Wanderi v Aisha Auto Kenya Limited & another (Civil Case 214 of 2020) [2024] KEMC 136 (KLR)
The bottom line
#A Nakuru court awarded a pedestrian Kshs. 260,800 after a driver hit her at a zebra crossing and admitted he never saw her.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
The defendants were found 100% liable. The 2nd defendant admitted he did not see the plaintiff and that had he seen her or braked and stopped, the accident would not have happened; he failed to give way at a zebra crossing where other vehicles had stopped.
Both parties used the road and owed each other a duty of care. The plaintiff was lawfully using the zebra crossing and other vehicles had stopped for her. DW1's admission that he did not see her and would have stopped had he done so was treated as sufficient admission of negligence. The court found it implausible that the plaintiff knocked herself onto a slowly moving vehicle given the severity of the injuries, and held the plaintiff's case proved on a balance of probabilities.
General damages for severe soft tissue injuries
General damages awarded at Kshs. 250,000/= on the strength of the comparable award in Lake Naivasha Growers vrs Muigai Thuka, where the injuries were almost similar to or less serious than the plaintiff's.
The court applied the principle that comparable injuries should attract comparable awards, relying on Ndungu Dennis vrs Ann Wangari Ndirangu, and found the injuries in the plaintiff's cited authority comparable, adopting counsel's proposed figure of Kshs. 250,000/=.
Special damages
Special damages awarded at Kshs. 10,800/= only, being the medical report costs, medical expenses and official search fee proved by exhibits.
It is trite that special damages must be pleaded and proved, usually by receipts. Only the medical report receipt (Kshs. 8,000/-), medical expenses (Kshs. 2,250/-) and official search (Kshs. 550/-) were proved; the P3 form and police abstract costs were not proved.
Legal principles established
#- In an action for negligence the burden of proof rests on the plaintiff to establish each element of the tort, but once discharged the evidential burden may shift to the defendant to prove contributory negligence as pleaded.
- Assessment of damages in injury claims is an act of art rather than science, guided by comparable awards for similar injuries.
- Special damages must be both pleaded and proved, usually by way of receipts.
Court orders
#- 1.Judgment entered against the defendants in favour of the plaintiff for Kshs. 260,800/- being general and special damages
- 2.Plaintiff to get costs of the suit
- 3.Interest at court rates
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court in a tort claim for special and general damages arising from a road traffic accident
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanderi v Aisha Auto Kenya Limited & another (Civil Case 214 of 2020) [2024] KEMC 136 (KLR)", Case Analysis (2024). Civil Case No 214 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/136/eng@2024-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.