Jessee Muriithi (Minor suing through next friend Reuben Kiburi) v John Gichunge Baituru & Attorney General
The bottom line
#A Kenyan court held a government driver fully liable for injuring a child, but refused damages for deafness because medical records didn't link it to the accident.
What this practically means
#Executive summary
#Key legal issues
#Liability of the 1st Defendant for the accident
The 1st Defendant was wholly to blame; he dangerously overtook a slow lorry in a residential area with road bumps, failed to hoot, and caused the child to fall even if there was no actual contact
The court accepted the eyewitness PW.4's account that the Land Rover was overtaking a lorry when it knocked the child down. The 1st Defendant claimed he hooted, but his two passengers never corroborated the hooting, so the court rejected that evidence as a lie. Driving through a built-up area with road bumps and children about, he breached his duty of care. The child's fall near the rear right wheel established causation. Vicarious liability attached to the 2nd Defendant as the driver was on duty.
Causation of the deafness and speech defects
The deaf and dumb condition was not attributable to the accident; only the bruises, swelling and left tibia fracture were proved
The court scrutinised the earliest clinical notes of 12th and 13th July 1987, which made no mention of any bruise behind the left ear - the injury Dr. Randall relied on to link the deafness to the accident. Together with the evidence of two women familiar with the child before the accident, who testified he had a pre-existing hearing defect, the court found the link unproved on a balance of probabilities. Damages were assessed only on Dr. Namasaka's report.
Contributory negligence
A child of 3 years cannot in law be guilty of contributory negligence, nor could the 10-year-old sister be blamed as the driver took the children by surprise
The defendants alleged the guardian negligently left the child to wander along a busy road. The court rejected this: the children were walking home off the road and were taken by surprise by the overtaking Land Rover. Given the child's age of about 3 years, contributory negligence was legally impossible, and the elder sister who accompanied the children also bore no blame.
Quantum of damages
General damages of Sh.70,000/- awarded for bruises, swelling and fractured left tibia (distal one third) with plaster for about 3 weeks; special damages of Sh.1,424/-
The court compared awards in comparable cases for similar injuries ranging between Sh.50,000/- and Sh.80,000/- and, doing its best in the circumstances, fixed Sh.70,000/- as just and reasonable. Special damages comprised proved medical expenses and police abstract costs of Sh.224/-, plus Sh.600/- for each of the two doctors' reports in the absence of receipts, totalling Sh.1,424/-.
Legal principles established
#- A driver of a motor vehicle owes a greater duty of care than pedestrians and must anticipate people or animals in the way at any moment, driving only at a speed permitting him to stop or deflect course; a child of 3 years cannot in law be guilty of contributory negligence.
- Early contemporaneous clinical notes are critical where the extent of injuries is disputed and unproved late-emerging injuries cannot be awarded.
Court orders
#- 1.Judgment against the Defendants jointly and severally in the sum of Shs.71,424/- (Shs.70,000/- general damages and Sh.1,424/- special damages)
- 2.Costs of the suit to the Plaintiff
- 3.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Original civil jurisdiction of the High Court in a negligence claim for special and general damages
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- S A O (minor suing through next friend M O O) v The Registered Trustees, Anglican Church of Kenya Maseno North Parish[2017] KEHC 4905 (KLR)14 Jun 2017
Cite this brief
#Cite this brief
Caselaw, "Jessee Muriithi (Minor suing through next friend Reuben Kiburi) v John Gichunge Baituru & Attorney General", Case Analysis (1992). Civil Case 105 of 1988. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.