AGM (Suing on Behalf of a Minor AMG - Deceased) v Buscar East Africa Limited (Civil Case 273 of 2019) [2026] KEMC 89 (KLR)

3. d. Failing to maintain a safe and proper course while using the road; e. Failing to have suficient control of the motor vehicle hence causing the fatal accident; f. Driving motor vehicle registration number KCF 25XX in a manner contrary to the provisions of the Traffic Act and the Highway Code. The plaintifis thus pray for judgment against the defendant for: a. Damages under the Fatal Accidents Act and the Law Reform Act and interest thereon; b. Special damages in the sum of Ksh. 222,425/=; c. Costs of the suit; The Defence 4. The defendant entered appearance on 17/12/2019 and filed a statement of defence on the same day. The defendant denied being the registered owner of motor vehicle registration number KCF 25XX, denied that the deceased was travelling in the said motor vehicle, denied that the motor vehicle was driven negligently, denied that the motor vehicle collided with motor vehicle registration number KAU 6XXX/ZE 4XXX, denied that the defendant’s motor vehicle caught fire and denied that the deceased died after being burnt beyond recognition. The defendant further denied the particulars of negligence pleaded in the plaint, denied the applicability of the doctrine of Res ipsa loquitor and instead pleaded the doctrine of Volenti non fit injuria. 5. In the alternative, the defendant averred that if the accident occurred, then the same was caused solely and/or substantially contributed to by the plaintifi’s own negligence. The defendant pleaded the following particulars of negligence as against the deceased: 6. 7. a. Failing to take any or any adequate precaution for his own safety; b. Failing to heed the instructions on safety precautions when travelling; c. Failing to heed the trafic rules and regulations when travelling. The defendant further pleaded the following particulars of negligence as against the plaintifi: a. Leaving a minor unattended when travelling; b. Failing to properly instruct the minor on road safety when travelling; c. Failing to take adequate safety of the minor. The defendant also pleaded the following particulars of negligence against the driver of motor vehicle KAU 6XXX/ZE 4964 (should be 4XXX): a. Driving at an excessive speed in the circumstances; b. Failing to have any or any suficient regard for the safety of the users of the said road by driving without due care and attention; c. Failing to keep any or any proper look out for other vehicles that might reasonably have been on the said road; d. Endangering the lives of other road users in his manner of driving and overtaking; e. Having total disregard for the trafic rules; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 2

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8. f. Failing to stop, slow down, to swerve or in any way so as to manage the said motor vehicle so as to avoid the collision; g. Failing to have due care and skill expected of a competent driver. The defendant further averred that if the accident occurred, then the same was beyond the control of the defendant. The defendant denied the particulars of injuries, loss and damage as pleaded in the plaint and averred that the plaint did not disclose any reasonable cause of action. He prayed that the plaintifi’s suit be dismissed with costs. The Evidence The Plaintifi ’s Case 9. At the hearing of the suit, two witnesses testified in support of the plaintifis’ case. PW 1 was the plaintifi. He adopted his statement filed in court as part of his testimony. The witness testified that he was the father to the deceased herein. His evidence was that the deceased had gone on a school trip but was involved in the accident herein. The witness was informed of the accident. That the deceased was burnt beyond recognition and was only identified after DNA tests were conducted on the bodies. PW 1 produced documents in support of the case. PW 2 Richard Mulei Muinde also adopted his statement filed in court as part of his testimony. He testified that on the material day, he was a passenger in the bus that was involved in the accident. That the bus was being driven at a high speed and after passing Sultan Hamud at about midnight, the bus driver overtook a Matatu which was ahead and in the process, it collided with an oncoming truck. PW 2 testified that after the collision, the bus caught fire. He lost consciousness for a while and when he regained, he broke the window and jumped out of the bus. That some passengers got burnt and others were seriously injured. The witness blamed the bus driver for overtaking dangerously. That it was at night and raining. The Defence Case 10. The defendant did not call any witnesses. Main Issues For Determination 11. In my opinion, the main issues for determination are as follows: i. Whether an accident occurred on 4/7/2018 along Mombasa-Nairobi highway involving motor vehicle registration number KCF 25XX and KAU 6XXX/ZE 4XXX; ii. Whether the deceased herein was a passenger in KCF 25XX at the material time; iii. Whether motor vehicle registration number KCF 25XX belonged to the defendant at the material time; iv. Whether the driver of motor vehicle registration number KCF 25XX was negligent in the circumstances and therefore liable for the accident; v. Whether the defendant is vicariously liable for the accident; vi. Whether the deceased died as a result of injuries sustained in the accident; vii. Whether the estate of the deceased and his dependants are entitled to damages; viii. If so, the nature and quantum thereof; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 3

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ix. Who should bear the costs of this suit? The Plaintifi ’s Submissions 12. In his submissions, the plaintifi relied on his evidence and submitted that due to the age of the deceased, no liability could attach to him. That as a passenger, the deceased had no control over the acts of the driver. The plaintifi submitted that the defendant was the registered owner of the accident motor vehicle at the material time and that the driver was an agent of the defendant, a fact that the defendant did not deny. The plaintifi urged the court to find the defendant 100% vicariously liable. 13. On quantum, the plaintifi proposed Ksh. 100,000/= for pain and sufiering. He relied on a decision delivered by myself and the authority of Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR , wherein an award of Ksh. 50,000/= made on 25/9/2015 was afirmed on appeal on 15/2/2016. For loss of expectation of life, the plaintifi proposed a sum of Ksh. 150,000/= and relied on the authority of Daniel Mwangi Kimemi & 2 others v JGM & SMM (the personal representatives of the estate of NK (Deceased) [2016] eKLR , in which an award of Ksh. 100,000/= made by the trial court in respect of deceased minor aged 9 years was afirmed on appeal. For loss of dependency, the plaintifis proposed a global sum of Ksh. 3,000,000/=. The plaintifi urged the court to award special damages as pleaded together with costs the suit and interest. The Defendant’s Submissions 14. The defendant did not file submissions. Analysis And Determination 15. I have considered the evidence on record and given due regard to the submissions made by the plaintifi. From the testimony of PW 2 and the police abstract produced in evidence, I have no doubt that an accident occurred on 4/7/2018 at Civicon area along Mombasa-Nairobi highway involving motor vehicles registration numbers KCF 25XX and KAU 6XXX/ZE 4XXX. There is also uncontroverted evidence indicating that the deceased herein was a passenger. The police abstract produced in evidence indicates that the defendant was the owner of motor vehicle registration number KCF 25XX at the time of accident. The plaintifi produced in evidence motor vehicle copy of records which indicated that the defendant was the registered owner of motor vehicle registration number KCF 25XX as at 5/2/2019. There is no contrary evidence. I am thus satisfied that the defendant was the owner of motor vehicle registration number KCF 25XX at the material time. Liability 16. It is the duty of the plaintifi to establish or prove negligence on the part of the defendant. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintifi must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 , the Court of Appeal held thus: “ The burden was always on the plaintifi to prove his case on the balance of probabilities even if the case was heard on formal proof.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 4

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17. There is only one version as to how the accident occurred. The version was given by PW 2 who claimed to have been a passenger in the bus at the material time. The evidence of PW 2 was that the driver of the bus was driving at a high speed and attempted to overtake when the bus collided with an oncoming truck. That as a result, the bus caught fire. The plaintifis relied on the doctrine of Res ipsa loquitor . In the leading case of Scott v London and St Katherine Docks Co (1865) 3 H & C 596 , Erle CJ at page 600 held as follows: “ There must be reasonable evidence of negligence. But, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it afiords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care". 18. In Black’s Law Dictionary 9th Edition page 1424, the principle is defined as follows: “ [Latin “the thing speaks for itself”] Torts. The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case. Often shortened to res ipsa.” 19. The Dictionary goes further to explain the circumstances the Court will infer negligence as follows: “ The phrase ‘res ipsa loquitur’ is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintifi’s prima facie case, and present a question of fact for the defendant to meet with an explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature as to justify a jury, in light of common sense and past experience, in inferring that the accident was probably the result of the defendant’s negligence, in the absence of explanation or other evidence which the jury believes.” “It is said that res ipsa loquitur does not apply if the cause of the harm is known. This is a dark saying. The application of the principle nearly always presupposes that some part of the causal process is known, but what is lacking is evidence of its connection with the defendant’s act or inference that the defendant’s negligence was responsible. It must of course be shown that the thing in his control in fact caused the harm. In a sense, therefore, the cause of the harm must be known before the maxim can apply.” ‘ Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintifi in particular cases to establish the defendant’s likely negligence. Hence the res ipsa loquitur doctrine, properly applied, does not entail any covert form of strict liability … The doctrine implies that the court does not know, and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of the causes of the type or category of accidents involved.” 20. Kennedy L.J. in Russel v. L. & S. W. Ry [1908] 24 T.L.R. 548 at p. 551 as follows: “ ….that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without. The res speaks because the facts stand unexplained, and therefore the natural https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 5

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and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is some want of reasonable care under the circumstances.” 21. The Learned Judge then continued: “ Res ipsa loquitur does not mean, as I understand it, that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implies negligence. That is absurd. It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of.” 22. In Henderson v Henry E Jenkins & Sons [1970] AC 282 at 301 Lord Pearson stated: “ In an action for negligence the plaintifi must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintifi’s action fails. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintifi’s favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential of proof resting on the defendants...” 23. In the case of Embu Public Roads Services Ltd v Riimi (1968) EALR 22, the Court of Appeal held as follows: “ The doctrine of res ipsa loquitor is one which a plaintifi, by proving that an accident occurred, in the circumstances in which an accident should not have occurred thereby discharges in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident". 24. From the foregoing, it is clear that the doctrine of res ipsa loquitor applies only where circumstances are established which afiord reasonable evidence (in the absence of explanation by the defendant) that the incident leading to the injuries arose from their negligence. In an appropriate case, the plaintifi establishes a prima facie case by relying upon the fact of the incident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintifi will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the incident. 25. Loosely speaking, this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case. On the basis of the evidence on record, a prima facie case of negligence has been established as there is a causal link between the driver of the accident motor vehicle and the injuries that were sustained by the deceased. The doctrine, in my view, will thus apply. It is reasonably possible to decide on the evidence on record as to who is to blame for the accident. A prudent driver could not overtake in the face of oncoming trafic or without ensuring that it was safe to do so. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 6

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26. There is absolutely no evidence to show that the deceased was negligent. The defendant purported to impute negligence on the part of the plaintifi and the driver of motor vehicle registration number KAU 6XXX/ZE 4XXX. No third part proceedings were taken out against the driver and owner of motor vehicle registration number KAU 6XXX/ZE 4XXX. In the presence of prima facie negligence on the part of the driver of the motor vehicle registration number KCF 25XX and there being no explanation from the defendant, I find the driver of the said motor vehicle 100% liable for the accident. 27. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior , the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. 28. In the case of Morgan v Launchbury[1972] ALL ER 606 , it was held, inter alia , that: “ To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.” 29. Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012]eKLR the Court of Appeal held that: “ Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.” 30. Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519 , the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that: “ Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.” 31. There is no evidence refuting the fact that the driver of the accident motor vehicle registration number KCN 909F/ZE 6238 was driving in the course of his employment with the defendant. Consequently, I find the defendant 100% vicariously liable for the negligence of its driver. Quantum 32. There is suficient and irrefutable evidence indicating that the deceased herein died as a result of injuries sustained in the accident. Having made a finding on liability, it follows that the estate of the deceased and his dependants, are entitled to damages. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts. This Court has to bear in mind the principles that https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 7

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guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said: “ But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 33. I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that: “ In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintifi and the defendant. …………………..the plaintifi cannot be fully compensated for all the loss sufiered but the court should aim at compensating the plaintifi fairly and reasonably but in the process should not punish the defendant.” 34. 35. The following principles are germane in assessing damages for personal injury claims: i. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries sufiered; ii. The award should be commensurate to the injuries sufiered; iii. Awards in decided cases are mere guides and each case should be treated on its own facts and merit; iv. Where awards in decided cases are to be taken into consideration then the issue of or element of infiation has to be taken into consideration; v. Awards should not be inordinately too high or too low. I proceed to assess and award the damages payable as follows: 1. Damages for pain and sufiering The evidence indicates that the deceased died on the spot. Damages under this head are awarded on the basis of the time the deceased sufiered pain before death. The longer it took the deceased to die, the higher the damages. I have considered the authority relied upon by the plaintifi. In the case of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 Others [2013] eKLR, the deceased died on the spot following an accident and Ksh. 50,000/= was awarded. The manner in which the deceased died in this case was traumatic and agonizing. The deceased was burnt beyond recognition. He must have sufiered excruciating pain before breathing his last. Considering the age of most authorities coupled with the vagaries of infiation, as well as the manner in which the deceased met his death, I find that an award of Ksh. 100,000/= as proposed by the plaintifi would be reasonable. I award the same. 2. Damages for loss of expectation of life The evidence on record indicates that the deceased died at the age of 4 years. This was indicated in the copy of the certificate of death produced in evidence. The trend in the authorities https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 8

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indicates that the younger the deceased at the time of death, the higher the award. The authority relied upon by the plaintifi is comparable. I have considered the authority of Cherangany Hills Ltd & another v Wanyama (Suing as the Administrator to the Estate of Brian Khisa Wanyama) [2025] KECA 1030 (KLR), in which an award of Ksh. 200,000/= made by the Magistrate’s court on 27/5/2017 for a deceased aged 18 years was afirmed by the Court of Appeal on 5/6/2025. Given the age of the deceased herein, I would have awarded a higher figure had it been pleaded. However, on the basis of the plaintifi’s submissions or proposal, I award Ksh. 150,000/=. 3. Damages for loss of dependency Section 4(1) 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, 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 divided amongst those persons in such shares as the court, by its judgment, shall find and direct". 36. The plaintifi listed the parents and a sibling as the dependants of the deceased. Siblings are not proper dependants under the Act. My view is buttressed by the authority of M’bagine v Nyaga [2026] KECA 335 (KLR), wherein the Court of Appeal held: “ Section 4 of the FAA limits the beneficiaries of a dependency claim to a wife, husband, parent and child of the deceased. The claimant bears the burden of proving the qualifying relationship and the fact of dependency.” The only proper expected dependants are parents of the deceased. 37. The deceased died at the age of 4 years and was said to be a pupil although no documentary evidence was adduced. It is clear that the deceased was not earning any income. The plaintifi proposed a global award. There are confiicting decisions particularly in the High court on how damages under this head ought to be awarded in the absence of proof of earnings and where the deceased was a minor. Some Judges adopt the global award approach whereas others adopt the multiplier approach. However, the Court of Appeal appears to have settled the issue, particularly where the deceased is said to be a minor and not earning any income. For instance, in the authority of M’bagine (supra), the Court of Appeal held: “ Where the deceased was a minor or a young person with no proven earnings, this Court has recognised that strict application of the multiplier/multiplicand method may be impracticable and may lead to undue speculation. In such situations, courts may adopt a global or conventional award, but the court must still be guided by evidence of education, prospects, and the nature of the dependency. The discretion must be exercised judiciously and with reasons.” 38. Similarly, in Waweru (Suing as the Legal Representative and Administrator of the Estate of Brian Waweru Mwaura (Deceased)) v Bonafide Clearing and Forwarding Company Limited & another https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 9

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[2025] KECA 620 (KLR), the Court of Appeal while dealing with a case where the deceased was a student observed that under the circumstances where the multiplier approach was not supported by evidence, the trial court was correct in adopting a global figure in arriving at the loss of dependency. 39. Furthermore, in Cherangany Hills Ltd (supra), the Court of Appeal held: “ We have on our part considered the deceased age, that he was a student in Form Two, the vagaries and vicissitudes of life and the authorities cited above and we are persuaded that the multiplicand of Kshs.9,000/=, which is essentially an issue of fact, which must be proved, was not supported by evidence and it ignored the vicissitudes of life. Further, the multiplier of 30 years ignored the vagaries of life. Guided by the earlier cited decisions in which the trial courts awarded a global sum for comparable ages, we are persuaded that a global sum is the justifiable way to go in the circumstances of this case.” 40. Being guided by the above authorities, I will adopt a global sum as proposed by the plaintifis. In Daniel Mwangi Kimemi (supra), the Court awarded Ksh. 1,000,000/= for a deceased aged 9 years. This was in 2016. Considering the age of the deceased herein at the time of death, the age of most authorities coupled with the vagaries of infiation, I award Ksh. 1,600,000/= under this head. Funeral and related Expenses 41. The plaintifis pleaded claims in the nature of funeral expenses, under the head of special damages. These were: a. Cofin, morgue, hearse and public address……………..Ksh. 50,000/= b. Tent and chairs…………………………………………………..…..Ksh. 10,000/= c. Food………………………………………………………………….…….Ksh. 30,000/= d. Transport…………………………………………………………….…..Ksh. 95,000/= e. Grave…………………………………………………………………….…..Ksh. 8,500/= f. Miscellaneous…………………………………………………………..Ksh. 20,000/= Total………………………………………………………………………..Ksh. 213,500/= 42. In the case of Damaris Mwelu Kerewoi v Mbarak Kijan Ali, MOMBASA HCCC NO. 776 OF 1995 Hayanga J (as he then was) observed that the court can take judicial notice of the fact that funeral expenses are usually incurred and that where they are not proved, the court can award a nominal amount. In the case of Marion Njeri Kago v Kenya Railways Corporation [2014] eKLR, the court held as follows: “ Funeral expenses, though usually claimed as special damages, are a proper claim under the Law Reform Act. That way the court is able to award a reasonable sum, depending on the Deceased’s station in life and other factors, without the confines of strict proof." 43. Section 2(2) (c) of the Law Reform Act provides as follows: “ Where a cause of action so survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person— https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 10

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where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included". 44. Similarly, section 6 of the Fatal Accidents Act provides that: “ In an action brought by virtue of the provisions of this Act the court may award, in addition to any damages awarded under the provisions of subsection (1) of section 4, damages in respect of the funeral expenses of the deceased person, if those expenses have been incurred by the parties for whom and for whose benefit the action is brought". 45. The above implies that funeral expenses can be awarded under the two Acts. This way, the court will assess the same depending on the circumstances of the case without insisting on strict proof as in special damages. The receipts for funeral expenses amount to Ksh. 120,000/= only. I am aware of the nature of African funerals and I am sure that more than Ksh. 120,000/= must have been spent during the funeral. In the circumstances, I will award Ksh. 150,000/=. Special Damages 46. In his plaint, the plaintifi pleaded special damages (apart from the funeral related expenses) as follows: a. Death certificate and burial permit………….Ksh. 6,500/= b. Police abstract…………………………………………...Ksh. 100/= c. Motor vehicle search ………………………………...Ksh. 900/= d. Fees for Letters of administration………….…Ksh. 1,325/= e. Demand letter……………………………………………. Ksh. 100/= Total………………………………………………………… Ksh. 8,925/= 47. It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said:It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 48. In Ouma- v - Nairobi City Council [1976] KLR 304 after stressing the need for a plaintifi in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L.J’s Judgment on page 532 and 533 in Ratclifie-v- Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage: The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 11

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49. Similarly, in the case of Hahn v Singh [1985] KLR 716, it was held that: … special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves.” 50. The claim was not proven by way of receipts. I will thus make no award for special damages. Disposition 51. In summary, I find that the plaintifi has proven his case on a balance of probabilities against the defendant. Consequently, I hereby make the following awards in favour of the plaintifi and against the defendant: a. Damages for pain and sufiering..........................................Ksh. 100,000/= b. Damages for loss of expectation of life...............................Ksh. 150,000/= c. Damages for loss of dependency………………………………..…Ksh. 1,600,000/= d. Funeral and related expenses..............................................Ksh. 150,000/= Total................................................................................. Ksh.2,000,000/= 52. 53. The plaintifi is also awarded interest on the damages as well as costs of the suit. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that: (1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR , the court stated that: First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380. 54. Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely: a. The period from the date the suit is filed to the date when the Court gives its judgment; and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 12

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b. 55. The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows: It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment ………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied ) 56. From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with efiect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). 57. Consequently, interest on the damages for pain and sufiering, loss of expectation of life and loss of dependency shall accrue at court rates from the date of judgment/decree until payment in full and on funeral expenses, from the date of filing suit to the date of judgment/decree. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26 TH DAY OF MARCH, 2026. Y.A. SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26 13

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