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MagistratePartially AllowedNot stated in the judgment· [2025] KEMC 119 (KLR)

Kimani & another (Suing as the Personal Representative of the Deceased) v Macharia & another (Civil Case 722 of 2021) [2025] KEMC 119 (KLR)

Chief Magistrate's Court (Nakuru)
20 February 2024
ANA. P Ndege
1,372 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nakuru court awarded a family Ksh.743,877 for a fatal road accident, but cut claims that lacked evidence and receipts.

What this practically means

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Executive summary

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This was a fatal accident suit brought by plaint dated 30th July 2021 and filed on 11th August 2021 by Tabitha Wanjiku Kimani and Samuel Kariuki Kiarie, personal representatives of Patrick Mbugua Kiarie, who died two days after being knocked down by a vehicle owned by the 1st defendant and driven by the 2nd defendant. On 2nd October 2023 the parties recorded a consent on liability at 90:10 in favour of the plaintiffs and agreed to adopt documents and statements without calling their makers, leaving only quantum for determination. The plaintiffs filed submissions; the defendants did not. On dependency, the court noted the deceased was a 39-year-old businessman but that there was no proof of his earnings and no statements from the dependants; it distinguished Jacob Ayiga Maruja and followed Beatrice W. Murage, holding that the minimum wage and multiplier methods were inappropriate and awarded a global Ksh.800,000/= for loss of dependency. Under the Law Reform Act, the court awarded Ksh.150,000/= for pain and suffering, finding the deceased endured prolonged pain before death, and Ksh.200,000/= for loss of expectation of life. Relying on John Wamae, it held the Ksh.350,000/= Law Reform Act award was adequately factored into the Fatal Accidents Act award, so general damages were set at Ksh.800,000/=. Special damages of Ksh.25,780/= were awarded for receipted funeral expenses, the police abstract and motor vehicle record items being unproved. Loss of amenities, care, guidance and companionship was dismissed for want of proof. Judgment was entered for Ksh.743,877/= net of the 10% contribution, with costs and interest to the plaintiffs, and a 45-day stay of execution was allowed as agreed.

Key legal issues

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01

Proof of earnings and dependency

Holding

With no proof of the deceased's earnings and no statements from the dependants, the minimum wage and multiplier methods do not apply and a global sum of Ksh.800,000/= was awarded for loss of dependency

Reasoning

The deceased was a 39-year-old businessman with six dependants, but there was no documentary or other proof of his income and none of the dependants filed statements. The court found the decision in Jacob Ayiga Maruga of no assistance on these facts and instead followed Beatrice W. Murage, holding that the minimum wage cannot apply to a trader beyond employment age with no proof of earnings. The global formula method was therefore adopted and a global award of Ksh.800,000/= made.

p. 2
02

Pain and suffering under the Law Reform Act

Holding

Ksh.150,000/= awarded because the deceased endured prolonged pain and suffering for two days before death

Reasoning

The death certificate showed the deceased died two days after the accident, enduring extreme pain. Relying on Sukari Industries, higher damages are warranted where pain and suffering is prolonged. Counsel proposed Ksh.150,000/= and the court agreed, finding that sum fair and sufficient. The court noted the appellate court in Kenya Red Cross upheld Ksh.100,000/= for pain and suffering.

p. 3
03

Loss of expectation of life

Holding

Ksh.200,000/= awarded as proposed by counsel, there being no evidence of the deceased's prior state of health

Reasoning

The deceased died at 39 years. No evidence was tendered as to his state of health before death. Counsel proposed Ksh.200,000/= and the court agreed and awarded the same. This head, together with pain and suffering, totalled Ksh.350,000/= under the Law Reform Act, which the court later held had been factored into the Fatal Accidents Act award.

p. 3
04

Relationship between Law Reform Act and Fatal Accidents Act awards

Holding

Applying Justice Kariuki's interpretation in John Wamae, the Ksh.350,000/= under the Law Reform Act was adequately factored into the Ksh.800,000/= under the Fatal Accidents Act, so only Ksh.800,000/= was awarded as general damages

Reasoning

The court relied on John Wamae & 2 Others v Jane Kituku Nziva & Another to hold that the Law Reform Act award need not be added on top of the Fatal Accidents Act award where it is adequately factored in. This avoided double recovery and resulted in a single global damages figure of Ksh.800,000/=. This is a ratio on the deduction/factoring approach to concurrent statutory heads.

p. 3
05

Special damages

Holding

Ksh.25,780/= awarded for funeral expenses as pleaded; the police abstract and motor vehicle record items of Ksh.750/= were unproved

Reasoning

Receipts proved funeral expenses exceeding the amount claimed, but parties are bound by their pleadings, so only the pleaded Ksh.25,780/= was awarded. No proof supported the Ksh.200/= police abstract or Ksh.550/= motor vehicle records items. Loss of amenities, care, guidance and companionship was dismissed for want of proof since no dependant testified.

p. 3

Legal principles established

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  • Where the occupation and earnings of the deceased are not proved, the global formula method of assessing loss of dependency is appropriate rather than the multiplier method or the minimum wage
  • Dependency is a matter of fact that must be proved by evidence; a claimant must show that they were dependent on the deceased and to what extent
  • An award under the Law Reform Act that has been adequately factored into the award under the Fatal Accidents Act need not be added separately
  • Nominal damages are awarded for pain and suffering where death occurs immediately after the accident; higher damages where pain and suffering is prolonged

Court orders

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  1. 1.General damages of Ksh.800,000/= awarded for loss of dependency
  2. 2.Special damages of Kshs.26,530/= awarded
  3. 3.Gross total of Kshs.826,530/= less 10% contribution, net total Kshs.743,877/= entered in favour of the plaintiffs against the defendants
  4. 4.Costs of the suit and interest at court rate awarded to the plaintiffs
  5. 5.45 days stay of execution allowed as agreed by the parties

Authorities

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Legislation

  • Fatal Accidents ActCap 32
  • Law Reform ActCap 26

Cases cited (6)

  • Jacob Ayiga Maruja & Another - Versus - Simon Obayo
    (2005) eKLR
  • Beatrice W. Murage - Vs - Consumer Transport Ltd & Another
    (2014) eKLR
  • Abdalla Rubeya Hemed - Vs - Kayuma Mvurya & Another
    (2017) eKLR
  • Sukari Industries - Vs - Clyde Machimbo Jume
    HCCA No.68 of 2015 (2016) eKLR
  • Kenya Red Cross - Vs IDS (suing as the legal representative of the estate of MDR (deceased)
    (2020) eKLR
  • John Wamae & 2 Others - Vs - Jane Kituku Nziva & Another
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a fatal accident claim under the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26)

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, "Kimani & another (Suing as the Personal Representative of the Deceased) v Macharia & another (Civil Case 722 of 2021) [2025] KEMC 119 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/119/eng@2025-02-20

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