https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/219

Omuse & another (Suing as Legal Administrators of the Estate of the Late Justic Lazaro Kisaka) v Jay Transporters Ltd & another (Civil Case E192 of 2025) [2026] KEMC 219 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 219 (KLR) Republic of Kenya In the Narok Law Courts Civil Case E192 of 2025 EM Mutuku, RM June 30, 2026 Between Lydia Nekesa Omuse 1st Plaintiff Alex Kisaka Mutoro 2nd Plaintiff Suing as Legal Administrators of the Estate of the Late Justic Lazaro Kisaka and Jay Transporters Limited 1st Defendant Shrirang Enterprises Limited 2nd Defendant Judgment 1.The Plaintiff instituted this suit vide a plaint dated 2nd July 2025 seeking special damages of Kshs. 192,100.00, damages under the Fatal Accidents Cap 32 and Law Reform Act Cap 26 Laws of Kenya and loss of consortium, costs of the suit and interest, and any other relief that this court may deem fit. 2.The Defendants appeared and filed a defence to the case dated 12th August 2025. 3.When the case came up for hearing parties recorded a consent in the following terms:By consent of both parties, judgment is hereby entered at the ratio of 85:15 in favour of the Plaintiff against the Defendants jointly and severally.That the plaintiff’s statement dated 2nd July 2025 be adopted as his evidence in chief.That the documents in the list dated 2nd July 2025 be adopted as exhibit 1 – 10. 4.By the list of documents dated 16th June 2025, the Plaintiffs produced the following documents;Copy of IDDemand letter dated 28th April 2025Letter of introductionCertificate of deathPost-mortem formLimited grant ad litemPolice abstractMotor vehicle copy of records for KBX 835JMotor vehicle copy of records for ZE3346Receipt by Fransisca & Chelangat Advocates for Kshs. 50,000.00NTSA receipt ref. no. 2YJABNM for Kshs. 550.00NTSA receipt ref. no. 2E4AKZZ for Kshs. 550.00Receipt No. RA-0805949 for Kshs. 1,000.00 5.Directions on filing of submissions were given and at the time of writing this judgment all the parties had filed their written submissions. Issues for Determination: 6.I have considered the pleadings, witness statements and documentary evidence produced and both parties’ written submissions together with the cited authorities; as well as the relevant law. Consent judgment on liability was already recorded at the ratio of 85:15 in favour of the Plaintiffs. 7.The issues arising for determination by this court are:i.What is the quantum of damages awardable?ii.What orders ensue? Analysis and Determination: Quantum: 8.The Plaintiffs in their submissions claimed general damages for pain and suffering, loss of expectation of life, loss of dependency, loss of consortium and special damages. Pain and suffering: 9.On pain and suffering, the Plaintiffs proposed an award of Kshs. 150,000.00 while relying on General Cargo (Transport) Limited v Ndeme (Suing as administrator of the estate of Mwandingo Mkama Beja – deceased) [2023] KEHC 27244 (KLR), Premier Dairy Limited v Amarjit Singh Sagoo & another [2013] eKLR, and Munuhe & anor (suing as the legal representative of the estate of Peter Maina Ndegwa) v Mutua [2024] KEHC 10944 (KLR). The Defendants on the other hand proposed an award of Kshs. 50,000.00 while relying on Mosonik & anor v Cheruiyot (Suing as the legal administrator of the estate of Stanley Kipchumba Kemboi, deceased) (Civil Appeal 113 of 2019) [2022] KEHC 1183 (KLR) and kokoko & another v Kenya Power & Lighting Company Limited (Civil Case 38 of 2017) [2024] KEHC 11364 (KLR). 10.Having considered the evidence before court, it can be concluded from the post-mortem report that the deceased died on 27th February 2024 at 1920 hours which was the exact time the accident occurred as per the police abstract. The deceased therefore died on the spot. The authorities relied on by the parties are relevant in the matter and having considered the authorities and evidence, I find an award of Kshs. 70,000.00 for pain and suffering to be sufficient. Loss of expectation of life: 11.On this head the Plaintiffs proposed an award of Kshs. 200,000.00 relying on Francis Wainaina Kirungu (suing as personal representative of the estate of John Karanja Wainaina) v Elijah Oketch Adelalh [2015] eKLR, Patricia Mona & Dennis Anthony Musyoka (suing as a personal administrator of the estate of Anthony Musyoka) v Samuel Opot Omondi & National Environment Authority, Nairobi HCCC No. 574 of 2010 and Violet Jeptum Rhaheli v Albert Kubai Mbogori [2013]; while the Defendants proposed and award of Kshs. 100,000.00. 12.Having considered the submissions of the parties, I find an award of Kshs. 100,000.00 to be sufficient under this head and award the same. Loss of dependency: 13.The Plaintiffs’ case is that the deceased died at 26 years old leaving behind his wife, father and three children who are minors. From the letter of introduction, the minors are aged 8 years, 6 years and 3 years. It is also stated that the deceased was a driver with monthly income of Kshs. 30,000.00 at the time of death. The Plaintiffs in their submissions conceded that the deceased’s income was unascertainable and proposed an alternative minimum wage of a driver of Kshs. 27,352.40 and proposed a final award of Kshs. 10,560,000 or 9,628,044.80. 14.The Defendants on the other hand have proposed to the court to adopt a global award of Kshs. 1,000,000.00 while relying on Stanwell Holdings Limited & Company v Racheal Haluku Emanuel & Anor [2022] eKLR and Kwamboka (suing as a dependant and personal representative of the estate of Albert Nyabongoye Onchiri) v Okiro & anor [2024] KEHC 8442 (KLR). The Defendants also proposed an alternative minimum wage of a general worker of Kshs. 14,025.40 and proposed a final award of Kshs. 2,356,267.20 15.In High Plateau Limited v Namalwa & 2 others (Suing as the Administrators of the Estate of Alex Mafura (Deceased)) (Civil Appeal E146 of 2023) [2025] KEHC, the high court held that where there is no proof of income the global sum approach should be used as opposed to the multiplier approach. In reaching the foregoing holding, the court relied on the case of Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003 [2007] eKLR where it was held thus: -The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do. 16.Accordingly, since the Plaintiffs did not produce any evidence proving that the deceased was a driver or his monthly income, I therefore find that the global sum approach is the most suitable in the circumstances. The authorities on global sum award cited by the Defendants are not closely comparable to the instant case. 17.In High Plateau Limited v Namalwa & 2 others (Suing as the Administrators of the Estate of Alex Mafura (Deceased)) (Civil Appeal E146 of 2023) [2025] KEHC, the court applied a global sum of Kshs. 2,000,000.00 for loss of dependency where the deceased was 26 years old and had left behind a wife and 4 children. The held as follows:Noting that the deceased died at 26 years of age and left behind a young family, I have considered similar cases with almost similar circumstances as follows: -a.In Achenda & another (Suing as the legal representatives/administrators of the Estate of the Late Jophan Achenda) v West Kenya Sugar Company Ltd (Civil Appeal E004 of 2022) [2023] KEHC 18044 (KLR) (26 May 2023) (Judgment) Wananda J. set aside the award of Kshs. 1,506,117.60/= for loss of dependency and awarded a global sum of Kshs. 2,000,000/= for a deceased who was 29 years old.b.In Nancy Gesare Motari & Samwel Motari Motende (Suing as the Legal Representatives of the Estate of Motari Omanwa Dominic–Deceased) v Osano Simpson Nyambane, Civil Appeal No. E029 of 2024, Okwany J. set aside the award of Kshs. 1,800,000/= based on the multiplier approach and substituted it with a global sum of Kshs. 2,000,000/= for loss of dependency where the deceased died at 24 years of age and left behind a wife and two young children below 5 years old.c.In Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another [2020] eKLR the court reduced an award of Kshs. 2,000,000.00/= for Loss of Dependency (a global sum) to Kshs 1,000,000/= for the Estate of a 23-year-old deceased.Taking into account the age of the deceased, and the fact that he left behind four children and a wife, it is the view of this Court that a global sum of Kshs. 2,000,000/= would be sufficient under this head. 18.Accordingly, guided by High Plateau Limited v Namalwa & 2 others case hereinabove and the proposed award by the Defendants under this head, I find a global sum of Kshs. 2,100,000.00.00 to be sufficient award to the deceased’s estate; and award the same. Loss of Consortium: 19.The Plaintiffs’ submitted that the widow has suffered substantial loss of consortium arising from the deceased’s death and has been permanently deprived of the deceased’s companionship, affection, consortium, moral support and the mutual comfort that constituted the core of their marriage. That she now bears the sole responsibility of raising their children a burden previously shared with the deceased thereby significantly diminishing any realistic prospect of re-marriage. They therefore prayed for an award of Kshs. 200,000.00. They relied on Martha Muthoni Ndege (appealing as the legal representative of Stanley Ndege Gichuki – deceased) v Anthony Kamau Kambiriri [2019] KEHC 1567 (KLR). 20.The Defendants have objected to an award under this head stating that such damages can only be awarded to survivors of road traffic accidents or in peculiar circumstances where the widow stated she would not remarry. 21.The Court of Appeal case of Salvatore De Luca v Abdullahi Hemed Khalil & Another [1994] eKLR it awarded Loss of Consortium in a fatal accident claim; the Justices of Appeal held thus:So far as consortium is concerned, there is evidence that the appellant loved his wife and so did their children. The appellant has not re-married. No doubt, he had lost his wife’s companionship. There is, moreover, an impairment in the social life of the appellant and his young children who, too, have lost love, care and devotion of their mother. The learned judge clearly erred, in our view, in failing to award any damages for loss of consortium and servitium. Bearing in mind the fact that each case should be judged on its own facts, we would think that an award of Shs. 40,000/= is a fair measure for this head of damages and we award the appellant this sum with interest from the date of judgement in the superior court until payment in full. 22.The decision of the Court of appeal is binding on this court and to that extend an award of Kshs. 100,000.00 is made under this head. Special Damages: 23.It is trite law that special damages must be specifically pleaded and strictly proved, see the decision of the court of appeal in Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Company Ltd [2004] eKLR. 24.The Plaintiffs pleaded special damages The special damages were particularised as Kshs. 140,000.00 for funeral, post mortem and mortuary expenses; Kshs. 1,000.00 filing fees for grant ad litem; Kshs. 1,100.00 for motor vehicle search; Kshs. 50,000.00 fees for pursuing letters of administration all totalling to Kshs. 192,100.00. 25.The Plaintiffs produced the following receipts:Receipt by Fransisca & Chelangat Advocates for Kshs. 50,000.00NTSA receipt ref. no. 2YJABNM for Kshs. 550.00NTSA receipt ref. no. 2E4AKZZ for Kshs. 550.00Receipt No. RA-0805949 for Kshs. 1,000.00 26.The Plaintiffs have proved special damages of Kshs. 52,100.00 and I allow the same. Disposition: 27.In the upshot, judgment is hereby entered in favour of the Plaintiffs against the Defendants for: -a.Liability: 85%b.Pain and suffering Kshs. 70,000.00.c.Loss of life expectation Kshs. 100,000.00.d.Loss of dependency Kshs. 2,100,000.00e.Loss of consortium Kshs. 100,000.00f.Special damages Kshs. 52,100.00Sub-total Kshs. 2,422,100.00Less 15% contribution Kshs. 363,315.00Total Kshs. 2,058,785.00 28.The Defendants to pay interests at court rates from the date hereof until payment in full and costs of the suit. 29.It is so ordered. READ, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAROK THIS 30TH DAY OF JUNE, 2026.E. M. MUTUKURESIDENT MAGISTRATEIn the presence of:Ms. Jeptanui h/b for Chelangat for the Plaintiff.Ms. Amera h/b for Ms. Achieng for the Defendant.C/A Lewis