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MagistrateAllowednot stated on the judgment· [2023] KEMC 213 (KLR)

Ndiema v Kiriago & another (Civil Suit 6573 of 2019) [2023] KEMC 213 (KLR)

Magistrates' Court (Nairobi)
17 July 2023
AAAduke Jeal Praxades Atieno
616 words in judgment
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The bottom line

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A Nairobi magistrates' court awarded a pedestrian KES 261,666 plus costs after a 2019 road accident, holding the vehicle owner 95% liable.

What this practically means

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Executive summary

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This is a defended first-instance magistrates' court suit arising from a road traffic accident on 28th April 2019 along Railway Entrance Terminus in Nairobi, in which the plaintiff, a pedestrian, was injured by motor vehicle registration number KCE 429N allegedly driven negligently by the defendants' servant or agent. The defendants entered appearance and filed a defence, and the suit proceeded to full hearing with written submissions exchanged. The court framed two issues for determination: liability and quantum. On liability, the court relied on the police abstract, motor vehicle search records confirming the 2nd defendant as registered owner, and the testimony of PW1, and apportioned liability at 95:05 in favour of the plaintiff. On quantum, the court found the pleaded special damages of KES 11,666/- proved by receipts, applying the settled principle that special damages must be pleaded and proved. For general damages, the court applied comparable awards from Kenya Wildlife Service v Godfrey Kirimi Mwiti [2018] eKLR, taking into account the nature of the injuries (soft tissue injuries and fracture), the impossibility of restoring the plaintiff to his prior condition, inflation and the cost of living, and awarded all-inclusive general damages of KES 250,000/-. Judgment was entered for the plaintiff with general damages of KES 250,000/-, special damages of KES 11,666/-, costs of the suit, and interest on the 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 17th July 2023 by Senior Resident Magistrate Aduke Jeal Praxades Atieno.

Key legal issues

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01

Liability for the road traffic accident

Holding

Liability apportioned at 95:05 in favour of the Plaintiff against the Defendants.

Reasoning

The court relied on the police abstract confirming details of the accident and the vehicle, the motor vehicle search records confirming the 2nd defendant as registered owner, and the testimony of PW1, which together established the chronology of the accident and the defendants' negligence.

p. 2
02

Special damages

Holding

KES 11,666/- awarded as special damages as pleaded and proved by receipts.

Reasoning

The court reiterated the settled principle that special damages must be pleaded and proved, found receipts on record attesting to KES 11,666/- matching the amount pleaded in paragraph 6 of the plaint, and awarded the full amount.

p. 2
03

General damages for pain, suffering and loss

Holding

All-inclusive general damages of KES 250,000/- awarded for soft tissue injuries and a fracture.

Reasoning

The court considered the submissions, authorities and exhibits, relied on comparable awards in Kenya Wildlife Service v Godfrey Kirimi Mwiti [2018] eKLR, and factored in that money cannot restore the plaintiff to his prior condition, inflation and the cost of living.

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.All inclusive general damages of KES 250,000/-
  2. 2.Special damages of KES 11,666/-
  3. 3.Costs of the suit to the Plaintiff
  4. 4.Interest on the general damages and costs at court rates from the date of judgment until payment in full

Authorities

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Cases cited (1)

  • Kenya Wildlife Service v Godfrey Kirimi Mwiti
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over negligence claims for personal injuries 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, "Ndiema v Kiriago & another (Civil Suit 6573 of 2019) [2023] KEMC 213 (KLR)", Case Analysis (2023). not stated on the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/213/eng@2023-07-17

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