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MagistratePartially AllowedCivil Case No 408 of 2017· [2022] KEMC 45 (KLR)

Nyabwari (Suing as the Administratrix of the Estate of the Late Evan Ogendo Morebu - Deceased) ((Suing as the Administratrix of the Estate of the Late Evan Ogendo Morebu - Deceased)) v Charles (Civil Case 408 of 2017) [2022] KEMC 45 (KLR)

Chief Magistrate's Court (Resident Magistrate), Kiambu
1 July 2022
2,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kiambu court awarded a widow Kshs 1.16 million after finding a driver fully liable for a fatal road accident, but reduced damages for unproven income and missing receipts.

What this practically means

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Executive summary

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The Plaintiff, the widow of Evans Ogendo Murebu, sued on behalf of his estate under the Law Reform Act and the Fatal Accidents Act for general and special damages arising from a road accident on 22/10/2016 along Gachie Karura Road, Kiambu, in which the deceased, riding motorcycle KMCZ 572H, was allegedly hit by motor vehicle KBK 284E driven by the Defendant. The Defendant denied negligence, asserting he was a good Samaritan who took the deceased to hospital and that his vehicle bore no accident damage. The Plaintiff called a police officer and the widow; the defence called the Defendant and a witness who was not at the scene. Applying the burden-of-proof framework in Sections 107-109 of the Evidence Act and the Quest Resources line of authority, the court found the Plaintiff had discharged the legal burden, shifting the evidential burden to the defence. The Defendant's assertions of reporting the accident and of a vehicle inspection were unsupported by any produced records, and DW2's evidence carried no weight on liability. The Defendant was found 100% liable. On quantum, the court awarded Kshs 50,000 for pain and suffering (the deceased died five days after the accident), Kshs 100,000 for loss of expectation of life for a 29-year-old deceased, and a global Kshs 1,000,000 for loss of dependency, the multiplier approach being unsuitable because the deceased's commission-based earnings were unproved. Special damages of Kshs 12,500 were proved by invoice; the Kshs 100 Police Abstract claim failed for want of a receipt. Total award: Kshs 1,162,500 with costs and interest at court rates. Judgment was delivered at Kiambu on 1 July 2022 by Resident Magistrate S.K. Motari.

Key legal issues

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01

Liability for the fatal road accident

Holding

The Defendant was found 100% liable; the Plaintiff discharged her legal burden and the evidential burden shifted to the Defendant, who failed to rebut it.

Reasoning

The Police Abstract and PW1's testimony established an accident involving the deceased's motorcycle and the Defendant's vehicle. The Defendant claimed he was a good Samaritan and that his vehicle was inspected and found undamaged, but the police records did not corroborate this; the Defendant produced no exhibits and the O.B extract he relied on was never produced. DW2 was not present at the scene, so his evidence carried no weight on liability.

p. 3
02

Quantum - pain and suffering and loss of expectation of life

Holding

Kshs 50,000 awarded for pain and suffering (deceased died 5 days after the accident, so did not die on the spot) and Kshs 100,000 for loss of expectation of life (deceased aged 29).

Reasoning

Damages for pain and suffering are assessed on the period between injury and death; although the certificate of death recorded death on 27/10/2016 and PW2 suggested the same date, the deceased clearly did not die on the spot and must have suffered pain. A conventional sum is awarded for loss of expectation of life; the court followed a High Court award of Kshs 100,000 for a 31-year-old deceased.

p. 4
03

Quantum - loss of dependency

Holding

A global award of Kshs 1,000,000 was made rather than a multiplier assessment, because the deceased's earnings were not proved.

Reasoning

The deceased was survived by a widow and four minor children, but the claimed commission earnings of Kshs 63,000 per month were supported only by oral evidence with no documentary proof. Citing Albert Odawa v Gichimu Githenji, the court held the multiplier approach unsuitable where earnings are unknown, and adopted the global approach, guided by Put Sarajevo Gen. Eng. Co. Ltd v Esther W. Njeri where a similar global award of Kshs 1,000,000 was made for a 29-year-old deceased.

p. 4
04

Special damages

Holding

Only Kshs 12,500 of the pleaded Kshs 12,600 was awarded; the Kshs 100 Police Abstract claim failed for lack of a receipt.

Reasoning

Relying on Hahn v Singh, the court applied the rule that special damages must be specifically pleaded and strictly proved. The invoice from University of Nairobi Enterprises Services Ltd for storage of the deceased proved Kshs 12,500, but no receipt was produced for the Police Abstract fee.

Legal principles established

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  • The legal burden of proof in negligence lies with the plaintiff, but once a plaintiff lays prima facie evidence of an accident, the evidential burden shifts to the defendant to rebut it.
  • Special damages must be both specifically pleaded and strictly proved before they can be awarded.
  • The multiplier approach to assessing loss of dependency may be abandoned where earnings are unproven; a global award is then appropriate.

Court orders

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  1. 1.Liability entered at 100% against the Defendant
  2. 2.General damages: pain and suffering Kshs 50,000
  3. 3.General damages: loss of expectation of life Kshs 100,000
  4. 4.General damages: loss of dependency Kshs 1,000,000 (global award)
  5. 5.Special damages Kshs 12,500 (Police Abstract claim of Kshs 100 not proved and disallowed)
  6. 6.Total judgment of Kshs 1,162,500
  7. 7.Plaintiff to have costs of the suit and interest at court rates

Authorities

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Legislation

  • Law Reform Actcapitulated (fatal injury claims - pain and suffering, loss of expectation of life)
  • Fatal Accidents Actgeneral (measure of damages for dependants)
  • Evidence Act Cap 80 Laws of KenyaSections 107, 108 and 109

Cases cited (9)

  • Quest Resources Limited v Japan Port Consultants Limited
    [2015] eKLR
  • Winfred Nyawira Maina vs. Peterson Onyiego Gichana
  • Raila Odinga vs. IEEBC & 3 Others
    [2013] eKLR
  • Cecilia Rachier & Esther Olwalo vs Floyd Peter Raval
    [2001] KLR
  • R K O & Another vs Kenya Power & Lighting Company Ltd
    [2015] KLR
  • Gilbert Kimatare Nairi & another (Suing as personal representative of the Estate of Jackline Sein Lemayian (Deceased) v Civiscope Limited
    [2021] eKLR
  • Albert Odawa -Vs- Gichimu Githenji
    Nakuru HCCA No.15 of 2003 (2007), eKLR
  • Put Sarajevo Gen. Eng. Co.Ltd v Esther W. Njeri & Johnson Mwangi Gucha (Suing as the Legal Representative of the Estate of Sylvester Muhia Gucha (Deceased) & 2 others
    [2014] eKLR
  • Hahn V. Singh
    Civil Appeal No. 42 Of 1983 [1985] KLR 716
Jurisdiction invoked
Original civil jurisdiction in a fatal accident claim brought under the Law Reform Act and the Fatal Accidents Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyabwari (Suing as the Administratrix of the Estate of the Late Evan Ogendo Morebu - Deceased) ((Suing as the Administratrix of the Estate of the Late Evan Ogendo Morebu - Deceased)) v Charles (Civil Case 408 of 2017) [2022] KEMC 45 (KLR)", Case Analysis (2022). Civil Case No 408 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/45/eng@2022-07-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.