https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9977

Kisilu & another (Suing as the Administrators of the Estate of Kioko Mutua a.k.a. Gerald Mutua - Deceased) v Mwangi & 3 others (Civil Case E002 of 2022) [2026] KEHC 9977 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9977 (KLR) Republic of Kenya In the High Court at Makueni Civil Case E002 of 2022 TM Matheka, J July 3, 2026 Between Magdaline Nthenya Kisilu 1st Plaintiff Amos Mang’Oka Mutua 2nd Plaintiff Suing as the Administrators of the Estate of Kioko Mutua a.k.a. Gerald Mutua - Deceased and Bernard Mana Mwangi Defendant and Ayan Automobiles Ltd Third party and Joseph Nyanjui Njau Defendant and Dickens Tom Awino Third party Judgment Background 1.By way of an amended plaint dated 16th April, 2022, the plaintiffs filed this suit against the Defendants. The plaintiff’s claim is that on or around 9th September 2021, Kioko Mutua the deceased was lawfully driving motor vehicle registration number KCX 915N Honda at Ikoyo within Makindu along Nairobi-Mombasa Highway within the jurisdiction of this Honourable court when the 1st Defendant so negligently and carelessly managed, controlled and drover motor vehicle registration number KBN 759 Mitsubishi FH Lorry causing it to hit the motor vehicle registration KCX 915 Honda being driven by the deceased, thereby causing him fatal injuries . 2.It is averred that at all material times the Defendant was the driver and or beneficial and or registered owner of motor vehicle registration number KBN 795 Mitsubishi FH Lorry. 3.It is the plaintiffs’ case that the 1st Defendant, and/or their servants and/or agents was negligent and substantially caused the accident. That the 1st Defendant was negligent, drove at an excessive speed, failed to adhere to road traffic rules; to have any regard to other road users;, to stop, swerve, slow down or in any manner manage or control the said motor vehicle to avoid hitting the vehicle driven by the deceased, ;to have any proper control of his vehicle,; to keep proper look out or to see the vehicle which was being driven by the deceased in time to avoid the accident, drove recklessly, carelessly and dangerously without due care and attention. 4.It is further the plaintiffs’ claim that the deceased was 35 years old at the time of death and was survived by his widow Magdaline Nthenya Kisilu 32 years and his two children JM a daughter aged 5 years and JM son aged 2 years. 5.That at that time the deceased enjoyed good and succumbed to injuries hours after the occurrence of the accident while receiving treatment. That the deceased suffered loss of expectation of life and his estate suffered loss and damage. 6.That he was a personal assistant to the member of Parliament for Kilome Constituency and supported his family and catered for their expenses. As a result of his death, the deceased’s family has lost financial and economic support. The plaintiffs pleaded special damages of Kshs.14,840/=. 7.The plaintiffs pray for judgment against the 1st and 2nd Defendants for;a.General damages under the Fatal Accidents Act for the benefit of the deceased’s dependants and further dames under the Law Reform Act for the benefit of the deceased’s estate.b.Special damages of KShs. 14,840/=.c.Costs of this suit.d.Interest on (a) and (b) above.e.Such further or other relief as this Honourable Court may deem fit and just to grant. 8.The Defendants entered appearance and filed a statement of defence on 31st March 2022 dated 23rd March, 2022 together with a Third-Party notice. The Defendants deny all the averments of negligence, loss and damage and put the plaintiffs to strict proof thereof. In particular it is denied that on 9th September 2021, the 1st Defendant drove carelessly and veered off the road causing injuries to the plaintiff who was driver of the motor vehicle KCX 915N. 9.The defendants blame the driver and owner of motor vehicle registration number KCX 915N for negligence and aver that he drove the motor vehicle without due care to other motorists, failed to control, swerve, stop or apply brakes or act in any other manner to avoid the accident, drove in a manner that was careless and in breach of his duty of care in the circumstances, drove at an excessive speed, failed to heed the warnings given by other motor vehicles particularly KBN 759V, failed to manage motor vehicle registration number KCX 915N and caused the accident. The defendants pray that the suit be dismissed with costs. 10.The Third party filed a defence dated 30th July,2024. The Third Party’s position is that the 1st Defendant who was the driver and/or beneficial owner of motor vehicle registration number KBN 795 Mitsubishi FH lorry is liable for occurrence of the accident while the 2nd defendant is vicariously liable for the action and omission of his driver. The Third party avers that he was not in control of the motor vehicle registration number KCX 915N Honda on the material date of occurrence of the accident. The Third party prays that the claim by the 1st and 2nd Defendants against him be dismissed with costs. The Plaintiffs’ Case 11.The plaintiffs called two witnesses in support of their case. PW1-No. 78253-Sgt. Benson Muema testified that he was based at Makindu Traffic Base. He told the court that he had come to produce the Occurrence Book and Police Abstract. He said that the accident happened on 9th September, 2021 at 430hrs at Ikoyo area along Nairobi-Mombasa highway involving motor vehicle registration number KBN 759V FH canter was being driven from Mombasa heading towards Nairobi general direction by Bernard Maina and motor vehicle motor vehicle registration number KCX 915N being driven from Nairobi heading toward Mombasa general direction driven by Kioko Mutua Gerald who sustained injuries and was rushed to Makindu Sub-county Hospital. The scene was visited by Cpl. Geoffrey Letolowai. Both motor vehicles were towed to Makindu Traffic Base. The case was pending under investigations. 12.The accident was booked as OB 12/11/9/2021. The report was brought to the office by Mr. Kimolo. The deceased body was preserved at Makindu Sub county Hospital mortuary awaiting post-mortem. The abstract as issued to Magdaline Nthenya on 17th December, 2021. The abstract was for Gerald Kioko concerning the accident of 9th September, 2021. He stated that an inquiry file was opened by the Investigating Officer Geoffrey Letolowai. He testified that on 11th September, 2021 Kioko succumbed to the injuries while receiving treatment at Makindu Sub-county Hospital. He produced the OB and police abstract. 13.On cross examination, he stated that it was not indicated in the police abstract who between the two motor vehicles was to blame. That its stated that the case was pending investigations. He did not have the inquest file with him. He did not have the police file. He stated that from the OB, abstract, he could not say who was to blame. He did not have the abstract dated 9th September, 2021. He was not aware that driver of KCX 915N was charged with careless driving. He was not the Investigating Officer. 14.On re-examination, he stated that the inquest file was forwarded to the ODPP Makindu. He was not aware about any abstract other than the one before court. He said the driver sustained injuries and was rushed to Makindu Sub county hospital for treatment and he succumbed on 11th September, 2026. 15.PW 2-Magdaline Nthenya Kisilu testified that she is a widow of Gerald Kioko. She adopted her witness statement dated 14th April, 2022 as her evidence in chief. In the statement, she stated that the accident occurred on 9th September, 2021 at Ikoyo. Her late husband left behind two children. He died at the age of 35 years and enjoyed a good healthy life. He succumbed to injuries hours after occurrence of the accident while receiving treatment at Makindu Sub-county hospital. Her husband was a personal assistant to the Member of Parliament for Kilome Constituency. He supported the family and catered for their expenses and as a result of his death, her family had lost financial and economic support. She stated that they had filed the case on behalf of the estate of her late husband to seek for compensation. She adopted her list of documents and produced them as PEX 1 to 15. She asked the court to grant her the prayers as per the documents she had filed in court. 16.On cross-examination, she stated that there was nothing to show that he was employed as a Personal Assistant. There was no document to show that he was employed by Hon. Nzambia. She confirmed that there was no evidence from Parliamentary Service Commission to show that he was employed as a Personal Assistant to the MP. She did not produce the P9 form. She stated that she would not be calling Hon. Nzambia to court as her witness to show that her husband was his Personal Assistant. She told the court that she was not working and she came from Makueni. That she lived in her own house and did farming. That her children were in school grade 4 and PP 2. She stated that the limited grant was for purposes of filing this suit. 17.During re-examination she stated that the deceased was employed by Hon. Nzambia. That there was a letter by Hon Nzambia stating that he was earning a salary as his PA. Defendant’s Case 18.The defence called two witnesses in support of their case. DW 1-Peter Kitela testified that he was an Insurance Investigator. He stated that they were instructed by Ayan Automobiles Limited to trace the whereabouts, status, physical and postal address of the owner of motor vehicle registration number KCX 915N. They traced the owner, a company in Mombasa County. The company told them that they had sold the motor vehicle to Dickens Awino as at the time of the Road Traffic Accident. They traced Dickens Awino in Embakasi within Nairobi county. They also traced that he was a staff at a school Casa dei Bambini in Nairobi county. DW1 testified that he perused the OB and noted that OB 05/9/2021 motor vehicle to blame was KCX 915 N Honda Station Wagon. 19.On cross examination by counsel for the plaintiffs he confirmed that he was paid for the service. Third Party Case 20.The third party, Dickens Tom Odiwuor Awino testified that he was the owner of KCX 915N. He had recorded a witness statement which he adopted as his evidence in chief. He stated that when the accident occurred on 9th September, 2021, he was not in control of the motor vehicle. He had given his motor vehicle to his friend Gerald Mutua Kioko who was going to his place in Makindu. He was never summoned to police to record a statement. He reported the accident to his Insurer. The insurer did not represent him in court. 21.On cross-examination by counsel for the plaintiff, he stated that he has never been summoned by police. He said he gave the car to his friend to use on the material date. 22.On cross-examination by counsel for the defence he stated that he was the registered owner of the motor vehicle when the accident happened. He was not aware how the accident happened. He confirmed that he had not effected the transfer because he had not cleared the full payment for the motor vehicle. 23.At the close of all parties’ cases parties agreed to proceed by way of written submissions, which they filed. Plaintiff’s submissions On liabilities 24.The plaintiffs seek 100% liability on the defendants. The Plaintiffs relied on the evidence of the Plaintiff and police officer. It is submitted that the reason for that is that the 1st defendant had been charged with a traffic offense of causing death by careless and reckless driving. 25.At the same it is submitted that the police officer stated that he was aware of the one which showed that an inquest file that was opened was still pending investigations. 26.It was submitted that the failure by the 1st defendant to testify amounted to an admission of liability. That the evidence of DW1’s testimony was hearsay as he was appointed as an Investigator after the occurrence of the accident – that the defense had a duty to prove that it was not liable for the defendant. 27.The plaintiffs relied on Section 107 of the Evidence Act –107.Burden of proof1.Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any facts it is said that the burden of proof lies upon that person. 28.The Plaintiffs also relied on Netah Njoki Kamau and anor versus Eliud Mburu Mwaniki (2022) eKLR the court held that-‘‘…where a defendant does not adhere evidence the plaintiff’s evidence is to be believed as delegations by the defense is not evidence” 29.It was further submitted by the Plaintiffs that the 3rd party was not to blame for the accident and it was the defendants who were 100% liable to the occurrence of the accident. On Quantum 30.It was submitted that the plaintiffs had proved the special damages on the documents that were placed before court. 31.On pain and suffering, it was submitted that an award of Kshs. 300,000/= would be fair and reasonable in the circumstances. 32.The plaintiffs cited a case decided in 2016 where the sum of Kshs. 800,000/= for pain and suffering. The plaintiffs submit that due to time and inflation, the sum of Kshs. 300,000/= would suffice. 33.On loss of expectation of life, the plaintiffs citing the age of the deceased, and urged the court to award Kshs.300,000/=. 34.The 1st Plaintiff sought damages for loss of consortium and companionship. The submission is that “the 1st plaintiff testified that he lost the lawful husband of the deceased and that loss of his wife dealt him a big blow including incapacity to raise the children who she is presently taking care single-handedly…” 35.A sum of Kshs. 200,000/= is sought for this on loss of dependency as per the Fatal Accidents Act – it is submitted that the deceased earned Kshs.165, 281/=. 36.It was submitted that there was the widow and the children – the dependants. 37.It is submitted that an award of Ksh.33,056,200/= is what the Plaintiffs are entitled to–calculated @2/3 x25x165,281x12). 38.The Plaintiffs rely on Mose & Another vs Kakai (Civil Appeal 33/2022) [2025] KEHC 1766 (KLR) where the deceased was 27 years old and was married with 2 children of the time of his death. The court awarded Kshs- 1, 911,360/= or toss of dependency using multiplier approach i.e. multiplicand of Kshs. 20,000/- multiplier of 33 years and dependency ratio of 2/3. Defendants’ submissions 39.It is submitted that the plaintiffs did not establish its case against the defendants – that the police officer stated that the case was still under investigation. That it is the duty of the plaintiffs to prove the allegations against the defendant. (see Bundi Makube an infant suing by his next friend Thomas Bundi vs Joseph Onkoba Nyamuro [1983] eKLR). 40.It is submitted that the PW1 & PW2 did not highlight the alleged negligence against the defendants. 41.According to DW1, the police abstract dated 9/9/2021 which he attached the report indicated that Kioko Mutua was responsible for the accident and was charged with careless driving. 42.It was submitted that the Third Party did not call evidence but filed submissions and that Submissions, it was submitted, are not evidence. The defendants urge that the case against the defendants be dismissed. 43.The defendants rely on the case of Peter Kanithi Kimimunya vs Aden Guyo Haro [2014] eKLR where the court, held that it was upon the plaintiff to prove the particulars of negligence against the defendant through the plaintiff’s own testimony. 44.Similarly, in Stratpack Industries vs James Mbithi Munyao, Nairobi HCCA 152/13 where the court held that it was trite that the burden of proof of any fact/allegation is on the Plaintiff who must prove the caused link between a person’s negligence and his injuries, by adducing evidence – from which the conclusion can be drawn on a balance of probabilities – as not every injury is necessarily a result of someone’s negligence. 45.In Macharia vs Kirimi & Another [2023] KEHC 24185 KLR where the court found that the plaintiff failed to prove negligence on the part of the driver and did not give the court material for the court to apportion liability to the defendants. 46.The defendants rely on Section 112 of the Evidence Act which provides that; 112.Proof of special knowledge in civil proceedings.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him. On Quantum 47.It is submitted that the deceased died on 9/9/2021 – they submit that Kshs. 20,000/= was sufficient. They cited the case of Floice Adema vs Kezia Muthoni Ngure & 2 others MSA HCCC No. 301/2002 where the court awarded a sum of Kshs. 5000/=. 48.They also cited the case of Paul Mutiso & Mutiso (Suing as the Legal Representatives of the Estate of Joshpat Kioko Mutiso) [2024] KEHC 17215 (KLR) where the sum of Kshs. 30,000/= was awarded for pain and suffering. 49.On loss of expectation of life, it is submitted that the sum of Ksh.80,000/= is sufficient as awarded in Grace Wanjiru Gichuki vs Peter Gateru Macharia – HCCC No. 1 of 1999 where Kshs 70,000/=. In Philomena Mutheu Nzyoka suing as the Legal Representative of the Estate of the late TKM vs Transpares Kenya Ltd [2016] eKLR where the sum of Kshs. 80,000/= was awarded for the same. 50.On the award under the Fatal Accidents Act, it was submitted that the alleged salary of Kshs.165,281/= was neither pleaded nor proved. It was submitted that PA’s are directly employed by individual MPs, but the salaries, and emoluments are paid by the Parliamentary Service Commission. 51.That the letter dated 14th February, 2022 was not corroborated by any evidence, no payslip, no evidence of employment. 52.The defendants rely on – Kemfro Africa Ltd t/a as Meru Express Services, Gathogo Karimi vs AM Lubia CA 21/1984 (1982 – 1988) 1KAR 727 – that in the absence of evidence of earnings it is better to opt for Lumpsum award and on Mwanzia vs Ngalali Mutua Kenya Bus Ltd – quoted in Albert Odawa vs Gichumu Githenji NKU No. 15/2003 [2007] KLR, where the Judge stated that the multiplier approach was not a principle of law but a method of assessing damages. 53.The defendants cited other cases that support this position. It was submitted that the sum of Kshs. 1,200,000/= was sufficient in this case. 54.The defendants cited several other cases where court awarded sums ranging between Kshs. 600,000/= to 1,500,000/= between 2014 –2021 for deceased persons aged 28 – 31 years old. 55.For instance, in Gilbert Kimatare Nairi & Another (Suing as personal representative of the Estate of Jackline Sein Lemayian (Deceased) vs Civiscope Limited [2021] eKLR, the deceased was 31 years old and the court awarded a global sum of Kshs. 600,000/= for loss of dependency. 56.In John Macharia Mwangi vs Josphat Muriungi Muguongo & Another (Suing as the Legal Representative of the Estate of Christine Nkirote Muriungi (deceased) [2020] eKLR, where the court awarded a global sum of Kshs. 1,000,000/= for loss of dependency where the deceased was aged 31 years and survived by two school going children as well as supporting her father, and her income had not been proved. 57.In Oyugi Judith & another vs Fredrick Odhiambo Ongong & 3 others [2014| KEHC 8813 (KLR), Justice Majanja awarded Kshs. 700,000/ = for loss of dependency for the deceased, Erick Okoth Obambla who was 30 years old at the time of his death and Collins Ochieng Obambla was aged 28 years at the time of his death. The Judge proceeded to award Fredrick Ouma, the third deceased Kshs. 120,000/= and stated the plaintiff in that case was a polytechnic student in his final year. Quite unlike in this case, the future prospects of the deceased were not known nor was there any basis to speculate that he would have been an engineer. Even if he was, the plaintiff did not proffer any evidence to show the level of expected earnings or his prospects in the future. In the circumstances, a multiplier approach wholly inappropriate as a basis for assessment of damages. A global sum to recognize the loss to his estate would be preferred. 58.On special damages it was submitted that only one receipt of Kshs. 13,000/= was provided. I did not see any other submissions. Analysis and Determination 59.I have carefully considered the pleadings, the evidence adduced, the written submissions by the parties and the cited authorities. The issues that arise for determination area;i.Who is liable for the accident that occurred on 9th September, 2021?ii.Whether the Third Parties are liable for the accident?iii.Whether the plaintiffs are entitled to the prayers sought? 60.On the issue of who is to blame for the accident that occurred on 9th September, 2021, it is not in dispute that the accident occurred. This burden of proof is provided for under Section 107, 108 and 109 of the Evidence Act, cap 80 Laws of Kenya which provides as follows:107.Burden of proof3.Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.4.When a person is bound to prove the existence of any facts it is said that the burden of proof lies upon that person.108.Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112.Proof of special knowledge in civil proceedings.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him. 61.The burden of proof on negligence lay with the plaintiffs to prove their case on a balance of probability. The plaintiffs called a total of two witnesses in support of their case. Neither of these witnesses was an eye witness. Even the police officer was not the I.O and only appeared to produce the OB and the Police abstract. His testimony was a bit mixing because it was not clear how the DW1 could have a police abstract blaming the deceased, while he, PW1 was of the view that the case was pending investigations and there was an inquest file with the DPP. 62.What is not in dispute is that the two motor vehicles collided and one of the drivers died from the injuries sustained. 63.The plaintiff had a duty to establish negligence on the part of the defendants. Other than producing the two documents PW1 did not give any evidence to establish negligence on the part of the defendant. The mere fact of an accident occurring was not proof of negligence on the part of the defendants. The plaintiffs after filing the pleadings had a duty to prove their case. It was not upon the defendants to disprove facts that were not proved. 64.In this case I found no evidence to establish negligence on the part of the defendants. 65.The failure by the 1st defendant to testify would only construe otherwise if the plaintiff had established negligence on the part of the defendants. 66.On the loss of dependency, no income was pleaded in the amended plaint. The only thing pleaded was that the deceased was the personal assistant to the MP. However, no evidence of payment of any salary, no pay slip or proof that any such sum of money was ever paid to him. Hence having not pleaded the salary and not provided any evidence of earning that sum the plaintiffs did not prove that the deceased earned the salary they alleged. 67.Standard of proof on a balance of probabilities, determine whether the plaintiffs have established their claim the Defendants as being more probable than not. 68.Can it be said that both drivers contributed the accident? Where is the evidence of contribution? The police abstract produced by the plaintiffs clearly states that an inquest file was opened an indication that even the police did not find evidence to blame either driver. The same indicated that it was intended to charge the deceased but where the intended charge would have been it says inquest file opened, there was no clear evidence of blame. 69.It is therefore evident that the plaintiffs did not prove negligence on the part of the defendants and hence nothing before the court to support any apportionment of liability to apportion liability. 70.On whether the Third parties are liable for the accident, it was the evidence of the 2nd Third party that the registered owner of the motor vehicle KCX 915N had voluntarily handed over the same for use by the deceased. The deceased was driving the vehicle with authority from the owner. No negligence was could be apportioned to the owner of the m/vehicle except that because his m/vehicle was used by the deceased with his authority, he would be vicariously liable for the negligent acts of the deceased. However, with respect to the 1st Third party the is no liability as the 2nd Third party confirmed that he was the owner of the m/vehicle driven by the deceased. 71.In the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & another [2004] eKLR, the Court of Appeal held thus;“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act Cap 80. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act.” 72.If I had found the defendants’ liable, I would have proceeded award damages. 73.On whether the plaintiffs are entitled to the prayers sought, the plaintiffs sought a sum of Kshs. 300,000/= for pain and suffering. The defendants submitted for a sum a sum of Kshs. 20,000/= would suffice. It cannot be assumed that if the deceased died on the spot, he did not suffer any pain. It has been held that, where the deceased dies several hours after the accident during which time, he was conscious and was in pain, an award for pain and suffering would not be nominal (see Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased) 74.This court is guided by the case of Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLR, the court held that;“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.” 75.Based on the above cited authorities, I would award kshs. 100,000/= for pain and suffering and Kshs. 100,000= for loss of expectation of life. 76.On loss of dependency, the plaintiffs have urged this court to award Kshs. 33,056,200/=under the Fatal Accidents Act. The plaintiffs established that he was survived by a wife and two children who depended on him. Never the less the neither the employment nor the income alleged to be from one Hon. Nzambia was proved. The income was not pleaded and the letter was not accompanied by any evidence that the deceased was the Personal Assistant to the MP. 77.In the circumstances the multiplier approach would not apply. It is only one a way of determining damages for loss of dependency as was stated in Mwanzia vs Ngalali Mutua Kenya Bus Ltd and quoted in Albert Odawa vs Gichimu Githenji Nakuru HCCA N0.15 of 2003 [2007], KLR, I would find that the global sum approach would be applicable see Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court held as follows:“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.” 78.Looking at the authorities cited by the defendant on this award I pointed out that they were a bit outdated. The more current awards range at Kshs. 2,000,000/= as a global sum for a 32-year-old with unproven income (see Kirimi & another (Suing as the Administrators and Legal Representatives of the Estate of Agnes Ntinyari Murungi - Deceased) vs Kithinji & another [2023] KEHC 17732 (KLR) the court awarded Kshs. 2,000,000/= as global sum for a 32-year-old with unproven income. 79.See also Kidiga & another vs Onguna & another (Suing as the Administrator of the Estate of Elvis Omondi Otieno – Deceased) [2025] KEHC 10523 (KLR), where the deceased was 29 years old and the court on appeal upheld a global sum of Kshs. 3,000,000/=. 80.I would assess a global sum of Ksh 3,000,000/= in the circumstances of this case. 81.On loss of consortium and companionship, the plaintiff did not cite any authority and the defendant did not respond to the claim. Be that as it may it is not provided for under the Fatal Accidents Act. In Acceler Global Logistics vs Gladys Nasambu Waswa & another [2020] KEHC 9074 (KLR) the court dealing with a similar issue stated “The law as I understand it is that when a spouse is injured to an extent that he cannot provide consortium to his spouse, either temporarily or permanently during the rest of his/her life, then the spouse of the injured person can sue and recover damages for loss of consortium. But this is not indefinite. In the event of death, then this claim is unavailable. This issue has been judicially considered several times in Alberta and by the Supreme Court of Canada. In O’Hara v. Belanger [71] the court ruled that there is no award for loss of consortium in fatal accident cases except for the period between the injury and death of spouse. In other words, the time when the injured spouse was or is indeed alive. There is, therefore no “future” loss of consortium that is compensable. To me this statement represents the correct position of the law. In this regard, the deceased died on the spot. Had he survived the acceded and succumbed after sometime, then the award under this head would be available to the first Respondent. It follows that the learned Magistrate misdirected himself in making an award under the claim for loss of consortium in the circumstances of this case.” 82.I would not award any damages on this head 83.I would find that the claim for special damages was pleaded and proved 84.In conclusion, I find that the plaintiffs have not placed evidence before the court to prove liability on the part of the defendants. The evidence is insufficient to even enable the court to apportion liability. 85.If the plaintiffs had proved liability the court would have been in a position to apportion the same. 86.On damages I would have made the following awardsi.Pain and suffering- Kshs. 100,000/=ii.Loss of expectation of life- Kshs. 100,000/=iii.Loss of dependency- Kshs. 3,000,000/=iv.Special damages- Kshs. 14,840/=Total award Kshs. 3,214,840/=The plaintiffs’ suit is dismissed with no orders as to costs JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD JULY 2026.MUMBUA T. MATHEKAJUDGE