AHJ (Minor) Suing Through Her Father and Next Friend, HJM v Mamuni & another (Civil Case E1677 of 2025) [2026] KEMC 474 (KLR)

The Plaintifi ’s Evidence 5. PW1 testified that on 27th November 2024, he was travelling together with the minor Plaintifi as passengers aboard a three-wheeler motor cycle registration number KTWD 454D Piaggio, from Gasi towards Likoni along the Ukunda–Likoni Road. Upon reaching the Shika Adabu area, the rider of the three-wheeler lost control of it, veered ofi the road and collided with an electric pole. As a result of the accident, the minor Plaintifi sustained injuries and was taken to Likoni Sub-County Hospital. She was later referred to Coast General Teaching and Referral Hospital for further investigations and treatment. 6. PW1 blamed the rider of the three-wheeler for driving without due care and attention. He further testified that police oficers from Likoni Trafic Police Station visited the scene and investigated the accident. 7. According to PW1, the minor Plaintifi sustained: Bruises or abrasion on the left palm; and blunt object injury to the left palm. PW1 produced, among other documents, the police abstract, P3 Form, treatment records, medical report, receipts and documents relating to the search of the subject motor vehicle. His written statement records that police investigations blamed the rider of KTWD 454D for causing the accident. Issues for Determination 8. Having considered the pleadings, the evidence and the Plaintifi’s written submissions, the issues arising for determination are: i. Whether the Plaintifi proved negligence against the Defendants; ii. Whether the Defendants are liable for the accident; iii. What award should be made as general damages; iv. Whether the special damages claimed were proved; and v. Who should bear the costs of the suit. Liability 9. Although the matter proceeded by way of formal proof following the Defendants’ failure to defend the suit, the entry of interlocutory judgment did not, by itself, relieve the Plaintifi of the obligation to prove her claim on a balance of probabilities. 10. The Plaintifi was still required to establish that the accident occurred, that it was caused by negligence attributable to the Defendants and that she sufiered injury and loss as a result. 11. PW1 testified that the Plaintifi was a lawful passenger aboard motor tricycle registration number KTWD 454D when its rider lost control, left the road and collided with an electric pole. 12. The Plaintifi pleaded that the 1st Defendant was the registered owner of the vehicle while the 2nd Defendant was its insured and/or beneficial owner. She further pleaded that the rider was the Defendants’ authorised driver, servant and/or agent. 13. The manner in which the accident occurred was supported by PW1’s evidence and the police documents produced before the Court. There was no evidence that another vehicle was involved or that the accident was caused by an external event beyond the rider’s control. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/474/eng@2026-07-30 2

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14. A properly driven and adequately controlled vehicle does not, in the ordinary course of events, leave the road and collide with an electric pole. The rider was under a duty to maintain proper control of the vehicle, keep a proper lookout and regulate his speed according to the prevailing road conditions. 15. The loss of control and collision with a stationary electric pole are consistent with the pleaded allegations that the rider failed to exercise reasonable care and skill in the management of the vehicle. 16. The Plaintifi also pleaded reliance on the doctrine of res ipsa loquitur. In the absence of any explanation from the Defendants as to how a vehicle under the control of their rider left the road and struck an electric pole, the circumstances permit an inference of negligence. 17. It is important, however, that the Plaintifi was a minor passenger. She had no control over the manner in which the vehicle was being driven, and no evidence of contributory negligence was adduced against her. 18. The Defendants neither filed a defence nor called evidence to rebut the Plaintifi’s account. While uncontroverted evidence is not automatically conclusive, I find that PW1’s testimony was coherent, consistent with the contemporaneous documents and suficient to discharge the Plaintifi’s burden of proof. I therefore find the Defendants jointly and severally liable at 100% for the accident. General Damages Injuries established by the medical evidence 19. The plaint and PW1’s witness statement described the minor Plaintifi’s injuries as: Bruises or abrasion on the left palm; and blunt object injury to the left palm. The P3 Form recorded bruising and tenderness involving the left palm and classified the degree of injury as harm. The medical report prepared by Dr. Darius Wambua Kiema on 3rd October 2025 similarly recorded: Bruise or abrasion on the left palm; and blunt trauma to the left palm. 20. The Plaintifi was examined approximately ten months after the accident. The doctor found no residual abnormality of significance and expressed the opinion that the injuries were soft-tissue injuries expected to heal without permanent disability or incapacity. 21. I have noted that the introductory portion of the Plaintifi’s written submissions referred to blunt injuries to the chest, knee and left leg. Those injuries do not correspond with the injuries pleaded, narrated by PW1, recorded in the P3 Form or confirmed by the medical report. 22. Submissions are not evidence and cannot introduce injuries that were neither pleaded nor medically proved. The Court must therefore assess damages only on the basis of the two injuries to the left palm established by the evidence. Principles governing assessment of damages 23. General damages are intended to provide reasonable compensation for the pain, sufiering and loss of amenities occasioned by the injuries. Comparable injuries should, as far as reasonably possible, attract comparable awards, while taking account of the passage of time, infiation and the particular circumstances of each claimant. 24. The assessment is not a mathematical exercise. The Court must consider: The nature and extent of the injuries; The duration and intensity of pain and treatment; Whether the claimant was admitted to hospital; The period of recovery; The presence or absence of permanent incapacity; and awards made in reasonably comparable cases. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/474/eng@2026-07-30 3

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Authorities relied upon by the Plaintifi 25. The Plaintifi proposed an award of KShs. 400,000 and relied on: a. Karau & Another v Mutemi, the claimant sustained: A mild head injury; Swelling and pain on the right arm; Cuts on the left arm; A degloving injury to the left hand; and permanent incapacity assessed at 10%. The claimant had also lost consciousness, was admitted to hospital and required physiotherapy to restore function in his hand. The trial court’s award of KShs. 300,000 was upheld on appeal. Those injuries were materially more severe than the injuries sufiered by the minor Plaintifi herein. In particular: The claimant in that authority sustained injuries to several parts of his body; He sustained a degloving injury, which is more serious than an abrasion; He sufiered a head injury and loss of consciousness; He was admitted to hospital;He required further physiotherapy; and he was assessed as having 10% permanent incapacity. In contrast, the present Plaintifi sustained a localised abrasion and blunt trauma confined to one palm, with no fracture, degloving injury, neurological injury or permanent incapacity. The authority therefore does not support an award of KShs. 400,000 for the injuries proved in this suit. b. East Africa Institute of Certified Studies & Another v Lewis- the claimant sustained: Bruises and abrasions to the right leg; Bruises and abrasions to the left leg; Blunt- object trauma; Soft-tissue injury to the pelvis; Lower back pain; and occasional headaches.The injuries were expected to heal without permanent incapacity. The trial court awarded KShs. 300,000, and the High Court declined to interfere with that award, although it observed that the figure might appear slightly high. The injuries in that case were also more extensive than those sufiered by the Plaintifi herein. They involved both legs, the pelvis and lower back, together with headaches. The present Plaintifi’s injuries were confined to the left palm. It must further be appreciated that the High Court in that case was exercising appellate jurisdiction. The question was not whether the appellate court would itself have awarded KShs. 300,000, but whether the trial court’s award was so excessive as to justify interference. The refusal to interfere should therefore not be treated as establishing KShs. 300,000 as the standard award for every softtissue injury. Appropriate award 26. The minor Plaintifi undoubtedly experienced pain and required treatment and further investigations. Her age is also a relevant circumstance because the experience of an accident and medical treatment may be particularly distressing to a young child. 27. Nevertheless, the objective medical evidence shows that: The injuries were limited to the left palm; They were soft-tissue injuries; There was no fracture; There was no surgery; There was no permanent incapacity; There was no residual functional impairment; and the injuries were expected to heal completely. 28. An award of KShs. 400,000 would therefore be disproportionate to the injuries proved and would amount to treating the Plaintifi’s minor soft-tissue injuries as equivalent to substantially more extensive injuries accompanied by degloving and permanent incapacity. 29. Taking into account the nature of the injuries, the Plaintifi’s age, the treatment undertaken, the absence of permanent disability, the authorities cited and the passage of time, I find an award of KShs. 150,000 to be fair and reasonable compensation for pain, sufiering and loss of amenities. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/474/eng@2026-07-30 4

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Special Damages 30. The Plaintifi pleaded special damages as follows: Particular Amount P3 Form KShs. 2,000 Medical report KShs. 2,000 Hospital treatment expenses KShs. 4,200 Motor vehicle search KShs. 550 Total KShs. 8,750 31. Special damages must not only be specifically pleaded but must also be strictly proved. The medical report receipt supports payment of KShs. 2,000, while the NTSA receipt supports payment of KShs. 550 for the motor vehicle search. The hospital investigation and treatment document contains handwritten charges whose total corresponds with the pleaded treatment expenses of KShs. 4,200. Those expenses were related to the investigations undertaken following the accident. 32. The claim of KShs. 2,000 for completion of the P3 Form presents a dificulty. Although PW1 stated that he incurred that amount, the P3 Form itself expressly states that the form is issued free of charge. No distinct receipt clearly establishing payment of KShs. 2,000 for the P3 Form was placed before the Court. Oral evidence that the amount was paid cannot, without supporting proof, satisfy the strict standard applicable to special damages, particularly where the face of the document indicates that it is free of charge. 33. I therefore award the following special damages: Particular Award Medical report KShs. 2,000 Hospital treatment and investigations KShs. 4,200 Motor vehicle search KShs. 550 Total KShs. 6,750 34. The claim of KShs. 2,000 in respect of the P3 Form is declined for want of strict proof. Disposition 35. Judgment is consequently entered in favour of the minor Plaintifi against the Defendants, jointly and severally, as follows: a. General damages for pain, sufiering and loss of amenities KShs. 150,000 b. Special damages KShs. 6,750 Total award KShs. 156,750 c. Costs of the suit; d. Interest on general damages at court rates from the date of this judgment until payment in full; and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/474/eng@2026-07-30 5

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e. Interest on special damages at court rates from the date of filing suit until payment in full. Orders accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026. ............................................ EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/474/eng@2026-07-30 6

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