EMA (Suing as the father and next friend of KN - Minor) v Njoroge & another

5. The Plainti further pleaded the doctrine of res ipsa loquitur. 6. The Plainti claimed general damages for pain, suering and loss of amenities and special damages. 7. Interlocutory Judgment was entered against the 1st Defendant on 24th June 2026. Interlocutory Judgment was subsequently entered against the 2nd Defendant on 12th August 2026. 8. The matter therefore proceeded for Formal Proof hearing. At the hearing, PW1 adopted his Witness Statement dated 26th February 2026 and produced the Plainti's documentary evidence, marked as (P Exhibits 1–10). 9. The Plainti was directed to le Written Submissions by 26th August 2026. No submissions were led by that date. The Court has nevertheless considered the pleadings, the oral evidence and the documentary evidence on record in determining the issues arising for determination. Plainti's Case 10. PW1 testied that he is the father and next friend of the minor. He stated that on 13th October 2025, the minor was lawfully travelling as a passenger in Motor Vehicle Registration Number KBU 164A along Kenyatta Avenue towards the CBD when the driver lost control of the vehicle, causing it to overturn. 11. PW1 testied that following the accident, the minor sustained serious injuries and was taken to Kenyatta National Hospital, where he received medical treatment. 12. The injuries pleaded and supported by the medical evidence on record are: a. Blunt soft tissue injuries to the right leg with tenderness and bruising; b. Fracture of the right medial malleolar bone of the ankle; and c. Degloving injury to the right foot. 13. The evidence further establishes that the injuries occasioned pain and suering and interfered with the minor's normal activities. The treatment records from Kenyatta National Hospital and the medical evidence were relied upon to demonstrate the nature and extent of the injuries sustained. 14. The Medical Report by Dr. Titus Ndeti Nzina was also produced in evidence. The report is relevant in assessing the nature of the injuries, the treatment undertaken and the resultant condition of the minor. Analysis and Issues for Determination 15. Having considered the Pleadings, the evidence and the Interlocutory Judgments entered against the Defendants, I consider the following issues to arise for determination: a. What is the eect of the interlocutory judgments on liability? b. What injuries did the minor sustain and what treatment did he receive? c. What amount of General Damages is reasonable for pain, suering and loss of amenities? d. Whether the Plainti has proved the claim for special damages of Kshs. 7,550; and e. Who should bear the costs of the suit and interest? https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/942/eng@2026-09-23 2

page 2 of 7

Liability 15. The Interlocutory Judgments entered against the 1st and 2nd Defendants determined the issue of liability in favour of the Plainti. The hearing that followed was therefore principally for purposes of formal proof and assessment of the damages payable to the Plainti. The question of liability does not, strictly speaking, fall for fresh determination. Nevertheless, the evidence on record and the applicable principles of law reinforce the conclusion already reached by the entry of the Interlocutory Judgments. 16. The Plainti pleaded that he was a lawful passenger in Motor Vehicle Registration Number KBU 164A when the said motor vehicle was involved in an accident. The 2nd Defendant was pleaded as the driver of the motor vehicle, while the 1st Defendant was pleaded as its registered owner. It was further pleaded that the accident was caused by the negligence of the 2nd Defendant in, inter alia, driving at an excessive speed, failing to maintain proper control of the motor vehicle and failing to take reasonable evasive action so as to avoid the accident. 17. There is no evidence on record from either Defendant controverting the Plainti's account of the manner in which the accident occurred. More importantly, the Defendants did not participate in the proceedings so as to oer any explanation capable of displacing the allegations of negligence pleaded against the 2nd Defendant. The Interlocutory Judgments entered against both Defendants consequently remain conclusive as to their liability. 18. The direct liability of the 2nd Defendant arises from his position as the driver of the accident motor vehicle. A driver owes a duty to other road users and, in particular, to passengers lawfully travelling in the vehicle, to exercise reasonable care and skill in the control and operation of the motor vehicle. Where the driver's negligence causes an accident and consequent injury, the driver is personally liable for the resulting damage. 19. The Plainti also pleaded the doctrine of res ipsa loquitur. The circumstances of the accident, namely, the loss of control of the motor vehicle while the Plainti was travelling as a passenger, are circumstances from which an inference of negligence may properly arise in the absence of an adequate explanation. In Embu Public Road Services Ltd v Riimi [1968] EA 22, the Court of Appeal recognised that where the circumstances of an accident give rise to an inference of negligence, the evidential burden may shift to the Defendant to explain how the accident occurred. The doctrine does not relieve the Plainti of the ultimate legal burden of proof, but it enables the Court to draw an inference of negligence from the circumstances where appropriate. 20. In the present case, no explanation has been oered by either Defendant to rebut the inference arising from the circumstances of the accident. The 2nd Defendant, being the person in actual control of the motor vehicle, has not demonstrated that he exercised the requisite care or that the accident occurred without negligence on his part. 21. I further nd that the liability of the 1st Defendant arises on the basis of vicarious liability. The 1st Defendant was pleaded as the registered owner of Motor Vehicle Registration Number KBU 164A, while the 2nd Defendant was pleaded as its driver. The law recognises that where a motor vehicle is being driven by a person acting as the servant or agent of the owner, the owner may be held liable for the negligence of that driver committed in the course of the driver's employment or agency. 23. In Karisa v Solanki [1969] EA 318, the Court held that where it is proved that a motor vehicle has caused damage through negligence, and in the absence of evidence to the contrary, a presumption may arise that it was being driven by a person for whose negligence the owner is responsible. The Court further observed that the surrounding circumstances determine the strength of that presumption. This https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/942/eng@2026-09-23 3

page 3 of 7

principle has subsequently been applied by the Kenyan courts in determining the liability of vehicle owners for the negligence of their drivers. 24. Similarly, in Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] KLR 605, the Court of Appeal armed that the existence of the master-servant relationship is what ordinarily gives rise to vicarious liability and that, where a vehicle is proved to have caused damage by negligence, a presumption may arise that it was being driven by a person for whose negligence the owner is responsible, subject to the evidence available in the particular case. 25. I am mindful that ownership of a motor vehicle, by itself, does not invariably render an owner vicariously liable for the negligence of every person who may drive the vehicle. The authorities establish that the driver must ordinarily be shown to have been acting as the owner's servant or agent, or to have been driving the vehicle for the owner's benet or in furtherance of the owner's purpose. In Securicor Kenya Ltd v Kyumba Holdings Ltd [2005] eKLR, the Court of Appeal explained that vicarious liability arises where the owner expressly or impliedly requests or instructs the driver to operate the vehicle in performance of a task or duty for the owner. 26. The distinction is, however, material where the owner disputes the driver's agency or employment and adduces evidence that the vehicle had been lent to the driver for purposes in which the owner had no interest or concern. That is not the position in the present case. There is no evidence from the 1st Defendant rebutting the pleaded ownership, the 2nd Defendant's position as the driver, or the inference that the 2nd Defendant was driving the vehicle with the authority of and on behalf of the 1st Defendant. Indeed, the 1st Defendant did not oer any alternative account of the circumstances under which the 2nd Defendant came to be driving the vehicle. 27. The position is further strengthened by the fact that an Interlocutory Judgment had already been entered against the 1st Defendant. The 1st Defendant therefore cannot, at the stage of formal proof, reopen and controvert liability that was already determined by the Court. The formal proof hearing was limited to the assessment and proof of the damages owing from the established liability. 28. I accordingly nd that the 2nd Defendant was directly liable for the accident by reason of his negligent driving of Motor Vehicle Registration Number KBU 164A. The 1st Defendant, being the owner of the motor vehicle and there being no evidence displacing the pleaded agency between the owner and driver, is vicariously liable for the negligence of the 2nd Defendant. 29. In the circumstances, and taking into account the Interlocutory Judgments already entered against both Defendants, I nd the 1st and 2nd Defendants jointly and severally 100% liable for the accident and the injuries sustained by the Plainti. The Plainti shall therefore be entitled to recover the decretal sum from either Defendant, subject to the applicable law on contribution and indemnity between the Defendants Quantum 31. The Plainti's evidence is that the minor was taken to Kenyatta National Hospital following the accident. The treatment records produced in evidence conrm that he received medical attention following the road trac accident. 32. The medical evidence establishes that the minor sustained a combination of soft tissue and signicant orthopaedic injuries, namely a fracture of the right medial malleolus and a degloving injury to the right foot, in addition to blunt soft tissue injuries to the right leg accompanied by tenderness and bruising. 33. On clinical examination, his general condition was fair, but he was walking with the aid of support, had tenderness of the right leg, and an extensive scar on the right foot. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/942/eng@2026-09-23 4

page 4 of 7

34. The doctor opined that the injuries caused pain, blood loss and suering and interfered with his normal activities. He was expected to remain unable to perform his routine duties as before the accident for approximately four months from the date of the accident and was still undergoing treatment at the time of examination. The report was supported by a Kenyatta National Hospital case summary, X-ray request/forms and lms, a duly completed P3 form, and a Police Abstract. a. The fracture of the medial malleolus constitutes a signicant injury to the ankle, while a degloving injury involves substantial trauma to the soft tissues and skin. The injuries were therefore more serious than ordinary supercial soft tissue injuries. b. I have considered the Medical Report prepared by Dr. Titus Ndeti Nzina, together with the treatment records from Kenyatta National Hospital and the other documentary evidence produced by the Plainti. I accept the medical evidence as establishing, on a balance of probabilities, that the injuries complained of were sustained as a consequence of the accident c. The assessment of General Damages is discretionary. The Court must take into account the nature and extent of the injuries, the treatment undergone, the residual eects of the injuries and comparable awards, while bearing in mind that no two injuries are exactly alike. 27. The guiding principle is that comparable injuries should, as far as possible, attract comparable awards, subject to the particular circumstances of each case and the passage of time. 28. In Wyclie Lumula M'masi v Ernest Waithatka & Another [2020] eKLR, an award of Kshs. 700,000.00 was ultimately upheld for an extensive degloving injury to the right foot and extensive skin loss. The case is relevant because it involved a degloving injury aecting the same anatomical region. 29. In December alias Dorcus Muthina Ndeto & another v Januaris & another [2023] KEHC 27077 (KLR), the High Court considered a degloving injury to the right foot which had resulted in skin grafting, muscle wasting, a deformed foot and shortening of the leg. The Court substituted an award of Kshs. 350,000 with Kshs. 700,000.00, taking into account the continuing deformity and scarring. 30. In Kimani v Tunje (Civil Appeal No. 51 of 2019) [2023] KEHC 19752 (KLR), the High Court considered injuries which included a fracture of the medial malleolus together with a degloving injury to the medial aspect of the right leg and foot, among other injuries. The Court observed that comparable injuries had attracted awards of Kshs. 800,000.00 and, taking ination and the particular circumstances into account, assessed general damages at Kshs. 850,000.00 31. Of particular relevance is Epuret v Kioko & 2 others (Civil Appeal E367 of 2024) [2025] KEHC 3991 (KLR). The injuries there included a crush/degloving injury to the right foot and fracture of the right medial malleolus, among other injuries. The Court noted that the medical evidence demonstrated continuing post-traumatic problems including deformity, arthritis, stiness and pain. 32. The authorities demonstrate that awards for degloving injuries of the foot vary depending upon the extent of skin and tissue loss, fracture, surgery, scarring, deformity, permanent disability and residual pain. 33. In the present case, the minor suered a fracture of the right medial malleolus in addition to a degloving injury to the right foot. These injuries are plainly more serious than a simple soft tissue injury. I have also taken into account the fact that the Plainti is a minor and that the injuries were sustained at a relatively young age, with the resultant pain and interference with normal activities. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/942/eng@2026-09-23 5

page 5 of 7

34. At the same time, I must avoid duplicating compensation or awarding an amount unsupported by the medical evidence. There is no claim before me for future medical expenses or diminished earning capacity, and the award under this head is conned to pain, suering and loss of amenities. 35. Taking into account the injuries, treatment, the evidence of pain and interference with normal activities, the comparable authorities and the passage of time, I nd an award of Kshs. 850,000.00 to be fair and reasonable compensation for pain, suering and loss of amenities. 36. I accordingly award the Plainti Kshs. 850,000.00 as General Damages for pain, suering and loss of amenities. Special Damages 38. The Plainti pleaded special damages of Kshs.7,550.00 comprising Kshs.2,200.00 for medical treatment, Kshs. 5,000.00 for the Medical Report and Kshs. 550 for the motor vehicle search. The amount claimed for medical treatment of Kshs.2,200.00 is not supported by a receipt and I will therefore not award the same. 39. I therefore award Kshs. 5,350.00 as Special Damages. Interest 42. The general principle is that interest on General Damages for personal injuries runs from the date of Judgment, since the amount becomes ascertainable upon assessment by the Court. Interest on Special Damages ordinarily runs from the date of ling suit where the expenditure had already been incurred and proved. 43. In Prema Lata v Peter Musa Mbiyu [1965] EA 592, the Court of Appeal for East Africa recognised the distinction between interest on General Damages and interest on Special Damages. The principle has subsequently been reiterated by the courts. 44. Accordingly, the Plainti shall have interest on the General Damages of Kshs. 850,000.00 from the date of this Judgment until payment in full, and interest on the special damages of Kshs. 5,350 from the date of ling suit until payment in full, at court rates. Costs 45. Costs ordinarily follow the event. The Plainti has succeeded in his claim and is therefore entitled to the costs of the suit. Disposition 45. Judgment is hereby entered for the Plainti against the 1st and 2nd Defendants jointly and severally as follows: a. General damages for pain, suering and loss of amenities ........................ Kshs. 850,000.00 b. Special Damages ............. Kshs. 5,350.00 c. Total ................... Kshs. 857,550.00 d. Interest on the general damages at ourt rates from the date of this Judgment until payment in full; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/942/eng@2026-09-23 6

page 6 of 7

e. Interest on the special damages at court rates from the date of ling suit until payment in full; and f. Costs of the suit to the Plainti. 30 Days Right of Appeal. JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 23RD DAY OF SEPTEMBER,2026 .......................... L.A. MUMASSABBA PRINCIPAL MAGISTRATE 23. 9.2026 In the presence of : M/s Kurgat for the Plainti Defendant: Absent Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/942/eng@2026-09-23 7

page 7 of 7