Barasa v Wamalwa (Civil Case E261 of 2025) [2026] KEMC 560 (KLR)

PW1 gave direct evidence that the motor vehicle, coming from the opposite direction at speed, encroached into his lane and that his attempt to swerve could not avert the collision. PW2, the investigating officer, visited the scene on the day of the accident and corroborated PW1. The court found PW2 credible on observing his demeanour, rejected the challenge to his status as investigating officer (the police abstract named him), and held that although sketch maps and photographs would have been desirable, the direct testimony was sufficiently corroborated.

A purposive reading of the Amended Plaint showed the Plaintiff had given the Defendant sufficient notice that he was claiming the monthly income of Kshs. 15,000/= lost due to the amputation, pleaded and corroborated by evidence. Invoking equity, which the court held Article 10 of the Constitution elevates to a constitutional imperative, the court refused to deny the lawful claim merely because counsel mischaracterised it. With the Plaintiff aged 59 and a life expectancy of about 64 for Kenyan males, a multiplier of four years was adopted for the vicissitudes of life.

Guided by the principle of comparable injuries attracting comparable awards, the court reviewed awards for traumatic leg amputations, including Kshs. 2,100,000/= upheld by the Court of Appeal for amputation above the knee and Kshs. 2,000,000/= for an amputation with 40% permanent incapacity. It rejected the Plaintiff's reliance on an unrelated multiple-fractures case and the Defendant's outdated 2014-2017 awards of Kshs. 800,000/- to 1,300,000/-, which failed to account for inflation. Following C M (supra), it made an award of Kshs. 2,000,000/=.

There was no dispute the Plaintiff required a prosthesis for mobility, and Dr. Ekesa's report placed the cost between Kshs. 50,000/= and Kshs. 500,000/= depending on type and functionality. Since Dr. Ekesa did not testify, the court was left at sea on the exact sum. Considering the totality of the circumstances, including that temporary prostheses require replacement and are costly in the long run, a global award of Kshs. 200,000/= was appropriate.

Dr. Ekesa's receipts proved Kshs. 8,000/= and the NTSA receipt Kshs. 550/=. The Kshs. 39,175/= invoice from Bungoma County Referral Hospital was a proforma-type invoice not endorsed 'paid' and unaccompanied by a receipt; following the Total Kenya Ltd/Great Lakes Transport line of authority, it could not prove expenditure. Witness expenses were held to be costs of the suit, assessable at the costs stage, not special damages.