Nyapore & another (Suing as the Legal Representatives of the Estate of Alfred Omina Ouma – Deceased) v Stabex Logistics Ltd & another (Civil Case E091 of 2025) [2026] KEMC 580 (KLR)

had suffered loss and damage under the Law Reform Act and the Fatal Accidents Act, thereby necessitating the filing of this suit for compensation. The Defendants entered appearance and contemporaneously with the filing of their memorandum of appearance filed a joint Statement of Defence dated 28th April 2025. The Defendants denied the occurrence of the accident and the ownership of the suit motor vehicle. They pleaded in the alternative that if the accident herein occurred, then the same was caused by the deceased negligence as set out in paragraph 6 of the said joint Statement of Defence. Given the above, the Defendants urged this court to dismiss the Plaintiffs’ case with costs. In response, the Plaintiffs filed a Reply to the Joint Statement of Defence dated 28th April 2025 join issues with the Defendants and reiterating the contents of their Plaint. Consequently, this matter proceeded to hearing for the parties herein to prove their respective cases on a balance of probabilities. The summary of the evidence led before this court by the parties herein is set out below. Plaintiff’s Case PW1 Praizy Mung’oni Nyapore is the deceased’s wife. She adopted her witness statement herein as her evidence in chief. She also produced all the documents in the Plaintiff’s list of documents dated 28 th February 2025 as exhibits. In cross-examination, she conceded that she did not have any proof that the deceased used to earn a monthly income of Kshs. 30,000/=. Defendants’ Case

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The Defendants did not call any witnesses to prove the averments in their joint Statement of Defence on a balance of probabilities. Therefore, the said averments remained mere allegations which this court cannot rely upon in determine this suit. However, it is noteworthy that on 27th November 2025, the parties herein produced all the documents filed by the Defendants by consent as Dexh. 1 – Dexh. 6. Plaintiffs’ written submissions The Plaintiffs urged this court to make an award of Kshs. 100,000/= for pain and suffering given that the deceased died on the same date of the accident. They placed reliance on Sukari Industries Limited -vs- Clyde Machimbo Juma (2016) eKLR where the High Court upheld an award of Kshs. 50,000/= made in favour of a deceased who died immediately after the accident. For loss of expectation of life, the Plaintiffs submitted that the conventional award of Kshs. 100,000/= was sufficient given that the deceased’s life was cut short by the accident herein. Turning to the award for loss of dependency, the Plaintiffs urged this court to adopt a multiplier of 26 years given that the deceased died aged 34 years and that he was expected to work as a charcoal vendor way beyond the retirement age of 60 years. They conceded that in the absence of proof of the deceased’s monthly income, this court ought to adopt the minimum wage as the multiplicand. They cited an authority where the court adopted a multiplicand of Kshs. 12,000/= for a charcoal burner with an unproven monthly income. The Plaintiffs also invited this court to adopt a dependency ratio of 2/3, given that the deceased was survived by his wife and four children.

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Finally, the Plaintiffs submitted that they had proved the Special Damages of Kshs. 117,200/= by way of receipts, hence the same ought to be awarded as pleaded in their Plaint. Defendants’ written submissions On the award for pain and suffering, the Defendants submitted that an award of Kshs. 10,000/= was sufficient since the deceased died on the spot. They took the view that an award of Kshs. 80,000/= for loss of expectation of life was reasonable because apart from ill health and the accident herein, other vagaries of life would have shortened the deceased’s life. The Defendants’ position on the award for loss of dependency was that a multiplier of 16 years was sufficient given the vagaries and vicissitudes of life. They conceded that the circumstances of this case permitted the adoption of a dependency ratio of 2/3. Regarding the multiplicand, the Defendants submitted that in the absence of proved deceased’s monthly income, this court ought to adopt the minimum wage of Kshs. 8,019/= for a casual labourer in other towns. The Defendants conceded that the Plaintiffs had proved the pleaded Special Damages of Kshs. 117,200/=. ANALYSIS & DETERMINATION This court has given due regard to the pleadings, evidence, written submissions, and the authorities placed before this court by the parties herein. On 27th November 2025, the parties herein recorded a consent on liability to the effect that liability was apportioned in the ratio of 80%:20% in favour of the Plaintiffs against the Defendants jointly and severally. It is against this backdrop that this court holds and finds that the only issue for determination is quantum.

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Quantum Under the Fatal Accidents Act Loss of Dependency The Plaintiff pleaded for damages under the Fatal Accidents Act. The damages awarded under the Fatal Accidents Act are contingent on proof of 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 Plaintiffs pleaded in paragraph 5 of their Plaint that the deceased was survived by his father, widow, and four children. two widows, three children, and his parents. This averment on the deceased’s dependents was proved on a balance of probabilities by the Tingolo Sub-location assistant chief’s letter dated 06th January 2025. To this end, this court places reliance on Tipper Hauliers Limited v Gladys Nanjala Namulata & another (Suing as the Legal Representative of the Estate of the Late Peter Wafula

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Kisache) [2020] KEHC 245 (KLR), where Mulwa J rendered herself thus on this issue: I stated earlier in this judgment that the chief of the area where the respondent resides, by his letter stated the children and dependants of the deceased. It is trite and of common knowledge that it is not only a birth certificate that can authenticate fatherhood or motherhood of children. There are many persons in our society who do not have or possess birth certificates, but are known by their local administration, be it the area chief, village elder, school, or Church, that the children belong to their father/mother having been born and raised in the locality. In my very considered view, a chief’s letter is a document that, for all purposes and intent, can authenticate dependants of a resident in the area. It is common knowledge that it is only recently in Kenya that it has become mandatory for all school going children to obtain birth certificates to enable them register in the schools. It was never a mandatory requirement. I therefore find and hold that the chief’s letter - PExhibit 3, sufficiently proved the deceased. I decline to accept the appellant’s submission to the contrary effect. The deceased father, widow, and children are dependents within the meaning of the Fatal Accidents Act, therefore, the claim for damages for loss of dependency is properly before this court. 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

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the circumstances of a case permit, the court may adopt the global award approach in making an award under this head. The evidence on record shows that the deceased died aged 34 years old while working as a businessman (see deceased’s Certificate of Death serial number 2001048 – Pexh. 1). It is common ground that the Plaintiffs did not prove on a balance of probabilities that the deceased used to earn a monthly income of Kshs. 20,000/=. This informed the parties’ submissions that the minimum wage ought to be adopted by this court in making an award under this head. Whereas the invitation above by the parties herein may look attractive, this court takes the view that the minimum wage cannot be applied in this case because a businessman or a charcoal vendor is not among those occupations listed in the Regulation of Wages (General Amendment) Order. Having determined that the deceased's occupation is not one of those occupations listed in the Regulation of Wages (General Amendment) Order, and that the deceased’s income at the time of his time of death were unknown, this court is of the considered view that applying the multiplier approach in making an award under this head will be akin to this court descending into the arena of speculation and groping in the dark. That is a path a court of law should not heed an invitation to take. This was well stated in Mwanzia Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another; which was cited with approval in Albert Odawa v Gichimu Gichenji (2007) eKLR as follows: “The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependancy, and the

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expected length of the dependancy are known or are knowable without undue speculation where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.” Similarly, the court in Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR); stated thus: “…where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.” It is against this backdrop that this court adopts the global award approach in making an award under this head. In Kirimi & another Representatives Deceased) v of (Suing the Kithinji as Estate & the of another Administrators Agnes (Civil Ntinyari Appeal and Legal Murungi - E042 of 2021) [2023] KEHC 17732 (KLR), the court made a global award of Kshs. 2,000,000/= under this head for a 32-year-old woman who was survived by her husband and three children. In Nyamu & another v Aloo & another (Suing as Legal Representatives and Administrator of the Estate of Walter Onyango Oloo (Deceased)) (Civil Appeal E530 of 2021) [2025] KEHC 6148 (KLR), the court made a global award of Kshs.

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2,500,000/= for a 34-year-old Nairobi mechanic with an unknown monthly income who was survived by his wife and children. Additionally, the high court in Khalif v M’Kirea & another (Suing as the legal representative of the estate of JMM (deceased)) [2022] KEHC 15932 (KLR) upheld the global sum of Kshs. 2,000,000, that had been awarded by the trial court as damages for loss of dependency for a deceased who died aged 35 years old and had left behind two minor children aged 11 and 8 years respectively, in the care of his aged parents. A reading of the authorities above shows that a global award of between Kshs. 2,000,000/= to Kshs. 2,500,000/= is usually awarded for a deceased person within the deceased’s age group who leaves behind a widow and young children. Guided by the authorities and considering the circumstances of this case, this court is of the considered view that a global award of Kshs. 2,000,000/= is reasonable under this head. In making the global award above, this court has also considered the fact that the beneficiaries under this Act will also benefit from awards under the Law Reform Act. Under the Law Reform Act (a)Loss of Expectation of Life The claim under this head was aptly expressed in Flint v Lovell {1935} 1KB354 where Lord Wright said: “A man has, a legal interest entailing him to complain if the integrity of his life is impaired by tortious acts, not only in regard to pain, suffering and disability, but in regard to the continuance of life for its normal expectancy. A man has a legal right, that his life shall not be shortened

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by the tortious act of another. His normal expectancy of life is a thing of temporal value, so that its impairment is something for which damages should be given…” The deceased died aged 34 years old. There is no evidence on record that the deceased was working in a risky environment at the time of his death. Further, there is no evidence before this court of the deceased’s ill health before his death. Therefore, the only logical conclusion to be drawn is that the deceased’s young life was cut short by the accident herein. In Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR, the court observed as follows regarding the award under this head: “The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/- while pain and suffering the awards range from Kshs. 10,000/- with higher damages being awarded if the pain and suffering was prolonged before death.” Guided by the authority above, this court finds no reason to depart from the conventional award of Kshs. 100,000/= under this head; therefore, this court makes an award of Kshs. 100,000/= under this head. (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. General damages for pain and suffering range from Kshs. 10,000/= where death is instantaneous to Kshs. 100,000/= where death occurs later. (See

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Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR). The deceased’s post-mortem examination report (Pexh.4) shows that the deceased died on the spot. The deceased relied on the Clyde Machimbo case (supra) for an award of Kshs. 100,000/= under this head. It is noteworthy that in that case, the court made an award of Kshs. 50,000/= for pain and suffering where the deceased died immediately after the accident. In legal parlance, the terms ‘immediately after the accident’ and ‘on the spot’ are distinct in meaning. Therefore, the Clyde Machimbo case (supra) is distinguishable from the facts of this case hence not applicable under this head. In High Plateau Limited v Namalwa & 2 others (Suing as the Administrators of the Estae of Alex Mafura (Deceased)) (Civil Appeal E146 of 2023) [2025] KEHC 10311 (KLR), Ougo J awarded Kshs. 20,000/= for pain and suffering where the deceased died on the spot died on the spot. It is for the reasons above that this court makes an award of Kshs. 20,000/= under this head for the fleeting pain and suffering the deceased must have experienced before meeting his death. Special Damages The parties herein were in agreement that the Plaintiffs pleaded and proved Special Damages of Kshs. 117,200/= to the required standards. Consequently, this court awards the Plaintiffs Special Damages of Kshs. 117,200/=. DETERMINATION

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Given the foregoing, judgment is entered against the Defendants jointly and severally in the following terms:a) Liability 80%:20% in favour of the Plaintiffs b) General damages under the Fatal Accident Act Loss of dependency - Kshs. 2,000,000/= c) Damages under the Law Reform Act Pain and Suffering -Kshs. 20,000/= Loss of expectation of life - Kshs. 100,000/= d) Special Damages - Kshs. 117,200/= Grand Award - Kshs. 2,237,000/= Less 20% Net Award - Kshs. 1,789,600/= The General Damages will accrue interest at court rate from the date of this judgment till payment in full. 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, subject to the ratio of liability agreed between the parties herein. Judgment accordingly.

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Read, signed, and delivered in open court at Bungoma this 20 th day of January 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Kweyu for the Plaintiff Ms. Wambani for the Defendants C/A: Mr. Rioba

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