Eunice Wanjiru Gitau (suing As Administratix Ad Litem of The Estate of Samujel Gitau Muthoni) v George Wanganga Ngaruiya & 1 other

3. In civil matters, liability is only considered for children who are a little older, at least old enough to have the requisite intellectual capacity to take precautions for their own safety. The general principle is that a child can only be found guilty of negligence if he is old enough to be expected to take precautions. The deceased was aged 14 years, an age where he is expected to take precautions. 4. PW2, the Appellant’s eyewitness testified that when the deceased was hit by motor vehicle registration number KAT 845L, he was thrown on the side of motor vehicle registration number KBY 595Z where he was run over, sustaining fatal injuries. The nature of the accident, being hit by one vehicle and tossed in the way of another, is in such a way that the deceased minor cannot be blamed for the accident. He was never in control of his fate. 5. DW1 testified that he was driving at 60 km/hr and found two victims on the road. On re-examination, he testified that the two victims had jumped onto the mini bus. 6. It is clear that DW1 was driving at a speed higher than 60km/hr, such that the impact of the collision tossed 2 minors onto the path of KBY 595Z, causing their demise. In Masembe VS. Sugar Corporation & Another (2002) Eklr EN 434, the court held as follows; “ When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” DW1 ought to have taken reasonable care while driving the mini bus. I find that the Respondents are fully liable for the accident. 7. On quantum, the Appellant submits that the award for Ksh. 650,000 as general damages was inordinately low and seeks that this Court assess the award to a higher amount. 8. The general method of approach in assessment of damages is that comparable injuries /claiming should as far as possible be compensated by comparable awards. The Court of Appeal stated in Mbaka Nguru and Another v James George Rakwar [1998] eKLR that: “ The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions” 9. In Albert Odawa v. Gichimu Githenji [2007] eKLR, Koome J (as she then was) quoted Ringera J in Mwanzia v. Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another , where he stated that; “ The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation. Where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16993/eng@2024-10-17 2

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However, in resorting to the lump sum principle, a Trial Court should be guided by the age of a deceased, the expected length of dependency and the estimated income. The award should not be so inordinately high or low as to be a wrong estimate of damages”. 10. The factors to be considered in determining an award for loss of dependency for a deceased person leaving behind dependents, is the number of dependents, the age of the dependents and the level of dependency. The age at which the deceased died is also a relevant factor in my view. In this case, the deceased was 14 years old and was survived by her grandmother. I therefore find an award of Kes 2,000,000 to be sufficient. Special damages were pleaded and proved at Kes 70,500. 11. The apportionment of liability at 50:50 is set aside and liability is apportioned at 100% in favour of the Appellant. A global sum of Kes 2,000,000.00 with interest on the same running from the date of filing the suit in the lower Court is awarded to the Appellant against the Respondents, as well the cost of the suit at the lower court are awarded to the Appellant. The Appellant shall also have the costs of this Appeal. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 17TH DAY OF OCTOBER, 2024. BAHATI MWAMUYE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16993/eng@2024-10-17 3

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