Kisilu & another (Suing on Behalf of the Estate of Helen Mbula Kisilu (Deceased)) v Nyamu & another (Civil Suit E044 of 2025) [2026] KEMC 346 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE COURT AT VOI CIVIL SUIT NO. NO E044 OF 2025** **MARGARET NDINDA KISILU & MERCELINE MBEKE KISILU (Suing on behalf of the estate of HELEN MBULA KISILU (Deceased)…………………………………………………PLAINTIFFS** **VERSUS** **KENNETH MWENDIA NYAMU………………………………………………....1ST DEFENDANT** **KENYATTA UNIVERSITY……………………………………………………..…2ND DEFENDANT** **JUDGMENT** **Background of the matter** 1. This matter was tried by this court while trial magistrate was stationed at Voi Law courts before the transfer of 12/1/2026 to Mariakani Law Courts. 2. Trial: Both cases were heard on 16/10/2025. The plaintiff Margaret Ndinda was the 1st witness. PW 1 testiifed adpting her statement dated 19/3/2025 as her testimony and she produced as exhibits n. 2 to 10 the documents in plaintiffs bundle dated 30/2/2025. 3. The 2nd plaintiff’s witness was Sergeant Dayib Yusuf no. 85936 of Maungu Police, Traffic section his case. Plaintiff closed on 16/10/2025. 4. Defence case: defence called 1 witness: the 1st defendant **Kenneth Mwendia Nyamu** who testified on 16/10/2025 and the defence closed its case as well. 5. Closing submissions: parties filed submissions: Plaintiff’s submissions dated 16th January 2026 and defence submissions dated 26/1/2026. 6. Due to transition challenges this matter was only brought upon on 4/6/2026 before this court for reservation of a judgment date upon directions issued by the SPM Voi. 7. Parties pleadings considered: Nature of case: This is a fatal Injury claim suit lodged vide Plaint dated 30th February 2025 filed through the firm Kiroga Kuria & Co. Advocates for the plaintiff. The Plaintiffs are respectively the mother and sister of the deceased Helen Mbula Kisilu, and they filed suit as the administrators of her estate and on behalf of the dependants of the estate of the deceased. Suit seeks: special damages and funeral expenses Kshs. 591,750/=, General damages: for pain and suffering, loss of expectation of life, loss of dependency; and costs of the suit with interest on the awards sought. 8. Opposing suit: The Defendants statement of defence dated 26th March 2025. The defendants filed the memorandum of appearance dated 26/3/2025 through **Muthee & Partners LLP.** Defence denied all the particulars of negligence pleaded in the plaint pleading that the plaintiff contributed to her injuries if any due to the negligent manner she conducted herself as a passenger. In paragraph 6, the defence has particulars negligence a-6 including defence of *volenti non fit injuria* that for allegedly remaining on board a vehicle driven in the manner alleged in the plaint. Any injuries suffered by the plaintiff were not caused in any way by the defendants. Particulars of beneficiaries of estate of deceased are denied in paragraph 9 of the defence as well as particulars of special damages calling for strict proof. Defendants deny receipt of demand and notice of intention to sue and deny that there is a cause of action against them. The only admission in the defence being the court's jurisdiction. 9. ON LIABILITY: This court has already determined the question of the defendants’ liability. **This court absolved from blame** the driver of motor vehicle registration number KCK 289W/ZE 205S in Voi suit NO. E.201 OF 2024 BENARD KONZI MGUTE alias BENARD KONZI MUGUTE KONZI alias BERNARD KONZI MUGUTE alias BENERD alias BERNARD KILONZI =VERSUS = KENYATTA UNIVERSITY.............1ST DEFENDANT NYAMU KENETH MWENDIA 2ND DEFENDANT **in its decision rendered 6th MARCH 2026.** This court held in Voi CC. E201/2024 that the driver of the bus Nyamu Kenneth Mwendia was negligent in the manner he drove the vehicle and the university his employer vicariously liable. 10. **The issue of** Liability was determined by this court in **Voi CMs Civil Suit no. E109 of 2024 *GEORGE OUMA OPAR and PAMELA ACHIENG OUMA*** *(Suing on their own behalf and as the administrators of the Estate of the late VALERIE AKINYI OUMA VERSUS KENYATTA UNIVERSITY & NYAMU KENETH MWENDIA in the Judgment delivered on 5th February 2026.* The question *of liability for the* occurrence of an accident on 18th March 2024 along Mombasa –Nairobi Highway at Maungu Pipeline Area and determined whether the said accident was occasioned by **the blameworthy manner in which the driver of motor vehicle KAJ 840S Nyamu Kenneth Mwendia controlled the said vehicle resulting into the accident**, and pronounced itself on the question whether the ***driver of motor vehicle registration number KCK 289W/ZE 205S was shown to have*** caused the accident or contributed to its occurrence by negligence. This court found affirmatively that both defendants were *wholly liable for the accident as the owner of the vehicle vicariously liable for the negligence of its agent and driver for negligence, and held the* defendants *100% liable for the accident* that resulted in death of Valarie Akinyi Ouma that occurred on 18/03/2024. 11. A similar finding was made in **Voi** Civil Suit No. E 152 Of 2024 Zacharia Opiyo Wanga & Nelly Akoth Opiyo (Suing As Legal Representatives Of The Estate Of Neville Omondi Opiyo Alias Opiyo Omondi (Deceased) Vs Kenyatta University & Nyamu Keneth Mwendia on 4/12/2025 (A. M. Obura, CM) in well reasoned judgment which this court had the advantage of reading. 12. In both Voi CC E109/2024 and Voi CC E201/2024 **the firm Muthee LLP & Associates was acting for defendants as in this case.** 13. Therefore this court reiterates the holding and findings in the prior related cases and finds herein as well that Nyamu Kenneth Mwendia the 1st defendant Mwendia lost control of the motor vehicle KAJ 840S by negligence. The employer of Nyamu Keneth Mwendia, being the 2nd defendant, being owner of the vehicle KAJ 840S is vicariously liable for the negligence of its agent and driver for negligence. 14. The defendants are both defendants jointly and severally liable for the negligence, thus *100% liable for the accident* that resulted in death of Helen Kisilu Mbula, that occurred on 18/03/2024. The plaintiff’s case as pleaded has been proved to the required legal standard. **DW 1 Nyamu Kenneth Mwendia** driver of the subject motor vehicle KAJ 840S was negligent. He is the authorized driver of the 2nd defendant. The 2nd defendant is thus vicariously liable for the 1st defendant’s negligence. The defendants are *100% liable for the accident jointly and severally.* 15. ON QUANTUM of damages: the court has considered ***submissions by both parties.*** 16. The Defence submits (submissions dated 26th january 2026): on Pain and suffering a nominal award of Kshs. 10,000/= is appropriate as deceased died on the spot; did not suffer pain. 17. Plaintiff submits: Pain and suffering: award of Kshs. 40,000/= is just deceased died on the spot. 18. Loss of Expectation of Life: Defence submit a nominal sum Kshs. 80,000/= will suffice under this limb. Cases cited: Kenya Power & Lightning Co. Ltd vs Maria Kerubo Kianga & another (2020) [2021] KEHC 5148. Case stated to be in regard to a victim who was a student the High Court upheld a trial magistrate's award of Kshs. 80,000/= for loss of expectation of life. Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as legal representatives of the Estate of Robert Mwangi (deceased)) [2019] eKLR. It was held that the conventional award for loss of expectation of life is Kshs.100,000/=. Kwamboka Grace v Mary Kemuma Mose [2017] eKLR..In this court’s opinion the award by the trial court under the Law Reform Act for loss of life expectation (Ksh. 100,000/=)......*.was reasonable and adequate such that it does not call for interference by this court.* 19. Plaintiffs submits: Loss of Expectation of Life submits a conventional sum Kshs. 100,000/= is reasonable under this limb. Cases cited: Taita Taveta Univiesity Vs Rugut & Maritim (suing on their own behalf and as administrator of the Estate of Cosmas Kipserem Kipkoech) Civil Appeal E009/2021 (2022) KEHC (KLR) where High Court upheld award of Kshs. 100,000/=. 20. On Loss of Dependency: Defence submits that dependency must be proved by evidence of earnings, and that there was no evidence adduced in this case to prove dependency. The deceased was a university student, fully dependent on the parents. That there was no monthly income or any form of employment proved, therefore defence submits that dependency being a matter of fact was not proved as no evidence was adduced in this case. Cases relied upon: Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR for the holding that *“ ………, 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.* Case relied upon:David Mbuba & another v Victoria Mwongeli Kimwalu & another [2018] eKLR*, where defence submits the appellate court reduced the dependency ratio due to lack of proof.* 21. Defence thus submits that deceased had no income or ; no award under this limb should be made. Alternatively if any is awarded, the award should be modest, applying a reasonable global sum formulae. Case relied upon: Kwamboka Grace v Mary Kemuma Mose [2017] eKLR. The deceased was a dependent of his parents for all his needs. Appellant was therefore of the view that the trial court should have applied the global sum formulae in awarding damages for loss of dependency rather than the multiplier approach. The Court awarded Kshs. 300,000/= under this limb. 22. Defence submits: award on dependency if made should be on a global sum formula not on the multiplier approach. Cases relied: Mwanzia Vs Ngalali Mutua Vs Kenya Bus Services (Msa) Ltd & Another. Defence urges court to apply the guidance made by Justice Ringera that when determining which approach a court should undertake in assessing damages for loss of dependency, Judge held thus: - “*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. It is plain that it is a useful and practical method where fact or such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; 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.” Defe*nce thus submits if any award is made it should Kshs. 300,000/= global sum. 23. Plaintiffs submit loss of dependency be awarded a global Kshs. 2,000, 000/= Cases relied upon: Taita Taveta Univiesity Vs Rugut & Maritim (suing on their own behalf and as administrator of the Estate of Cosmas Kipserem Kipkoech) (supra); where a multiplier 25years was adopted for a 1st year college student 23 years at time of death; Case of MWangangi & another VS FKM (suing on as leagal representative of the Estate of AMK) Civil Appeal E011/2021 KEHC 291 (KLR ) where a global sum of Kshs. 800,000/= was upheld on appeal for a 12 year old class 4 pupil deceased. Case: Kirimi & another (suing as the administrators of the Estate of Agnes Ntinyari Murungi -deceased) (2023) KEHC 17732 KLR 23 May 2023 (Judgment). Submitting that award of Kshs. 900,000/= was enhanced to Kshs. 2,000,000/= global sum in respect of a 32 year old deceased whose income could be ascettained. 24. Plaintiffs thus submit on loss of dependency Kshs. 2,000,000/= is just to award in this case as Helen was a 3rd year university student in the School of Public Health. She died on 18/3/2024 travelling for an eduction trip to Mombasa. 25. Defence: submits Special Damages (Funeral Expenses): defence submits the claim of Kshs 591,750/= is excessive and unsupported by receipts. Court to disallow a claim under this limb in the absence of proof. Only proven expenses should be allowed. Special damages must be specifically pleaded and strictly proved. The Court to be guide by the receipts on record. Defendant submits that the claim of Kshs 591,750/= is excessive and unsupported by receipts. Defence consludes that the suit should be dismissed in its entirety on liability grounds only proposing awards in the alternative: Pain and suffering: Kshs 10,000/=; Loss of expectation of life Kshs 80,000/=; Loss of dependency Kshs.300,000/=; funeral expenses (special damages) subject to proof only what is strictly proved by receipts. 26. The Court considered the current weakness of the Kenyan shilling and the prevailing inflationary trends; and takes cognizance of the fact that an award of general damages is an exercise of judicial discretion which is based on injuries sustained and comparable award for comparable injuries as was held in the case of **Simon Taveta – Vs – Mercy Mutitu Njeri [2014] eKLR** 27. **On quantum of damages:** having found the defendants 100% liable for the accident that resulted to the death of Helen Kisilu the next issue is reliefs warranted: on behalf of the deceased estate under Law Reform Act: 28. **a) On pain and suffering,** both parties arguments considered. , the court notes from the Certificate of Death exhibit 3 that the deceased died 18/3/2024 on the same date of the accident; as a result of cardiocerebral injuries *(burnt forle sic0* trauma from motor vehicle, she must have suffered pain how brief her suffering and pain. 29. The fact that the deceased succumbed to death due injuries suffered in a road accident is not in question. She died on 18th March 2024 at Maungu. Due to the short period of suffering. The deceased was 22 years old, healthy and vibrant in life. Her life was cut short. 30. Together with the decisions cited by the parties, this court has considered by **David Kahuruka Gitau & another =Vs= Nancy Wathithi Gitau &another (2016) eKLR.** In that case Justice Mativo (as he was then) upheld Kshs. 100,000/= awarded where the deceased died within 30mins of the accident. In page 4 of the decision Judge Mativo considered the reasoning for the pain and suffering award that personal representatives seek on behalf of the deceased applied with approval to *Lord Green in Rose V Ford* where it was held where *the period of suffering is short, only nominal damages are awarded.* In ***Rose 500 pounds was awarded in 1935*** where the deceased suffered 2 days. Judge Mativo thus found *Kshs. 100,000/= was not excessive.* 31. This court has considered the words of Justice Majanja that the estate of the deceased is entitled to compensation for the pain suffered by the deceased, ***however brief and fleeting*** and that “*higher damages will be awarded if the pain and suffering is prolonged before death’’* in the case **Sukari Industries Limited Vs Clyde Machimbo Juma HCCA no. 68/2015 (2016)eKLR** applied with approval in **West Kenya Sugar Co. Ltd Vs Philip Sumba Julaya suing as administrator &** **personal representative of the estate of James Julaya Sumba (cited by the plaintiffs).** Judge Majanja (His soul rest in peace) considered *awards for pain and suffering given by the High court 20yrs back and observed the awards ranged between Kshs. 20,000/= and Kshs. 100,000/=.* 32. On **pain and suffering,** this court finds sum of **Kshs. 10,000/=** proposed by the defence is unjust in the current times. The court thus **awards plaintiffs** Kshs. 40,000/= as sought for the estate of the deceased for pain and suffering endured as result of the accident. 33. Under the Law Reform Act the other relief sought is Loss of expectation of Life. Here almost similar amounts are proposed. Defence proposes Kshs. 80,000/= while the plaintiffs submit a conventional sum of Kshs. 100,000/= will be reasonable. 34. In *David Kahuruka case* above cited considered by this court, Judge Mativo in 2016 upon **reviewing authorities on awards made *for loss of expectation of life state****d in page 5* paragraph 2 that the 1st decision in which such award was made that the Judge saw was one by Justice Apaloo Court of Appeal Judge made in 1986 in which the court awarded Kshs. 100,000/=. Judge Mativo observed that *years on*, *courts were still awarding Kshs. 100,000/=* ***as conventional*. I**n the judge’s opinion he stated it was time courts consider inflation and adjust the award under that head upwards. This court finds the Judge’s reasoning in *David Kahuruka case, is just* and progressive as life is precious and must not be lessened even by an hour. The future is a gold mine. This court would have awarded a higher sum on loss of expectation of life had it been sought. However, noting sum prayed for by plaintiffs and that the benefit from the estate is for the dependants of the estate of the deceased and they are compensated under the Fatal Accidents Act as well, Kshs. 100,000/= sought is just to award. The court grants plaintiffs **Kshs. 100,000/=** on loss of expectation of life as prayed. 35. Reliefs under Fatal Accidents Act: l**oss of dependency:** the defendants urged a global sum of Kshs. 300,000/= only should be awarded in this case. There should be no speculation as to how much income the deceased would have earned if at all given that she was not earning any income at time of death. 36. plaintiffs, while citing cases where a multiplier approach was adopted in assessing loss of dependency in relation to a deceased college student, have proposed that a global sum be granted in this case: Kshs. 2,000,000/=. 37. While it is correct that deceased was still depending on her parents as confirmed by PW 1 Margaret and was not yet supporting the parents or sibling financially, that would not have deter this court from considering a possible income level however basic. 38. This court has considered decisions such as:case **Hassan versus Nathan Mwangi Kaтаи Transporters & 4 others [1986] KLR 457** for the holding that loss of earnings to be considered in the assessment of damages should ***consider earnings for the profession the deceased was pursuing or would have pursued had death not occurred.*** In **Hassan** court stated that ‘*’It is now an established principle that the estate of the deceased is entitled to lost years, for the inco****me that would have been earned by the deceased,*** *less the living expenses, assuming that one lived and worked up to the age of retirement. …..”* 39. As was held **Hassan –Vs- Nathan Mwangi Kamau Transporters & 5 Others (Supra)** among other decisions, Courts have found where the deceased is i**n university their income is not speculative.** In **Ruth Wangechi Gichuhi -Vs- Andrew Mangeni Luande [2011]** **eKLR**, High Court adopted a multiplier of 30 years for assessing loss for a university student who died aged 22 years and **Steve Tito Mwasya & Another (Both Suing As Legal Representatives Of The Estate Of Skt *(Deceased) -Vs Rosemary Mwasya [2015] eKLR*** where a multiplier of 30 years for a deceased university student who died aged 19 years was adopted and assumed that the deceased would have started working at the age of 25 years. 40. In this court’s mind arriving at a possible income for a student as in this case who was in pursuit of education would be allowable under the presumption of likely facts uder section 119 of the Evidence Act. and would have been a more reliable basis than a global figure. 41. On loss of dependency court agrees with defence submissions that there was no proof of actual financial input of by deceased in supporting her mother, father and sister . There is a letter produced dated 21/5/2024 plainrtiff exhibit 5 by assistant chief Kathama location, Mbiuni that shows the deceased is suivived by a mother, father and sister. The 2 plaintiffs here are mother and sister of the deceased respectively. 42. Dependency might be measured on monetary terms as more universal measure but in this court’s mind there is no denying that a parent can depend on their child for non monetary support as can a sibling. 43. The hope the plaintiffs had over their daughter/sister’s support **in future is one a hope** that has been taken judicial notice of as a Kenya custom. **Court of Appeal** decision **Sheikh Mushtaq Hassan -Vs- Nathan Mwangi Kamau Transportes (Supra), is instructive,** The words of **Justice Nyarangi** J*.A.,* (as he was then) as *follows: ‘ In general, In Kenya children are expected to provide and do provide for their parents when the children are in a position to do so and to the extent of their abilities. The children are expected to do that by the established customs of the various African and Asian communities in Kenya. This particular custom is broadly accepted, respected and practiced throughout Kenya by both African and Asians. This is the position most parents find themselves in here in Kenya. They take their children to school, paying school fees and for other school requirements for them, till the children complete school and take up training courses and other relevant studies to enable them to prepare themselves for a particular desired employment or career whether in the public sector or private sector. These parents feel that it is their responsibility to pay for their children's education so that these children may get gainful employment for their own financial support in this competitive life and also for the financial support of the parents in old age. Parents therefore do have hope in their children. After investing heavily in the education of their children, the parents expect these children to reciprocate and give them some financial support, assistance and care in their old age. Upon the death of that child a parent's hope and expectations are dimmed and that financial support is obliterated. It is for this reason that courts do condemn tortfeasors to pay the estate of such a child, for the benefit of his or her parents and other beneficiaries, money for lost years. That is money which such a child, if she or he had lived and worked, would have earned for the period that she or he would reasonably have been expected to be in the income-yielding employment.’’ (emphasis supplied)* 44. Under the Fatal Accidents Act plaintiffs pleaded for relief in paragraph 12 of the plaint. The plaintiffs here being mother and sister of the deceased are recognized as dependants in respect of the estate of the deceased. 45. The court finds the proposal by defendants that global sum of Kshs. 300,000/= only should be awarded if at all is unmerited and would be unjust to adopt in the circumstances. 46. That being said, on the question of choice of a multiplier and a multiplicand approach however this court will go by the proposal by plaintiffs but not because any other approach would have been unjust. 47. On loss of dependency: considering the plaintiffs proposal the court awards plaintiffs Kshs. 2, 000, 000/= for loss of dependency. 48. On **special damages, this court is satisfied given** that plaintiiffs pleaded speciifics of costs incurred in paragraph 13 of the plaint and tendered exhibits 8a, 8b, 8c, 8d and 8e showing cost for000/=; Copy of records **Kshs. 550/=; mortuary charges , cost of hearse and casket Kshs. 100,000/= tents chairs, PA. and videography Kshs. 240,000/=** catering and labour Kshs. 250,000/= the court finds funeral expenses Kshs. 590,00/= reasonably proved as required. Letters of Administration **ad lite** exhibit 2 cost pleaded of Kshs. 1,000/= is reasonable as well as for police abstract. The court therefore awards Kshs. 591,750/= special damages pleaded and proved. 49. The court **enters plaintiffs' prayers** for judgment against the Defendants jointly and severally for the awards follows: Overall awards *A)* General damages under the Law Reform Act: *pain and suffering Kshs.40,000/=;* *loss of expectation of life:* Kshs. 100,000/= **B) under Fatal Accidents Act**: *General damages* a) loss of dependency: Kshs. 2, 000,000/**= *global*** *C)* Special damages **Kshs. 591, 750/=** 1. The defendants were served with a demand letter plaintiff exhibit 10, and a statutory notice to insurer exhibit 9. Costs follow the event. The court awards plaintiffs costs of suit against the defendants. 2. Interest on the above awards **A & B** shall be at court rates from the **date of this Judgment** until paid in full. 3. Interest on **special damages** C shall accrue from *filing of suit 19/3/2025 at court rates until* paid in full. Right of appeal as of right as prescribed. **JUDGMENT DATED, SIGNED & DELIVERED THIS…………23RD……DAY OF ……JULY…….2026** **T. N SINKIYIAN, PRINCIPAL MAGISTRATE** IN PRESENCE OF: For the plaintiffs: ………ABSENT……………………………………………………. Kiroga Kuria & Co. Advocates For Defendants:.....ABSENT................................ Muthee LLP & Associates Court Assistant:…WESONGA (MARIAKANI LAW COURTS)