Ndiema v Kababa t/a Channia Classic (Civil Case 10 of 2018) [2025] KEMC 262 (KLR)
The bottom line
#A Kenyan court awarded a bus passenger Ksh. 7.4 million after a crash caused double leg amputation, but cut claims lacking documentary proof.
What this practically means
#Executive summary
#Key legal issues
#Liability for the road traffic accident
The driver of KBX 019J was 100% liable in negligence and the defendant was 100% vicariously liable
The plaintiff's uncontroverted evidence showed the bus was driven at high speed and rammed the rear of the other vehicle. The doctrine of res ipsa loquitur applied since the defendant adduced no evidence to rebut the inference of negligence. A rebuttable presumption of agency arose because the driver was not shown not to be acting in the course of his employment with the defendant, who never denied the employment relationship in evidence.
Applicability of res ipsa loquitur
The doctrine applied, establishing a prima facie case of negligence unrebutted by any defence evidence
The court reviewed Scott v London and St Katherine Docks Co, Embu Public Roads Services Ltd v Riimi and Henderson v Henry E Jenkins & Sons, concluding that where the accident is of a kind not ordinarily occurring without negligence and the defendant offers no explanation, the inference of negligence stands. The defendant, though alleging the other driver's negligence in the defence, gave no evidence nor instituted third-party proceedings.
General damages quantum for double below-knee amputation
Ksh. 7,000,000/= awarded, adopting the plaintiff's proposed comparable authority and considering inflation
The court applied the principles in West (H) and Sons Ltd v Shepherd and Southern Engineering Co Ltd v Musingi Mutia: awards must be reasonable, moderate and comparable. It considered three comparable amputation cases (Ksh. 6,000,000; Ksh. 3,000,000; Ksh. 5,000,000) and, factoring in the age of the awards, inflation and the long-term effects of double amputation, held the plaintiff's proposed Ksh. 7,000,000 reasonable.
Future medical expenses for artificial limbs
Ksh. 400,000/= awarded for fitting surgery of two prosthetic limbs, guided by the Medical Practitioners and Dentists (Professional Fees) Rules
The cost of artificial limbs not yet procured at filing suit was future medical expense rather than special damages. Future medical treatment is awardable where there is evidence of the need and a reasonable estimate. Dr. Kubasu's estimate of Ksh. 200,000 per limb lacked a basis, so the court turned to the professional fees Rules, which prescribe Ksh. 180,000 minimum and Ksh. 300,000 maximum for prosthesis fitting surgery, adjusted for inflation.
Interest on the award
Interest on general damages from the date of judgment; interest on special damages and future medical expenses from the date of filing suit
Relying on section 26 of the Civil Procedure Act and the Omunyokol Akol Johnson authority, the court held that the award of interest is discretionary, that special damages attract interest from the date of loss and general damages from the date of judgment since general damages are only ascertained at judgment.
Legal principles established
#- The burden of proving negligence rests on the plaintiff even in an undefended suit
- Res ipsa loquitur applies where the defendant gives no explanation and raises a prima facie inference of negligence
- A rebuttable presumption of agency arises where a motor vehicle is driven by a person other than the owner
- Special damages must be specifically pleaded and strictly proved
- Loss of earnings is a special damage requiring pleading and strict proof, while loss of earning capacity falls under general damages
Court orders
#- 1.General damages for pain, suffering and loss of amenities of Ksh. 7,000,000/= against the defendant
- 2.Special damages of Ksh. 2,500/= (medical report)
- 3.Future medical expenses (artificial limbs) of Ksh. 400,000/=
- 4.Total award of Ksh. 7,402,500/= plus interest on general damages at court rates from the date of judgment/decree until payment in full, and on special damages and future medical expenses from the date of filing suit to the date of judgment/decree
- 5.Costs of the suit awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a road traffic negligence claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiema v Kababa t/a Channia Classic (Civil Case 10 of 2018) [2025] KEMC 262 (KLR)", Case Analysis (2025). null (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/262/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.