Gaitirira v Muhari (Civil Case 389 of 2023) [2025] KEMC 251 (KLR)
The bottom line
#A Nakuru court held a motorist 100% liable for a matatu crash, but only paid damages backed by receipts and Sacco records.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
The defendant was held 100% liable
The evidence of PW2, the plaintiff's driver and eyewitness, was consistent and uncontroverted, the defendant having closed his defence without calling any evidence. The plaintiff proved through the NTSA copy of records that the defendant was the registered owner of motor vehicle KCU 778V. The court found the defence statements were unsubstantiated allegations and thus found the defendant wholly liable.
Whether special damages were pleaded and strictly proved
Special damages of Kshs. 514,902 awarded as strictly proved by receipts, out of the higher amount particularized
The court noted the plaint did not contain a prayer for specific damages but the amounts were sufficiently particularized in paragraphs 5 and 6. Applying the rule that special damages must be specifically pleaded and strictly proved, the court compared the receipts against the pleaded figures and awarded only what was proved by receipts, totalling Kshs. 514,902.
Quantum of lost earnings
Lost income of Kshs. 129,000 awarded instead of the pleaded Kshs. 225,000
The plaintiff produced a 2NK Sacco monthly statement for August 2022. The court observed the highest income for that month was Kshs. 4,300 and therefore found a net daily income of Kshs. 2,866.67 reasonable, which multiplied by the 45 days the matatu was off the road yielded Kshs. 129,000, lower than the pleaded Kshs. 5,000 per day.
Effect of defendant's failure to adduce evidence
The defence remained mere unsubstantiated allegations
The defendant closed his defence without calling any witness. The court, guided by Kerai Ghanshyam v James Wambua Muendo and Janet Kaphiphe Ouma v Marie Stopes International, held that even in formal or undefended proceedings the plaintiff must prove the case on a balance of probabilities, but having done so, the unsupported assertions in the defence remained mere allegations that did not controvert the plaintiff's testimony.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved and may not be inferred from the act complained of
- Even where a defendant does not adduce evidence, the plaintiff must still prove the claim on a balance of probabilities; uncontroverted allegations in a defence unsupported by evidence remain mere allegations
Court orders
#- 1.Judgment entered in favour of the plaintiff against the defendant for Kshs. 643,902/15
- 2.Costs of the suit to the plaintiff
- 3.Interest at court's rates
- 4.30 days stay of execution granted
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a road traffic accident claim (not expressly invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gaitirira v Muhari (Civil Case 389 of 2023) [2025] KEMC 251 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/251/eng@2025-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.