Tsuwi & another (Suing as the Administrators and Legal Representatives of the Estate of the Late Tumaini Nguwa Tsuwi - Deceased) v Dhanjal Brothers Ltd alias Dhanjal Bros Ltd (Civil Case E735 of 2025) [2026] KEMC 782 (KLR)
The bottom line
#A Mombasa court awarded a family KShs 1.6 million after their son died boarding a lorry, ruling the driver and company 80% responsible.
What this practically means
#Executive summary
#Key legal issues
#Whether negligence was proved against the Defendant's driver
Negligence was proved on a balance of probabilities; the driver permitted or was aware of the deceased boarding and moved the vehicle before the deceased had safely boarded.
The court found PW3's tested eyewitness account more reliable than the untested statement of Andrew Mtana Mbaru, who did not testify. DW1 admitted he did not see the deceased board, so his assertion that the deceased hung onto the vehicle was not founded on personal observation. The driver's inability to see persons boarding from the rear did not absolve him; it demanded greater caution. Moving the vehicle while a person was still boarding amounted to a breach of the duty of care.
Contributory negligence of the deceased
The deceased contributed 20% to the accident by boarding a commercial tipper lorry carrying obvious danger without exercising sufficient care for his own safety.
The deceased was an adult boarding a commercial tipper lorry, not a passenger vehicle, an act carrying obvious risk. Complete exoneration would ignore that risk, while placing the greater share on him would overlook the driver's superior control over the vehicle and the duty not to move while a person was boarding. The court apportioned liability 80% to the Defendant and 20% to the deceased.
Vicarious liability of the registered owner
The Defendant, as registered owner, was vicariously liable for its driver's negligence committed in the course of his employment.
The NTSA copy of records identified the Defendant as registered owner of KAX 393L. DW1 was driving the lorry in the course of transporting waste to Mwakirunge Dumpsite, and the negligent act occurred during the operation of the vehicle in the performance of the task he was employed or authorised to perform.
Quantum of damages under the Law Reform Act and Fatal Accidents Act
Awards of KShs. 50,000 for pain and suffering, KShs. 150,000 for loss of expectation of life, and loss of dependency of KShs. 1,611,375 (multiplicand KShs. 16,113.75 per month, multiplier of 25 years, dependency ratio 1/3) were made, confined to the parents as statutory dependants.
The injuries were grave and pain before death was evidenced. The parents fell within the statutory class under section 4 of the Fatal Accidents Act; siblings did not. Earnings were not precisely proved, so the court adopted the statutory minimum wage under the Regulation of Wages (General) (Amendment) Order, 2024 as a fair and conservative multiplicand. A 25-year multiplier and 1/3 dependency ratio were adopted given the deceased's age, informal occupation and absence of evidence of one-half devoted to the parents.
Proof of special damages
Special damages of KShs. 215,150 (advocate's fees for the Limited Grant KShs. 60,000; mortuary expenses KShs. 20,600; funeral expenses KShs. 134,550) were specifically pleaded and proved; the unpleaded NTSA search fee was disallowed.
The grant fees were supported by a receipt and were recoverable as necessary to clothe the Plaintiffs with legal capacity to sue. Mortuary expenses were supported by hospital invoices. Funeral expenses, though partly supported by handwritten or non-ETR receipts, were proved on a balance of probabilities, the court recognising that ordinary Kenyan households do not always document such expenditure formally.
Legal principles established
#- An investigator may testify on investigations undertaken and documents obtained, but this does not transform an absent eyewitness's narrative into direct proof of the truth of its contents.
- A driver of a heavy commercial vehicle owes a duty of care to persons boarding and must not move the vehicle before boarding is safely completed; limited visibility demands greater caution.
- Volenti non fit injuria requires proof that the claimant freely and voluntarily agreed to waive any claim arising from the risk encountered.
- Only the parents of a deceased fall within the statutory class of dependants under section 4 of the Fatal Accidents Act; siblings do not.
- In an informal economy, dependency need not be proved through receipts or bank records and may be established on a balance of probabilities.
- Funeral expenses need not always be documented with commercial formality, provided the expenditure is proved to have been reasonably incurred on a balance of probabilities.
Court orders
#- 1.Judgment entered for the Plaintiffs against the Defendant with liability apportioned Defendant 80%, deceased 20%
- 2.Damages: pain and suffering KShs. 50,000; loss of expectation of life KShs. 150,000; loss of dependency KShs. 1,611,375; special damages KShs. 215,150; gross award KShs. 2,026,525 less 20% contributory negligence (KShs. 405,305) yielding a net award of KShs. 1,621,220
- 3.General damages to attract interest at court rates from the date of judgment until payment in full
- 4.Special damages to attract interest at court rates from the date of filing suit until payment in full
- 5.The Plaintiffs shall have the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over fatal accident and Law Reform Act claims arising from a road traffic accident in Mombasa County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tsuwi & another (Suing as the Administrators and Legal Representatives of the Estate of the Late Tumaini Nguwa Tsuwi - Deceased) v Dhanjal Brothers Ltd alias Dhanjal Bros Ltd (Civil Case E735 of 2025) [2026] KEMC 782 (KLR)", Case Analysis (2026). Mombasa Chief Magistrate's Court Civil Suit (fatal accident claim arising from accident of 14th December 2024 involving motor vehicle KAX 393L). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/782/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.