Ilahalwa v Coast Motorcycles & another (Civil Case E010 of 2024) [2024] KEMC 182 (KLR)

The plaintiff was a pillion passenger who pleaded particulars of negligence against the 2nd defendant's rider. The accident occurred on 28th September 2023 and was reported under OB No. 21/28/9/2023, proved by a police abstract dated 31/12/2023. The police abstract blamed the 2nd defendant. In the absence of any defence or rebuttal, the court concluded the 2nd defendant caused the accident and found the 1st defendant vicariously liable at 100%.

The plaintiff sustained a fracture of the right femur with 12% disability per Dr. Ajoni Adede's report. The court compared awards in Joseph Mwangi Thuita (Kshs.700,000), Jackson Mbaluka Mwangangi (Kshs.600,000) and Bhachu Industries (Kshs.300,000), noting those injuries were more serious and multiple. Applying the comparable-injuries principle and allowing for inflation, Kshs.350,000/= was awarded.

Special damages must be specifically pleaded and strictly proved. The plaintiff proved Kshs.2,000/= for preparation of the medical report and Kshs.550/= for a copy of records. The award was therefore allowed as prayed.

The prayer was uncontroverted and supported by the medical report of Dr. Ajoni Adede dated 23/2/2024, which estimated future removal of the metal plate and/or implants at Kshs.120,000/=. The court found it not uncommon to award future medical costs on a doctor's estimate and allowed the prayer as prayed, though without interest as the expense had not yet accrued.

Loss of earning is in the nature of general damages and need not be pleaded, but must be proved on a balance of probability. Awarding it separately would amount to double compensation. On diminished earning capacity, the plaintiff gave no evidence of remuneration beyond a bare assertion of Kshs.15,000/= monthly farm income, and did not establish permanent incapacity; any calculation would be mere speculation.