https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/782

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E735 OF 2025** **CHENGO NGUWA TSUWI** **NGUWA TSUWI KALAMA** **(Suing as the Administrators and Legal Representatives of the Estate of the late TUMAINI NGUWA TSUWI (DECEASED)……………………………………PLAINTIFFS** **VERSUS** **DHANJAL BROTHERS LIMITED alias** **DHANJAL BROS LIMITED.......................................................................DEFENDANT** **JUDGMENT** **Introduction** 1. This suit arises from a fatal road traffic accident involving the late Tumaini Nguwa Tsuwi and motor vehicle registration number KAX 393L, Mitsubishi Fuso, which occurred at or around Mwakirunge Dumpsite, Mombasa County. 2. The Plaintiffs, Chengo Nguwa Tsuwi and Nguwa Tsuwi Kalama, instituted the suit in their capacities as administrators and legal representatives of the estate of the deceased pursuant to a Limited Grant of Letters of Administration Ad Litem issued in Mombasa Chief Magistrate’s Court Miscellaneous Succession Cause No. E054 of 2025 on 14th April 2025. 3. The Plaintiffs pleaded that on or about 14th December 2024, the deceased was in the process of boarding motor vehicle KAX 393L when its driver moved the vehicle before the deceased had properly boarded. The deceased fell to the ground and was run over by the left rear tyre of the vehicle, sustaining fatal injuries. 4. The Defendant denied negligence and, in the alternative, pleaded that if the accident occurred, it was wholly caused or substantially contributed to by the deceased, who allegedly failed to keep a proper lookout for his own safety and precariously hung onto a moving vehicle. The Defendant also relied on the doctrine of volenti non fit injuria. 5. I note at the outset that the Plaintiffs’ submissions at one point refer to the accident as having occurred on 14th February 2024. The pleadings, death certificate, witness statements and the greater body of evidence consistently identify the material date as 14th December 2024. I accordingly treat the reference to February as an inadvertent error. The Evidence Plaintiffs’ case 1. The Plaintiffs called three witnesses. PW1, PC John Ominde, produced the Police Abstract and Post-Mortem Report. He candidly acknowledged that he was not the investigating officer, did not witness the accident, did not visit the scene and did not prepare a sketch plan. His evidence on the mechanics of the accident was therefore derived principally from the police record rather than his personal knowledge. 2. The Defendant emphasised that the police record referred to the deceased as attempting to ride towards the dumpsite, losing his grip and falling, and further pointed out that the Police Abstract did not itself apportion blame. 3. PW2, Nguwa Tsuwi Kalama, was the deceased’s father. He adopted his statement and produced the Plaintiffs’ documentary evidence. He did not witness the accident. His evidence principally concerned the deceased’s age, occupation, family circumstances, expenses incurred following the death and the claim under the Law Reform Act and Fatal Accidents Act. 4. PW3, Mohamed Chipi Athumani, was the Plaintiffs’ eyewitness. His evidence was that he was at Mwakirunge Dumpsite together with the deceased; that the driver of KAX 393L requested the deceased to board; and that the driver moved the vehicle before the deceased had properly settled. The deceased fell and was run over by the left rear tyre. 5. The Defendant challenged PW3’s account, particularly his evidence concerning the point at which the deceased boarded the lorry and the fact that the deceased was ultimately run over by the left rear tyre. The Defendant also drew attention to the fact that PW3 was not identified as an eyewitness in some of the police/ODPP material relied upon by the defence. Defence case 1. The Defendant called DW1, Ndambuki Ngui, who was the driver of KAX 393L. In his written statement he stated that the deceased, without his knowledge or consent, precariously hung onto the rear of the moving lorry, lost his grip and fell. 2. His oral evidence was, however, important. According to the trial evidence as reproduced in the parties’ submissions, DW1 did not see the deceased board the vehicle. He stated that he became aware that an accident had occurred after people screamed or alerted him and told him to stop. He could not say with certainty where, or from which side, the deceased boarded. 3. DW1 explained that KAX 393L was a Mitsubishi tipper lorry carrying garbage and that, due to its configuration, a driver seated in the cabin would not necessarily have a clear view of someone attempting to climb onto the rear. 4. The Defendant also called an investigator from Mirox Investigators. The investigation was partly founded on an account attributed to Andrew Mtana Mbaru. 5. A statement attributed to Andrew Mtana Mbaru had been filed. In it, Andrew stated that he, the deceased, Mohammed Chipi and another colleague approached the lorry while it was still moving and attempted to board it; that the deceased failed to obtain a proper grip, fell and was thereafter run over by the rear wheels. 6. However, Andrew Mtana Mbaru did not testify at the trial. The Plaintiffs further contended that the statement relied upon in the investigation was unsigned and that the investigator did not personally witness the accident. **Issues for Determination** 1. Having considered the pleadings, evidence and rival submissions, the issues for determination are: 2. Whether the Plaintiffs proved negligence against the Defendant; 3. Whether the deceased contributed to the occurrence of the accident; 4. Whether the Defendant is vicariously liable; 5. What damages are payable under the Law Reform Act and Fatal Accidents Act; 6. Whether the pleaded special damages were proved; and 7. Costs and interest. Liability Whether negligence was proved 1. The burden lay upon the Plaintiffs to establish their case on a balance of probabilities. It was insufficient merely to prove that an accident occurred and that the Defendant’s vehicle was involved. Negligence had to be established. 2. There is no real controversy that KAX 393L was involved in the accident and that the deceased fell and was ultimately run over by one of its rear wheels. The post-mortem and death certificate are consistent with fatal crushing injuries sustained in a road traffic accident. 3. The principal dispute is how the deceased came to fall. PW3’s account was direct. He stated that the driver requested the deceased to board and thereafter moved before the deceased had safely settled. 4. DW1 could not give direct evidence contradicting the precise act of boarding because, by his own account, he did not see the deceased boarding. His assertion that the deceased was hanging onto the rear without permission was therefore not founded on his own observation of the material act. 5. The investigation material attributed a contrary version to Andrew Mtana Mbaru. However, Andrew did not attend Court and his account was not tested in cross-examination. 6. An investigator may properly testify on the investigations he undertook, documents obtained and matters personally observed. That does not, without more, transform an absent eyewitness’s narrative into direct proof of the truth of every matter asserted therein. 7. I therefore attach substantially greater evidential weight to the testimony of witnesses who appeared before Court and whose evidence was tested. 8. I have nevertheless considered the police/Occurrence Book material. PW1 was not the investigating officer and did not personally know the source or circumstances in which the relevant account was recorded. The police documentation establishes that an accident was reported and investigated but, in the circumstances of this case, cannot by itself resolve the disputed mechanics of the accident. 9. I am also not persuaded that the fact that PW3 stated that the deceased boarded from the front or cabin area while the deceased was ultimately run over by the left rear tyre renders his evidence physically impossible. Once a heavy vehicle moves while a person is still boarding and that person falls alongside it, it is entirely possible for the rear wheels thereafter to pass over him. 10. Equally, however, the surrounding circumstances cannot be ignored. KAX 393L was a tipper/refuse lorry, not a passenger service vehicle. The deceased was not an employee of the Defendant. There is evidence that persons at the dumpsite interacted with arriving refuse lorries and that boarding such vehicles was associated with their activities there. 11. A person boarding such a vehicle must also take reasonable care for his own safety. On the whole of the evidence, I am satisfied that the Plaintiffs proved that the driver permitted or was aware of the deceased’s attempt to board the vehicle and failed to ensure that he had safely boarded before moving. That amounted to a breach of the duty of care owed to a person whom the driver knew or ought reasonably to have known was in the process of boarding. 12. The fact that DW1 stated that, because of the configuration of the vehicle, he could not see persons boarding from the rear does not absolve him. If anything, the limited visibility of a heavy commercial vehicle demanded greater caution before moving when persons were in close proximity. Contributory negligence 1. I have nevertheless considered whether the deceased contributed to his injuries. The deceased was an adult. The vehicle was plainly a commercial tipper lorry rather than a vehicle intended for carrying ordinary passengers. Boarding or riding upon such a vehicle carried an obvious element of danger. 2. Even accepting PW3’s evidence that the driver permitted or invited the deceased to board, the deceased was still required to exercise reasonable care for his own safety. 3. In my view, complete exoneration of the deceased would fail to account for the obvious risk inherent in boarding such a vehicle. 4. Conversely, placing the greater share of responsibility upon the deceased would overlook the superior control exercised by the driver over the movement of the lorry and the obligation upon a driver not to move a heavy vehicle while a person is still in the process of boarding. 5. Doing the best I can on the evidence, I apportion liability as follows: Defendant – 80% Deceased – 20%. Volenti non fit injuria 1. I am not persuaded that the defence of volenti non fit injuria completely defeats the claim. For that defence to succeed, the Court must be satisfied not merely that the deceased encountered a risk, but that he freely and voluntarily agreed to waive any claim arising from that risk. 2. On my finding that the driver permitted or acquiesced in the boarding process, the evidence does not establish such voluntary acceptance of the legal risk as would completely absolve the Defendant. The deceased’s conduct is adequately reflected through contributory negligence. Vicarious liability 1. The NTSA copy of records identifies Dhanjal Bros Limited as the registered owner of KAX 393L. DW1 was admittedly driving the lorry in the course of transporting waste/materials to Mwakirunge Dumpsite. The negligent act occurred during the operation of the Defendant’s vehicle in the course of the task DW1 was employed or authorised to perform. The Defendant is therefore vicariously liable for DW1’s negligence. Quantum 1. Having determined liability, I turn to quantum. 2. Pain and suffering 3. The deceased sustained severe crushing injuries including a degloving injury to the right inguinal region with an associated compound fracture of the pelvis, friction burns, flail chest with anterior chest bruising and bleeding from both nostrils. He died on the same day. 4. The Plaintiffs proposed KShs. 100,000, while the Defendant proposed KShs. 10,000. Although death occurred on the same day, the nature of the injuries was grave and there is evidence that the deceased experienced pain before death. I consider an award of: KShs. 50,000 reasonable under this head. 5. Loss of expectation of life 6. The deceased was 30 years old at death and was said to have been in good health. The Plaintiffs proposed KShs. 150,000 while the Defendant proposed KShs. 80,000. Taking into consideration comparable conventional awards and the deceased’s age, I award: KShs. 150,000 for loss of expectation of life. 7. Loss of dependency 8. Dependants: The Plaintiffs pleaded the following persons as dependants: Nguwa Tsuwi Kalama – father; Kadzo Mwaro Baya – mother; Fatuma Kadzo Nguwa – sister; Zainabu Nguwa Tsuwi – sister; and Chengo Nguwa Tsuwi – brother. 9. Under section 4 of the Fatal Accidents Act, the deceased’s parents fall within the statutory class of dependants. His siblings do not fall within that statutory class merely by virtue of being brothers or sisters. 10. I therefore confine the statutory dependency claim to the deceased’s father and mother. PW2 testified that the deceased used his earnings for his own upkeep and that of his family. Although the precise monetary contribution to each parent was not demonstrated by documentary evidence, dependency in a family operating within an informal economy is not invariably capable of proof through receipts or bank records. I am satisfied on a balance of probabilities that some dependency by the parents existed. Multiplicand 1. The Plaintiffs asserted that the deceased earned approximately KShs. 800 per day, translating to KShs. 20,800 for 26 working days. The evidence sufficiently establishes the deceased’s occupation in waste sorting, metal/plastic collection and sale. Indeed, even the defence material attributed to Andrew Mtana Mbaru described the deceased as working at the dumpsite in waste sorting and metal collection. What was not satisfactorily proved was the precise level of his earnings. 2. The absence of documentary evidence does not mean that the deceased earned nothing. At the same time, the Court should avoid adopting a figure unsupported by objective material where a reasonable statutory benchmark is available. 3. The Defendant relied upon the Regulation of Wages (General) (Amendment) Order, 2024 and proposed KShs. 16,113.75 per month. I consider that figure to provide a fair and conservative multiplicand. I therefore adopt: KShs. 16,113.75 per month. Multiplier 1. The deceased was 30 years old. The Plaintiffs proposed a multiplier of 25 years while the Defendant proposed 20 years. Taking into consideration the deceased’s age, his informal occupation, the uncertainties and vicissitudes of life, and the fact that he could reasonably have remained economically active well beyond the next twenty years, I consider a multiplier of: 25 years reasonable. Dependency ratio 1. The deceased was unmarried and had no spouse or children pleaded. The relevant statutory dependants are his parents. In the absence of evidence demonstrating that one-half of his total income was regularly devoted to the parents, I consider a dependency ratio of: 1/3 appropriate. Loss of dependency is therefore calculated as follows: KShs. 16,113.75 × 12 × 25 × 1/3= KShs. 1,611,375 1. Special damages 2. The Plaintiffs pleaded special damages of KShs. 215,150, comprising: KShs. 60,000 – advocate’s costs for obtaining Limited Grant; KShs. 20,600 – mortuary expenses; KShs. 134,550 – funeral expenses. Limited Grant legal fees – KShs. 60,000. 3. The Limited Grant was issued to the Plaintiffs on 14th April 2025 in Mombasa Chief Magistrate’s Court Family Division Miscellaneous Succession Cause No. E054 of 2025. The Plaintiffs also produced a receipt dated 27th March 2025 evidencing payment of KShs. 60,000 towards obtaining the said grant. 4. The expenditure was specifically pleaded and proved. Further, obtaining the Limited Grant was necessary to clothe the Plaintiffs with the requisite legal capacity to institute proceedings for the benefit of the deceased’s estate. I am therefore satisfied that the expenditure was sufficiently connected to the institution of this claim and is recoverable. I accordingly award KShs. 60,000/=. 5. Mortuary expenses – KShs. 20,600. The Coast General Teaching and Referral Hospital funeral-home invoice/receipt supports this expenditure. I award: KShs. 20,600 6. Funeral expenses – KShs. 134,550- Funeral expenses were specifically pleaded and documentary receipts were produced. I have considered the Defendant’s objection that some of the receipts were handwritten or not ETR-generated. Funeral expenditure, particularly in the circumstances obtaining in ordinary Kenyan households, is not always documented with the commercial formality associated with other transactions. The evidence must nevertheless satisfy the Court that the expenditure was reasonably incurred. On the material before Court, I am satisfied that the funeral expenses were proved on a balance of probabilities. I therefore award: KShs. 134,550 7. Although there is evidence of an NTSA search fee of KShs. 550, that amount was not specifically pleaded as part of the special damages. I make no award for it. **Final Orders** 1. In the result, judgment is entered for the Plaintiffs against the Defendant on the following terms: 2. Liability: Defendant 80%; deceased 20%. 3. Pain and suffering: KShs. 50,000. 4. Loss of expectation of life: KShs. 150,000. 5. Loss of dependency: KShs. 1,611,375. 6. Special damages: KShs. 215,150. 7. Gross award: KShs. 2,026,525. Less 20% contributory negligence: KShs. 405,305. **Net award: KShs. 1,621,220.** 1. General damages shall attract interest at Court rates from the date of this judgment until payment in full. 2. Special damages shall attract interest at Court rates from the date of filing suit until payment in full. 3. The Plaintiffs shall have the costs of the suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**