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MagistrateAllowedMakindu SPMC Civil Case No E093 of 2021

Mulandi v Ndavi & another (Civil Case E093 of 2021) [2026] KEMC 396 (KLR)

Chief Magistrate's Court (Makindu)
28 July 2026
3,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Makindu court awarded a road accident passenger Ksh. 259,220 after the defendants failed to defend the case, making liability automatic.

What this practically means

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Executive summary

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This undefended suit arose from a road traffic accident in which the plaintiff, a passenger aboard motor vehicle KCE 203B, was injured when the vehicle was allegedly driven recklessly along the Emali-Wote road, veered off the road and overturned. The plaintiff sued the defendants as registered and/or beneficial owners, pleaded the doctrine of res ipsa loquitur and particulars of negligence, and sought general damages, special damages of Ksh. 9,220/=, costs and interest. Interlocutory judgment was entered on 23/9/2021 after the defendants failed to enter appearance; an application to set it aside was allowed conditionally on payment of Ksh. 30,000/= thrown-away costs, but the defendants never paid, so the interlocutory judgment reverted and the matter proceeded undefended. The court framed five issues covering liability, vicarious liability, injuries, quantum and costs. Applying authority that liability becomes a foregone conclusion upon entry of interlocutory judgment, the court found the driver 100% liable and, applying the respondeat superior doctrine and the unrebutted agency presumption (supported by the police abstract showing the 2nd defendant was the driver), held the defendants 100% liable, with the 2nd defendant 100% vicariously liable. On quantum, guided by West (H) & Sons v Shepherd, Kim Pho Choo and comparable soft-tissue injury authorities adjusted for inflation, the court awarded general damages of Ksh. 250,000/=. Special damages of Ksh. 9,220/= were awarded as specifically pleaded and strictly proved. Interest was awarded on general damages from the date of judgment and on special damages from the date of filing suit. Judgment was entered jointly and severally for Ksh. 259,220/= with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Who was to blame for the accident?
  2. 2.Whether the defendants are vicariously liable for the accident
  3. 3.Whether the plaintiff sustained injuries and suffered loss as a result of the accident
  4. 4.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
  5. 5.Who should bear the costs of this suit?

Key legal issues

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01

Effect of interlocutory judgment on liability

Holding

Liability was settled at 100% against the defendants upon entry of interlocutory judgment; the court's role was confined to assessment of damages.

Reasoning

Interlocutory judgment had been entered on 23/9/2021 after the defendants failed to file a defence. Although it was set aside on condition that thrown-away costs be paid, the defendants never paid, so the judgment reverted and the matter proceeded as an undefended cause. Relying on settled authority, the court held liability to be a foregone conclusion.

p. 4
02

Vicarious liability of the defendants as owners

Holding

The 2nd defendant was 100% vicariously liable as driver; the defendants were jointly liable as owners, the agency presumption being unrebutted.

Reasoning

The court applied the respondeat superior doctrine and the rebuttable presumption that a driver is the owner's agent (Kansa v Solanki via Kenya Bus Services v Humphrey; Morgan v Launchbury; Kaburu Okelo). The police abstract indicated the 2nd defendant was the driver, and there was no contrary evidence or suggestion the driver was on a frolic of his own.

p. 6
03

Quantum of general damages

Holding

General damages of Ksh. 250,000/= awarded for soft-tissue injuries (chest, scapula, elbow), guided by comparable authorities adjusted for inflation.

Reasoning

The court applied the conventional principles from West (H) & Sons v Shepherd and Kim Pho Choo: compensation, not enrichment, moderation, and comparable injuries attracting comparable awards. The plaintiff's soft-tissue injuries were comparable to Ochola v Owuor and Pascal v Ouko (both reduced on appeal to Ksh. 150,000/=); adjusting for inflation, Ksh. 250,000/= was found appropriate.

p. 8
04

Special damages

Holding

Special damages of Ksh. 9,220/= awarded as specifically pleaded and strictly proved.

Reasoning

The plaintiff pleaded motor vehicle search (Ksh. 550/=), medical report (Ksh. 5,000/=) and medical and related expenses (Ksh. 3,670/=). Applying Nizar Virani and Ouma v Nairobi City Council, the court found the pleading and proof sufficient and awarded the pleaded sum in full, there being no contrary evidence.

p. 9
05

Interest

Holding

Interest on general damages to run from the date of judgment; interest on special damages from the date of filing suit.

Reasoning

Guided by section 26 of the Civil Procedure Act, Jane Wanjiku Wambui v Anthony Kigamba Hato and Omunyokol Akol Johnson v Attorney General, the court reasoned that general damages are only ascertained upon judgment, whereas special damages are quantified from the date of loss, so the accrual dates differ accordingly.

p. 11

Legal principles established

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  • Once interlocutory judgment has been entered, the question of liability becomes a foregone conclusion and the court's role is only to assess damages.
  • Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as the owner's agent, and the owner may be vicariously liable.
  • Special damages must be specifically pleaded and strictly proved.
  • Interest on special damages runs from the date of loss/filing of suit, while interest on general damages runs from the date of judgment.

Court orders

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  1. 1.Judgment entered for the plaintiff as against the defendants jointly and severally for general damages of Ksh. 250,000/= and special damages of Ksh. 9,220/=, totalling Ksh. 259,220/=
  2. 2.Interest on general damages at court rates from the date of judgment/decree until payment in full
  3. 3.Interest on special damages from the date of filing suit to the date of judgment
  4. 4.Costs of the suit awarded to the plaintiff against the defendants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YS
Y.A. ShikandaSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court under the Civil Procedure Act over claims in tort for a road traffic accident

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, I make the following orders: a) Judgment is hereby entered for the plaintiff as against the defendants jointly and severally for the following awards: i. General damages…………….....................................Ksh. 250,000/= ii. Special damages………………………………….…………..…..Ksh. 9,220/=
p. 9Final orders - judgment and quantum
In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendants.
p. 9Disposition - standard of proof
Consequently, I find the defendants 100% liable, with the 2nd defendant being 100% vicariously liable for the accident.
p. 6Liability and vicarious liability
interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full whereas interest on special damages shall accrue from the date of filing suit to the date of judgment.
p. 11Interest on damages
It is trite law that special damages must be specifically pleaded and strictly proved.
p. 8Special damages - pleading and proof

Issues in the judgment

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minor

The date of the accident is stated inconsistently: the plaint avers the accident occurred on 15/9/2019 but the plaintiff's evidence is recorded as placing it on 15/9/2021.

minor

The judgment is dated 28 July 2026, which postdates the case number year (2021) and other internal dates and may reflect a typographical error in the delivery date.

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, "Mulandi v Ndavi & another (Civil Case E093 of 2021) [2026] KEMC 396 (KLR)", Case Analysis (2026). Makindu SPMC Civil Case No E093 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/396/eng@2026-07-28

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