[2023] KEHC 19651 (KLR)

Munguti & another (Both suing as the administrators of the Estate of the Late Katama George Chamanje Mkangi - Deceased) v Bolpak Trading Company Limited & another (Civil Case 224 of 2007) [2023] KEHC 19651 (KLR) (Civ) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19651 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 224 of 2007

CW Meoli, J

June 29, 2023

Between

Dr Joyce Kaendi Munguti

1st Plaintiff

Nene Nzyuko

2nd Plaintiff

Both suing as the administrators of the Estate of the Late Katama George Chamanje Mkangi - Deceased

and

Bolpak Trading Company Limited

1st Defendant

Ahamed Mohamed

2nd Defendant

Judgment

1. By a plaint dated 3rd March 2007 and amended on 17th March 2021 Dr. Joyce Kaendi Munguti and Nene Nzyuko (hereafter the 1st and 2nd Plaintiffs) sued Bolpak Trading Company Limited and Ahamed Mohamed (hereafter the 1st and 2nd Defendants) for general damages, special damages in the sum of Kshs. 950,500/- and costs. The claim arose from a road traffic accident in which Katama George Chamanje Mkangi (hereafter the deceased) sustained fatal injuries.

2. It was alleged that on or about the 6th day of March, 2004 at about 1. 30pm the deceased was driving his motor vehicle registration number KAM 067B Toyota (the first motor vehicle) along Mombasa-Nairobi Road at Voi when the 2nd Defendant acting as the employee and/or agent of the 1st Defendant so negligently and recklessly drove, managed and or controlled the motor vehicle registration number NKR66L71055685 TEC (the second motor vehicle) that it collided with the first motor vehicle, causing the death of the deceased. It was further alleged that the 1st Defendant was vicariously liable for the negligence of the 2nd Defendant, particularized as follows:“particularsofNegligence ofThe 2Nd Defendanta)Driving at a speed that was excessive in the circumstance.b)Failing to keep any or any proper look out or to have any regard for traffic that might reasonably be expected on the road.c)Failing to see the deceased’s motor vehicle in sufficient so as to avoid the collision.d)Failing to stop, to slow down or in any other way manage to control his motor vehicle so as to avoid the accident.” (sic)

3. It was further pleaded that at the time of his death, the deceased was aged 60 years and in good health and was scheduled to be appointed as a professor of Sociology at Kenyatta University. That the deceased was also the Chairman of the Board of the Kenya Medical Training College from which he drew allowances, in addition to being an author of various books out of which he earned royalties. That the deceased left behind the following dependants:a)Dr. Kaendi Joyce Munguti - Wifeb)Dzombo Katana - Child (born on 5th January, 1993)c)Chizi Katama - Child (born on 5th July, 1994)

4. Initially, the Defendants were represented by the same counsel who entered appearance on their behalf and filed the joint the statement of defence dated 23rd May, 2007, therein denying the occurrence of the accident and negligence. The Defendants pleaded in the alternative and without prejudice to the foregoing denials, that if an accident did occur which fact was denied, it was due solely and/or substantially contributed a consequence of negligence on the part of the deceased, namely:a)“Driving at a speed that was excessive in the circumstance.b)Failing to keep any or any proper look out.c)Failing to steer or safe or proper course.d)Failing to stop, to slow down, swerve or otherwise to manage or control his motor vehicle so as to avoid the accident.e)Failing to pay nay or any sufficient heed to the presence of motor vehicle NKR 66L Z1055685TEC which was lawfully being driven on the said road. “(sic)

5. However, at a later stage the 1st Defendant applied to be represented by a separate firm of advocates who consequently filed the statement of defence dated 23rd May, 2007 and amended on 23rd November, 2016 in which it denied the averments made in the plaint regarding the occurrence of the accident, negligence and/or vicarious liability attributed to it. The 1st Defendant further denied ownership of the second motor vehicle and averred that the 2nd Defendant was unknown to it and that the Plaintiffs’ cause of action lay against the 2nd Defendant.

6. The hearing of the suit commenced on 18th October, 2022, the 1st Plaintiff testifying as PW1 identifying herself as the widow of the deceased. She adopted her witness statement filed on 25th June, 2015 as her evidence-in-chief and produced her bundle of documents filed on even date as P. Exh. 1-19. During cross-examination, PW1 testified that according to the police abstract, the second motor vehicle did not have Kenyan registration details at the time of the accident and that the registration details pleaded in that respect were provided to her by the police.

7. Further, that the 2nd Defendant was an employee of the 1st Defendant and that the former was charged, tried and convicted in relation to the accident and death of the deceased in Voi Magistrates Court Traffic Case No. 466 of 2004. She reiterated her reliance on the information provided both by the police and by the insurer of the second motor vehicle, namely Invesco Insurance Co. Ltd. In re-examination, pointed out that the police abstract cited the 1st Defendant as the owner of the second motor vehicle and that any reference to “Bus pack Traders” in the traffic proceedings must be the result of a typographical error, since the correct reference ought to be the 1st Defendant’s name. This marked the close of the Plaintiffs’ case.

8. For the 1st Defendant, Khan Shahbaz testified as DW1, similarly adopting his signed witness statement and producing his bundle of documents both dated 27th July, 2016 as D. Exhibit 1. He testified that the Defendant’s business involved the importation and sale of vehicles in Kenya, and not the transport business. In cross-examination, the witness stated that the 1st Defendant did not own the second motor vehicle but that on the material date, the said vehicle was on transit to Kampala, where it was to be delivered to Summy International Co. Ltd who was the rightful owner. The witness further stated that he had dispatched his Manager, a Mr. Gitau, to visit Voi Police Station following the accident and that he could not explain why the police abstract cited the 1st Defendant as the owner of the second motor vehicle. This evidence was echoed during his re-examination. DW1 was the sole witness for the 1st Defendant.

9. The 2nd Defendant on his part did not participate in the suit at any state after the filing of the defence statement, despite due notice.

10. In his submissions, the Plaintiffs’ counsel confined himself to the twin issues of liability and quantum of damages. On liability, it was asserted that despite the absence of the copy of records in relation to the second motor vehicle, the police abstract which was not challenged by the Defendants at the trial sufficed. That the said document indicated that the second vehicle was owned by the 1st Defendant, and this was sufficient proof of ownership. To buttress their point here, the Plaintiffs cited Joel Muga Opija v East African Sea Food Limited [2013] eKLR.

11. Counsel emphasized that the occurrence of the accident was not disputed, and that the 2nd Defendant was found guilty in the traffic case for the offence of causing the death of the deceased by dangerous driving. On those grounds, the court was urged to find the Defendants jointly and severally liable.

12. Regarding quantum of damages, it was reiterated that the deceased was aged 60 years and that a substantial share of his income was used to support his family. Concerning the prayer for general damages for pain and suffering, a sum of Kshs. 100,000/- was proposed. On the authority of the case of P B S & another v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2016] eKLR where the sum of Kshs. 100,000/- was awarded in respect of a person who died on the date of the incident.

13. Concerning the claim for loss of expectation of life, a similar sum of Kshs. 100,000/- was sought, reliance being placed on Peter Ngwili Wambua (Suing as legal representatives of the Estate of Sammy Mboya Wambua (Deceased) v Ali Mwanzia Kelly [2021] eKLR. The court was urged to assess damages for lost dependency by applying a dependency ratio of ½ together with a multiplicand of Kshs. 1,233,960/- being the deceased’s earnings as a lecturer, and a multiplier of 15 years. Hence Kshs. 1,233,960 x 15 x ½ = Kshs. 9,254,700/-.

14. The court was also urged to apply a multiplicand of Kshs. 565,415 in respect of the total allowances which the deceased would have earned in his capacity as Chairman of the Board in Kenya Medical Training College (KMTC) to be tabulated as follows: 565,415 x ½ = Kshs. 282, 707. 5 consequently, the court was urged to award the total sum of Kshs. 9,537,407/- under the head of loss of dependency. Counsel also advanced the argument that the sum of Kshs. 800,000/- is deserved for loss of consortium. On specials, counsel submitted that the Plaintiffs had proved and were entitled to the sum of Kshs. 950,000/-. Bringing the total award proposed to the sum of Kshs. 11,487,407/-.

15. The 1st Defendant’s counsel also filed the submissions dated 18th November, 2022. He asserted that in order for a finding of liability to be entered against a defendant, the plaintiff would be required to tender proof that the defendant was either the driver or owner of an accident motor vehicle. He cited Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR in that regard and stated that in the instant case, the Plaintiffs did not bring any credible evidence to support the assertion that the 1st Defendant was at all material times the registered owner of the second motor vehicle.

16. Counsel further submitted that the police abstract evidence which was tendered by the Plaintiffs was rebutted by the 1st Defendant, through evidence material in support of averments that the second motor vehicle had been imported and was being transported to its buyer, Summy International Co. Ltd. Counsel therefore urged the court to enter a finding of 100% liability solely against the 2nd Defendant, who was found criminally liable for causing the death of the deceased. The court was consequently urged to dismiss the case against the 1st Defendant.

17. The court has considered the pleadings, the evidence tendered at the trial, as well as the rival submissions of the parties. Two issues, namely, liability and quantum fall for determination.

18. On liability, and as earlier stated, the 2nd Defendant did not participate at the trial. That notwithstanding, it is trite law that the burden of proof rests with the Plaintiffs to prove their case against the Defendants, on a balance of probabilities. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya clarifies this position by providing that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

19. Moreover, the evidential burden of proof which is captured in Sections 109 and 112 of the same Act stipulates that:“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.

112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”

20. The abovementioned provisions were discussed in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

21. Following the court’s examination of the evidence on record, both oral and documentary, it is clear that an accident took place on the material date and at the place pleaded in the plaint, the result of which the deceased lost his life. On the subject of ownership of the second motor vehicle, it is not in dispute that the Plaintiffs did not tender a copy of records in that respect, as an exhibit. The law on its part provides that the contents of the copy of records are deemed to be ‘prima facie’ evidence of ownership pursuant to the provisions of Section 8 of the Traffic Act, Cap. 403 Laws of Kenya which stipulates that the person whose name appears on the registration document in respect to a motor vehicle will be considered its owner.

22. Suffice to say that the Plaintiffs tendered the police abstract relating to the accident as P. Exhibit 2, the contents of which have been considered. According to the police abstract, the 1st defendant was indicated as being the owner of the second motor vehicle at all material times, whereas the 2nd Defendant was listed as the driver thereof on the material date. Furthermore, the Plaintiffs tendered as P. Exhibits 17-19 the charge sheet, criminal proceedings in Voi Traffic Case No. 466 of 2004 to support the assertions that the 2nd Defendant was the driver of the second motor vehicle on the material date.

23. The 1st Defendant tendered D. Exhibit 1 which is a letter dated 27th July, 2016 addressed to Gitau Mwara , their advocate on record essentially stating that the 1st Defendant did not own the second motor vehicle but that the said vehicle was on transit to Summy International Co. situated in Kampala. However, the 1st Defendant did not tender any additional evidence or documentation to support these assertions.

24. In the absence of any contrary evidence therefore, a police abstract is deemed to be conclusive proof of ownership. This was the reasoning of the Court of Appeal in Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another (2010) eKLR as cited in the case of Lochab Transport (K) Limited & another v Daniel Kariuki Gichuki [2016] eKLR thus:“Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiffs would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”

25. Moreover, it is well appreciated that a balance of probabilities is lower in comparison to the standard set in criminal proceedings. The Court of Appeal discussed this principle when it stated the following reasoning in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR:“Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

26. From the foregoing, the court is satisfied that the Plaintiffs have proved on a balance of probabilities that the 1st and 2nd Defendants were at all material times the registered owner and driver of the second motor vehicle, respectively.

27. On the subject of negligence, it is the evidence by the Plaintiffs that the 2nd Defendant being the driver of the second motor vehicle, caused the material accident through his negligence, and that the 1st Defendant is vicariously liable by virtue of its ownership of the said vehicle. To support her oral testimony reiterating the averments made in the amended plaint, the 1st Plaintiff tendered the criminal trial proceedings which confirmed that the 2nd Defendant was charged in relation with the accident, with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act. That upon trial, the criminal court by way of the judgment delivered on 7th December, 2004 found him guilty and convicted him accordingly.

28. The 2nd Defendant did not tender any evidence to rebut this position. On the part of the 1st Defendant, whereas DW1 through his oral testimony denied any existing relationship between the Defendants at all material times, no credible evidence was presented before the court to support such position. Following its earlier finding that there is credible evidence to show that the 1st Defendant was at all material times the owner of the second motor vehicle, the court is of the view that in the absence of any contrary evidence, it is more plausible than not that the 2nd Defendant was an employee or agent or servant of the 2nd Defendant.

29. Consequently, the court is satisfied that the particulars of negligence have been proved as against the 2nd Defendant, and vicariously against the 1st Defendant. In keeping with the holding in Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & Another [2014] eKLR by the Court of Appeal that vicarious liability is not limited to employment relationships, citing Messina Associated Carriers vs Kleinhaus [2001] 3 ALL SA 285 (SCA), where it was noted thus:“The law will permit the recovery of damages one person for delicit committed by another where the relationship between them and the interest of the one in the conduct of the other is such as to render the situation analogous to that of an employee acting in the course and scope of his or her employment … or where in the eye of the law the one was in the position of the owner’s servant.”See also Selle v Associated Motor Boat Co. [1968] EA 123.

30. It is also pertinent to observe that where a defendant pleads contributory negligence on the part of a plaintiff or deceased person, he must adduce evidence to prove those specific acts of contributory negligence. In the present instance, no such proof was tendered against the deceased. The Court of Appeal’ held in Embu Public Road Services Ltd v Riimi [1968] EA 22 that:“…where the circumstances of the accident give rise to the inference of negligence then the defendants, in order to escape liability has to show that there was a probable cause of the accident which does not connote negligence or that the explanation for the accident was consistent only with an absence of negligence.”

31. Accordingly, the court enters a finding of 100% liability against the 1st and 2nd Defendants, jointly and severally.

32. Turning now to the issue of quantum, given that the Plaintiffs are seeking general damages under the Law Reform Act and the Fatal Accidents Act, as well as special damages, the claim introduced at the submissions stage for general damages for loss of consortium is not available to the Plaintiffs. A claim of that nature is not included in the category of damages payable to the estate of a deceased person.

33. Having settled the above, the court will now address the damages sought and awardable under the Law Reform Act and the Fatal Accidents Act. On general damages for pain and suffering, from the pleadings and evidence tendered, it is apparent that the accident took place on or about the 6th of March 2004. The death certificate further confirmed that the deceased died on the date of the accident. Upon consideration of the award in the sum of Kshs.100,000/ suggested by the Plaintiffs, the court is persuaded to award the sum of Kshs.50,000/ taking into account inflationary trends, and the case of Lucy Wambui Kihoro (Suing As Personal Representative Of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] eKLR. Therein, the court awarded the sum of Kshs.20,000/ under this head in respect of a person who died on the date of the accident.

34. Regarding general damages for loss of expectation of life, the evidence on record shows that the deceased died aged 60 years. There is nothing to indicate that he was of ill health. The courts have consistently granted the conventional sum of Kshs.100,000/ under this head. Such award was made in the case of Mumias Sugar Company Limited v Henry Olukokolo Ashuma (suing as the legal representative in the estate of Patrick Kweyu Ashuma (Deceased) & another [2018] eKLR and in the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] eKLR. Bearing in mind the rate of inflation, the court is persuaded that an award of Kshs.150,000/- would be adequate damages for loss of expectation of life.

35. In respect to general damages for loss of dependency, the death certificate tendered as an exhibit supported the pleadings which indicate that the deceased died at the age of 60 years. On the multiplier, none of the parties cited any guiding authorities, though the Plaintiffs in their submissions suggested a multiplier of 15 years. The court has considered the cases of Philip Wanjera & another v Ahmed Liban & Shukri Ahmed Liban (suing for and on behalf of the Estate of Habiba Liban) [2016] eKLR in which the High Court sitting on appeal substituted a multiplier of 15 years with one of 7 years at the instance of a deceased aged 60 years, and that of Sokoro Plywood Ltd & Anor v Njenga Wainaina [2017] eKLR where the court used a multiplier of 10 years for a deceased person then aged 60 years. The court is therefore of the view that the multiplier of 15 years proposed by the Plaintiffs falls on the higher side. The court, upon being guided by the above-cited authorities, will therefore apply a reasonable multiplier of 10 years.

36. Regarding the dependency ratio, the Plaintiffs produced birth certificates in respect of Dzombo Katana and Chizi Katama to demonstrate that the said persons are children of the deceased. The 1st Plaintiff also testified that she is the widow of the deceased and that together with their children, they depended on the deceased’s financial support. While the Plaintiffs proposed a ratio of ½, the court is of the view that the conventional ratio of 2/3 applicable for a married deceased person would suffice, as the 1st Plaintiff testified that she too supported the family through her earnings.

37. In addressing the multiplicand, it is trite law that the net income is applied in calculating the multiplicand. This position was spelt out by the Court of Appeal in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015) eKLR :“In the case of Chunibhai J. Patel and Another v P. F. Hayes and Others [1957] EA 748, 749, the Court of Appeal stated the law on assessment of damages under the Fatal Accidents Act which we cite in part as follows:“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase. (Emphasis added)As emphasized above, the net income determines the multiplicand and it is only net of statutory deductions.”

38. The Plaintiffs tendered various documents as exhibits to support the averments that the deceased benefited from various earnings prior to his death, as follows:a)The offer letter dated 1st August, 1995 from USIU-Africa appointing the deceased in the position of Associate Professor at the starting salary of Kshs. 78,000/- per month. The Plaintiffs further tendered copies of pay slips to show the deceased’s earnings, one of which was slightly illegible. Nonetheless, the pay slip for the month of October 2002 showed that the deceased’s gross income was Kshs. 133,200/-. This less the statutory deductions of Kshs. 32,694/- brings the net earnings to Kshs. 100,506/-b)The letters dated 19th December, 2003; 23rd December, 2003 and 11th March, 2004 from the Ministry of Health; KMTC and Kenyatta University respectively, confirming the appointment of the deceased to the position of Chairman of KMTC effective 18th December, 2003. c)The letters dated 7th February, 2000 and 2nd June, 2005 issued by the Office of the President and the Ministry of Health respectively, setting out the remuneration packages for the various capacities serving in KMTC, including that of Board Chairman. According to the latter letter, the remuneration payable to the Chairman including allowances and other benefits totaled a maximum of Kshs. 114,000/- subject to the relevant taxes.d)The letters from East African Educational Publishers Ltd dated March, 2005 and March, 2006 indicating that the outstanding payments on royalties for books published by the deceased were in the total sum of Kshs. 114,854. 51 less recoverable costs of Kshs. 38,265. 40 leaving a net sum of Kshs. 76,589. 11. That the said sum was subsequently paid by way of a cheque issued sometime in the year 2006. It is apparent from the letters that the royalties have since been settled.e)The letter dated 16th June, 2015 issued by Kenyatta University indicating that the deceased would have been recruited as a Professor of Sociology and would have earned a minimum basic salary of Kshs. 67,335/- and a maximum basic salary of Kshs. 96,163/- together with house and commuting allowances in the respective sums of Kshs. 53,375/- and Kshs. 4,040/-.

39. From the foregoing, while it is apparent that the deceased would have drawn income from various sources. However, save for the net earnings established in a) above, it remains unclear what the deceased’s net earnings were/would have been from the categories c) and e) and the court cannot establish establishing the net earnings therein on the basis of guess work. Therefore, the court can only apply the net earnings confirmed in a) above, being the sum of Kshs. 100,506/-. Consequently, the award under the head of loss of dependency will be calculated as follows:Kshs. 100,506/- x 10 x 12 x 2/3 = Kshs. 8,040,480/-

40. Concerning special damages, the legal position on this is that special damages must be specifically pleaded and strictly proved. This position was reaffirmed by the Court of Appeal in David Bageine v Martin Bundi [1997] eKLR when it stated that:“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi [1982-88] IKAR 681 at page 684:“... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter v Hyde Part Hotel Limited [1948] 64 TLR 177 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 the 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.”

41. The special damages sought in this instance primarily relate to the funeral expenses said to have been incurred following the death of the deceased. In both the pleadings, and the testimony by the 1st Plaintiff, it was stated that the funeral and other related expenses for the deceased totaled the sum of Kshs. 950,500/- but no receipts or other evidence was tendered in support thereof. That notwithstanding, the courts have acknowledged that in spite of the absence of receipts, it is a general fact that funeral expenses must have been incurred in the burial of a deceased person.

42. The Court of Appeal in Premier Diary Limited v Amarjit Singh Sagoo & another [2013] eKLR, stated the following on the subject:“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”

43. Similarly, the Court of Appeal in Capital Fish Kenya Limited v the Kenya Power & Lighting Company Limited [2016] eKLR said that:“We do not discern from our reading of this decision a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved…We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc...”

44. Upon taking into consideration the above renditions as well as the sum sought by the Plaintiffs, the court finds that the modest sum of Kshs. 250,000/- would constitute reasonable compensation to the Plaintiffs for the funeral costs incurred, despite the absence of receipts or other documentary evidence.

45. Consequently, judgment is hereby entered in favour of the Plaintiffs and against the 1st and 2nd Defendants jointly and severally in the manner hereunder:Liability 100%a)General damagesPain and suffering Kshs.50,000/-Loss of expectation of life Kshs.150,000/-Loss of dependency Kshs. 8,040,480/-b)Special damages Kshs.250,000/-Total Kshs.8,490,480/-

46. Costs of the suit are awarded to the Plaintiffs. The Plaintiffs shall also have interest at court rates on general damages from the date of judgment until payment in full and interest on special damages at court rates from the date of filing suit until payment in full.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 29TH DAY OF JUNE 2023. C.MEOLIJUDGEIn the presence of:For the Plaintiff: Ms. Koech h/b for Mr. MwihuriFor the 1st Defendant: Mr. GitauFor the 2nd Defendant: N/AC/A: Carol