https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7114

Githinji & another (Suing as Administrators Ad litem of the Estate of Victor Munene Githinji (Deceased)) v Ngugi & another (Civil Case 5 of 2023) [2026] KEHC 7114 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7114 (KLR) Republic of Kenya In the High Court at Kiambu Civil Case 5 of 2023 A Mshila, J May 22, 2026 Between Jeremiah Miano Githinji & Timothy Miani Githinji (Suing as Administrators Ad litem of the Estate of Victor Munene Githinji (Deceased)) Plaintiff and David Mwaniki Ngugi 1st Defendant Robert Ndegwa Ngugi 2nd Defendant Judgment 1.By a Plaint dated 18th October, 2023, the Plaintiffs herein being the Administrators ad litem to the estate of Victor Munene Githinji (Deceased) sued the Defendants claiming compensation for the fatal injuries sustained by the deceased on or about the 6th day of May, 2021 when the deceased was riding his motor cycle KMCA 751X along Kiambu Road heading to Nairobi, when the 2nd Defendant being the 1st Defendant’s driver negligently drove Motor Vehicle Registration Number KCS 300C that he caused the said motor vehicle to lose control, veer off its rightful lane and collide with the deceased’s motor cycle causing the deceased serious bodily injuries which led to the death of the deceased. 2.The Plaintiffs claimed general damages under the Fatal Accidents Act (Cap 32) and the Law Reform Act Cap 26. 3.The Plaintiffs pray for judgment against the Defendants jointly and severally for;-a.General damages both under the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26).b.Special damages of Kshs. 398,150/=c.Cost of this Suitd.Interest on (a), (b) and (c) above at Court rates. 4.Despite proper service the Defendants failed to enter appearance and/or file a defence. 5.In the circumstances, the Plaintiffs filed their Request for Judgment dated 18th April, 2024 and the matter was set down for formal proof on 26/3/2025. 6.NO. 8887 PC Jessy Kasyoka Mwololo (PW1) based at Pangani Police Station Traffic Department, produced an abstract dated 11/5/2021. He stated that the accident occurred on 6/5/2021 at 8.00 pm along Kiambu Road near AAR hospital. He stated that the accident was between Toyota Land Cruiser KCS 300C being driven by Robert Ndegwa and motor cycle KMCA 751X. The deceased was said to have died from the accident and that motor vehicle registration number KCS 300C was blamed for the accident. Robert Ndegwa was charged with a traffic case number 3794 of 2021 for causing death. 7.Timothy Miano Githinji (PW2) testified that the Co-Plaintiff is his father and the deceased is his brother. He wished to adopt his written statement dated 26/9/2023 as his evidence in chief. He produced the death certificate, post-mortem report, chief’s letter, Limited Letters of Administration, charge sheet, motor vehicle official search, demand letter, statutory notice, payslips and letter from employer and a letter from First Assurance. Special damages receipts were also produced. He stated that his brother was employed and was supporting his retired parents. He blamed the 2nd Defendant for causing the accident. Lastly, he sought compensation for the expenses. 8.The Court directed the Plaintiffs to file brief written submissions on liability and quantum of damages. Plaintiffs’ Submissions. 9.The Plaintiffs submit that failure by the 2nd Defendant to tender evidence rendered the Plaintiffs evidence as uncontroverted. Reliance was placed in the case of Nicholas King’oo Kithuka vs Jap Quality Motors & another (2021) eKLR. The Plaintiffs contend that despite the Defendants’ failure to tender evidence, they have proved their claim on a balance of probabilities. It was stated that PW1 produced a police abstract, that blamed the 2nd Defendant for the accident that caused the death of the deceased. The evidence remained uncontroverted. Reliance was placed in the case of Kahuri S. Njuguna vs Kairu Njoroge (2010) eKLR where there was no eye witness. The doctrine of res ipsa loquitur was also applied in favour of the Plaintiffs. The 1st Defendant being the registered owner of the suit motor vehicle was said to be vicariously liable for the actions of the 2nd Defendant. The court was urged to find the Defendants jointly and severally 100% to blame for the accident. 10.In respect of damages for pain and suffering, the Plaintiffs submitted that the deceased died 3 hours after the accident as such he experienced excruciating pain hence an award of Kshs. 100,000/= would be appropriate. Reliance was placed in the case of Mugo & another (suing as the Legal Administrators of the estate of Paul Mugo Muthoni-Deceased vs Njoroge (Civil Appeal E099 of 2022) (2024) KEHC 6743 (KLR) (6 June 2024) (Judgment). 11.For the heading Loss of expectation of life, the deceased was said to have died at the prime age of 31 years and had a high expectation of a good life. The Plaintiffs proposed an award of Kshs. 100,000/=. Reliance was placed on the above mentioned case of Mugo. 12.For loss of dependency, the Plaintiffs submitted that they had proved that the deceased worked as a software engineer at Rugulus Limited as shown by his letter of employment and payslips where he earned Kshs. 114,277/=. He could have worked for another 29 years where he could have continued to support his aging retired parents. They sought a dependency ratio of 2/3 and a multiplier of 25 years. Reliance was placed in the case of Beatrice Wangui Thairu vs Hon. Ezekiel Bargetuny & another Nairobi HCC No. 1638 of 1988 (UR) Ringera, J. The Plaintiffs suggested that an award of Kshs. 22,855,400/=being Kshs. 114,277x12x2/3x25 would be appropriate for loss of dependency. The court was urged to cumulatively make the award under the Law Reform Act and Fatal Accidents Act. Reliance was placed in the case of Kemfro Africa Ltd t/a Meru Express Services (1976) & another vs Lubia & another (No. 2). Lastly, the Plaintiffs sought special damages of Kshs. 398,150/= were also sought being funeral and related expenses, hospital bills, motor vehicle search and legal fees for obtaining Grant of representation ad litem. Issues For Determination 13.Having read and considered the court record and the submissions by the Plaintiffs, it is my opinion that 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? 14.On the issue of liability, PW1 being a police officer from Pangani Police station stated that the 2nd Defendant was blamed for the accident that claimed the life of the deceased. The Defendants did not challenge this evidence as they failed to participate in these proceedings. There was no eye witness account. The deceased was said to have been riding his motor cycle along Kiambu Road when the 1st Defendant’s motor vehicle while being driven by the 2nd Defendant, veered off the road and collided with the deceased’s motor cycle thereby causing the death of the deceased. 15.The Defendants herein did not enter appearance as such the averments by the Plaintiffs remain unchallenged. The police abstract blamed the 2nd Defendant for the accident. The 2nd Defendant was even charged with a traffic offence for causing the death of the deceased. 16.In the circumstances, this court is satisfied that the 2nd Defendant was negligent in his actions and did indeed cause the death of the deceased and is on a balance of probabilities held 100% to blame for the accident with the 1st Defendant being the registered owner of motor vehicle registration number KCS 300C being held vicariously liable for the actions of his authorized driver. 17.The Plaintiffs argue that the doctrine of res ipsa loquitur is applicable in the case herein. The 2nd Defendant was said to owe the deceased a duty of care which he breached. 18.For the doctrine to apply, the facts must be so clear that the 2nd Defendant must have been negligent and there should be no other possible explanation as to who caused the accident. 19.It is this Court’s considered view, therefore, the doctrine of res ipsa loquitur applies herein having determined that the 2nd Defendant was negligent as he owed the deceased a duty of care which he failed to do by driving negligently as such caused the 1st Defendant’s motor vehicle to collide with the deceased’s motor cycle thereby causing the death of the deceased.The award of general damages under the Law Reform Act 20.With regard to the award under pain and suffering, the Plaintiffs sought for Kshs. 100,000/= citing that the deceased suffered a lot of pain having died 3 hours after the accident. 21.The evidence on record shows that the deceased died a few hours after the accident when he was undergoing first aid at St. Theresa Hospital Thindigua. There is no doubt that the deceased experienced a lot of pain. To this end this court relies on the case of Bidii Muimi & Another versus Patricia Munanie Mutemi & Another 2020 e KLR, where an award of Ksh 100,000/= was made. 22.For the award under loss of expectation of life, the plaintiffs contend that the deceased was 31 years old at the time of his death. He was said to have a good life ahead of him hence the award of Kshs. 100,000/= was said to be reasonable. 23.This court awards 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 vs China Wu Yi Limited & another (2017) eKLR.The award of general damages under the Fatal Accidents Act 24.In respect of the award for loss of dependency, the plaintiffs aver that the deceased was aged 31 years and was working as a software engineer at Regulus Limited where he was earning Kshs. 114,277/= per month and would have worked up to the retirement age of 60 years. A multiplier of 60 years was said to be reasonable. Further, the dependency ratio of 2/3 was said to be appropriate as the deceased was supporting his retired parents, his brother and sister as per the chief’s letter. 25.There is no dispute that the deceased was working as a software engineer at Regulus Limited where he was earning Kshs. 114,277/= per month as per his employment letter and payslip. It is also not in dispute that the deceased died at the age of 31 years as per the death certificate. The Plaintiffs proposed a multiplier of 25 years given that the deceased would have retired at the age of 60 years. 26.This court finds the multiplier of 25 years proposed by the Plaintiffs as being reasonable. 27.Reliance is placed in the case of Thomas Karanja vs Kenya Power & Lighting Co. Ltd (2016) eKLR. 28.With regard to the dependency ratio, this court finds that the dependants of the deceased as listed in the Chief’s letter are all adults as such there is no proof that the deceased took care of all the listed dependants. In any case there is no evidence that the deceased was using 2/3 of his salary on the listed dependants. This court will therefore adopt a dependency ratio of 1/3. 29.Refer to the case of Wafula (Suing as a Legal Representative and Administrator of the Estate of Anthony Wafula Mwoko) & another v Vallary Linnet Ogolla t/a Quick Shuttle (Civil Appeal E061 of 2023) [2024] KEHC 7172 (KLR) (29 May 2024) (Judgment) where Ougo J. declined to interfere with a dependency ratio of 1/3 where the dependants were adults. 30.Refer also to the case of Allan Owiti Awuor & another v Tabitha Micere Mathu (Suing As Personal Representative of The Estate Of Peter Math Ng’ang’a) (202) eKLR where the deceased died at the age of 57 years and was survived by his widow and children aged 24 and 39 and the court held as follows in regard to the dependency ratio;-“That brings us to the issue of dependency ratio, the multiplier and earnings. On dependency ratio, the applicants argued that the 2/3 ratio was on the higher side. They argued that a ratio of 1/3 would be appropriate. I agree. It must be clear that dependency is a question of fact to be proved unless the court could take judicial notice depending on the circumstances of each case. There were only two dependants and therefore there was no way the deceased would have spent two thirds of earnings on them.”The award for Special Damages 31.Lastly, the Plaintiffs claimed for special damages of Kshs. 398,150/= being funeral expenses of Kshs. 377,100/=, legal fees to obtain limited grant Kshs. 21,050/= and motor vehicle search for Kshs. 550/=. 32.It is trite law that special damages must be pleaded and proved. The Plaintiffs produced proof that they spent Kshs. 377,100/= on funeral related expenses. The same is awarded by this court. The receipt for motor vehicle was also produced, the same is awarded as sought. As for the receipt for legal fees for obtaining the grant of representation ad litem, the same could not be traced by the Court but it is not dispute that the Plaintiffs obtained Limited Letters of Administration so as to enable them file this instant suit. As such the sum of Kshs. 21,050/= claimed is found to be reasonable and it is allowed. 33.Reference is made 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.” 34.Costs follow the event and are awarded to the winning party being the plaintiffs herein. In the case herein, the defendants were blamed for the accident that led to the death of the deceased. 35.Refer to the Supreme Court case of Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others (2014) eKLR where the court held inter alia that:-“………the award of costs would normally be guided by the principle that “ costs follow the event”; the effect being that the party, who calls forth the event by instituting suit, will bear the costs if the suit fails…..” 36.The Plaint is found to have merit and it is hereby allowed. Findings And Determination 37.For the foregoing reasons this court makes the following findings and determination.i.The Plaint is found to be with meritii.Judgment is hereby entered in favour of the Plaintiff as follows:-a.Liability 100%b.Pain and suffering Kshs. 100,000.00c.Loss of expectation of life Kshs. 100,000.00d.Loss of dependency Kshs.(114,277 x 25 years x 12 x 1/3)Kshs. 11,427,700e.pecial damages Kshs. 398,150f.Costs and interest at court ratesTotal Kshs.11,825,850/-Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 22ND DAY OF MAY, 2026.A. MSHILAJUDGEIn the presence of:-Sanja/Millicent – Court AssistantsKaranja for the PlaintiffN/A – for the Defendant HCCC 5 OF 2023 0