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MagistratePartially Allowednull (not stated in judgment)

Ndiema v Kababa t/a Channia Classic (Civil Case 10 of 2018) [2025] KEMC 262 (KLR)

Magistrates' Court at Makindu
9 October 2025
8,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a bus passenger Ksh. 7.4 million after a crash caused double leg amputation, but cut claims lacking documentary proof.

What this practically means

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Executive summary

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The plaintiff, a passenger aboard the defendant's Isuzu bus registration KBX 019J, sued the defendant as registered and/or beneficial owner following a road traffic accident on 2/7/2016 at Makindu along the Mombasa-Nairobi Highway in which the bus rammed the rear of another vehicle. She suffered grievous harm, including crush injuries leading to amputation of both legs below the knee. The defendant denied the accident and ownership, alternatively blamed the other driver, but did not attend court to testify or call any witness. The court framed seven issues covering occurrence of the accident, ownership, involvement, blame, injuries, quantum and costs. Relying on the plaintiff's uncontroverted evidence, a police abstract and the doctrine of res ipsa loquitur, the court found the defendant's driver 100% liable and the defendant 100% vicariously liable, applying the rebuttable presumption of agency. On quantum, the court awarded Ksh. 7,000,000/= general damages for pain, suffering and loss of amenities after reviewing comparable amputation awards and factoring inflation; Ksh. 2,500/= special damages (medical report only, as strictly proved); and Ksh. 400,000/= as future medical expenses for fitting surgery of two prosthetic limbs, guided by the Medical Practitioners and Dentists (Professional Fees) Rules. Claims for loss of earnings, domestic help, wheelchair costs, inconvenience in childbirth and professional inconvenience were dismissed for want of pleading or proof, the court stressing that special damages must be specifically pleaded and strictly proved and that submissions cannot take the place of evidence. Interest was awarded on general damages from judgment and on special damages and future medical expenses from filing suit, with costs of the suit to the plaintiff.

Questions the Court framed

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

  1. 1.Whether an accident occurred on 2/7/2016 at Makindu area involving motor vehicles registration numbers KBX 019J and KBH 129D/ZC 6898
  2. 2.Whether the defendant is the owner of motor vehicle registration number KBX 019J
  3. 3.Whether the plaintiff was involved in the accident
  4. 4.Who was to blame for the accident
  5. 5.Whether the plaintiff sustained injuries and suffered loss as a result of the accident
  6. 6.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
  7. 7.Who should bear the costs of this suit

Key legal issues

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01

Liability for the road traffic accident

Holding

The driver of KBX 019J was 100% liable in negligence and the defendant was 100% vicariously liable

Reasoning

The plaintiff's uncontroverted evidence showed the bus was driven at high speed and rammed the rear of the other vehicle. The doctrine of res ipsa loquitur applied since the defendant adduced no evidence to rebut the inference of negligence. A rebuttable presumption of agency arose because the driver was not shown not to be acting in the course of his employment with the defendant, who never denied the employment relationship in evidence.

p. 6
02

Applicability of res ipsa loquitur

Holding

The doctrine applied, establishing a prima facie case of negligence unrebutted by any defence evidence

Reasoning

The court reviewed Scott v London and St Katherine Docks Co, Embu Public Roads Services Ltd v Riimi and Henderson v Henry E Jenkins & Sons, concluding that where the accident is of a kind not ordinarily occurring without negligence and the defendant offers no explanation, the inference of negligence stands. The defendant, though alleging the other driver's negligence in the defence, gave no evidence nor instituted third-party proceedings.

p. 6
03

General damages quantum for double below-knee amputation

Holding

Ksh. 7,000,000/= awarded, adopting the plaintiff's proposed comparable authority and considering inflation

Reasoning

The court applied the principles in West (H) and Sons Ltd v Shepherd and Southern Engineering Co Ltd v Musingi Mutia: awards must be reasonable, moderate and comparable. It considered three comparable amputation cases (Ksh. 6,000,000; Ksh. 3,000,000; Ksh. 5,000,000) and, factoring in the age of the awards, inflation and the long-term effects of double amputation, held the plaintiff's proposed Ksh. 7,000,000 reasonable.

p. 10
04

Future medical expenses for artificial limbs

Holding

Ksh. 400,000/= awarded for fitting surgery of two prosthetic limbs, guided by the Medical Practitioners and Dentists (Professional Fees) Rules

Reasoning

The cost of artificial limbs not yet procured at filing suit was future medical expense rather than special damages. Future medical treatment is awardable where there is evidence of the need and a reasonable estimate. Dr. Kubasu's estimate of Ksh. 200,000 per limb lacked a basis, so the court turned to the professional fees Rules, which prescribe Ksh. 180,000 minimum and Ksh. 300,000 maximum for prosthesis fitting surgery, adjusted for inflation.

p. 12
05

Interest on the award

Holding

Interest on general damages from the date of judgment; interest on special damages and future medical expenses from the date of filing suit

Reasoning

Relying on section 26 of the Civil Procedure Act and the Omunyokol Akol Johnson authority, the court held that the award of interest is discretionary, that special damages attract interest from the date of loss and general damages from the date of judgment since general damages are only ascertained at judgment.

Legal principles established

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  • The burden of proving negligence rests on the plaintiff even in an undefended suit
  • Res ipsa loquitur applies where the defendant gives no explanation and raises a prima facie inference of negligence
  • A rebuttable presumption of agency arises where a motor vehicle is driven by a person other than the owner
  • Special damages must be specifically pleaded and strictly proved
  • Loss of earnings is a special damage requiring pleading and strict proof, while loss of earning capacity falls under general damages

Court orders

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  1. 1.General damages for pain, suffering and loss of amenities of Ksh. 7,000,000/= against the defendant
  2. 2.Special damages of Ksh. 2,500/= (medical report)
  3. 3.Future medical expenses (artificial limbs) of Ksh. 400,000/=
  4. 4.Total award of Ksh. 7,402,500/= plus interest on general damages at court rates from the date of judgment/decree until payment in full, and on special damages and future medical expenses from the date of filing suit to the date of judgment/decree
  5. 5.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.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a road traffic negligence claim

Relief refused

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Damages for loss of earnings

Not proved as a special damage; plaintiff produced no evidence of earnings and confused loss of earnings with loss of earning capacity

p. 13

Cost of hiring a domestic help

Not specifically pleaded and strictly proved; no evidence of the amount paid or documentary proof

p. 13

Cost of wheelchair

Ought to have been pleaded and proved as special damage; no amount pleaded or proved

p. 14

Damages for inconvenience in child birth and bearing

No medical evidence and no testimony supporting the claim

p. 14

Damages for inconvenience in the plaintiff's profession

Superfluous; already covered under general damages for pain, suffering and loss of amenities

p. 14

Costs

Costs of the suit awarded to the plaintiff

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.

In the circumstances, I find the driver of motor vehicle registration number KBX 019J 100% liable in negligence and for the accident.
p. 6liability - negligence of defendant's driver
Consequently, I find the defendant 100% vicariously liable for the accident.
p. 7vicarious liability of vehicle owner
It is trite law that special damages must be specifically pleaded and strictly proved.
p. 10pleading and proof of special damages
Submissions cannot take the place of evidence.
p. 14submissions versus evidence
General damages for pain, sufiering and loss of amenities...........Ksh. 7,000,000/=
p. 14disposition - general damages award
The plaintifi is also awarded interest on the damages as well as costs of the suit.
p. 15disposition - interest and costs
interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full and on Special damages and future medical expenses, from the date of filing suit to the date of judgment/ decree.
disposition - interest regimes

Issues in the judgment

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minor

The court refers to the plaintiff inconsistently by gender in the disposition despite the plaintiff being female

minor

Citation of Bernard v Sully appears with typographical errors in the judgment

minor

Case number and exact date of filing of the final judgment header are not stated in the judgment text; only the filing history of the plaint is given

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, "Ndiema v Kababa t/a Channia Classic (Civil Case 10 of 2018) [2025] KEMC 262 (KLR)", Case Analysis (2025). null (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/262/eng@2025-10-09

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