Ondiek v Macharia (Civil Suit E1202 of 2021) [2025] KEMC 357 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant was liable for the accident
Defendant found 100% liable; the plaintiff's uncontroverted evidence established negligence
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.
What injuries were proved and the quantum of general damages
Only severe lateral soft tissue injuries to the right ankle were proved; general damages of Kshs. 500,000/- awarded
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.
Whether special damages of Kshs. 11,100/- as pleaded were proved
Only Kshs. 10,800/- strictly proved and awarded
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.
Legal principles established
#- 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
#- 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.Costs of the suit awarded to the plaintiff
- 3.Interest on the judgment sum
- 4.30 days stay of execution granted
- 5.Plaintiff's counsel to be supplied with a certified copy of the judgment upon payment of the requisite fee
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.