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MagistratePartially AllowedNot stated in the judgment

EWM (Minor Suing through Next Friend MKW) v Sammy & 2 others (Civil Case E078 of 2022) [2025] KEMC 258 (KLR)

Magistrates' Court
8 October 2025
4,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a girl injured by a motorcycle over Ksh. 1 million, but cut her claim where she couldn't prove the loss.

What this practically means

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Executive summary

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This first-instance decision of the Makindu Magistrates' Court determined a road traffic accident claim by EWM, a minor suing through her next friend, against three defendants over an accident of 26/8/2021 along the Siembeni-Katulani Murram road, in which a motorcycle registration number KMFT 162B knocked her down while she stood off the road. Liability was resolved by a consent recorded on 16/6/2025 and adopted as a court order, apportioning 85% liability to the defendants and 15% to the plaintiff. The trial proceeded only on quantum. The medical evidence established grievous-harm injuries, including a depressed comminuted skull fracture with intracerebral bleeding and a right mastoid fracture, with permanent disability assessed at 15%. Applying the settled principles that damages compensate rather than enrich and that comparable injuries attract comparable awards, and considering inflation and the age of comparator awards, the court awarded Ksh. 1,200,000/= in general damages for pain, suffering and loss of amenities. Special damages were awarded at Ksh. 91,500/= on the basis that they must be specifically pleaded and strictly proved. The claim for diminished earning capacity was dismissed: the plaintiff was 8 years old at the accident, there was no medical evidence of future incapacity to work, and the plaintiff made no submissions on that head. Interest on general damages runs from judgment and on special damages from filing suit. The total award of Ksh. 1,291,500/= was reduced by the 15% contribution, leaving Ksh. 1,097,775/= due to the plaintiff, with costs and interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff sustained injuries and suffered loss as a result of the accident
  2. 2.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
  3. 3.Who should bear the costs of this suit

Key legal issues

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01

Quantum of general damages for pain, suffering and loss of amenities

Holding

An award of Ksh. 1,200,000/= was appropriate given grievous-harm injuries, 15% permanent disability, the age of comparable awards and inflation.

Reasoning

The court applied the established principles that damages compensate rather than enrich, that comparable injuries should attract comparable awards, and that inflation must be considered. The plaintiff's authorities involved more severe but comparable injuries while the defendant's involved less severe injuries. Two further comparators were considered, supporting Ksh. 1,200,000/=.

p. 6
02

Special damages

Holding

Special damages of Ksh. 91,500/= awarded, being proved medical expenses of Ksh. 85,500/= plus proved medical report charges, less the unproved amount claimed.

Reasoning

Special damages must be specifically pleaded and strictly proved. The proved medical expenses amounted to Ksh. 85,500/= and the medical report charge was sufficiently proven, so the full pleaded sum of Ksh. 92,600/= was not awarded but Ksh. 91,500/=.

p. 6
03

Damages for diminished/reduced earning capacity

Holding

The claim for diminished earning capacity was dismissed as there was no basis for the award.

Reasoning

Loss of earning capacity, though part of general damages, must be proved on a balance of probabilities. The plaintiff was 8 years old at the time of the accident; no medical evidence showed she could not work in future; no further medical examination occurred after 24/2/2022; and the plaintiff made no submissions on this head.

p. 7
04

Interest on damages

Holding

Interest on general damages accrues from the date of judgment; interest on special damages accrues from the date of filing suit.

Reasoning

Relying on section 26 of the Civil Procedure Act and case law including Jane Wanjiku Wambui and Omunyokol Akol Johnson, the court held that interest on special damages runs from the date of loss while interest on general damages runs from the date of judgment since general damages are only ascertained in the judgment.

p. 9

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved.
  • Loss of earning capacity falls within general damages but must still be proved on a balance of probabilities and there must be a basis for the award.
  • Interest on special damages runs from the date of loss, while interest on general damages runs from the date of judgment.

Court orders

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  1. 1.General damages for pain, suffering and loss of amenities of Ksh. 1,200,000/=
  2. 2.Special damages of Ksh. 91,500/=
  3. 3.Total award of Ksh. 1,291,500/= less 15% contribution of Ksh. 193,725/=, balance of Ksh. 1,097,775/= due to the plaintiff
  4. 4.Interest on general damages at court rates from the date of judgment/decree until payment in full
  5. 5.Interest on special damages from the date of filing suit to the date of judgment/decree
  6. 6.Costs of the suit awarded to the plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a road traffic accident claim (Civil Procedure Act)

Relief refused

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General damages for diminished/reduced earning capacity

The plaintiff was 8 years old at the time of the accident and there was no medical evidence that she would be unable to work in future; the plaintiff also did not submit on this head.

p. 7

Costs

Costs of the suit awarded to the plaintiff

Quotable passages

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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 summary, I hold that the plaintifi has proven his case on a balance of probabilities as against the defendants.
p. 8Disposition - proof of case
General damages for pain, sufiering and loss of amenities...........Ksh. 1,200,000/= Special damages…………………………… sh. 91,500/= Total………………… ….Ksh. 1,291,500/= Less 15% contribution………………………………… Ksh. 193,725/= Balance due to the plaintifi……………………… Ksh. 1,097,775/=
p. 2Final awards
Consequently, the prayer for damages for diminished earning capacity is dismissed.
p. 7Refusal of diminished earning capacity claim
interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full and on special damages, from the date of filing suit to the date of judgment/decree.
p. 9Interest on damages
It is trite law that special damages must be specifically pleaded and strictly proved.
p. 6Special damages
A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards.
p. 4Principles for assessment of quantum

Issues in the judgment

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minor

The judgment states 'the plaintifi has proven his case' although the plaintiff is female (EWM, a minor girl), a gender inconsistency in the judgment.

minor

Inconsistency in the special damages computation: the judgment awards Ksh. 91,500/=, yet proved medical expenses of Ksh. 85,500/= plus two medical reports at Ksh. 3,000/= each would total Ksh. 91,500/=, while the pleaded total was Ksh. 92,600/= with medical expenses pleaded at Ksh. 86,600/=; the unexplained Ksh. 1,100/= difference is not reconciled.

minor

The suit was filed on 8/6/2022 and the accident date appears as 26/8/2021, yet one medical report (Dr. Jacks Nthanga) is said to have examined the plaintiff on 26/11/2021 while the plaint lists injuries; the report date is internally consistent, but the judgment also describes Kiliungu v Kananga and Kyoga Hauliers as appeals while this is a first-instance suit - a descriptive inconsistency in how comparators were presented.

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, "EWM (Minor Suing through Next Friend MKW) v Sammy & 2 others (Civil Case E078 of 2022) [2025] KEMC 258 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/258/eng@2025-10-08

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