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MagistratePartially AllowedCivil Case No 362 of 2015· [2025] KEMC 286 (KLR)

Kayago v China Road and Bridge Corporation (K) (Civil Case 362 of 2015) [2025] KEMC 286 (KLR)

Magistrate's Court at Makindu
18 November 2025
2,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker injured by a falling iron sheet won Ksh. 162,400 after contributing liability, but lost most medical expenses because he never pleaded them in his lawsuit.

What this practically means

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Executive summary

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This is a first-instance magistrates' court judgment at Makindu in a personal injury suit arising from an industrial accident on 5/8/2015 in which the plaintiff, a labourer employed by the defendant, was struck on the left leg below the knee by a falling iron sheet while making a culvert. The plaintiff sued for general damages, special damages of Ksh. 3,000/=, costs and interest, alleging negligence and breach of the employment contract. The defendant denied negligence and injuries and blamed the plaintiff for carrying out unassigned duties. On 22/7/2025 the parties recorded a consent, adopted as a court order, entering judgment on liability at 20% against the plaintiff and 80% against the defendant, admitting documents as evidence without calling makers, and directing submissions on quantum only. The court framed three issues: whether the plaintiff was injured and suffered loss, whether he was entitled to damages and in what quantum, and who should bear costs. Relying on the admitted medical report and treatment notes, the court found the deep cut wound to the left lower limb proved on a balance of probabilities. Applying the compensation principles in West (H) and Sons Ltd v Shepherd and Kim Pho Choo, and comparing awards in the parties' authorities and Kenblest Limited v John Mutisya Wambua adjusted for inflation, the court awarded Ksh. 200,000/= in general damages. Applying the rule that special damages must be specifically pleaded and strictly proved, it awarded Ksh. 3,000/= for the medical report. After deducting 20% contributory liability, the plaintiff was awarded Ksh. 162,400/=, with interest on general damages from the date of judgment at court rates, interest on special damages from filing suit, and costs of the suit. The plaintiff's higher quantum claim and unpleaded medical expenses were effectively rejected.

Key legal issues

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01

Whether the plaintiff proved that he sustained injuries in the accident

Holding

The medical evidence proved the plaintiff sustained a deep cut wound on the left lower limb as pleaded, with no contrary evidence

Reasoning

Following the consent on liability (20%/80%), the only issues were injury and quantum. The medical report and treatment notes admitted in evidence showed a deep cut wound on the left lower limb classified as harm. The injury was pleaded in the plaint and there was no contrary evidence, so the plaintiff discharged the burden on a balance of probabilities and was entitled to damages against the defendant, who bore 80% liability.

02

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

Holding

General damages assessed at Ksh. 200,000/=, guided by comparable awards adjusted for inflation

Reasoning

The court applied the principles from West (H) and Sons Ltd v Shepherd and Kim Pho Choo v Camden & Islington Area Health Authority (as adopted in Nancy Oseko) that awards must be reasonable, moderate and comparable. It compared the parties' authorities (awards of Ksh. 150,000/= and Ksh. 90,000/= from 2013-2018) and its own authority Kenblest Limited v John Mutisya Wambua (Ksh. 150,000/= in 2016), and, factoring inflation and the age of the awards, concluded Ksh. 200,000/= sufficed.

p. 4
03

Proof of special damages

Holding

Special damages must be specifically pleaded and strictly proved; only Ksh. 3,000/= for the medical report was proven and awarded

Reasoning

The court restated the rule from 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 that each particular type of special damage must be pleaded with certainty and particularity. Although the plaintiff claimed Ksh. 40,000/= medical expenses in submissions, only the Ksh. 3,000/= medical report was pleaded and supported by a receipt, so only that sum was awarded.

p. 5
04

Interest on the award

Holding

Interest on special damages from the date of filing suit to judgment; interest on general damages at court rates from the date of judgment until payment in full

Reasoning

Applying section 26 of the Civil Procedure Act, Jane Wanjiku Wambui v Anthony Kigamba Hato and Omunyokol Akol Johnson v Attorney General, the court held that although the award of interest is discretionary, interest on special damages accrues from the date of loss while interest on general damages accrues only from the date of judgment since general damages are only ascertained in the judgment. The court adopted this two-stage approach in its final orders.

p. 6

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved
  • Assessment of general damages is a discretionary exercise to be exercised judicially, with comparable injuries receiving comparable awards
  • Interest on special damages runs from the date of loss, while interest on general damages runs from the date of judgment

Court orders

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  1. 1.General damages for pain, suffering and loss of amenities of Ksh. 200,000/= awarded to the plaintiff
  2. 2.Special damages of Ksh. 3,000/= awarded as pleaded and proven
  3. 3.Award of Ksh. 203,000/= subjected to 20% liability apportionment, leaving a balance of Ksh. 162,400/= payable to the plaintiff
  4. 4.Interest on general damages at court rates from the date of judgment/decree until payment in full
  5. 5.Interest on special damages from the date of filing suit to the date of judgment
  6. 6.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Actsection 26(1) and 26(2)

Cases cited (14)

  • Channan Agricultural Contractors Ltd v Fred Barasa Mutayi
    [2013] eKLR
  • George Mugo & another v AKM (Minor suing through next friend and mother AMK
    [2018] eKLR
  • Godwin Ireri v Franklin GitoongaPascal v Ouko
    [2023] KEHC 24463 (KLR)
  • West (H) and Sons Ltd v Shepherd
    [1964] AC 326
  • Kim Pho Choo v Camden & Islingtom Area Health Authority
    [1979] 1, ALL ER 332
  • Nancy Oseko v Board of Governors Masai Girls High School
    [2011] eKLR
  • Kenblest Limited v John Mutisya Wambua
    [2016] eKLR
  • Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd
  • Ouma v Nairobi City Council
    [1976] KLR 304
  • Ratcliffe v Evans
    [1832] 2Q.B. 524
  • Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others
    [2018] eKLR
  • New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd
    [1988] KLR 380
  • Omunyokol Akol Johnson v Attorney General
    Civil Appeal No.6 of 2012, UGSC 4 (8th April 2015)
  • Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters
    [2020] KEHC 618 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a negligence claim for damages for personal injury arising from an industrial accident

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, "Kayago v China Road and Bridge Corporation (K) (Civil Case 362 of 2015) [2025] KEMC 286 (KLR)", Case Analysis (2025). Civil Case No 362 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/286/eng@2025-11-18

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