suit. 3. It was also pleaded by the Plaintiff that the accident herein was solely caused by negligence by the Defendant and the Defendant’s driver as enumerated in paragraph 5 of the Plaint. 4. The Defendant entered appearance and filed a Statement of Defence denying all the averments in the Plaintiff’s Plaint save for an admission of this court’s jurisdiction to hear and determine this matter.
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5. Further, the Defendant pleaded that if the accident herein occurred, then the same was caused by the Plaintiff’s negligence. The Defendant urged this court to dismiss this suit with costs. 6. It is against this backdrop that this court set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. EVIDENCE 7. On 03rd February 2026, the parties herein recorded a consent admitting the Plaintiff’s witness statement on record as the Plaintiff’s evidence in chief and the Plaintiff’s documents on record as exhibits. 8. The parties also selected Bungoma CMC CC No. E215 of 2026 as the test suit on liability in respect to this case, as well as all the other cases arising from this accident. 9. This court assessed liability in the said test suit at 100% against the Defendant in favour of the Plaintiff. ANALYSIS AND DETERMINATION 10. Given the consent on record, the only issue for determination is quantum. Quantum of Damages (a) 11. General Damages for pain and suffering The injuries pleaded by the Plaintiff in paragraph 7 of his Plaint were corroborated by the uncontroverted medical evidence on record. 12. It is against this backdrop that this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident caused him to sustain severe scalp lacerations, a deep cut wound on the occipital scalp, severe hemorrhage, cut wound on the back, which injuries were assessed as harm.
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13. The law on assessment of general damages in this jurisdiction, as espoused in Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, is that comparable injuries should be compensated by comparable awards. 14. In Kenya Power Lighting Comp. Ltd & Another v Zakayo Saitoti Naingola & Another [2008] eKLR, Nambuye, J. (as she then was) listed the following principles on assessment of damages: a) Damages should not be inordinately too high or too low b) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. d) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 15.This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record by the parties herein on quantum. 16. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Ukavi v Erasmus (Civil Appeal E018 of 2023) [2024] KEHC 1384 (KLR), where the court made an award of general damages of Kshs. 180,000/= to a Plaintiff who suffered a mild head injury, blunt injury on the chest and both upper and lower limbs, cut wound on the head and both hands, avulsion on the right lower limb, bruises on both hands, blood loss, soft tissue injury, and physical and psychological pain.
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17. Guided by the authority above, and considering the passage of time and inflation trends, this court finds an award of Kshs 250,000/= to be reasonable compensation under this head. (b) 18. Special Damages The Plaintiff pleaded special damages of Kshs. 10,750/= in paragraph 7 of his Plaint. The claimed special damages comprised of Kshs. 2,000/= for treatment expenses, Kshs. 6,000/= for the medical report, Kshs. 2,000/= for filling the P3 form, Kshs. 200/= for the police abstract, and Kshs. 550/= for the motor vehicle search. 19. The police abstract herein was issued by a police officer. The Plaintiff’s P3 form was filled in a public hospital. Therefore, the Plaintiff cannot seek to recover from the Plaintiff the cost of filling public documents, which, as a matter of government policy, are to be issued and filled free of charge. If the Plaintiff paid public officers for free public services, he was engaged in an illegality that he cannot seek to benefit from. 20. In any event, the Plaintiff did not place before this court receipts to prove the claimed expenditure for filling the P3 form and the police abstract. 21. The Plaintiff produced an invoice from Bungoma County Referral Hospital for medical expenses of Kshs. 5,670/= to claim the medical expenses pleaded in the Plaint. 22. In Total Kenya Ltd formerly Caltex Oil (K) Ltd v Janevams Ltd (2015) eKLR, the court cited Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority (2000) eKLR 720 on the production of proforma invoices, where the court stated thus: “What we mean is that, in case the goods for which an invoice is issued have been paid for, one would normally expect endorsements such as the word “paid” on the invoice and that would turn the status of the invoice into a receipt. Otherwise, in
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our minds, a proforma invoice is given in respect of an advice sought from a supplier as to what the cost of goods sought and an invoice is given in cases where an order for supply of goods has been made but payment is not yet made. In either case non of the two documents would amount to a receipt.” 23. The invoice relied upon by the Plaintiff in this case was neither accompanied by a corresponding receipt nor stamped with the word “paid”. Therefore, the invoice on record cannot be used to claim medical expenses of Kshs. 5,670/=. 24. The NTSA receipt proved the claimed expenditure of Kshs. 550/=, while the receipt by Dr. Sokobe proved the claimed fees of Kshs. 6,000/= for the medical report. 25. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 6,550/= DETERMINATION 26. The upshot of the above is that judgment is entered against the Defendant in the following terms: a) Liability…………………………………100% in favour of the Plaintiff b) General Damages…………………...…Kshs. 250,000/= c) Special Damages……………………....Kshs. 6,550/= Total Award………………..Kshs. 256,550/= 27. The General Damages will accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 28. The Plaintiff will have the costs of this suit. 29. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 23rd day of April 2026
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T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Chebet for the Plaintiff Mr. Choni for the Defendant C/A: Mr. Rioba
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