REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL CASE NO. E288 OF 2025 IAN OBIRO TSIMANJI……..………………………………………..……...…….PLAINTIFF VERSUS MARELL ACADEMY LIMITED……………………….……….……………..DEFENDANT JUDGMENT 1. The Plaintiff sued the Defendant through a Plaint dated 12 th June 2025 seeking judgment against the Defendant:a) General damages for pain and suffering b) Special damages of Kshs. 18,750/= c) Costs of this suit d) Interest on (a), (b), and (c) above e) Any other relief this Honourable Court may deem just and fit to grant 2. It is the Plaintiff’s case that he was involved in a road traffic accident on 26 th March 2025 along Bungoma – Malaba road when the motorcycle he was riding was knocked by the Defendant’s motor vehicle registration number KDC 451 W which was reportedly being driven negligently as pleaded in paragraph 5 of the Plaint. 3. The Plaintiff further pleaded that the accident caused him severe bodily injuries, loss and damage thereby necessitating the filing of this suit. 4. The Defendant entered appearance and filed a Statement of Defence putting the Plaintiff to strict proof of his averments in the Plaint. In the alternative, the Defendant pleaded that, if the accident herein occurred, it was wholly or substantially contributed to by the Plaintiff’s negligent acts and omissions pleaded in the Statement of Defence. 5. This matter was thereafter set down for hearing for the parties herein to prove their respective cases on a balance of probabilities. EVIDENCE Plaintiff’s case 6. PW1 Ian Obiro Tsimanji adopted his witness statement dated 12th June 2025 as his evidence in chief. He produced all his documents listed in his list of documents on record as exhibits. Defendant’s Case 7. The Defendant did not call any witnesses to substantiate the averments in their Statement of Defence on record. 8. However, on 16th July 2026, the parties herein recorded a consent on liability to the effect that liability be apportioned in the ratio of 80%:20% in the Plaintiff’s favour. On 16th July
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2026, the parties herein also admitted the Plaintiff’s second medical examination report dated 15th January 2026, prepared by Dr. Z. Gaya, as an exhibit. ANALYSIS AND DETERMINATION 9. This court has given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the parties herein. 10. Given the consent on record on liability, it follows that the only issue for determination is the quantum of damages. Quantum of Damages (a) General Damages for pain and suffering 11. The Plaintiff’s medical documents on record, when read together with Dr. Gaya’s medical report dated 15th July 2026, show that the Plaintiff proved on a balance of probabilities that the accident herein caused him to sustain a fracture of the left clavicle, multiple moderate soft tissue injuries, and a head injury with a brief loss of consciousness from which he was recovering well. The said injuries did not cause the Plaintiff any permanent incapacity. 12. The law in this jurisdiction is that the assessment of damages must take into account the principle in the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR that comparable awards should compensate comparable injuries. 13. In Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR, where 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. 14. This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record on quantum. 15. The Plaintiff submitted that an award of Kshs. 1,000,000/= will be reasonable under this head by placing reliance on several decisions including Lawrence Wairimu Wainyoike & another v Joseph Letting [2021] KEHC 801 (KLR), where the High Court upheld an award of Kshs. 800,000/= for a fracture of the left clavicle and other soft tissue injuries. This authority is distinguishable from this case since, whereas the Plaintiff herein is recovering well from the injuries sustained (see Dr. Sokobe’s medical report dated 22nd May 2025), the Plaintiff in the said authority was complaining of persistent
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pains and had to consume medication to deal with the pain. The said Plaintiff was also set to undergo open reduction and fixation of the clavicle. 16. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Akula v Muthama & another (Civil Appeal E158 of 2024) [2026] KEHC 7805, where the High Court upheld an award of general damages of Kshs. 500,000/= for soft tissue injuries and a fracture of the clavicle. 17. Guided by the authority above, and given that the Defendant has conceded that an award of Kshs. 600,000/= under this head will be reasonable compensation for the injuries sustained by the Plaintiff, this Court awards the Plaintiff general damages of Kshs. 600,000/=. (b) Special Damages 18. The Plaintiff and the Defendant are in agreement that the Plaintiff pleaded and proved Special Damages of Kshs. 6,550/=; therefore, the same is awarded. DETERMINATION 19. Given the foregoing, judgment is entered against the Defendant in the following terms:a. Liability……………………………………….80%:20% in favour of the Plaintiff b. General Damages…………………...………Kshs. 600,000/= c. Special Damages……………………...…….Kshs. 6,550/= Grand Award……………………….Kshs. 606,550/= Less 20% Net Award……………………….Kshs. 485,240/= 20. 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. 21. The Plaintiff will have the costs of this suit less 20% per note 3 under Schedule 7 of the Advocates (Remuneration) Order. 22. Judgment accordingly. Read, signed, and delivered in open court at Bungoma, this 25th day of August 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Oriko for the Plaintiff Mr. Machimbo for the Defendant C/A: Mr. Rioba
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