Kenya Red Cross Headquarters v Lomukereng (Suing as the Administrator of the Estate of Robinson Plimo Lomukereng) (Civil Suit E001 of 2024) [2025] KEMC 145 (KLR)
The bottom line
#A Kenya Red Cross appeal partly succeeded as the High Court cut a fatal accident payout to roughly Kshs.794,838 because the family proved neither the deceased's income nor full dependency.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate erred in apportioning liability in the ratio of 50:50 in favour of the Respondent
- 2.Whether the award of damages was inordinately high
Key legal issues
#Whether liability was correctly apportioned at 50:50
The appeal on liability failed; the equal apportionment was upheld because the evidence left it unclear who caused the accident
Neither PW1 nor PW2 witnessed the accident; the investigating officer did not blame either party and no sketch plan was proved. DW1's oral evidence contradicted his statement on the point of impact. If DW2 had swerved to the extreme left, the motorcyclist would have had space to pass. Applying common-sense causation principles and authorities holding that where neither side establishes the other's fault, liability is divided equally, the court affirmed the 50:50 apportionment.
Whether the dependency ratio of 2/3 was justified
Reduced to 1/3 because dependency by the child and siblings was not proved; only the mother's dependency was supported
The claim that the deceased had a child born out of wedlock and paid school fees for siblings was unsupported by evidence. Dependency being a question of fact, only PW1's own testimony of dependence on the deceased stood. Given the deceased was young, unmarried and newly employed, a 1/3 ratio was substituted for 2/3.
Whether the multiplicand based on a TSC salary was proved
The letter of offer was not proof of employment or income; the minimum wage of Kshs.13,573 was adopted
The letter of appointment dated 18/4/2019 was a mere offer with no evidence of acceptance or of the deceased taking up the job; a payslip or letter from the school would have supported it. With no proof of income, the minimum wage under the Regulations of Wages (General Amendment) Order was adopted, yielding loss of dependency of 13,573 × 28 × 1/3 × 12 = Kshs.1,520,176.
Whether special damages were proved
Only Kshs.19,500 was proved; the claim of Kshs.54,420.50 was unsupported by evidence of payment
Only an invoice (P.Ex.4(a)) was produced for the medical expenses of Kshs.54,420.50 with no evidence of payment, so that claim failed. Special damages must be both pleaded and specifically proved, leaving only Kshs.19,500 recoverable.
Whether the award under the Law Reform Act should stand in addition to the Fatal Accidents Act award
The Kshs.100,000 awarded under the Law Reform Act was deducted from the total to avoid duplication
Since the beneficiaries under the Law Reform Act and the Fatal Accidents Act are the same, awarding under both would amount to double compensation. Following Kemfro and Eliphas Mutegi Njeri, the award under the Law Reform Act was offset against the total.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence afresh and draw its own conclusions while allowing for the fact that it neither saw nor heard the witnesses
- Where the evidence leaves it unclear who caused a road traffic accident, liability is apportioned equally between the parties
- An appellate court will not disturb an award of general damages unless it is inordinately high or low or proceeded on wrong principles
- Damages under the Law Reform Act must be deducted from the total award to avoid double compensation where the beneficiaries are the same under both Acts
- Dependency is a question of fact that must be proved by evidence
- A letter of offer without evidence of acceptance is not proof of income; where income is unproved, the minimum wage is adopted as the multiplicand
- Special damages must be pleaded and specifically proved
Court orders
#- 1.Liability apportioned at 50:50 in favour of the Respondent
- 2.Loss of expectation of life: Kshs. 100,000.00
- 3.Pain and Suffering: Kshs. 50,000.00
- 4.Loss of dependency: Kshs. 1,520,176.00
- 5.Special damages: Kshs. 19,500.00
- 6.Award under the Law Reform Act (Kshs. 100,000.00) deducted from the total, leaving Kshs. 1,589,676.00
- 7.Less 50% contribution of Kshs. 794,838.00
- 8.The appellant will have ½ costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kapenguria Magistrates Court
- Civil Case No. 30/2021
- Jurisdiction invoked
- First appeal from the subordinate court to the High Court under its appellate jurisdiction
Relief refused
#Setting aside the judgment on liability and dismissal of the respondent's case
The court agreed with the trial magistrate that on the evidence it was not possible to tell who caused the accident, and equal apportionment was proper
Reduction of the multiplier from 28 years
A multiplier of 28 years was found reasonable
Costs
The appellant will have ½ costs of the appeal.
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.
In the end, I find that the appeal partially succeeds. The Respondent will have Judgment as follows Liability apportioned at 50:50 in favour of the Respondent.
The appellant will have ½ costs of the appeal.
It is an established principle of law that where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally liable.
An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
Dependency is always a matter of fact to be proved by evidence.
there being no proof of income, the court will adopt the minimum wage as per the Regulations of Wages (General Amendment) Order.
It is trite law that special damages must be pleaded and specifically proved.
Issues in the judgment
#The judgment inconsistently records the accident date and vehicle registration: the plaint and submissions indicate the accident occurred on 18/11/2019 involving motor vehicle KCM 250Y, while the testimony and police abstract refer to 21/10/2019 and motor vehicle KCM 205Y
The opening paragraph states the accident occurred at Satiya on the Ortum-Marich road while PW1 testified the accident occurred at Ortum on the Kitale-Lodwar Road
The arithmetic in the final award is internally inconsistent: the listed heads total Kshs.1,689,676 but the stated total of Kshs.2,749,790 less 50% in paragraph 2 does not correspond; also 'Special damages Kshs. 19,500,00' appears to be a typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Red Cross Headquarters v Lomukereng (Suing as the Administrator of the Estate of Robinson Plimo Lomukereng) (Civil Suit E001 of 2024) [2025] KEMC 145 (KLR)", Case Analysis (2025). Kapenguria Magistrates Court Civil Case No. 30/2021 (appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/145/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.