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MagistratePartially AllowedCivil Case No E908 of 2025· [2026] KEMC 171 (KLR)

ESR (A Minor Suing Through Her Father and Next Friend Rashid Matsitsa Kutwenya) v Kaloki (Civil Case E908 of 2025) [2026] KEMC 171 (KLR)

Magistrates' Court
25 June 2026
1,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Plaintiff, a six-year-old minor suing through her father and next friend Rashid Matsitsa Kutwenya, sued for general damages, special damages of Kshs. 21,663/=, costs and interest arising from a road traffic accident on 15th May 2025 at Ufuta Stage along the Maganda–Miritini Road involving Motor Vehicle Registration Number KDA 955Z. The Defendants denied liability, alleging the child suddenly darted onto the road. On the evidence, the Court held that a Police Abstract is not conclusive proof of negligence, and that the Defendants produced no sketch map, inspection report, photographs or independent witness to support their account. Applying the principle that children of tender years cannot be judged by adult standards of care, and reasoning that impact between a moving vehicle and a six-year-old imposes a duty on the driver to explain the precautions taken, the Court found negligence established on a balance of probabilities but apportioned liability at 90% Defendants and 10% Plaintiff. On quantum, the Court preferred Dr. Sheth's later specialist examination and found no permanent incapacity proved, awarding general damages of Kshs. 550,000/= after comparing three High Court authorities. Special damages of Kshs. 20,663/= were awarded as strictly proved. Judgment was entered jointly and severally against the Defendants for a net award of Kshs. 513,600/=, with interest on special damages from filing and on general damages from judgment, plus costs of the suit to the Plaintiff.

Key legal issues

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01

Liability of the Defendants for the road traffic accident

Holding

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

Reasoning

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.

p. 2
02

Contributory negligence of a child of tender years

Holding

A modest 10% contributory negligence apportioned to the Plaintiff despite her young age

Reasoning

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.

p. 3
03

Quantum of general damages

Holding

Kshs. 550,000/= awarded for pain, suffering and loss of amenities

Reasoning

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.

p. 4
04

Proof of special damages

Holding

Kshs. 20,663/= of the Kshs. 21,663/= pleaded proved and awarded

Reasoning

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/=.

p. 4

Legal principles established

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  • 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

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  1. 1.Liability apportioned: Defendants 90%, Plaintiff 10%
  2. 2.General damages of Kshs. 550,000/=
  3. 3.Special damages of Kshs. 20,663/=
  4. 4.Net award after contribution of Kshs. 513,600/= entered against the Defendants jointly and severally
  5. 5.Special damages to attract interest from the date of filing suit
  6. 6.General damages to attract interest from the date of judgment
  7. 7.Plaintiff to have costs of the suit

Authorities

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Cases cited (4)

  • Rahima Tayab & Others v Anna Mary Kinanu
  • Nkoroi Bundi Kelvin v Wilson Runyambo
    [2023] KEHC 25388 (KLR)
  • Daniel Otieno Owino & Another v Elizabeth Atieno Owuor
    [2020] KEHC 4895 (KLR)
  • Kiama v Mutiso
    [2024] KEHC 5135 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court in a negligence claim arising from a road traffic accident

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, "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.