https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/530

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATES COURT AT MALABA** **CIVIL SUIT NO. E022 OF 2025** **MOSES KULALI ATOKO(Suing as the legal representative and administrator of the estate of the late CHARLES ATOKO KULARI)…………………………………................................................PLAINTIFF** **-VERSUS-** **IMA HAULIERS LIMITED……..………………….………………………..DEFENDANT** **JUDGMENT** **Introduction and Pleadings** 1. Vide a Plaint dated 16th July 2025 the Plaintiff instituted this Suit against the Defendant herein and sought that judgment be entered for special damages totaling to Kshs. 198,730/=, general damages under the fatal accident and law reforms act, costs of the suit and interest. 2. The brief facts of the case are that on or about the 1st day of December 2022 at about 1130hours the Plaintiff was walking along the Katome Bukatanyi murram road when at Sibembe area, the Defendant’s driver, servant, agent and/or employee so negligently , recklessly and carelessly controlled the Defendant’s motor tractor registration number KTCA 954C New Holland hauling trailer no. ZB 9174 that was heading the same direction as the deceased causing the same to hit a pothole, and as a result some sugar cane laden on the trailer fell on the minor causing to fall down after which he was run over by the defendant tractor and trailer from his hind thereby occasioning him injuries which he succumbed to. 3. The suit is opposed vide a Statement of Defense dated 13th October 2025 wherein the Defendant denies the Claim in its entirety. That in the alternative and without prejudice, the defendant avers that if an accident occurred which is denied, then the same was occasioned by the sole and/or contributory negligence of the Plaintiff. 4. This matter came up for hearing of the Plaintiff’s case on 11th February 2026 when three witnesses testified and on 3rd June 2026 when one defense witness testified. 5. PW1 was one PC Aisha Abdullahi, officer in charge of records at Busia Police Station and who produced police abstract regarding an accident which is said to have occurred on 1st February 2022 involving motor vehicle registration number KTCA 954C and trailer number ZD9174 and a pedestrian juvenile. That the abstract was issued by one PC Paul Njoroge whom she did not find upon her arrival at Busia Police Station. 6. On cross-examination she testified that she was not the Investigating Officer. That there was no mention of overtaking, careless driving or overloading on the police abstract. That it was not indicated in the Police Abstract that the motor vehicle was to blame for the accident. That one Joseph Omollo was not recognized as a witness according to the police abstract. 7. In re-examination she testified that she was not able to know all witnesses who witnessed the accident. 8. PW2 was one Moses Kulali Atoko who adopted his witness statement of 16th July 2025 as his evidence in chief and relied on the documents filed alongside the plaint as exhibits. 9. On cross-examination he testified that the deceased was his son and was 15 years old at the time of demise. That he did not witness the accident but he was only told about it. 10. PW3 was one Joseph Omolo who adopted his witness statement of 16th July 2025 as his evidence in chief. 11. On cross-examination he testified that he was present at the scene of the accident but he was not aware whether the same had been availed in court. That he did not take photographs of the pothole or the overloaded tractor. 12. In re-examination he testified that had the sugarcane been tied it would not have fallen on the child. That similarly had the tractor driver been driving slowly the sugar cane would not have fallen. 13. This marked close of the Plaintiff’s case. The defense called one Godfrey Wanjala Wangeni who adopted his witness statement of 3rd November 2025 as his evidence in chief. He blamed the deceased for the accident. That he was informed that the deceased was trying to pull sugarcane prior to the accident. 14. On cross-examination he testified that he was the driver at the time of the accident and did not see how the accident occurred, that he was simply informed that he had ran over someone and he rushed to the police station to report the incident having feared for his life from an angry mob. He stated that he did not avail the person who told him that the child was pulling cane as he was a boda boda rider whom he could not trace. He acknowledged that the road had potholes. 15. In re-examination he testified that he was stopped and told that the deceased was pulling cane from the vehicle. 16. This marked close of the defendant’s case and the matter was set down for mention on 8th July 2026 to confirm filing of submissions. At the time of mention and at the time of writing this judgment only the Plaintiff’s Counsel had filed submissions. **Issues for Determination** **Liability** 1. The issue for determination is whether, on a balance of probabilities, the plaintiff has established that the deceased minor's death was caused by the negligence of the defendant's driver. The plaintiff's case is that the tractor was overloaded with sugar cane, was being driven at an excessive speed and, upon encountering a pothole, caused the sugarcane to fall on the deceased minor and he was run over. In support of this account, the plaintiff called an alleged eyewitness who testified as to the circumstances of the accident. The witness testified that he had recorded a statement at the police station in 2022 when the accident occurred, which statement was not produced in evidence. Further, his name does not appear in the police abstract as a witness. While the omission from the police abstract does not, of itself, render his testimony inadmissible or incapable of belief, it is a matter that bears on the weight to be accorded to his evidence. The police records officer's evidence that she could not have known all the witnesses to the accident provides some explanation for the omission, but does not resolve the question of the credibility and reliability of the eyewitness's account. 2. The allegation that the tractor was overloaded and being driven at excessive speed was similarly not supported by independent evidence. There was no evidence of the actual weight or dimensions of the load, no measurements demonstrating overloading, and no other objective evidence establishing the speed at which the tractor was travelling. Although the defence driver admitted that there was a pothole at the scene, there was no evidence as to its size, depth, position or whether it was such that a reasonably careful driver ought to have avoided it. The mere existence of a pothole, without more, cannot in itself constitute proof of negligent driving. 3. The defence driver's account was that he had stopped after being informed by a boda boda rider that the deceased minor had attempted to pull sugar cane from the moving tractor, fell and was subsequently run over. The boda boda rider was not called to testify and, consequently, that aspect of the defence remained uncorroborated. The Court also takes into account that the driver, being the person in control of the tractor, was unable to provide a clear account independently explaining precisely how the accident occurred. Nevertheless, the inability of a defendant or his driver to satisfactorily explain an accident cannot, without more, reverse the burden of proof in a case of negligence. The burden remained upon the plaintiff to establish, on a balance of probabilities, that the accident occurred in consequence of negligent driving. 4. Upon consideration of the evidence as a whole, it is not disputed that the deceased minor was fatally injured after coming into contact with the defendant's tractor. The difficulty lies in determining, with the requisite degree of probability, the precise circumstances in which that occurred. The Court is faced with two competing accounts: the plaintiff's account, principally founded upon the eyewitness testimony, and the defence account that the minor voluntarily approached the moving tractor and fell. Neither account is entirely free from evidentiary difficulty. While the eyewitness's evidence provides support for the plaintiff's allegation of negligent driving, the absence of his police statement, his omission from the police abstract and the lack of independent evidence regarding the alleged overloading and excessive speed weaken the evidential foundation of the plaintiff's case. Conversely, the defence account is also materially weakened by the failure to call the boda boda rider who allegedly supplied the information to the driver. 5. In the circumstances, the Court is unable to find that either version has been established to the degree that would justify attributing the whole of the liability to one party. The Court is, however, satisfied that the defendant's tractor was involved in the fatal accident and that the circumstances surrounding the accident disclose some degree of uncertainty attributable to both versions presented before Court. In [**Kamau & another v Kyalo & another [2025] KEHC 2491 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/2491/eng%402025-01-23)the Court held as follows: - ***In the present case, there are two conflicting pleadings as to how the accident in question occurred. Each party insists that the other was to blame. None was however able to establish the fault of the other. This being the case, it is my finding that both parties were equally to blame for occasioning the accident. Accordingly, the trial court was correct in apportioning liability at the ratio 50:50. Both the appeal and cross-appeal on liability have no basis.*** 1. Guided by the authority above and on the evidence before this court and bearing in mind that the standard of proof in civil proceedings is on a balance of probabilities, the Court finds it just and reasonable to apportion liability at 50:50 between the parties. **Special Damages** 1. On ***special damages***, In **Herbert Hahn v Amrik Singh [1985] eKLR**, the court of appeal held as follows: - ***“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”*** 1. I note that the Plaintiff has sought for a total of Kshs. 198,730/= which has been pleaded at paragraph 7 of the Plaint under the head Special Damages. I have considered the pleadings filed and documents in support of the claim and I do find damages proven to the extent of Kshs. 152,485/= and having been proven by receipts produced as PEXH 2, 3, 5, 8, 11, 12, 13 and 14. With regard to PEXH 9, the court found that the same had been proven to the tune of Kshs. 82,450/ not Kshs. 120,000/= as prayed. PEXH 4 though alluded to was not physically produced to support the award claimed. The claim for special damages is therefore allowed in the sum of Kshs.152,485/=. **Quantum** 1. **Pain and Suffering** 2. The Plaintiff through his counsel has submitted that an award of Kshs. 200,000/= is sufficient under this head. 3. In the case of **Ngania & 2 others v Adulu (Suing as the Legal Representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal E005 of 2023) [2024] KEHC 4005 (KLR) (25 April 2024) (Judgment)** the court held as follows: - ***31.Under this head, the trial Court awarded the deceased Kshs. 50,000/-. The contest is that the amount is high since, according to the Appellants, the deceased died on the spot. The Respondent on the other had contended that the deceased died a couple of hours after the accident, hence, the justification of the amount.*** ***32.The Respondent testified that the deceased died 4 hours after the accident at Kitale District Hospital while undergoing treatment.*** ***33.It is notable that during cross-examination, the Respondent admitted that he did not witness the accident. The Appellants did not call any witnesses. Therefore, the only recourse to establish the contention are police and hospital documents.*** ***34.I have keenly looked at the Police Abstract form. In the injury section it was written ‘fatal’ meaning that the accident resulted in death.*** ***35.The Certificate of Death, Mortuary Admission Form and the Burial Permit all indicate that the deceased died on 31st March 2022, the same day the accident happened.*** ***36.I also have had the occasion to interrogate the Post Mortem Form. The circumstances of the death were filled as follows: -The deceased was riding a motorcycle when he was knocked down by a motor vehicle and died. Please examine the body to ascertain the cause of death.*** ***37.All the foregoing documentary evidence point to the inevitable conclusion that indeed the death was spontaneous. The is nothing on record to corroborate the Respondent’s claim that it happened four hours after the accident.*** ***38.If that were to be the case, there would be some evidence in the nature of treatment chits indicating how the hospital managed the deceased’s injuries before he succumbed.*** ***39.That being the case, the outstanding issue is whether the award of Kshs.50,000/- was excessive in the circumstances.*** ***40.This Court will, hence, be guided by Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows: -…. As regards damages awarded under the***[***Law Reform Act***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48)***, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death….*** ***41.From the foregoing, the acceptable range where there is no prolonged pain and suffering is between Kshs. 10,000/- and Kshs.100,000/-. In view of the fact that the deceased did not suffer for a protracted period of time, as considered against the need not to interfere unnecessarily with the trial Court’s exercise of discretion, I do not see a reason to disturb the trial Court’s findings.*** 1. Having carefully considered the submissions of counsel, precedent cited in submissions of counsel as well as the one cited in this judgment, it is my considered view that the deceased having died on the same day of the accident and there being no evidence of prolonged suffering, the sum of Kshs. 40,000/= is sufficient under this head. **Loss of expectation of life** 1. The Plaintiff in submissions has proposed an award of Kshs. 300,000/=. 2. In **Kariuki v Sanga & another (Suing as the legal representatives and administrators of the Estate of Collins Kipkosgei - Deceased) (Civil Appeal E011 of 2021) [2024] KEHC 5824 (KLR) (24 May 2024) (Judgment)** the court held as follows: - ***On “loss of expectation of life”, while the Appellant proposed Kshs 80,000/- and the Respondents proposed Kshs 150,000/-, the trial Magistrate awarded Kshs 100,000/-. From my own review of comparable authorities, it is clear that the Courts have been awarding figures in the region of Kshs 100,000/- to Kshs 200,000/-. The trial Magistrate having therefore awarded Kshs 100,000/-, that figure is within what is ordinarily awarded. I do not therefore find any fault on the part of the Magistrate in giving the award.*** 1. Having considered, the submissions of counsel, authority cited therein and guided by the authority hereinabove, I find that an award of Kshs. 120,000/= is sufficient and reasonable. 2. **Loss of dependency** 3. The Plaintiff’s counsel has submitted that an award of Kshs.1,700,000/= would be sufficient in this case. 4. In the case of [**Momanyi v Otwoma & another (Suing as the Legal Representative of the Estate of AMO - DeceasedSuing as the Legal Representative of the Estate of AMO - Deceased) [2025] KEHC 2971 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/2971/eng%402025-02-17)the High Court held as follows:- ***From the above authorities, I am persuaded that in adopting the principles applicable to loss of dependency for the deceased who was aged 6 years old and was so young for any evidence to be tendered as to future prospects, or career path, I find that the learned trial magistrate committed an error of principle . What he ought to have done was to award a lumpsum based on comparable awards. I associate myself with the decision of Mulwa J in Simon Kibet Langat & Anor. vs. Miriam Wairimu Ngugi (Suing as the Administrator of the estate of Daniel Mwiruti Ngugi [2016] eKLR where she stated that:*** ***“For young minors, it is not clear how a child may turn out to be when they mature despite good grades in school and high expectations of parents. Further, minors cannot be said to strictly have dependants. All children from all walks of life, given equal opportunities could become anything in future. It is not predictable.”*** ***In the case of Chen Wembo & 2 Others Vs IKK & Another (suing as the legal representatives and Administrators of the estate of CRK (deceased) (2017) eKLR the court awarded a global sum of Kshs 600,000.00 as lost years for a minor aged 12 years*** ***Considering that the above case is recent, the court therefore adopts the global lump sum method and set aside the award made by the trial court and the same is substituted with a global award in the sum of Kshs 600,000/=*** 1. I have considered the authority cited by Counsel for the Plaintiff in submissions, the age of the deceased, the absence of evidence regarding his future earning capacity and the more recent jurisprudence as can be discerned from paragraph 32 of this judgment on awards for young minors. In my view, the more recent authority for a younger child provides a more appropriate and persuasive guide in the circumstances of this case than the older authority relied upon by the Plaintiff. 2. Accordingly, I find that a global award of Kshs. 800,000/= under the head of loss of dependency is reasonable and adequate compensation in the circumstances. **Conclusion.** 1. The upshot of my findings above is that judgment be and is hereby entered in favor of the Plaintiff against the Defendant in the following terms: - 2. ***Liability is apportioned in the ratio 50:50*** 3. ***Special Damages- Kshs. 152,485/=*** 4. ***Pain and Suffering- Kshs. 40,000/=*** 5. ***Loss of expectation of life- Kshs. 120,000/=*** 6. ***Loss of dependency- Kshs. 800,000/=*** ***Total Amount- Kshs. /= 1,112,485/=*** ***Less 50% Contribution- Kshs. 556,242.50*** ***Net award-Kshs. 556,242.50/=*** 1. ***Costs of the suit*** 2. ***Interest on (b) from the date of filing of suit until payment in full*** 3. ***Interest on (c)-(e) from the date of judgment until payment in full*** **JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 19TH DAY OF AUGUST, 2026.** In the Presence of Mr. Anwar for the Plaintiff Ms. Achieng for the Defendant Court Assistant: Brenda Ochieng’ **A.Z. OGANGE** **RESIDENT MAGISTRATE** 19.08.2026