REPUIBLIC OF KENYA IN THE SENIOR PRINCIPAL MAGISTRATE’SCOURT AT KEHANCHA CIVIL CASE NO. E040 OF 2025 PETRO ODHIAMBO…………...…………………………………...PLAINTIFF VERSUS JOEL ODHIAMBO NGAO……………………………………….DEFENDANT JUDGMENT 1. The plaintiff in plaint dated 25th July 2025 sued the defendant seeking for general damages, special damages of Kshs. 370,000/=, costs of the suit and interest as a result of a road traffic accident that occurred on 7/12/2024. 2. The plaintiff averred that on the 7/12/2024 the plaintiff was a lawful pillion passenger on motorcycle registration number KMDF 462R along MigoriMasara road particularly at Nyamome area when motor vehicle registration number KCD 795M was negligently and/or carelessly driven, managed and/or controlled by the defendant, his agent and/or servant that it lost control and veered off the road hence occasioning the plaintiff severe bodily injuries. 3. The defendant entered appearance and filed defence dated 7 th October, 2025 denying all the averments contained in the plaint save for expressly admitted. Liability 4. On this issue the parties recorded consent dated 13th July 2026 that judgment be entered on liability in the ratio of 80:20 in favour of the plaintiff as against the defendant. The said consent was adopted as the judgment of the KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 1
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court on liability on 15/7/2026. Thus, the only issue for determination is on quantum. Quantum 5. The plaintiff pleaded that as a result of the accident the plaintiff sustained a Sublaxed and missing lower anterior teeth, blunt chest trauma, blunt back trauma and multiple soft tissue injuries. In proving the said injuries the plaintiff produced treatment notes which indicate that there was open wound on occipital region, bruises on the back and subluxated lower anterior teeth. He also produced a P3 form and medical report. 6. Counsel for the plaintiff a sum of Kshs. 900,000/= and relied on the following cases: a) In the case of Mbula v Gatwiri (Civil Appeal E949 of 2022) (2024) KEHC 11734 (KLR), where the High Court considered injuries including fractured and broken teeth together with other soft tissue injuries. The trial court’s award of Kshs. 800,000/= for pain, suffering and loss of amenities was upheld. b) In Easy Coach Ltd & another v Ondhoro (Civil Apeal E044 of 2025) (2025) KEHC 15379 (KLR), the claimant suffered soft tissue injuries, a fractured jaw and loss of upper incisor. The High Court, upon considering comparable authorities, awarded Kshs. 1,000,000/= as general damages. 7. Counsel for the defendant proposed a sum of Kshs.200,000/= and relied on the case of Robert Cheserek v Jackline Jepkoech Jimmy (2019) eKLR, where the High Court awarded Kshs. 200,000/= as general damages for injuries similar to the obes sustained by the plaintiff. The victim in that case sustained soft tissue injuries and lost an incisor tooth. KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 2
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8. The Court of Appeal in Charles Oriwo Odeyo v Apollo Justus Andabwa & Another [2017] eKLR noted that; “The assessment of damages in personal injury case by court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The award should be commensurable with the injuries sustained. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. The awards should not be inordinately low or high (See Boniface Waiti & another v Michael Kariuki Kamau (2007) eKLR.” 9. In Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR it was held that; “The general method of approach for assessing damages is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases”. 10.I must therefore assess the damages only on the basis of the following injuries to wit: open wound occipital region, bruise on the back and subluxated lower teeth as the plaintiff herein never availed even an iota of evidence to prove that there was missing lower teeth. I have considered the KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 3
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authorities cited by the parties herein. I have also referred to the following comparative cases: a) In ENA Investment Limited vs Onduso (Civil Appeal E092 of 2021) [2023] KEHC 23549 (KLR) (5 October 2023) (Judgment), the Respondent suffered right sub-conjunctival haemorrhage, deep cut wound to the face, deep cut wound to the right leg, deep cut wound to the left leg, chest contusion, bruises on the neck, bruises on the right elbow, blunt trauma on the lower back, blunt trauma on the right elbow, blunt trauma on the right knee and loss of one tooth. The appellate court upheld the award of Kshs 250,000/=. b) In Justine Nyamweya Ochoki & another vs Prudence Anna Mwambu (2020) eKLR, the Respondent suffered loss of upper front incisor tooth, deep cut on the chin, cut on the lips, loosing of the upper teeth, injury to the right forearm and loss of consciousness. The appellate court reduced the award of Kshs 650,000/= to Kshs 300,000/=. c) In Global Trucks Ltd vs Titus Osule Osoro (2013) eKLR, the Court awarded Kshs.200,000/= for pain suffering and loss of amenities for loss of an incisor tooth, injuries to the left elbow and the abdomen with residual permanent disability. 11.Guided by the above authorities and doing the best that I can in the circumstances I hereby award the plaintiff a sum of Kshs. 250,000/= having considered the years of the said authorities and the inflation rate. I have also noted that the plaintiff sustained subluxated teeth and the treatment the plaintiff received. Special Damages KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 4
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12.The plaintiff pleaded for special damages of Kshs. 533,000/= made of Kshs. 10,000/= for medical report, Kshs. 13,000/= for treatment expenses and 510,000/= for future medical expenses. 13.On special damages, it is trite law that for special damages to be awarded, they must be specifically pleaded and also strictly proved. It was held as follows in Maritim & Another –v- Anjere (1990-1994) EA 312 at 316 in this regard: “It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.” 14.In our instant case the plaintiff produced receipts for Kshs. 10,000/= for medical report and Kshs. 13,000/= for treatment expenses making a total of Kshs. 23,000/=, which I hereby award under this head. Future Medical Expenses 15.The plaintiff pleaded for future medical expenses of Kshs. 510,000/=. This is based on the recommendations in the medical report by Dr. Eva. Having found that the plaintiff sustained soft tissue injuries and there is no evidence of the missing teeth as per the initial treatment notes, he is thus not entitled to future medical expenses. 16.The other issue for determination under this head is whether special damages can be subjected to contribution. Guidance on this issue is found in the case of Hashim Mohamed Said & another vs. Lawrence Kibor Tuwei (2018) eKLR, the Respondent (Lawrence Kibor Tuwei) sued the Appellants seeking general damages, special damages plus costs and interest of this suit arising from a road traffic accident. On the day appointed for hearing of the KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 5
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suit, the parties recorded a consent on liability at 85% - 15% against the Appellant. The only issue that proceeded for determination by the trial Court was the issue on quantum of damages. The Court in its Judgment. The Court awarded Kshs. 300,000 in general damages and special damages at Kshs. 261,033. The special damages were not subjected to apportionment as aforestated by the trial Magistrate. The Appellant contested the quantum of damages awarded, hence this appeal. The memorandum of appeal has three (3) grounds including that the trial Magistrate had erred in law by failing to subject the special damages to the 15% contribution on liability. H.A. Omondi, J. held that “The special damages in my mind should not be subjected to the apportionment.” 17.In Kenyatta University vs. Isaac Karumba Nyuthe (2014) eKLR, Isaac Karumba Nyuthe, the Respondent herein sued Kenyatta University, the Appellant herein for general damages, special damages, costs of the suit and interest following a road traffic accident which occurred on 8th October 2010 along Ruiru-Nairobi road involving the Respondent motor cyclist riding motor cycle number KMCC 510H and the Appellant’s motor vehicle registration number KAY 416V Nissan Bus; and which accident occasioned the Respondent serious personal injuries for which he claimed damages. The trial Court found the Defendant 100% liable. However, on appeal, the High Court found that the Plaintiff had contributed to the negligence by 20% and thus apportioned the quantum limited to general damages. On special damages, R.E. Aburili, J. held that they are incapable of apportionment since “Special damages represent what a party has actually expended for services rendered.” 18.In Timsales Limited vs. Harun Thuo Ndungu (2010) eKLR, the Appellant, Timsales Ltd, contested the decision of the trial Magistrate who KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 6
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had been awarded Kshs 35,000, in general damages, less 10% contributory negligence, and special damages of Kshs 2,000. The trial Court too apportioned special damages along the said ratio. M.J. Anyara Emukule, J. (as he then was) held as follows: “The trial Court however erred in adding the special damages and then deducting the 10% contributory negligence. Special damages represent what a party has actually expended for services rendered like a doctor’s bill. That sum is not subject to any deduction by way of contributory negligence.” 19.Thus from the above authorities, I find that the special damages are not subject to any deduction by way of contributory negligence. 20.In conclusion I hereby enter judgment in favour of the plaintiffs as against the defendants as follows: a) Liability 80%:20% in favour of plaintiff b) General Damages………………………………Kshs. 250,000/= Less 20% contribution 50,000/=) (Kshs. Total………………………………………………..Kshs. 200,000/= Add c) Special damages……………………………………Kshs. 23,000/= d) Future Medical expenses………………..Nil Grand Total………………………………………….Kshs.223,000/= KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 7
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21.The plaintiffs will have costs of the suit and interest on general damages from the date of this judgment and on special damages from the date of filing suit till payment in full. Dated, Signed and Delivered in open Court at Kehancha on this 25 th day of September, 2026 virtually via Microsoft Teams. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of; Mr. Mangera…….Court Assistant Plaintiffs………..absent Defendants……..absent Advocate for plaintiffs……..Mr. Singei present Advocate for defendants…..Ms. Omiyo present Court: 30 days right of appeal and stay of execution granted. KEHANCHA SPMC CC NO. E040 OF 2025 (JUDGMENT) 8
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