https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12223

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. E039 OF 2021** **ELIZABETH MARY CASE** (Suing as the legal representative of the estate of) **SZILARD PAUL FRIESKA............................................PLAINTIFF** **-VERSUS-** **DAVID MUTAVA MULWA………….…..…………..……….DEFENDANT** (CONSOLIDATED WITH) **CIVIL CASE NO. E040 OF 2021** **DAVID S. LEE & CAROLE SEDNAOUI** (Suing as the legal representative of the estate of) **CYNTHIA SEDNAOUI…………......................................PLAINTIFF** **-VERSUS-** **DAVID MUTAVA MULWA………….……..…...…..……….DEFENDANT** AND **CIVIL CASE NO. E041 OF 2021** **DAVID S. LEE & CAROLE SEDNAOUI** (Suing as the legal representative of the estate of) **CARL RICHARD SEDNAOUI.......................................PLAINTIFF** **-VERSUS-** **DAVID MUTAVA MULWA……………..…………..……….DEFENDANT** **JUDGMENT** **Pleadings** 1. **Elizabeth Mary Case**, *(suing as the legal representative of the estate of* Szilard Paul Frieska) – the Plaintiff in Nairobi Milimani HCCC. No. E039 of 2021; **Camille Sednaoui & Carole Sednaoui** *(suing as the legal representative of the estate of* Cynthia Sednaoui) – Plaintiffs in Nairobi Milimani HCCC. No. E040 of 2021 and **David S. Lee & Carole Sednaoui** *(suing as the legal representative of the estate of* Carl Richard Sednaoui) – Plaintiffs in Nairobi Milimani HCCC. No. E041 of 2021 vide their respective amended plaints dated **04/10/2023**, **03/10/2023** and **28/09/2023** sued **David Mutava Mulwa** *(hereafter the Any other relief the Court deems fit to grant. Defendant) seeking judgment by way of-;* *a) Damages under the Carriage by Air Act, the Warsaw Convention, Fatal Accident Act, the Law Reform Act;* *b) Special damages-;* *i. HCCC. No. E039 of 2021 – USD 8900* *ii. HCCC. No. E040 of 2021 – EURO 8043* *iii. HCCC. No. E041 of 2021 – EURO 8043* *c) Interest on the said damages at such rate and for such a period as the Court deems fit.* *d) Costs of the suit.* 1. The Plaintiffs aver that at all material time relevant to the suit, the Defendant was the registered owner of the aircraft registration 5Y-BSE; S/N U206 – 0369; TYPE C206 *(hereafter aircraft)*, to wit, on 13/02/2019 the **Szilard Paul Frieska, Cynthia Sednaoui** and **Carl Richard Sednaoui** were fare paying passengers lawfully travelling aboard the aircraft from Mara to Lodwar when the Defendant, his employee or agent so negligently controlled and managed the said aircraft causing it to crash at Londiani – Kericho County. 2. As a consequence of the above crash Szilard Paul Frieska, Cynthia Sednaoui and Carl Richard Sednaoui *(hereafter Deceased)* instantly succumbed to their respective injuries. The Plaintiffs went on to aver that the Defendant was wholly liable pursuant to the provisions of the **Carriage by Air Act**, the **Warsaw Convention** and the Plaintiffs would equally rely on the Doctrine of *Res Ipsa Loquitor*. **Nairobi Milimani HCCC. No. E039 of 2021** 1. That at the time of the Deceased's untimely demise he worked as the Head of the Syrian Mission UN – Habitat and was based in Damascus Syria, with an income after tax of USD 180,000 per annum whereas he contributed to school fees for his teenage daughters. That he was 51 years of age enjoying good health, living a happy & vigorous life with the prospects of considerable advancement in his career with income likely to increase therefore the fatal accident deprived the Deceased of a substantial portion of his life-lease, which caused loss and damage to his estate. **Nairobi Milimani HCCC. No. E040 of 2021** 1. That at the time of the Deceased's untimely demise she worked as a General Manager at Benson LLC, whereof her income – after tax – was USD 54,000 per annum. The Deceased was 53 years of age, enjoying good health, living a happy & vigorous life with the prospects of considerable advancement in her career with income likely to increase therefore the fatal accident deprived the Deceased of a substantial portion of her life-lease which caused loss and damage to her estate. **Nairobi Milimani HCCC. No. E041 of 2021** 1. At the time of the Deceased's untimely demise he worked as a Marketing Engineer and ran a successful business as a founding partner in Mailcharts LLC Tech Company based in New York- USA whereas his income – after tax – was USD 170,000 per annum. That he was 35 years of age, enjoying good health, living a happy & vigorous life with the prospects of considerable advancement in his career with income likely to increase therefore the fatal accident deprived the Deceased of a substantial portion of his life-lease, which caused loss and damage to his estate. 2. **The Defendant’s statements of defence in the consolidated suits all dated 25/08/2021,** admitted to owning the Aircraft in question meanwhile averred to not having obtained the necessary approvals from the Kenya Civil Aviation Authority (KCAA) to fly the Aircraft commercially further stating that he bought the said Aircraft for his son’s personal use, who had qualified for his Private and Commercial Pilot License in both the USA and Kenya. 3. He stated that, on the fateful date, he was shocked to learn of the aircraft’s accident which equally led to the death of his son and the Deceased-Plaintiffs. The Defendant went on to deny the other key averments and particulars of negligence pleaded in the respective plaints however stated that the aircraft was duly maintained, insured and had a valid Certificate of Airworthiness. 4. On 27/03/2025 by leave of court, the suits were consolidated for disposal, and thereafter on 30/09/2025 **Nairobi Milimani HCCC. No. E039 of 2021** was selected as the lead file in respect of the question of liability however as concern the question of awardable damages the Plaintiffs were to testify in their respective suits. 5. The parties further consented that the witness statement of **Carole Sednaoui**, the list of documents and supplementary list of documents dated 17/03/2025 in **Nairobi Milimani HCCC. No. E040 & E041 of 2021** be respectively adopted and adduced into evidence as exhibits before the Court. 6. It was likewise consented to that the documents appearing in the Defendant’s list of documents dated 15/11/2021 in **Nairobi Milimani HCCC. No. E039, E040 & E041 of 2021**, be similarly adduced without calling the respective makers. 7. Having set out the above, the suit proceeded to full hearing. **Plaintiff’s case and Evidence** 1. In Nairobi Milimani HCCC. No. E039 of 2021, Elizabeth Mary Case, testified as PW1. She identified herself as a representative of the estate of the late Szilard Paul Frieska meanwhile went on to adopt her witness statement dated 04/10/2023 as her evidence in chief. The gist of her evidence was the Deceased was a fare paying passenger aboard the aircraft and that as a result of the accident on 13/02/2019, he immediately succumbed to his injuries. 2. She stated that as a result of the aforestated, the Deceased’s estate suffered immense pain, loss and suffering from the latter’s untimely demise having left behind a widow and two (2) children, to wit, the estate now claims damages as pleaded in the plaint. 3. **On cross examination**, she maintained that the Deceased was a fare paying passenger aboard the Aircraft wherein the amount was paid as a package which included accommodation, flights and scenic safaris. That the monies were partly paid to Aerocruise Ltd and Desert Rose Hotel whereas she had not evinced any contract(s) to show the relationship between the Deceased and the above-mentioned service providers. 4. She confirmed that Aerocruise Ltd was not a party to the instant proceedings whereas the Defendant was not the pilot of the flight in question and that there was no relationship between the Defendant, Aerocruise Ltd and Desert Rose Hotel. She maintained that the Defendant was the registered owner of the Aircraft however she had not sued the estate of the pilot. 5. **In re-examination,** she stated that onus was on the Defendant to enjoin Aerocruise Ltd and Desert Rose Hotel to the instant proceedings adding that the Defendant and pilot of the Aircraft had a father and son relationship therefore the Defendant had a duty to ensure the Aircraft was mechanically sound for use. **Defendant’s Case and Evidence** 1. On behalf of the Defendants in the three consolidated suits **David Mutava Mulwa** testified as **DW1.** He proceeded to adopt his witness statement dated 15/11/2021 as his evidence in chief meanwhile adduced the documents appearing in his list of documents of event date, in the respective suits, as **Dexh.1 - 7**. The kernel of his evidence was that he was the registered owner of the accident Aircraft which he purchased for the private use of his son, Kevin Mwanza Mutava**,** a duly licensed commercial pilot. He stated that the aircraft was airworthy, properly insured, and not operating as a commercial aircraft on the date in question, in which his son and four passengers died. 2. He testified that he neither knew nor authorized the passengers to travel in the aircraft and only later learnt that Kevin had allegedly agreed, at the request of Paul Wegoye**,** to ferry certain persons in exchange for reimbursement of fuel costs which he contended did not amount to commercial gain. 3. He further stated that the Plaintiffs have concealed the true nature of the transaction and failed to join the persons or entities allegedly responsible for arranging or paying for the flight, as well as the estate of the deceased pilot if negligence is alleged against him. 4. Though expressing his condolences to the families of those who died, he insisted that the Aircraft was duly insured for private - use purposes, denied owing any duty of care to the Deceased passengers, denied any employer–employee relationship with his son, contended that he is being wrongly held liable for the acts of third parties, arguing that the suit be dismissed with costs. 5. **On cross examination**, he confirmed that at the time he was the registered owner of the Aircraft however was not operating the same nevertheless went on to state that he did not evince any material to show that the Aircraft was being operated by someone else. He went on to state that as the registered owner of the Aircraft it was his duty to ensure that he tracked the Aircraft’s usage and its daily operations. That he was unaware of the Aircraft use on the date in question as his son did not inform him that he was to carry passengers on the fateful day. 6. **In re-examination**, he confirmed being listed as the registered owner of the Aircraft in the Certificate of Airworthiness. He maintained the Aircraft was for private use, not for commercial purposes, therefore he could not monitor the same save for pilot logs. He concluded by stating that on the date in question the Aircraft was flying private and was not for hire. 7. At the close of the trial, directions were issued on filing of written submissions. The parties duly complied and were afforded an opportunity to highlight the same. **Plaintiff’s Submissions** 1. At the outset, counsel for the Plaintiffs began by setting out the history and background leading up to the suits, meanwhile addressed the Court on three (3) cogent issues. Submitting on the Defendant’s liability under the **Carriage by Air Act**, **Warsaw Convention** and by extension the **Montreal Convention 1999,** counsel summarily argued that liability principally attaches as against the Defendant’s from the above legislation, which forms part of Kenyan law by dint of **Article 2** of the **Constitution** and **Sections 2 & 3 of the Carriage by Air Act**. 2. Although the Act originally domesticated the Warsaw Convention, he added that definition of "Convention" extends to subsequent conventions ratified by Kenya, including the Montreal Convention. Reliance was placed on the decision in **Frontier Optical Networks Limited v Ethiopian Airlines & 2 others (Civil Case No. 205 of 2019) [2021] KEHC 142 (KLR)**. 3. Counsel further argued that the Defendant admitted to being the registered owner and operator of the Aircraft and, as such, was a recognized "carrier" under the **Carriage by Air Act** and the **Montreal Convention**. That any person organizing or piloting the aircraft acted as the Defendant's servant or agent, to wit, counsel rejected the Defendant's contention that the flight was private by arguing that the Act expressly extends to non-international carriage and does not exclude private or domestic flights. 4. While calling to aid the decision in **Transworld Safaris (K) Limited v Robin Makori Ratemo [2008] KECA 322 (KLR)** and the Indian decision in **National Aviation Company of India Ltd v S. Abdul Salam (High Court of Kerala, India, 25 August 2011)**, counsel argued that **Article** **17** of the **Montreal Convention** imposes strict liability once it is established that a passenger suffered death or injury in an aircraft accident, without proof of negligence. Counsel went on to posit that under **Article 21(2)** of the **Montreal Convention** the burden shifted to the Defendant to prove the statutory defences, which he neither pleaded nor established. Accordingly, they contend that the Defendant's liability is unlimited. 5. Addressing the Court on the Defendant’s liability under the **Fatal Accident Act and Law Reform Act**, it was summarily submitted that the Defendant is liable under the above statutes both vicariously for the acts of the pilot and directly for his own negligence as owner and operator of the aircraft. Counsel relied on the definition of "operator" in **Section 2** of the **Protection of Aircraft Act**, to argue that the Defendant's admissions that he owned, operated and was responsible for monitoring the aircraft established a continuing duty of operational oversight. 6. Additionally counsel submitted that the Defendant's admission that he was unaware of the fatal flight demonstrates negligence rather than exoneration, and that his failure to verify the identity or role of the person who allegedly arranged the flight further evidences a lack of operational control. Counsel argued that the Defendant cannot evade liability by disclaiming knowledge of the use of his own aircraft and that his failure to prevent its use for passenger carriage constituted a breach of duty, rendering him wholly liable for the accident. 7. On awardable damages, counsel contended that while the **Montreal Convention** governs the extent of liability, the assessment of damages is governed by domestic law, namely the **Fatal Accidents Act** and the **Law Reform Act**. For the foregoing, the Plaintiffs seek damages under the conventional heads of pain and suffering, loss of expectation of life, loss of dependency and special damages in each suit. **Nairobi Milimani HCCC. No. E039 of 2021** 1. Counsel submitted that the Deceased's violent death justified enhanced awards for pain and suffering and loss of expectation of life. It was contended that the violent nature of aircraft crash justified a higher award for pain and suffering than would ordinarily arise in road traffic accidents, proposing an award in the sum of **USD 1,000**. 2. On loss of expectation of life, though counsel acknowledged the conventional award of Kshs.100,000/-**,** the Court was urged to consider recent judicial pronouncement alongside inflationary trends to award the sum of **USD 1,300** being reasonable and fair in the circumstance. 3. Regarding loss of dependency, counsel argued that the Deceased was aged 51 years at the time of his untimely demise, employed by UN-Habitat with an annual net income of **USD 246,136.64,** survived by his widow and two (2) children, and subject to a United Nations retirement age of 65 years established by a United Nations General Assembly Resolution adopted on 23/12/2015. Therefore, he proposed a multiplicand of **USD 246,136.64,** a multiplier of 14 years and a dependency ratio of **2/3**, producing a dependency claim of **USD 2,297,275.31** as being reasonable and fair compensation. 4. On special damages, which consisted of funeral expenses, although no receipts were produced, counsel submitted that the pleaded sum of **USD 8,900** should nonetheless be awarded given that Courts have consistently relaxed the strict proof requirement regarding funeral expenses in fatal accident claims. Reliance was placed on the decision in **Easy Coach Limited & another v Elizabeth Musondi Justice Okwero (Suing as the Legal Representative of the Estate of Ignatious Oketch Ombara) [2015] KECA 865 (KLR)** and **Jacob Ayiga & another v Simon Obayo, Civil Appeal No. 167 of 2002** (unreported)**.** 5. It was further argued that the original **Article 21** limit of 100,000 SDR has since been revised to 151,880 SDR through an International Civil Aviation Organization communication, which they convert to equate to **USD 205,038** using an SDR conversion rate of USD 1.35. Therefore, the latter amount constituted the Defendant's strict liability under **Article 21(1),** while the balance remains recoverable because the Defendant failed to establish any defence under **Article 21(2)**, a consequence of the Plaintiff seeks the full sum of **USD 2,308,475.31** in general and special damages. **Nairobi Milimani HCCC. No. E040 of 2021** 1. Here, counsel advanced substantially similar submissions as in Nairobi Milimani HCCC. No. E039 of 2021 regarding pain and suffering and loss of expectation of life, thereby proposing an award of **USD 1,000** and **USD 1,300** respectively. 2. Regarding loss of dependency, it was submitted that the Deceased was aged 53 years at the time of her untimely demise earned **USD 54,000 annually**, had an expected retirement age of 64 years under Lebanese private-sector law. 3. It was further submitted that although the Deceased left no spouse or children, the Plaintiff pleaded that the Deceased financially supported her mother and two (2) of her siblings. In urging the adoption of a dependency ratio of 2/3, counsel relied upon the decision in **Karuku v Mwai & another (Suing as Personal Representatives and Administrators of John Muriuki Muceke (Deceased)) (Civil Appeal No. E093 of 2022) [2023] KEHC 24803 (KLR)**. Therefore, a proposed a multiplicand of **USD 54,000,** a multiplier of 11 years and a dependency ratio of **2/3**, producing a dependency claim of **USD 396,000** as being reasonable and fair compensation. 4. On special damages, which consisted of funeral expenses, although no receipts were produced, counsel submitted that the pleaded sum of **EUR 8,043 (approximately USD 9,488)** should nonetheless be awarded. The decision in **Easy Coach Limited** (supra) was cited in the above regard. Further, and as earlier submitted applying the revised SDR limit under **Article 21**, counsel contended that the Defendant remains liable for the entire claim of **USD 407,788** in general and special damages because no Article 21(2) defence was established. **Nairobi Milimani HCCC. No. E041 of 2021** 1. Likewise, counsel advanced similar submissions as in Nairobi Milimani HCCC. No. E039 & E040 of 2021 regarding pain and suffering and loss of expectation of life, thereby proposing an award of **USD 1,000** and **USD 1,300** respectively. 2. Regarding loss of dependency, it was submitted that the Deceased was aged 31 years at the time of her untimely demise earned **USD 173,234 annually**, as a marketing engineer and entrepreneur in New York. Since there is no statutory retirement age in the United States private sector, they urge the Court to adopt the prevailing life expectancy of **78.5 years.** 3. It was further submitted that although the Deceased was unmarried and childless, the Plaintiffs pleaded that the Deceased financially supported his mother and two siblings. In urging the adoption of a dependency ratio of 2/3, counsel relied upon the decision in **Karuku v Mwai** (supra)**.** Therefore, a proposed a multiplicand of **USD 173,234,** a multiplier of 47 years and a dependency ratio of **2/3**, producing a dependency claim of **USD 5,427,998.67**. as being reasonable and fair compensation. 4. On special damages, which consisted of funeral expenses, although no receipts were produced, counsel submitted that the pleaded sum of **EUR 8,043 (USD 9,488)** should nonetheless be awarded. Again, the decision in **Easy Coach Limited** (supra) was cited in the above regard. Further, and as earlier submitted, applying the revised SDR limit under **Article 21**, counsel contended that the Defendant remains liable for the entire claim of **USD 5,439,786.67** in general and special damages because no Article 21(2) defence was established. 5. In conclusion, counsel urged the Court to find the Defendant fully liable under the **Carriage by Air Act** and the **Montreal Convention 1999**, or alternatively under the **Fatal Accidents Act** and the **Law Reform Act**. That the evidence established that the Defendant was the registered owner and operator of the Aircraft, that the accident fell within the statutory carriage by air regime, and that the Defendant failed to discharge the burden of exoneration under **Article 21(2)**. That in any event, the evidence established negligence and breach of duty under domestic law therefore judgment for the quantified damages in each suit together with costs and interest ought to be issued. **Defendants Submissions** 1. Equally, counsel for the Defendant began by setting out a brief history and background leading up to the suits meanwhile addressed the Court on two (2) salient issues. Concerning whether the Defendant is contractually and statutorily liable for accident, counsel submitted that no liability attaches to him under the **Carriage by Air Act** or the **Warsaw Convention** because such liability presupposes the existence of a contract of carriage between the carrier and the passengers. 2. The evidence established that the Deceased passengers contracted with Aerocruise Ltd, purchased their flights through that entity, and not from the Defendant. Further, at the time of the accident the aircraft had not been licensed for commercial operations as the requisite approvals from the Kenya Civil Aviation Authority (KCAA) and an Air Operator Certificate (AOC) had not been obtained. 3. Consequently, it was submitted that the Defendant neither bore contractual liability as carrier nor statutory liability under the Act. While citing **Article 3** of the **Warsaw Convention** regarding the issuance of passenger tickets identifying the carrier, and **Section 4(3)** of the **Carriage by Air Act**, counsel arguedthat although **Article 17** imposes strict liability upon a carrier, such liability does not arise against a person who was neither the contracting carrier nor the operator of the flight. 4. Further it was argued that even if the Court were to construe **Section 4(3**) as imposing strict liability, strict liability is not synonymous with absolute liability and remains subject to recognized exceptions, including unforeseeable external events and third-party acts. While calling to aid the English decision in **Caparo Industries Plc v Dickman [1990] 2 AC 605**, counsel posited that the Plaintiffs failed to establish that the Defendant owed the Deceased passengers a legal duty of care. 5. That theIt was submitted that the Defendant neither knew nor authorised the flight, was not involved in the arrangements for the passengers, and therefore no proximate relationship existed between him and the Deceased. It was further argued that the Plaintiffs' own documentary evidence demonstrated that all invoices were issued by **Aerocruise Ltd**, the entity that organized the flight and received payment, yet the Plaintiffs neither sued nor joined that entity despite opportunities to do so. Accordingly, the counsel maintained that any contractual or statutory liability, if at all, lay against Aerocruise Ltd and the Defendant. 6. As to whether the doctrine of *Res Ipsa Loquitur* is applicable, in the circumstance counsel posited that the surrounding circumstances of the accident were known and that the evidence displaced any presumption of negligence. The East African Court of Appeal decision in **Embu Public Road Services Ltd v Riimi [1968] EA 22 as cited in Susan Kanini Mwangangi & another v Patrick Mbithi Kavita [2019] KEHC 9906 (KLR)** was cited in the above regard, that the Aircraft was duly maintained, possessed a valid Certificate of Airworthiness, was insured, and was flown by a duly qualified and licensed pilot whose maintenance and flight records were produced in evidence. Counsel maintained that the fatal flight was undertaken entirely without the Defendant’s knowledge or authority and outside the latter’s control, and that nothing further could reasonably have been done by him to prevent or foresee the accident. 7. Concerning whether negligence and vicarious liability was established counsel submitted that the Plaintiffs failed to establish negligence because no duty of care, breach or causation was proved. Relying on **Donoghue v Stevenson [1932] AC 562**, counsel argued that the Defendant neither authorised nor knew of the flight and had complied with all regulatory requirements applicable to the Aircraft's private use. Citing the decision in **Anyanzwa v Gasperis [1981] KECA 2 (KLR),** counsel argued thatownership alone does not attract vicarious liability therefore the actions of the pilot and Aerocruise Ltd cannot be attributed to the Defendant. 8. Alternatively, and without prejudice to the Defendant’s submission on liability, addressing the issue of awardable damages, counsel argued that the Plaintiffs' proposed award of **USD 1,000** on pain and suffering, is excessive because the evidence demonstrates that death occurred almost instantaneously following the crash. While placing reliance on the decision in **Edner Gesare Ogega v Aiko Kebiba (Suing as Father and Legal Representative of the Estate of Alice Bochere Aiko (Deceased)) [2015] KEHC 4250 (KLR)**, counsel proposed an award of **Kshs. 20,000 (USD 154.50)** to posit that only nominal damages are ordinarily recoverable where death follows immediately after the accident. 9. Regarding loss of expectation of life, the counsel submitted that the Plaintiffs' proposed award of **USD 1,300** is inconsistent with prevailing jurisprudence. He relied on **Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR)**, where the Court awarded **Kshs. 100,000** under the said head, of which he urged the Court, to adopt in each suit. 10. On loss of dependency, the counsel did not dispute the Deceased persons' incomes or family circumstances but submitted that the Plaintiffs adopted excessive multipliers and dependency ratios. 11. In **HCCC No. E039 of 2021**, counsel argued that the Deceased was already approaching retirement and that his children would remain dependent for only a limited period, proposing a dependency award calculated using a multiplicand of USD 246,136.64, a 9-year multiplier and a 1/3 dependency ratio thereby arriving at an award of **USD 738,409.92.** 12. In **HCCC No. E040 of 2021**, counsel submitted that the surviving beneficiaries were adult siblings and a mother, warranting a 7-year multiplier, 1/3 dependency ratio and multiplicand of USD 54,000 thereby arriving at an award of **USD 126,000**. 13. And in **HCCC No. E041 of 2021**, counsel similarly argued that the surviving beneficiaries were capable adults and proposes a 20-year multiplier, a 1/3 dependency ratio with multiplicand of 173,234 thereby arriving at an award of **USD 1,154,893.33** 14. *As regards special damages,* while calling to aid the decision in **Hahn v Amrik Singh [1985] KECA 68 (KLR)** counsel echoed the above decision by contended that they must be specifically pleaded and strictly proved. In the respective suits, the Plaintiff expressly admitted that receipts or invoices for the claimed funeral expenses were unavailable therefore no award should be made. 15. However, concerning the claim in HCCC No. E040 of 2021, while maintaining that the pleaded amount was unproved, counsel acknowledged the production of a certificate of cremation and submitted that any award should be limited to the ordinary cost of cremation in Kenya, in the sum of **Kshs. 65,000/- (USD 501.48).** 16. In conclusion, counsel maintained that the Plaintiffs failed to establish contractual liability, statutory liability, negligence or vicarious liability against the Defendant. That ownership of the Aircraft alone is insufficient to impose liability, to wit responsibility lay, if at all, with Aerocruise Ltd and the pilot therefore all three (3) consolidated suits ought to be dismissed with costs. **Analysis and Determination** 1. The Court has carefully considered the respective parties’ pleadings, the evidence adduced by respective witnesses, and the parties' written submissions, therefore, the Court crystallizes the following as the **Issues for determination-:** 1. *Whether the Plaintiffs have made out a case on liability against the Defendant on a balance of probabilities?* 2. *Whether the Plaintiffs are entitled to the reliefs sought in their respective suits?* 3. *Who ought to bear the costs of the respective suit(s)?* ***Whether the Plaintiffs have made out a case on liability against the Defendant on a balance of probabilities?*** 1. Pertinent to the determination of the issue are the pleadings, which forms the basis of the respective parties’ case before this Court. See-; **Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91**. Akin to pleadings is evidence in support of the pleadings. 2. To the above end, the applicable law as to the burden of proof is found in **Section 107, 108** and **109** of the **Evidence Act**. In **Karugi & Another v Kabiya & 3 Others (1987) KLR 347** the Court of Appeal stated that-: *“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”* 1. The undisputed facts are that the legal representatives of the respective estates of the Deceased-Plaintiffs, instituted the consolidated suits arising from a fatal aircraft accident. The parties are further in agreement that the Defendant was the registered owner of the aircraft whereas the Deceased passengers had boarded the same for purposes of a scenic excursion, which aircraft at the time was being piloted by the Defendant's son, who also died in the accident. 2. The parties also agreed on the identity of the Deceased persons, the capacity in which the Plaintiffs sued, the occurrence of the accident giving rise to the claims, and the heads of damages sought, namely pain and suffering, loss of expectation of life, loss of dependency and special damages. 3. Upon the aforestated, their dispute lies not in those foundational facts but in the legal consequences flowing therefrom, particularly whether the Defendant, as registered owner and alleged operator of the aircraft, bears liability under the **Carriage by Air Act** & applicable international convention, or alternatively under the common law, the **Fatal Accidents Act** and **Law Reform Act** through negligence; whether the Defendant owed the Deceased a duty of care; application of the doctrine of *Res Ipsa Loquitor* and, should liability be established, the proper principles and quantum for assessment of damages. 4. Firstly, concerning whether the provisions of the **Carriage by Air Act** and by extension of **Montreal Convention**, are applicable? Here, it is not in dispute that legislation concerning passenger compensation rights are encompassed within the **Civil Aviation Act** and the **Carriage by Air Act** touted as an Act of Parliament, to provide for the control, regulation and orderly development of civil aviation in Kenya; and for connected purposes whereas the latter is titled as an Act of Parliament to give effect to the Convention concerning international carriage by air, known as "the Warsaw Convention as amended by the Hague Protocol, 1955," to enable the rules contained in that Convention to be applied, with or without modifications, in other cases and, in particular, to non- international carriage by air; and for connected purposes. 1. As rightly, submitted by the Plaintiffs, which submission is in concurrence with this Court’s rendition in **Peer Coret v Kenya Airways Ltd [2016] KEHC 4254 (KLR)**, the convention referred to in the **Carriage by Air Act** is the convention set out in the first schedule of the Act, that is, the Convention for the Unification of certain Rules relating to International Carriage by Air, signed at Warsaw later amended by the Hague Protocol and now been replaced by the **Montreal Convention**. 2. To the foregoing, it is trite that the **Montreal Convention** was ratified in Kenya on the 07/01/2002 and has been in operation since November, 2003 and is applicable in Kenya by virtue of **Article 2(5)** of the **Kenya Constitution**. 3. Notably, by dint of **Section 11** of the **Carriage by Air Act** as read with **The Carriage by Air (Application of Convention Order) 1993** the effect of the above legislation and provisions is that domestic commercial flights within Kenya are generally governed by the same liability regime as international flights, except for the Convention provisions expressly excluded by **The Carriage by Air (Application of Convention Order) 1993**. 4. Therefore, where a passenger is injured or dies while aboard a domestic commercial flight, the rights and liabilities of the carrier are determined principally by the **Carriage by Air Act and the Convention** as applied by the **1993 Order** and not solely by common law of negligence or contract. The aforestated determination which brings to fore the earlier question whether **Carriage by Air Act** and the **Montreal Convention** are actually applicable to the Plaintiffs in the instant suit?. 5. It is not in dispute that the aircraft in question, that is the subject matter of the dispute, was a domestic flight. Further, as can be garnered from **Dexh.1 & 5**, the aircraft was duly registered in the name of the Defendant and licensed to operate as a Commercial Air Transport (Passengers). 6. It is trite that the scope of **Carriage by Air Act** as read alongside **The Carriage by Air (Application of Convention Order) 1993** and **Article 1** of the **Montreal Convention**, applies to carriage of persons by aircraft for rewards or gratuitous carriage. Therefore, I agree with the Defendant’s supposition, as may be gathered from **Article 3** of the **Montreal Convention** the application of Convention presupposes the existence of a contract of carriage between the carrier and the passengers. 1. The Plaintiff’s pleaded in their respective plaints that they were fare paying passengers lawfully travelling within Kenya from Mara to Lodwar on the Aircraft in question. However, from their respective documents relied upon in support of their claims and evidence by **PW1** there was no evidence and exchange of consideration between the Deceased passengers and the Defendant. Specifically, it was **PW1’s** evidence that monies were partly paid to Aerocruise Ltd and Desert Rose Hotel, in respect of the scenic excursion. 1. Therefore, while it is not in dispute that the Deceased passengers met their untimely deaths while aboard the Defendant’s aircraft, it is apparent that they were not on premise of either paid or a gratuitous contract of carriage. It is the Court’s reasonable deduction that the provisions of the **Carriage by Air Act and Montreal Convention** are inapplicable to the Plaintiffs cause as against the Defendant. 2. As to whether the Defendant and by extension, his employee, servant or agent negligently occasioned the untimely demise of the Deceased-Plaintiffs? This Court has on numerous occasions stated that the mere occurrence of an accident, without more, cannot be proof of negligence. In **Eastern Produce (K) Ltd V. Christopher Atiado Osiro [2006] KEHC 3200 (KLR)**, the court observed that the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The Court in that case cited the famous decision of **Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258** where the Court of Appeal, reiterating the foregoing stated that: *“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”* 1. In **Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] KECA 206 (KLR)** the Courtof Appeal quoted **Lord Reid**in**Stapley v Gypsum Mines Ltd(2) [1953] A.C. 663**at **Pg. 681** as follows-: *“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …* *The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”* (*Emphasis added*) 1. While I am conscious of the fact that the Court in **Gideon Ndungu Nguribu** (supra) was addressing itself to a road traffic accident, the exhortation by Lord Reid in **Stapley** (supra) would reasonably apply with some considerable measure in this matter noting that the consolidated claims herein are founded on tort of negligence leading up to the aircraft accident. 2. Here, from **DW1’**s evidence other than confirming to being the registered owner of the aircraft, it was his evidence that he purchased the aircraft for his son’s, (late Kevin Mwanza Mutava) private use on the backdrop of his accreditation in the USA and Kenya, as a licensed commercial and private pilot. The latter can be gleaned from **Dexh.2.** 3. Therefore, it is not in dispute that while the now Deceased son was duly licensed and authorized to fly the aircraft, it can also be concluded that by dint that **DW1** admitted to having expressly bought the aircraft for his son’s use, the son was lawfully in control of the aircraft, as DW1’s agent. I must qualify that the agency relationship was localized to the use of the aircraft privately though not extending to the commercial usage of the same. 4. As earlier noted, while there was no contract of carriage, it would seem by dint of **DW1**’s evidence that the Deceased-Plaintiffs nevertheless ended up in the aircraft that was in control of the Defendant’s son on account of a favour the latter was executing at the behest of his friend. Particularly, to give a lift to the Deceased- Plaintiff’s in respect of a scenic tour from Maasai Mara to Turkana, wherein the son’s friend would pay for the fuel, meanwhile the Defendant’s son would appear to gain invaluable flight hours. 5. It is unfortunate that all passengers in the flight in question lost their lives. However I note that from the particulars of negligence as stated, the Plaintiffs contended that the Defendant, among others r*ecklessly managed and or controlled the aircraft*, *the Defendant being in control of the aircraft failed to observe its airworthiness*, *the Defendant failed to keep any sufficient regard to the lives of the passengers aboard the aircraft*, and *that the Defendant failed to insure the aircraft with a reputable insurance company*. 6. Firstly, it is apparent that the Defendant was not in control of the aircraft in question. Meanwhile, for obvious reasons neither of the parties called any evidence to support or deflect the question whether the aircraft was recklessly managed and or controlled. As observed in **Eastern Produce (K) Ltd** (supra) where negligence is alleged, some form of negligence must be proved against the defendant. Here, the Plaintiffs having failed to call any evidence to shore up the above particulars of negligence, it would be difficult for the same to attach in the circumstance. 1. Secondly, a perfunctory perusal of **Dexh. 1, 2 3, 4, 5 & 6** it is apparent that the aircraft was legally registered for flight purposes, the Defendant’s son was lawfully licensed to fly the aircraft, the aircraft was functional for flight since 2013, the aircraft was serviced and maintained, the aircraft was Certified Airworthy whereas the aircraft was duly insured at the time of the accident. 2. Therefore, the Defendant aptly deflected the Plaintiff’s assertion concerning certification and airworthiness of the aircraft with evidence in support of the deflections. 3. Further, I note that as at 2019 when the ill-fated accident occurred, the governing legislation concerning aviation safety rules in respect of the aircraft in question was **The Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018** which have since now been repealed by the **The Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2025.** 4. Thirdly, I also note that the Plaintiffs generally pleaded that the Defendant failed to adhere to aviation flight safety rules and regulation towards avoidance of the aforesaid crash. At the risk of repetition, the aircraft was licensed as a Commercial Air Transport (passenger) plane. Therefore, whereas the Defendant’s son was specifically licensed to fly certain small aircraft - commercially, was he licensed to fly the aircraft in question with passengers on board? I don't believe so. 1. Why do I say so? A cursory perusal of the schedule to the insurance policy in respect of the aircraft in question (**Dexh.6b**), shows and captures that the aircraft was insured by the Defendant for Commercial Air Charter. Notably, the **Clause** touching on **Pilots** specifically provided that-; **“Named Pilot** **Kevin Mutava is added as a named pilot in Private Category Only** **Kevin has 251 Total Time Inclusive of 10 hours on type** **As approved by the Insured, subject to a valid Commercial Pilots License with minimum 500 hours total time inclusive of 50 hours on make and model.”** 1. In the above regard, the latter end of the above Clause I believe is informed by **Section 82** of the **Civil Aviation Act** as read with **200(a)(i)** of **The Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018,** to wit, the latter states and I quote-; **An operator shall ensure that—** 1. **Commercial Pilot Licence holder does not operate as a pilot-in-command (PIC) certificated in the Aircraft Flight Manual for single pilot operations unless—** **(i) when conducting passenger carrying operations under visual flight rules outside a radius of 50 nm from an aerodrome of departure, the pilot has a minimum of 500 hours total flight time on aeroplanes or holds a valid instrument rating;** 1. Consequently, given the definition of an “operator” as provided **Regulation 2** of **The Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018** and the fact that the aircraft was insured for Commercial Air Charter, it would appear, that the Defendant owed a statutory duty of care to ensure that any pilot who piloted the aircraft for commercial purposes had the requisite qualification pursuant to **Regulation 200(a)(i)** of **The Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018** 2. In light of the above, it is ostensible the Defendant’s son was not qualified to operate the aircraft in the manner he did on the fateful date whereas the Defendant’s argument that he was unaware of the aircraft’s use on the date in question further accentuates the Plaintiff’s contestation over the Defendant’s negligence over operations and or observation of aviation flight safety rules. 3. As to whether the doctrine of *Res Ipsa Loquitor* would be applicable in the matter? I do not agree with the Defendant’s argument that the surrounding circumstances of the accident were known whereas his evidence displaced in entirety any presumption of negligence. 4. The Court of Appeal while addressing itself to the above doctrine in **David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] KECA 434 (KLR)**, observed in part that the doctrine applies where the occurrence of an accident is such that, in the ordinary course of events, it would not have happened without negligence, particularly where the deceased was an innocent fare-paying passenger who had no control over the operation of the vehicles involved. 5. The Court went on to emphasize that once the plaintiff establishes the occurrence of such an accident and the defendants fail to offer a credible explanation consistent with the absence of negligence, an inference of negligence arises against the defendants, thereby shifting the evidential burden to them to rebut that inference. 6. Here, while I do acknowledge that the above decision concerned a road traffic accident, in my estimation, the emanating principle applies with equal measure in the instant matter. 7. That said, the Court nevertheless concedes that the Defendant’s evidence successfully deflected possibilities over the aircraft’s deficiencies as to maintenance, operation, or airworthiness given this Court earlier finding. However, the Defendant ostensibly failed to efficaciously displace negligence towards compliance with aviation flight safety rules, particularly as may concern the piloting of the aircraft on the fateful date. 8. In the end, I believe the Plaintiffs have made out a case of negligence as against the Defendant on a balance of probabilities. I proceed to hold and find the Defendant wholly liable for the subject aircraft accident. ***Whether the Plaintiff(s) are entitled to the reliefs sought in their respective suits?*** 1. With the above in reserve, ordinarily within our jurisdiction, damages awarded pursuant to a fatal incident claim arising out of a road traffic accident would entail an award under the **Law Reform Act** and **Fatal Accident Act**. 2. Though established earlier in this judgement that the suits before this Court concern a fatal aircraft accident, the Court reasonably deducts that the requisite provisions of the **Fatal Accident Act** as read alongside **Section 2(5)** of the **Law Reform Act**, entitles the Plaintiffs to damages under the said statutes. 3. However, such damages are determined on the basis of the pleadings and the issues of fact or law framed by the parties or Court as held in the case of **Wareham t/a A.F. Wareham** (supra). The Court of Appeal in **North Kisii Central Farmers Limited v Jeremiah Mayaka Ombui & 4 others [2014] KECA 586 (KLR)** further fortified the above position while recapitulating the exhortation *in* **Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2EA 385.** 4. Earlier, concerning damages under the **Law Reform Act** and **Fatal Accident Act**, the Court of Appeal in **Sheikh** **Mushtag Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KECA 42 (KLR)** cited with approval the decision in **Gammel vs Wilson (1981) 1 ALL ER** where it was held that-; *“…….. if sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In civil litigation, it is the balance of probability which matters….”* 1. Having set out the above, customarily this Court would separately address the respective claims however for reasons that will become apparent later in this judgment I will contemporaneously address the respective claims. 2. Under the **Law Reform Act**, the rival submissions were earlier captured in this judgment, to wit, the Court need not revisit the same at this juncture. That said, a cursory perusal of the death certificate in respect ofSzilard Paul Frieska, Cynthia Sednaoui and Carl Richard Sednaoui, it can be observed therefrom that the Deceased immediately succumbed to their injuries on date of the ill- fated accident. 3. Consequently, having considered the rival submissions and drawing some guidance from the Court of Appeal decision in **Mwangi & another (Suing as the Legal Representatives of the Estate of the Late Richard Mwangi Gathoni Deceased) v Ngure & another [2023] KECA 448 (KLR),** I will proceed to award **Kshs. 50,000/-** under the head of **pain and suffering** and **Kshs. 100,000/-** under the head of **loss of expectation of life**. 4. **On the award under the** **Fatal Accidents Act**, from the material adduced in support of the award, the particulars in support of the respective claimants were pleaded earlier in this judgment. Nevertheless, at the risk of repetition, it was averred that Szilard Paul Frieska, Cynthia Sednaoui and Carl Richard Sednaoui at the time of their untimely demise were 51 years, 53 years and 35 years respectively. 5. In particular it was averred that Szilard Paul Frieska worked as the Head of the Syrian Mission UN – Habitat earning an income of USD 180,000 per annum after tax, Cynthia Sednaoui worked as a General Manager at Benson LLC earning an income of USD 54,000 per annum after tax and Carl Richard Sednaoui worked as a Marketing Engineer and ran a successful business as a founding partner in Mailcharts LLC Tech Company earning an income of USD 170,000 per annum after tax. 6. Aside from the question that may concern the respective claimants' dependents, central to the award under the **Fatal Accidents Act** is proof of earnings.To the above end, I will draw some guidance from the decision in **Chunibhai J Patel and Another v PF Hayes and Others (1957) EA 748, 749** wherein it was pithily put that-; *“The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependant, the net earnings power of the deceased i.e. his income and tax and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying a figure representing so many years' purchase. The multiplier will bear a relation to the expectation of the earning life of the deceased and the expectation of life and dependency of the widow and children……..”* 1. Recently, the Court of Appeal in **Cherangany Hills Ltd & another v Wanyama (Suing as the Administrator to the Estate of Brian Khisa Wanyama) [2025] KECA 1030 (KLR)** observed that -; *“27. As we search for an answer to the above question, it is important to mention that court decisions under the Law Reform Act and Fatal Accidents Act emphasize the need for courts to consider the "vagaries of life" when calculating damages, particularly in cases involving loss of dependency or earning capacity. This means accounting for unforeseen events, changes in circumstances, and the potential for the deceased's or plaintiff's circumstances to improve or worsen over time or even death. Therefore, whether a court uses a "multiplier" to estimate future earnings, or a global award, it must always bear in mind factors such as the deceased's age, skills, and potential for advancement, while also considering the possibility that these factors might change to the worse, or even death.* *28.Predicting someone's future earnings with absolute certainty is impossible. There are various factors that can affect earning potential, including health, employment opportunities, and economic conditions. The "vagaries of life" concept recognizes these uncertainties. For example, a person might be promoted, lose their job, face an illness, or experience other life events that could alter their earnings. When calculating damages, courts must consider these potential changes and make reasonable assumptions about the future……”* 1. With the above in reserve, it is trite that an award under the **Fatal Accident Act** is premised on factual material and evidence presented to the Court to shore up the pleadings. From the material presented before this Court, to buttress the respective claims on earnings the Plaintiffs in Szilard Paul Frieska suit relied on a 2017 Schedule of Taxable Earnings from the United Nations of at Nairobi. On the part of Cynthia Sednaoui, Plaintiff’s relied on what the Court perceives to be tax returns for 2017, of which, were in Arabic. Whereas, with respect to Carl Richard Sednaoui, the Plaintiff equally relied on 2017 IRS Tax Returns for the State of New York – USA**.** 2. Firstly, as can be gathered from the material presented before this Court, the Deceased were of foreign nationality. Secondly, while it is apparent that Deceased all meet their untimely demise in 2019, the materials adduced in support of earning concerned their 2017 earnings and therefore were not actual or current. 3. Thirdly, there was no other material placed before the Court such as the Deceased’s certified bank statements and or work permits in respect of the year in which they unfortunately met their demise, to shore the fact that the Deceased’s actually earned the sums supposedly pleaded. 4. Fourthly, while the Court concedes that the Deceased despite being foreign nationals, somewhat must have made a living. However, it was incumbent upon the Plaintiffs to place cogent material, other than dated proof of earnings, to shore up their claim on the Deceased earnings. 5. In any event, nothing hindered the Plaintiff from obtaining certified documentation like a copy of the payslips, state department letters from their Country of origin - confirming earnings or a witness to demonstrate that the Deceased were actually employed, where the Plaintiffs purport they were earning their daily upkeep. 6. The material evinced by the Plaintiffs does not aid their cause and or offer succor in respect of the earnings pleaded. A bank statement would have shed some light to show that indeed the Deceased actually received remuneration from where they purportedly were engaged in employment with their earnings or salary being remitted through a bank account in their respective domicile Country. 7. It is trite that a Court of law does not work on assumptions of material facts. All allegations of fact ought to be proved to the required standard of proof in civil litigation, which is upon a balance of probabilities. 8. Consequently, the Court is unable to adopt the multiplier approach due to lack of specificity. This leaves the Court with only one option; to adopt a global award approach, which would be the best approach given the aforestated circumstances. 9. Therefore, applying my mind to the Court of Appeal decision in **Waweru (Suing as the Legal Representative and Administrator of the Estate of Brian Waweru Mwaura (Deceased)) v Bonafide Clearing and Forwarding Company Limited & another [2025] KECA 620 (KLR)** wherein on appeal, the Court sustained a global award in the sum of Kshs. 5,500,000/- for a 21-year-old about to complete his training as a licensed private pilot and the decision in **Francis K. Righa v Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga [2021] KECA 710 (KLR)** wherein the Court awarded a global award of Kshs. 1,000,000/- for a 59-year-old, meanwhile factoring the age of the Deceased, inflationary trends and that loss of life cannot be monetarily quantified, this Court reasonablyawards **Szilard Paul Frieska** and **Cynthia Sednaoui** **Kshs. 2,500,000/-** whereas **Carl Richard Sednaoui** is awarded Kshs**. 5,800,000/-** in the said subhead. 10. On the award of special damages this Court reiterates the dicta of **Chesoni, J** (as he then was) in the case of **Ouma v Nairobi City Council (1976) KLR 304** held that -: *“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533;-* *The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”* See also-; **David Bagine vs. Martin** **Bundi [1997] eKLR**and **Hahn -v- Singh [1985] KLR 716.** 1. The Plaintiffs had sought special damages in the sum of USD 8900 in respect of the estate of Szilard Paul Frieska whereas Euro 8043 in respect of the estate of Cynthia Sednaoui and Carl Richard Sednaoui. That said, a cursory review of the Plaintiffs material adduced into evidence, other than varied invoices no receipts were adduced over the estate of Carl Richard Sednaoui while nothing else was placed to shore up the respective claims of special damages. 2. It is trite that the Court can only award special damages that have been pleaded and specifically proved. However, I agree with the Plaintiff where special damages have not been proved in fatal accident claims the Court may award reasonable funeral expenses for obvious reasons. 3. Consequently, the Court is inclined to award each of the respective Plaintiffs **Kshs. 500,000/-** in special damages by way of funeral expenses noting that the Deceased were foreign nationals, to wit, it would require repartition of their respective remains. 4. In the end, the Court believes it has reasonably addressed itself to the issue presented for determination and will proceed to award damages as set out earlier in this judgment. **Final Disposition** 1. Accordingly, judgment is entered in favour of the Plaintiff in each of the cases as against the Defendant in the following terms -: 2. **Szilard Paul Frieska** **Damages under the Law Reform Act** 1. **Pain and Suffering Kshs. 50,000.00/-** 2. **Loss of Expectation of Life Kshs. 100,000.00/-** 3. **Damages under the Fatal Accident Act** **Kshs. 2,500,000.00/-** 1. **Special damages Kshs. 500,000.00/-** 2. **Grand total Kshs. 3,150,000.00/-** **B) Cynthia Sednaoui** **Damages under the Law Reform Act** * 1. **Pain and Suffering Kshs. 50,000.00/-** 2. **Loss of Expectation of Life Kshs. 100,000.00/-** 3. **Damages under the Fatal Accident Act** **Kshs. 2,500,000.00/-** * 1. **Special damages** **Kshs. 500,000.00/-** 2. **Grand Total Kshs. 3,150,000.00/-** **C) Carl Richard Sednaoui** **Damages under the Law Reform Act** 1. **Pain and Suffering Kshs. 50,000.00/-** 2. **Loss of Expectation of Life Kshs. 100,000.00/-** 3. **Damages under the Fatal Accident Act** **Kshs. 5,800,000.00/-** 1. **Special damages** **Kshs. 500,000.00/-** 1. **Grand Total Kshs. 6,450,000.00/-** 2. **Special damages at (d) above in all cases shall attract interest at Court rates from the date of filing this suit, while general damages shall attract interest at Court rates from date of this judgment in both cases.** 3. Finally, on the costs of the all cases, upon applying my mind to the provisions of **Section 27** of the **Civil Procedure Act,** I award costs of the suit in favour of the Plaintiffs in each case, to be borne by the Defendant. **Orders Accordingly.** **Delivered Dated and Signed at Nairobi this 30th Day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**