Martin Onyango Benard v Joel Odhiambo Ngao

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 fracture of the left mid shaft femur, bruises at right ear, lacerations at left ear and soft tissue injuries. In proving the said injuries the plaintiff produced treatment notes which indicate that there are several bruises and soft tissue injury on the left femur, X-Ray showed closed fracture femur. He also produced a P3 form and medical report. 6. Counsel for the plaintiff proposed a sum of Kshs. 1,500,000/= as general damages. They relied on the case of Alphonza Wothaya Warutu & another v Joseph Muema (2017) eKLR, the plaintiff sustained injuriesof deep cut wound on the forehead, compound fracture on the midshaft of the right humerus, compound fracture of the right tibia and deep cut wound on the right lower leg and the court upheld an award of Kshs. 800,000/= as general damages. 7. They also relied on the case of Francis Ndungu Wambui & 2 othersv Benson Maina Gatia Embu HCCA NO. 61 of 2017 the respondent suffered compound fracture of distal and fibula as well as loss of consciousness and the lower court award of Kshs. 1,000,000/= was upheld on appeal. 8. The defendant counsel proposed a sum of Kshs. 300,000/= and relied on the case of Maina Onesmus v Charles Wanjohi Githome (2019) eKLR, where Kshs. 350,000/= was awarded in 2019 for injuries similar but more serious to those sustained by the plaintiff herein. The injuries were fracture of the midshaft humerus, fracture of the condyles, fracture of the shoulder gird and pain and psychological trauma. 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 2

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9. They also relied on the case of Naomi Momanyi v G4s Security Services Kenya Limited & another (2018) eKLR, where Kshs.300,000/= was awarded for general damages for injuries similar to those sustained by the plaintiff in the instant case. The injuries were: a cut wound on the anterior part of the scalp, a head injury, spinal cord injury, neck injury, fracture of the lower tibia and fibula and a cut wound on the face. 10.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.” 11.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 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 3

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comparable awards keeping in mind the correct level of awards in similar cases”. 12.In our instant case the plaintiff pleaded to have sustained a fracture, however, he did not produce an X-Ray film or X-Ray report. In the case of Blootex Limited v Muyanga & 4 others (Civil Appeal E103 OF 2023(2026) KEHC 4391 (KLR) (19 March 2026) (Judgment) where the court held that “Indeed, the 1st respondent also pointed out that the first respondent did not prove that she sustained fractures as she never produced the x-rays and the doctor admitted that he was approached by the lawyer to compile the medical report without relying on x-ray. That the 1 st respondent was misleading the court when she said she suffered fractures and yet she was only treated with pain killers and no treatment was given for the alleged fractures……. The relevance by the 1st respondent to prove her injuries with x-rays and the improvised doctor’s evidence who filled a medical report without x-rays leaves the court with no option but to hold that there was no material evidence sufficient for the court to hold that she sustained fractures as alleged.” 13.Further in the case of Oyoo v John (Civil Appeal 84 of 2022) [2023] KEHC 2027 (KLR) (16 February 2023) (Judgment), it was held as follows:“All the treatment notes the medical report talk of the fracture of the tibia. However the x ray films were not produced in evidence and Pw1 did not account for them. It is trite law that he who alleged must prove and fractures are usually proved by the x rays films which the doctor uses to ascertain that they were indeed sustained. 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 4

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In the absence of the X-ray film I find that the trial magistrate erred in finding that the respondent sustained fractures as a result of the accident.” 14.In the case of Pitalis Opiyo Ager v Daniel Otieno Owino & another [2020] KEHC 5769 (KLR), it was held that:“ My humble view is that the X-ray films would have formed part and parcel of the initial treatment notes showing first hand serious injuries sustained by the Plaintiff after the accident and therefore in my humble view, failure to produce the same was fatal to the claim by the Plaintiff/Appellant that he sustained dislocations and fractures, especially where Prof Okombo does not say that he personally did xrays on the appellant and established that indeed the appellant had suffered those alleged fractures and or dislocations.” 15.Guided by the above authorities, I must therefore assess the damages only on the basis of the following injuries to wit: bruises at right ear, lacerations at left ear and soft tissue injuries` as the plaintiff herein never availed even an iota of evidence to prove that he sustained a fracture. I have considered the authorities cited by the parties herein. I have also referred to the following comparative cases: a) In Francis Ndung`u Wambui & 2 Others v Purity Wangui Gichobo [2019] eKLR the respondent had suffered a deep laceration on the medial side of the left foot and a degloving injury on the left thumb and the award was on appeal reduced from Ksh.450,000/= to 250,000/= b) In Jubilee Hauliers Ltd & Another v Mary Waithera Wanja [2019] eKLR the respondent had suffered degloving injuries to the right elbow, multiple lacerations on the right arm, and soft tissue 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 5

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injuries on the chest; cut wound on the tongue and bruises on the forehead. An award of Kshs. 200,000/was upheld. c) In G4s Security Services Ltd v Oyugi Obiria [2018] eKLR, Civil Appeal 19 of 2016, the claimant suffered; blunt trauma to the neck, blunt injury to the back, tenderness to the right ear, blunt injury to anterior chest wall and swollen right hand. The High court upheld an award of Kshs. 180,000 d) In Fred Barasa Matayo v Channan Agricultural Contractors [2013] eKLR: The court reviewed downwards an award of Kshs.250,000/= to Kshs.150,000/= to moderate soft tissue injuries that were expected to heal in eight months’ time. e) In Dickson Ndungu v Theresia Otieno & 4 Others [2014] eKLR The court reviewed the award of Kshs.250,000/- to Kshs.127,500/= for soft tissue injuries which produced no complains. f) In Purity Wambui Muriithi v Highlands Mineral Water Company Ltd [2015] eKLR: The award of Kshs.700,000/= was reduced to Kshs.150,000/= for injuries to the left elbow, pubic region, lower back and right ankle. 16.Guided by the above authorities and doing the best that I can in the circumstances I hereby award the plaintiff a sum of Kshs. 200,000/= having considered the years of the said authorities and the inflation rate. Special Damages 17.The plaintiff pleaded for special damages of Kshs. 370,000/= made of Kshs. 10,000/= for medical report and 360,000/= for future medical expenses. 18.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 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 6

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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.” 19.In our instant case the plaintiff produced receipts for Kshs. 10,000/= for medical report, which I hereby award under this head. Future Medical Expenses 20.The plaintiff pleaded for future medical expenses of Kshs. 360,000/=. This is based on the recommendations in the medical report by Dr. Eva. Having found that the plaintiff sustained soft tissue injuries he is thus not entitled to future medical expenses. 21.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 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 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 7

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(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.” 22.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.” 23.In Timsales Limited vs. Harun Thuo Ndungu (2010) eKLR, the Appellant, Timsales Ltd, contested the decision of the trial Magistrate who 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 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 8

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like a doctor’s bill. That sum is not subject to any deduction by way of contributory negligence.” 24.Thus from the above authorities, I find that the special damages are not subject to any deduction by way of contributory negligence. 25.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. 200,000/= Less 20% contribution 40,000/=) (Kshs. Total………………………………………………..Kshs. 160,000/= Add c) Special damages……………………………………Kshs. 10,000/= d) Future Medical expenses………………..Nil Grand Total………………………………………….Kshs.170,000/= 26.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; 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 9

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Mr. Kerage…….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. 5KEHANCHA SPMC CC NO. E038 OF 2025 (JUDGMENT) 10

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