Ndiema v Kababa t/a Channia Classic (Civil Case 10 of 2018) [2025] KEMC 262 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the defendant is the owner of motor vehicle registration number KBX 019J
- 3.Whether the plaintiff was involved in the accident
- 4.Who was to blame for the accident
- 5.Whether the plaintiff sustained injuries and suffered loss as a result of the accident
- 6.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
- 7.Who should bear the costs of this suit
Key legal issues
#Liability for the road traffic accident
The driver of KBX 019J was 100% liable in negligence and the defendant was 100% vicariously liable
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.
Applicability of res ipsa loquitur
The doctrine applied, establishing a prima facie case of negligence unrebutted by any defence evidence
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.
General damages quantum for double below-knee amputation
Ksh. 7,000,000/= awarded, adopting the plaintiff's proposed comparable authority and considering inflation
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.
Future medical expenses for artificial limbs
Ksh. 400,000/= awarded for fitting surgery of two prosthetic limbs, guided by the Medical Practitioners and Dentists (Professional Fees) Rules
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.
Interest on the award
Interest on general damages from the date of judgment; interest on special damages and future medical expenses from the date of filing suit
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
#- 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
#- 1.General damages for pain, suffering and loss of amenities of Ksh. 7,000,000/= against the defendant
- 2.Special damages of Ksh. 2,500/= (medical report)
- 3.Future medical expenses (artificial limbs) of Ksh. 400,000/=
- 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.Costs of the suit awarded to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a road traffic negligence claim
Relief refused
#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
Cost of hiring a domestic help
Not specifically pleaded and strictly proved; no evidence of the amount paid or documentary proof
Cost of wheelchair
Ought to have been pleaded and proved as special damage; no amount pleaded or proved
Damages for inconvenience in child birth and bearing
No medical evidence and no testimony supporting the claim
Damages for inconvenience in the plaintiff's profession
Superfluous; already covered under general damages for pain, suffering and loss of amenities
Costs
Costs of the suit awarded to the plaintiff
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.
In the circumstances, I find the driver of motor vehicle registration number KBX 019J 100% liable in negligence and for the accident.
Consequently, I find the defendant 100% vicariously liable for the accident.
It is trite law that special damages must be specifically pleaded and strictly proved.
Submissions cannot take the place of evidence.
General damages for pain, sufiering and loss of amenities...........Ksh. 7,000,000/=
The plaintifi is also awarded interest on the damages as well as costs of the suit.
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.
Issues in the judgment
#The court refers to the plaintiff inconsistently by gender in the disposition despite the plaintiff being female
Citation of Bernard v Sully appears with typographical errors in the judgment
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.