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MagistratePartially Allowednot_stated_in_judgment· [2025] KEMC 357 (KLR)

Ondiek v Macharia (Civil Suit E1202 of 2021) [2025] KEMC 357 (KLR)

Chief Magistrate's Court (Magistrates' Court), Nakuru
20 November 2025
2,347 words in judgment
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The bottom line

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A Nakuru court awarded a pedestrian Kshs. 510,800 after the driver skipped the hearing, but only damages backed by receipts or clear medical evidence survived.

What this practically means

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Executive summary

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This is a first-instance negligence suit arising from a road traffic accident on 11 January 2021 in which the plaintiff, a pedestrian walking along Kenyatta Avenue near Total petrol station in Nakuru, was struck by the defendant's motor vehicle KBW 524X, sustaining ankle injuries. The plaintiff sought general damages, special damages of Kshs. 11,100/-, costs and interest. On the hearing date the defendant did not appear, and the court proceeded ex parte under Order 12 rule 2(a) of the Civil Procedure Rules, 2010, noting the hearing date had been taken in the presence of both parties so no service was needed. The plaintiff testified and adopted his written statement, producing documents including a radiological report. The defendant never filed submissions despite several adjournments. The court framed three issues: liability, quantum, and costs. Relying on the settled burden of proof principles in the Evidence Act (Sections 107, 108, 109 and 112) and authorities including Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that the standard of proof on a balance of probabilities does not lower in the defendant's absence, but found the plaintiff's evidence uncontroverted and the defence to be mere unsubstantiated allegations, and held the defendant 100% liable. On quantum, only the radiological report clearly proved injury, establishing severe lateral soft tissue injuries and torn ligaments to the right ankle; no fracture was proved. The court awarded Kshs. 500,000/- in general damages and, applying the rule that special damages must be strictly proved, awarded only Kshs. 10,800/- of the Kshs. 11,100/- pleaded. Judgment was entered for the plaintiff at Kshs. 510,800/- plus costs and interest, with 30 days' stay of execution granted at the mention.

Key legal issues

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01

Whether the defendant was liable for the accident

Holding

Defendant found 100% liable; the plaintiff's uncontroverted evidence established negligence

Reasoning

The plaintiff testified that he was walking off the road along Kenyatta Avenue when the defendant's vehicle hit him. The defence called no evidence to controvert this version, so the assertions in the defence remained mere allegations. The court applied the principle that once the plaintiff raises a prima facie inference of negligence, the claim succeeds unless the defendant provides an adequate answer. The court held the plaintiff's case unchallenged and found the defendant wholly liable.

p. 4
02

What injuries were proved and the quantum of general damages

Holding

Only severe lateral soft tissue injuries to the right ankle were proved; general damages of Kshs. 500,000/- awarded

Reasoning

The court scrutinised the medical evidence notwithstanding the ex parte posture. Only the radiological report (PEXH No. 9) clearly proved injury, confirming torn lateral ligaments/soft tissue injuries; the other medical report was unclear and the P3 form incomplete, and no fracture was proved. Applying the principle that comparable injuries attract comparable awards and that damages should compensate, not enrich, the court found Kshs. 500,000/- fair for the pain and suffering from torn ligaments.

p. 4
03

Whether special damages of Kshs. 11,100/- as pleaded were proved

Holding

Only Kshs. 10,800/- strictly proved and awarded

Reasoning

Special damages must be specifically pleaded and strictly proved. The plaintiff produced a receipt for Kshs. 5,000/- for the medical report and Kshs. 5,800/- in medical expenses, totalling Kshs. 10,800/-. The court awarded only the strictly proved sum, refusing the unproved balance of the pleaded figure.

p. 5

Legal principles established

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  • The burden of proof in negligence actions remains on the plaintiff and the standard of proof does not lower even where the defendant does not appear or adduce evidence; formal proof requires the court to examine the plaintiff's evidence to satisfy itself the claim is proved.
  • A defence not substantiated by evidence remains mere allegations.
  • Special damages must be specifically pleaded and strictly proved.
  • Comparable injuries should attract comparable awards in general damages.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant at Kshs. 510,800/- (general damages of Kshs. 500,000/- and special damages of Kshs. 10,800/-)
  2. 2.Costs of the suit awarded to the plaintiff
  3. 3.Interest on the judgment sum
  4. 4.30 days stay of execution granted
  5. 5.Plaintiff's counsel to be supplied with a certified copy of the judgment upon payment of the requisite fee

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12, rule 2(a)
  • Evidence Act, Cap 80 Laws of KenyaSection 107
  • Evidence Act, Cap 80 Laws of KenyaSection 108
  • Evidence Act, Cap 80 Laws of KenyaSection 109
  • Evidence Act, Cap 80 Laws of KenyaSection 112

Cases cited (8)

  • Nandwa v Kenya Kazi Ltd
    [1988] KLR 488
  • Regina Wangechi v Eldoret Express Co. Ltd
    [2008] eKLR
  • Kerai Ghanshyam v James Wambua Muendo
    [2021] eKLR
  • Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Janet Kaphiphe Ouma & Another –vs- Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007
    null
  • Edward Muriga through Stanley Muriga –vs- Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Odinga Jacktone Ouma V Moureen Achieng Odera
    [2016] eKLR
  • Boniface Waiti & Another –vs- Michael Kariuki Kamau
    [2007] eKLR
Jurisdiction invoked
Original civil suit for negligence under tort law; procedure governed by the Civil Procedure Rules, 2010 (Order 12 rule 2(a)) and the Evidence Act, Cap 80

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, "Ondiek v Macharia (Civil Suit E1202 of 2021) [2025] KEMC 357 (KLR)", Case Analysis (2025). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/357/eng@2025-11-20

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