Openda v Excel Group of Schools Limited & another (Civil Case E374 of 2023) [2025] KEMC 217 (KLR)
The bottom line
#A Nakuru court split road accident blame 50-50 when evidence was unclear, and halved the pedestrian's compensation accordingly.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
Both parties held equally liable at 50% each
The court found both the plaintiff and the defendant owed each other a duty of care as road users. The plaintiff's evidence was contradictory as to whether he was walking or speaking to a boda boda rider at the time of the accident, and the defendant's sketch maps left the point of impact unclear. With no official police sketch map and no clear finding on who was to blame, the court followed precedent that parties be held equally to blame. The plaintiff had also seen the vehicle approach but failed to take mitigatory measures.
Quantum of general damages for pain and suffering
General damages assessed at Kshs. 200,000, applying a comparable authority and factoring inflation
The court noted that assessment of damages is an act of art rather than science, guided by comparable awards, the nature of the injuries, the recuperation period, the limits of the Kenyan economy and the court's pecuniary jurisdiction. The injuries in Ephraim Wagura Muthui & 2 Others v Toyota Keny Limited were found almost similar or comparable to the plaintiff's, and the court relied on that award, factoring inflation, to fix general damages at Kshs. 200,000.
Proof of special damages
Only Kshs. 12,850 of the pleaded Kshs. 13,050 proved; the police abstract charge of Kshs. 200 not proved
The court reiterated that special damages must be pleaded and proved, usually by receipts. On the exhibits, only the official search fee of Kshs. 550, the medical report fee of Kshs. 10,000 and medical expenses of Kshs. 2,300 were proved. The defence objection on stamp duty was rejected because the authority cited showed it is the issuer of receipts, not the buyer, who must affix the stamp, so the plaintiff could not be faulted for relying on an unstamped receipt.
Legal principles established
#- In negligence, the burden of proof rests on the plaintiff to establish duty, breach and damage on a balance of probabilities; the evidential burden may shift to the defendant on sole or contributory negligence
- Where there is no concrete evidence to determine who is to blame between two parties in a motor vehicle accident, both should be held equally to blame
- Special damages must be both pleaded and proved, usually by way of receipts
- Assessment of general damages is not an exact science and depends on the nature of injuries, recuperation period and comparable awards
Court orders
#- 1.Judgment entered against the defendants in favour of the plaintiff for Kshs. 212,850.00 being general and special damages, less 50% contribution, giving a net of Kshs. 106,425.00
- 2.Plaintiff awarded costs of the suit and interest at court rates
- 3.30 days stay of execution granted to the defence
- 4.Counsel for the defence to be supplied with a certified copy of the judgment upon payment of the requisite fee
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a tort claim for damages arising from a road traffic accident
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Openda v Excel Group of Schools Limited & another (Civil Case E374 of 2023) [2025] KEMC 217 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/217/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.