[2025] KEMC 97 (KLR)

Wanjau & another (Suing as the Administrators of the Estate of Charles Wanjau Murugi - Deceased) v Daneva Company Limited (Civil Suit E806 of 2024) [2025] KEMC 97 (KLR) (15 May 2025) (Judgment)

Neutral citation: [2025] KEMC 97 (KLR)

Republic of Kenya

In the Nakuru Law Courts

Civil Suit E806 of 2024

PA Ndege, SPM

May 15, 2025

Between

Josephine Wanjiru Wanjau

1st Plaintiff

Peter Mburu

2nd Plaintiff

Suing as the Administrators of the Estate of Charles Wanjau Murugi - Deceased

and

Daneva Company Limited

Defendant

Judgment

1. Charles Wanjau Murugi, deceased at the age of 40 years, was a tuk-tuk driver in Nakuru County. On or about the 3th June 2024, he was lawfully going on with his normal business of tuk-tuk driving when he was rammed onto by a fast-moving trailer owned by the defendant, where he died on the spot. As a result of the said accident and the resultant death, the plaintiffs now hold the Defendant liable, hence the instant suit.

2. By a Plaint dated the 5th of September, 2024, the plaintiffs (suing as the legal representatives of the estate of the deceased) sued the defendant for negligence which resulted in the death of the deceased who was their husband and brother, respectively. They are seeking damages under the Law Reform Act and the Fatal Accidents Act, damages for loss of consortium and/or servitum, special damages of Kshs. 266,300/-, costs of the suit, interest at the rate of 12% per annum on all the damages and costs herein and ‘any other relief that this Honorable Court may deem fit to grant’.

3. The defendant entered appearance and filed its Statement of Defence on 27/09/2024 traversing each and every allegation of fact and/or law made in the plaint and invited the plaintiff to strict proof to the contrary while also blaming the deceased herein for the accident. The plaintiff responded with a reply to the Defendant’s Statement of Defence dated 15/10/2024, reiterating the contents of the plaint. The matter was thus set for the hearing on 1/04/2025.

4. When the matter came up before me for the hearing on 01/04/2025, the plaintiffs were represented by Mr. Njuguna, while the Defence was represented by Mr. Ombeo. On that day, the parties herein entered an oral consent that was adopted to apply in this matter. The consent closed the hearing without calling any witness. Liability was agreed at a ratio of 85:15 in favour of the Plaintiff. All the documents filed by the plaintiff herein together with the witness statements were admitted as exhibits herein without calling their makers. The documents are: -i.Copies of the Plaintiffs’ Identity Cardsii.Chief’s letter dated 11/06/2024iii.Grant of Letters of Administration Ad-Litem.iv.Copy of Deceased’s Certificate of Death.v.Copy of Deceased’s Children Birth Certificate.vi.Copy of Post Mortem Report.vii.Police Abstract.viii.2 motor vehicle copies of Records.ix.Bundle of receipts/ paid invoicesx.Copy of deceased’s driving license.xi.Demand letter.

5. Parties thereafter closed their cases and the submissions were confirmed filed and exchanged, and this judgment was fixed for the 15/05/2025. The issue remaining for determination is the quantum of damages awardable herein.

Plaintiffs’ Submissions 6. On quantum, the plaintiffs submitted that they be awarded general damages amounting to Kshs. 80,000 for pain and suffering; Kshs 200,000 for loss of expectation of life, Kshs 2,934,352 for loss of dependency and Kshs 180,000/- for loss of consortium or servitum. They relied on numerous authorities to back their proposals. They further submitted for special damages of Kshs 266,300.

Defendant’s Submissions 7. Learned counsel for the defendant similarly relied on numerous authorities and proposed awards of Kshs. 10,000/- for pain and suffering, Kshs 100,000/- for loss of expectation of life, and Kshs 687, 719/20 for loss of dependency. On damages for loss of consortium and/or servitum, learned counsel submitted that the plaintiffs are not entitled to the same as the same is not provided for in law.

Analysis and Determination 8. The plaintiffs sought Kshs 266,300 as special damages. It is trite law that special damages must be specifically pleaded and proved. I find that the plaintiff has been able to prove that they spent Kshs. 195,200/- as funeral expense vide cash sale receipt from Kabaiya’s funeral services dated 11/06/2024 and an In-Patient receipt from Gilgil Sub-County Hospital dated 10/06/2024, being the mortuary fees. I further find that the plaintiff has been able to prove that they incurred expenses of Kshs. 70,000/- for legal costs for obtaining the grant ad-litem, vide a client/ office account receipt from J. Ndungu Njuguna & Co. Advocates dated 02/07/2024. There are also 2 invoices from the NTSA to prove that they incurred Kshs. 1100. 00 for motor vehicle search certificates. Their claim for Kshs. 266,300/- as special damages herein has therefore been proved to the required standard.

9. On general damages, in H West And Son Ltd Vrs Shepherd (1964) AC 326 the House of Lords in England stated that: -… but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional ...

10. In regard to the issue of damages awarded under the Law Reform Act, the High Court at Kakamega in West Kenya Sugar Co. Limited Vrs Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR 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.

11. As pointed out, money cannot renew the life of the deceased. However, the damages ought to be reasonable in the circumstances. Having found so, I will now address the extent of damages to award under the following heads.

General Damages Pain and suffering 12. The copies of both the death certificate and the postmortem report both indicate that the deceased died on the spot or instantly after the accident. Learned counsel for the plaintiff has proposed a sum of Kshs. 80,000 while the counsel for the defendant proposed Kshs. 10,000.

13. In the case of Sukari Industries Limited Vrs Clyde Machimbo Juma [2016] eKLR the deceased had died immediately after the accident and the trial court had awarded Kshs 50,000/= for pain and suffering. Majanja J held on appeal that:(5)On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.

14. Upon considering the fact that the deceased herein passed on instantly, I will go for the minimal award as awarded in the above case and considering the passage of time and inflation since the above decision was made, I do agree with the learned counsel for the plaintiff and do award the sum of Kshs 80,000/-.

Loss of expectation of life 15. In Mercy Muriuki & Another Vrs 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 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.

16. In the case of Moses Akumba & Another Vrs Hellen Karisa Thoya (2017) eKLR Chitembwe J rendered that an award of Kshs 200,000/= for loss of expectation of life for a deceased who was a fisherman was not inordinately high. He stated that:My view on the issues of loss of expectation of life is that each life is important and equal. There should be no distinction between a poor man and a rich one, no distinction between one who is working and un unemployed person. The awarded damages are for loss of expectation of life. The deceased was aged 25 years and a healthy person. He was a fisherman as per his mother’s evidence. The normal expectation is that he was going to live up to the age of 60 years. Whether he was going to get formal employment or not is not an issue. It is the aspect of that life having been cut short that is being considered. Due to the sudden death, the deceased’s life was shortened. All his expectations in this world were eroded. Having that in mind, we should then consider whether Kshs 70,000 is sufficient to compensate for that loss. We should not view the deceased as a simple fisherman whose expectation in life was limited to fishing. No one knows what tomorrow has for him. I do find that the award of Kshs 200,000 is fair and not inordinately high. The other dispute involves loss of dependency.

17. In the case of Patrick Kariuki Muiruri & 3 Others Vrs Attorney General [2018] eKLR Sergon J made an award of Kshs 200,000/= under this heading. In Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samwel Kiprotich Tanui (Deceased) VRS Mogogosiek Tea Factory Co Ltd & Another [2018] eKLR an award of Kshs 200,000/= was made.

18. The plaintiffs have proposed an award of Kshs 200,000 as damages for loss of expectation of life while the defendant has proposed Kshs. 100,000. Upon consideration, I will award a sum of Kshs 200,000/- under this head as proposed by the learned counsel for the plaintiffs. I have again relied on the above decisions and those cited by the learned counsel for the plaintiff and factored in the rise in the cost of living.

Loss of dependency 19. The deceased was 45 years old at the time of his untimely death and was supporting his family, being a spouse and children. The plaintiffs proposed a multiplier of 25, arguing that there is no retirement age for tuk-tuk drivers; and a dependency ratio of 2/3.

20. Learned counsel for the defendant, on the other hand, proposed a multiplier of 10 years while relying on the case oF John Simon Ashers & Anor. Vrs Nelson Okello Onjao, High Court Of Kenya At Kisumu Civl Appeal No. 49 OF 2018) where Justice Cherere applied a multiplier of 10 years for a deceased person who was 45 years old at the time of death.

21. The Court of Appeal in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) VRS Kiarie Shoe Stoores Limited [2015] eKLR held as follows: -This court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependents under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise. An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (cap 26) section 2(5) provides that the rights conferred by or for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words “to be taken into account” and “to be deducted” are two different things. The words in section 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss.

22. In the case of Moses Akumba & Another Vrs Hellen Karisa Thoya (2017) eKLR Chitembwe J rendered as follows:The trial court invoked the provisions of section 4 (1) of the Fatal Accident Act and was well guided on the applicable legal principles. The trial court found that the deceased had only two dependents – the parents. A multiplier of 30 years was adopted in my view that multiplier is a bit high. The award is for the benefit of those two parents who were aged 52 and 53 years respectively. What this means is that the two parents would have lived up to the age of 80 years and beyond. The concern for the award is not how long the deceased would have lived but the extent and length of the dependency. I do find that a multiplier of 20years would be sufficient. This would have extended the dependency to over 70 years. The trial court adopted a sum of Kshs 20,000 as the deceased’s salary each month. PW1 testified that the deceased was a fisherman earning between Kshs 1000 -1,500 daily. It is obvious that the allegation could not be backed by any record or documentation. The deceased was working informally. According to his mother, he had a fishing boat and the proceeds were from selling fish. Counsel for the appellant is of the view that the court should adopt the minimum wage of Kshs 4,577. 220. It is clear to me that the deceased was active in life. There is no legal principal that any unemployed person should be considered to have been earning the minimum wage. Someone running a retail shop, kiosk or an eatery could be earning more than the minimum wage. The court simply has to consider whether a fisherman can earn Kshs 5,000 each week in his fishing business. This is a possibility as it translates to about Kshs 800 each day. I do find that the estimate of Kshs. 20,000 by the trial court is not exorbitant. The trial court adopted 1/3 dependency ration which I find to be just. This is what the appellant is proposing. On this head of award, workout is as follows:20,000 x 20 x 12x 1/3 = 1,600,000.

23. In the instant case the deceased had 3 dependents, including one of the plaintiffs herein and 2 children. The widow, one of the plaintiffs herein, is now a single parent to the minors. The minors are approximately aged 10 and 15 years respectively. Relying on the above decision by Justice Chitembwe, I do find that a multiplier of 15 will be sufficient in this case. This will adequately and reasonably cover for the dependency of the deceased’s children. They still had a long way to go for them to at least become self-dependant.

24. In regard to the wages of the deceased, both parties herein do agree that we go by the minimum wages approach. However, relying on the decision of Justice Chitembwe hereinabove, I still do find that the Kshs. 18,339. 40 proposed by the learned counsel for the plaintiff as the multiplicand to be reasonable monthly earning or income for a tuk-tuk driver such as the deceased herein and I do therefore adopt the amount proposed by the plaintiffs as the deceased’s wage and a dependency ratio of 2/3. Considering the above findings, I therefore award for loss of dependency as follows:18,339. 40 x 12 x 15 x 2/3 = 2,200,728

Loss of Consortium and/or Servitum 25. The plaintiff pleaded this claim at paragraph 6 and sought for the same in prayer b of the Plaint. The totality of the plaintiff’s uncontroverted evidence is that the deceased’s wife is now a widow and lonely. She is sad and has lost warmth, companionship, love, comfort and enjoyment of all the incidence and happiness that flowed from her marriage and companionship with and/or to the deceased herein and as such, she has suffered loss of consortium and or servitum. It has indeed been established herein that the deceased was a man full of love and dedication. I thus do hereby find that the award is deserved. I have looked at the learned counsel for defendant’s submissions on the same. The decision in Innocent Ketie Mokaya Denge Vrs Peter Kipkore Cheserek & Another [2015] e KLR, which he relied on to oppose the award herein is a High Court decision. I however do find that the Court of Appeal in Salvatore De Luca Vrs Abdullahi Hemed Khalil & Another (1994) e KLR held that: -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 servitum.

26. In the instant case, the deceased’s wife prayed for loss of consortium and servitum. She has not remarried and it will be cruel for one to argue that she is free to remarry since her husband is already deceased. It is therefore true that she has lost and is therefore missing comfort and companionship as a result of the death of the deceased herein. The defendant says that the award is not provided in law. Whereas I do agree with its argument, this court is bound by the principle of stare decisis. The court of appeal having found as stated in the above-cited case, I am bound by the decision and relying on the case of Maina Stephen Mathu & 2 Others Vrs David Kanja Macharia & Another (Suing as the administrators of the state of James Gachoka Macharia (Deceased) (2019) e KLR, where an award of Kshs. 100,000/- under this head was upheld by the High Court in its judgment in the year 2019, and taking into account the 6 years that has lapsed since the said decision was made, economic changes and fall in value of the shilling, I do agree with the learned counsel for the plaintiff that a sum of Kshs. 180,000/= would suffice as adequate compensation under this head today, and do therefore award the same to the widow, who is one of the plaintiffs herein, and not the entire estate.

27. Accordingly, I hereby enter judgment in favour of the plaintiffs and against the defendant as follows:a.Special damages: Kshs 266,300/=b.General damagesi.Pain and suffering: Kshs 80,000/=ii.Loss of expectation of life: Kshs 200,000/=iii.Loss of dependency: Kshs 2,200,728/=iv.Loss of Consortium (for the widow): Kshs 180,000/=Gross Total Kshs 2,927,028/=Less 15% contribution Kshs 439,054/20Net Total Kshs 2, 487, 973/80

28. Costs follow the event. The plaintiffs shall have costs of the suit and interest on special damages at court rates from the date of filing the suit and interest on general damages at court rates from the date of judgment until payment in full.

DATED AND DELIVERED AT NAKURU THIS 15th DAY OF May 2025ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEIN THE PRESENCE OF:Plaintiffs’ Counsel: Kurere h/b NjugunaDefendant’s Counsel: Ombeo1st plaintiff: N/A2nd Plaintiff: N/AOmbeo: Praying for 45 days stay of executionKurere: 30 days will be sufficientOmbeo: 45 is okayCT: 30 days stay granted