Wanjiku (Suing as the Administrator and Personal Representative of the Estate of Gladys Mwende Kahuthia - Deceased) v Buscar EA Limited (Civil Case 167 of 2018) [2025] KEMC 61 (KLR)
The bottom line
#A Kenyan court awarded a crash victim's family Ksh. 1.85 million after the vehicle owner failed to show up and contest the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an accident occurred on 25/4/2017 at Kalulu area along Mombasa-Nairobi Highway involving motor vehicle registration number KCF 555Z and KBR 730S/ZD 8658
- 2.Whether the deceased herein was a passenger in motor vehicle registration number KCF 55Z
- 3.Whether the deceased was injured in the accident
- 4.Whether the defendant was the owner of motor vehicle registration number KCF 555Z
- 5.Whether the driver of the said motor vehicle was negligent
- 6.Whether the defendant is vicariously liable for the negligence of the driver of the accident motor vehicle
- 7.Whether the estate of the deceased and his dependants are entitled to damages
- 8.If so, the nature and quantum thereof
- 9.Who should bear the costs of this suit
Key legal issues
#Whether the defendant's driver was negligent
The doctrine of res ipsa loquitur applied; the driver was found 100% liable in negligence
The deceased was a passenger with no control over the vehicle. PW2's uncontroverted testimony established that the driver overtook carelessly and collided with an oncoming vehicle. The vehicle was under the driver's management, the accident was of a kind not ordinarily occurring with proper care, and the defendant adduced no evidence to rebut the prima facie inference of negligence.
Whether the defendant was vicariously liable
The defendant, as proven owner of the accident motor vehicle, was 100% vicariously liable
The police abstract and copy of records proved the defendant's ownership, unrebutted by any defence evidence. Where a vehicle is driven by someone other than the owner, a rebuttable presumption of agency arises; the defendant did not attend court to deny agency, so the presumption stood and liability attached.
The appropriate method of assessing loss of dependency absent proof of earnings
The multiplier approach was inappropriate as speculative; a global award of Ksh. 1,500,000/= was made
The deceased was a self-employed businesswoman with no documentary proof of earnings. The court surveyed conflicting High Court authority on multiplier versus global award approaches and adopted the global sum, considering the deceased's age, her two dependants, statutory deductions and the vicissitudes of life.
Whether funeral expenses could be awarded without strict proof
Funeral expenses of Ksh. 80,000/= awarded as claimed despite absence of receipts
Sections 2(2)(c) of the Law Reform Act and 6 of the Fatal Accidents Act permit recovery of funeral expenses. The court may assess such expenses without insisting on strict proof as with special damages, taking into account the deceased's status in society, even absent receipts.
Whether special damages of Ksh. 25,585/= were payable
No award made for want of strict proof
Special damages must be specifically pleaded and strictly proved. Although some copies of receipts were filed alongside the plaint, none were produced in evidence, so the claim for letters of administration, copy of records and postage costs failed.
Legal principles established
#- The burden of proving negligence rests on the plaintiff even where the case proceeds by formal proof
- Res ipsa loquitur applies where the accident is of a kind that does not ordinarily occur without negligence and the defendant offers no explanation
- A rebuttable presumption of agency arises where a motor vehicle is driven by a person other than the owner
- Where the multiplicand cannot be ascertained with precision, courts may make a global award for loss of dependency instead of applying the multiplier approach
- Funeral expenses may be awarded under the Law Reform Act or the Fatal Accidents Act without strict proof
- Interest on special damages runs from the date of loss; interest on general damages runs from the date of judgment
Court orders
#- 1.Judgment entered in favour of the plaintiff against the defendant
- 2.Damages for pain and suffering of Ksh. 70,000/=
- 3.Damages for loss of expectation of life of Ksh. 200,000/=
- 4.Damages for loss of dependency of Ksh. 1,500,000/= (global award)
- 5.Funeral and related expenses of Ksh. 80,000/=
- 6.Grand total award of Ksh. 1,850,000/=
- 7.Interest on damages under the Law Reform Act and the Fatal Accidents Act at court rates from the date of judgment/decree until payment in full
- 8.Interest on funeral expenses from the date of filing suit to the date of judgment/decree
- 9.Costs of the suit awarded to the plaintiff
- 10.No award made for special damages of Ksh. 25,585/= for want of strict proof
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a fatal accident and negligence claim (pleaded under the Law Reform Act and the Fatal Accidents Act)
Relief refused
#Special damages of Ksh. 25,585/= (costs of obtaining letters of administration, copy of records and postage fee)
No receipts were produced in evidence; special damages must be specifically pleaded and strictly proved
Costs
Costs of the suit awarded to the plaintiff ('The plaintiff is also awarded interest on the damages as well as costs of the suit.')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I hereby enter judgment in favour of the plaintifi against the defendant and make the following awards
Damages for pain and sufiering.................Ksh. 70,000/=
Grand Total..................................Ksh.1,850,000/=
Consequently, interest on the damages under the Law Reform Act and the Fatal Accidents Act shall accrue at court rates from the date of judgment/decree until payment in full and on funeral expenses, from the date of filing suit to the date of judgment/decree.
Consequently, I find the driver of motor vehicle registration number KCF 555Z 100% liable in negligence for the accident.
I Consequently, I find the defendant 100% vicariously liable for the accident.
I find that the multiplier approach would not be appropriate as the same would be speculative. In the circumstances, I will adopt the global sum approach.
Issues in the judgment
#Plaint is internally inconsistent as to dates - it is described as dated 6/1/2022 but 'filed in court on 9/7/2018 but filed on 13/7/2018'
Inconsistent registration number for the accident vehicle in places - 'KCF 555Z' versus 'KCF 55Z'
Judgment refers to the plaintiff as the deceased's husband but the plaint describes the plaintiff as personal representative while the deceased's brother was held not to be a proper dependant without reconciling the relationship
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiku (Suing as the Administrator and Personal Representative of the Estate of Gladys Mwende Kahuthia - Deceased) v Buscar EA Limited (Civil Case 167 of 2018) [2025] KEMC 61 (KLR)", Case Analysis (2025). Not stated in the judgment (plaint dated 6/1/2022, filed 13/7/2018, Makindu). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/61/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.