Muresia & another (Suing as the Legal Representatives of the Estate of Vincent Wanyonyi Barasa – Deceased) v Nyongesa (Civil Case E005 of 2025) [2025] KEMC 388 (KLR)

Consequently, this matter proceeded to a full hearing. Plaintiff’s Case PW1 No. 82348 PC Maurice Juma of Chwele Police Station testified that he documented the scene of the accident and investigated the circumstances under which this accident occurred. He added that, arising from this accident, the driver of motor vehicle registration number KAU 243 A, one Jairus Silali, was charged with the offence of causing death by dangerous driving. He further stated that the accident occurred when the Defendant’s motor vehicle was overtaking a tractor while being driven towards the Bungoma general direction and hit the deceased on the extreme right-hand side of the road. The deceased was also heading towards the Bungoma general direction. He produced the accident’s police abstract (Pexh.1) and Jairus Silali’s charge sheet (Pexh.2). PW2 Tobias Wafula Wanyonyi, the deceased’s son, testified as one of the administrators of the deceased’s estate. He produced exhibits including the deceased’s death certificate and post mortem report, as well as the limited grant issued to him and his mother to institute this case. His testimony was that on the date of the incident, PW3 called him over the phone and informed him that the deceased had been involved in a road traffic accident. He added that his father was a carpenter at the time of his death. On cross-examination, he stated that the family held a fundraiser to cater for the deceased’s funeral expenses. The fund raiser raised Kshs. 180,000/=. PW3 Linus Juma Matanda adopted his witness statement herein as his evidence in chief. He recalled that on the date of the accident, he saw motor vehicle registration number KAU 234 A overtaking a tractor while heading Bungoma CMC CC. No. E525 of 2024 2 of 14 Judgment

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towards Bungoma general direction when the said motor vehicle veered off the road and knocked the deceased from behind. He added that the deceased was walking off the road at the time of the accident. Defendant’s Case The Defendant did not call any witnesses. ANALYSIS & DETERMINATION This court has duly considered the respective parties’ pleadings, the evidence placed before this court by the Plaintiff, the written submissions filed, and all the authorities relied upon by each party in support of their cases. There is no contest that the accident herein occurred. It is also common ground that motor vehicle registration number KAU 243 A was owned by the Defendant at the time of the accident herein. Further, the Defendant did not place any evidence before this court to show that at the time of the accident motor vehicle registration number KAU 243 A was not being driven for his benefit and without his authority or consent. Therefore, in the event that this court finds the driver of motor vehicle registration number KAU 243 A negligent in causing the accident herein, the Defendant will be vicariously liable for his authorized driver’s negligence. It is against this backdrop that this court holds and finds that the only issue for determination are liability and quantum. Liability PW1 investigated this accident. He reached a conclusion that the driver of motor vehicle registration number KAU 243 A caused this accident when he was trying to overtake a tractor. It was during the said overtaking that the said driver reportedly knocked the deceased when the deceased was walking Bungoma CMC CC. No. E525 of 2024 3 of 14 Judgment

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on the extreme right side of the road while headed in the same direction with motor vehicle registration number KAU 243 A. PW1’s testimony on the circumstances under which the accident occurred was corroborated by PW3’s testimony who witnessed the occurrence of the accident. Whereas the Defendant sought to impeach the credibility of PW3’s testimony on the ground that the police abstract herein does not list him as a witness, the charge sheet on record shows that PW3 is a prosecution witness in a traffic case facing the Defendant’s driver. This court notes that the police abstract placed before this court by the Plaintiffs was issued when this matter was pending under investigations. It thus follows that PW3 could have been identified as the accident’s eye witness after conclusion of investigations. Therefore, the fact that PW3 was not listed in the police abstract as a witness does not impeach his testimony on the circumstances under which the accident herein occurred. The testimony by PW1 and PW3 when read together, show that the deceased was knocked by motor vehicle registration number KAU 243 A from behind while the said motor vehicle was trying to overtake a tractor. It should also be borne in mind that the deceased was facing oncoming traffic as required of him by the traffic rules and that he was knocked off the road. There is nothing much that the deceased could have done to prevent motor vehicle registration number KAU 243 A from knocking him from behind. The Defendant did not call any witness to prove the particulars of negligence against the deceased which they pleaded in their Statement of Defence. In the circumstances, those particulars of negligence remained mere allegations. For the reasons, this court finds no reason to disbelieve the Plaintiffs’ version of events on how the the accident herein occurred, and holds that the Defendant was 100% liable for the occurrence of the accident herein. Bungoma CMC CC. No. E525 of 2024 4 of 14 Judgment

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Quantum Under the Fatal Accidents Act (a) Loss of Dependency The claim for damages for loss of dependency is grounded on section 4 of the Fatal Accidents Act. Section 4 of the Fatal Accidents Act provides as follows:Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death 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 cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct. The claim for loss of dependency constitutes the multiplicand, the dependency ratio, and the multiplier. This is applicable where the court adopts the multiplier approach of making awards. In other instances, where the circumstances of a case permit, the court may adopt the global award approach in making an award under this head. The Plaintiffs submitted that this court ought to adopt the global award approach in awarding Kshs. 2,500,000/= under this head. This court will now proceed to determine whether to adopt the multiplier approach or the global award approach in making an award under this head. Bungoma CMC CC. No. E525 of 2024 5 of 14 Judgment

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The Plaintiffs pleaded in their Plaint that the deceased died aged 65 years while working as a carpenter and a farmer, reportedly earning a monthly income of Kshs. 20,000/=. However, the Plaintiffs failed to lead any documentary evidence to prove on a balance of probabilities that the deceased used to earn a monthly income of Kshs. 20,000/=. A reading of a copy of the deceased’s death certificate (Pexh.4) shows that the deceased was a a carpenter at the time of his death. The said death certificate also shows that the deceased was 65 years old at the time of his death. There is a rebuttable presumption in this jurisdiction of the truth of entries made by a public official in a public document (see section 38 of the Evidence Act). The Defendant did not place any evidence before this court to controvert the contents of the deceased’s death certificate on the deceased’s age and occupation. In the circumstances, this court finds and holds that the deceased was a 65year-old carpenter at the time of his death who was earning an unknown monthly income. Given the above, should the court adopt the global award approach or the multiplier approach in this case? This question was answered in Seremo Korir & Another vs SS (Suing as The Legal Representative of the Estate of MS, Deceased) [2019] eKLR, where the court said: “In the lower court’s judgment, the learned trial magistrate applied the minimum wage scale of Kshs. 12,000/- as the multiplicand. The learned trial magistrate further held that the deceased was a pupil based on a letter from the deceased’s school and that the deceased Bungoma CMC CC. No. E525 of 2024 6 of 14 Judgment

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was 12 years old, a fact that was not contested. It was the appellants’ submission that where the issue of the amount earned by a deceased and their profession is unsettled, courts adopt a lump sum/global sum instead of delving into estimating incomes and professions. On the other hand, the respondent submitted that the learned trial magistrate had the discretion to either adopt the multiplier method or the global assessment method. In this case, I am in agreement with the submissions of the respondent that courts have the discretion to apply either the ‘global sum’, ‘separate heads’, or ‘mixed’ approaches in awarding damages and that it is not cast in stone that just because the deceased was a minor, then courts can only apply the global/lump sum approach”(Emphasis added) In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, stated: “In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. the global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.” Bungoma CMC CC. No. E525 of 2024 7 of 14 Judgment

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The authorities above show that in circumstances like the ones obtaining in the instant case, this case has the discretion to adopt either the global award approach or the multiplier approach. This court is of the considered view that given that the deceased’s age and occupation at the time of his death are ascertainable, the multiplier approach is appropriate in this case. (i) Multiplicand This court has already made a finding that the deceased’s monthly income could not be ascertained from the evidence led by the Plaintiffs. The Court of Appeal in Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) vs Hellena Wanjiru Rukanga [2020] eKLR held that a minimum wage ought to be adopted as a multiplicand where monthly income could not be ascertained. The deceased was a carpenter at the time of his death. A carpenter is an ungraded artisan. That being the case, this court will adopt the minimum wage for an ungraded artisan as the multiplicand in this matter. The deceased died on 05th February 2024. He was a resident of Sikusi at the time of his death. The operative and reigning order at the time of the deceased’s death was the Regulation of Wages (General Amendment) Order 2022. In that Order, the monthly minimum wage for an ungraded artisan in Sikusi (other areas) at the time of the deceased’s age was pegged at Kshs. 15,652.60/=. Given the above, this court adopts a multiplicand of Kshs. 15,652.60/=. (ii) Multiplier Bungoma CMC CC. No. E525 of 2024 8 of 14 Judgment

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The evidence on record shows that the deceased died aged 65 years old. There was no indication of ill health on his part, and neither was there evidence that he used to work in a risky environment. All factors holding constant, considering the Kenya National Bureau of Statistics data that the average life expectancy in Kenya as at the time of the deceased’s death was 67 years old, and taking into account the fact that a carpenter’s earning capacity diminishes with advanced age, this court is of the considered view that the deceased, self-employed, would have probably earned his monthly income as a carpenter up to the age of 70 years. It is for the reasons above that this court adopts a multiplier of 5 years. (iii) Dependency ratio The evidence on record shows that the deceased was survived by his widow and several children. One of the children was a minor at the time of the deceased’s age. PW1 placed evidence before this court on how the deceased used to support his wife and children. It follows that the deceased used to use a substantial part of his income to support his family. Therefore, this court adopts a dependency ratio of 2/3; hence, the award under this head will work out as follows: Kshs. 15,652.60/=X 5X 12 X 2/3=Kshs. 626,104/= Under the Law Reform Act (a)Loss of Expectation of Life The deceased died aged 55 years old. No evidence was presented before this court on the deceased’s ill health before he met his untimely death. The deceased’s life was cut short by the fatal accident herein. Bungoma CMC CC. No. E525 of 2024 9 of 14 Judgment

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In Antony Njoroge Ng’ang’a (Legal representative of the Estate of the late Fred Nganga Njoroge aka Fred Ng’ang’a Njoroge) v James Kinyanjui Mwangi & 2 others [2022] eKLR, the court cited with approval the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, in making an award of Kshs. 100,000/= under this head. It is against this background that this court makes an award of Kshs. 100,000/= for loss of expectation of life. (b) Pain and suffering The award under this head depends on the duration between the time the accident occurred and the time the deceased died. This legal position was aptly captured in West Kenya Sugar Co. Limited vs Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) (2019) eKLR, where the court observed that:“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.” The accident herein occurred on 02nd February 2024. The deceased’s death certificate (Pexh.4) shows that the deceased died on 05 th February 2024, three days after the occurrence of the accident. Bungoma CMC CC. No. E525 of 2024 10 of 14 Judgment

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The deceased herein must have experienced considerable pain before meeting his death. In Theuri Kihira v Gerhard Matthiessen [2019] eKLR the court made an award of Kshs. 100,000/= where the deceased died five (5) days after the occurrence of the accident. Guided by the decisions above, this court is of the considered view that an award of Kshs. 100,000/= will be reasonable compensation under this head. Loss of consortium In the Plaint before this court, the Plaintiffs prayed for judgment against the Defendant for loss of consortium and servitude. In Ruth Chepngeno Mutai Vs. Patrick Wajero Oloo and Anor (2016) eKLR Visram, J. rendered himself thus on an award for loss of consortium was of the view that: “As a result of the death of the Deceased, the Plaintiff lost a husband. She told this court that she had no intention to remarry. Taking into account the cited authorities and the circumstances of the Plaintiff in particular, I award her Kshs. 100,000/= for loss of consortium." The Court of Appeal in Salvadore De Luca v. Abdullahi Hemedi Khalil & Anor [1994] eKLR held as follows: “So far as consortium is concerned, there is evidence that the appellant loved his wife and so did their children. The appellant has not remarried. No doubt, he had lost his wife’s companionship. There is, moreover, an impairment in the social life of the appellant and his young children who, too, have lost love, care and devotion of their mother. The learned judge clearly erred, in our view, in failing to award any damages for loss of consortium and servitium. Bearing in mind the fact that each case should be judged on its own facts, we would think that an award of KShs. 40,000/= is a fair measure for this head of Bungoma CMC CC. No. E525 of 2024 11 of 14 Judgment

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damages and we award the appellant this sum with interest from the date of judgment in the superior court until payment in full.” The authorities above show that an award on loss of consortium is dependent on a widow or a widower not remarrying after a spouse’s death. The deceased’s widow did not testify before this court to lead evidence in support for the prayer for loss of consortium. In the absence of the deceased widow’s testimony in support of this prayer, this court declines to make an award under this head. consortium. Special Damages The Plaintiffs pleaded for Special Damages of Kshs. 18,050/= as set out in paragraph 8 of the Plaint. However, the Plaintiffs only placed before this court a receipt for Kshs. 550/= (Pexh. 7(b)) in support of the claim for Special Damages. Given the above, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 550/=. Funeral Expenses The Plaintiffs pleaded for funeral expenses of Kshs. 150,000/=. PW1 testified that the deceased’s family held a fundraiser that raised Kshs. 180,000/= to cater for the deceased’s funeral expenses. This shows that the amount of money raised during the harambee catered for all the deceased’s funeral expenses. In Sidi Kazungu Gohu & another (Legal Representatives of the Estate of George Yongo Katana (Deceased) v Fatuma Abdi Mohamed & another [2021] KEHC 7854 (KLR) the court stated as follows when faced with such a situation: Bungoma CMC CC. No. E525 of 2024 12 of 14 Judgment

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The capital sum raised from well-wishers should not form part of the benefits that the estate of the deceased should be accorded compensation or reimbursement as a result of the premature death of the deceased. Whatever method of calculation adopted an action for specific damage, the sum which would have been spent by the family in exclusion of “harambee money” should be strictly proved to avoid double benefit to the estate of the deceased. The foregoing shows that where a family holds a harambee to defray funeral expenses, such a family can not be compensated for the money raised during the harambee since that will amount to double compensation. Consequently, the Plaintiffs’ claim for funeral expenses is dismissed. DISPOSITION The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:a) Liability – 100% in favour of the Plaintiff b) General damages under the Fatal Accident Act c) Loss of dependency - Kshs. 626,104/= d) Damages under the Law Reform Act e) Pain and Suffering -Kshs. 100,000/= f) Loss of expectation of life - Kshs. 100,000/= g) Special Damages - Kshs. 550/= Net Award - Kshs. 826,654/= Bungoma CMC CC. No. E525 of 2024 13 of 14 Judgment

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The General Damages will accrue interest at court rate from the date of this judgment till payment in full. The Special Damages claimed through the disputed receipts without stamps will be payable to the Plaintiff upon the Plaintiff affixing stamps on those disputed receipts. The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full. The Plaintiff will have the costs of this suit. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 25 th September 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: Ms. Soita for the Plaintiff C/A: Mr. Rioba Bungoma CMC CC. No. E525 of 2024 14 of 14 Judgment

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