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MagistratePartially AllowedNot stated in the judgment (plaint dated 28th February, 2024)· [2025] KEMC 79 (KLR)

Macharia v Mwaniki (Civil Suit E005 of 2024) [2025] KEMC 79 (KLR)

Magistrates' Court, Maralal Law Courts
17 April 2025
2,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Maralal court awarded a lorry accident victim about Kshs 2.2 million for a lost leg, but cut it by 30% because he also took a risk boarding a moving lorry.

What this practically means

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Executive summary

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The plaintiff, a casual loader, sued the owner of a lorry after its rear wheels crushed his left foot at the Maralal town roundabout on 24th September 2023, resulting in amputation of the left leg above the ankle after over 78 days of hospitalisation. He sought special damages of Kshs 39,910, general damages for pain and suffering, costs and interest. The defendant denied negligence, contending the plaintiff failed to discharge the burden of proof, that the plaintiff voluntarily boarded a moving vehicle (volenti non fit injuria), and that the police abstract could not substitute proof of negligence. The court framed three issues: liability, quantum, and costs. On liability, it found the driver signalled the plaintiff to approach a moving lorry and slowed down without stopping, while the plaintiff took a risk by clinging onto the moving lorry's door; it apportioned liability at 70% against the driver, borne vicariously by the defendant, and 30% contributory negligence against the plaintiff. On quantum, the court awarded special damages as proved, and Kshs 2,200,000 in general damages for pain and suffering, preferring the plaintiff's recent comparable amputation authorities over the defence's pre-2009 awards, which it held were overtaken by inflation. The claim for loss of future earnings was dismissed as not specially pleaded. All awards were reduced by 30% contributory negligence. Costs were awarded to the plaintiff under section 27 of the Civil Procedure Act with interest at 14%. A right of appeal of 30 days was given.

Key legal issues

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01

Liability for the accident

Holding

Liability apportioned at 70% against the driver (borne vicariously by the defendant) and 30% against the plaintiff for contributory negligence

Reasoning

The court found from the cross-examination of PW1 that the driver signalled the plaintiff to approach a moving lorry and slowed down without stopping, while the plaintiff took a risk by clinging onto the moving lorry's door to board. Had the driver stopped and parked the lorry before inviting the plaintiff, no liability would have arisen. The confluence of both parties' carelessness warranted apportionment at 70/30.

p. 6
02

Special damages

Holding

Special damages awarded as proved, subject to 30% contributory negligence

Reasoning

The court found the special damages proved from the receipts and hospital bill produced in evidence. Note the judgment states the proved figure as Kshs 39,190 in the quantum section but awards Kshs 39,910 in the final orders, the figure pleaded in the plaint.

p. 6
03

General damages for pain and suffering

Holding

Kshs 2,200,000 awarded as general damages for pain and suffering, reduced by 30% contributory negligence

Reasoning

The court considered the parties' authorities. The plaintiff's recent awards for comparable amputation injuries (Kshs 2.2M - 3M) were preferred; the defence authorities from 2009 and earlier were treated as overtaken by inflation. The court aligned with the plaintiff's comparable authority of Edwina Adhiambo Ogol (amputation of left leg) in assessing Kshs 2,200,000.

p. 6
04

Loss of future earnings

Holding

Claim dismissed as not specially pleaded

Reasoning

Although the plaintiff pleaded loss of future earnings in submissions as a head of general damages, it was not specially pleaded in the plaint, and special damages must be specifically pleaded and strictly proved. The claim was accordingly dismissed.

p. 6

Legal principles established

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  • Where an employer's driver signals a person to approach a moving lorry and fails to stop it, the employer bears vicarious liability apportioned against any risk the claimant took in boarding the moving vehicle
  • Special damages must be specially pleaded to be awarded
  • In assessing general damages, recent comparable awards for similar injuries are preferred over older awards rendered outdated by inflation

Court orders

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  1. 1.Special damages of Kshs. 39,910/- plus interest at 14% from date of filing the suit till payment in full subject to 30% contributory negligence
  2. 2.General damages for pain and suffering of Kshs. 2,200,000/- plus interest at 14% from date of judgement till payment in full subject to 30% contributory negligence
  3. 3.Costs of the suit plus interest at 14% from date of filing till payment in full subject to 30% contributory negligence
  4. 4.Right of appeal is 30 days
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a tort claim in negligence 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, "Macharia v Mwaniki (Civil Suit E005 of 2024) [2025] KEMC 79 (KLR)", Case Analysis (2025). Not stated in the judgment (plaint dated 28th February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/79/eng@2025-04-17

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