Mulinge v Maisha Steel (EA) Limited & another (Civil Suit E076 of 2026) [2026] KEMC 343 (KLR)
The bottom line
#A Kaloleni court awarded a road accident victim Kshs. 303,200 after the vehicle owners failed to defend the case, showing ignored lawsuits still end in payment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Liability
- 2.Quantum
- 3.Costs
Key legal issues
#Whether the defendants were liable for the road traffic accident
The defendants were held 100% vicariously liable; their driver breached his duty of care by making a U-turn at a wrong spot, and the case was uncontroverted as the defendants did not appear or file a defence
The defendants were served but neither appeared nor filed a defence, leaving the plaintiff's case uncontroverted. The plaintiff testified and produced exhibits including a police abstract confirming the accident and injuries. The court relied on the principle that every driver owes other road users a duty of care, and on the rule that a police abstract naming the owner shifts the burden of disproof to that owner, finding the defendants vicariously liable for their driver's negligence.
What quantum of general damages for pain and suffering was appropriate
General damages of Kshs. 300,000/= awarded, guided by comparable awards for similar injuries and adjusted for the passage of time and inflation
The plaintiff sustained a cut/laceration on the lower lip and blunt trauma to the left hand, chest, back and knees, confirmed by Dr. Darius Kiema's medical report, treatment notes and the P3 form. Comparing prior awards of Kshs. 250,000/= and Kshs. 150,000/= for similar injuries, and factoring in effluxion of time and inflation rates, the court found Kshs. 300,000/= sufficient compensation.
What special damages were recoverable
Only Kshs. 3,200/= of the Kshs. 5,700/= pleaded was proved and awarded, being receipts for the medical report (Kshs. 2,000/=), copy of records (Kshs. 550/=) and company search (Kshs. 650/=)
Applying the Hahn v Singh principle that special damages must be specifically pleaded and strictly proved, the court examined the receipts produced. Only the receipts for the medical report, copy of records and company search, totalling Kshs. 3,200/=, substantiated the claim; the unproved balance of the pleaded Kshs. 5,700/= was not granted.
Whether the plaintiff was entitled to costs of the suit
Costs of the suit awarded to the plaintiff, costs following the event under Section 27(1) of the Civil Procedure Act
Under Section 27(1) of the Civil Procedure Act costs are discretionary, but the general rule is that costs follow the event. Having established his case on a balance of probabilities, the plaintiff was awarded costs, the court exercising its discretion judiciously in line with Jasbir Singh Rai as cited in Kirugi v Jan Japan (K) Limited.
Legal principles established
#- A party who lays a claim before the court bears the burden of proving it on a balance of probabilities, per Section 107 of the Evidence Act
- Every driver on a road owes a duty of care to other road users
- A police abstract showing ownership shifts the burden to the named owner to disprove it
- Special damages must be specifically pleaded and strictly proved
Court orders
#- 1.Judgment entered in favour of the plaintiff against the defendants jointly and severally
- 2.Liability of 100% against the defendants
- 3.General damages of Kshs. 300,000/=
- 4.Special damages of Kshs. 3,200/=
- 5.Total award of Kshs. 303,200/= plus interest at court rates from the date of filing suit until payment in full
- 6.The plaintiff awarded costs of the suit
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 negligence claim; proceedings conducted under the Civil Procedure Act and the Evidence Act (interlocutory judgment entered on default of defence)
Relief refused
#Special damages pleaded at Kshs. 5,700/= but only partially proved
Only Kshs. 3,200/= was pleaded and proved by receipts; the balance was not granted
Costs
The plaintiff is awarded costs of the suit.
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 conclusion therefore, I accordingly enter judgment in favour of the plaintiff against the defendants jointly and severally as follows: 1. Liability 100% against the defendants. 2. General damages -Kshs. 300,000/= 3. Special damages – Kshs. 3,200/= Total - Kshs. /= 303,200/= (Plus interest at court rates from the date of filing suit till payment in full. 4. The plaintiff is also awarded costs of the suit.
The court having evaluated the evidence herein finds that the defendants’ driver breached his duty of care by making U – Turn at a wrong spot thus ramming into the plaintiff’s vehicle. The court therefore holds the defendants 100% vicariously liable
Looking at the totality of the injuries sustained by the plaintiff alongside effluxion of time and inflation rates a figure of Kshs. 300,000/= as general damages for pain and suffering is sufficient compensation which this court then grants.
Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act.
Costs follow the event but the court has discretion to determine otherwise depending on the circumstances of the case.
Issues in the judgment
#The judgment refers to interlocutory judgment having been entered on default of defence, yet proceeds to assess quantum and costs after hearing testimony; the procedural posture is not further explained
The names of the defendants are not stated in the judgment as provided; they are referred to only as the defendants/owners of the motor vehicle
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulinge v Maisha Steel (EA) Limited & another (Civil Suit E076 of 2026) [2026] KEMC 343 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/343/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.