https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/168

Moses & Gasta (Suing as the Administrator of the Estate of John Dennis Osilo Deceased) v P.N Mashru Ltd (Civil Suit E026 of 2025) [2026] KEMC 168 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEMC 168 (KLR) Republic of Kenya In the Malaba Law Courts Civil Suit E026 of 2025 AZ Ogange, RM June 24, 2026 Between Wandera Amos Moses & Osilo Paul Gasta (Suing as the Administrator of the Estate of John Dennis Osilo Deceased) Plaintiff and P.N Mashru Limited Defendant Judgment 1.Vide a Plaint dated 6th August 2025, the Plaintiff instituted this Suit against the Defendant herein and sought that judgment be entered for special damages totaling to Kshs. 150,800/=, general damages under the fatal accident and law reforms act, costs of the suit and interest on (i) and (ii) above. 2.The brief facts of the case are that on or about the 16th day of June 2025 at around 2100hours the deceased was lawfully walking along Malaba-Bungoma Road when the Defendant’s driver so negligently controlled motor vehicle registration number KDM 934S and trailer Registration No. ZB9093 in a reckless manner that it violently knocked the deceased and in consequence whereof the deceased sustained serious injuries from which he succumbed. 3.The suit is opposed vide a Statement of Defense dated 16th October 2025 wherein the Defendant denies the Claim in its entirety including locus standi of the Plaintiff to institute this suit. 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. That further without prejudice the accident was inevitable, an act of God, unforeseeable and beyond control of the defendant. 4.The Plaintiff has filed a Reply to Statement of Defense dated 30th October 2025 reiterating contents of the Plaint and denying the particulars of negligence as enumerated in the defence. 5.This matter came up for hearing on 11th March 2026 when Mr. Shikhu Counsel for the Plaintiff and Mr. Wanjala Counsel for the Defendant entered into a consent on liability with the same being apportioned in the ratio 80:20 in favor of the Plaintiff against the Defendant. 6.The Plaintiff called one Osilo Paul Gasta who adopted his witness statement dated 6th August 2025 as his evidence in chief and produced documents as per his list of documents as Exhibits 1 to 18. 7.On cross-examination he testified that the deceased was his younger brother. He could not tell how much he was earning prior to his demise and that he had no proof of his earnings. That the deceased died on the same day of the accident but he was not at the scene and could not tell after what duration the accused person died. 8.This marked close of the Plaintiff’s case. The defendant equally closed its case without calling any witnesses. Parties were granted leave to file submissions and the court reserved the matter for judgment on 24th June 2026. Both counsel have filed submissions which I have read and considered. Issues for Determination Special Damages 9.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.” 10.I note that the Plaintiff has sought for a total of Kshs. 150,800/= which has been pleaded at paragraph 9 of the Plaint and proven by way of receipts produced as PEXH 3, 6, 9, 7, 13 and 15. The Defense in submissions concede to the damages having been proven by way of receipts. To this end, it is the finding of the court that the prayer for special damages has sufficiently been pleaded and proven and is allowed as prayed. Quantum a. Pain and Suffering 11.The Plaintiff through his counsel has submitted that an award of Kshs. 50,000/= is sufficient under this head. The defendant on the other hand submits that a sum of Kshs. 10,000/= would be sufficient under this head. 12.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, 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. 13.Having carefully considered the submissions of counsel, precedent cited in submissions of both 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 14.The Plaintiff in submissions has proposed an award of Kshs. 300,000/= with the defence submitting that an award of Kshs. 100,000/ would be sufficent. 15.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. 16.Having considered, the submissions of counsel, authorities cited therein and guided by the authority hereinabove, I find that an award of Kshs. 120,000/= is sufficient and reasonable. a. Loss of dependency 17.The Plaintiff’s counsel has submitted that an award of Kshs.7,200,000/= would be sufficient in this case. Defence Counsel submits that an award of Kshs. 778,550.40/= is sufficient under this head. 18.I have considered the pleadings, the evidence on record and the rival submissions of counsel. The evidence tendered was less that satisfactory, The Plaintiff admitted that he did not know the exact nature of the deceased’s work and therefore could not credibly establish the alleged monthly income of Kshs. 30,000/=. In the circumstances, the multiplicand approach would lacka factual foundation. Further, although it was alleged that the deceased was survived by a wife as well as his parents who depended on him, neither his wife nor the parents testified to demonstrate the extent of such dependency. However, two birth notifications were produced as exhibits 9(a) and 9(b) showing that the deceased was survived by two minor children born in 2014 and 2023. Their minority gives rise to a reasonable inference of dependency. Consequently, while dependency by the adults was not proved, the court is satisfied that dependency was established in respect of the two minors only warranting an award under the Fatal Accidents Act. 19.The High Court in Ngila & another v Musili & another (Suing as Legal Representative of the Estate of the late Isika Musili) (Civil Appeal 67 of 2019) [2022] KEHC 12991 (KLR) (21 September 2022) (Judgment) in circumstances akin to this one where no proof if income was availed used the global approach on award of damages and in considering a long line of decisions held as follows:-24.(c)Loss of dependency under Fatal Accidents ActLoss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act which provides:‘‘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.’’25.The applicable principles used to calculate the loss of dependency are: -i.Multiplicand –These dependents under Fatal Accident Act on the income of deceased prior to death.ii.Multiplier –These dependents on the age of deceased and the number of years lost.iii.Dependency Ratio-This depends on ratio of support given to dependants.26.The proceedings show that the deceased was a boda boda rider and though he was said to be earning Kshs. 1,500 per day there was no evidence to prove his actual earning. In cases where the income of a deceased is uncertain, courts are more inclined to award a global figure since it would be unfair to use an uncertain figure as multiplicand when the income cannot be ascertained.27.In this matter the trial court found that the deceased must have been earning around Kshs. 10,000 per month and used of 33 years as the deceased was aged 22 years when he met his death. The trial court also dependency ratio of 2/3. The trial court adopted a multiplier approach yet there was no evidence of how much the deceased earned. That in my respectful view was speculative and to that extent the trial court fell into error.28.Mabeya J in Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri [2020] eKLR stated as follows on dealing with situations where proof of income is not presented to the court;‘‘ All that documentary evidence does is to give the Court an estimation of the actual income a person derives from his economic activities. Where there is no such documentary evidence, the Court should then resort to the principle of lump sum.In Albert Odawa versus Gichimu Githenji [2007] eKLR, Koome J (as she then was) quoted Ringera J in Mwanzia versus Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another wherein he stated: -‘The multiplier approach is just a method of assessing damages. It is not a principle of law or 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 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”.Because of the inexactitude in ascertaining the income of the deceased, the trial Court was right in resorting to the lump sum principle.However, in resorting to the lump sum principle, a trial Court should be guided by the age of a deceased, the expected length of dependency and the estimated income. The award should not be so inordinately high or low as to be a wrong estimate of damages.’’29.The same principle was adopted in Mary Khayesi Awalo & Another versus Mwilu Malungu & Another ELD HCCC No. 19 of 1997 [1999] eKLR where Nambuye J., (as then was) stated that: -‘‘As regards the income of the deceased there are no bank statements showing his earnings. Both counsels(sic) have made an estimate of the same using no figures. In the courts opinion that will be mere conjuncture. 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.’’30.The best approach in this instant would have been to give a global figure and that is common approach taken by many Courts.31.Ngaah J in John Mwangi Macharia v Jeniffer Keiya Mutegi [2020] eKLR awarded global sum of Kshs 900,000/- on this head to an 18 year old boda boda rider who died from injuries sustained from a traffic road accident. It was submitted in this case that the deceased supported his mother and gave her Ksh 500/- per day for her upkeep. He was also not married.32.Patrick J.O Otieno J in Joseph Muthuri versus Nicholas Kinoti Kibera [2022] eKLR also set aside an award on this head and replaced with a global figure of Kshs 1,000,000/- The deceased was 19 years old at the time of his death. The court held as follows;‘‘Although the deceased herein was a student at the time of his death, it would reasonably be expected that he would finish his studies, get into the job market and support his father. I will therefore adopt a global figure to assess the damages payable under this head. Taking into account the evidence that was adduced in court that the deceased was a healthy young man, enjoying robust life, but also considering the uncertainties and vicissitudes of life, I will award Kshs. 1,000,000 for loss of dependency.’’33.In the case cited by the Appellant of Bon Ton Ltd vs Beatrice Kanaga suing as Administrator of the estate of Richard Olembi Ochenga [2018] eKLR a motor cycle rider was awarded Kshs. 800,000.34.Going by the above decisions which are comparable to this present case, an award of Kshs. 900,000 would be just and fair in my considered view given the fact that boda boda riders face risks of accidents and even health given the conditions or environment of their work. 20.Further, the court in Bomet Water & Sanitation Company v Langat (Suing as the legal representative of the Estate of Walter Cheruiyot Langat (Deceased) (Civil Appeal E044 of 2023) [2024] KEHC 11268 (KLR) (25 September 2024) (Judgment) in taking a similar approach led as follows:-61.On the issue of loss of dependency, Section 4 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, parents and the child if the person, whose death 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 cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct.62.The Appellant submitted that the award of Kshs 4,544,640/= by the trial court was manifestly excessive. It proposed that this court uses the multiplicand Kshs 7,240.95/= as per the Regulation of Wages (Amendment) Order, 2018. It further proposed that this court uses the dependency ratio of 1/3 and a multiplier of 20 years which would bring the award to a total of Kshs 579,276/=. On the other hand, the Respondent submitted that the trial court was correct in using the multiplicand of Kshs 18,936/= being the minimum wage at that time for light van drivers within Bomet Municipality. She further proposed that this court adopts a multiplier of 30 years and a dependency ratio of 2/3 which would bring the award to a total of Kshs 3,257,280/=63.I have considered the pleadings and it was stated by the Respondent that the deceased was a boda boda rider and his approximate income was Kshs 1,000/= per day. The same was pleaded in the Amended Plaint. I have found no evidence from the Respondent that the deceased earned Kshs 1,000/= per day from his boda boda business.64.Courts normally use two systems in determining loss of dependency, one is the multiplier approach where a party has presented evidence of income and the other is the global sum approach where there is no evidence of income. In the case of Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs Gichumu Githenji (2007) eKLR, Ringera J. (as he then was) made the following observation:-“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.”65.Similarly in the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) (2016) eKLR, Ngaah 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……….”66.In determining an award under this head, I have considered the parties’ proposals under this head, the fact that the deceased died aged 25 years old and the fact that the deceased was survived by a widow (PW1) and two children, all of whom would be reasonably assumed were school going children. Having considered the above, it is my finding that an award of Kshs 3,000,000/= would be reasonable compensation under this head. 21.The deceased died at the aged 0f 33 years and was described as farmer and businessman. Taking into account his age, the uncertainties regarding income, the limited proof of dependency, comparable awards in similar cases, the court awards Kshs. 1,000,000/= for loss of dependency. Conclusion. 22.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: -a.Liability is apportioned in the ratio 80:20 in favor of the Plaintiff against the Defendantb.Special Damages- Kshs. 150,800/=c.Pain and Suffering- Kshs. 40,000/=d.Loss of expectation of life- Kshs. 120,000/=e.Loss of dependency- Kshs. 1,000,000/=Total Amount- Kshs. /= 1,310,800Less 20% Contribution- Kshs. 262,160Net award-Kshs. 1,048,640/=f.Costs of the suitg.Interest on (b) from the date of filing of suit until payment in fullh.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 24TH DAY OF JUNE, 2026.A.Z. OGANGERESIDENT MAGISTRATEIn the Presence ofMr. Shikhu for the PlaintiffMr. Wanjala for the DefendantCourt Assistant: Paul Otieno