https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/307

Idewa & another (Suing as the Administrator of the Estate of Immaculate Idewa - Deceased) v Badar Hardwares Ltd (Civil Suit E029 of 2025) [2026] KEMC 307 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEMC 307 (KLR) Republic of Kenya In the Malaba Law Courts Civil Suit E029 of 2025 AZ Ogange, RM July 15, 2026 Between Mary Fransisca Idewa 1st Plaintiff Pius Idewa 2nd Plaintiff Suing as the Administrator of the Estate of Immaculate Idewa - Deceased and Badar Hardwares Limited Defendant Judgment Introduction And Pleadings 1.Vide a Plaint dated 20th August 2025, the Plaintiff instituted this Suit against the Defendant herein and sought that judgment be entered for special damages totaling to Kshs. 268,600/=, general damages under the fatal accident and law reforms act, costs of the suit and interest to be calculated at the rate of 14% per annum on both special and general damages. 2.The brief facts of the case are that on or about the 27th day of June 2025, the deceased was a lawful pillion passenger on motor cycle along Bungoma Malaba Highway when truck registration number KCG 256K which was attached to trailer Registration Number ZD2674 unlawfully obstructed the motorcycle that the deceased was aboard at Kamuriai area and in consequence an accident occurred and as a result of which the deceased sustained serious bodily injuries from which she succumbed. 3.The suit is opposed vide a Statement of Defense dated 14th November 2025 wherein the Defendant denies the Claim in its entirety. That in the alternative and without prejudice, the defendant avers that if an accident occurred which is denied, then the same was occasioned by the sole and/or contributory negligence of the Plaintiff. 4.The Plaintiff has filed a Reply to Statement of Defense dated 25th November 2025 reiterating contents of the Plaint and denying the particulars of negligence as enumerated in the defence. 5.This matter came up for hearing of the Plaintiff’s case on 4th February 2026 when three witnesses testified and on 6th May 2026 when one defense witness testified. 6.PW1 was one CPL Wilbert Ngeno who testified that an accident was reported on 27th June 2025 and booked vide OB No. 7/27/6/25. He produced an abstract issued at Malaba Police Station as Exhibit 5. 7.On cross-examination he testified that the deceased was a pillion passenger and the motor cycle which she had boarded rammed into the trailer. He was not the investigating officer and he could not tell whether one CPL Nelson Ndegwa and who was the investigating officer had visited the scene. 8.There was no re-examination for this witness. 9.PW2 was one Mary Franscisca Idewa who adopted her witness statement dated 20th August 2025 as her evidence in chief. She further relied on her list of documents of even date. She told the court that the deceased was her child and asked that her claim be allowed as prayed. 10.On cross-examination she testified that the deceased was thirty-three years at the time of her demise and was a business woman selling fresh fruits from Uganda. That she would earn Kshs. 30,000/= per month. That she did not have a permit showing that the deceased would get fruits from Uganda and she did not have any proof of income. 11.There was no re-examination for this witness. 12.PW3 was one Michael Oramisi who adopted his witness statement of 20th August 2025 as his evidence in chief. He further relied on the list of documents of even date as exhibits. 13.On cross-examination he testified that he is a bodaboda rider and on the date of the accident he did not see the trailer as the lifesaver was not there. That he only saw the trailer upon reaching it and swerved to the right causing the deceased to knock herself on the trailor. 14.In re-examination he testified that prior to occurrence of the accident the trailer did not have a life saver and there was nothing to show that the trailer had a mechanical problem. 15.This marked close of the Plaintiff’s case. 16.The defense called one Felix Kilonzo an Investigator with Leon Assessors as witness. He produced report dated 10th December 2025 as an exhibit. He told the court that the motor vehicle subject of this suit was being driven towards Malaba direction when it developed a mechanical problem and a motor cycle which was carrying two pillion passengers rammed into the rear of motor vehicle. 17.On cross-examination he testified that the name of the author of the report was not disclosed but it was signed by their principal officer one Leonard Kali. That he received instructions to carry out investigations four months after the incident. That the Defendant was aware of the use of the motor vehicle That he neither spoke to the investigating officer nor recorded the nature of the mechanical problem. That he did not offer an explanation as to why the vehicle was not towed and whether the accident could have bene avoided if it had been towed. That the deceased was not the rider and the rider was to blame because he was not over speeding. That he concluded that the motor cycle was over speeding based on the impact. He did not interview the driver of the truck and did not disclose that the photographs in the report were taken by him 18.In re-examination he testified that the investigating officer directed him to the scene of the accident. 19.This marked close of the defendant’s case and the matter was set down for mention on 3rd June 2026 when both counsel had filed submissions and the court reserved the matter for judgment on 15th July 2026. Issues For Determination Liability 20.The occurrence of the accident is not in dispute. It is equally not disputed that the Plaintiff was a pillion passenger on the motorcycle involved in the accident. While the police abstract produced in evidence confirms that the accident was reported at the police station, it is not, of itself proof liability a fact which has rightly been submitted by defence counsel. Liability must be determined from the evidence adduced before the court. 21.From the evidence on record, the motor cycle was carrying two passengers in addition to the rider. This was in contravention of the traffic laws regulating carriage of passengers on motorcycles. By knowingly boarding a motorcycle that was already carrying a passenger, the Plaintiff assumed the risk associated with such unlawful overloading. It is therefore the finding of the court that the Plaintiff contributed to some extent to the occurrence of the accident is liable for contributory negligence as has been rightly submitted by defence counsel. 22.In so holding I am guided by the case of Mwangi & another v Oginga [2025] KEHC 7976 (KLR) where the court held as follows:- 22.Guided by the above cited cases, I am of the view that the Respondent by his own actions, contributed to the accident. He may have been riding on his lane as pleaded, but the excess passenger load likely adversely affected the motorcycle’s maneuverability. Such a vehicle cannot swiftly get out of the way of oncoming obstacles. 23.The reason behind limiting the number of pillion passengers to one is neither whimsical nor dogmatic; it is a safety measure. Nonetheless, the law also recognizes that traffic infractions do not automatically determine liability, although they can be relevant in determining contributory negligence. 23.With regard to the Plaintiff’s case, PW3 an eye witness and the boda boda rider at the time of the accident testified that the defendant’s motor vehicle had been parked by the roadside without any warning signs or reflective triangles (lifesavers) to alert approaching road users there being no dispute that the vehicle had mechanically broken down . This evidence was not challenged and no evidence was tendered to demonstrate that the requisite warning devices had been placed at the scene. The court therefore accepts PW3s testimony as truthful and credible. 24.Further, although the driver of the defendant’s motor vehicle was the person best placed to explain the circumstances under which the vehicle was parked and the precautions taken. He was not called to testify. No explanation was offered for his absence. He was not interrogated by DW2 in compilation of the report relied on in defence. The court is therefore entitled to draw and adverse inference that had the driver testified, his evidence would not have supported the defendant’s case. In so holding I am guided by the case of Nesco Services Limited v CM Construction [EA] Limited [2021] KEHC 12810 (KLR), Odunga J as he then was stated as follows: -“Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows: “Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.’ Where a party has custody or is in control of evidence that that party fails or refuses to tender or produce, the court is entitled to make an adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 25.In the circumstances, I find that the greater responsibility for the accident rests with the defendant is vicariously liable for parking its motor vehicle on the road without adequate warning to other road users. Nevertheless, the Plaintiff also bears a measure of responsibility for knowingly boarding an overloaded motorcycle. 26.Accordingly, I apportion liability at 60% against the defendant and 40% against the Plaintiff. Special Damages 27.On special damages, In Herbert Hahn v Amrik Singh [1985] eKLR, 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 degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 28.I note that the Plaintiff has sought for a total of Kshs. 268,600/= which has been pleaded at paragraph 9 of the Plaint. The defense in submissions concede to damages totaling to Kshs. 218,600/=. I have considered the pleadings filed and documents in support of the claim and I do find damages proven to the extent of Kshs.233,600/= and having bene proven by receipts produced as PEXH 3, 6, 7. 8, 9, 10, 12 and 14. The claim for special damages is therefore allowed to that extent. Quantum a. Pain and Suffering 29.The Plaintiff through his counsel has submitted that an award of Kshs. 100,000/= is sufficient under this head. The defendant on the other hand submits that a sum of Kshs. 30,000/= would be sufficient under this head. 30.In the case of Ngania & 2 others v Adulu (Suing as the Legal Representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal E005 of 2023) [2024] KEHC 4005 (KLR) (25 April 2024) (Judgment) the court held as follows: -31.Under this head, the trial Court awarded the deceased Kshs. 50,000/-. The contest is that the amount is high since, according to the Appellants, the deceased died on the spot. The Respondent on the other had contended that the deceased died a couple of hours after the accident, hence, the justification of the amount.32.The Respondent testified that the deceased died 4 hours after the accident at Kitale District Hospital while undergoing treatment.33.It is notable that during cross-examination, the Respondent admitted that he did not witness the accident. The Appellants did not call any witnesses. Therefore, the only recourse to establish the contention are police and hospital documents.34.I have keenly looked at the Police Abstract form. In the injury section it was written ‘fatal’ meaning that the accident resulted in death.35.The Certificate of Death, Mortuary Admission Form and the Burial Permit all indicate that the deceased died on 31st March 2022, the same day the accident happened.36.I also have had the occasion to interrogate the Post Mortem Form. The circumstances of the death were filled as follows: -The deceased was riding a motorcycle when he was knocked down by a motor vehicle and died. Please examine the body to ascertain the cause of death.37.All the foregoing documentary evidence point to the inevitable conclusion that indeed the death was spontaneous. The is nothing on record to corroborate the Respondent’s claim that it happened four hours after the accident.38.If that were to be the case, there would be some evidence in the nature of treatment chits indicating how the hospital managed the deceased’s injuries before he succumbed.39.That being the case, the outstanding issue is whether the award of Kshs.50,000/- was excessive in the circumstances.40.This Court will, hence, be guided by Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows: -…. As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death….41.From the foregoing, the acceptable range where there is no prolonged pain and suffering is between Kshs. 10,000/- and Kshs.100,000/-. In view of the fact that the deceased did not suffer for a protracted period of time, as considered against the need not to interfere unnecessarily with the trial Court’s exercise of discretion, I do not see a reason to disturb the trial Court’s findings. 31.Having carefully considered the submissions of counsel, precedent cited in submissions of both counsel as well as the one cited in this judgment, it is my considered view that the deceased having died on the same day of the accident and there being no evidence of prolonged suffering, the sum of Kshs. 40,000/= is sufficient under this head. Loss Of Expectation Of Life 32.The Plaintiff in submissions has proposed an award of Kshs. 300,000/= with the defence submitting that an award of Kshs. 100,000/ would be sufficient. 33.In Kariuki v Sanga & another (Suing as the legal representatives and administrators of the Estate of Collins Kipkosgei - Deceased) (Civil Appeal E011 of 2021) [2024] KEHC 5824 (KLR) (24 May 2024) (Judgment) the court held as follows: -On “loss of expectation of life”, while the Appellant proposed Kshs 80,000/- and the Respondents proposed Kshs 150,000/-, the trial Magistrate awarded Kshs 100,000/-. From my own review of comparable authorities, it is clear that the Courts have been awarding figures in the region of Kshs 100,000/- to Kshs 200,000/-. The trial Magistrate having therefore awarded Kshs 100,000/-, that figure is within what is ordinarily awarded. I do not therefore find any fault on the part of the Magistrate in giving the award. 34.Having considered, the submissions of counsel, authorities cited therein and guided by the authority hereinabove, I find that an award of Kshs. 120,000/= is sufficient and reasonable. a. Loss of dependency 35.The Plaintiff’s counsel has submitted that an award of Kshs.6,480,000/= would be sufficient in this case. Defence Counsel submits that an award of Kshs. 1,719,298.80/= is sufficient under this head. 36.In the case of Nzomo v Muia & another (Civil Appeal E106 of 2024)[2026] KEHC 7173 (KLR) (22 May 2026) (Judgment) the High Court held as follows:-In cases where there is no evidence of earning or clear basis of adopting a specific figure as the earnings, the court has two options but of course it should go for the more appropriate one. It may, depending on the circumstances of the case adopt the multiplier approach factoring in the statutory minimum wage. The second option is to adopt the global approach.As I have stated earlier, there was no proof that the deceased was engaged in any income generating activity. There is also no basis for the court to adopt or apply the statutory minimum wage because the respondents did not demonstrate the kind of work the deceased was engaged in. In the circumstances, it was, in my opinion, too speculative for the trial court to adopt the multiplier approach. 37.Further, the court in Husaka Motors Limited & another (Suing as the Legal Representatives of Pricillah Asubila Makani - Deceased) v Indechi & another [2025] KEHC 2881 (KLR) in taking a similar approach led as follows:- 41.Guided by the above authorities, and considering also that it is not possible for this court to ascertain the monthly earnings of the deceased together with the expected length of dependency, without resorting to speculations; I am of the considered view that the best approach would have been for the learned trial magistrate to use the global sum approach in assessing damages for loss of dependency. I will therefore proceed to use the global sum approach to determine whether the award of Kshs. 3, 257, 280 by the trial court should be set aside or upheld. 42.In Kirimi & another (Suing as the Administrators and Legal Representatives of the Estate of Agnes Ntinyari Murungi - Deceased) versus Kithinji & another (Civil Appeal E042 of 2021) [2023] KEHC 17732 (KLR) (23 May 2023) (Judgment); the high court set aside the award of Kshs. 900,000 that had been awarded by the trial court as damages for loss of dependency and substituted it instead with a global sum of Kshs. 2,000,000, for a deceased who was 32 years old at the time of her death and whose income could not be ascertained. The deceased in this case had left behind three school going children and a husband. 43.Additionally, the high court in Khalif versus M’Kirea & another (Suing as the legal representative of the estate of JMM (deceased)) [2022] KEHC 15932 (KLR); upheld the global sum of Kshs. 2,000,000, that had been awarded by the trial court as damages for loss of dependency for a deceased who died aged 35 years old and had left behind two minor children aged 11 and 8 years respectively, in the care of his aged parents. 44.Guided by the above authorities, I am of the considered view that the sum of Kshs. 3, 257, 280, awarded by the trial court as damages under this head was excessive and the same should be set aside and substituted instead with a sum of Kshs. 2,000,000, which in my view is reasonable given the circumstances of the case. 38.This court is guided by the above precedents and taking into account her age, the uncertainties regarding income, proof of dependency as can be discerned from Plaintiff Exhibits 15 and 16, comparable awards in similar cases, the court awards Kshs. 2,000,000/= for loss of dependency. Conclusion. 39.The upshot of my findings above is that judgment be and is hereby entered in favor of the Plaintiff against the Defendant in the following terms: -a)Liability is apportioned in the ratio 60:40 in favor of the Plaintiff against the Defendantb)Special Damages- Kshs. 233,600/=c)Pain and Suffering- Kshs. 40,000/=d)Loss of expectation of life- Kshs. 120,000/=e)Loss of dependency- Kshs. 2,000,000/=Total Amount- Kshs. /= 2,393,600Less 40% Contribution- Kshs. 957,440Net award-Kshs. 1,436,160/=f)Costs of the suitg)Interest on (b) from the date of filing of suit until payment in fullh)Interest on (c)-(e) from the date of judgment until payment in full JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 15TH DAY OF JULY, 2026.In the Presence ofMr. Mukisu for the PlaintiffMs. Nyiva for the DefendantCourt Assistant: Paul OtienoA.Z. OGANGERESIDENT MAGISTRATE