Kamau v Wathari & another (Civil Suit E117 of 2020) [2025] KEMC 254 (KLR)
The bottom line
#A Nakuru court cut a cyclist's road accident compensation in half because evidence couldn't show who caused the crash, and rejected unproved claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff proved, on a balance of probabilities, that the defendants were negligent in causing the road traffic accident of 7th September 2020
- 2.Whether, where the evidence does not establish who between two road users was to blame, liability should be apportioned equally
- 3.What general damages for pain and suffering should be awarded
- 4.Whether damages for loss of earnings were pleaded and proved
- 5.Whether the claim for future medical expenses was awardable
- 6.What special damages were specifically pleaded and strictly proved
Key legal issues
#Liability for the road traffic accident
Both plaintiff and defendants were held equally to blame at 50% each because the evidence on how the accident happened was unclear and contradictory
The plaintiff testified that the defendant's driver changed lanes dangerously, but the police officer the plaintiff himself called corroborated the report that the plaintiff cyclist changed lanes dangerously. Both police officers were never at the scene and there was no sketch map or skid mark evidence. Following the Court of Appeal precedent, where no concrete evidence determines blame between two parties, equal apportionment at 50:50 is proper.
Burden of proof in negligence
The legal burden rested on the plaintiff to establish duty, breach and damage on a balance of probabilities; the evidential burden could shift to the defendant on contributory negligence once pleaded
Relying on sections 107 and 108 of the Evidence Act, Halsbury's Laws of England and Muruingu Kanoru Jeremiah v Stephen Ungu M'mwarabua, the court held the legal burden remains constant throughout the trial on the party asserting the claim, while the evidential burden may shift as the weight of evidence varies between the parties.
General damages for pain and suffering
Kshs. 950,000/= awarded, subject to the plaintiff's 50% contribution, i.e. Kshs. 475,000/= net
Both sides agreed the pleaded injuries were sustained. Guided by comparable awards of Kshs. 600,000/= (2019) and Kshs. 700,000/= (2023) in the authorities cited by plaintiff's counsel, and factoring in the passage of time and inflation, the court assessed Kshs. 950,000/= with moderation consistent with decided cases and the capacity of the Kenyan economy.
Loss of earnings
Awarded at Kshs. 40,718.70/= (minimum wage for a general worker for 3 months of incapacitation), halved to Kshs. 20,359.35/= for the 50% contribution
There was no evidence disproving that the plaintiff was a casual worker as pleaded, but medical evidence established incapacitation for only about 3 months. The court used the minimum wage for a general worker as submitted by plaintiff's counsel. The court reiterated that loss of earnings is a special damage that must be pleaded and proved.
Future medical expenses
Claim disallowed because neither the amount nor the need for future medication was pleaded or proved
Although the Court of Appeal has held that future medical expenses, though special in nature, need only be pleaded with an approximate sum (Tracom Ltd v Hassan Mohamed Adan; Kenya Power & Lighting Co Ltd v AMK; Forwarding Company Ltd v Kisilu), in this case the plaintiff pleaded no amount, tendered no evidence of the need or estimated cost, and counsel made no submissions on the head. The claim was therefore unawardable.
Special damages
Kshs. 21,390/= proved out of Kshs. 21,690/= pleaded, and awarded subject to the 50% contribution (Kshs. 10,695/= net)
Special damages must be specifically claimed and strictly proved. Although Kshs. 21,690/= was pleaded, receipts and invoices produced totalled only Kshs. 21,390/= (medical report Kshs. 20,000/=, treatment expenses Kshs. 840/=, motor vehicle search Kshs. 550/=). Only the proved sum was awarded.
Legal principles established
#- Where there is no concrete evidence to determine who between two parties in a motor vehicle accident is to blame, both parties should be held equally to blame at 50% each
- The legal burden of proof lies on the plaintiff to establish the elements of negligence on a balance of probabilities; the evidential burden may shift during trial depending on the evidence adduced
- Special damages must be specifically pleaded and strictly proved before they can be awarded
- General damages awards must be reasonable, assessed with moderation, and comparable injuries should attract comparable awards considering prevailing economic circumstances including inflation
- Loss of future earnings is a real assessable loss proved by evidence, distinct from loss of earning capacity which is compensated as general damages
Court orders
#- 1.Liability apportioned equally at 50% to each party
- 2.General damages for pain and suffering of Kshs. 475,000/= (being Kshs. 950,000/= subject to 50% contribution)
- 3.Damages for loss of earning of Kshs. 20,359.35/= (being Kshs. 40,718.70/= subject to 50% contribution)
- 4.Special damages of Kshs. 10,695/= (being Kshs. 21,390/= proved, subject to 50% contribution)
- 5.Costs of the suit and interest at court rates to the plaintiff
- 6.30 days stay of execution granted upon application by defence counsel
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Pecuniary jurisdiction of the magistrates' court over a negligence suit for compensation arising from a road traffic accident (inherent trial jurisdiction; no constitutional or statutory provision expressly invoked)
Relief refused
#Costs of future medication/treatment
The plaintiff did not plead the amount claimed as future medical expenses and adduced no evidence proving the need for future medication or its estimated cost, and counsel for the plaintiff did not submit on it
Portion of special damages not proved (Kshs. 300/= difference between pleaded Kshs. 21,690/= and proved Kshs. 21,390/=)
Special damages must be specifically pleaded and strictly proved; only receipts totalling Kshs. 21,390/= were proved
Full liability against the defendants
Evidence was unclear on who caused the accident; both parties were held equally to blame at 50% each
Costs
Costs of the suit and interest at court rates awarded to the plaintiff (subject to the 50% liability apportionment on damages). A 30-day stay of execution was granted on the defence counsel's unopposed application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, it would be prudent and in line with judicial precedent, to come to the findings and conclusion that where there is no concrete evidence to determine who in a motor vehicle accident is to blame between two parties both should be held equally to blame.
Thus the plaintifi, by calling the police oficer as his witness, has greatly contradicted his own evidence and that contradiction should be used against him.
It is now a cardinal principle of the law that special damages must be pleaded and specifically proved, before they can be awarded by the Court.
In the instant case, the plaintifi did not plead the amount he claims as cost of future medical expenses. There was further no evidence adduced proving the need of that future medication or the estimated cost.
Judgment is hereby therefore entered for the plaintifi against the defendants herein as follows: i. General damages for pain and sufiering of Kshs. 475,000/= ii. Damages for Loss of Earning: Kshs. 20,359.35/= iii. Special damages of Kshs. 10,695/= iv. Costs of the suit and interest at court rates.
Issues in the judgment
#Arithmetic error in the loss of earnings figure: the multiplication is written as 'Kshs. 13,2572.90 x 3 = Kshs. 40,718.70/-' which is internally inconsistent as stated (13,572.90 x 3 = 40,718.70)
Discrepancy between pleaded special damages (Kshs. 21,690/=) and the receipts totalled in the judgment (Kshs. 20,000 + 840 + 550 = 21,390, described inconsistently within the same paragraph)
The coram line renders the magistrate's name without spacing: 'ALOYCE-PETER-NDEGE'
The case number of the suit is not stated anywhere in the judgment as provided, and the names of the plaintiff and defendants are not given, only their roles
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Wathari & another (Civil Suit E117 of 2020) [2025] KEMC 254 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/254/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.