Ludeshi v Derrick (Civil Suit E004 of 2025) [2026] KEMC 388 (KLR) (16 July 2026) (Judgment)

Ludeshi v Derrick (Civil Suit E004 of 2025) [2026] KEMC 388 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEMC 388 (KLR) Republic of Kenya In the Port Victoria Law Courts Civil Suit E004 of 2025 AK Njeru, SRM July 16, 2026 Between Melan Ludeshi Plaintiff and Nabwora Derrick Defendant Judgment 1.Vide a plaint dated 11th February 2025, the plaintiff has sued the defendant on behalf of the deceased’s estate claiming damages both general and special under the Fatal Accidents Act as well as the Law Reform Act on account of his negligence, which he alleges resulted in the demise of the deceased following a road traffic Accident. The suit is premised on grounds that on the 9th day of October 2024 at Funyula-Sio Port Road, the defendant, his employee, driver and/or servant or agent drove the defendant's vehicle registration number KDE 033Z so negligently that the same knocked down a motorcycle where the deceased was a pillion passenger, hence resulting in his fatal injuries. That the estate of deceased was survived by his widow, mother and children Nolyvin Wendy Nekesa aged 4 years and Christabela Ouma aged 6 years. That at the time of his demise, the deceased was aged 27 years, enjoying good health and earning an average income of Kshs 20,000. The estate expended a total of Kshs 553,460 as special damages, itemised as Police abstract of Kshs 200, Death certificate at Kshs 150, hospital and mortuary fees at Kshs 18,100, funeral expenses at Kshs 485,010 and legal fees for obtaining letters of grant ad litem at Kshs 50,000/= the plaintiff now claimed damages under these heads as well as costs and interest of the suit at court rates. 2.In their statement of defence dated 23rd day of May 2025, the defendant denied practically almost all the allegations as enumerated in the plaint save for its description and that no other such matter was pending or had been determined in respect of the same subject matter as well as conceding to the jurisdiction of this court. According to the defendant, the accident never occurred at all, and neither was the defendant negligent at all. in the alternative, defendant stated that I was the motorcycle rider who was negligent in the circumstances 3.In evidence. PW1 SGT Gladys Segem, a traffic police officer based at Bumala Police Station, stated that the accident was reported vide OB NO. 25/9/10/24 and the same related a fatal accident which had occurred on 9/10/24 at 1500hrs at Budwongi area along the Funyula- Sio Port murrum road involving motor vehicle registration number KDE 033Z, Isuzu FRR and motorcycle registration number KMGM 274F Bajaj Boxer. That the matter was investigated by PC Mwatala who at the moment was at a training. From the occurrence book record, the driver of the vehicle reported that both the motorcycle and the vehicle were heading towards the same direction when the motorcycle began overtaking the vehicle. That said, the motorcycle handle hit the lorry from the left side, causing the motorcycle occupants to fall. The lorry then drove over the pillion passenger using the rear wheels. The rider was the plaintiff herein while the pillion passenger was one Peter Ouma. A police abstract was issued to the plaintiff, which she produced as Pex no. 6. The vehicle was registered to the defendant herein. According to the police abstract, the matter was still pending under investigation, and she was not the investigating officer nor had she produced the investigation diary as evidence in this case. That the vehicle ownership details is equally not indicated in the abstract. The rider had a valid driving licence. The motorcycle licence details are not indicated in the abstract, nor its ownership details. The rider was overtaking the vehicle from the left side instead of the right side. The vehicle’s inspection report showed the vehicle had no pre-accident defects. 4.PW2 Albert Rodgers Okumu testified that on the material day he was riding motorcycle registration number KMGM 274F from Sio Port direction heading to Funyula junction at around 3.00 pm carrying one pillion passenger when on arrival at Buduongi area, motor vehicle registration number KDE 033Z on the same direction as him, hit him from behind causing him to fall into a ditch off the road. His pillion passenger fell on the ground under the vehicle, as a result of which he died while on transit to the hospital. He was on the left side of the road ahead of the said vehicle. He was a licensed rider and well insured but had no driving licence nor the insurance certificate as part of his evidence. The log book of the motorcycle was also not part of his evidence in this case. That the evidence of the police officer who produced his abstract is not true on the circumstances resulting in the accident. It was the vehicle that hit the motorcycle from behind, damaging its bonnet near the left head lamp on its left side. He had a helmet on that day. They both fell on the left side of the road. 5.PW3 Melan Ludeshi Wanyama testified as deceased’s widow and stated to have married deceased in the year 2019 and out of their union, they were blessed with two issues aged 4 and 6 years. That on 9/10/24, around 4.00 pm, she received news from her mother-in-law that her husband had been involved in a road traffic accident and had been rushed to Sio Port Hospital. She rushed there and found him receiving first aid. That he was then escorted to Busia for further treatment but succumbed on his way. His body was preserved at Nangna Mission Hospital Mortuary. She reported the matter to Funyula Police Station, where she was informed that the vehicle that had hit the deceased was KDE 033Z . A post-mortem was conducted on the same day, establishing the cause of death as injuries resulting from the said accident. The deceased was a casual laborer earning approximately Kshs 20,00 per month, taking care of his family. She blamed the driver of the vehicle for knocking down the motorcycle the deceased was on board and prayed for compensation. She produced in evidence Pex no. 1, the limited grant of letters of administration; Pex no. 2, the burial permit, Pex no. 3, certificate of death; Pex no. 4, the post-mortem report; Pex no. 5, letter from the assistant chief; Pex no. 7, birth certificates for the children; Pex no. 8(a) and (b), receipts for special damages; and Pex no. 9, demand notice. That she did not have any marriage certificate in proof of her marriage, nor did she have any receipts to prove the deceased paid school fees or supported his family. She also did not have any proof of the deceased's earnings. The luggage the deceased had on board the motorcycle was their food. 6 cows were slaughtered during the burial. They conducted a fundraiser for the burial expenses, which was all in cash. 6.PW4 Rosemary Nekesa Wanyama testified as the deceased’s mother and that PW3 was her daughter-in-law. That her son died on 9/10/24 following a road traffic accident at around 3.00 pm along the Funyula -Sio Port road. The deceased was assisting her financially. The deceased is survived by children who depended on him. That almost 15 cows were slaughtered during her son’s burial. The same was organised by the burial committee where she was part of. 7.PW5 Geoffrey Jacob Agoyi, a businessman dealing in catering services, stated that he offered catering services during the burial of the deceased herein. Their group is called Esikwao Catering group where they purchased all the items during the burial and prepared meals for the mourners. For two days, 18th and 19th October 2024 when the burial took place. That they offered 600 seats @ 10 shillings each, tents, water, maize flour, sorghum flour, cows for beef, water boozer, and cooking oil, all at a total cost of Kshs 485,010, and issued the family with a receipt thereto. He produced the receipt as Pex no. 8(e ). Some of the other items for the burial were purchased at his shop called Mama Pendo Shop, all valued at Kshs 56,360, as exhibited by receipts which he produced as Pex no. 8(c) and (d). That he did not have some receipts such as those of firewood, chicken and cows, sugar, salt, baking soda and other minor items; there was no evidence that the catering group is registered nor that it pays taxes. 8.Defendant’s defence evidence was DW1 Samuel Kimungui Baraza stated that on the material day at around 3.30 pm he was driving the subject motor vehicle registration number KDE 033Z ISUZU FRR carrying 2 passengers namely Collins and Rasta heading towards Funyula direction on the murrum road at a speed of 50km/hr. On reaching Budalang area, he heard a loud voice from behind a motorcycle with a large exhaust pipe and looking at his side mirror, he saw the motorcycle as it reached the middle of the road. He quickly swerved to the right to give it way, but unfortunately, the handle of the motorcycle hit the lorry, causing those on board, the rider and one pillion passenger to fall. The pillion passenger rolled under the lorry and was run over by the rear wheel of the lorry. He moved ahead and saw people wielding rungus baying for his blood. He rushed to Funyula Police Station and reported the accident. Police officers from Bumala were called to the scene and took over the matter. The following day, his vehicle was inspected. He blamed the motorcycle rider who attempted to overtake the vehicle from the left side of the narrow murrum road and failed to maintain a safe distance, thereby causing the accident. His vehicle was hit on its left side. He produced in evidence his driving licence as Dex no.1, police abstract as Dex no. 2 and Dex no. 3, the certificate of examination and test of the vehicle. The rider was speeding and overtaking on the wrong side of the road. The vehicle belongs to Derrick. He returned to the scene in the company of the police and found the rider at the scene. The deceased had already been rushed to the hospital. The pillion passenger had luggage. There was grass and a trench on the left side of the road. The motorcycle fell into the ditch. The pillion passenger had neither a helmet nor a reflective jacket on. 9.In submissions, the plaintiff submitted for liability to be apportioned at 100% against the defendant based on the evidence provided. On quantum, the plaintiff submitted for damages of Kshs 50,000 for pain and suffering as the deceased did not die immediately, Kshs 100,000 for loss of expectation of life and cited the case of Eldoret HCCA NO. 172 OF 2019 Joseph Gatone Karanja vs John Okumu Soita & Anor, on loss of dependency, the plaintiff submitted a global sum of Kshs 3,000,000 and relied on the cases of Eldoret HCCA NO. 113 OF 2019 Judy Chengeno Mosonik & Anor Vs Rosaline Jebet Cheruiyot, Kabarnet HCCA NO. 9 OF 2019 Crown Bus Services Limited and 2 others vs Jamila Nyongesa & Anor, Siaya HCCA NO. E042 OF 2024 Stephen Muiyana Ligosi vs James Asanda Omollo . On special damages, the plaintiff submitted that they had pleaded and strictly proved Kshs 485,000, which they prayed for as well as costs and interest in the suit 10.Defendants on their part submitted that the plaintiff had failed to prove liability on their part. He submitted that in the alternative, liability be apportioned at 50:50 between the parties. On quantum, the defendant submitted for an award of Kshs 10,000 under pain and suffering and relied on the case of Mercy Muriuki & Anor vs Samuel Mwangi Nduati & Anor (Suing as the legal administrator of the estate of the late Mwangi)[ [2019] e KLR. On loss of expectation of life, the defendants submitted for an award of Kshs 100,000 and relied on the cases of Nzuki vs Maithya & Anor (Suing as the legal representatives of the estate of Joseph Wambua- Deceased) Civil Appeal no. E 024 OF 2024 . Under the Fatal Accidents Act, the defendant submitted for a total of 927,689.12. He submitted for adoption of the minimum wage of Kshs 7,997.32 as per the Regulation of Wages (General) Order 2024 for unskilled employees since no evidence has been adduced to prove the deceased’s earnings. He further submitted for a dependency ratio of 1/3, citing that no marriage certificate had been availed to prove the deceased was married to the plaintiff and that only one birth certificate copy of one child was produced, which omits the date of birth of the said minor, hence creating doubt as to its authenticity. That further, there was no evidence that the deceased was providing for them and hence no evidence of dependency. On multiplier, the defendant submitted for 29 years as the appropriate age applicable. On loss of consortium, the said issue was never submitted upon by the plaintiff, but the defendant submitted that failure to produce evidence of marriage is sufficient to deny the said claim on special damages; the defendant urged the court to decline to award the prayer for costs of a police abstract, costs for obtaining the death certificate, as the two had not been proved. That the claim for Kshs 485,010 ought also to be declined, as no pro forma invoice was produced to show that the monies were actually paid. That further, the catering group was not registered, nor was there evidence of tax obligations on their part. That further, the Kshs 40,000 sought for obtaining a grant ad litem ought to be sought in taxation cause. In total. The defendant submitted for a total award of Kshs 518,844.56, considering the 50% contributory negligence. Analysis and Determination 11.I have considered the evidence presented as well as the pleadings and submissions by each of the parties. The issues for determination in any case for negligence are two-fold:Causation and blameworthiness, hence liability and damages payable, if any. I will further consider the issue of whether or not costs ought to be awarded in the present case. 12.The burden of proving a fact lies on the one who wants the court to believe in its existence. Practically, in civil cases, he who alleges must prove it. See sections 107-109 of the Evidence Act. 13.For starters, on liability, I find it useful to cite Halsbury's Laws of England 12 which states: -124th Ed at Para 662 (page 476)“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which the breach of duty a causal connection must be established." 14.First, it is not in dispute that an accident occurred on 9/10/2024 along the Funyula- Sio Port Road at Buduongi area involving the deceased as the pillion passenger of motorcycle registration number KMGM 274F Bajaj Boxer and the DW1 as the driver of motor vehicle registration number KDE 033Z. It is also not in dispute that the accident occurred at 3.30pm along the murrum road with no obstruction as to weather, hence clear visibility. It is also not in dispute that the parties were headed the same direction. The evidence of PW1 and the production of the Police abstract is clear evidence of the fact that an accident occurred between the two parties and the same was documented. 15.What is now in dispute is who was to blame for the said accident. I have considered the evidence by both parties and found that it is PW2’s evidence against the defendant’s evidence. No independent witnesses, despite their availability, were called to give independent testimony to show the circumstances under which the accident occurred, as testified by either party. Further, no sketch maps were produced to enable the court to have a clear picture as to how the accident occurred. PW1 stated that they were not the investigation officer. Her evidence was purely hearsay as the same was unsupported by evidence of the one who visited the scene and documented the scene. That said, from each of their testimonies, one can deduce a few things 16.One is that the PW2 admitted they fell in a ditch on the left side of the road. His evidence that the vehicle hit them from behind is unsupported by any evidence. No inspection report for the motorcycle was produced to prove the damages to it. The defendant, on their part, produced an inspection report which showed no visible damages were noted. The evidence of the defendant that it was actually PW2 overtaking from the wrong side of the road and consequently being hit and falling over is quite believable. 17.Defendant in his submissions has pleaded contributory negligence on the part of the plaintiff. The law on contributory negligence is to apportion proximate cause and blameworthiness where appropriate. In De Frias v Rodney 1998 BDA LR 15 as cited with approval in the case of Mwaura v Palm Travels & another [2024] KEHC 16765 (KLR), it was held as follows:“Contributory negligence required the foreseeability harm to oneself. A person is guilty of contributory negligence, if she ought reasonably to have foreseen that if she did not act as a reasonable prudence person she might be hush and in reckoning must take into account the possibility of others being careless. All that is required here is that the plaintiff should have failed to take reasonable care for her own safety.” 18.In light of the above and in the absence of clear evidence as to the exclusive culpability of the defendant in negligence, I find contributory negligence applicable in this case. In any event, accidents do not just happen. see the case of United Millers Co Ltd v Ochieng [2026] KEHC 8013 (KLR). In Baker vs Market Harborough Industrial Co-Operative Society Ltd [1953] 1 WLR 1472 at 1476, Denning L.J. (as he then was) observed inter alia as follows: -“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both.” 19.While in normal circumstances the courts do not apportion blame against a passenger, I find the present case quite unique; the deceased was a pillion passenger onboard a motorcycle that was clearly uninsured and with no evidence of any protective gear on. There is further no evidence that the rider (PW2 ) was licensed to ride the said motorcycle. I find the deceased to blame for this lapse in caution, albeit to a lesser extent. 20.That said, I apportion blame between the plaintiff and the defendant at 30:70 in favour of the plaintiff. Damages Payable if any Pain and Suffering 21.In Sukari Industries Limited Vrs Clyde Machimbo Juma [2016] eKLR, the deceased had died immediately after the accident and the trial court had awarded Kshs 50,000/= for pain and suffering. Majanja J held on appeal that:“(5)On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The 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 death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years; hence I cannot say that the sum of Kshs 50,000 awarded under this head is unreasonable.” 22.Deceased herein died approximately 2 hours after the accident. I ward damages of Kshs 50,000 under this head. Loss of Expectation of Life, 23.In Mercy Muriuki & Another Vrs Samuel Mwanginduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR the court observed that: -“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 Kshs100,000/- 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.”I award Kshs 100,000 as damages under this head. On Loss of Dependency 24.Deceased was 27 years at the time of his demise. He had 2 children and a widow as is immediate family. I do not agree with the defendant that just because there was no marriage certificate, there was no evidence of marriage. A marriage can be construed even from long periods of cohabitation. Further, evidence that the children’s paternity to the deceased was not properly established equally does not arise. In my considered view, in the absence of any rebuttal evidence to that fact by the defendant, mere cross-examination on the matter did not render the evidence of the plaintiff and her mother-in-law impeachable as to them being the deceased’s dependants. Remember, the standard of proof in civil cases, unlike in criminal cases, is on a balance of probabilities and not beyond reasonable doubt. Their evidence on oath is, in my view, satisfactory for this proof. 25.Be that as it may, where there is no proof of earnings, the courts have leaned more towards a global award rather than relying on the minimum wage regulations. In High Plateau Limited vs Namalwa & 2 others (Suing as the Administrators of the Estate of Alex Mafura (Deceased)) (Civil Appeal E146 of 2023) [2025] KEHC, the High Court held that where there is no proof of income, the global sum approach should be used as opposed to the multiplier approach. In reaching the foregoing holding,the court relied on the case of Albert Odawa vs. Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR where it was 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 factors 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 ofmethodology, something a Court of Justice should never do.”In High Plateau Limited vs. Namalwa & 2 others (Suing as the Administrators of the Estate of Alex [Supra], the court applied a global sum of Kshs.2,000,000.00 for loss of dependency where the deceased was 26 years old and had left behind a wife and 4 children.In Achenda & another (Suing as the legal representatives/ administrators of the Estate of the Late Jophan Achenda) vs West Kenya Sugar Company Ltd (Civil Appeal E004 of 2022) [2023] KEHC 18044 (KLR) (26 May 2023) (Judgment), Wananda J. set aside the award of Kshs. 1,506,117.60/= for loss of dependency and awarded a global sum of Kshs. 2,000,000/= for a 29-year-old deceased.In Nancy Gesare Motari & Samwel Motari Motende (Suing as the Legal Representatives of the Estate of Motari Omanwa Dominic – Deceased) vs. Osano Simpson Nyambane, Civil Appeal No. E029 of 2024, Okwany J. set aside the award of Kshs. 1,800,000/= based on the multiplier approach and substituted it with a global sum of Kshs. 2,000,000/= for loss of dependency where the deceased died at 24 years of age and left behind a wife and two young children below 5 years old.Guided by the above awards, I find an award of Kshs 2,000,000 applicable in the circumstances. 26.On special damages, I agree the same must be specifically pleaded and strictly proved. The plaintiff produced receipts for Kshs 56,360/- from Pedo la mama general shop, Kshs 50,000 for obtaining the grant ad litem and Kshs 485,010 for the funeral expenditure. While the defendants objected mainly to the special damages for the funeral services, the plaintiff's evidence remained uncontroverted by the defendants. It is common knowledge that burials are expensive and costly. The burial took place; money was definitely spent. But as stated in their testimony, the plaintiffs agree that the said amount was donations from well-wishers. The plaintiff cannot therefore claim to have expended the full amount receipted. In such instances, the court can only award a conventional award to the estate. In Taj Ventures Limited & another v Mutahi & another [2025] KEHC 16449 (KLR), the court awarded Kshs 30,000/=I find the same applicable in the present case. Disposition 27.I enter judgment for the plaintiff against the defendant as follows:a.Pain and suffering Kshs 50,000b.Loss of expectation of life Kshs 100,000c.Loss of dependency Kshs 2,000,000d.Special damages Kshs (56,360+50,000+30,000) 136,360/=Sub Total Kshs 2,286,360Less 30% contributory negligence of Kshs 685,908/=Net award Kshs 1,600,452 = plus costs and interests of the suit from the date of judgment till payment in full. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 16TH JULY 2026HON. ANNE NJERUSRMIn the presence ofMr. Omondi for the plaintiff,Mr. Menezes for the defendant andMr. Masiga the Court Assistant.30 days stay of execution granted .