https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/260

Saul v Mega Laser International Ltd (Civil Case E017 of 2025) [2026] KEMC 260 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 260 (KLR) Republic of Kenya In the Port Victoria Law Courts Civil Case E017 of 2025 AK Njeru, SRM June 25, 2026 Between Fredrick Saul Plaintiff and Mega Laser International Ltd Defendant Judgment 1.Vide an amended plaint dated 30th September 2025, the plaintiff has sued the defendant seeking damages, both special and general for the demise of his son who allegedly died as a result of drowning in a pit allegedly dug by the defendant during the construction of the road and hence as a result of defendant’s negligence. 2.According to his pleadings, the plaintiff stated that the defendant was the contractor tarmacking the road namely Bukiri-Sio Port when the defendant dug a 15 deep quarry and failed to place cautionary signs to wit the deceased, his son, drowned from as he fetched water on 2nd January 2025 at around 7.00am. Particulars of the defendants negligence were particularized that he deepened the quarry to 15 feet deep, failed to place cautionary signs along the quarry, failed to place a precautionary sign along the road. The plaintiff sought to rely on the doctrine of res ipsa loquitur. Those surviving the deceased’s estate were his father and his mother. That deceased was 16 years old, enjoyed good health and was a student at Sawagongo High School. The plaintiff listed particulars of special damages suffered as Kshs 10,500 for the death certificate, Kshs 30,000 for the letters of administration and burial expenses. The plaintiff sought judgement against the defendant and compensation for the special damages amounting to Kshs 31,050, general damages under the fatal accidents Act as well as the Law Reform Act , costs of the suit and interest on the damages above court rates. 3.In their statement of defence dated 14th November 2025, defendants denied being the contractors of the stated road, denied digging a 15 feet quarry, denied the demise of the plaintiff, denied liability in negligence as stated by the plaintiff and further stated that the suit raised no reasonable cause of action. The defendant prayed that the suit be dismissed with costs. Plaintiff’s Evidence 4.PW1 Fredrick Saul Mallo reiterated the contents of the plaint and further stated that it was the defendant company that was undertaking the construction of the said road contracted by the County Government of Busia as per the sign post on the road. That it was the defendant that dug the quarry where his son drowned while fetching water. That his son was a form 2 student who was very bright intellectually though he had not availed any proof of his performance nor an admission letter from the said school. he admitted he had no evidence of a contract between the defendant and the County Government and had not sued the County Government as a party. That deceased had no wife nor children. He had also not procedure a receipt for the obtaining of the grant Ad-Litem for Kshs 30,000/=. he also had no photographs of the scene neither did he have evidence that the quarry was 15 feet deep. He went ahead or rely on the documents listed in his list of documents as follows: ID card as Pex no. 1, demand letter as Pex no. 2, Limited Grant of letters of administration as Pex no. 3, receipt for obtaining the grant as Pex no. 4, Letter from the Assistant Chief as Pex no. no. 5, death certificate as Pex no. 6 police abstract as Pex no. 7, post mortem report Pex no. 8, occurrence book report from Sio Port Police station as Pex no. 9, records from Sawagongo High School Pex no 10. 5.PW2 Rose Apondi Amalo also reiterated the contents of the plaint verbatim and went on to add that it was indeed the defendants contracted to construct the said road. That it was the defendants that dud the quarry though she had no evidence of the same. she only knew that defendant was the engineer of the said construction. The deceased had no physical injuries at his time of death. The letter from the school proved he was a student at the said school the post mortem report showed deceased died from drowning. Police report ascertained the quarry was 15 feet deep. 6.PW3 Robert Bwire Amollo testified that he was deceased’s cousin. That it was the defendant who dug the quarry on his parcel of land known as Samia/Buburi/428 without his consent and that the same was never covered. On 2nd January 2025 at around 7.00am, he found the deceased’s body inside the quarry having died from drowning. the matter was reported at Sio Port Police station. That one Edwin was the operator while one Job was the incharge operating the machines. They cared not to place any precautionary signs at the quarry. He tried raining the issue with the Governor who is his neighbor but was asked to leave the project to continue. He had no photographic evidence of the existence of the quarry on his parcel of land. he never reported the trespass by the defendants on his property. He had not produced evidence of ownership of the suit land upon which the alleged quarry was. He had no evidence that defendant was the one constructing the said road and the one who dug the quarry. Defendant’s Evidence 7.DW1 Hassan Ali Shabram testified as the director of the defendant. That at no time did the defendant have a contract to dug a quarry or construct the alleged road. The defendant’s contract was only application of asphalt and concrete on the already dug road.he was not aware of this complainant as none has ever been reported against them to the police. A demand letter was never served upon them but was served upon the County Government of Busia. He prayed that the suit against the defendant be dismissed. He had not provided any evidence as to the extent of the contract on the works of the said road. They only began working on the said road in April 2025 and not September 2024 as indicated in his statement. They were awarded the contract on 16/9/2024 but th budget ws not released until April 2025.he had no Evidence that their work was only limited to application of the tarmac. 8.Plaintiff submitted that they had proved negligence on the part of the defendant and hence prayed that the defendant is held 100% liable for the demise of the plaintiff. On pain and suffering, the plaintiff submitted for an award of damages of Kshs 1,500,000 and cited the case of HCC No. 58 of 1997 Hassan & Anor v Sum properties Ltd [2004] eKLR. On loss of expectation of life, the plaintiff submitted for an award of Kshs 300,000 and relied on the caselaw of Henry Karanja v Joseph Endire NRB HCC 231 of 2007, Mombasa HCC 523 of 2001 case of John Jembe Mumba v Self Mbaruku & Others and Meru HCCC 48 of 2003 Rosemary Epurukel v PC Absolom Kariuki. On loss of dependency, the plaintiff submitted for an award of 3,088,728/=. The plaintiff applied a minimum wage of Kshs 8,579.80, a dependency ratio of 2/3 and 45 years as the time deceased would have worked up to retirement age of 60. He further submitted for special damages of Kshs 5,000. The plaintiff goes on to further submit for a multiplier of 37 years totaling to 1,269,810.40 9.The defendant on its part submitted that there was no cause of action arising against the defendant as no evidence had been provided to prove the defendant dg the quarry in question. That further, the deceased authored his own misfortune by fetching water in a quarry instead of a stream. The plaintiff had also failed to prove existence of the quarry. That PW3 ought to have been the one sued on the basis of occupier’s liability as the alleged property where the said quarry was dug, in the absence of any proof of trespass by the defendant, belonged to him. That the plaintiff had failed to prove any nexus between the County Government of Busia and PW3 for digging of a quarry on his parcel of land. That therefore, the plaintiff had failed to prove liability on the part of the defendant. on quantum payable if any, the plaintiff had failed to prove loss of dependency. On special damages, the plaintiff had failed to prove Kshs 1,050 for the copy of death certificate, Kshs 30,000 for the Grant Ad Litem and hence the claim ought to fail. That further, the cause of death had not been proved by virtue of section 35(1) of the Evidence. That the chef’s letter carried no evidentiary weight even if it was admitted in evidence. They prayed for dismissal of the suit with costs. 10.The issue for determination is whether or not the plaintiff had pursuant to section 107-109 of the Evidence Act, established negligence on the part of the defendant to receive an award of costs as prayed. Analysis and Determination 11.Based on the pleadings and evidence, the core issues for determination are:a.Whether the Defendant owed a duty of care to the Deceased and breached that duty through negligence.b.Whether the Plaintiff is entitled to the damages claimed. Liability 12.The burden of proof lies with the Plaintiff pursuant to Sections 107-109 of the Evidence Act. 13.While the Defendant denied digging the quarry, PW3 provided specific testimony regarding the location of the pit on his land and the lack of precautionary signs. However, the Plaintiff failed to produce a written contract between the Defendant and the County Government of Busia to confirm the scope of work or the exact commencement date. The plaintiff also failed to prove that indeed it was the defendant that dug the said quarry and failed to place precautionary signs warning off members of the public. 14.While the defendant admitted that they took up the tarmacking works and not the laying of the road works itself, they also never presented evidence to confirm the extent of the contractual obligations. Be that as it may, even if they did prove the extent of the works, it was still incumbent upon the plaintiff to prove that it was the defendant that dug a quarry on PW3’s land in relation to the construction works and that they failed to exercise due diligence in safeguarding the said quarry to protect members of the public from danger. 15.In essence, the plaintiff has failed to prove the nexus between the defendant’s works and the digging of a quarry that subsequently led to the alleged demise of the deceased to breach a duty of care and hence be adjudged liable in negligence. I find no liability on the part of the defendant. Quantum of Damages 16.Having found no liability against the defendants, I proceed to nevertheless determine quantum payable had liability been proved. 17.The suit was brought under the fatal accidents Act as well as the Law Reform Act. 18.Under pain and suffering, the conventional award widely accepted by courts of superior status is between Kshs 10,000 and Kshs 50,000. I would have awarded Kshs 50,000 in the circumstances. I find the proposal by the plaintiff too exorbitant. I am guided by the decision in the case of Felistus Kaniru Ndenda (Suing as the administrator & personal representative of the Estate of Erick Mutuku) [2020] eKLR where the deceased was 12 years old at the time of death and the court awarded Kshs. 50,000/= for pain & suffering 19.On loss of expectation of life, had the plaintiff proved liability I would have awarded damages of Kshs 100,000 as held in the case Patrick Makau Mutesy & Another [2019] eKLR 20.On los of dependency, I disagree with the plaintiff’s proposal to use a minimum wage. This is because deceased was still a minor, there was no telling what profession he would have become upon attaining adulthood. Estimating the minimum wage or any other wage for that matter would be very speculative and inaccurate. Superior Court have recommended the application of a global sum to determine award payable. In Mwangangi & Another v FKM (Suing as the legal representative of the Estate of the late AMK)(Civil Appeal E11 of 2021) [2021] KEHC 291 (KLR)(22 November 2021) (Judgement) where the court awarded a global award of Kshs. 800,000/- as loss of dependency for a deceased who was 12 years old.ii) and in Dismus Omolo Odongo & Another v Interior Inspirations Ltd & 2 Others [2017] KEHC 3543(KLR) where the deceased was aged 17 years old atthe time of the accident and the court awarded Kshs.500,000/. These being more recent decisions and with proximity to the age of the deceased, I would have awarded in the present case a global sum of Kshs 1,000,000 under this head. 21.On special damages, the plaintiff only proved damages of Kshs 5,000 from those pleaded. Special damages must be specifically pleaded and strictly proved. The plaintiff fell short of this legal threshold. I would have awarded special damages of only Kshs 5,000. 22.The disposition of this matter is that the suit fails for failure to discharge the burden of proof on a standard of probability. The suit is hereby dismissed with costs to the defendant. 23.Right of appeal within 30 days DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 25TH DAY OF JUNE 2026HON. ANNE NJERUSRM