https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/696

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E503 OF 2024** **JUDITH NAMACHANJA BARASA & ROGERS WAFULA NYONGESA (Suing as the Legal Representatives of the Estate of COLLINS SIMIYU NYONGESA (Deceased)………………………………………………………………..................PLAINTIFF** **VERSUS** **CALEB MUKHWANA MAKOKHA……………………………………..1ST DEFENDANT** **EMMANUEL WAFULA………………………………………………….2ND DEFENDANT** **WATU NOMINEES LIMITED……………………………………………3RD DEFENDANT** **KEVIN SIMIYU JUMA……………………………………………………3RD PARTY** **JUDGMENT** 1. The Plaintiffs moved this court through a Plaint dated 30th October 2024 praying for judgment against the Defendants for: 2. *General damages for pain, suffering and loss of amenities* 3. *Special Damages of Kshs. 462,725/=* 4. *Costs of the suit with interest on (a), (b) herein above* 5. The Plaintiffs pleaded that the cause of action arose on 14th April 2024 at around 1800hrs when the deceased was a pedestrian along Naburereya murram road when he was knocked by motorcycle registration number KMFX 181 T (“the motorcycle”) that was being ridden by the 1st Defendant, thereby sustaining fatal injuries. They added that the 2nd Defendant was the motorcycle’s beneficial owner while the 3rd Defendant was its registered owner at the time of the accident. 6. It was further averred by the Plaintiffs that the accident was caused by the Defendants’ negligent acts and omissions particularized in paragraph 5 of the Plaint. They added that the 2nd and the 3rd Defendant were vicariously liable for the 1st Defendant’s negligent acts and omissions. 7. The Plaintiffs further averred that the deceased was a 35-year-old businessman in robust health at the time of his death, whose normal expectation of life was cut short by the accident, thereby occasioning loss and damage to his estate and dependents particularized in paragraph 9 of the Plaint; hence this suit under the Fatal Accidents Act. 8. The 1st and 2nd Defendants neither entered appearance nor filed a Statement of Defence putting the Plaintiffs to strict proof of the averments in their Plaint. The 3rd Defendant also pleaded that they were the motorcycle’s financier’s who could not be held vicariously liable for the motorcycle driver’s negligent acts or omissions. They urged this court to dismiss the Plaintiffs’ case against them. 9. The 3rd Defendant later joined the Third Party to this suit. The Third Party neither entered appearance nor filed their Statement of Defence despite having been duly served with the pleadings herein and the Third-Party Notice. This prompted this court to direct that the Third Party’s liability be determined during the hearing of this suit. 10. The summary of the evidence led before this court by the parties herein is set out below. **EVIDENCE** **Plaintiffs’ Case** 1. **PW1 Judith Namachanja Barasa** is the deceased’s widow. She adopted her witness statement dated 30th October 2024 as her evidence in chief. She also produced all the documents filed by the Plaintiffs as exhibits save for the police abstract. 2. She conceded in cross-examination that she did not witness the accident. She added that the 2nd Defendant was the motorcycle’s owner at the time of the accident and that he had bought the same from the 3rd Defendant on credit. 3. **PW2 Morgan Wafula Simiyu** witnesses the accident. His testimony was that the accident occurred at around 1800hrs when his father was walking on the left side of the edge of the Kabula – Naburereya road only for the oncoming motorcycle which was being ridden by the 1st Defendant to knock him down. He added that the deceased was carried from the scene by a good Samaritan to the hospital where he died the following day. 4. He reiterated in cross-examination that the 1st Defendant was the motorcycle’s rider and that the 2nd Defendant was the motorcycle’s owner. 5. **PW3 No. 81XXX PC Jackline Ochieng** of Bungoma Police Station produced the accident’s police abstract dated 06th January 2024 showing that the accident herein occurred and that the same was reported at Bungoma Police Station vide OB. No. 36/06/01/2024 as an exhibit. 6. In cross-examination, she stated that the motorcycle’s rider informed the police that the 2nd Defendant was the motorcycle’s owner at the time of the accident. She conceded that the police abstract did not list the 3rd Defendant as the motorcycle’s owner. She could not tell if the 1st Defendant was the 3rd Defendant’s employee. **3rd Defendant’s Case** 1. **DW1 Festus Morang’a** a Legal Officer at the 3rd Defendant adopted his witness statement dated 30th January 2026 as his evidence in chief. The gist of his testimony was that the 3rd Defendant was the motorcycle’s financier who financed the 3rd Party to acquire the motorcycle on credit hence the 3rd Party could not be held vicariously liable for the motorcycle driver’s negligent acts or omissions. 2. He produced the motorcycle’s loan agreement between the 3rd Party and the 3rd Defendant dated 03rd January 2023 and the motorcycle’s loan statement as exhibits. **ANALYSIS AND DETERMINATION** 1. Neither the Plaintiff nor the 3rd Defendant filed written submissions despite undertaking to do so. 2. This court has given due regard to the pleadings and the evidence on record. It is common ground that the accident herein occurred, leading to the deceased’s death. In the circumstances, this court is of the considered view that the issues which commend to it for determination are: 3. *Whether the 3rd Defendant is a proper party to this suit* 4. *Liability* 5. *Quantum* **Whether the 3rd Defendant is a proper party to this suit** 1. The Plaintiffs produced a copy of motor vehicle records showing that the 3rd Defendant was the motorcycle’s registered owner at the time of the accident. They pleaded in their Plaint that the 3rd Defendant was vicariously liable for the motorcycle’s rider’s negligence since they were the motorcycle’s registered owners at the time of the accident. 2. The 3rd Defendant, on their part, maintained that they financed the Third Party to acquire the motorcycle on credit; thus, they could not be held vicariously liable for the motorcycle rider’s negligent acts or omissions. 3. The evidence adduced before this court by the 3rd Defendant to prove on a balance of probabilities that they financed the Third Party in acquiring the motorcycle on credit was not impeached by the Plaintiffs. 4. It is also noteworthy that PW1, PW2 and PW3 were all in agreement that the 2nd Defendant was owned by the 2nd Defendant when the accident occurred. Most importantly, PW1 testified that the 2nd Defendant had bought the motorcycle from the 3rd Defendant on credit. 5. The totality of the evidence on record proved on a balance of probabilities that the 3rd Defendant was a mere financier in the Third Party’s acquisition of the motorcycle. This inevitably inclines this court to find and hold that the 1st Defendant was not the 3rd Defendant’s servant when the accident occurred. 6. The findings in paragraph 22 are enough for this court to hold that the 3rd Defendant is not vicariously liable for the 1st Defendant’s negligent acts or omissions at the time of the accident, as held in **Ngugi v Gitau & 2 others (Civil Appeal 81 of 2018) [2024] KEHC 9977 (KLR),** where the court stated as follows: *“…the 2nd respondent was not driving for the benefit of the 1st respondent, nor did he have a task to do for and on behalf of the first respondent. He was driving the car for his own benefit and interest. In the upshot vicarious liability against the 1st respondent must fail as there is no nexus to apportion liability. The 2nd respondent is solely to blame for the accident that occurred during his own frolic.”* 1. In any event, the question of a financier’s liability in road traffic accidents has been a subject of various judicial pronouncements in this jurisdiction. In **Ali Lali Khalifa and 8 Others V Pollman’s Tours and Safaris Ltd, & Diamond Trust Bank (K) Limited V Salim Khalid Said[2003] eKLR,** the court, in excluding a motor vehicle acquisition financier from liability arising from a road traffic accident, stated thus: *“The legal position is this: if it can be demonstrated that a registered owner of a motor vehicle hired out to a third party or the said vehicle was used in the circumstances which did not allow for the doctrine of vicarious liability on the part of the registered owner, to apply, then the latter is not liable.* *In Ormrod v. Crosville Motor Services Ltd. (1954) 2 All ER 752, at page 755 Lord Denning said: “The law puts a special responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. If it is being used wholly or partly by the owner’s business or for the owner’s purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern.”* *In the circumstances of the present case, the following facts have been proved to exist:* *(a) The second defendant was a mere financier of the first defendant for the purposes of the acquisition of the motor vehicle Reg. No. KAE 520H by the first defendant, and the second defendant’s interest in said vehicle was merely recorded in the Registration Book or in the records held by the Registrar of Motor Vehicles for the purposes of securing its interests under the Hire Purchase Agreement. That interest is in the balance of the loan or advances to the first defendant…. interest is the balance of the loan or advances to the first Defendant.* *(b) At the time of the accident the said vehicle KAE 520H had been sold to the third Defendant by the first Defendant and the third defendant was thus operating matatu business* *(c) The second defendant had neither interest in the first defendant’s business nor in the third defendant’s matatu business.* *(d) The accident the subject matter of this suit, arose at the time when the said vehicle was being driven wholly for the purpose of the business of the Third defendant.” Emphasis added.* 1. Similarly, in **Justus Kavisi Kilonzo V Coast Broadway Company Limited & another [2008] eKLR**, it was held that; *“Despite the registration of the 2nd defendant as co-owner of the said motor vehicle, as a financier of the 1st defendant, the 2nd defendant is not a necessary party to these proceedings. To use the language of Etyang J (now retired), in Mombasa HCC Number 106 of 2002: Ali Lali Khalifa & Others –vs- Pollman’s Tours & Safaris & 2 Others (UR), the 2nd defendant has demonstrated that it hired out the said motor vehicle to the 1st defendant and the said vehicle was used by the 1st defendant in circumstances which do not allow for the doctrine of vicarious liability to apply to the 2nd defendant.”* 1. The foregoing shows that a financier for the acquisition of a motor vehicle or a motorcycle through a loan or a hire purchase agreement like in the instant case cannot be held to be vicariously liable for the actions of a person who was driving a motor vehicle or a motorcycle, which is the subject of the loan agreement, for their own benefit. 2. The upshot of the foregoing is that the 3rd Defendant was improperly joined to this suit; thus, the suit against them must suffer the fate of dismissal. 3. This court’s holding that the 3rd Defendant’s suit is up for dismissal raises questions on whether the Third Party should remain a party to this suit for determination of liability and quantum. 4. The issue of third party proceedings is determined between the defendant and the third party as was enunciated in **Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR** where the court held that:- *“In law, a third party is enjoined in a suit at the instance of the defendant and through the set procedure under Order 1 Rule 15-22 of the Civil Procedure Rules. And, liability between the defendant and the third party is determined between the defendant and the third party, but of course after the court is satisfied that there is a proper question to be tried as to liability of the third party and the defendant, and has given directions under Order 1 Rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the defendant and cannot be a bona fide issue triable between the defendant and the plaintiff. On the basis of those legal reasons, even if the third party had been joined, which he has not, it is not a triable issue at all for purposes of liability between the plaintiff and the defendant.”* 1. Guided by the authority above, it follows that this court, having dismissed the suit against the 3rd Defendant, the question of contribution or indemnity between the 3rd Defendant and the Third Party is moot. Therefore, the 3rd Defendant’s claim against the 3rd Party is dismissed. **Liability** 1. The record shows that an interlocutory judgment was entered against the 1st and 2nd Defendants. The Court of Appeal in **Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR)** stated as follows on the consequence of entering an interlocutory judgment against a Defendant: “It is now settled that once interlocutory judgment has been entered the question of liability becomes a foregone conclusion. In ***Felix Mathenge -v- Kenya Power Lighting Company Limited [Civil Appeal No. 215 of 2002] UR***, the Court held: *"The role of the court after entering interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages".* 1. It is abundantly clear from the authority above that the entry of an interlocutory judgment against the 1st and the 2nd Defendant settled the issue of liability between the 1st and the 2nd Defendant and the Plaintiffs. 2. In the circumstances, this court finds the 1st and 2nd Defendants 100% liable for causing the accident. **Quantum** **Under the Fatal Accidents Act** **Loss of Dependency** 1. The Plaintiffs pleaded for damages under the Fatal Accidents Act. The damages awarded under the Fatal Accidents Act are contingent on proof of loss of dependency. 2. The claim for damages for loss of dependency is grounded on section 4 of the Fatal Accidents Act. Section 4 of the Fatal Accidents Act provides as follows:- *Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct.* 1. The Plaintiffs pleaded in their Plaint that the deceased was survived by his wife, brother and five children all aged below eighteen years. The documents on record produced by PW1 proved as much. 2. The deceased's wife and children are dependents within the meaning of the Fatal Accidents Act, therefore, the claim for damages for loss of dependency is properly before this court. 3. The claim for loss of dependency constitutes the multiplicand, the dependency ratio, and the multiplier. This is applicable where the court adopts the multiplier approach of making awards. In other instances, where the circumstances of a case permit, the court may adopt the global award approach in making an award under this head. 4. The Plaintiffs pleaded in their Plaint that the deceased was a businessman aged 35 years old at the time of his death. The deceased’s Certificate of Death on record corroborated the Plaintiffs’ evidence that the deceased was a businessman aged 35 years death when he met his untimely death. 5. Be that as it may, the Plaintiffs neither adduce evidence on the nature of business the deceased used to run nor the deceased’s monthly income from the alleged business. This shows that the deceased’s monthly income is not ascertainable. That being the case, this court is of the considered view that applying the multiplier approach in making an award under this head will be akin to this court descending into the arena of speculation and groping in the dark. That is a path a court of law should not take as was stated in **Mwanzia Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another;** which was cited with approval in **Albert Odawa v Gichimu Gichenji (2007) eKLR** as follows: *“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependancy, and the expected length of the dependancy are known or are knowable without undue speculation where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”* 1. Similarly, the court in **Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR);** stated thus: *“…where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”* 1. It is against this backdrop that this court adopts the global award approach in making an award under this head. 2. The circumstances of this case are almost similar to the circumstances in **Kamama & another (Both Suing as Legal Representatives of the Estate of Stephen Maina Kamau) v Ng’ang’a & another (Civil Appeal E193 of 2023) [2026] KEHC 5715 (KLR)** where the High Court upheld a global award of Kshs. 2,000,000/= for a 35-year-old family man with an unknown monthly income. 3. In **Mayaka v Orondo & another (Suing as the Administrators & Personal Representatives of the Estate of George Yalo Madar - Deceased) (Civil Appeal E077 of 2024) [2026] KEHC 8296 (KLR),** the court made a global award of Kshs. 2,000,000/= for a 35-year-old bodaboda operator who was survived by a widow, one adult child, and two children under the age of eighteen years. 4. Guided by the authorities above and considering the circumstances of this case and more particularly the deceased’s children’s age, this court is of the considered view that a global award of Kshs. 2,000,000/= is reasonable under this head. 5. In making the global award above, this court has also considered the fact that the beneficiaries under this Act will also benefit from awards under the Law Reform Act. **Under the Law Reform Act** **(a)Loss of Expectation of Life** 1. The Plaintiffs pleaded in paragraph 8 of the Plaint that the accident herein cut short the deceased’s life. 2. The claim under this head was aptly expressed in Flint v Lovell {1935} 1KB354 where Lord Wright said: *“A man has, a legal interest entailing him to complain if the integrity of his life is impaired by tortious acts, not only in regard to pain, suffering and disability, but in regard to the continuance of life for its normal expectancy. A man has a legal right, that his life shall not be shortened by the tortious act of another. His normal expectancy of life is a thing of temporal value, so that its impairment is something for which damages should be given…”* 1. The deceased died aged 35 years old. There is no evidence on record that the deceased was working in a risky environment at the time of his death. Further, there is no evidence before this court of the deceased’s ill health before his death. 2. Therefore, the only logical conclusion to be drawn is that the deceased’s life was cut short by the accident herein. 3. In **Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR,** the court observed as follows regarding the award under this head: - *“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/- while pain and suffering the awards range from Kshs. 10,000/- with higher damages being awarded if the pain and suffering was prolonged before death.”* 1. Guided by the authority above, this court finds no reason to depart from the conventional award of Kshs. 100,000/= under this head; therefore, this court makes an award of Kshs. 100,000/= under this head. **(b) Pain and suffering** 1. The award under this head depends on the duration between the time the accident occurred and the time the deceased died. 2. General damages for pain and suffering range from Kshs. 10,000/= where death is instantaneous to Kshs. 100,000/= where death occurs later. (See **Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR**). 3. There is no dispute that the deceased died some hours after the occurrence of the accident. In **TB v MOO & another (Suing as the legal representatives of the Estate of the Late LM - Deceased) (Civil Appeal 79 of 2021) [2025] KEHC 3520 (KLR),** the court awarded Kshs. 100,000/= for pain and suffering where the deceased died some hours after the accident. 4. It is for the reasons above that this court makes an award of Kshs. 100,000/= under this head for the fleeting pain and suffering the deceased must have experienced before meeting his death. **Special Damages** 1. The Plaintiffs pleaded in paragraph 6 for special damages of Kshs. 462,725/= comprising hospital medical charges of Kshs. 14,075/=, mortuary charges of Kshs. 10,300/=, grant ad-litem costs of Kshs. 30,000/=, copy of records costs of Kshs. 550/=, and funeral expenses of Kshs. 392,500/=. 2. The Plaintiffs bore a duty of strictly proving the pleaded special damages on a balance of probabilities. 3. The receipts and the settled invoice from Bungoma County Referral Hospital produced by PW1 proved the pleaded hospital medical charges of Kshs. 14,075/=, mortuary charges of Kshs. 10,300/=, grant ad litem costs of Kshs. 30,000/=, and the copy of records costs of Kshs. 550/=. 4. The Plaintiffs produced the deceased’s funeral budget of Kshs. 392,500/= in support of their claim for funeral expenses of Kshs. 392,500/=. The Plaintiffs did not place receipts before this Court to evidence the burial and funeral expenses of Kshs. 392,500/=. 5. Be that as it may, the Court of Appeal in **Premier Diary Limited vs. Amarjit Singh Sagoo & another [2013] eKLR** gave guidance on the award under this head by stating thus; *“We do not think that it is a breach of the general rule that special damages must be pleaded and proved to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take Judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern of a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved...We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”* 1. The import of the above authority is that even in the absence of receipts to prove burial and funeral expenses, courts in this jurisdiction are required to take judicial notice of the funeral expenses and make a reasonable award for the same. 2. In the circumstances, this court finds and holds that Kshs. 392,500/= is reasonable burial and funeral expenses for a 35-year-old family man in Western Kenya. 3. The upshot of the above is that the Plaintiffs are awarded the pleaded special damages of Kshs. 462,725/=. **DETERMINATION** 1. Given the foregoing, judgment is entered against the 1st and 2nd Defendants jointly and severally in the following terms:- * 1. Liability 100% in favour of the Plaintiffs 2. *General damages under the Fatal Accident Act* *Loss of dependency - Kshs. 2,000,000/=* * + 1. *Damages under the Law Reform Act* *Pain and Suffering -Kshs. 100,000/=* *Loss of expectation of life - Kshs. 100,000/=* * + 1. *Special Damages -*Kshs. 462,725/= ***Net Award - Kshs. 2,662,725/=*** 1. The General Damages will accrue interest at court rate from the date of this judgment till payment in full. 2. The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full. 3. The Plaintiff will have the costs of this suit. 4. The suit against the 3rd Defendant is dismissed with costs. 5. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma this 11th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Wabomba for the 3rd Defendant C/A: Mr. Rioba