https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/171

ESR (A Minor Suing Through Her Father and Next Friend Rashid Matsitsa Kutwenya) v Kaloki (Civil Case E908 of 2025) [2026] KEMC 171 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 171 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E908 of 2025 EM Mwamuye, SRM June 25, 2026 Between ESR (A Minor Suing Through Her Father and Next Friend Rashid Matsitsa Kutwenya) Plaintiff and Masia Francis Kaloki Defendant Judgment 1.The Plaintiff, a minor suing through her father and next friend Rashid Matsitsa Kutwenya, instituted this suit seeking general damages, special damages of Kshs. 21,663/=, costs and interest arising from a road traffic accident which occurred on 15th May 2025 at Ufuta Stage along the Maganda–Miritini Road involving Motor Vehicle Registration Number KDA 955Z. 2.The Defendants denied liability and contended that the accident was wholly caused or substantially contributed to by the negligence of the minor Plaintiff and/or her guardian. 3.The Plaintiff's case was heard on 19th November 2025 when three witnesses testified. The Defence case was heard on 29th April 2026 when one witness testified. Both parties thereafter filed written submissions. Issues for Determination 4.The issues arising for determination are:i.Whether the Defendants were negligent and liable for the accident.ii.Whether the Plaintiff contributed to the occurrence of the accident.iii.What damages are payable.iv.Who should bear the costs of the suit. Liability 5.There is no dispute that an accident occurred on 15th May 2025 involving the Plaintiff and Motor Vehicle Registration Number KDA 955Z. The Plaintiff's case is that while walking home from school, the vehicle lost control, veered off the road and knocked her down. 6.The Defendants' case is that the Plaintiff suddenly darted onto the road and collided with the rear right side of the vehicle after it had substantially passed her. 7.The Court has carefully evaluated the evidence on record. 8.PW1, the Plaintiff's father, candidly admitted that he did not witness the accident. His evidence therefore only relates to the aftermath of the accident and the treatment undertaken by the minor. 9.PW3, the police officer, produced the Police Abstract and P3 Form. However, she expressly admitted during cross-examination that: she was not the investigating officer; she did not investigate the accident; the Police Abstract did not blame the driver; and no traffic charges were preferred against the driver. 10.The Court agrees that a Police Abstract alone is not conclusive proof of negligence. It merely confirms that an accident was reported. 11.However, liability in civil cases is determined on a balance of probabilities and not beyond reasonable doubt. 12.The Court has also considered the evidence of DW1 who stated that the Plaintiff collided with the rear right side of the vehicle. 13.Notably, although the Defendants assert that the point of impact was the rear right side of the vehicle, no sketch map, motor vehicle inspection report, photographs, police investigation file or independent witness was produced to support that assertion. 14.Equally, no evidence was produced to establish that the minor deliberately ran into the vehicle or that she appreciated the danger confronting her. 15.The Plaintiff was only six (6) years old at the time of the accident. 16.The Court takes judicial notice of the principle stated in Rahima Tayab & Others v Anna Mary Kinanu that children of tender years cannot ordinarily be judged by the same standard of care applicable to adults. 17.A six-year-old child lacks the maturity, judgment and appreciation of risk expected of an adult pedestrian. 18.Even if the child suddenly entered the roadway, a prudent motorist approaching an area where school-going children are present is expected to exercise a high degree of vigilance. 19.The Defendants admitted that the Plaintiff came into contact with their vehicle. The occurrence of impact between a moving motor vehicle and a six-year-old child raises a corresponding duty on the driver to explain the precautions taken to avoid the collision. 20.The explanation tendered by DW1 remains unsupported by any independent evidence. 21.On the whole of the evidence, the Court is satisfied that the Plaintiff has established negligence on the part of the Defendants on a balance of probabilities. 22.However, the Court cannot entirely ignore the possibility that the child may have moved onto the road unexpectedly. In the circumstances, a modest degree of contributory negligence is appropriate. 23.The Court apportions liability as follows: Defendants: 90% Plaintiff: 10% Quantum of Damages 24.The injuries sustained by the Plaintiff were: Fracture of the mid-shaft of the left tibia. Blunt head injuries with multiple facial lacerations. Deep open cut wound on the left leg. 25.The treatment records, P3 Form and both medical reports substantially agree regarding these injuries. The dispute concerns the alleged permanent incapacity. Dr. S.K. Ndegwa assessed permanent incapacity at 6%. Dr. Udayan Sheth, an Orthopaedic Consultant, examined the Plaintiff later and found: full recovery; no deformity; no tenderness; no shortening; painless movement of the knee and ankle; no permanent incapacity. 26.The Court attaches greater weight to the opinion of Dr. Sheth. His examination was conducted later in time and by a specialist orthopaedic surgeon. His findings demonstrate that the fracture healed well and that there was no residual disability apart from a scar on the left leg. 27.Accordingly, the Court finds that no permanent incapacity was proved. Comparison with Authorities Relied Upon 28.Plaintiff's Authority- Nkoroi Bundi Kelvin v Wilson Runyambo [2023] KEHC 25388 (KLR). The claimant sustained: Mid-shaft fracture of the left tibia and fibula; Required fixation with a K-nail; Continued pain; Difficulty standing and walking; 10% permanent incapacity. The High Court awarded Kshs. 600,000/=. 29.The injuries in Nkoroi Bundi Kelvin were materially more severe than those sustained by the present Plaintiff because: there were fractures of both the tibia and fibula; surgical fixation was required; permanent incapacity was assessed at 10%; persistent symptoms remained. 30.In the present case: only the tibia was fractured; no surgical fixation was undertaken; the Plaintiff fully recovered; no permanent incapacity was established. The authority therefore supports an award lower than Kshs. 600,000/=. 31.Defendants' Authority- Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR). Injuries: Compound fracture of tibia and fibula; Deep cut wound and tissue damage; Head injury; Cut wound on nose; Blunt chest injury. Award: Kshs. 400,000/=. 32.The injuries in Daniel Otieno Owino were more extensive than those suffered by the Plaintiff because they involved: two fractured bones; tissue damage;chest injuries.The award of Kshs. 400,000/= therefore represents the lower range of comparable awards. 33.Kiama v Mutiso [2024] KEHC 5135 (KLR)-Injuries: Fracture of the left tibia;Blunt injury to left leg and thigh. Award: Kshs. 400,000/=. 34.This authority is closer to the present matter. However, the present Plaintiff additionally suffered: facial lacerations; blunt head injuries; a deep open cut wound. The injuries herein are therefore somewhat more serious than those in Kiama v Mutiso. 35.Taking into account: the Plaintiff's age of six years; the fracture of the left tibia; facial injuries and scarring; the period of treatment;complete recovery without permanent incapacity; inflationary trends; the comparable authorities cited by both parties; the Court finds that a fair award for pain, suffering and loss of amenities is Kshs. 550,000/= Special Damages 36.Special damages must be specifically pleaded and strictly proved. The Plaintiff pleaded Kshs. 21,663/=. The evidence produced proves:Item Amount (Kshs.)Medical report 3,000Medical expenses 15,113P3 Form 2,000Official search 550Total 20,663 37.The Court therefore awards Kshs. 20,663/= 38.Calculation After ContributionGeneral Damages Kshs. 550,000/=Special Damages Kshs. 20,663/=Total Kshs. 570,663/=Less 10% contributory negligence: Kshs. 57,066/=Net Award Kshs. 513,597/= Final Orders 39.Judgment is entered for the Plaintiff against the Defendants jointly and severally as follows:a.Liability apportioned at: Defendants: 90% Plaintiff: 10%b.General damages: Kshs. 550,000/=c.Special damages: Kshs. 20,663/=d.Net award after contribution: Kshs. 513,600/=e.Special damages shall attract interest from the date of filing suit.f.General damages shall attract interest from the date of judgment.g.The Plaintiff shall have costs of the suit.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE