NJAU NYANJUI THITU & ANOTHER v LAWRENCE KIMANI NYANJUI & 7 OTHERS [2007] KECA 422 (KLR)
The bottom line
#A Kenyan matatu passenger injured in a tyre-burst crash won full compensation because the owners never came to court to prove the accident was unavoidable.
What this practically means
#Executive summary
#Key legal issues
#Liability of the defendants despite the plea of inevitable accident
The defendants are 100% liable; they failed to discharge the burden of proving the accident was inevitable once the plaintiff's unchallenged evidence of speeding and overload established negligence and raised res ipsa loquitur.
The plaintiff's evidence that the matatu was speeding downhill, overloaded, and overturned after a rear tyre burst was unchallenged, as defendants did not appear. Where an unexplained tyre burst occurs, the plea of inevitable accident shifts the evidential burden to the defendant to show the accident could not have been avoided. A passenger has no control over the manner of driving and cannot be blamed. The defendants having produced no evidence, the burden was not discharged and liability was absolute.
Unpleaded claim for loss of earning capacity
Disallowed; damages cannot be awarded on a head not pleaded and not proved by documentary evidence of earnings.
Counsel had not pleaded loss of earning capacity in the plaint, and no document established the plaintiff was in salaried employment. The court applied the settled rule that parties are bound by their pleadings and that a court cannot award relief that has not been sought, regardless of the merits shown in submissions or the medical evidence of incapacity.
Assessment of general damages and future medical costs
Kshs.520,000/= general damages (head concussion, spinal cord injury, soft tissue injuries) and Kshs.280,000/= for future operation, allowing for inflation since the 1989/1991 estimates.
The court considered three medical reports showing permanent 35-40% disability, a compression fracture of L2 with kyphosis and compromised nerve supply, and recommended major surgery. It took into account the plaintiff's virtual lameness, dependence on his father, the age of the comparative authorities cited, and currency depreciation, inflating the Kshs.50,000-100,000 operation estimates to Kshs.280,000/=.
Legal principles established
#Court orders
#- 1.Judgment entered for the plaintiff against the defendants
- 2.Special damages of Kshs.7,213/= with interest at court rates from the date of filing until payment in full
- 3.Kshs.280,000/= for cost of future operation with interest at court rates from the date of judgment until payment in full
- 4.General damages for pain, suffering and loss of amenities totalling Kshs.520,000/= (head concussion Kshs.30,000/=; soft tissue injuries Kshs.40,000/=; serious spinal cord injury Kshs.450,000/=) with interest at court rates from the date of judgment until payment in full
- 5.Costs of the suit awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (first-instance negligence/damages suit; no appellate or constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NJAU NYANJUI THITU & ANOTHER v LAWRENCE KIMANI NYANJUI & 7 OTHERS [2007] KECA 422 (KLR)", Case Analysis (1999). Civil Case 142 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/422/eng@2007-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.