Silvester Mutisya Kyalo (suing On Behalf of The Estate of Samuel Nzivo) & 1 other v Cellz R Us Limited

5. On her part the Respondent argues that she should get the lion’s share of the damages since she depended on the deceased as opposed to the Applicant and his siblings who are all adults. She also alleges that the deceased and the mother of the Applicant were estranged for a long time. Analysis and determination 6. The issue for determination is whether or not the judgment delivered on 31st October 2024 should be reviewed so as to reflect the shares of the beneficiaries of the damages awarded therein. 7. I have considered the application, the grounds on its face, the affidavits both in support and in opposition, the rival submissions and the law. The power of this court to order a review of a decree or order of the court stems from Order 45 Rule 1 of the Civil Procedure Rules. Such a review can be granted where there is discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. I am persuaded that in this case the identification of the shares of the persons for whose behalf the claim for damages under the Fatal Accidents Act was brought, constitutes a sufficient reason to review the judgment and/ or decree herein. This is because in the judgment the shares were not identified yet Section 4 of the Fatal Accidents Act expressly requires the court to do so. That section states: “ Section 4(1) Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of Section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be dividend amongst those persons in such shares as the court, by its judgement, shall find and direct;……..” 8. The proceedings/claim for damages under the Fatal Accidents Act are brought on behalf of a wife, husband, parent and children of the person whose death was caused by the accident- seen Section 4 of the Act. In this case the persons for who the claim was brought are specified in the Applicants witness statement dated 11th May 2021 and also in the letter of the Assistant chief dated 6th August 2021. They are: 1. Josephine Ndumi Nzioka – wife (widow) 2. Alfred Muli Kyalo – son 3. Martin Muteti Kyalo – son 4. Joan Katunge Kyalo – daughter 5. Silvester Mutisya Kyalo – son 6. Stephen Mutua Kyalo – son 7. Susan Nzisa Muli – mother There is therefore no dispute as to who should benefit from the award as even the Respondent agrees with the above list. 9. It is instructive that when dividing the damages the court does not consider the law of Succession Act. As a matter of practise the consideration is the age of the persons – so that for instance where there https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5864/eng@2026-04-30 2

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are minor children their share is bigger given their requirements for school fess. The adult children are given less as their dependency cannot be compared to that of the minor children. In this case the age of the persons on whose behalf the damages were claimed, have not been specified. There is no law that states that any of the beneficiaries should get more than the other. Neither has the allegation that the deceased and his wife were estranged been proved. In the premises the mode of distribution that commends itself to me is that each of the persons listed above gets an equal share of the damages. 10. It is instructive that it is an equal share of the damages under the Fatal Accidents Act only. That is what this court has distributed. The award under that head was for Kshs.300,000/- which upon being subjected to 10% liability leaves a sum of Kshs.270,000/-. Each beneficiary shall therefore be entitled to Kshs.38,571/-. 11. The damages under the other heads are awarded under the law Reform Act to the estate of the deceased person and shall therefore await distribution in accordance with the Law of Succession Act by the Administrator(s) of the estate once a full grant is issued. 12. Th application therefore succeeds to the extent stated in paragraph 10 above. 13. Each party shall bear their own costs. Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA JUDGE In the presence of: Mr. A. K. Mutua for the 2nd Appellant/ Applicant Mr. Mutinda for the 1st appellant/Respondent Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5864/eng@2026-04-30 3

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