https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/431

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MAVOKO** **CIVIL CASE NUMBER E435 OF 2024** **JOSEPH THUO MWANGI………………..….……………1ST PLAINTIFF** **MARY NJERI MWANGI………………………..…………2ND PLAINTIFF** **VERSUS** **STEPHEN MURIUKI MUGWIKA…………..…..…….1ST DEFENDANT** **GABRIEL LERIONKA POLEI…………...…...………..2ND DEFENDANT** **JUDGMENT** **Introduction** 1. By way of an Amended Plaint dated 18th August 2025, the Plaintiff has come to this court seeking: 2. General damages under the Law Reform Act and Fatal Accidents Act. 3. Special damages of Kshs 457,300.00/=. 4. General damages. 5. Interest on the awarded damages. 6. Costs of this suit. 7. In response, the 1st Defendant and 2nd Defendant filed an Amended Statement of Defence dated 29th August 2025 and Statament of Defence and Counterclaim dated 25th February 2025 respectively. They both denied liability and prayed that the Plaintiffs’ Claim be dismissed with costs. 8. In the Counterclaim, the 2nd Defendant is seeking: 9. Special damages 10. General damages. 11. Costs of the suit. 12. Any other order this honourable court may deem fit and just to grant. **Plaintiffs’ case** 1. When the case came up for hearing, the 1st Plaintiff, PW1, told the court that he is the father of the deceased. Further, he told the court that the 1st Defendant is the registered, beneficial and insured owner of motor vehicle registration number KCN 406G, Isuzu truck. 2. That the 2nd Defendant is the registered, beneficial and insured owner of motor vehicle registration number KBT 242V, Honda CRV. 3. It was his evidence that on 30th November 2023 near Savannah Cement area along Nairobi - Namanga road, the deceased was riding motorcycle registration number KMFX 819Q. 4. It is at that point that the 2nd Defendant/his authorized driver wrote motor vehicle registration number KBT 242V so negligently and recklessly that it rammed into the deceased’s motorcycle. 5. In addition, the 1st Defendant/his authorized driver drove motor vehicle registration number KCN 406G so negligently that it knocked and crushed the deceased’s scull occasioning him fatal injuries. 6. At the time he died, the deceased was aged twenty seven (27) and was in good health. He was an engineer by profession and had an income of Kshs 35,000/= per month. 7. His death has occasioned his family loss. His wife (2nd Plaintiff), son and father (1st Plaintiff), depended on him. 8. For the foregoing reason, PW1 wants the estate of the deceased compensated by the Defendants. 9. PW2 was Number 104937 Police Constable Damaris Muhonja. She produced a Police Abstract dated 28th December 2023. It relates to an accident that occurred on 30th November 2023 along Namanga Road near Savannah Cement area. 10. According to PW2, the accident involved motorcycle registration number KMFX 819Q TVS, ridden by the deceased and motor vehicle registration number KCN 406G, Isuzu lorry. 11. Another motor vehicle registration number KBT 242V, Honda CRV, was also involved in the accident. The rider was fatally injurred. 12. Asked, in cross-examination, whether she was the investigations officer and whether she visited the scene, PW2 answered in the negative. She did not witness the accident. 13. She also told the court that none of the drivers was blamed for the accident. 14. She produced the Police Abstract as Plaintiff exhibit 4. **1st Defendant’s case/defence** 1. DW1 was Peter Ng’eno, the Director and Principal Officer with Gurunzi and Associates. He prepared a report dated 14th September 2024 regarding the accident (Defence exhibit one). 2. According to the report, at the time the accident occurred, the deceased/rider was overtaking. The gas cylinder he was carrying hit the Honda CRV vehicle. 3. However, DW1 told the court that although he authored the report, it does not disclose his qualifications. He did not witness the accident 4. He undertook investigations months after the accident took place. 5. George Kaimenyi, the authorized driver of motor vehicle registration number KCN 406G, testified as DW2. 6. On 30th November 2023, he was driving the said motor vehicle along Nairobi – Namanga road at 1340 hours. On reaching Savannah Cement area, a lone motorcycle carrying a gas cylinder approached DW2 in an attempt to overtake. 1. Suddenly, DW2 noticed an oncoming motor vehicle, registration number KBT 242V, driving on its lane from the opposite direction. 2. As KBT 242V was passing, it unfortunately hit the gas cylinder the rider was carrying on the motorcycle. The rider lost control and fell on the tarmac road under DW2’s truck. 3. The rider was run over by the rear wheels of DW2’s motor vehicle. He sustained fatal injuries. 4. DW2 told the court that he was driving at 50 km/hour. He denied being negligent. 5. DW2 stopped his motor vehicle and alighted. When he looked, he saw the deceased lying on the ground. An irate crowd attacked DW2. He sustained some injuries. He also lost his phone and some money. 6. He is blaming the deceased for failing to exercise due care and caution while overtaking. He insists that the deceased was hit by the oncoming motor vehicle and fell under DW2’s motor vehicle. 7. DW3, the second Defendant, told the court that on 30th November 2023, he was lawfully driving his motor vehicle registration number KBT 242V along Nairobi – Namanga road near Savannah Cement area. 8. It is at this point that the deceased rode motorcycle registration numbe KMFX 819Q so negligently and recklessly that it rammed into DW3’s motor vehicle causing it significant damage. 9. Eventually, the deceased was run over by motor vehicle registration number KCN 406G. He sustained injuries to which he later succumbed. 10. He is blaming the deceased for being negligent and reckless and wants the case against him dismissed with costs. For this reason and by way of a Counterclaim, DW3 is seeking special damages amounting to Kshs 557,700.00, general damages, costs and any other relief this court may deem fit to grant. 11. Police Constable Dennis Rotich testified as DW4. He produced a Police Abstract dated 4th December 2023 as exhibit one. 12. It relates to a road traffic accident that occurred on 30th November 2023 along Nairobi – Namanga road near Savannah Cement area. 13. The accident involved motor vehicle registration number KBT 242V Honda CRV, motorcycle registration number KMFX 819Q and motor vehicle registration number KCM 406G Isuzu lorry. 14. According to DW4, motor vehicle rgistration number KBT 242V was heading towards Nairobi general direction while the motorcycle was heading towards Namanga general direction. The motorcycle was overtaking when the cyclinder it was carrying hit KBT 242V. The rider was overun by the rear wheels of KCN 406G. 15. Daniel Muturi Mbugua, who testified as DW5, told the court that on 4th December 2023, he was instructed by DW3 to assess motor vehicle registration number KBT 242V. The vehicle had been involved in a road traffic accident. 16. DW5 assessed the probable costs of purchasing spare parts together with labour charges and came up with a conservative figure of Kshs 433,400/=. He charged Kshs 5,000/= for assessment of costs. He produced the report dated 4th December 2023 as exhibit two. 17. DW5’s report does not, however, indicate the pre-accident value of motor vehicle registration number KBT 242V. In addition, it does not indicate the salvage value. **Analysis and determination** 1. I have read the evidence and defence on record. I have also read submissions by both parties and the authorities annexed thereto. From my reading of what is on record, the issues that ought to be determined are liability and the quantum of damages. **Who should be held liable for the accident?** 1. According to PW1, the Defendants should be held liable for the accident that took away the life of the deceased. He is accusing the Defendants for being negligent and reckless and a result of which the deceased lost his life. 2. In the opinion of PW1 were it not for the impact caused by motor vehicle registration number KBT 242V when it hit the cylinder the deceased was carrying on his motorcycle, he would not have lost control and fallen in the path of the 1st Defendant’s truck. 3. It is the actions of the 2nd Defendant that, according to PW1, that set in motion the chain of activities that culminated in the fatal accident. 4. Regarding the 1st Defendant, it is PW1’s argument that had the driver of motor vehicle registration number KCN 406G been a little careful he would not have run over the deceased and occasioned him the injuries that ultimately snuffed life out of him. 5. It is PW1’s contention that the 1st Defendant cannot, therefore, escape liability by the mere fact that it is another motor vehicle (2nd Defendant) that initiated the activities that culminated in the loss of the deceased’s life. 6. In response, both the 1st Defendant and 2nd Defendant (DW3) denied being responsible for the accident and termed the deceased as the author of his own misfortune. 7. Citing the cases of ***Mwangi v Wambugu [1984] KLR*** 453 and ***David Kajogi M’mugaa v Francis Muthomi [2012] eKLR***, the 1st Defendant told the court that a *‘rider who collides with a stationary vehicle is presumed to be negligent, having failed to keep a proper lookout or maintain control and distance*.’ 8. In the opinion of the 2nd Defendant, PW1 has not adduced sufficient evidence to warrant a finding that the Defendants are to blame for the accident. He referred the court to, among others, the case of ***CMC Aviation Ltd vs Cruisar Ltd (No. 1) [1987] KLR 103.*** 9. It is a general principle in law that he who alleges ought to prove the validit of his assetions. To this end, sections 107 to 109 of the Evidence Act provides that: ***107. “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** ***108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.*** ***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 that fact shall lie on any particular person.*** 1. This was the holding of the Court of Appeal in ***Mbuthia Macharia v Annah Mutua & Another [2017] eKLR***, where is stated that: ***“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”*** 1. It follows that to secure a ruling in his favour, PW1 must prove that the Defendants were negligent, as a result of which the deceased lost his life. 2. From what is on record, it is true that PW1 was not an eyewitness to the accident. What he told the court was what he was told. In his own words, he told the court that *‘I did not witness the accident. I was told on phone by Kuria. Kuria lived with my son in Kitengela.’* 3. Unlike PW1, the 1st Defendant and 2nd Defendant were eyewitnesses to the accident. 4. From the evidence of PW1 it is not clear as to who is to blame for the accident. It is also not clear from the defence on record as to who is to blame for the accident. Where this is the case, the Court of Appeal, in ***Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR),*** has held that: ***“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.’*** 1. Having considered the evidence and defence on record and having found that it is not clear as to who is to wholly blame for the accident, I hereby apportion liability in the ratio of 50:50 in favour of the Plaintiffs and as against the Defendants. Each of the Defendants will, therefore, shoulder 25% liability to bring it to 50%. **What is the quantum of damages that should be awarded?** 1. As already mentioned, PW1 is seeking damages under the Fatal Accident Act and the Law Reform Act. 2. **Pain and suffering** 3. For pain and suffering, PW1 is seeking an award of Kshs 200,000/=. 4. He is relying on the case of ***David Kahuruka Gitau & Another v Nancy Ann*** ***Wathithi Gitau & Another [2016] eKLR,*** where the Court awarded Kshs. 100,000.00 for a deceased who died shortly after the accident. 1. To the 1st Defendant, an award of Kshs 10,000/= for pain and suffering would be ideal in the circumstances of this case. He cited the case of ***West Kenya Sugar Co. Ltd v Stephen Mukhale Asava (Suing as the Legal Representative of the Estate of Linet Nekesa Asava – Deceased) [2021] eKLR.*** 2. On the other hand, the 2nd Defendant is of the view that the award for pain and suffering should range between Kshs 20,000/= and Kshs 50,000/=. 3. In ***West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR,*** the court observed that- ***“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. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”*** 1. In the case of ***Ndungu Wambui Christine & 2 others vs Muusi Nzivo Maingi aka Muusi Uzivo & another [2020] eKLR***, the court revised an award of Kshs 150,000/= for pain and suffering to Kshs 100,000 in a matter where the deceased died one day after the accident. 2. An award of Kshs 70,000/= in a matter where the deceased died immediately after the accident would therefore, in the opinion of this court, be appropriate in the circumstances. I proceed to award the Plaintiffs Kshs 70,000 for pain and suffering subject to the aforementioned apportionment of liability. 3. **Loss of expectation of life** 4. For loss of expectation of life, PW1 wants to be awarded Kshs 500,000/=. He referred the court to the case of ***Stella Nasimiyu Wangila & Another v Raphael Oduro Wanyamah [2016] eKLR***, where the Court awarded Kshs. 500,000/= for a deceased aged 38 years and in good health prior to death. 5. However, according to the 1st Defendant, a conventional sum of Kshs 100,000/= would suffice. This is equally the 2nd Defendant’s argument. 6. In ***Antony Njoroge Ng’ang’a (Legal representative of the Estate of the late Fred Nganga Njoroge aka Fred Ng’ang’a Njoroge) vs James Kinyanjui Mwangi & 2 others [2022] eKLR***, Justice Hillary Chemitei revised an award of Kshs 200,000/= for loss of expectation of life to Kshs 100,000/=. 7. Similarly, in ***Mercy Muriuki & Another –Vs- Samuel Mwangi Nduati& Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR,*** the Court observed that:- ***“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher*** ***damages being awarded if the pain and suffering was prolonged before death.”*** 1. I am guided by the foregoing decisions of the superior courts. Consequently, I award PW1 Kshs 100,000/= for loss of exepectation of life, subject to the apportionment of liability alluded to above. 2. **Loss of dependency** 3. According to PW1, the deceased was a biomedical engineer who earned Kshs 35,000/= per month. His father (PW1), wife (the 2nd Plaintiff) and minor son depended on him. He was 27 years old at the time of his death. 4. The deceased would, therefore, according to PW1, have worked up to the retirement age of 65 years. 5. He wants this court to adopt a multiplicant/multiplier of 2/3 in light of the position that the deceased had dependants. 6. To the contrary, the 1st Defendant submitted that PW1 had not tendered enough evidence to demonstrate that the deceased had a wife and a son. It is his position that there is no sufficient evidence on record to prove that the deceased earned a salary of Kshs 35,000/=. Further, the 2nd Defendant submitted that given that the deceased was aged 27, he could only work for another 20 years. 7. For the foregoing reason, the 2nd Defendant wants this court to adopt a multiplicant/multiplier of 1/3 in calculating what it should grant under this head. 8. The 2nd Defendant, on the other hand, is opposed to the multiplier of 2/3. It is his contention that the deceased worked in the private sector where working up to the retirement age is not guaranteed. 9. Regarding the applicable multiplicant on cases of this nature, superior courts have given some guidance. In the case of ***Ngunga vs Wanjala (Suing as the Legal Representative of the Estate of Brivern Sichangi Makanga - Deceased) (Civil Appeal E261 of 2025) [2026] KEHC 9933 (KLR) (17 June 2026)*** Micheni J of the High Court stated that: ***“The applicable principles are authoritatively stated by the Court of Appeal in Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another (Civil Appeal No. 21 of 1984) [1987] KLR 30, which remains the leading Kenyan authority on the assessment of loss of dependency under the Fatal Accidents Act. Those principles, adopted from the High Court judgment of Ringera, J. (as he then was) in Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another (Nairobi HCCC No. 1638 of 1988, unreported), are that the court must first ascertain the net annual earnings of the deceased (the multiplicand), then multiply that figure by a number of years purchase (the multiplier), having regard to the expectation of earning life of the deceased, the vicissitudes of life, and the extent and duration of*** ***dependency.”*** 1. According to PW1, the deceased earned a monthly salary of Kshs 35,000/=. This figure is disputed by the 1st Defendant. However, in support of this claim, PW1 produced a contract of employment between the deceased and Topcare Powered By Oxygen Hub. From the contents of the contract, it took effect on 1st May 2021. It indicates that the deceased earned a salary of Kshs 35,000/= per month. He was employed as a Biomedical Engineer. 2. Further, to prove that the deceased had dependants, PW1 produced a letter dated 11th January 2024 from the Chief Kabazi Location in Subukia. According to the letter, the deceased hailed from the said Location. The letter indicates that he was married to the 2nd Plaintiff and the two had one child, a son. 3. From the foregoing, it emerges that the deceased worked as a biomedical engineer, earned a gross salary of Kshs 35,000/= per month and was aged 27 at the time of his death. Despite the objections from the 1st and 2nd Defendants and in light of the documentary evidence adduced by PW1, this court has no reason to doubt PW1’s submissions on this issue. 4. What this court, however, finds somewhat misadvised is PW1’s argument that the deceased would have retired at the age of 65. This cannot be true given that the retirement age in Kenya is currently set at 60 and not 65. And in any case, there is no guarantee that the deceased would have worked up to the retirement age. 5. He was employed on contract which was to be renewed subject to satisfactory performance. I will adopt a conventional retirement age of 50. 6. Bearing the above in mind, the award on loss of dependency will be computed as follows: **2/3 x 35,000 x 12 x 28 = Kshs 6,440,000** 1. **Special damages** 2. PW1 wants to be awarded special damages of Kshs 350,300/=. To the 1st Defendant, PW1 has produced receipts totalling to Kshs 86,000/= and not Kshs 350,300/=. He should, therefore, be awarded Kshs 86,000/= in special damages. 3. The law on special damages is that they should be specifically pleaded and proved before they can be awarded. 4. This was the Court of Appeal’s holding in ***National Social Security Fund Board of Trustees vs Sifa International Limited (2016) eKLR***,***Macharia & Waiguru vs Muranga Municipal Council & Another (2014) eKLR***and***Provincial Insurance Co. EA Ltd vs Mordekai Mwanga Nandwa, KSM CACA 179 of 1995 (ur)***. In the latter case, the Court held that: ***“… It is now well settled that special damages need to be specifically pleaded before they can be awarded. Accordingly, none can be awarded for failure to plead. It is equally clear that no general damages may be awarded for breach of contract …”.*** 1. It is, therefore, incumbent upon PW1 to specifically plead and prove the special damages. It is only upon fulfillment of the foregoing that he can be awarded the special damages. 2. I have perused the documents produced by PW1. From my perusal, I note that he produced a total of five receipts. The amount in the receipts adds up to Kshs 86,000/=. I award PW1 this amount in special damages. **Conclusion** 1. The total award to PW1, subject to apportionment of liability will boil down to the following: 2. Pain and suffering Kshs 70,000.00 3. Loss of expectation of life Kshs 100,000.00 4. Loss of dependency Kshs 6,440,000.00 5. Special damages Kshs 86,000.00 **Total Kshs 6,696,000.00** 1. Minus 50% Kshs 3,348,000.00 **TOTAL AWARD Kshs 3,348,000.00** 1. The total award to the Plaintiffs is, therefore, **Kshs 3,348,000/**= divided equally between the 1st and 2nd Defendant.That means that the 1st Defendant will pay half of this amount and the 2nd Defendant will pay the other half. 2. The 2nd Defendant’s counterclaim is hereby dismissed with no order as to costs. 3. Each party will bear its own costs. 4. Execution is hereby stayed for 30 days. **Dated signed and delivered virtually on this 31st day of July 2026 at Nairobi** **EDWIN MULOCHI** **SENIOR RESIDENT MAGISTRATE** **C/A: Serene Kemunto**