Mathias M Mutisya & 1 other v Bash Hauliers Limited

did occur, then it was solely caused or substantially contributed to by the driver of motor vehicle registration N. KBS 645R. 6. The suit was listed for hearing on 3/2/2025. Upon the court being convinced that the Defendant’s counsel on record was aware of the hearing date, directed the hearing to proceed exparte. 7. The Plaintiffs called three witnesses to support their case. PW1-Mathias Mutisya Mwinzi was the father-in-law to the deceased. He adopted his witness statement dated 25/1/2023 as his evidence in chief. He also produced documents listed on his list of documents dated 3/3/2022 as PExt.1 to PExt.9. He invited the court to consider the evidence and award him compensation. 8. PW2 was Onesmus Gitonga Moses, an eye witness to the accident herein. He testified that he was a motor cycle rider at the time of the accident. He was operating from the gate of Jomo Kenyatta University when the accident occurred at about 2.00pm. The trailer KBU 152J/ZD 9154 was to blame for the accident because it overtook another vehicle on a narrow bridge and it collided with an oncoming small car which had nowhere to escape to. He adopted his witness statement dated 25/1/2023 ah his evidence in chief. 9. PW3 was No. 118744 PC Dennis Rotich. He stated that he is attached to Athi River Police Station performing traffic duties. He produced the Police Abstract dated 23/8/2013 as PExt.2. He testified that the accident occurred on 23/8/2013 and the Abstract was in respect of Teresia Munanie Mwendwa. The accident involved motor vehicle registration number KBS 645R Toyota Premio and another motor vehicle registration number KBV 540Z Toyota RAV 4 and a trailer KBU 152J/ZD 9154. The investigating officer was one PC Mwachama. The results showed that the matter was pending investigations. The victims of the accident were Charles Mwinzi and Teresia Mwananie Mwendwa who sustained fatal injuries. 10. The Plaintiffs closed their case and prayed that the defence case be closed for failure to attend court to prosecute the defence case. 11. The defence case was closed and the Plaintiffs were directed to file written submissions which they did file date 10/3/2025. 12. I have considered the parties’ pleadings, the evidence adduced by the Plaintiffs and the submissions filed on behalf of the Plaintiffs. I will proceed to determine both liability and quantum. Liability 13. The Plaintiffs called three witnesses as set out above to support their case. The driver of the Defendant, who was driving motor vehicle trailer No. KBU 152J was blamed for the occurrence of the accident because he overtook at a narrow bridge and collided with the small oncoming vehicle in which the deceased herein was a passenger. The Plaintiffs’ evidence was not challenged at all. 14. I note that though the Defendant filed its Defence, List of witnesses and List of documents there was no attendance in court to prosecute the Defendant's case. 15. The Defendant having failed to call any witness, the contents of the Statement of Defence and any Defendant’s Witness Statement remain mere allegations which have not been proved. The Plaintiffs’ testimony and the documents produced by the Plaintiffs also remain uncontroverted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14403/eng@2025-06-24 2

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16. This principle has been reiterated in many cases. One such case is North End Trading Company Limited (Carrying on the Business Under the Registered Name of) Kenya Refuse Handlers Limited Vs. City Council of Nairobi [2019] eKLR in which J.A. Makau J held as follows: “ In Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No.23 of 1997, it was held that where a defendant does not adduce evidence the plaintiff’s evidence is to be believed, as allegations by the defence is not evidence. 17. In the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No.834 of 2002, Lesiit, J. Citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 appreciated that:‘Although the Defendant has denied liability in an amended Defence and Counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail: 18. A defence in which no evidence is adduced to support it cannot be used to challenge the plaintiff's case. In the case of Karuru Munyororo vs Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988, Makhandia, J held that: “ The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.” 19. Further, the Defendant in its defence, denied the occurrence of the accident and averred that if the accident did occur, then it was solely caused or substantially contributed to by the driver of motor vehicle registration N. KBS 645R. However, the Defendant did not endeavour to take out Third Party proceedings against the owner of the said motor vehicle. 20. It is trite law that third-party proceedings are only applicable between a defendant and the intended third party. This means that a plaintiff seeking compensation is not obligated, under the law, to enjoin all possible defendants in the suit for compensation of damages. Such an action would rightfully be undertaken by a defendant who claims that another party was to blame for accident. A court of law in cannot also apportion liability to a party who is not enjoined to the suit. In Kenya Commercial Bank vs. Suntra Investment Bank Ltd (2015) eKLR the High Court in Nairobi held that:“ in law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 Rule 15-22 of the Civil Procedure Rules.….. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the Defendant and cannot be a bona fide issue triable between the Defendant and the Plaintiff. On the basis of those legal reasons, even if the third party had been joined, which he has not, it is not a triable issue at all for purposes of liability between the Plaintiff and the Defendant. Looking at the defence and the generalized denials, it is a mere sham. It is a perfect candidate for striking out.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14403/eng@2025-06-24 3

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21. The Plaintiffs’ testimonies and the documents produced by the Plaintiffs also remain uncontroverted. I find that the Plaintiffs proved their case on a balance of probability and I enter judgement on liability as against the Defendant at 100%. Quantum of Damages 22. The Plaintiff in support of the quantum for damages produced the Exhibits marked as PExt.1 to PExt.9 except PExt.2 the Police Abstract that was produced by PW3. 23. The Plaintiff had filed a List of Documents on the 15/3/2016 and dated the 3/3/2016. The Plaintiff produced PExT.1 the Letters of Administration to the Estate of Teresia Munanie Mwendwa who was his daughter in law. He produced PExt.3 the Death Certificate to prove the death of the deceased. He testified that the deceased was aged 31 years and was married to one Charles M. Mutisya with whom they died together. He produced PExt.8 the Birth Certificate to demonstrate that she had a son, by the name Divine Tunu. He proceeded PExt.9, the Pay slip, showing and proving that the late Teresia M. Mwendwa was a lecturer at Jomo Kenyatta University of Agriculture and Technology and was earning Kshs.232,875/ = (Two Hundred Thirty-Two Thousand Eight Hundred and Seventy-Five Kenya shillings). 24. The Plaintiffs’ counsel submitted on quantum of damages as follows: (i) Dependency Ratio 25. The deceased was a married woman thus 2/3 is the accepted ratio. The court was urged to adopt the same; (the letter of Administration, show that the Plaintiffs are her parents in law (PExT.1). 26. According to the evidence, the deceased had a son Divine Tunu and also her parents. She must have been using a substantial part of her salary for their care. The Ratio of 2/3 would be sufficient in the circumstances. (ii) Multiplier 27. The deceased died aged 31 years. She was a lecturer, with a good medical support system and all factors remaining constant would have retired at 60 years; thus, a multiplier would of 29 years, however life is uncertain and thus due to contingencies of life, 25 years would be appropriate. 28. I can confirm from the Death Certificate PExt.3 that the deceased was aged 31 years old at the time she met her death. Guided by the cases of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, where the court applied a multiplier of 24 years where the deceased was 31 years as at the time of death, the case of J.W.N. v Kassam Hauliers Limited [2020] eKLR where the court applied a multiplier of 29 years to a deceased who was 31 years old and the case of Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another [2014]eKLR where the court upheld the multiplier of 24 years where the deceased was 31 years old as at the time of death. I find a multiplier of 25 years to be sufficient. (iii) Multiplicand 29. The payslip show that the deceased was earning Ksh.232,875/= less the amount of tax Kshs. 63,734.90, UASU Agency Fee Kshs.765/50, NSSF Kshs.200/= and NHIF Kshs.320/= making the multiplicand of Kshs.167,855/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14403/eng@2025-06-24 4

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Thus, loss of dependency is worked out as follows:2/3 x 25 x 12 x 167,855/ =Kshs.33, 571, 000/=. 30. I have considered the calculation by the Plaintiff and I find it to be proper. The sum of Kshs.33,571,000/= is awarded under this head. (iv) Loss of Expectation of life 31. The counsel for the Plaintiffs proposed that an award of Kshs.100,000/= as per the decision of PNM & Anor (Legal Rep of the Estate of LMM v/s Telkom Kenya Ltd & 2 Others (2015) eKLR, where the court awarded Kshs.100,000/=. 32. Awards under this head ranges between Kshs.100,000/= and Kshs. 200,000/=. I find that Kshs.100,000/= will therefore be adequate compensetion. (v) Pain and Sufiering 33. A proposal was made of Kshs.100,000/ be awarded for this head, the deceased having suffered pain before death. 34. There was no evidence led to show how long the deceased died after the accident. However, it must be appreciated that the deceased must have endured some pain before she finally died. I will award Kshs.100,000/= for pain and suffering. (vi) Special Damages 35. The Plaintiffs pleaded Kshs.2,600/=, they offered no evidence, hence the same is not awardable. 36. I agree with the Plaintiffs that that they failed to strictly prove the Kshs.2, 600/= pleaded as special damages. 37. Accordingly, this court finds that the Plaintiffs have proven their case against the Defendant on a balance of probability and judgment is entered as follow: a. Liability 100% b. Loss of expectation of life 100,000.00 c. Pain and suffering 100,000.00 Loss of dependency 33, 571, 000.00 d. Special damages NIL Total Kshs.33,771.00 e. The Plaintiffs will have costs and interest of the suit at court rate from the date of this judgement. f. Stay of execution of 30 days granted. g. File closed. JUDGMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 24TH JUNE 2025 NOEL I. ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14403/eng@2025-06-24 5

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JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH JUNE 2025 In the presence of : Mr. Mbullo.......................... for Plaintiffs NA................ for Defendant Milly................. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14403/eng@2025-06-24 6

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