Waiganjo (Suing as the Legal Representative of the Estate of Peter Ndere Waiganjo) v Njoroge (Civil Case E065 of 2023) [2026] KEMC 337 (KLR)

A. Liability 4. In his testimony, PW1 testified that he saw the subject vehicle being driven from Murang’a towards Kangema, and when it got to the scene, the driver lost control when the left rear tire burst. He hit the pedestrian walking on the left side of the road, tried to return his vehicle to the road, and only managed to stop his vehicle when it hit a hip of soil. The defendant did not counter the plaintifi’s account on the circumstances that led to the occurrence of the accident. Interlocutory judgment having been entered against the defendant, the question of liability was definitively resolved in favor of the plaintifi. Accordingly, the sole issue for determination is the assessment of damages. (See Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR). B. General Damages (I) Law Reform Act a. Pain and sufiering 5. The plaintifi has sought compensation for the pain and sufiering the deceased underwent before he ultimately succumbed to his injuries. In Sukari Industries Limited v Clyde Machimbo Juma [2016] KEHC 8728 (KLR) where the deceased had died immediately after the accident and the trial court awarded Ksh. 50,000/= for pain and sufiering, Majanja J. held as follows on the assessment of damages under this head; “ On the first issue, I hold that it is natural that any person who sufiers injury as a result of an accident will sufier some form of pain. The pain may be brief and fieeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and sufiering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.” 6. Similarly, Odunga J. (as he then was) observed thus in the case of Joseph Kivati Wambua v SMM & another (Suing as the Legal Representatives of the Estate of EMM-Deceased) [2021] KEHC 9632 (KLR); “ The Appellant has taken issue with the award for pain and sufiering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness… a distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and sufiering would not be nominal.” 7. The certificate of death produced by PW2 shows that the deceased died on 11th October 2017 which was the same day the accident occurred. The entries made in the post mortem report showed that the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/337/eng@2026-07-08 2

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deceased died at 9:00 p.m. and the cause of his death was a head injury. According to PW1, the accident occurred at around 3:00 p.m. 8. In his submissions, learned counsel for the plaintifi urged this court to award the plaintifi Kshs. 100,000/= for pain and sufiering. He referred this court to the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR in support of his submissions. 9. Although the deceased in the present case died on the same day the accident occurred, this court notes that the Above authority was made nearly a decade ago. Consequently, this court finds that the plaintifi’s claim for Kshs. 100,000/= for pain and sufiering is within reason. The court awards the plaintifi a sum of Kshs. 100,000/= for pain and sufiering. b. Loss of expectation of life 10. In the case of Coast Bus (MSA) Ltd v Fatimabhai Osman Suleiman & another (suing at the Legal Representatives of the Estate of Aslam Jeferali Juma [2020] KEHC 4203 (KLR) the court elucidated on the applicable principles for assessing a claim for loss of expectation of life thus; Loss of Life Expectation is a common law claim for a loss sufiered by the Deceased. As the Deceased is no longer able to do so, the claim or suit is brought on his behalf by his Guardians ad Litem (ad colliegenda di bono) as was the case here. It is a claim brought by the Deceased (the owner of the life), through his representatives. Therefore, the assessment must based on the characteristics of the Deceased and not any potential beneficiaries to the Estate. 11. The plaintifi’s learned counsel urged this court to award the plaintifi a sum of Kshs. 200,000/= for loss of expectation of life. Reliance was placed on the case of Njoroge & Another v Wanjugu & Another [2024] KEHC 14957 where the court awarded the plaintifi a sum of Kshs. 100,000/= under this head. In the case of Climax Coaches Bus Limited v Omukobo & another (Suing as the Legal Representatives in the Estate of the Late Nathan Omurunga Otuoma) (Civil Appeal E072 of 2023) [2024] KEHC 13057 (KLR) (25 October 2024) (Judgment) where the deceased who was a 4th year university student died aged 25 years old, the court substituted an award of Kshs. 200,000/= with an award of Kshs. 150,000/= for loss of expectation of life. 12. The deceased in the present suit died at the young age of 23 years. PW2’s unchallenged testimony was that the deceased was in good health at the time of his demise. He was a student at Murang’a University, pursuing a Bachelor’s degree in Human Resource Management. She believed he had a promising future before his life was cut short. Guided by the foregoing decision this court awards the plaintifi a sum of Kshs. 150,000/= for loss of expectation of life. (II) Loss of dependency 13. The factors to considered in assessing damages for loss of dependency under the Fatal Accidents Act are the age of the deceased, the expectancy of the deceased’s working life, the ages and expectations of life of his dependents, the deceased’s net earning power and the proportion of his net income which he would have made available to his dependents. (See Dickson Taabu Ogutu (Suing as the legal representative of the estate of Wilberforce Ouma Wanyama v Festus Akolo & another [2020] KECA 884 (KLR) 14. The deceased herein died at the age of 23 years. He had no children or spouse and was only survived by his mother at the time of his demise. PW2 produced a copy of the deceased’s student card and a letter written by the registrar of Murang’a University of Technology confirming that the deceased was pursuing a Bachelor’s degree in Human Resource Management. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/337/eng@2026-07-08 3

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15. The plaintifi’s counsel argued that a global award of Kshs. 2,000,000/= would sufice for loss of dependency. 16. In the case of Climax Coaches (supra) the court upheld an award of Kshs. 4,000,000/=. In that case the deceased was a university student training as a teacher. In reaching its decision, the court considered the awards made by various courts for loss of dependency of life for university students. In its analysis the court held as follows; “ 37. I have considered the authorities cited by the Appellant. In the case of Peter Kibogoro Wanjohi -vs- Christine Wakuthi Mwaniki & Another [2009] eKLR, the deceased an award of Kshs. 2,500,000/= was made for a student studying Bachelor of Education. In the case of Zachary Abusa Magoma (supra) Kshs. 1,500,000/= was awarded more recently for a deceased who was studying food and beverage at Gusii Institute (not the University as submitted by the Appellant). In Teresia Wanjiru Githinji - vs- Lucy Kanana M’rukaria & Another (Suing as Legal Representatives of Ernest Gutuura Nabea (deceased) [2021] eKLR, Kshs. 1,500,000/= for a student at Chuka University. I have also considered the cases cited by the trial court and other authorities not cited by the parties. ... 41. In the case of Rosemary Mwasya -vs- steve Tito Mwasya & Another [2018] eKLR, the Court of Appeal awarded the sum of Kshs. 9,484,080.00 being general damages for lost years for an Accounts student at Strathmore University where the Plaintifis had furnished the Court with a survey of salaries showing that Accountants were earning Kshs. 118,546/ = and the court applied a multiplier of thirty (30) years for a nineteen (19) year old on the presumption that he would have commenced working at the age of twenty five (25) years and retired at fifty five (55) years. 42. Having taken into consideration the cited cases, this court is of the view that the sum of Kshs. 4,000,000/= awarded as general damages for lost years was reasonable and does not warrant any disturbance for reasons that a claimant should not sufier prejudice due to the court’s decision to apply the global sum approach.” 17. Similarly, there was nothing that was adduced in the present suit to suggest that the deceased would not have progressed in a successful career in Human Resource Management. It is expected that the deceased would have worked until the conventional age of 60 years had his life not have been cut short at the cusp of his life. Considering the foregoing facts and authorities, this court finds the global sum of Kshs. 2,000,000/= reasonable and awards the plaintifi that amount for loss of dependency. C. Special damages 18. The plaintifi sought a sum of Kshs. 32,150/= in special damages being the sum of Kshs. 50/= for procuring the death certificate, Kshs. 5,000/= for obtaining limited grant from the High Court, Kshs. 200/= for obtaining the police abstract, Kshs. 8,000/= for the post mortem and Kshs. 18,900/= for the cofin. The plaintifi was required to strictly prove the claim for special damages as they cannot be inferred from the facts. (See Hahn V Singh [1985] KECA 129 (KLR) 19. The plaintifi produced receipts for a sum of Kshs. 5,000/= to prove the sums sought to obtain the limited grant from the High Court and Kshs. 18,900/= to prove the sums spent on the cofin. The plaintifi is therefore entitled to a sum of Kshs. 23,900/= in special damages. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/337/eng@2026-07-08 4

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Conclusion 20. The upshot of the foregoing is that the plaintifi’s claim against the defendant is allowed in the sum of Kshs. 2,273,900/= computed as follows; a) Liability is entered at 100% in favour of the plaintifi against the defendant b) Pain and Sufiering- Kshs. 100,000/= c) Loss of expectation of life- Kshs. 150,000/= d) Loss of dependency - Kshs. 2,000,000/= e) Special damages- Kshs. 23,900/= Total- 2,273,900 21. Interest on the above award shall accrue at court rates from the date of judgment until payment in full. 22. The defendant shall bear the costs of the suit. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF JULY 2026. HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE Judgment read on the virtual platform in the presence of; C/A Jeremiah Mr. Njogu for The Plaintifi No appearance for the Defendant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/337/eng@2026-07-08 5

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