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MagistratePartially AllowedNot stated in judgment· [2023] KEMC 88 (KLR)

Ezekiel v Ng'ang'a & another (Civil Suit 2606 of 2020) [2023] KEMC 88 (KLR)

Magistrates' Court (Senior Resident Magistrate)
29 March 2023
AAAduke Jeal Praxades Atieno
609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court awarded a road accident victim KES 400,000 but cut his KES 179,650 expense claim to just KES 2,050 because he lacked receipts.

What this practically means

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Executive summary

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The plaintiff sued the defendants for injuries sustained in a road traffic accident on 8th January 2020 along Southern Bypass in Nairobi, alleging that the defendants' motor vehicle KAE 675F negligently lost control and collided with his motorcycle KMFA 241N. He sought general damages for pain and suffering, special damages of KES 179,650/-, costs and interest. The defendants were served and the suit was defended, but at hearing the parties recorded a consent on liability at 80:20 in favour of the plaintiff, and agreed to rely on the medical reports on record without calling their authors; that consent was adopted as a judgment of the court. The only issue remaining for determination was quantum. On special damages, the court applied the settled principle that special damages must be both pleaded and proved, and that only receipts - not invoices or quotations - constitute proof of payment on a balance of probabilities. It found KES 2,050/- proved by receipts and awarded that sum, rejecting the balance of the claim. On general damages, the court considered the submissions, authorities and exhibits, relied on comparable awards (including Samwel Martin Njoroge Kamunyu v Mildred Barasa and HB (minor) v Jasper Nchonga and another [2021]), and, factoring in that no award can restore the plaintiff to his pre-accident position, inflation and the cost of living, awarded KES 400,000/-. Judgment was entered for the plaintiff with costs and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Quantum of special damages

Holding

Special damages of KES 2,050/- awarded, being the amount pleaded and proved by receipts, out of the KES 179,650/- claimed

Reasoning

The court reiterated the settled principle that special damages must be both pleaded and proved. Receipts on record attested to only KES 550 plus KES 1,500. The court noted abundant case law that invoices and quotations are not proof of payment and that only receipts meet the threshold on a balance of probabilities. The balance of the pleaded special damages was therefore not proved.

p. 2
02

Quantum of general damages for soft tissue injuries and a fracture

Holding

General damages of KES 400,000/- awarded for soft tissue injuries and a fracture sustained in the accident

Reasoning

Liability was settled by consent at 80:20 in favour of the plaintiff. On quantum, the court considered the submissions, authorities and exhibits, relied on comparable awards including Samwel Martin Njoroge Kamunyu v Mildred Barasa and HB (minor) v Jasper Nchonga, and factored in that damages cannot restore the plaintiff to his pre-accident position, inflation and the cost of living.

p. 2

Legal principles established

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  • Special damages must be both pleaded and proved, and only receipts (not invoices or quotations) constitute proof of payment on a balance of probabilities
  • In assessing general damages the court takes into account that no amount of damages can restore the plaintiff to his prior position, together with the rate of inflation and cost of living

Court orders

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  1. 1.General damages KES 400,000/-
  2. 2.Special damages KES 2,050/-
  3. 3.Costs of the suit to the Plaintiff
  4. 4.Interest on general damages and costs at court rates from the date of judgment until payment in full

Authorities

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Cases cited (2)

  • Samwel Martin Njoroge Kamunyu vs Mildred Barasa
    Eldoret HCC 107 of 2018
  • HB (minor suing through mother and next friend DKM) versus Jasper Nchonga and another
    [2021]
Jurisdiction invoked
Original civil suit for damages arising from a road traffic accident (motor vehicle accident claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ezekiel v Ng'ang'a & another (Civil Suit 2606 of 2020) [2023] KEMC 88 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/88/eng@2023-03-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.