https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7141

Wayongo & another (Suing as personal representatives of the Estate of Brendan Juma Wayongo - Deceased) v Skypro Limited & another (Civil Case E004 of 2023) [2026] KEHC 7141 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7141 (KLR) Republic of Kenya In the High Court at Kiambu Civil Case E004 of 2023 A Mshila, J May 22, 2026 Between David Simiyu Wayongo & Ivine nelima Wasungui (Suing as personal representatives of the Estate of Brendan Juma Wayongo - Deceased) Plaintiff and Skypro Limited 1st Defendant Abraham Mwangi 2nd Defendant Judgment 1.By a Plaint filed on 7th February, 2023, the Plaintiffs herein being the Personal representatives of the estate of Brendan Juma Wayongo (Deceased) sued the Defendants claiming compensation for the fatal injuries sustained by the deceased on or about the 6th day of July, 2022 when the deceased was a lawful pedestrian walking off the road along Thika Road when the Defendant’s driver controlled motor vehicle registration number KCV 881C carelessly that the said motor vehicle lost control, veered off the road and hit the deceased as a result of which the deceased suffered fatal injuries. 2.The Plaintiffs pray for judgment against the Defendants for;-a.General damages for pain and suffering, loss of expectation of life and loss of dependencyb.General damages for loss of consortiumc.Special damages of Kshs. 140,100/=d.Interest on the said damages at such rate and for such a period as the court deems fite.Costs of this suit 3.The Defendants filed their Statement of Defence on 17th March, 2023 denying that the accident was caused by the negligence of the 2nd Defendant. They outlined the particulars of negligence on the part of the deceased. 4.The matter went through a full hearing. Ivine Nelima Wasungui (PW1) wished to adopt her witness statement as her evidence. She produced the documents on her list of documents. She stated that she was married to the deceased and they have a child aged 3 years. She prayed for compensation from the court. 5.In cross examination, she stated that her husband graduated as a dental technologist. At the time of the accident he was an Intern. He was offered internship from May, 2019 at St. Mary’s Mumias where he was earning Kshs. 30,000/=. 6.NO. 93777 PC Benard Kiptunui (PW2) a traffic officer at Githurai-Mwiki testified that the fatal accident occurred on 6/7/2022 around 22.05 hours. The accident involved motor vehicle KCV 881C Mitsubishi Outlander being driven by Abraham Mwangi. He stated that the deceased died on the spot. He produced the abstract. 7.In cross examination the officer stated that the nearest pedestrian crossing was approximately (2) kilometres from the scene at Githurai underpass. There were bumps and zebra crossing near the scene but none was at the point of the accident. 8.The Plaintiffs closed their case after this witness testified. 9.Abraham Mwangi (DW1) testified that he is based in Westlands and that the accident motor vehicle belonged to him at some point. He wished to adopt his statement as his evidence. He stated that his vehicle was involved in an accident with a pedestrian. It was around 11 p.m and the Thika Superhighway was busy. He stated that he was driving at an average speed of 90 km/h. The vehicle in front of him swerved as someone jumped from the guard rail and the accident occurred. There was no provision for a pedestrian crossing. He stated that 50 metres away there was an underpass. He did not expect anyone on the highway. The vehicle in front of him swerved and he also swerved to the outer lane. He produced his driving licence and the police abstract. 10.In cross examination he stated that he saw someone running across the road to avoid being hit but by the time he saw the deceased he was already in the middle of the road. He stated that there was an underpass and provision for footbridge. He tried swerving to the right and applied brakes, moved to the right to avoid contact. He stated that he was not charged with any road traffic offence. 11.The Court directed the parties to file and exchange short written submissions which are summarized as follows; Plaintiffs’ Submissions. 12.The Plaintiffs submit that the 2nd Defendant stated that he saw the deceased when he was 20 metres away when the deceased was running across trying to cross the road while avoiding to be hit by vehicles. The 2nd Defendant also stated that other motor vehicles swerved to avoid hitting the deceased. The Plaintiffs, therefore, submit that the 2nd Defendant had an opportunity to stop or swerve his motor vehicle in order to avoid causing the accident but he failed to do so hence caused the accident. The Plaintiffs submit that notwithstanding that the deceased was the author of his own misfortunes as alleged by the 2nd Defendant, he was said to be the one in control of the motor vehicle which was said to be a lethal weapon. Reliance was placed in the case of Mary Njeri Murigi v Peter Macharia & another (2016) eKLR. The 1st Defendant was said to be vicariously liable being the registered owner of the accident motor vehicle. The Plaintiffs submit that the accident would have been averted had the 2nd Defendant taken due care and not been negligent. 13.In respect of the award for pain and suffering, the deceased was said to have died on the same day as per the death certificate. It was submitted that an award of a nominal amount of Kshs.100,000/= is sufficient compensation. Reliance was placed in the case of Ali Emoy Abdi Noor v Sigma Feeds Limited & Another (2012) eKLR where the Deceased died a few hours after the accident and was awarded Kshs.150,000/=. 14.Similarly, in Nelson Ndawa Kioko & another v Mombasa Liners (2012) KEHC 512 (KLR) where the deceased died on the same day of accident and was awarded Kshs. 100,000/=. The Plaintiffs submit that an award of Kshs.200,000/= will suffice. 15.With regard to the award for loss of expectation of life, the deceased was said to be a man of means and would have achieved much with his life both socially and financially. It was submitted that the deceased had no health complications that would have shortened his life. An award of Kshs.200,000/= would therefore, suffice as compensation for loss of expectation of life. Reliance was placed in the case of Moses Akumba & Leonard Mwalimu Mweru v Hellen Karisa Thoya (2017) KEHC 737 (KLR) 16.For loss of dependency, the Plaintiffs submit that at the time of death, the deceased was aged 26 years old as shown in the Death Certificate. The deceased was said to be a dentist by profession and had successfully completed his one-year medical internship at Kakamega County General Teaching and Referral Hospital Dental Department and upon posting his monthly income was expected to be at least Kshs.369,770/= per month in accordance with the Collective Bargaining Agreement of 2013 between the Ministry of Health of the Republic of Kenya and the Kenya Medical Practitioners’, Pharmacist and Dentists’ Union (KMPDU). 17.Further, the Plaintiffs produced a letter from St Mary’s Hospital Mumias to show that the deceased was offered temporary employment for three months as a Dental Technologist where he was paid a net salary of Kshs.30,000/= per month. 18.On dependency, the Plaintiff produced the birth certificate of the daughter of the deceased as well the identification cards for the brother, wife and mother. The deceased’s wife stated that she was a housewife and she used to solely depend on the deceased for provision. The court was urged to adopt a multiplier of 34 years as the retirement age is 60 years. Reliance was placed in the case of Gachoki Gathuri (suing as the legal representative of the estate of James Kinyua Gachoki (deceased) v John Ndiga Njagi Timothy & 2 others (2015) eKLR. It was submitted that the deceased was paying rent for his family’s house and that of his parents and that he provided for both families as such he used 2/3 of his salary on his dependant’s upkeep. The Plaintiffs sought for Kshs. 100,577,440/= for loss of dependency. 19.For special damages, the Plaintiffs submit that they pleaded and proved Kshs. 140,100/= with the undocumented funeral expenses being part of the amount. Defendants’ Submissions 20.The Defendants submit that the Plaintiffs failed to provide an eye witness as PW3 only produced the abstract and could not provide a sketch map showing how the accident occurred. The deceased was said to be the one to blame for the accident as the police testified that there was a footbridge and there was no provision for a pedestrian crossing. There were guardrails barring the pedestrian from crossing the road. The Defendants submit that their evidence was corroborated by the police officer. The deceased was said to be solely to blame for the accident. Reliance was placed in the case of Patrick Mutie Kamau & another v Judy Wambui Ndurumo (1997) eKLR. 21.In respect of damages for pain and suffering, the deceased was said to have died instantly hence an award of Kshs. 20,000/= is reasonable as upheld by the Court of Appeal in the case of Guyo Jillo & another v Lilian Kinyua (2019) eKLR. For loss of expectation of life the award being nominal it was submitted that an award of Kshs. 100,000/= would be sufficient. For loss of dependency, the Kshs. 369,770/= sought by the Plaintiffs was said to be unsupported by evidence. In any case there was no evidence that the deceased was a member of the union. A multiplier of Kshs. 25 years was adopted due to vicissitudes of life and a dependency ratio of 1/3. The amount of Kshs. 80,000/= being legal fees for ad litem was opposed as legal fees was said not to amount to special damages. Lastly the court was urged to dismiss the case as there was no eye witness to testify on how the accident occurred. Issues For Determination 22.Having read and considered the court record and the rival submissions by both parties, the issues arising for determination are;i.Who is to blame for the accident?ii.Whether the Plaintiffs are entitled to the reliefs sought? Analysis Who is to blame for the accident? 23.The Plaintiffs herein contend that the 2nd Defendant owed the deceased a duty of care while controlling the accident motor vehicle which he failed to do. The 2nd Defendant failed to swerve his motor vehicle after he saw the deceased 20 metres away as was done by other motorists who avoided knocking the deceased. The 2nd Defendant was said to be in control of a lethal weapon with the 1st Defendant being vicariously liable. 24.On the other hand, the Defendants contended that the deceased was the author of his own misfortunes as he jumped over the guardrails and attempted to cross the road on the super highway where vehicles move at a speed of 110km/h. The deceased failed to use the footbridge that had been provided as testified by the police officer. The 2nd Defendant being the driver of the accident motor vehicle testified that he tried to swerve to avoid hitting the deceased who was 20 metres away but the deceased moved to his lane and there is nothing that he could have done to avoid the accident. 25.This court has thoroughly evaluated the evidence on record, it is indeed unfortunate that the deceased attempted to cross the road at a place which was not designated as a zebra crossing. There is undisputed evidence that there was a foot bridge and guard rails to prevent pedestrians from accessing the busy super highway. 26.That notwithstanding, the 2nd Defendant was the one who was controlling motor vehicle registration number KCV 881C that caused the said accident and ought to have driven more carefully whilst expecting any eventuality on the road. The 2nd Defendant cannot be heard to say that he did not expect anyone to be crossing the road regardless of there being no provision for pedestrian crossing and a footbridge that was nearby. 27.In the circumstances, therefore, this Court is satisfied that both the deceased and the 2nd Defendant were to blame for the accident and proceeds to apportion liability at 50:50 basis. 28.Refer to the case of Benedeta Wanjiku Kimani v Changwon Cheboi & another (2013) eKLR. 29.The 1st Defendant being the registered owner of motor vehicle registration number KCV 881C is held vicariously liable for the actions of its authorized driver.The award of general damages under the Law Reform Act 30.With regard to the award under pain and suffering, the Plaintiffs sought for Kshs. 100,000/=and/or Kshs. 200,000/= as the deceased died on the same day. The Defendants submitted that the deceased died instantly as such Kshs. 20,000/= would be reasonable. 31.The evidence on record shows that the deceased died on the spot. This court relies on the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (2019) eKLR in awarding Kshs. 20,000/= under this heading. 32.For the award under loss of expectation of life, the Plaintiffs contend that the deceased enjoyed good health. He was said to be a man of means who would have lived a good life. An award of Kshs. 200,000/= was said to be reasonable. The Defendants submitted that an award for loss of expectation of life is usually nominal hence Kshs. 70,000/= would be reasonable. 33.This Court will award Kshs. 100,000/= being the conventional sum awarded by courts under this head. Reliance is placed on among other cases the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another (2017) eKLR.The award of general damages under the Fatal Accidents Act 34.In respect of the award for loss of dependency, the Plaintiffs aver that the deceased was aged 26 years and was working as a dental technologist with an expected salary of Kshs. 369,770/= upon placement by the government in accordance with the collective bargaining agreement of 2013 between the Ministry of Health and the Kenya Medical Practitioners, Pharmacists and Dentists’ Union. 35.The Defendants submitted that the deceased’s income was Kshs. 30,000/=. 36.This court concurs with the Defendants and will adopt the amount of Kshs. 30,000/= being the last known net salary that the deceased was paid when he was offered temporary employment for three months as a Dental Technologist at St. Mary’s Hospital Mumias. 37.There is no other evidence placed before this court in respect of the deceased’s earnings. Further no evidence has been placed before this court to show that the collective bargaining agreement of 2013 between the Ministry of Health and the Kenya Medical Practitioners, Pharmacists and Dentists’ Union was ever implemented and that the deceased had benefitted from the same. 38.The Plaintiffs submit that the deceased died at the age of 26 years and would have worked up to the age of 60 years being the official government retirement age. They proposed a multiplier of 34 years. The Defendants propose a multiplier of 25 years due to natural vicissitudes of life. 39.This Court relies on the case of Kenya Wildlife Service v Joseph Musyoki Kalonzo (2017) eKLR in adopting a multiplier of 30 years. 40.With regard to the dependency ratio, this court finds that the deceased left behind his wife and child who he is expected to have been taking care of. The deceased was also said to have been taking care of his brother and elderly mother. However, there is no evidence of the same. 41.Nevertheless, this Court will adopt a dependency ratio of 2/3. For the deceased to have been taking care of his wife and daughter as submitted he must have been using more than 1/3 of his earnings on the same. 42.Refer to the case of Kemfro Africa Ltd t/a Meru Express & another v A.M. Lubia & another (1982-88) 1 KAR 727 where the Court of Appeal approved the use of the 2/3 ratio where the deceased supported a spouse and children. 43.Under this heading the calculation will be as follows;Kshs.30,000 x 30 years x 12 months x 2/3 = Kshs.7,200,000/=The award for Special Damages 44.Lastly, the Plaintiffs claimed for special damages of Kshs. 140,100/= . 45.It is trite law that special damages must be specifically pleaded and proved. 46.Refer to the case of Hahn V. Singh, Civil Appeal No. 42 of 1983 (1985) KLR 716, where the Court of Appeal held as follows:-“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. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 47.The Defendants only dispute Kshs. 80,000/= being the amount incurred for acquiring ad litem grant. They claim that legal fees does not form part of special damages. The Plaintiffs produced a receipt for the payment of Kshs. 80,000/= being the amount paid for obtaining the grant ad litem. 48.This court will be guided by the Court of Appeal case of Hellen Waruguru Waweru v Kiarie Shoe Stores Ltd (2015) eKLR where it was confirmed that expenses for a grant ad litem can be compensated if strictly proved. 49.The Plaintiffs produced a receipt for Kshs. 80,000/= for obtaining the grant ad litem. The Defendants should differentiate between legal fees for the instant case and legal fees for obtaining grant ad litem for purposes of instituting the instant suit. 50.Costs follow the event and are awarded to the winning party being the Plaintiffs herein. In the case herein, both parties have been blamed for the accident with the Defendants being apportioned on an equal ratio of blame as such the judgment is in favour of the Plaintiffs. 51.Refer to the case of Orix (K) Limited v Paul Kabeu & 2 others (2014) eKLR where the court held inter alia that:-“………the court should have been guided by the law that costs follow the event, and the plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. None of the deviant factors are present in this case and the court would still have awarded costs to the plaintiff, which I do.” Findings And Determinations 52.For the foregoing reasons this Court makes the following findings and determination.i.Judgment be and is hereby entered in favour of the Plaintiff as follows:-a.Liability on 50:50 basisb.Pain and suffering Kshs. 20,000c.Loss of expectation of life Kshs. 100,000d.Loss of dependency Kshs. (30,000 x 30 years x 12 x 2/3)Kshs. 7,200,000Sub -Total Kshs 7,320,000/-Less 50% Contribution Kshs 3,660,000e.Special damages Kshs. 140,100Total Kshs. 3,800,100/-f.Plus costs and interest at court rates.Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 22ND DAY OF MAY, 2026.A. MSHILAJUDGEIn the presence of:-Sanja/Millicent – Court AssistantsOlunga for the PlaintiffsOchieng for the Defendants