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MagistratePartially AllowedNot stated in the judgment

Makau & another (Suing as the Administrators of the Estate of the Late Makau Mulatya - Deceased) v Dwa Estate Limited (Civil Case E051 of 2022) [2025] KEMC 325 (KLR)

Magistrates' Court (Kenya)
23 December 2025
7,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kenyan court halved a family's fatal accident compensation because the deceased motorcyclist shared equal blame with the lorry driver.

What this practically means

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Executive summary

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This is a first-instance fatal road-traffic accident claim decided by Senior Principal Magistrate Y.A. Shikanda, with judgment dated 23 December 2025. The plaintiffs, as legal representatives of the estate of Makau Mulatya, sued Dwa Estate Limited alleging that its driver negligently drove lorry registration number KCE 839Q along the Kibwezi-Kitui road and crushed the deceased, a motorcyclist, on 1 July 2021 at Kalamba. The defendant denied the claim and blamed the deceased. Three plaintiffs' witnesses testified, including an eyewitness (PW 3), while the defendant's driver (DW 1) blamed the deceased for swerving into his lane. The court framed four issues: blame for the accident, entitlement to damages, quantum, and costs. On liability, the court reasoned from the undisputed point of impact on the extreme left of the road and the damage to the left headlamp area, concluding that neither party's version fully explained the collision; the deceased turned right without ensuring safety while DW 1 failed to take evasive action. Applying Baker v Market Harborough, Lakhamshi v Attorney General and Mwatha v Owuor, the court apportioned liability equally, fixing the defendant at 50% vicariously liable given the admitted course of employment. On quantum, the court awarded Ksh. 100,000 for pain and suffering, Ksh. 120,000 for loss of expectation of life, Ksh. 1,500,000 as a global loss-of-dependency award, Ksh. 80,350 funeral expenses and Ksh. 550 special damages, totalling Ksh. 1,800,900, reduced by 50% contribution to Ksh. 900,450. Interest was awarded on general damages from judgment and on funeral expenses and special damages from filing suit, together with half the costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Who between the deceased and the driver of the defendant's motor vehicle was to blame for the accident?
  2. 2.Whether the estate of the deceased and his dependants are entitled to damages
  3. 3.If so, the nature and quantum thereof
  4. 4.Who should bear the costs of this suit?

Key legal issues

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01

Liability for the road traffic accident

Holding

Both the deceased and the defendant's driver were negligent; liability apportioned equally at 50% each, with the defendant vicariously liable for its driver

Reasoning

The court analysed the point of impact on the extreme left of the road facing Kitui direction and found that neither party's version fully explained the impact point. The deceased must have made a right turn without proper calculation of distance, while the defendant's driver failed to slow down or take evasive action. Photographs showing damage to the left headlamp area supported the inference that the deceased had already turned when struck. Drawing on Baker, Lakhamshi and subsequent Kenyan authority, liability was apportioned equally.

p. 7
02

Vicarious liability of the defendant

Holding

The defendant, as owner and employer of the driver, was 50% vicariously liable for the accident

Reasoning

It was admitted and not in dispute that DW 1 was driving the motor vehicle in the course of his employment with the defendant at the material time. Applying the doctrine of respondeat superior and the presumption of agency in Kenya Bus Services Ltd v Humphrey and Kansa v Solanki, the defendant was fixed with vicarious liability for its driver's share of the negligence.

p. 9
03

Quantum of damages under the Law Reform Act and Fatal Accidents Act

Holding

Awards of Ksh. 100,000 for pain and suffering, Ksh. 120,000 for loss of expectation of life, Ksh. 1,500,000 global award for loss of dependency, Ksh. 80,350 funeral expenses and Ksh. 550 special damages

Reasoning

The deceased died about 30 minutes after the accident, justifying Ksh. 100,000 for pain and suffering as proposed by the plaintiffs. He died aged 66; comparables at Ksh. 100,000 were uplifted for inflation to Ksh. 120,000 for loss of expectation of life. Dependency of adult children required no age-cap proof; a global award of Ksh. 1,500,000 was appropriate given the multiplier method was unsuitable. Funeral expenses of Ksh. 80,350 were awarded as prayed notwithstanding absence of receipts.

p. 11
04

Proof of special damages

Holding

Special damages of Ksh. 550 for a motor vehicle records search awarded as it was specifically pleaded and proved by receipt

Reasoning

The court restated the rule from Hahn v Singh and Ouma v Nairobi City Council that special damages must be specifically pleaded and strictly proved. Since a receipt supported the claim for the motor vehicle search, the Ksh. 550 claimed was awarded.

p. 13
05

Interest on damages

Holding

Interest on general damages from date of judgment; interest on funeral expenses and special damages from date of filing suit

Reasoning

Relying on section 26 of the Civil Procedure Act, Jane Wanjiku Wambui v Anthony Kigamba Hato and the Ugandan Supreme Court decision in Omunyokol Akol Johnson v Attorney General, the court held that special damages attract interest from the date of loss/filing suit while general damages, being ascertained only at judgment, attract interest from the date of judgment until payment in full.

p. 14

Legal principles established

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  • The burden of proving negligence lies on the plaintiff, who must adduce evidence to prove particulars of negligence pleaded, on a balance of probabilities
  • Where the evidence on a road traffic accident is insufficient to fix blame on either party, the court may apportion liability equally; where both parties are negligent but blame cannot be distributed, it is divided equally
  • An employer/owner is vicariously liable for the negligence of a driver driving in the course of employment, with a rebuttable presumption of agency where the vehicle is driven by a person other than the owner
  • Special damages must be specifically pleaded and strictly proved
  • Interest on special damages runs from the date of loss, while interest on general damages runs from the date of judgment

Court orders

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  1. 1.Damages for pain and suffering of Ksh. 100,000/=
  2. 2.Damages for loss of expectation of life of Ksh. 120,000/=
  3. 3.Damages for loss of dependency of Ksh. 1,500,000/=
  4. 4.Funeral and related expenses of Ksh. 80,350/=
  5. 5.Special damages of Ksh. 550/=
  6. 6.Total award of Ksh. 1,800,900/= less 50% contribution, leaving a balance of Ksh. 900,450/= due to the plaintiffs
  7. 7.Interest on general damages (pain and suffering, loss of expectation of life and loss of dependency) at court rates from the date of judgment/decree until payment in full
  8. 8.Interest on funeral expenses and special damages from the date of filing suit to the date of judgment/decree
  9. 9.Half the costs of the suit to the plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YS
Y.A. ShikandaSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a fatal road-traffic negligence claim under the Fatal Accidents Act and Law Reform Act

Relief refused

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50% of the total damages claimed

Liability apportioned equally between the deceased and the defendant's driver, so the plaintiffs recover only half the damages

p. 8

Funeral expenses beyond the pleaded Ksh. 80,350/=

The plaintiffs did not properly plead and prove a higher figure; the court awarded only the nominal figure as prayed

p. 12

Costs

Plaintiffs awarded half the costs of the suit, with interest on damages as set out in the disposition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It was admitted that DW 1 was driving the motor vehicle in the course of his employment with the defendant. Consequently, I find the defendant 50% vicariously liable for the accident.
p. 9Vicarious liability and apportionment
It is trite law that special damages must be specifically pleaded and strictly proved.
p. 12Proof of special damages
Given the age of the authorities and the vagaries of infiation, I agree with the plaintifis that an award of Ksh. 1,500,000/= would sufice. I award the same.
p. 11Loss of dependency - global award
In summary, I find that the plaintifis have proven their case on a balance of probabilities against the defendant. Consequently, I hereby make the following awards in favour of the plaintifis:
p. 13Disposition - finding on liability and awards
The plaintifis are also awarded interest on the damages as well as half the costs of the suit.
p. 13Final orders - interest and costs

Issues in the judgment

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minor

The judgment inconsistently records the motor vehicle registration number, stating KCE 838Q in the list of undisputed facts although the pleadings and the rest of the judgment use KCE 839Q

minor

The court found both parties negligent and apportioned blame equally, while also stating that the plaintiffs proved their case on a balance of probabilities against the defendant, a formulation that requires reconciliation with the 50% apportionment

minor

The judgment in the disposition computes the total as Ksh. 1,800,900/= but the components (100,000 + 120,000 + 1,500,000 + 80,350 + 550) sum to Ksh. 1,800,900/=, while the printed total appears as 'Ksh.1 800,900/=' with a typographical spacing error

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, "Makau & another (Suing as the Administrators of the Estate of the Late Makau Mulatya - Deceased) v Dwa Estate Limited (Civil Case E051 of 2022) [2025] KEMC 325 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/325/eng@2025-12-23

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