Ondimba v Maguna Andu Wholesalers

inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment 2. The defendant has already agreed to be 90% liable for the accident and the resultant injuries and loss. The Plaintiff sued vide a Plaint dated 20/09/2025, and also pleaded special damages of Kshs. 110,550/- being the costs of medical legal report of Kshs. 60,000/-, Kshs. 550/= for copy of records from NTSA and car hire cost (transportation) of Kshs. 50,000/=.1 3. When the matter came up before me on 12/05/2026, parties herein entered the consent on liability wherein the plaintiff agreed to a partial liability of 10%. Parties also agreed to adopt the documents filed by them as exhibits herein so as to aid the court in making a determination on quantum. 4. In the submissions filed herein, parties appear to agree that the victim herein sustained the injuries pleaded, i.e. compound fracture of the right humerus, degloving injury to the right shoulder joint, soft tissue injuries of both thighs and shins, and blunt trauma to the head and lower back leading to soft tissue injuries. GENERAL DAMAGES FOR PAIN AND SUFFERING 5. I find the injuries herein comparable to those sustained by the victims in most of the authorities cited by the counsel for both sides herein. However, as ably 1 Refer to Paragraph 5 of the Plaint Page 2 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment submitted by the learned counsel for the defendant, general damages are damages at large whose 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) 6. 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 Page 3 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment (KISUMU HC MISC. CIVIL APPL. 172/2001), Wambilyangah J., held that the court will essentially consider the nature of the injuries suffered, the period of recuperation etc.2 7. Guided by the above principles, I find the authorities cited by the learned counsel for the plaintiff to be more recent than those cited by the learned counsel for the defence. So as not to complicate my award with issues such as inflation, I shall rely on the recent authorities as cited by the learned counsel for the plaintiff and find that Kshs. 1,500,000/= shall adequately compensate the plaintiff herein. I do therefore award the same subject to his 10% contribution in liability as consented to herein. LOSS OF EARNINGS 16.As to damages for loss of earnings or income, I do agree that apart from the pleadings, there was no evidence tendered to disprove that the plaintiff was not a tailor as pleaded and stated in her evidence. The medical evidence herein is however that she was incapacitated for about 6 months. She has availed some records herein which were admitted by consent, and hence not challenged, that she averagely earned about Kshs. 3000/- per day, while 2 See SIMON TAVETA VRS MERCY MUTITU NJERU [2014] eKLR, as cited in JAMES OKONGO VRS ELMAT SAGWE OGEGA [2021] eKLR Page 4 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment working 6 days per week. I shall therefore rely on these records to calculate her lost earnings for the 6 months and award her Kshs. 3,000 x 26 x 6 = Kshs. 468,000/- also subject to her 10% contribution. DIMINISHED EARNING CAPACITY 17.The Court of Appeal in the case of KARANI VRS NCHEDU (1995-1998)1 EA 87 stated: The claim for loss of earning is a special damage. It must be pleaded and proved. That is the law. The plaintiff gave some evidence in which she said she used to operate a kiosk of some sort at Kasarani, near Nairobi, from which she made Kshs. 50,000/= per month. 18.The Court of Appeal in S J VRS FRANCESCO DI NELLO & ANOTHER [2015] eKLR while making a distinction between loss of future earnings and loss of earning capacity stated that: Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real or actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position Page 5 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment enunciated in FAIRLEY VRS JOHN THOMSON LTD [1973] 2 LLOYD’S LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said as follows: It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. 19.The court proceeded to state that: The correct position as in the Fairley case (supra) was restated by this court in the case of Cecilia Mwangi & Another v Ruth W. Mwangi CA No. 251 of 1996 as hereunder: Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. “In the authority of Butler v Butler [1984] KLR 225, the issue of awarding damages for loss of earning capacity was carefully considered and Chesoni Ag. JA (as he then was) said: “Whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading … Once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a name if damages are payable.” 20.The authority cited by the learned counsel for the plaintiff, i.e. NYATOGO VRS MINI BAKERIES LIMITED [2023] KEHC 1593 (KLR) also tends to agree. For a claim of diminished earning capacity, the same should be evaluated by the court on the nature of the injury vis-à-vis the type of work done by the person, Page 6 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment his age, how long the injuries might last, the degree of incapacity and such other factors. The plaintiff herein was a tailor earning approximately Kshs. 3,000/- per day. She was aged 22 years old as at the time of the incapacity, and she suffered 30% permanent physical disability. Tailoring is a manual kind of occupation and this 30% permanent disability obviously diminishes her earning capacity. I agree with the learned counsel for the plaintiff and assesses her diminished earning capacity herein at Kshs. 1,000,000/- as proposed which I hereby award, subject to her 10% contribution. COSTS OF FUTURE MEDICATION/ TREATMENT 21.As to Costs of Future Medical expenses, the issue herein is whether the claim for future medical expenses is awardable. The issue of future medical expenses was considered in the case of TRACOM LIMITED & ANOTHER VRS HASSAN MOHAMED ADAN [2009] eKLR where the Court of Appeal pronounced stated as follows: 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 Page 7 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.’ 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. 22.However, the Court of Appeal in KENYA POWER & LIGHTING COMPANY LIMITED VRS AMK (SUING AS THE MOTHER AND NEXT FRIEND OF JMK MINOR) [2021] KECA 52 (KLR) (8 October 2021) (Judgment) stated as follows: 28.As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the respondents did during their testimony. Page 8 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment 32.On the challenge to the award on future medical expenses which the appellant says had not been specifically pleaded and proved, this does not turn on much as the respondent had in their plaint stated that the minor requires additional and medical care. In our view, the functional prosthesis (artificial limbs) and their maintenance costs are covered under that prayer and as held in Tracom Limited & another v Hasssan Mohamed Adan (supra) it was not mandatory for the respondent to delve into detail of the future expenses at that stage thus that ground of appeal fails. 23.Similarly, in the case of, FORWARDING COMPANY LIMITED & ANOTHER VRS KISILU; GLADWELL (THIRD PARTY) [2022] KECA 96 (KLR) (4 February 2022) (Judgment) the Court of Appeal in overturning the decision of the High Court declining to award future medical expenses on the ground that the plaintiff had pleaded generally on the same but had failed to attach a specific figure thus lacked specificity, stated as follows: 62.In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally affect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances. Page 9 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment 24.In the instant case, the plaintiff pleaded Kshs. 200,000/- as cost of future medical expenses. She will need an open reduction and an internal fixation of the implant on her fractured humerus. According to Dr. Malik, the cost of the operation is estimated at Kshs. 100,000/-, while Dr. Omuyoma estimates it at Kshs. 200,000/-. I shall therefore go with the mean figure of Kshs. 150,000/and shall award the same under this head, also subject to the plaintiff’s 10% contribution. SPECIAL DAMAGES 25.It is now a cardinal principle of the law that special damages must be pleaded and specifically proved, before they can be awarded by the Court. In HANN VRS SINGH (1985) eKLR, the Learned Judges of Appeal Kneller, Nyarangi JJA, and Chesoni Ag. JA, held: 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. 26.On Special Damages, therefore, I have only been able to find proof of Kshs. 60,000/- being medico-legal report vide Dr. Obed Omuyoma’s receipt dated Page 10 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment 20/09/2025; and Kshs. 550/- being vehicle inquiry fee vide Receipt from NTSA dated 14/06/2025. I do therefore hereby award Kshs. 60,550/- as special damages and which is also subject to the plaintiff’s 10% contribution as consented to herein. CONCLUSION AND DISPOSAL ORDERS 27.Judgment is hereby therefore entered for the plaintiff against the defendants herein as follows: i) General damages for pain and suffering of Kshs. 1,350,000/= ii) Damages for Loss of Earning: Kshs. 412,200/= iii) Diminished Earning Capacity: Kshs. 900,000/= iv) Future Medical Expense: Kshs. 135,000/= v) Special damages of Kshs. 55,706/= vi) Costs of the suit and interest at court rates. DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS __08th _____ DAY OF ____September_____, 2026 Page 11 of 12

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inthechiefmagistrate’scourtatnakurucivilsuitnoe912of2025betweenelizabethnyangigeondibaplaintiffandmagunaand uwholesalerskltddefendantjudgment ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintiff's counsel: Koome Defence counsel: Isaboke h/b Ochieng Plaintiff: n/a Page 12 of 12

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