Kiio v Kithome & another (Civil Case E205 of 2022) [2025] KEMC 332 (KLR)
The bottom line
#A Kenyan court awarded a motorcyclist Ksh. 973,976 after a crash, but cut his lost-earnings claim because he couldn't fully prove it.
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 sustained injuries and suffered loss as a result of the accident
- 2.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
- 3.Who should bear the costs of this suit
Key legal issues
#Whether the plaintiff proved that he sustained injuries as a result of the accident
The medical evidence proved the plaintiff sustained a fracture of the right tibia and multiple bruises, and given the consent on liability he was entitled to damages against the defendants
Two medical reports established the injuries. There was no contrary evidence. The injuries were classified as grievous harm but there was no permanent incapacity. Following the consent apportioning liability at 20% against the plaintiff and 80% against the defendants, damages followed as against the defendants.
Quantum of general damages for pain, suffering and loss of amenities
An award of Ksh. 600,000/= sufficed, comparable injuries receiving similar awards with regard to inflation
The court applied the established principles: damages compensate rather than enrich; awards must be commensurate with injuries; decided cases are guides; inflation must be considered; awards must not be inordinately high or low. Comparing the authorities cited (involving fractures of the tibia) and factoring the age of some awards and inflation, Ksh. 600,000/= was appropriate.
Whether the plaintiff proved loss of earnings as special damages
Loss of earnings was proved on a balance of probabilities; the multiplicand of Ksh. 53,802/= from the pay slips was adopted with a multiplier of 10 months, yielding Ksh. 538,020/=
The plaintiff produced pay slips showing he was employed as a Foreman earning a net salary of Ksh. 53,802/=. Although a sick sheet would have been desirable, there was no rebuttal of the claim that he could not work for 10 months. He had a plaster for three or four months and underwent physiotherapy for six months.
The applicable period for interest on general and special damages
Interest on general damages accrues at court rates from the date of judgment until payment in full; interest on special damages runs from the date of filing suit to the date of judgment
Section 26 of the Civil Procedure Act confers discretion to award interest. Relying on Jane Wanjiku Wambui v Anthony Kigamba Hato and Omunyokol Akol Johnson v Attorney General, the court held that interest on special damages runs from the date of loss/filing of suit while interest on general damages runs from judgment, since general damages are only ascertained at judgment.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved, though proof is on a balance of probabilities
- Loss of earnings is a special damage and must be pleaded and proved
- Assessment of general damages is a judicial discretionary exercise guided by comparable awards
- Interest on special damages runs from the date of loss/filing of suit, and interest on general damages from the date of judgment
Court orders
#- 1.General damages for pain, suffering and loss of amenities of Ksh. 600,000/=
- 2.Special damages of Ksh. 617,470/= (including loss of earnings of Ksh. 538,020/= computed as 53,802 x 10 months)
- 3.Total award of Ksh. 1,217,470/= less 20% plaintiff's contribution, leaving Ksh. 973,976/= due to the plaintiff
- 4.Interest on general damages at court rates from the date of judgment/decree until payment in full
- 5.Interest on special damages from the date of filing suit to the date of judgment/decree
- 6.Costs of the suit to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil claim for personal injuries arising from a road traffic accident; interest awarded under section 26 of the Civil Procedure Act
Relief refused
#Special damages as pleaded at Ksh. 787,010/= (full amount including pleaded loss of earnings of Ksh. 707,560/=)
Loss of earnings, though pleaded, was not strictly proved; the court adopted the defence multiplicand and a 10-month multiplier, awarding Ksh. 617,470/= in total special damages instead of the pleaded Ksh. 787,010/=
Costs
Costs of the suit awarded to the plaintiff
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 summary, I hold that the plaintifi has proven his case on a balance of probabilities as against the defendants.
General damages for pain, sufiering and loss of amenities...........Ksh. 600,000/= 2. Special damages…………………………………………………………………….….….Ksh. 617,470/= 3. Total……………………………………………………………………….Ksh. 1,217,470/= 4. Less 20% contribution…………………………………………………………….……Ksh. 243,494/= 5. Balance due to the plaintifi……………………………………………………….…Ksh. 973,976/=
The plaintifi is also awarded interest on the damages as well as costs of the suit.
It is trite law that special damages must be specifically pleaded and strictly proved.
Given the nature of the injuries sustained by the plaintifi herein, and the age of some of the awards in the above authorities coupled with the vagaries of infiation, I find that an award of Ksh. 600,000/= in general damages would sufice.
Issues in the judgment
#The plaint lists the suit as filed on 23/12/2022 with a plaint dated 19/12/2022, while the judgment is dated 23 December 2025; the case number of the suit is not stated anywhere in the judgment
The plaintiff's pleaded total special damages of Ksh. 787,010/= in the prayer does not match the itemised schedule in submissions, which totals Ksh. 653,620/= (with loss of earnings at Ksh. 574,170/=) or the pleaded schedule at Ksh. 787,010/= with loss of earnings at Ksh. 707,560/=
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiio v Kithome & another (Civil Case E205 of 2022) [2025] KEMC 332 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/332/eng@2025-12-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.