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MagistratePartially AllowedNot stated in the judgment (suit filed 17/9/2019, vide plaint dated 9/9/2019)· [2026] KEMC 89 (KLR)

AGM (Suing on Behalf of a Minor AMG - Deceased) v Buscar East Africa Limited (Civil Case 273 of 2019) [2026] KEMC 89 (KLR)

Chief Magistrate's Court (Makindu)
26 March 2026
YSY.A. Shikanda
6,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded Ksh. 2 million to the family of a child killed by a negligently driven bus that offered no defence.

What this practically means

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Executive summary

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This was a first-instance fatal accident claim filed on 17/9/2019 by AGM, father and legal representative of the estate of AMG, a child who died after the defendant's bus KCF 25XX, driven negligently at speed along the Mombasa-Nairobi highway, overtook a matatu near Sultan Hamud at night and collided with an oncoming truck, caught fire and burnt the deceased beyond recognition. The defendant denied ownership, negligence and applicability of res ipsa loquitur, pleaded volenti non fit injuria and contributory negligence, and called no witnesses. The plaintiff's claim was supported by an eyewitness passenger (PW2) and documentary evidence including a police abstract and motor vehicle copy of records. The court found the accident proved, the defendant the registered owner, and applied res ipsa loquitur since a prudent driver cannot overtake into oncoming traffic and the defendant offered no rebuttal; it found the driver 100% liable and the defendant 100% vicariously liable, rejecting any negligence on the part of the deceased child passenger and noting no third-party proceedings against the other vehicle's driver. On quantum, the court awarded Ksh. 100,000/= for pain and suffering, Ksh. 150,000/= for loss of expectation of life, Ksh. 1,600,000/= for loss of dependency (global award, the deceased being a 4-year-old with no earnings), and Ksh. 150,000/= for funeral expenses, totalling Ksh. 2,000,000/=. Siblings were held not to be proper dependants under the Fatal Accidents Act. Special damages of Ksh. 8,925/= were refused for want of strict proof by receipts. Interest was awarded on general damages from judgment and on funeral expenses from filing suit, plus costs of the suit to the plaintiff.

Key legal issues

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01

Liability for the fatal road traffic accident

Holding

The driver of KCF 25XX was 100% negligent; the defendant was 100% vicariously liable.

Reasoning

PW2, a passenger eyewitness, testified the bus was speeding and overtook dangerously into an oncoming truck. The defendant called no evidence. On the police abstract and copy of records, the defendant was the registered owner. Res ipsa loquitur applied: a prudent driver could not overtake into oncoming traffic. No third-party proceedings were taken against the other vehicle's driver and no evidence implicated the deceased, a child passenger.

p. 7
02

Whether siblings qualify as dependants under the Fatal Accidents Act

Holding

Siblings are not proper dependants; only the parents qualified.

Reasoning

The plaintiff listed the parents and a sibling as dependants. Relying on M'bagine v Nyaga, the court held section 4 of the FAA limits beneficiaries to a wife, husband, parent and child, and the claimant must prove the qualifying relationship and dependency. Accordingly the only proper expected dependants were the parents.

p. 9
03

Approach to loss of dependency where the deceased was a minor with no earnings

Holding

A global award of Ksh. 1,600,000/= was adopted instead of the multiplier approach.

Reasoning

The deceased was aged 4 and earned no income. The court noted conflicting High Court approaches but found the Court of Appeal has settled on the global award approach for minors without proven earnings (M'bagine, Cherangany Hills, Waweru). Considering the deceased's age, the age of authorities and inflation, it awarded Ksh. 1,600,000/= as proposed.

p. 10
04

Proof of special damages

Holding

No award for special damages (Ksh. 8,925/=) for failure of strict proof by receipts.

Reasoning

Special damages must be specifically pleaded and strictly proved (Nizar Virani; Ouma v Nairobi City Council; Hahn v Singh). The claims for the death certificate, burial permit, police abstract, motor vehicle search, letters of administration fees and demand letter were not proven by receipts, so no award was made.

p. 12
05

Award of interest

Holding

Interest on general damages at court rates from judgment; interest on funeral expenses from filing suit.

Reasoning

Section 26 of the Civil Procedure Act gives the court discretion on interest. Following Omunyokol Akol Johnson and Jane Ovuyanzi Raphael, interest on special damages runs from the date of loss while interest on general damages runs from judgment, since general damages are only ascertained at judgment.

p. 13

Legal principles established

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  • The burden of proving negligence rests on the plaintiff, who must adduce evidence of the particulars pleaded, on a balance of probabilities.
  • Where the defendant offers no explanation, the fact of an accident occurring in circumstances in which it should not have occurred discharges the plaintiff's burden of showing negligence (res ipsa loquitur).
  • Where a motor vehicle is driven by a person other than the owner, a rebuttable presumption arises that the driver was the owner's agent, rendering the owner vicariously liable.
  • Siblings are not proper dependants under section 4 of the Fatal Accidents Act.
  • Where the deceased was a minor with no proven earnings, a global or conventional award for loss of dependency is appropriate rather than the multiplier approach.
  • Special damages must be both specifically pleaded and strictly proved.
  • Interest on special damages runs from the date of loss; interest on general damages runs from the date of judgment.

Court orders

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  1. 1.Judgment for the plaintiff against the defendant on liability, the defendant being 100% vicariously liable
  2. 2.Damages for pain and suffering of Ksh. 100,000/=
  3. 3.Damages for loss of expectation of life of Ksh. 150,000/=
  4. 4.Damages for loss of dependency of Ksh. 1,600,000/=
  5. 5.Funeral and related expenses of Ksh. 150,000/= (total award Ksh. 2,000,000/=)
  6. 6.Interest on general damages at court rates from the date of judgment/decree until payment in full
  7. 7.Interest on funeral expenses from the date of filing suit to the date of judgment/decree
  8. 8.Costs of the suit to the plaintiff
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a fatal accident negligence claim; no specific constitutional/statutory jurisdictional provision invoked

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, "AGM (Suing on Behalf of a Minor AMG - Deceased) v Buscar East Africa Limited (Civil Case 273 of 2019) [2026] KEMC 89 (KLR)", Case Analysis (2026). Not stated in the judgment (suit filed 17/9/2019, vide plaint dated 9/9/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26

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