RJO (A Minor Suing through his Mother and Next Friend RW) v Ngenya (Civil Case E1579 of 2025) [2026] KEMC 483 (KLR)

5. The Plaintifi also relied on the statement of Emmanuel Odhiambo Imbaya, an eye witness who testified that he witnessed the accident and blamed the driver for driving at excessive speed, knocking the child and leaving the scene without exercising due care. 6. The medical report by Dr. Ajoni Adede confirms that the Plaintifi sustained: Left ankle mortise fracture; and blunt object injury to the left ankle. The Plaintifi was treated conservatively with plaster cast and medication. Upon examination about two months later, the fracture had healed satisfactorily. The doctor concluded that there was no permanent disability and the injuries were expected to heal completely. The X-ray report similarly confirmed a stable fracture involving the ankle mortise, without subluxation or dislocation, with associated soft tissue swelling. Special damages pleaded comprised of Kshs.3,750. Issues for Determination 7. The issues arising for determination are: i. Whether the Plaintifi proved liability. ii. Whether the Plaintifi is entitled to damages. iii. Who should bear costs. Liability 8. Although the matter proceeded by formal proof, the Plaintifi still bore the burden of establishing his claim on a balance of probabilities.The Plaintifi's evidence remained uncontroverted. The Defendant neither filed a defence nor tendered evidence challenging the Plaintifi's account of the accident. 9. The evidence of the Plaintifi, corroborated by the eye witness, established that the Defendant's motor vehicle knocked down the minor while walking along the roadside and that the accident resulted from excessive speed and failure to keep a proper lookout. 10. Further, interlocutory judgment had already been entered against the Defendant. It is settled law that once interlocutory judgment is regularly entered, liability becomes settled and what remains for determination during formal proof is the assessment of damages. 11. The Court of Appeal in Felix Mathenge v Kenya Power & Lighting Company Ltd, Civil Appeal No. 215 of 2002, held that once interlocutory judgment has been regularly entered, final judgment with regard to liability is substantially concluded, leaving only the assessment of damages. The same principle was reiterated in Paul Muyoro t/a Spotted Zebra v Bulent Gulbahar & Another, where the Court afirmed that interlocutory judgment conclusively determines liability. Accordingly, I find the Defendant 100% liable for the accident. Quantum of Damages 12. The principles governing assessment of general damages are well settled. Comparable injuries should attract comparable awards, while due regard must be had to infiation and the unique circumstances of each case. 13. The Plaintifi proposed an award of Kshs.500,000 relying principally on Absalom Dova Lumbasi v Tabro Transporters Ltd and Musendu Kasoo Muindu v Charles Mbuthi Kinyanjui & Another [2024] KEHC 1794 (KLR). https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/483/eng@2026-07-30 2

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Comparison with Authorities 14. In Musendu Kasoo Muindu v Charles Mbuthi Kinyanjui & Another [2024] KEHC 1794 (KLR), the claimant sustained significantly more severe injuries, including: Loss of consciousness; Multiple displaced fractures involving the skull and facial bones; Cerebral oedema; Facial lacerations; Persistent headaches and neurological complaints. The High Court awarded Kshs.750,000 as general damages after considering the seriousness of those injuries. Those injuries are plainly far more severe than those sustained by the Plaintifi herein, whose injuries were confined to: a left ankle mortise fracture; blunt injury to the left ankle; and complete recovery without permanent disability. 15. Similarly, Absalom Dova Lumbasi v Tabro Transporters Ltd involved multiple injuries including blunt trauma to the chest, back, spinal column, swelling of the left leg and fractures of the left tibia and fibula. Those injuries were appreciably more extensive than the injuries before this Court. 16. The present Plaintifi sustained a single stable ankle fracture accompanied by soft tissue injuries. The medical evidence is unanimous that the fracture united satisfactorily and that there would be no permanent incapacity or disability. This considerably distinguishes the Plaintifi's case from the authorities cited. 17. Having considered the medical evidence, the comparable authorities and the passage of time, I am persuaded that the proposed award of Kshs.500,000 is on the higher side. 18. Doing the best I can in achieving consistency with comparable awards while accounting for infiation, I assess general damages at Kshs.400,00 which, in my view, fairly compensates the Plaintifi for pain, sufiering and loss of amenities. Special Damages 19. The Plaintifi pleaded and produced receipts proving: Medical Report.............................Kshs.2,000 Treatment expenses.......................Kshs.1,750 Total.............................................Kshs.3,750 20. The same is awarded. Disposition 21. Judgment is therefore entered for the Plaintifi against the Defendant as follows: a. General damages for pain, sufiering and loss of amenities........Kshs.400,000 b. Special damages...........................................................................Kshs.3,750 Total Award...............................................................................................Kshs.403,750 c. Costs of the suit. d. Interest on special damages at court rates from the date of filing suit until payment in full. e. Interest on general damages at court rates from the date of this Judgment until payment in full. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/483/eng@2026-07-30 3

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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/2026/483/eng@2026-07-30 4

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