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MagistratePartially AllowedNot stated in judgment· [2023] KEMC 89 (KLR)

Nyakego v Kariuki & another (Civil Suit E3321 of 2020) [2023] KEMC 89 (KLR)

Chief Magistrate's Court, Nairobi
28 March 2023
JAJeal Praxades Atieno Aduke
641 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 motorcyclist KES 300,000 after proving the driver was fully at fault, but cut his expense claim because he lacked receipts.

What this practically means

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Executive summary

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The plaintiff, a motorcycle rider of motorcycle registration number KMDR 413C, sued after a road traffic accident on Waiyaki Way, Nairobi, in which motor vehicle registration number KBC 241G, driven by the defendant's servant, agent or authorised driver, lost control and collided with his motorcycle, injuring him. The plaint sought general damages for pain and suffering, special damages, costs and interest. The defendants were served and filed a defence, but at trial the defence closed its case without calling witnesses. The plaintiff called two witnesses who adopted their statements; by consent the parties relied on the medical reports on record without calling their authors, and written submissions were exchanged. The court framed two issues: liability and quantum. On liability, the police abstract confirming the accident particulars and the copy of records confirming the defendant's ownership of the blamed vehicle led the court to apportion liability at 100% in favour of the plaintiff. On special damages, although KES 22,593/- was pleaded, only KES 3,550/- was proved by receipts, and that sum was awarded under the settled principle that special damages must be both pleaded and proved. For general damages for soft tissue injuries and a fracture of the right leg, the court followed comparable awards in Samwel Martin Njoroge Kamunyu v Mildred Barasa and HB (minor) v Jasper Nchonga and another [2021] and, factoring in inflation and the cost of living, awarded KES 300,000/-. Judgment was entered for the plaintiff with costs and interest on the general damages and costs at court rates from the date of judgment until payment in full. The judgment was signed and delivered virtually in Nairobi on 28 March 2023.

Key legal issues

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01

Liability for the road traffic accident

Holding

The defendant was wholly liable, liability apportioned 100% in favour of the plaintiff, based on the police abstract and records of ownership

Reasoning

The court considered the police abstract confirming the accident particulars and involved parties, and the copy of records confirming the defendant's ownership of the blamed motor vehicle. The defence called no witnesses. On this material the court found the defendants and their agent fully responsible for the collision with the plaintiff's motorcycle.

p. 2
02

Quantum - special damages

Holding

KES 3,550/- awarded as the only amount pleaded and proved

Reasoning

Although the plaint claimed KES 22,593/- as special damages, the receipts on record only attested to KES 550 plus KES 3,000. Applying the settled principle that special damages must be pleaded and proved, the court awarded only the proved sum of KES 3,550/-.

p. 2
03

Quantum - general damages for soft tissue injuries and fracture of the right leg

Holding

KES 300,000/- awarded as general damages

Reasoning

The court relied on comparable awards in Eldoret HCC 107 of 2018 Samwel Martin Njoroge Kamunyu v Mildred Barasa and HB (minor suing through mother and next friend DKM) v Jasper Nchonga and another [2021]. It factored in that money cannot restore the plaintiff to his pre-accident position, inflation and the cost of living, and awarded KES 300,000/- for soft tissue injuries and a fractured right leg.

p. 2

Legal principles established

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  • Special damages must be both pleaded and proved before they can be awarded

Court orders

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  1. 1.General damages KES 300,000/-
  2. 2.Special damages KES 3,550/-
  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 v Mildred Barasa
    Eldoret HCC 107 of 2018
  • HB (minor suing through mother and next friend DKM) v Jasper Nchonga and another
    [2021]
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a negligence claim arising from a road traffic accident

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, "Nyakego v Kariuki & another (Civil Suit E3321 of 2020) [2023] KEMC 89 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/89/eng@2023-03-28

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