[2023] KEHC 26173 (KLR)

YE & 3 others v Munuhe (Civil Case 2 of 2020) [2023] KEHC 26173 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26173 (KLR)

Republic of Kenya

In the High Court at Lodwar

Civil Case 2 of 2020

RN Nyakundi, J

December 4, 2023

Between

YE

1st Plaintiff

AA

2nd Plaintiff

JEY

3rd Plaintiff

IYE (Suing Through her Father and Next of Friend YE)

4th Plaintiff

and

Norman Munuhe

Defendant

Judgment

1. The Plaintiffs in this case approached the Court vide a Plaint dated 17/8/2020 and filed in Court on 18/8/2020 seeking for special damages, general damages, costs of the suit as well as interest. The Plaintiffs herein alleged that on 5/11/2017, they were travelling as a lawful passengers aboard motor vehicle registration number KBE 627E, driven along Kapenguria- Lodwar road when the Defendant drove so recklessly and in a negligent manner causing the said motor vehicle to veer off the road and crush and as a result of which they sustained fatal injuries. The Plaintiffs blame the Defendant for the said accident and the loss suffered. The Defendant was duly served but never entered appearance.

The Plaintiff’s Case 2. PW1 Yusuf Ewoi, adopted his written witness statement dated 20th July, 2022 as his evidence in Chief. He also produced his bundle of documents marked as PExh A1-13, PExh B1-B6 and C1- C5. He stated that he is father of the late YEAE and the late RYE and the holder of letters of administration ad litem over their respective estates. He further stated that he is the father of the 3rd and 4th Plaintiffs and the husband of the 2nd Plaintiff. He added that he is suing his on my own behalf and further as administrator on behalf of their respective estates in terms of letters of administration ad litem issued to him prior to the filing of this suit. He also stated that he suing as the next friend of my daughter the 4th Plaintiff who is a minor.

3. He maintained that at all material times the defendant has been the owner and operator of a Toyota Landcruiser motor vehicle registration number KBE 627E. He stated that on the 5th day of November 2017 his two deceased sons, the 2nd Plaintiff, the 3rd Plaintiff and the 4th Plaintiff were all lawful passengers aboard the motor vehicle, as it was travelling along the Kapenguria-Lodwar Road when it was driven in so reckless and negligent a manner by the defendant that it veered off the road and crashed in a self-involving accident. He further stated that on the material day he escorted them to board the vehicle and asked the Defendant who was also driving the vehicle to ensure the tyres of the vehicle had sufficient air pressure as they seemed to be low. He stated that he received his assurance that all would be checked but came to learn later that day from a telephone call from his wife , the 2nd Plaintiff herein that the vehicle had crashed after he lost control of it while it was being driven at a high speed.He outlined the particulars of negligence as follows;

4. a.Driving the motor vehicle at a speed that was manifestly excessive in the circumstances.

5. b.Failing to stop, swerve, slow down or otherwise control the motor vehicle so as to avoid the accident.

6. c.Driving in a reckless manner with no regard to the safety and welfare of passengers

7. He stated that as a result of the said accident two of his deceased sons sustained fatal injuries whereas the 2nd Plaintiff, the 3rd Plaintiff and 4th Plaintiff sustained grievous injuries. He added that he found his injured family at the hospital. He outlined the particulars of the injuries as follows;

8. a.YEAE: fatal head injury trauma

9. b.RYE: fatal head injury trauma

10. c.AA: right hand laceration, soft tissue injury to the head and chest

11. d.JEY: soft tissue injuries to the face, fracture right femur

12. e.IYE: soft tissue injury to mouth causing loss of two teeth

13. He further stated that the Defendant was charged before the Kapenguria Principal Magistrate’s Court in Traffic Case No. 55 of 2018 with the offences of causing death by dangerous driving and careless driving and was after full trial convicted on all counts in a judgement delivered on 6th, February, 2019.

14. He added that his late son YEAE died at the age of 22yrs old while he was a student at the Rift Valley Institute of Science and Technology at its Nakuru campus pursuing a course in Information Technology after obtaining a D score at his KCSE exams which he sat while at G Academy, Nakuru. He maintained that the deceased was a diligent student and expressed to me his wish to complete his studies and obtain a job in the information technology field, a result I am confident he would have achieved had he not been tragically killed in the road accident. He further stated that his son RY Ewoi died at the age of 10yrs while he was a student at G Schools, Nakuru in class 4. He also maintained that the deceased was a diligent student whose reports from his teachers indicated he worked hard and was constantly improving his results and had expressed to him, his desire to become a medical doctor, a result his confident that he would have achieved had he not been tragically killed in the road accident.

15. He stated that his claim against the Defendant is for special damages and for general damages for pain and suffering, for loss of amenities and for loss of expectation of life respectively. He outlined the particulars of special damages as follows;

16. a.Funeral and burial expenses Kshs.360,000. 00

17. b.Cost for medical report from Dr. Paul K. Rono Kshs.20,000. 00

18. c.Cost for medical report from Dr. Collins Koech Kshs.6,000. 00

19. d.Costs for attendance from Dr. Paul K. Rono Kshs.5,000. 00

20. e.Cost for attendance from Dr. Collins Koach Kshs. 2,000. 00He also prayed for costs for the suit.

21. PW2 JEY, adopted his written witness statement filed on 21th July, 2022 as his evidence in Chief. His evidence is that on 5th November, 2017, he was with his two deceased brothers, his mother and sister aboard the suit motor vehicle as it was travelling along Kapenguria – Lodwar road when it was driven so recklessly and in a negligent manner by the Defendant that it veered off the road and crashed in a self-involving accident.

22. He stated that after they had boarded the suit motor vehicle in Kitale, he recalled that before their departure, his father pointed out to the Defendant who was there driver that the tyres appeared not to have enough pressure but the driver just ignored his father. He added that after departing they travelled some distance before the said motor vehicle was stopped by the traffic police where he heard the police officer ask the Defendant whether he was confident that he would reach his destination and he told them that he was used to the journey. He stated that upon proceeding further with their journey and as they approached Kamatira, he noticed that the Defendant was having difficulty controlling the motor vehicle which was moving at an excessive speed. He further stated that shortly thereafter the Defendant lost control of the vehicle which veered suddenly off the road and at that point he lost consciousness and woke up to find himself in hospital in Kapenguria and in great pain having sustained injurie on his face and had a broken leg. He later learnt that his mother and sister were injured in the said accident and that two of his brothers had lost their lives.

23. He added that he had also testified in Court in Kapenguria Principal Magistrate’s Court in Traffic Case No. 55 of 2018 where the Defendant was charged with four counts of causing death by dangerous driving and was convicted on all counts.

24. PW3 Dr. Paul Kipkorir Rono, testified that he practices under the licence No. (xxxx). He further stated that he works at St. Luke’s Hospital on part-time basis. He told the Court that he attended to a patient known as Jamal Echukule Yusuf and prepared a medical report which he produced as exhibit PExh B3 and was paid Kshs.10,000. =. He further testified that he had prepared and signed the P3 form and was paid KShs.6,000/=.

25. He also stated that he had examined Amina Ali and prepared a medical report which he produced as PExh. B5 and was paid Kshs.10,000/=.

26. PW4 Dr. Koech Kipkirui, testified that he is a resident doctor at Lodwar Hills Hospital. He told Court that he recalled examining Amina Ali and prepared a medical report dated 27/11/2021 which he produced as PExh PB1. He further told Court that the patient paid Kshs.6,000/= to Lodwar Hills Hospital and was issued with a receipt which he produced ad PB2

The SubmissionsThe Plaintiffs on 12/6/2023 filed their submissions dated 5/6/2023. 27. With regards to the question of liability, Counsel for the Plaintiffs, Mr. Okero submitted that no defence evidence was tendered and no rebuttal made of the 3rd Plaintiff’s eye-witness evidence of how the accident occurred. Counsel added this together with the 1st Plaintiff's evidence provided of the Defendant's conviction, on charges of causing death by dangerous driving and of careless driving and established a preponderance of evidence proving that the defendant was fully liable for the accident on account of his negligence. This court is urged to so find the defendant 100% liable.

28. With regards to quantum of general damages, Counsel submitted that the 1st Plaintiff claims for both his deceased sons under both the Fatal Accidents Act for damages for pain and suffering and the Law Reform Act for lost years accruing to their respective estates. Counsel added that for his claims under the Fatal Accidents Act, given that the death certificates record both Yusuf Esukuku Abubakar and Ramadhan Yusuf as having died at the hospital and not at the scene of the accident, they endured some degree of suffering before their demise and as such should receive an ward for pain and suffering each of Kshs.150,000. 00 making it a total of Kshs.300,000. 00 under this heading. Counsel cited the case of Dadson Maina Mwangi v Simon Ngichiri Mwaka & Another ( Suing as the Legal representatives of the Estate of Grace Wambui Ngichiri [2020] eKLR with regards to the award of pain and suffering.

29. Counsel submitted with regard to the Claims under the Law Reform Act, as YEA (Deceased) and RY (Deceased) were ambitious young students destined to lives as professionals the following awards for loss of expectation of life be made for each estate. Counsel submitted that since Yusuf Esukuku Abubakar (Deceased) was aged 22 at his death and was a student in information systems with a promise of a career in that field ahead of him in which he could have worked from the age of 25 until the age of 60 earning an average KShs.30,000. 00 per month. With a multiplicand of 35 years and applying the 1/3rd rule to compute loss of dependency it is submitted that an appropriate award would be KShs.4,200,000. 00. Counsel added that Ramadhan Yusuf (Deceased) was aged 10 at his death and was a diligent student on class 4,good at sciences for whom his teachers had high expectations. He had ambitions to be a medical doctor which he likely would have achieved to then earn KShs.50,000 per month from the age of 25 to 60. With a multiplicand of 35 years and applying the 1/3rd rule to compute loss of dependency it is submitted that an appropriate award would be KShs.7,000,000. 00. Counsel cited the case of Dadson Maina Mwangi (supra) in that regard. 30. Counsel added that as for the 2nd Plaintiff, she suffered traumatic soft tissue injuries that have left her with a scar on her right forearm and misalignment of her lumbar vertebrae that will require expensive surgery, pain management therapy as well as orthopaedic and physiotherapy clinic support. Appropriate awards to her would be in the sum of KShs.400,000. 00 for the arm and spine injuries as the 2021 decision of the High Court at Nyamira in Nyamira Luxury v Daniel Hangai Gegoyo [2021] eKLR.

31. Counsel further submitted the 3rd Plaintiff suffered traumatic soft tissue injuries leaving scars on his head, abdomen ad upper limbs ad fractured femur reduced internally for which subsequent surgery to remove plates and screws will necessary. Counsel argued that appropriate awards for that matter would as follows; As for the soft tissue injuries, the sum of KShs.200,000. 00 which accords with the current trend as shown in the 2022 decision of the High Court at Kisii in Andrew Momanyi Omwenga v Erick Siambe Mokaya [2022] eKLR; for the fractured femur the sum of KShs.800,000. 00 which would accord with the trends shown by the High Court decisions in Pestony Limited another v Samuel Itonye Kagoko [2022] eKLR and Kiautba v Ntarangwi [2022] KEHC 10595(KLR);and for the corrective surgery the sum of KShs.300,000. 00. Counsel submitted that the principle for making an award for future medical expenses was recognised in Kihara another v Mutuku [2022] KEHC 15626 (KLR)

32. Counsel submitted that in regard to the 4th Plaintiff given that her injury was traumatic soft tissue to her cheek and a loss of a tooth which she recovered from completely save for a right infraorbital scar, an appropriate award to her would be Kshs.200,000. 00 for the soft tissue injuries which accords with the current trend as shown in the 2022 decision of the High Court at Kisii in the Andrew Momanyi Omwenga decision (supra).

33. In view of the special damages herein, Counsel submitted that other than for the future medical costs stated hereinabove the following documents were produced into evidence:- a computation of costs supporting his claim for KShs.360,000. 00 in funeral and burial expenses for the 1st Plaintiff’s deceased sons and receipts issued by Dr. Paul Rono and by Lodwar Hills Hospital for the cost of medical examinations and preparation of reports and for the attendances by the experts in all aggregating Kshs.33,000. 00.

34. In conclusion, Counsel urged the Court to find the defendant fully liable for the accident, to enter judgment against him accordingly for all the Plaintiffs and to award damages against the Defendant as follows: -

35. a.For the 1st plaintiff the sum of KShs.300,000. 00 under the Fatal Accidents Act and KShs.11. 2 million under the Law Reform Act.

36. b.For the 2nd Plaintiff, the sum of Kshs.400,000. 00 for pain and suffering and Kshs.1,500,000. 00 for future medical expenses

37. c.For the 3rd Plaintiff, the sum of Kshs.1,000,000. 00 for pain and suffering and Kshs.300,000. 00 for future medical expenses.

38. d.For the 4th Plaintiff, the sum of Kshs.200,000. 00 for pain and suffering.

39. Counsel further urged the Court to award the Plaintiffs the costs of the sui and interest at court rates accruing on both costs and the awards from the date of the judgment and until payment in full.Analysis and Determination

40. I have considered the uncontroverted testimonies of the Plaintiffs’’ witnesses and the documents produced. I have also considered the written submissions of the Plaintiffs’ Counsel.The issues for determination are as follows:-a.Whether the Defendant is to blame for the occurrence of the accidentb.If the answer to issue (a) is yes, then are the Plaintiff entitled to any compensation?

41. From the evidence tendered, it is no is dispute that on 5th November, a road accident occurred involving motor vehicle registration number KBE 627E said to have been driven and owed by the Defendant and as a result of which the 1st Plaintiff herein lost two of sons whereas the 2nd, 3rd and 4th Plaintiffs sustained severe injuries. The Defendant herein failed and or neglected to enter appearance and file his defence having been served with summons to enter appearance. On a balance of convenience, I am satisfied that the accident was caused by the sole negligence of the Defendant who was both the driver and owner of the motor vehicle. I cannot find any reason to come to a finding that the Plaintiffs who were passengers contributed to the occurrence of the accident.In the circumstances, the Plaintiffs have proved their case on liability to the required standard. I will enter judgment for him on liability at 100%.I will now determine the quantum of damages.

42. With regard to pain and suffering, Counsel urged the Court to award Kshs.300,000/= to the 1st Plaintiff for both his deceased sons. Counsel also urged the Court to award the 2nd Plaintiff, 3rd Plaintiff and 4th Plaintiff Kshs.400,000/=, 1,000,000/= and 200,000/= respectively for pain and suffering.

43. In regard to the issue of damages awarded under the Law Reform Act, the Court in Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, observed 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.” (emphasis added).

44. Paragraph 883 in Halsbury’s Laws of England 4th Edition Vol. 12 (1) page 348 states as follows: -“Pain and suffering damages are awarded for physical and mental distress caused to the plaintiff, both pre-trial and in the future as a result of the injury. These include the pain caused by the injury itself, and the treatment intended to alleviate it the awareness of and the embarrassment at the disability or disfigurement or suffering caused by anxiety that the plaintiff’s condition may deteriorate. It follows that, therefore, that the award for pain and suffering is intended to compensate the plaintiff for the anguish he has endured as a result of the accident whether physical or mental.”

45. In the present case there is no doubt that that the 1st Plaintiff’s two deceased sons endured pain and suffering before their demise. I am guided and persuaded by the two death certificates produced in evidence by the Plaintiffs that indicate that the deceased died at Kapenguria Hospital. In the circumstances, I fid the award of Kshs.150,000/= for each of the deceased sons to be appropriate.

46. From the Plaint, the injuries sustained by the 2nd, 3rd and 4th Plaintiffs were outlined as follows;a.Amina Ali: right hand laceration, soft tissue injury to the head and chestb.Jamal Echukule Yusuf: soft tissue injuries to the face, fracture right femurc.Isir Yusuf Ewoi: soft tissue injury to mouth causing loss of two teeth

47. Save for the fracture of the right femur suffered by the 3rd Plaintiff the other injuries sustained by the 2nd and 4th Plaintiffs were soft tissue injuries. In the case of Kenya Power & Lighting Co. Ltd & another v Kathuo Muthangya [2018] eKLR where the respondent sustained a fracture to the left tibia and fracture to the left fibula the court awarded Kshs. 600,000/=. Similarly, in the case of Benuel Bosire v Lydia Kemunto Mokora [2019] eKLR the court awarded Kshs. 700,000/= for a respondent whose injuries it classified as multiple serious soft tissue injuries and a compound fracture and who it noted was admitted in hospital for 42 days. In Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR the Respondent therein sustained a cut wound on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. The Court set aside the finding by the Subordinate Court that awarded Kshs 350,000/- on general damages and substituted it with an award of Kshs 140,000/-. In Washington Mukunya Karanja & another v Margaret Wambui Maina [2020] eKLR in which the High Court sitting on appeal upheld the sum of Kshs.300,000/= awarded on general damages to a Plaintiff with swelling of upper part of mouth, alveolar fracture of both incisor teeth, soft tissue injuries on right leg and a superficial wound.

48. In light of the above cases even were this Court to take inflation into account the award of Kshs.400,000/= and Kshs.1,000,000/= as damages for pain and suffering are excessive in my view. From the evidence tendered in terms of various medical reports it is clear that the 2nd , 3rd and 4th Plaintiffs herein majorly suffered soft tissue injuries with no permanent disability. With that said, I therefore proceed to award the 2nd Plaintiff Kshs. 300,000/= as general damages for pain and suffering, the 3rd Plaintiff Kshs.500,000/= as general damages for pain and suffering and lastly Kshs.150,000/= to the 4th Plaintiff as general damages for pain and suffering.

49. With regard to loss of expectation of life and loss of dependency, Counsel for the Plaintiffs seemingly seemed to have confused the two headings in that while he highlighted the issue of loss of expectation of life his arguments were solely tired on the appropriate award under loss of dependency.

50. Be as it may, the conventional award for loss of expectation of life is Kshs. 100,000/=. I will therefore award Kshs.200,000/= for the two deceased sons.

51. In his submissions Counsel urged the Court to adopt the multiplicand approach in determining the award under this heading. Counsel further urged the Court to adopt the multiplicand of Kshs.30,000 with respect to YEA (Deceased) and a multiplier of 25 years while applying the ratio of 1/3 to sum up the award to Kshs.4,200,000/=. Counsel argued that at the time of his death the deceased herein was 22 years and was a student pursuing information system with a promising career and would have worked until the age of 60 and would have earned an average salary of Kshs.30,000/=. With regard to RY (Deceased) Counsel argued that at the time of his death he was 10 years and further that he was a diligent student and was in Class 4 and was good at sciences and had ambitions to become a medical doctor. Counsel added that as a medical doctor the deceased would have earned an average of Kshs.50,000/= per month and would have worked up to the age of 60 thus making the multiplier 35 years. Counsel urged the Court to adopt the ration of 1/3 bringing the total sum on loss of dependency to Kshs.7,000,000/=.

52. In this particular case while appreciating that the deceased herein were ongoing students, no evidence can support Counsel’s analogy when it comes to their speculative earnings or career choices for that matter. In my view the multiplier approach cannot be effective in this case and thus the Court herein will adopt a global sum for the two deceased sons. The Court is guided by the following cases; in Albert Odawa vs. Gichimu Gichenji [2007] eKLR), cited with approval the case of Mwanzia v Ngalali Mutua & Kenya Bus Service (Msa) Ltd & Another, where Hon. Ringera, J took the view that:“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.”

53. This reasoning was adopted in Mary Khayesi Awalo & Another v Mwilu Malungu & Another ELD HCCC NO. 19 of 1997 [1999] eKLR where Nambuye J., stated that: -“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. 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.”

54. Similarly, in John Wamae & 2 others v Jane Kituku Nziva & another [2017] eKLR, the Court held as follows:“It is therefore not clear as to what the deceased did for a living. In my view, allocating the deceased an occupation on which to base the minimum wage would amount to speculation…. I am of the considered view that the award of the trial Court should be set aside. A lump sum of Kshs. 400,000/= as general damages will be sufficient in the circumstances of this case.”

55. In Daniel Mwangi Kememi & 2 Others v JGM & Another [2016] e KLR the court (Gikonyo J) awarded KShs.1,000,000/= for loss of dependency where the deceased child was aged Nine (9) years, a bright student who was always in position one to three in their class and expressed her desire to be a doctor upon completion of her education but all her dreams were shattered by the untimely deaths.

56. In view of the above, the Court awards the 1st Plaintiff under this heading Kshs.2,500,000/= with respect to Yusuf Esukuku Abubakar(Deceased) and further awards him Kshs. 1,000,000/= with respect to Ramadhan Yusuf (Deceased).

57. On special damages Counsel submitted on future medical expenses, funeral and burial expenses and costs of medical reports and attendances.

58. I will first address the issue of future medical expenses. Under this heading, Counsel urged the Court to award Kshs.1,500,000/= to the 2nd Plaintiff and Kshs.300,000/= to the 3rd Plaintiff respectively.

59. The Court of appeal in Tracom Limited & v Hasssan Mohamed Adan [2009] eKLR held as follows: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd v Gituma [2004] 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.” We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

60. In the plaint at paragraph 11 the Plaintiffs pleaded for special damages. The Plaintiff herein further at paragraph 11. 1 stated that the particulars of special damages were to be particularized and adduced in evidence at trial. However, in the 1st Plaintiff’s witnesses statement adopted as his evidence in Chief he stated at paragraph 8 that he shall seek leave at the hearing for the amendment of paragraph 11 of the plaint to be amended in the following terms is respect of special damages;

61. a.Funeral and burial expenses Kshs.360,000. 00

62. b.Cost for medical report from Dr. Paul K. Rono Kshs.20,000. 00

63. c.Cost for medical report from Dr. Collins Koech Kshs.6,000. 00

64. d.Costs for attendance from Dr. Paul K. Rono Kshs.5,000. 00

65. e.Cost for attendance from Dr. Collins Koach Kshs. 2,000. 00

66. With the foregoing in mind it is evident that the although the 2nd and 3rd Plaintiff submitted on the issue of future medical expenses the same was never pleaded in the Plaint and thus cannot be awarded by this Court. Future medical expenses are special damages which not only ought to be pleaded but also specifically proved. I therefore, decline to make an award under this heading.

67. With regard to funeral expenses, there was no dispute that there was a funeral following the death of the two deceased sons. The 1st Plaintiff stated that Kshs.360,000/= was used for the funeral expenses.

68. In Premier Diary Limited v Amarjit Singh Ssagoo & Another [2013] eKLR the Court of Appeal took the view that:-“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 but or otherwise inter that their 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 than 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.”

69. Similarly, in Capital Fish Kenya Limited v The Kenya Power and Lighting Company Limited [2016] eKLR:-“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. However, the claim herein did not fall in that class.”

70. Further in the case of JNK (Suing as the Legal Representative of the Estate of MMM (Deceased) v Chairman Board of Governors Boys High School [2018] eKLR Gikonyo J. having made reference to the above case held:-“In spite of lack of receipts, this court ought not to turn a blind eye to the fact that there were funeral costs incurred as a result of the burial of the deceased.”

71. Applying the principles, the foregoing cases, it is prudent to acknowledge that the 1st Plaintiff did incur funeral costs which he has pleaded at Kshs. 360,000/=. I am of the considered opinion that the sum of Kshs.360,000/= is just and reasonable for burial expenses and that it ought to be awarded.

72. As for the medical expenses incurred the Plaintiffs pleaded Kshs.33,000/=and adduced receipts to support the said award. This further supported by the uncontroverted evidence by PW3 and PW4 who confirmed to Court that they had indeed examined the 2nd and 3rd Plaintiffs herein.

73. In the end the Court herein enters judgment in favour of the Plaintiffs in the following terms:

74. i.Liability..............................................................100%

75. ii.Pain and Suffering for the 1st Plaintiff...................Kshs.300,000/=

76. iii.Loss of expectation of life.......................................Kshs.200,000/=

77. iv.Loss of dependency for the 1st Plaintiff ................Kshs.3,500,000/=

78. v.General damages for the 2nd Plaintiff............... …...Kshs.300,000/=

79. vi.General damages for the 3rd Plaintiff...................Kshs.500,000/=

80. vii.General damages for the 4th Plaintiff.....................Kshs.200,000/=

81. viii.Funeral and burial expenses ................................Kshs.360,000/=

82. ix.Special damages .....................................................Kshs.33,000/=

83. x.Net award............................................................Kshs.5,393,000/=

84. xi.Plus, costs and interest of the Suit.It is so ordered.

PARA 85.

DATED, SIGNED AND DELIVERED VIA E-MAIL AT LODWAR THIS 4TH DAY OF DECEMBER 2023. .....................R. NYAKUNDIJUDGE