https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/110

Kariuki (Suing as the legal representative of the Estate of Moses Wainaina Njuguna-Deceased) v Yalfa Cargo Handling Limited (Civil Case E229 of 2021) [2026] KEMC 110 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEMC 110 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E229 of 2021 YA Shikanda, SPM May 12, 2026 Between Monicah Wangui Kariuki (Suing As The Legal Representative Of The Estate Of Moses Wainaina Njuguna-Deceased) Plaintiff and Yalfa Cargo Handling Limited Defendant Judgment 1.In a plaint dated 3/9/2021 but filed in court on 5/10/2021, Monicah Wangui Kariuki (hereinafter referred to as the plaintiff) brought this action against Yalfa Cargo Handling Limited (hereinafter referred to as the defendant) as the Legal representative of the estate of Moses Wainaina Njuguna, the deceased person herein. The plaintiff averred that on or about 8/5/2014 the deceased herein was lawfully driving motor vehicle registration number KBL 682A along Mombasa-Nairobi road when the driver of motor vehicle registration number KBU 403H/ZB 7607 so carelessly and negligently drove the said motor vehicle that he collided with motor vehicle registration number KBL 682A, thereby occasioning the deceased fatal injuries. 2.The defendant was sued as the registered owner and in control of motor vehicle registration number KBU 403H/ZB 7607 at the material time. The plaintiff further averred that at the time of his death, the deceased was aged 30 years and was married. That he was employed as a driver earning a minimum of Ksh. 30,000/= per month and was the sole bread winner of his family. That as a result of his death, the deceased’s dependants have suffered irreparable loss and damage. The plaintiff relied on the doctrine ofRes ipsa loquitor. 3.The plaintiff pleaded the particulars of dependants, special damages as well as the following particulars of negligence against the defendant and driver of motor vehicle registration number KBU 403H/ZB 7607:a.Driving motor vehicle registration number KBU 403H/ZB 7607 without due care and attention;b.Driving motor vehicle registration number KBU 403H/ZB 7607 at a speed that was excessive in the circumstances;c.Creating circumstances that precipitated and caused the accident;d.Failing to keep and/or maintain any proper look out of other road users and especially motor vehicle registration number KBL 682A;e.Failing to have due regard to the safety and well-being of other users and especially the deceased herein;f.Failing to exercise the care and skill reasonably expected of a driver of a motor vehicle in the circumstances;g.Overtaking carelessly and moving into the lane of motor vehicle registration number KBL 682A;h.Colliding with motor vehicle registration number KBL 682A;i.Failing to stop, to slow down, to swerve or in any other way so to manage and/or control the said motor vehicle and avoid the accident;j.Causing the death of the deceased herein.The plaintiff thus prays for judgment against the defendant for:a.General damages under the Fatal Accidents Act and Law Reform Act;b.Special damages in the sum of Ksh. 58,600/=;c.Costs of the suit;d.Interest;e.Any other or further relief this court may deem fit and just to grant. The Defence 4.The defendant entered appearance on 25/4/2022 and filed a statement of defence on the same day. The defendant denied that it was a limited liability company, denied that the plaintiff had capacity to bring the suit as a legal representative of the estate of the deceased and denied that it was the registered owner and in control of motor vehicle registration number KBU 403H/ZB 7607. The defendant denied the occurrence of the accident between the two motor vehicles, denied that the deceased was driving motor vehicle registration number KBL 682A and denied that denied that its driver negligently drove motor vehicle registration number KBU 403H/ZB 7607 and caused the deceased fatal injuries. 5.The defendant denied the particulars of negligence pleaded by the plaintiff and averred in the alternative that if the accident occurred, which was denied, then the same was solely caused and/or substantially contributed to by the negligence of the deceased. The defendant pleaded the following particulars of negligence against the deceased:a.Failing to see motor vehicle registration number KBU 403H/ZB 7607 at all or in sufficient time so as to avoid the said accident;b.Failing to keep any or any proper lookout or to have any sufficient regard for traffic that was/might reasonably be expected on the said road;c.Failing to take necessary steps to avoid the accident;d.Failing to adhere to traffic regulations on safety on travel;e.Driving at an excessive speed in the circumstances;f.Driving in a zigzag manner thus endangering other motorists;g.Driving without any due care and attention;h.Failing to maintain a safe distance;i.Ramming into motor vehicle registration number KBU 403H/ZB 7607;j.Failing to drive motor vehicle registration number KBL 682A on its designated path;k.Permitting a defective motor vehicle registration number KBL 682A to be driven on the road;l.Failing to stop, brake, slow down and/or swerve or to act in any other way so as to avoid the accident;m.Causing the accident by reckless driving. 6.The defendant further averred in the alternative that if the said accident occurred, which was denied, then the same was inevitable and occurred despite the exercise of reasonable skill, due care and attention on the part of the defendant and/or driver in control of motor vehicle registration number KBU 403H/ZB 7607. The defendant denied the applicability of the doctrine ofRes ipsa loquitor and that of vicarious liability and invoked the doctrine ofVolenti non fit injuria. The defendant further denied that the deceased and his estate suffered loss and damage, denied the particulars of special damages and those pursuant to statute as pleaded and denied having received any demand letter. The defendant prayed that the suit be dismissed with costs. The Evidence The Plaintiff’s Case 7.At the hearing of the suit, two witnesses testified in support of the plaintiffs’ case. PW 1 was the plaintiff. She adopted her statement filed in court as part of her testimony. The witness was not at the scene at the time of accident but was only informed of it. She stated that she was the deceased’s widow. That they had two children who were minors. PW 1 stated that the deceased was a driver earning Ksh. 30,000/= per month. She produced several documents in support of the case. PW 2 Police Constable Isaac Wambugu testified that the accident herein was reported at Mtito Andei Police station. The witness stated that there was a collision between KBL 682A and KBU 403H/ZB 7607. PW 2 was not the investigating officer in respect of the accident. He produced the police abstract in evidence. The Defence Case 8.The defendant did not call any witness. Main Issues for Determination 9.In my opinion, the main issues for determination are as follows:i.Whether the plaintiff’s suit is time-barred;ii.Whether an accident occurred on 8/5/2014 at Kambu area along Mombasa-Nairobi highway involving motor vehicles registration numbers KBL 682A and KBU 403H/ZB 7607;iii.Whether the deceased was the driver of motor vehicle registration number KBL 682A;iv.Whether motor vehicle registration number KBU 403H/ZE 7607 belonged to the defendant at the material time;v.Whether the driver of motor vehicle registration number KBU 403H/ZB 7607 was negligent in the circumstances and therefore liable for the accident;vi.Whether the defendant is vicariously liable for the accident;vii.Whether the deceased died as a result of injuries sustained in the accident;viii.Whether the estate of the deceased and his dependants are entitled to damages;ix.If so, the nature and quantum thereof;x.Who should bear the costs of this suit? The Plaintiffs' Submissions 10.In her submissions, the plaintiff relied on the evidence on record and submitted that the defendant did not call any witness or evidence in support of tis defence and as such, its claim remain mere allegations. The plaintiff contended that she had proven her case on a balance of probabilities and urged the court to hold the defendant 100% liable or in the alternative, the court to find both drivers equally to blame. 11.On quantum, the plaintiff proposed Ksh. 200,000/= as damages for loss of expectation of life. For pain and suffering, the plaintiff proposed a sum of Ksh. 200,000/= and relied on the authority ofHyder Nthenya Musili v China Wu Yi Limited & another [2017] eKLR. For loss of dependency, the plaintiff proposed a multiplier of 50 years, a dependency ratio of 2/3 and a multiplicand of 30,000/=. This would bring the total figure to Ksh. 12,000,000/=. The plaintiff urged the court to award special damages as pleaded and proved as well as costs of the suit and interest. Copies of all the authorities relied upon were attached to the submissions. The Defendant’s Submissions 12.The defendant relied on section 4(2) of the Limitation of Actions Act and submitted that the suit was time-barred. That the cause of action arose on 8/5/2014 but the suit was filed after a period of eight years, without leave of court. The defendant argued that there is no evidence of a court order to show that the plaintiff was granted leave to file the suit out of time. That the plaintiff produced a copy of an application seeking leave to file the suit out of time but the outcome is unknown. The defendant urged the court to strike out the suit with costs and relied on the authorities ofNgari & another v Muia & another [2025] KEELC 5713 (KLR), Mulwa v Benard Muteti Mung’áta t/a B M Mung’áta & Co Advocates & 2 others [2023] KEELC 15733 (KLR) and Njeri v Ndirangu & another [2025] KEELC 4217 (KLR). 13.On liability, the defendant submitted that it was the duty of the plaintiff to prove her case on a balance of probabilities. The defendant relied on the authoritiesof Alfred Kioko Muteti v Timothy Miheso & another [2015] eKLR andSanganyi Tea Factory v James Ayiera Magari [2016] KEHC 5431 (KLR). The defendant argued that no eye witness was called by the plaintiff and that the police abstract produced in evidence indicated that the deceased was to blame for the accident. The defendant contended that failure to adduce evidence on how the accident occurred was fatal to the prosecution case. The defendant relied on the authorities ofIshmael Nyasimi & another v David Onchangu Orioki suing as personal representative of of Antony Nyabando Onchango (Deceased) [2018] KEHC 7857 (KLR) andAlfred Kioko (supra). The defendant contended that the plaintiff failed to adduce evidence to show how the accident occurred and how the defendant was to blame. That the plaintiff had failed to prove her case on a balance of probabilities. 14.On quantum, the defendant submitted an award of Ksh. 20,000/= for pain and suffering and relied on the authority ofAinu Shamsi Hauliers Limited v Moses Sakwa & another (Suing as the Administrators of the estate of the late Ben Siguda Okach (Deceased) [2021] eKLR, wherein Ksh. 30,000/= was awarded. For loss of expectation of life, the defendant proposed a sum of Ksh. 50,000/= and relied on the authority ofChina Henan International Co-operation Ltd v Linet Mwango Nyabaro & another [2021] eKLR. On loss of dependency, the defendant urged the court to adopt the global sum approach as there was no proof of earnings of the deceased. The defendant proposed a sum of Ksh. 500,000/=. In the alternative, the defendant urged the court to adopt the Regulation of Wages (General) (Amendment) Order, 2013 and treat the deceased as a general labourer. 15.The defendant proposed a multiplicand of Ksh. 13,606.35/=, a dependency ratio of one third and a multiplier of 15 years. The award would amount to Ksh. 816,381/=. The defendant relied on the authority ofFMM & another v Joseph Njuguna Kuria & another [2016] eKLR, wherein a multiplier of 23 years was adopted for a deceased who died at the age of 26 years. For special damages, the defendant submitted that the plaintiff was entitled to Ksh. 2,000/= only for funeral expenses, Ksh. 50,000/= for obtaining the grant of representation and Ksh. 500/= for the copy of records. In conclusion, the defendant urged the court to dismiss the plaintiff’s suit with costs. Analysis and Determination 16.I have considered the evidence on record and given due regard to the submissions made by the parties. I will begin with the issue if the suit being statute-barred. The issue was raised indirectly by the defendant in paragraph 18 of the statement of defence in the following words:“The defendant avers that this suit is fatally defective and shall raise a point of law at the opportune moment.” 17.When the plaintiff filed her reply to defence, she casually responded to paragraph 18 of the statement of defence as follows:“The plaintiff denies the entire contents of paragraph 16 and 18 of the defence and puts the defendant into strict proof.” 18.The issue of limitation was again raised by the defendant when its counsel cross-examined the plaintiff and she responded as follows:“I filed the suit on 5/10/2021. I do not know the limitation period for such a case. I have not produced a court order allowing me to file the suit out of time.” 19.Quite surprisingly, counsel for the plaintiff appears to have paid no attention to the issue of limitation. Counsel did not even think it was an issue worth canvassing. I say so because when counsel filed a statement of issues, limitation was not mentioned and even in his submissions, he did not find it important to address the court on the same. 20.Section 4(2) of the Limitation of Actions Act provides as follows:“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Provided that an action for libel or slander may not be brought after the end of twelve months from such date.” 21.In the authority ofIga v Makerere University [1972] E.A 62, it was stated that:“The limitation Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time-barred, the court cannot grant the remedy or relief………..The effect then is that if a suit is brought after the expiration of the period of limitation, and this is apparent from the plaint, and no grounds of exemption are shown in the plaint, the plaint must be rejected.” (My emphasis). 22.In the caseRawal v Rawal [1990] KLR 275, the court stated that the object of any Limitation enactment is to prevent a plaintiff from prosecuting stale claims on one hand and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after long lapse of time. 23.In the authority ofAnaclet Kalia Musau v Attorney General & 2 others [2020] KECA 723 (KLR), the Court of Appeal held that time limitation is a jurisdictional question and that if a matter is statute-barred, a court has no jurisdiction to entertain it. The plaint indicates that the cause of action arose on 8/5/2014. The suit was filed on 5/10/2021. That is after a period of over seven (7) years from the date the cause of action arose. As rightly pointed out by the defendant, there is no evidence to prove that the plaintiff obtained leave to file the suit out of time. The plaintiff merely filed and produced a copy of an application seeking leave to file the suit out of time but it is not known whether such leave was ever granted. No court order extending time to file suit out of time was produced in evidence. I therefore state with conviction that the plaintiff’s suit is statute-barred. 24.On that ground alone, the suit must of necessity fail. It is one for dismissal. It does not matter that the defendant did not raise a preliminary objection on the issue of limitation. An issue touching on the jurisdiction of the court to entertain a claim can be raised any time by either party or even by the court on its own motion. InIbren v Independent Electoral and Boundaries Commission & 2 others [2018] KESC 75 (KLR), the Supreme Court of Kenya observed that:“A jurisdictional issue is fundamental and can even be raised by the court suo motu, as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:‘What I understand the court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The court on its own motion can take up the issue and make a determination thereon without the same being pleaded…’Consequently, while the parties have not given the jurisdiction issue the much premium that it deserves, upon evaluation of the matter before us, it is our considered opinion that the issue of jurisdiction of this court to hear and determine this appeal warrants settlement upfront.” 25.Having found that this court lacks jurisdiction to entertain the claim as it is time-barred, it would be unnecessary to delve into the merits of the case. However, for academics sake, I will proceed to address the issues. From the material evidence on record, I have no doubt that an accident occurred on 8/5/2014 at Kambu area along Mombasa-Nairobi highway involving motor vehicles registration numbers KBL 682A and KBU 403H/ZB 7607. The police abstract produced in evidence indicates that the deceased was the driver of motor vehicle registration number KBL 682A at the material time. The plaintiff produced in evidence motor vehicle copy of records which indicates that the defendant was the registered owner of motor vehicle registration number KBU 403H as at 17/7/2020. The police abstract indicates that the defendant was the owner of motor vehicle registration number KBU 403H and trailer number ZB 7607 at the time of accident. There is no contrary evidence. Liability 26.It is the duty of the plaintiff to establish or prove negligence on the part of the defendant. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintiff must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case ofKirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held thus:“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.” 27.Indeed, no eye-witness was called to testify on how the accident occurred. The plaintiff as well as the police officer who testified as PW 2 did not witness the accident and neither did PW 2 investigate the same. I have considered the submissions by the parties on the issue of liability as well as the authorities relied upon. I agree that since PW 2 neither visited the scene nor conducted investigations into the accident, he cannot be in a position to narrate how the accident occurred. Mere proof of occurrence of an accident does not impute negligence. There must be acceptable evidence to show that the party being blamed was negligent. 28.Is there any evidence that would impute negligence on the driver of motor vehicle registration number KBU 403H/ZB 7607? PW 2 produced in evidence, a police abstract on the accident. The same indicates that driver of KBL 682A (deceased herein) was to blame for the accident. In the authority ofMoses Theuri Ndumia v I G Transporters Limited & another [2018] KECA 297 (KLR), the Court of Appeal observed:“…….the Police Abstract form that indicated the driver of the 1st respondent’s motor vehicle was to blame for the accident. The respondents did not call any evidence to counter this evidence…………. In the absence of any evidence from the defence, we are persuaded there was preponderance of evidence by the appellant that amounted to a prima facie case and it required to be countered by the respondent.” 29.Further, inDavid Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] KECA 434 (KLR), the Court of Appeal had this to say:“When a collision occurs between two vehicles, as between them, the issue of contributory negligence and apportionment may arise. However, as between a passenger and the owners/drivers of the two vehicles involved in the accident, liability on the part of the owners is 100% joint and several and no question of apportionment arises unless it is proved the passenger was negligent………………In the instant matter, the respondents pleaded negligence on the part of the deceased. No evidence was led to prove the alleged negligence. The doctrine of res ipsa loquitor applies in cases where the deceased or an injured person is a passenger in a motor vehicle involved in an accident. In such cases, what must be proved is the occurrence of the accident and that the person injured or deceased was a passenger in vehicle.”31.In this matter, we are satisfied that PW1 testified and tendered in evidence a police abstract proving the occurrence of the accident and establishing that the deceased was a passenger in the motor vehicle. We are fortified in our finding when we consider that the respondents did not lead any evidence to demonstrate that the 2nd respondent, as the driver of motor vehicle KAY 718S, was not negligent.” 30.At this juncture, I must point out that the above authority was an appeal from the decision ofIshmael Nyasimi & another v David Onchangu Orioki suing as personal representative of of Antony Nyabando Onchango (Deceased) [2018] KEHC 7857 (KLR) relied upon by the defendant herein. The Court of Appeal overruled the decision of the High Court on the issue of liability. Perhaps the defendant should take note and not purport to rely on the High Court decision again. Similarly, inOrioki v Kevian Kenya Limited [2025] KECA 780 (KLR), the Court of appeal held:“The police abstract, though not conclusive, supported the finding that the appellant’s actions caused the accident. Furthermore, the evidence showed that the appellant did not maintain a safe distance, which contributed to the collision. In Kenya Ports Authority v East African Power & Lighting Co. Ltd, (supra), it was held that a police abstract is prima facie evidence of facts reported to the police, and in the absence of contrary evidence, it can be relied upon. In this case, the appellant failed to adduce any compelling evidence to counter the police abstract or to disprove the causal link between his actions and the damage. The police abstract, while not conclusive, indicated that the appellant was at fault for the rear-end collision.” 31Going by the above authorities, the police abstract produced by the plaintiff works against her case. If the police found the deceased was to blame, the plaintiff ought to have adduced evidence to rebut the opinion of the police. It was not the duty of the defendant to adduce evidence showing that its driver was not to blame, when there was in fact no evidence at all to the contrary. In other words, there is no evidence that required the defendant to rebut. It cannot therefore be said that the plaintiff’s evidence is uncontroverted when in real sense there is no evidence at all. In as much as there isprima facie evidence to show that the two motor vehicles collided, there is no evidence that would guide the court in order to make an informed opinion on who was to blame or whether both drivers were to blame and to what extent. 32.In the authority ofBwire v Wayo & Sailoki [2022] KEHC 7 (KLR), Mativo J (as he then was) observed as follows:“As stated earlier, the Respondent’s case in the lower court rested on two witnesses who were not at the scene. The Police officer testified that a report was received at the Police Station. He was not at the scene. His testimony on how the accident occurred is not direct evidence but secondary evidence. Similarly, PW2, only learnt about the accident and went to the hospital only to find that the deceased had died. He was not at the scene. None of the two witnesses could give an account on how the accident occurred. None of them could give an eye witness account. Eyewitness testimony is critical in both criminal and civil trials, and is frequently accorded high status in the courtroom………………………..The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value and in absence of further evidence connecting it with what happened at the scene, the court could not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the Magistrate court reasonably make a finding that liability had been established on 100% basis as against the appellant. In fact, the Magistrate other than saying the appellant never adduced evidence, he never explained whether the evidence before him discharged the evidential burden of prove. Had the trial Magistrate appreciated that the initial evidential burden rests upon the Plaintiff, and had he carefully applied his mind to the law, he would have held that there was nothing for the appellant to rebut since the Respondent had not discharged the legal burden of prove. However, he was blinded by the mere fact that the appellant never called evidence and overlooked binding decisions cited by the appellant before him. At that point it was irrelevant that the appellant never adduced evidence at all because there was nothing to rebut. On this ground alone, I allow this appeal in its entirety.” 33.The above finding was upheld by the Court of Appeal in the authority ofWayo& another (Suing on Behalf of the Estate of Benjamin Wayo Sailoki - Deceased) v Bwire [2025] KECA 866 (KLR), wherein the Court of Appeal observed that where there is no information regarding the outcome of the investigations which were indicated to have been still pending, the police abstract cannot therefore be the basis of finding liability on the part of a party. However, in this case, the results of the investigations as per the police abstract indicate that the deceased was to blame for the accident. This is not a case of conflicting evidence. The only evidence on record indicates that the deceased was to blame. There is absolutely no evidence to show that the driver of the defendant’s motor vehicle was to blame for the accident. 34.In the English case ofBaker v Market Harborough Co-operative Society Ltd [1953] 1 WLR 1472, there was a collision in the centre of the road between two vehicles driven in opposite directions. In two hearings, judges had taken different views of the facts. The court was sympathetic to the judge who had found that the cause of the accident was so speculative on the meagre facts available that the plaintiff, who was an innocent third party, had failed to prove her case. However, the court took the view of the other judge that blame should be apportioned equally as between the two drivers. Romer L J stated that a finding to that effect was "the reasonable and probable inference to draw from the facts as found". 35.This reasoning was adopted in the Kenyan case ofLakhamshi v Attorney General [1971] EA 118 in which Spry V P stated that where two vehicles collide in the middle of the road and there is no explanation, both the drivers should be held equally liable. If one is negligent in driving over the centre of the road, the other is also negligent for not taking any evasive action. A similar finding was made in the case of Caroline Anne Njoki Mwangi v Paul Ndung'u Muroki [2004] eKLR. In Lakhamshi's case (supra), Spry VP observed in part as follows:“It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame.....I am inclined to think that the position is different. I personally find it difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident. This problem does not arise on the present appeal and it is unnecessary for us to decide it.” (Emphasis supplied). 36.Even in Baker's case, ROMER L J was prepared to envisage that circumstances could exist where the evidence was so meagre that any explanation would be purely speculative, and thus the plaintiff’s case could not be said to have been proven. 37.The cases of Baker and Lakhamshi were considered and analysed by the Court of Appeal in the case ofAbbayAbubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd [1984] eKLR in which there was an alleged collision between two motor vehicles caused by cows which were crossing the road. The plaintiff's case was dismissed by the High court. On appeal, the Court of Appeal unanimously affirmed the order of dismissal. Kneller JA observed as follows:“A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the centre of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident". 38.The court further held that where it is proved by evidence that both parties to the accident are to blame and there is no means of making a reasonable distribution, the blame can be apportioned equally on each. In this respect, the court considered the case of Baker (supra). It was the further holding of the court that the position must however be different where there is no evidence to establish that any party was negligent. In that case it cannot be right to apportion blame there being no evidence on which apportionment could be based. In making that finding, the court considered the case ofLakhamshi in which Spry V P stated that it is difficult to appreciate how a party can be held to have been negligent if there is no evidence that he was in fact negligent. 39.The fact that the two motor vehicles collided is not in dispute. There is however no evidence to show or establish how they collided. The only available evidence is that the police conducted investigations and found that the deceased was to blame for the accident. In my view, in such circumstances, for the court to apportion any liability on the part of the other driver, there must be evidence to show that the other driver contributed to the accident. I cannot apportion liability equally between the two drivers when the only evidence available shows that the deceased was to blame. As rightly submitted by the defendant, there cannot be liability without fault. The circumstances of this case do not warrant apportionment of liability between the two drivers. My finding is that the plaintiff has failed to establish negligence against the driver of the defendant’s motor vehicle. Even if the suit were not time-barred, I would still have dismissed it. Quantum 40.The upshot of the above considerations is that the plaintiff’s suit is for dismissal. The practice of the courts is that even where the court dismisses a claim for general damages, the trial court is obliged to assess the quantum of damages that it would have awarded had the claim been proven. The position has been upheld time and again by the superior courts. For instance, in the case ofGladys Wanjiru Njaramba v Globe Pharmacy and another [2014] eKLR, the court observed that:“It is trite law that the trial court was under duty to assess the general damages payable to the plaintiff even after dismissal of the suit. This position is confirmed by the Court of Appeal in the case of Mordekai Mwangi Nandwa versus Bhogals Garage CA No. 124 of [1993] (UR) Where the court held that the that damages be assessed even if the case is dismissed does not imply writing an alternative judgment.". 41.The position was affirmed by the Court of Appeal in the case ofAndrew Mwori Kasaya v Kenya Bus Service [2016] eKLR. 42.There is sufficient and irrefutable evidence indicating that the deceased herein died as a result of injuries sustained in the accident. I will proceed to assess the damages I would have awarded had the plaintiff been successful. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts. This Court has to bear in mind the principles that guide assessment of damages as espoused inWest (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 43.I am also guided by Lord Denning’s decision inKim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case ofNancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that:“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.” 44.The following principles are germane in assessing damages for personal injury claims:i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered;ii.The award should be commensurate to the injuries suffered;iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit;iv.Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration;v.Awards should not be inordinately too high or too low.I proceed to assess and award the damages payable as follows: 1. Damages for Pain and Suffering 45.From the evidence, it is not clear whether the deceased died on the spot or sometimes later on the same day. Damages under this head are awarded on the basis of the time the deceased suffered pain before death. The longer it took the deceased to die, the higher the damages. In most authorities, an award of between 10,000/= and 50,000/= was made for persons who died on the spot. Considering the age of most authorities coupled with the vagaries of inflation, I find that an award of Ksh. 80,000/= would have been reasonable. In the case of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 Others [2013] eKLR, the deceased died on the spot following an accident and Ksh. 50,000/= was awarded. 2. Damages for Loss of Expectation of Life 46.The evidence on record indicates that the deceased died at the age of 30 years. This was indicated in the copy of the certificate of death produced in evidence. The trend in the authorities indicates that the younger the deceased at the time of death, the higher the award. On my part, I have considered the authority of Cornelia Elaine Wamba v Shreeji Enterprises Ltd & Others [2012] eKLR wherein the deceased died at the age of 31 years and Ksh. 150,000/= was awarded under this head on 21/9/2012. I would have awarded Ksh. 200,000/= under this head. 3. Damages for Loss of Dependency 47.Section 4(1) of the Fatal Accidents Act provides as follows:“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct". 48.The plaintiff listed the widow and two children who were minors as the dependants of the deceased. Copies of their certificates of birth were produced in evidence. These are proper dependants under the Act. The deceased died at the age of 30 years. The plaintiff pleaded and testified that the deceased was a driver earning Ksh. 30,000/= per month. No documentary evidence was adduced to show where the deceased worked and how much he earned. Not even his employer was mentioned in the plaint and testimony. There is no evidence to show that such payment was ever made to the deceased. 49.In the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, the Court of Appeal held as follows:“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things". 50.I have considered the parties’ submissions on what should be awarded under this head. How then should the court award damages for loss of dependency. There are conflicting decisions particularly in the High court on how damages under this head ought to be awarded in the absence of proof of exact earnings of the deceased. Some Judges adopt the global award approach whereas others adopt the multiplier approach. I will highlight some of the authorities: a. Ann Njoki Njenga v Umoja Floor Mills & Another [2006] eKLR. 51.In this case, the deceased was said to be a businessman at the time of his death. It was said that he earned about Ksh. 120,000/= per month. No documentary evidence was adduced to prove his earnings. Musinga J (as he then was) adopted a figure of Ksh. 10,000/= as the multiplicand. b. Mwita Nyamohanga & another v Mary Robi Moherai suing on behalf of the estate of Joseph Tagare Mwita (Deceased) & another [2015] eKLR. 52.In this case, Majanja J held that proof of earnings by way of testimony was sufficient evidence. The court relied on the oral testimony of what was said to be the deceased's earnings. c. Phillip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR. 53.In this case, the deceased was said to be a businessman at the time of death earning about Ksh. 40,000/= per month. There was no documentary proof of his earnings. Mutende J held that in the absence of evidence of monthly earnings of the deceased the estimate would be like for any unemployed person where the rate set is usually like for a wage of an unskilled employee. d. Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR. 54.In this case, the deceased was said to have been a businessman prior to his death. There was no documentary proof of his earnings. Ngaa J held as follows:“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case".The court proceeded to make a global award under this head. e. General Motors East Africa Limited v Eunice Alila Ndeswa & another [2015] eKLR. 55.In this case, the deceased was said to be a mechanic at the time of death but there was no documentary proof of his actual earnings. Aburili J held as follows:“There is an established formula for calculating loss of dependency and giving global figures is not one of them. On that basis, I fault the trial magistrate for applying wrong principles of law in assessing general damages for loss of dependency.......... where there is no documentary evidence of employment, the court would consider reasonable income for a casual labourers as a base for income because it would have been unreasonable not to allocate any sum of income to the deceased who used to go out and eke out a living daily. The case of Wambua Vs Patel And Another, [1980] Klr 336 Cited With Approval In Kimatu Mbuvi Vs Augustine Kioko CA203/2001 is clear that it is not just documentary evidence that can prove earnings and that to maintain that stand would do a lot of injustice to many illiterate Kenyans who do not keep records and yet earn livelihoods in various ways".The court adopted the minimum wage of an ungraded mechanic artisan. f. Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another. 56.In this case, which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR, Ringera J (as he then was) held as follows:“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 of methodology, something a Court of Justice should never do.” g. Mary Khayesi Awalo & Another v Mwilu Malungu & Another [1999] eKLR. 57.In this case, Nambuye J (as she then was) observed as follows:“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.” h. Violet Jeptum Rahedi v Albert Kubai Mbogori [2013] eKLR. 58.The deceased herein was said to be a business man but there was no clear evidence of his earnings. Hatari Waweru J made an estimate of the monthly earnings and adopted the multiplier method. 59.The existence of divergent views on the issue as highlighted herein above poses a dilemma especially on the lower courts who are bound to follow decisions of higher courts by virtue of the doctrine of stare decisis. While grappling with the issue, I came across the English decision of the House of Lords in the case of Gammel v Wilson [1981] 1 ALL ER 578 wherein Lord Scarman observed as follows:“The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it". 60.In the authority of Silverstone Quarry Limited & another v Beatrice Mukulu Kang’uta & another (suing as Administrators of the Estate of Philip Musyoka Muthoka [2020] KECA 867 (KLR), the Court of Appeal was faced with a similar situation. The court held that:“The evidence that was adduced by the respondents that the deceased was working as a mason was not disputed. What the applicant took issue with, was the alleged daily income of Kshs. 800. No documents were adduced nor was the court informed where the deceased was working. In the circumstances, although the appellants were not obliged to produce documents to confirm the deceased’s employment and income, it was reasonable that the court applies the gazetted minimum wage for masons, as there was nothing to substantiate the allegation that the deceased was earning more than the minimum provided by law. We concur with the appellant that the minimum wage of Kshs. 11,831.20 should have been used as the multiplicand.” 61.Being guided by the above Court of Appeal decision, it would imply that where it is established that the deceased was in employment and there is no proof of earnings, the court may adopt the Regulation of Minimum Wages Order applicable at the time of the deceased’s death, to calculate the award for loss of dependency. The plaintiff testified that the deceased was a driver. The certificate of death produced in evidence shows the occupation of the deceased as a driver. The police abstract shows that motor vehicle registration number KBL 682A was a Mitsubishi FH. That is a lorry. Based on the evidence on record, I have no reason to doubt that the deceased herein was employed as a Lorry driver. The only issue is his earnings. 62.In my view, and based on the evidence on record, the multiplier approach would be viable in the circumstances of this case. I say so because there is uncontroverted evidence to show that the deceased was employed as a Lorry driver at the time of his death. However, I will not adopt the earnings of Ksh. 30,000/= per month since there is no evidence of the same. The most appropriate multiplicand is that which is provided by the The Regulation of Wages (General) Order. The deceased died in May, 2014. The applicable Order then was the Regulation of Wages (General) (Amendment) Order, 2013. According to the Order, the minimum wage for a driver of a medium-sized motor vehicle such as the one the deceased was driving was Ksh. 13,606.35/=. This applied to persons working outside cities and designated former municipalities and town councils. The deceased was from Thiririka. 63.The deceased had a wife and two children who were minors. I would have adopted a dependency ratio of 2/3. I am mindful of the principles applicable in assessing damages as espoused herein above. I have further taken consideration of the fact that the plaintiff would have already been awarded damages under the Law reform Act. It is also a fact that human life is not permanent and the court has to take into account the vicissitudes of life. Given the age of the deceased and the vicissitudes of life, I would have adopted a multiplier of 26 years. The award would have worked out as follows:13,606.35 × 12 ×26 × 2/3 = 2,830,120.80/= 64.It should be remembered that the deceased’s earnings were expected to be subject to taxes and other statutory deductions. Consequently, I would have awarded Ksh. 2,000,000/= under this head. Funeral and Related Expenses 65.The plaintiff pleaded for funeral expenses of Ksh. 8,000/= under the head of special damages. Receipts amounting to Ksh. 7,000/= were produced in evidence. In the case of Damaris Mwelu Kerewoi v Mbarak Kijan Ali, MOMBASA HCCC NO. 776 OF 1995 Hayanga J (as he then was) observed that the court can take judicial notice of the fact that funeral expenses are usually incurred and that where they are not proved, the court can award a nominal amount. In the case of Marion Njeri Kago v Kenya Railways Corporation [2014] eKLR, the court held as follows:“Funeral expenses, though usually claimed as special damages, are a proper claim under the Law Reform Act. That way the court is able to award a reasonable sum, depending on the Deceased’s station in life and other factors, without the confines of strict proof."Section 2(2)(c) of the Law Reform Act provides as follows:“Where a cause of action so survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included".Similarly, section 6 of the Fatal Accidents Act provides that:“In an action brought by virtue of the provisions of this Act the court may award, in addition to any damages awarded under the provisions of subsection (1) of section 4, damages in respect of the funeral expenses of the deceased person, if those expenses have been incurred by the parties for whom and for whose benefit the action is brought". 66.The above implies that funeral expenses can be awarded under the two Acts. This way, the court will assess the same depending on the circumstances of the case without insisting on strict proof as in special damages. I am aware of the nature of African funerals and I am sure that more than Ksh. 7,000/= must have been spent during the funeral. I would have awarded a higher figure had the plaintiff properly pleaded the same. However, since the plaintiff have asked for a specific nominal figure, I would have awarded Ksh. 8,000/= as prayed. 4. Special Damages 67.In her plaint, the plaintiff pleaded special damages (apart from the funeral expenses) as follows:a.Letters of administration……………..………Ksh. 50,000/=b.Copy of records………………………………………...Ksh. 500/=c.Postage charges………………………………………..Ksh. 100/= 67.It is trite law that special damages must be specifically pleaded and strictly proved. InNizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said:-“It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 68.InOuma- v - Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L.J’s Judgment on page 532 and 533 inRatcliffe-v- Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 69.Similarly, in the case ofHahn v Singh [1985] KLR 716, it was held that:“…special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences 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 the nature of the act themselves.” 70.The claim was sufficiently proven save for the postage charges whose receipt is not legible. I would have awarded Ksh. 50,500/= only as special damages. Disposition 71.In summary, I hold that the plaintiff has failed to prove her case on a balance of probabilities as against the defendant. I must observe that this is one of those unfortunate cases where the court’s sympathy for the plaintiff cannot substitute the legal burden of proof required by law. The death of the deceased was undeniably tragic, and the court does not doubt the pain and loss suffered by the family. However, courts of law are bound to determine disputes on the basis of evidence placed before them and not on emotion, conjecture, or mere suspicion. Regrettably, the plaintiff filed the suit out of time and failed to adduce sufficient evidence to establish liability on a balance of probabilities. In the absence of such proof, this court is left with no lawful basis upon which to award damages, notwithstanding the obvious hardship this decision may occasion. It is therefore with considerable reluctance that the court dismisses the suit. In the circumstances of this case, and bearing in mind the nature of the claim and the loss suffered as well as the obvious fact that counsel for the plaintiff was to blame for filing a suit knowing that it was time-barred, I make no order as to costs. 72.I am reminded of the famous quotation by Lord Goddard, C.J. inBonham Carter v Hyde Park Hotel Ltd [1948] 64 T.R. 177 wherein he observed thus:“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying, 'this is what I have lost, I ask you to give me these damages'. They have to prove it." DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 12TH DAY OF MAY, 2026.Y.A. SHIKANDASENIOR PRINCIPAL MAGISTRATE.