Idewa & another (Suing as the Administrator of the Estate of Immaculate Idewa - Deceased) v Badar Hardwares Ltd (Civil Suit E029 of 2025) [2026] KEMC 307 (KLR)

PW3, the eyewitness rider, testified that the trailer was parked without lifesavers or warning triangles; this unchallenged evidence was accepted as truthful. The driver, best placed to explain precautions taken, was not called, justifying an adverse inference. However, the deceased knowingly boarded a motorcycle carrying an excess passenger, contravening traffic laws, which affected maneuverability and contributed to the accident.

Applying the Herbert Hahn principle that special damages must be specifically pleaded and strictly proved, the court examined the receipts produced as exhibits. Although the defence conceded Kshs. 218,600/=, the court found receipts PEXH 3, 6, 7, 8, 9, 10, 12 and 14 proved damages of Kshs. 233,600/= and allowed the claim only to that extent.

Guided by Ngania v Adulu and Hyder Nthenya Musili v China Wu Yi, the court noted the deceased died the same day with no evidence of prolonged suffering, warranting a modest award for pain and suffering within the conventional Kshs. 10,000-100,000 range. For loss of expectation of life, comparable awards of Kshs. 100,000-200,000 justified Kshs. 120,000/=.

The mother testified the deceased earned Kshs. 30,000/= monthly as a fruit trader but admitted there was no proof of income. Following Nzomo v Muia, Husaka Motors v Indechi, Kirimi v Kithinji and Khalif v M'Kirea, the court held the multiplier approach would be speculative where earnings cannot be ascertained, and adopted the global sum approach consistent with comparable awards for similarly aged deceased persons.