John Irungu Kariuki v Washington Otieno (suing as the father and next friend of EOO, a Minor)
The bottom line
#The High Court upheld full liability for knocking down a 6-year-old, but cut the damages award to Kshs. 12.9 million for poor proof of expenses.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding the appellant 100% liable for the accident, including whether contributory negligence should have been apportioned to the Minor or the Respondent
- 2.Whether the award of general damages of Kshs. 7,000,000/- for pain, suffering and loss of amenities was manifestly excessive
- 3.Whether the award of Kshs. 5,400,000/- for the cost of a helper was justified on the evidence
- 4.Whether the special damages award of Kshs. 1,783,588/- was strictly proved
Key legal issues
#Liability of a motorist who knocks down a child of tender years and possibility of apportioning contributory negligence
The appellant was wholly liable; contributory negligence cannot be attributed to a 6-year-old child who lacked the maturity to appreciate road dangers, and the burden lay on the driver to show the child could take precautions for its own safety.
The court reviewed Rahima Tayab, Bashir Ahmed Butt and Nkudate, holding these authorities place strict liability on motorists and shift the burden to the driver to demonstrate a child's capacity to appreciate road dangers. The appellant did not discharge that burden, did not call his employees or the investigating officer to corroborate his account, and the respondent was not with the Minor at the time. The finding on liability was therefore not disturbed.
Award of general damages for pain, suffering and loss of amenities
The award of Kshs. 7,000,000/- was reasonable and not disturbed, the Minor having suffered irreversible brain damage with 100% permanent disability.
Applying the Catholic Diocese of Kisumu v Sophia Achieng Tete test, the court found the authorities cited by the respondent not readily comparable (they did not concern minors) and those cited by the appellant involved less severe injuries. Comparing with J J v Akamba Public Road Services, where a minor with 100% incapacity received Kshs. 10,000,000/-, the trial award was within a reasonable range.
Multiplier applied to the cost of a helper
The multiplier of 30 years applied by the trial court was on the higher side and was substituted with 25 years, reducing the award from Kshs. 5,400,000/- to Kshs. 4,500,000/-.
The monthly rate of Kshs. 15,000/- was supported by the doctor's report and retained. However, the trial court cited no authority for the 30-year multiplier. Following the persuasive authority of EW v Kenya Power, where a 20-year multiplier was applied for a 5-year-old, the court adopted 25 years as more appropriate for the Minor.
Proof of special damages
The special damages award was reduced to Kshs. 4,550/- because only receipts for Kshs. 4,000/- for medical reports and a paid invoice of Kshs. 550/- were proved; hospital statements and invoices merely indicated sums payable and did not evidence expenses actually incurred.
Relying on David Bageine v Martin Bundi, Ouma v Nairobi City Council and Ratcliffe v Evans, the court reiterated that special damages must be pleaded and strictly proved. The respondent's documents, including a Kenyatta National Hospital patient statement and invoices, did not establish actual payment, so the trial court erred in awarding unproved sums.
Legal principles established
#- A child under the age of ten years cannot normally be guilty of contributory negligence; blame attaches only where the child is mature enough to take precautions for his or her own safety.
- An appellate court interferes with quantum of damages only where the trial court applied wrong principles, misapprehended the evidence, or arrived at a figure so inordinately high or low as to be an entirely erroneous estimate.
- Special damages must be both pleaded and strictly proved.
- A first appeal is by way of retrial; the appellate court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal on liability dismissed
- 2.Award for cost of a helper reduced by substituting a multiplier of 25 years for 30 years, yielding Kshs. 4,500,000/-
- 3.Award for special damages reduced to Kshs. 4,550/-
- 4.Judgment of the lower court set aside and substituted with judgment for the Respondent against the Appellant totalling Kshs. 12,904,550/-
- 5.Respondent to have costs of the suit in the lower court with interest
- 6.Each party to bear their own costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- Milimani CMCC No. 6029 of 2018
- Jurisdiction invoked
- First appeal from the trial magistrate's court to the High Court (appeal by way of rehearing under the applicable appellate framework)
Relief refused
#Apportionment of liability at 60:40 as urged by the appellant
A child of 6 years could not be guilty of contributory negligence and the appellant did not demonstrate the Minor's capacity to appreciate road dangers
Reduction of general damages for pain, suffering and loss of amenities
The award of Kshs. 7,000,000/- was reasonable given 100% permanent disability, comparable to the Akamba Public Road Services award
Costs
The Respondent shall have costs of the suit in the lower court with interest, but the parties will bear their own costs in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot therefore is that the appeal fails regarding liability but partially succeeds on quantum.
The Respondent shall have costs of the suit in the lower court with interest, but the parties will bear their own costs in the appeal.
The judgment of the lower court is therefore set aside and this court substitutes therefor judgment for the Respondent against the Appellant
It has been held time and again by this court that special damages must be pleaded and strictly proved.
The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles
normally a person under the age of ten years cannot be guilty of contributory negligence
Issues in the judgment
#The judgment states the special damages awarded at trial as Kshs. 1,783,533/- in paragraph 4 but as Kshs. 1,783,588/- in paragraph 41 - a discrepancy of Kshs. 55.
The trial court's award on cost of a wheelchair is described as awarded by trial court in the structure of the judgment, yet the record shows PW2's evidence that the Minor would require a wheelchair every 8 years at Kshs. 80,000/- while the calculation applied (Kshs. 80,000 x 5) is not explained on the face of this judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Irungu Kariuki v Washington Otieno (suing as the father and next friend of EOO, a Minor)", Case Analysis (2023). Appeal from Milimani CMCC No. 6029 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/845/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.