Wanyama (Suing as Administrators of the Estate of Eliud Wafula Wanyama (Deceased)) v Mutua (Civil Case E525 of 2024) [2025] KEMC 450 (KLR)

5. PW1 Jane Nanjala Wanyama adopted her witness statement dated 10th December 2024 as her evidence in chief. She produced the documents listed in the Plaintiff’s list of documents herein as exhibits (Pexh. 1 – 17). Defendant’s Case 6. The Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served with the Plaint and the Summons to Enter Appearance. 7. In the circumstances, on 26th February 2025, this court entered an interlocutory judgment against the Defendant, hence this matter proceeded by way of formal proof. 8. Be that as it may, the law in this jurisdiction is that even in instances like the one obtaining in this case, the Plaintiff still bears the legal burden of proving their case on a balance of probabilities. This position of law was aptly captured by the Court of Appeal in Kirugi and Another –vs- Kabiya & 3 Others (1987) KLR 347 , where the court rendered itself thus:“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof. Likewise, failure by the Defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.” 9. This court draws further inspiration on the Plaintiff’s legal burden in undefended cases from the holding in Gichinga Kibutha –vsCaroline Nduku (2018) eKLR, where the Court held that:“It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his Bungoma CMC CC. No. E525 of 2024 2 of 14 Judgment

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case however much the opponent has not made a presence in the contest.” 10. Guided by the authorities above, this court now proceeds to determine whether the Plaintiff proved their case to the required standards. ISSUES FOR DETERMINATION 11. This court has duly considered the Plaintiff’s pleadings, the evidence placed before this court by the Plaintiff, the Plaintiff’s submissions, and the authorities relied upon in support of her case. 12. It is given that the accident herein occurred and that the Defendant was the owner/driver of motor vehicle chassis number FE43F582027 as set out in the police abstract (Pexh.4) produced by PW1 (See Martin Oguta Mirembe v James Iboi Kimamu [2018] eKLR and Joel Muga Opija -Vs- East Africa Sea Food Ltd [2013] eKLR). 13. Given the foregoing this court finds and holds that the only issues that commend to this court for determination are liability and quantum. Liability 14. The witness statement that PW1 adopted as her evidence in chief largely rehashed the averments in the Plaint herein. PW1 blamed the Defendant for causing the accident that claimed the deceased’s life on account of the Defendant’s alleged recklessness in overtaking another vehicle. 15. There is no indication that PW1 witnessed the occurrence of the accident herein. There is also no evidence on record that PW1 visited Bungoma CMC CC. No. E525 of 2024 3 of 14 Judgment

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the scene of the accident for her to appreciate how the accident herein occurred. Simply put, PW1 could not purport to speak to the circumstances under which the accident herein occurred. 16. It is also noteworthy that no sketch maps/plans were placed before this court for the court to fully appreciate the circumstances under which the accident herein occurred. The accident’s investigating officer was also not called before this court to give light on who was to blame for the occurrence of the accident herein. 17. The foregoing shows that the Plaintiff failed to lead any evidence to prove the particulars of negligence set out in paragraph 4 of the Plaint herein that she attributed to the Defendant. 18. Considering the totality of the evidence on record, the only irresistible conclusion to be drawn is that the evidence on record is barely adequate for this court to apportion liability. 19. When confronted with such a situation, the Court of Appeal in Farah v Lento Agencies [2006] 1 KLR 123 expressed itself as follows:“In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. Everyday, proof of collision is held to be sufficient to call the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesitantly hold that both are to blame. They would not escape liability Bungoma CMC CC. No. E525 of 2024 4 of 14 Judgment

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simply because the court had nothing by which to draw any distinction between them…” 20. The position taken by the Court of Appeal above was also taken by Ougo J. in Mbasu & another v Onyapindi & Cheseny (Suing as the Legal Representatives of Bernard Simiyu Wamalwa Deceased) (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR) where the learned judge pronounced herself as follows: “The trial magistrate correctly noted that the respondent availed no eye witness, therefore, it was, however, erroneous in my view to hold the appellant fully liable, as the evidence on record did not establish how the accident occurred. In this case, it was rational to apportion liability in the ratio of 50:50 between the deceased and the appellant.” 21. Guided by the authorities above, this court apportions liability in the ratio of 50%:50%. Quantum (a) Under the Fatal Accidents Act Loss of Dependency 22. Section 4 of the Fatal Accidents Act describes a dependent as the wife, husband, child and parents of the deceased. 23. Paragraph 5 of the Plaint herein listed the deceased’s dependents who were his sister, eight (8) children (see Copies of Birth Certificates - Pexh.9-10, and copies of health cards – Pexh. 11-12), and his grandson. Two of the deceased’s children were minors at the time of the deceased’s death. Those minors must have depended on the deceased for their survival. Bungoma CMC CC. No. E525 of 2024 5 of 14 Judgment

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24. No evidence was led to show how the deceased’s sister, grandson, and his adult children depended on him before his death. 25. At the time of his death, the deceased worked as a mason, and that he was 57 years old (see Copy of Certificate of Death – Pexh.3). 26. Whereas PW1 testified that the deceased used to earn a monthly income of Kshs. 70,000/=, she did not present any evidence to corroborate that testimony. 27. For the reasons above, this court holds and finds that the deceased died aged 57 years old, was survived by his children, and that the deceased worked as a mason earning an unknown monthly income. 28. 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 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 Bungoma CMC CC. No. E525 of 2024 6 of 14 Judgment

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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) 29. 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.” 30. 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. 31. It is this court’s 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. Bungoma CMC CC. No. E525 of 2024 7 of 14 Judgment

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Multiplicand 32. This court has made a finding earlier on in this judgment that the deceased’s monthly income could not be ascertained. 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. 33. The deceased died on 22nd May 2024 hence the operative and reigning order is the Regulation of Wages (General Amendment) Order 2022. In that Order, the monthly minimum wage for a mason (a grade III Artisan) in Bungoma (a former Municipality) was pegged at Kshs. 23,716.20/=. 34. Given the above, this court adopts a multiplicand of Kshs. 23,716.20/=. Multiplier 35. It is common ground that the deceased died aged 57 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, the deceased, self-employed, would have probably earned his monthly income as a mason up to the age of 60 years or even more. 36. The Kenya National Bureau of Statistics report in 2024 placed the overall life expectancy in Kenya at 67.70. 37. Guided by the statistics from the Kenya National Bureau of Statistics as of 2024, and taking into consideration the vicissitudes and vagaries of life, it is this court’s considered view that a multiplier of 10 years would be reasonable in this case. Bungoma CMC CC. No. E525 of 2024 8 of 14 Judgment

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Dependency ratio 38. The deceased was survived by his children, some of whom were minors. The deceased must have used a large fraction of his income to support his minor children. 39. Muriithi J in Sarah Naitore M’ikunyua v Geofrey Mwangi Bor & another [2021] eKLR adopted a dependency ratio of 2/3 where the deceased was single and was survived by minor children. 40. The deceased in this case was single and left behind minor children, just like the deceased in the Sarah Naitor M’ikunyua case (supra). Therefore, this court adopts a dependency ratio of 2/3 hence the award under this head will work out as follows: Kshs. 23,716.20/=X 24 X 10 X 2/3=Kshs. 1,264,864/= (b) Under the Law Reform Act (i)Loss of Expectation of Life 41. The deceased died aged 57 years old. No evidence was led on his ill health before he met his untimely death. The deceased’s life was cut short by the fatal accident herein. 42. 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. Bungoma CMC CC. No. E525 of 2024 9 of 14 Judgment

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43. This court finds no reason to depart from the conventional award under this head. Therefore, this court makes an award of Kshs. 100,000/= for loss of expectation of life. (ii) Pain and suffering 44. The accident herein occurred on 22nd May 2024. The deceased died on the same date of the accident. The deceased died at the scene of the accident as evidenced by the post-mortem report (Pexh. 15) placed before this court by the Plaintiff. 45. 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, 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.” 46. In Midland Sacco v Kirui & another (Suing as the legal representatives of the Estate of Richard Kipngeno Kirui Deceased) (Civil Appeal E010 of 2021) [2023] KEHC 22839 (KLR) an award of Kshs. 50,000/= was made after the deceased died on the same date of the accident. 47. In Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLR, Mativo, J upheld an award of Kshs. 50,000 Bungoma CMC CC. No. E525 of 2024 10 of 14 Judgment

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where the deceased was said to have died on the spot, as did Majanja, J in Sukari Industries Limited v Clyde Machimbo Juma (2020) eKLR. 48. Guided by the decisions above, this court makes an award of Kshs. 50,000/= under this head. (c)Special Damages 49. The Plaintiff pleaded for Special Damages of Kshs. 4,000/=. The Plaintiff produced a bundle of receipts (Pexh.2 & 14) for Special Damages of Kshs. 4,000/=. 50. It is against this backdrop that this court holds and finds that the Plaintiff pleaded and proved Special Damages of Kshs. 4,000/=. (d) Reasonable Funeral Expenses 51. The Plaintiff pleaded for reasonable funeral expenses. It is well settled in this jurisdiction that a party need not plead funeral expenses with specificity and that such expenses need not be proved strictly by way of receipts. Courts are encouraged to take judicial notice of funeral expenses. 52. The Plaintiff, having pleaded for reasonable funeral expenses, is entitled to the same. 53. The Court of Appeal in Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, held inter alia:"We agree and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on…” Bungoma CMC CC. No. E525 of 2024 11 of 14 Judgment

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54. In Premier Diary Limited v Amarjit Singh Sagoo & another [2013] eKLR, the Court of Appeal said that: “We do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with the issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved...” 55. The Court of Appeal proceeded in this case to uphold a sum of Kshs 150,000/=, awarded by the trial judge as reasonable funeral expenses by holding that: "...The learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages..." 56. This court takes judicial notice that the funeral of an adult family man in Western Kenya involves wide-ranging expenses, including the feeding of mourners, coffin costs, dressing of the deceased, dressing of the deceased’s close relatives, and many other funeral expenses. 57. Guided by the award of Kshs. 150,000/= as funeral expenses in the Premier Dairy Limited case (supra) and taking into consideration the passage of time since that decision was made and inflation trends, this court is of the considered view that an award of Kshs. 200,000/= is a reasonable award under this head for the funeral of a 57-year-old family man. DISPOSITION 58. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:Bungoma CMC CC. No. E525 of 2024 12 of 14 Judgment

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a) Liability – 50:50% in favour of the Plaintiff b) General damages under the Fatal Accident Act c) Loss of dependency - Kshs. 1,264,864/= d) Damages under the Law Reform Act e) Pain and Suffering -Kshs. 50,000/= f) Loss of expectation of life - Kshs. 100,000/= g) Special Damages (funeral expenses) - Kshs. 4,000/= h) Reasonable Funeral Expenses - Kshs. 200,000/= Grand Award - Kshs.1,618,864/= Less 50% Net Award - Kshs. 809,432/= 59. The General Damages will accrue interest at court rate from the date of this judgment till payment in full. 60. The Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 61. The Plaintiff will have the costs of this suit. 62. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 08 th day of May 2025 Bungoma CMC CC. No. E525 of 2024 13 of 14 Judgment

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T.O. OMONO RESIDENT MAGISTRATE In the presence of: Ms. Wesonga for the Plaintiff C/A: Albert Bungoma CMC CC. No. E525 of 2024 14 of 14 Judgment

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