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MagistratePartially AllowedNot stated on the face of the judgment (references made to Civil Case Number 164 of 2008 as a related file)

JM (Minor suing through his guardian and next friend Andrew Maruti Opudi) v Abdulaziz & another (Civil Case 61B of 2008) [2024] KEMC 78 (KLR)

Magistrates' Court
11 November 2024
3,328 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Makindu court awarded a road accident victim Ksh. 115,000 in damages but refused his out-of-pocket expenses because he never properly pleaded or proved them.

What this practically means

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Executive summary

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The plaintiff, Joseph Maruti, sued Aisha Abdulaziz and General Cargo Services Ltd as registered and beneficial owners of motor vehicles KAU 399V and KAM 072B respectively, over a road traffic accident of 5/11/2007 along the Mombasa-Nairobi road in which he, a fare-paying passenger aboard KAU 399V, was injured. He sought general damages, special damages of Ksh. 200/=, costs and interest. Both defendants denied negligence, the 2nd defendant blaming the 1st defendant's driver. Liability had already been settled by a direction of 26/2/2024 that the finding in Civil Case Number 164 of 2008 apply; on perusal of that file the magistrate found liability apportioned at 10% against the 1st defendant and 90% against the 2nd defendant, and adopted that apportionment, leaving only quantum for determination. The next friend testified and produced a medical report, P3 form, police abstract, receipts, copies of records and demand letters. The court framed three issues: proof of injury and loss; entitlement to and quantum of damages; and costs. It found sufficient proof that the plaintiff sustained soft tissue injuries to the neck and right leg, though the pleaded injuries were exaggerated. Applying West (H) and Sons Ltd v Shepherd and comparable-award principles, the court awarded Ksh. 115,000/= in general damages, preferring the 2nd defendant's recent comparable authority, apportioned Ksh. 11,500/= against the 1st defendant and Ksh. 103,500/= against the 2nd defendant. Applying the rule that special damages must be specifically pleaded and strictly proved, no special damages were awarded. Interest on general damages accrues at court rates from judgment until payment in full, and the plaintiff was awarded costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff sustained injuries and suffered loss as a result of the accident
  2. 2.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
  3. 3.Who should bear the costs of this suit?

Key legal issues

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01

Whether the plaintiff proved that he sustained injuries in the accident of 5/11/2007

Holding

Yes - the medical evidence established soft tissue injuries to the neck and right leg, though the injuries pleaded in the plaint were exaggerated

Reasoning

The next friend adopted his witness statement and produced a medical report by Dr. P. Ochungo, a P3 form and a police abstract. The medical evidence showed the plaintiff was admitted for three days and had recovered with slight limping of the right leg by 1/4/2008. The injuries were classified as harm in the P3 form. There was no contrary evidence on the injuries, so the court found sufficient proof that the plaintiff sustained injuries as a result of the accident.

p. 5
02

Quantum of general damages for pain, suffering and loss of amenities

Holding

Ksh. 115,000/= awarded, the court preferring the 2nd defendant's comparable and more recent authority over the plaintiff's more severe precedents

Reasoning

Guided by West (H) and Sons Ltd v Shepherd and the compensation principles summarised by the court, the magistrate noted that the plaintiff's authorities involved more severe injuries, whereas the 2nd defendant's authority involved comparable injuries and was more recent, offering better guidance. Factoring in inflation and the age of the awards, the court found both parties' proposals reasonable and fixed the award at Ksh. 115,000/=, apportioned per the liability finding of 10%/90%.

p. 6
03

Whether special damages were recoverable

Holding

No - no special damages awarded

Reasoning

Relying on Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd and Ouma v Nairobi City Council quoting Ratcliffe v Evans, the court applied the rule that special damages must be specifically pleaded and strictly proved. The medical report receipt was produced but the sum was never pleaded, and the pleaded Ksh. 200/= for the police abstract was not sufficiently proved. Accordingly, no special damages were awarded.

p. 7
04

Liability and its apportionment

Holding

Liability adopted from Civil Case Number 164 of 2008 at 10% against the 1st defendant and 90% against the 2nd defendant

Reasoning

The court had earlier directed that the liability finding in Civil Case Number 164 of 2008 apply. No finding appeared on the record, so the magistrate called for that file and perused it. A judgment delivered on 18/9/2023 in that case had apportioned liability 10% against the 1st defendant and 90% against the 2nd defendant - the same parties as here. The court accordingly adopted that apportionment, and the matter proceeded solely to assessment of damages.

p. 3
05

Interest on the award

Holding

Interest on general damages at court rates from the date of judgment/decree until payment in full

Reasoning

Applying section 26 of the Civil Procedure Act and the authorities Jane Wanjiku Wambui v Anthony Kigamba Hato and Omunyokol Akol Johnson v Attorney General, the court held that although interest is discretionary, interest on special damages runs from the date of loss while interest on general damages runs from the date of judgment, since general damages are only ascertained in the judgment. Having awarded no special damages, the interest order applies to general damages only.

p. 8

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved
  • Assessment of general damages is a discretionary judicial exercise; comparable injuries should attract comparable awards, made reasonably and with moderation
  • Interest on special damages runs from the date of loss, while interest on general damages runs from the date of judgment since general damages are only ascertained in the judgment

Court orders

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  1. 1.General damages for pain, suffering and loss of amenities awarded at Ksh. 115,000/= against the defendants, apportioned at 10% (Ksh. 11,500/=) against the 1st defendant and 90% (Ksh. 103,500/=) against the 2nd defendant
  2. 2.No special damages awarded
  3. 3.Interest on general damages at court rates from the date of judgment/decree until payment in full
  4. 4.Costs of the suit awarded to the plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YS
Y. A. ShikandaSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a road traffic negligence claim (plaint dated 23/6/2017, suit filed 24/4/2008)

Relief refused

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Special damages of Ksh. 200/= (and the unpleaded sum for the medical report)

The Ksh. 200/= was pleaded but not sufficiently proved, and the receipt for the medical report was produced but the sum was never pleaded as required by law

p. 7

Costs

The plaintiff is awarded costs of the suit (no order that each party bear their own costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

1. General damages for pain, sufiering and loss of amenities...........Ksh. 115,000/=
p. 7Final award of general damages
Following the finding on liability, the 1st defendant shall pay to the plaintifi the sum of Ksh. 11,500/ = whereas the 2nd defendant shall pay Ksh. 103,500/=. The plaintifi is also awarded interest on the damages as well as costs of the suit.
p. 7Apportionment of the award between defendants, interest and costs
It is trite law that special damages must be specifically pleaded and strictly proved.
p. 7Rule on pleading and proof of special damages
Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full.
p. 8Interest on general damages
A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards.
p. 5Principles guiding assessment of general damages

Issues in the judgment

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minor

The judgment states the suit was filed on 24/4/2008 vide a plaint dated 23/6/2017 - dates that are internally inconsistent (the plaint date post-dates the filing date)

minor

The injuries proved by the medical evidence (soft tissue injuries to neck and right leg) differ materially from the injuries pleaded and testified to (severe head injury, neck sprain, right hip injury, slight burns)

minor

The judgment refers to authorities relied on by parties as appeals ('the plaintifi and respondent in the appeal herein'), although the matter before the court is a first-instance suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JM (Minor suing through his guardian and next friend Andrew Maruti Opudi) v Abdulaziz & another (Civil Case 61B of 2008) [2024] KEMC 78 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (references made to Civil Case Number 164 of 2008 as a related file). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/78/eng@2024-11-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.