REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT MILIMANI CIVIL CASE NO. 1139 OF 2014 DOROTHY AKOTH OTIENO.......................................................PLAINTIFF -VERSUSEASY COACH COMPANY LIMITED.......................................DEFENDANT JUDGMENT INTRODUCTION 1) The Plaintiff, Dorothy Akoth Otieno, instituted this suit against the Defendant, Easy Coach Company Limited, arising from a road traffic accident which occurred on 9th September 2012 involving motor vehicle registration number KBP 472E, a Mitsubishi bus belonging to and/or operated by the Defendant. 2) The Plaint is dated 7th February 2014 and was filed on 7th March 2014. The Plaintiff's case, as pleaded, is that she was travelling as a lawful passenger in the Defendant's motor vehicle along the Nakuru–Nairobi Highway when the vehicle was negligently and recklessly driven, causing it to lose control, veer off the road and overturn. 3) As a result of the accident, the Plaintiff sustained injuries to her right lower limb, including a wound to the right ankle, fracture of the lower one-third of the right tibia, fracture of the fibula and fracture involving the lateral malleolus. The medical evidence further records continuing pain and weakness in the right leg and assesses permanent incapacity at 10% in respect of the right lower limb. 4) The Plaintiff also pleaded the continuing consequences of the injuries, including the effect of the sequelae upon her future earning capacity and the need to employ a domestic worker. 5) The question of liability is no longer before this Court. When the matter came before the Court on 19th August 2026, the parties informed the Court that they had reached a
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settlement on liability. By consent, liability was agreed at 80:20 in favour of the Plaintiff, with the Defendant bearing 80% liability and the Plaintiff bearing 20% contributory liability. 6) The Consent was adopted as an order of the Court on 19th August 2026. The parties further agreed that the documents annexed to the Plaintiff's List of Documents dated 7th February 2014 would be relied upon without calling their makers. They were directed to file and exchange Written Submissions on quantum within fourteen days and to upload their documents on CTS. 7) In view of the consent on liability, liability has been conclusively determined and is not available for reconsideration in this judgment. The only issue for determination is therefore quantum. ANALYSIS AND ISSUES FOR DETERMINATION 8) Liability having been settled by consent at 80:20 in favour of the Plaintiff, the sole issue for determination is the quantum of damages payable to the Plaintiff, having regard to the nature and extent of her injuries, the medical evidence, the pleaded claims for loss of future earning capacity and domestic assistance, and the special damages proved. 9) The Plaintiff seeks general damages for pain, suffering and loss of amenities. In assessing damages under this head, the Court is guided by the nature and extent of the injuries, the treatment undertaken, the period of recovery, the residual effects of the injuries and the effect of the injuries upon the Plaintiff's ordinary life. Comparable authorities are useful guides, although each case must ultimately be determined on its own facts. 10) In Stanley Maore v Geoffrey Mwenda [2004] eKLR, the Court of Appeal emphasised that comparable injuries should, as far as possible, attract comparable awards, while recognising that no two cases are exactly similar. The Court must therefore consider the particular circumstances and residual effects of the injuries proved in each case 11) In Kornelius Kweya Ebichet v C&P Shoe Industries Ltd & Another, Civil Case No. 1152 of 2002 [2008] eKLR, an award of Kshs.1,000,000 was made for pain, suffering and loss of amenities where the Plaintiff sustained fractures of the left tibia and fibula which required fixation with metal implants. The authority demonstrates that an
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award at the level of Kshs.1,000,000 has been made for significant fractures of the tibia and fibula. 12) In Francis Ndungu Wambui & 2 Others v VK (A Minor) [2019] eKLR, an award of Kshs.1,000,000.00 was upheld in circumstances involving a compound fracture of the distal tibia and fibula, together with soft-tissue injuries and loss of consciousness. Although the injuries in that case were more severe in some respects, the decision provides a useful reference point for the assessment of substantial tibia and fibula fractures. 13) In Njoroge & another v Chege [2022] KEHC 16970 (KLR), the High Court considered authorities involving fractures of the lower limbs, including Godfrey Mugnicholas Mwiti Mwirebua v Marcella Mpaka Kiambi [2022] eKLR, where Kshs.900,000.00 was affirmed for multiple comminuted fractures of the right femur and right tibia-fibula with blunt abdominal trauma. The Court ultimately considered Kshs.1,100,000.00 appropriate in the case before it, illustrating the range of awards for significant lower-limb injuries. 14) More recently, in Universe Freight Services Limited v Ndwiga [2025] KEHC 17991 (KLR), the Court considered injuries resulting in 10% permanent incapacity, with stiffness and arthritis of the knee and ankle, recurrent pain and weakness at the fracture points. The general damages award of Kshs.1,000,000.00 was maintained. 15) In Nyoro & Another v Thande (Civil Appeal E438 of 2022) [2024] KEHC 9059 (KLR), the Plaintiff suffered fractures of the tibia and fibula with 10% permanent incapacity, and the High Court awarded Kshs.1,200,000.00 in General Damages. The decision is particularly relevant because it involved the same broad combination of tibia/fibula fractures and a 10% permanent incapacity. 16) The Court is also guided by the more recent decision in Hezron v Aberi [2026] KEMC 472 (KLR), where the Plaintiff sustained fractures of the right tibia and fibula together with other injuries and was assessed at 15% permanent incapacity. The Court considered the nature of the fractures, residual disability, deformity and future treatment and found Kshs.1,000,000.00 to be fair compensation for pain, suffering and loss of amenities.
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17) In the present case, the Plaintiff sustained a wound to the right ankle, a fracture of the lower one-third of the right tibia, a fracture of the fibula and a fracture involving the lateral malleolus. The fractures were managed through manipulation and plaster immobilisation. The medical evidence further records continuing pain and weakness in the right leg and, most significantly, 10% permanent incapacity of the right lower limb. 18) The injuries therefore went beyond temporary soft-tissue injuries. They involved multiple fractures of a weight-bearing limb and left the Plaintiff with objectively established permanent impairment. The Court must also take into account the continuing pain and weakness and the resulting effect upon the Plaintiff's ordinary activities. 19) I have considered the authorities relied upon and the respective injuries and residual disabilities in those cases. While some authorities involve more serious complications and others involve less severe injuries, the decisions demonstrate that awards around Kshs.900,000.00 to Kshs.1,200,000.00 have been made for substantial fractures of the tibia and fibula, particularly where permanent incapacity is established. 20) I have further taken into account the passage of time and the principle that an award should constitute fair compensation in present economic circumstances while maintaining reasonable consistency with awards for comparable injuries. 21) In the circumstances, and having regard to the multiple fractures of the right tibia, fibula and lateral malleolus, the treatment undertaken, the continuing pain and weakness and the established 10% permanent incapacity, I find that an award of Kshs.1,000,000.00 for pain, suffering and loss of amenities is fair and reasonable. 22) I therefore award the Plaintiff Kshs.1,000,000.00 under the head of general damages for pain, suffering and loss of amenities. LOSS OF FUTURE EARNING CAPACITY 23) The Plaintiff also pleaded a claim relating to loss of future earning capacity. However, the Plaintiff did not make substantive submissions in support of this head.
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24) In Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, the Court of Appeal explained that loss of earning capacity concerns the diminution of a person's ability to earn income in the future as a result of disability. It is distinct from actual loss of earnings and must be established by evidence. 25) In Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR), the Court of Appeal similarly distinguished loss of earnings from loss of earning capacity and emphasised that although loss of earning capacity is a head of general damages, the claimant must establish the diminution in earning capacity by evidence. 26) In the present case, although the Plaintiff has established 10% permanent incapacity of the right lower limb, the evidence does not sufficiently establish her actual income, the precise nature of her occupation, the extent to which her occupation depends upon physical activity or the degree to which her earning capacity has been diminished. There is therefore no reliable basis upon which a separate award can be assessed. 27) The Court also takes into account the fact that the Plaintiff did not pursue this claim in her submissions. I accordingly decline to make a separate award for loss of future earning capacity. The permanent incapacity has, however, been taken into account in assessing the general damages awarded above. DOMESTIC-HELP EXPENSES 28) The Plaintiff also pleaded the cost of domestic assistance but did not substantively address the claim in her submissions. 29) In Grace Beldina Adhiambo v Bowers Okelo & Another [2017] KEHC 8446 (KLR), the High Court allowed a claim for domestic assistance where the evidence demonstrated that the Plaintiff was unable to perform household chores and had actually employed a domestic worker at an established monthly cost. 30) In the present case, there is no sufficient evidence that the Plaintiff actually engaged a domestic worker, the amount paid, the duration of such engagement or the period for which future assistance would be required. The medical evidence does not expressly state that the Plaintiff is
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incapable of performing her household duties or requires domestic assistance. 31) I therefore find that the claim for domestic-help expenses has not been proved and no separate award is made under this head. SPECIAL DAMAGES 32) The Plaintiff pleaded special damages of Kshs.3,500.00 and produced evidence in support thereof. Special damages must be specifically pleaded and strictly proved, as stated in Hahn v Singh [1985] KLR 716. DISPOSITION 33) Judgment is hereby entered in favour of the Plaintiff against the Defendant on quantum as follows: General damages for Pain, suffering and loss amenities....................................Kshs.1,000,000.00 of Loss of capacity ...................................................................NIL earning Cost of help .......................................................................NIL domestic Total ................................................................................Kshs.1, 00,000.00 Less 20% contribution (Kshs.200,000.00) .................................................. Total .................................................................................Kshs.8 00,000.00 Special Damages .............................................................Kshs.3,500.00 Total ............................................................................ ...Kshs.803,500.00 (Kenya shillings eight hundred and three thousand, five hundred ).
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30 Days Right of Appeal __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 30.9.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 30TH DAY OF SEPTEMBER,2026 In the Presence of : Mr.Mwirigi for the Plaintiff Mr.Chengecha for Defendant Court Assistant: Phoebe.
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