Muinde & another (Suing as the legal administrator of the Estate of Evaline Kambua Muthoka - Deceased) v Ngumba & another (Civil Case E078 of 2023) [2026] KEMC 66 (KLR)

Although no eyewitness testified, the police abstract showed the 1st defendant was convicted of careless driving after pleading guilty, and the deceased was a mere passenger with no negligence attributed to her. Relying on section 47A of the Evidence Act and Court of Appeal authority on passenger claims and res ipsa loquitur, the court held the conviction and unchallenged abstract sufficient to establish negligence, with no third party proceedings against the other vehicle's driver.

Ownership was established by the police abstract and motor vehicle search certificates, uncontradicted by any evidence. Where a vehicle is driven by a person other than the owner, a rebuttable presumption of agency arises under respondeat superior as articulated in Morgan v Launchbury and Kenya Bus Services Ltd v Humphrey. The defendants adduced no evidence to rebut the agency presumption, so vicarious liability followed.

The deceased was a salon businesswoman with no proof of exact earnings. The court surveyed conflicting High Court approaches (multiplier versus global award) and authorities including Mwanzia v Ngalali and Moses Mairua Muchiri, concluding that insisting on the multiplier where the multiplicand cannot be ascertained would sacrifice justice on the altar of methodology. It adopted a global sum considering the deceased's age, two dependants (one a minor) and statutory deductions.

Following Kemfro Africa Ltd v Lubia (No 2) and Hellen Waruguru Waweru v Kiarie Shoe Stores, and sections 2(5) of the Law Reform Act and 4(2) of the Fatal Accidents Act, the court held the Law Reform Act award is a factor to be taken into account, not mathematically deducted. Duplication arises only where the beneficiaries are the same, and the trial court need only show it bore the LRA award in mind.

The court analysed the Stamp Duty Act and held that an 'instrument' under the Act does not include a receipt, which is separately defined; the applicable provisions (sections 86-88) place the duty to stamp receipts on the receiver of money, not the payer. Following Milkah Wanjiku Muthea and Crispus Karanja Njogu, and since the receipts were admitted without objection, unstamped receipts did not defeat the claim.

The record showed the defendants entered appearance on 19/6/2023 and filed a joint statement of defence on 20/6/2023, yet interlocutory judgment was entered on 3/7/2023 on the ground they had not entered appearance or filed a defence. Neither party nor the then trial court addressed the erroneous judgment during proceedings. The court invoked its inherent power to set it aside ex debito justitiae and proceeded to hear the suit on the merits.