ESR (A Minor Suing Through Her Father and Next Friend Rashid Matsitsa Kutwenya) v Kaloki (Civil Case E908 of 2025) [2026] KEMC 171 (KLR)
The bottom line
#A Mombasa court held a driver 90% liable for hitting a six-year-old child, awarding the family over Kshs. 513,000 after deductions.
What this practically means
#Executive summary
#Key legal issues
#Liability of the Defendants for the road traffic accident
Defendants 90% liable; a motorist approaching an area where school-going children are present must exercise a high degree of vigilance, and the occurrence of impact between a moving vehicle and a six-year-old raises a duty on the driver to explain the precautions taken
The Plaintiff's father did not witness the accident and the police officer did not investigate it; the Police Abstract did not blame the driver. No sketch map, inspection report, photographs or independent witness supported the Defendants' rear-impact assertion. Impact with a six-year-old child required the driver to explain precautions taken, and DW1's explanation was unsupported. Negligence established on a balance of probabilities, tempered by a modest 10% contributory negligence.
Contributory negligence of a child of tender years
A modest 10% contributory negligence apportioned to the Plaintiff despite her young age
The Court took judicial notice that children of tender years cannot be judged by adult standards of care; a six-year-old lacks maturity, judgment and appreciation of risk. However, the possibility that the child moved onto the road unexpectedly could not be ignored, justifying a modest degree of contributory negligence.
Quantum of general damages
Kshs. 550,000/= awarded for pain, suffering and loss of amenities
The Court compared the three authorities cited by the parties, noting the Plaintiff's injuries were less severe than in Nkoroi Bundi Kelvin and Daniel Otieno Owino but somewhat more serious than in Kiama v Mutiso. No permanent incapacity was proved as Dr. Sheth's later specialist examination showed full recovery. Award factored the Plaintiff's age, scarring, treatment period, complete recovery and inflationary trends.
Proof of special damages
Kshs. 20,663/= of the Kshs. 21,663/= pleaded proved and awarded
Special damages must be specifically pleaded and strictly proved. The receipts and documents produced proved the medical report (Kshs. 3,000), medical expenses (Kshs. 15,113), P3 Form (Kshs. 2,000) and official search (Kshs. 550), totaling Kshs. 20,663/=.
Legal principles established
#- A Police Abstract alone is not conclusive proof of negligence; it merely confirms that an accident was reported.
- Liability in civil cases is determined on a balance of probabilities and not beyond reasonable doubt.
- Children of tender years cannot ordinarily be judged by the same standard of care applicable to adults.
- Special damages must be specifically pleaded and strictly proved.
Court orders
#- 1.Liability apportioned: Defendants 90%, Plaintiff 10%
- 2.General damages of Kshs. 550,000/=
- 3.Special damages of Kshs. 20,663/=
- 4.Net award after contribution of Kshs. 513,600/= entered against the Defendants jointly and severally
- 5.Special damages to attract interest from the date of filing suit
- 6.General damages to attract interest from the date of judgment
- 7.Plaintiff to have costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court in a negligence claim arising from a road traffic accident
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ESR (A Minor Suing Through Her Father and Next Friend Rashid Matsitsa Kutwenya) v Kaloki (Civil Case E908 of 2025) [2026] KEMC 171 (KLR)", Case Analysis (2026). Civil Case No E908 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/171/eng@2026-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.