Kimutai & another Suing as the Legal Representatives and Administrators of the Estate of the Late Daniel Kiptoo Mutai - Deceased) v Transafric Motors Ltd & 2 others (Civil Suit E686 of 2023) [2026] KEMC 857 (KLR) (2 September 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **CIVIL SUIT NO. E686 OF 2023** **GIDEON KIPLAGAT KIMUTAI & ANOTHER** ***Suing as the Legal Representatives and Administrators of the estate of the late*** ***DANIEL KIPTOO MUTAI (Deceased)***...................................... **PLAINTIFF** **-VERSUS-** **TRANSAFRIC MOTORS LIMITED**.......................................**1ST DEFENDANT** **AUTOPORTS FREIGHT TERMINAL LIMITED**.....................**2ND DEFENDANT** **ANTONY KIPLIMU**...........................................................**3RD DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff commenced this suit by a Plaint dated 5th October 2023, suing as the legal representatives and administrators of the Estate of the late Daniel Kiptoo Mutai, hereinafter referred to as **“the deceased”.** 2. The suit arose from a road traffic accident which occurred on or about 21st March 2023 along the Mogotio–Nakuru Road involving motor vehicle registration number KDK 679K, in which the deceased was a passenger. It was pleaded that as a result of the accident, the deceased sustained severe injuries from which he subsequently succumbed. 3. The Plaintiffs initially sued Transafric Motors Limited, Autoports Freight Terminal Limited and Antony Kiplimu as the 1st, 2nd and 3rd Defendants respectively. The Plaintiffs subsequently withdrew the suit against the 1st Defendant. 4. The 2nd and 3rd Defendants failed to enter appearance and/or file a Defence despite service. Consequently, Interlocutory Judgment was entered against them on 8th July 2026. 5. The matter thereafter proceeded to formal proof hearing on 12th August ,2026 . 6. The claim is brought under the Law Reform Act, Cap 26 Laws of Kenya, for the benefit of the estate of the deceased, and under the Fatal Accidents Act, Cap 32 Laws of Kenya, for the benefit of the deceased’s dependants. 7. The Plaintiffs seek damages for pain and suffering, loss of expectation of life, loss of dependency and special damages. They also seek costs and interest. **The Plaintiffs’ Case and Evidence** 1. The Plaintiffs’ case was presented through PW1, Gideon Kiplagat Kimutai, one of the administrators of the deceased’s estate and the deceased’s brother. PW1 adopted his witness statement as his evidence in chief. 2. PW1 testified regarding the occurrence of the accident and the death of the deceased. He stated that the deceased died as a result of injuries sustained in the road traffic accident involving Motor Vehicle Registration number KDK 679K. 3. The Plaintiffs produced documentary evidence in support of their case, including documents relating to the deceased, his death, the accident and the grant of representation. 4. The Plaintiffs’ evidence was that the deceased was 43 years old at the time of his death and was survived by his wife and three children, namely: 5. Joyce Jepchirchir Kiplimu – Wife; 6. Tracy Jepkoch Kiptoo – Daughter; 7. Haggai Kiprop Kiptoo – Son; and 8. Lilsa Jerotich Lumsat – Daughter. 9. The Plaintiffs further pleaded that the deceased was a businessman earning approximately Kshs. 30,000 per month. 10. However, although it was asserted that the deceased was a businessman earning Kshs. 30,000 per month, no documentary evidence was produced to establish the nature of the business or the alleged monthly earnings. There were no business records, bank statements, M-Pesa statements, licences, books of account or other documentary evidence demonstrating the deceased’s income. 11. PW1 was not cross-examined, and the Plaintiffs’ evidence was not controverted by the 2nd and 3rd Defendants. **The Plaintiffs’ Submissions** 1. The Plaintiffs filed their Written Submissions dated 12th August 2026. 2. On liability, the Plaintiffs submitted that the deceased was a passenger in the suit motor vehicle and that the 2nd and 3rd Defendants failed to enter appearance or file a defence. They submitted that their evidence remained uncontroverted and urged the court to find the Defendants fully liable. 3. On special damages, the Plaintiffs sought **Kshs.259,868.00**, being: 4. Funeral expenses – Kshs. 200,000; 5. Hospital and mortuary expenses – Kshs. 24,318; 6. Legal fees for obtaining letters of administration – Kshs. 35,000; and 7. Motor vehicle search fees – Kshs. 550. 8. Under the Law Reform Act, the Plaintiffs proposed an award of **Kshs. 100,000.00** for pain and suffering and **Kshs. 200,000.00** for loss of expectation of life. 9. On loss of dependency, the Plaintiffs submitted that the deceased was aged 43 years, was a businessman and earned approximately Kshs. 30,000 per month. They proposed a multiplier of 22 years and a dependency ratio of two-thirds and urged the court to award **Kshs. 5,280,000** calculated as follows: **Kshs. 30,000 × 12 × 22 × 2/3 = Kshs. 5,280,000.00** 1. The Plaintiffs therefore urged the Court to enter Judgment for a total of **Kshs. 5,839,868**,.00 together with costs and interest. **Analysis and Determination** 1. Upon consideration of the Pleadings, the evidence adduced and the Plaintiffs’ submissions, I find that the issues for determination are: 1. Whether the 2nd and 3rd Defendants are liable for the accident; 2. Whether the Plaintiffs are entitled to damages under the Law Reform Act; 3. Whether the Plaintiffs are entitled to damages under the Fatal Accidents Act; 4. Whether the Plaintiffs proved their claim for special damages; and 5. Who should bear the costs of the suit. **A. Liability** 1. The Plaintiffs pleaded that the accident was caused by the negligence, carelessness and/or recklessness of the Defendants, their agents, servants and/or employees. 2. The particulars of negligence pleaded against the Defendants included driving at an excessive speed, failing to exercise due care and attention, failing to stop, swerve or otherwise avoid the accident, failing to maintain proper control and management of the Motor Vehicle, failing to observe traffic rules and the Highway Code, and generally causing or permitting the accident to occur. 3. The 2nd and 3rd Defendants failed to enter appearance and/or file a Defence despite being served. Consequently, Interlocutory Judgment was entered against them on 8th July 2026. The matter thereafter proceeded to formal proof. 4. Notwithstanding the entry of interlocutory judgment, the Plaintiffs proceeded to adduce evidence in support of their claim. PW1 testified regarding the occurrence of the accident and the death of the deceased. The Plaintiffs also produced documentary evidence, including the Police Abstract and the copy of records in respect of motor vehicle registration number KDK 679K. 5. The Plaintiffs produced a copy of records from the National Transport and Safety Authority relating to Motor Vehicle Registration Number KDK 679K. The copy of records identifies the 2nd Defendant, Autoports Freight Terminal Limited, as the registered owner of the suit Motor Vehicle. 6. The Plaintiffs also produced a Police Abstract which identifies the suit motor vehicle as being involved in the accident and identifies the 3rd Defendant, Antony Kiplimu, as the driver of the said Motor Vehicle on the material day. 7. The evidence regarding ownership of the suit Motor Vehicle was not challenged. The 2nd Defendant did not enter appearance, file a defence or tender evidence to rebut the presumption arising from the copy of records. 8. The position in law is that a Certificate or copy of records from the Registrar of Motor Vehicles is prima facie evidence of ownership. In **Thuranira Karauri v Agnes Ncheche [1997] eKLR**, the Court of Appeal held that where ownership of a motor vehicle is in issue, it is ordinarily proved by production of a certificate of registration or other evidence showing registration. 9. The Court of Appeal, however, clarified the position in **Joel Muga Opija v East African Sea Food Limited [2013] eKLR**, where it held that a copy of records from the Registrar of Motor Vehicles constitutes prima facie evidence of ownership and, unless rebutted by contrary evidence, is sufficient proof of ownership. The court stated that: **“We agree that the registration book of a vehicle is not proof of ownership of a vehicle, but it is prima facie evidence of ownership.”** 10. Similarly, in **Securicor Kenya Limited v Kyumba Holdings Limited [2005] eKLR**, the Court of Appeal observed that the registration of a motor vehicle in the name of a person is prima facie evidence of ownership, although the presumption may be displaced by evidence showing otherwise. 11. In the present case, the copy of records identifies the 2nd Defendant as the registered owner of motor vehicle registration number **KDK 679K**. No evidence was tendered to rebut that prima facie evidence. I therefore find that the Plaintiffs established, on a balance of probabilities, that the 2nd Defendant was the registered owner of the suit motor vehicle. 12. The Police Abstract produced by the Plaintiffs identifies the 3rd Defendant, Antony Kiplimu, as the driver of Motor Vehicle Registration Number KDK 679K at the time of the accident. 13. The 3rd Defendant neither entered appearance nor filed a defence to deny that he was the driver of the suit Motor Vehicle on the material day. He also did not attend the hearing to challenge the Plaintiffs' evidence. 14. The evidence identifying the 3rd Defendant as the driver remained uncontroverted. I am therefore satisfied that the Plaintiffs established that the 3rd Defendant was the driver of the suit motor vehicle at the material time. 15. Having found that the 2nd Defendant was the registered owner of the suit Motor Vehicle and that the 3rd Defendant was its driver on the material day, the next question is whether the 2nd Defendant is vicariously liable for the negligent acts and omissions of the 3rd Defendant. 16. The doctrine of vicarious liability imposes liability upon a principal or employer for the wrongful acts or omissions of its servant, agent or employee committed in the course of the employment or agency. 17. In **Morgans v Launchbury [1973] AC 127**, the House of Lords stated that an owner of a motor vehicle may be held liable where the vehicle was being driven by another person on the owner’s behalf or in circumstances from which agency may be inferred. 18. The Court of Appeal considered the issue of vicarious liability in **Karisa v Solanki [1969] EA 318**, where it was held that an owner who permits another person to drive a vehicle in circumstances creating an agency relationship may be held liable for the negligence of the driver. 19. In **H. M. H. N. v G. M. M. [2019] eKLR**, the Court reiterated that once ownership is established and there is evidence that the driver was acting as the servant, agent or employee of the owner, the owner may be held vicariously liable for the negligent acts of the driver committed in the course of such employment or agency. 20. The Plaintiffs pleaded that the 3rd Defendant was the driver, servant, agent and/or employee of the 2nd Defendant and that the suit Motor Vehicle was being driven, managed and/or controlled on the 2nd Defendant’s behalf. 21. Those averments were not denied. The 2nd Defendant filed no Defence and tendered no evidence to show that the 3rd Defendant was using the vehicle without its authority, outside the scope of any employment or agency, or for purposes wholly unrelated to the 2nd Defendant. 22. The uncontroverted evidence before the court establishes that the 2nd Defendant was the registered owner of the suit motor vehicle and that the 3rd Defendant was the person driving it at the material time. In the absence of evidence to the contrary, the court is entitled to draw the inference that the 3rd Defendant was driving and operating the motor vehicle with the authority and on behalf of the 2nd Defendant. 23. I therefore find that the 3rd Defendant was acting as the driver, servant and/or agent of the 2nd Defendant at the material time and that the 2nd Defendant is consequently vicariously liable for the negligent acts and omissions of the 3rd Defendant. 24. The Plaintiffs' evidence regarding the occurrence of the accident, the ownership of motor vehicle registration number **KDK 679K**, and the identity of the 3rd Defendant as the driver on the material day remained unchallenged. No evidence was tendered by the 2nd or 3rd Defendants to rebut the Plaintiffs' case or to suggest that the deceased contributed to the occurrence of the accident. 25. Further, interlocutory judgment had already been entered against the 2nd and 3rd Defendants on 8th July 2026. In the circumstances, and on the basis of the evidence adduced at the formal proof hearing, I find that the Plaintiffs have established their case on liability on a balance of probabilities. 26. Accordingly, I find the 3rd Defendant, as the driver of Motor Vehicle Registration Number KDK 679K, directly liable for the accident. I further find the 2nd Defendant, as the registered owner of the Motor Vehicle, vicariously liable for the negligence of the 3rd Defendant. 27. I therefore enter Judgment on liability against the 2nd and 3rd Defendants jointly and severally at 100%. **Quantum** * 1. **Pain and Suffering** 1. The Plaintiff submitted that the deceased died immediately after the accident and urged the Court to award **Kshs.100,000/=** for pain and suffering, taking into account the pain suffered, inflation and the circumstances of the case. They relied on **Sukari Industries Limited v Clyde Machimbo Juma, Homa Bay HCCA No. 68 of 2015 [2016] eKLR**, where an award of **Kshs.50,000/=** was made for pain and suffering where the deceased died immediately after the accident. 2. The applicable principle is that damages under this head depend principally on the period and degree of pain suffered by the deceased before death. 3. The authorities indicate that higher awards are justified where there is evidence that the deceased endured pain for an appreciable period before death. The award under this head is intended to compensate the estate for the pain and suffering endured by the deceased between the time of injury and death. 4. The evidence before the Court is that the deceased died on the same day of the accident 5. In **Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR**, the Court observed that where death occurs shortly after an accident, a modest award may be made for pain and suffering. The Plaintiffs also relied on **Melbrimo Investment Company Ltd v Dinah Kemunto & Francis Sese [2022] eKLR** and **Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLR**, where awards of Kshs.50,000/= were upheld where death occurred at or shortly after the accident. 6. Taking into account the fact that the deceased died at the scene the same day of the accident and there is no evidence of prolonged suffering, I find that an award of **Kshs.50,000/=** is reasonable. 1. **Loss of Expectation of Life** 7. The Plaintiffs submitted that the deceased was aged 43 years and was in good health before his life was prematurely cut short by the accident. 8. On **loss of expectation of life**, the Plaintiffs submitted that the deceased was survived by his wife and children and would otherwise have lived a longer and happy life. He relied on the decision in **Moses Akumba & Another v Helen Karisa Thoya [2017] eKLR**, where an award of **Kshs.200,000/=** was upheld for loss of expectation of life, and **Patrick Kariruiki Muiruri & 3 Others v Attorney General [2018] eKLR**, where the Court similarly awarded **Kshs.200,000/=** under the same head. The Plaintiffs therefore urged the Court to award **Kshs.200,000**/= for loss of expectation of life. 9. The deceased's life was undoubtedly curtailed prematurely. The purpose of an award under this head is to compensate the estate for that loss. 10. It is natural that any person who suffers injury as a result of an accident will suffer some form of pain. This pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before the death. 11. According to various decisions of the High Court, the sums have ranged from Kshs.10,000.00 to Kshs.100,000.00. The principle of consistency in awards was emphasized in **Hellen Waruguru Waweru (Suing as the Legal Representative of Peter Waweru Menja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR**, where the Court discussed the assessment of damages under the Law Reform Act and the Fatal Accidents Act. 12. In common law jurisprudence of which Kenya is part, the Courts have evolved two principles, loss of expectation of life and pain and suffering by the deceased, for award of damages under the Fatal Accidents Act for pain and suffering determined what is commonly referred to as a conventional sum which has increased over the years from **Kshs.10,000.00** to **Kshs.100,000.00** currently. 13. The generally accepted principle is that very nominal damages will be awarded on this head claim if death followed immediately after the accident. Higher damages will be awarded if the pain and suffering was prolonged before death. His death prematurely deprived him of the normal expectation and enjoyment of life 14. In this case, the conventional figure for loss of expectation of life is **Kshs.100,000.00** and I award the same 1. **Loss of Dependency** 15. The Plaintiffs pleaded that the deceased was 43 years old, was a businessman and earned approximately Kshs. 30,000 per month. They proposed the multiplier approach using a multiplier of 22 years and a dependency ratio of two-thirds. 16. The proposed calculation would result in an award of **Kshs. 5,280,000.00** 17. I have, however, carefully considered the evidence adduced in support of the deceased's alleged income. 18. Although PW1 and the Plaintiffs asserted that the deceased was a businessman earning Kshs. 30,000.00 per month**,** there was no documentary or other satisfactory evidence to establish the alleged business or income. 19. No business permit, license, bank statement, M-Pesa statement, books of account, business records or other evidence was produced to establish that the deceased earned Kshs. 30,000 per month. 20. The Court cannot simply adopt a pleaded or asserted income as the multiplicand where that income has not been established by evidence. To do so would amount to speculation. 21. The multiplier approach is not mandatory. It is a method of assessment which should be adopted where the evidence facilitates its application. 22. In **Mwanzia v Ngalali Mutua & Kenya Bus Services (Msa) Ltd & Another**, as cited with approval in **Albert Odawa v Gichumu Githenji [2007] eKLR**, the court held: **“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application... where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”** 23. The same principle has been repeatedly applied where the deceased's income cannot be ascertained without undue speculation. 24. Similarly, in **Mary Khayesi Awalo & Another v Mwilu Malungu & another [1999] eKLR**, the court held that where there was no satisfactory evidence of the deceased's earnings, estimating the income would amount to conjecture and that it was preferable to make a lump sum award. 25. The same approach was adopted in **Ainu Shamsi Hauliers Limited v Moses Sakwa & another [2021] eKLR**, where no documentary evidence had been produced to establish the deceased's income. The court held that the global sum approach was appropriate and upheld an award of Kshs. 2,000,000 for a deceased who was 40 years old, married and survived by two young children. 26. Further, in **Omondi (Suing as the Legal Representative and Administrator of the Estate of Collins Otieno Odhiambo) v Patel [2023] KEHC 26126 (KLR)**, the Court found that where there was no evidence to support the alleged monthly income of the deceased, the global sum approach was more appropriate. The Court awarded Kshs. 2,000,000 for loss of dependency. 27. The deceased in the present case was 43 years old. He was survived by a wife and three children. There is therefore clear evidence of dependency. 28. However, the actual income of the deceased and the extent of his monthly financial contribution to the dependants cannot be ascertained with sufficient precision from the evidence before the court. 29. In the circumstances, I decline to adopt the Plaintiffs’ proposed multiplicand of Kshs. 30,000 and the multiplier approach based on that unproved income. 30. I am instead persuaded that the global sum approach is the most appropriate method of assessment. 31. In assessing the appropriate global sum, I have considered: 32. That the deceased was 43 years old; 33. That he was in his economically productive years; 34. That he was survived by a wife and three children; 35. That dependency was established; 36. That the deceased’s alleged monthly income was not proved; 37. That an award must be reasonable and should not be speculative; and 38. The guidance in the comparable authorities. 39. Taking all the foregoing factors into account, I find that a global sum of **Kshs.2,000,000.00** is fair, reasonable and adequate compensation for loss of dependency. **(iv) Special Damages** 1. The Plaintiffs pleaded Special Damages of **Kshs. 259,868.00** 2. The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. 3. In **Hahn v Singh [1985] KLR 716**, the Court of Appeal held that Special Damages must be specifically pleaded and strictly proved. 4. The same principle was reiterated in **David Bagine v Martin Bundi [1997] eKLR**. 5. The Plaintiff pleaded the following expenses: 6. Funeral expenses – Kshs. 200,000.00; 7. Hospital and mortuary expenses – Kshs. 24,318.00; 8. Legal fees for obtaining letters of administration – Kshs. 35,000.00; and 9. Motor vehicle search fees – Kshs. 550.00 10. The Plaintiffs produced documentary evidence in support of the expenses claimed. The evidence was not challenged by the 2nd and 3rd Defendants. 11. I am satisfied that the Plaintiffs proved Special Damages in the sum of: **Kshs. 259,868.00** **(v) Whether the Awards under the Law Reform Act should be deducted** 1. The Court has considered the awards made under the Law Reform Act and the Fatal Accidents Act. 2. In **Kemfro Africa Limited t/a Meru Express Services (1976) & another v A. M. Lubia & another [1982–88] 1 KAR 727**, the Court of Appeal held that the awards under the Law Reform Act ought to be taken into account when assessing damages under the Fatal Accidents Act, but there is no mandatory requirement that such awards be mathematically deducted from the award for loss of dependency. 3. I have taken into account the awards made under the Law Reform Act in making the overall assessment of damages. I find no basis for making a further deduction from the award for loss of dependency. The approach of taking the awards into account without making a mechanical deduction is consistent with the principles subsequently applied by the courts. **Disposition** 1. In conclusion therefore, there shall be Judgment for the Plaintiff against the 2 and 3rd Defendants jointly and severally in the sum of **Kshs.2,409,868.00 (*Kenya shillings two million ,four hundred and nine thousand ,eight hundred and sixty eight)*** made up as follows: 1. **2nd and 3rd Defendants jointly and severally at 100% liability** 2. **GENERAL DAMAGES** 3. Fatal Accidents Act, (Loss of Dependency) **Kshs. 2,000,000.00** 4. (II) Law Reform Act. Pain and Suffering ............................................................Kshs.50,000.00 Loss of expectation of life ..............................................Kshs.100,000.00 Special Damages …………………………….….....……..Kshs.259,868.00 **TOTAL ..........................................................................Kshs.2,409,868.00** 1. The Plaintiffs shall further have: 1. Interest on Special Damages from the date of filing suit until payment in full; 2. Interest on General Damages from the date of this Judgment until payment in full; 3. Costs of the suit. 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **2.9.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 2ND SEPTEMBER,2026** **In the presence of :** M/s Omusina for the Plaintiff Defendant: Absent Court Assistant: Phoebe.