Nariki & another (Suing as the Legal Representatives of the Estate of Christopher Musoga Sagana (Deceased)) v Onyango & another (Civil Case E142 of 2025) [2026] KEMC 623 (KLR)

4. Further, the Plaintifis averred that the deceased was a 43-year-old cereals businessman earning Kshs. 40,000/= per month. 5. The Plaintifis also pleaded that the deceased was survived by his father, mother, and three children aged 17, 15, and 12 years old. Consequently, the Plaintifis pleaded that arising from the accident herein, the deceased’s estate had sufiered loss and damage under the Law Reform Act and the Fatal Accidents Act, thereby necessitating the filing of this suit for compensation. 6. The Defendants responded to the Plaintifi’s Amended Defence herein through a joint Statement of Defence dated 08th December 2025 denying ownership of the motor vehicle, the occurrence of the accident, as well as the particulars of negligence attributed to them by the Plaintifis. 7. The Defendants pleaded in the alternative that if the accident herein occurred then the same was solely caused by the deceased’s negligence as set out in paragraph 7 of their Statement of Defence. 8. The Defendants also placed reliance on the provisions of the Traffic Act, the Highway Code, and the doctrine of res ipsa loquitor. 9. It is against this backdrop that the Defendants urged this court to dismiss this suit with costs. 10. Given the divergent positions taken by the Plaintifis and the Defendants on the circumstances under which the accident herein occurred, this matter was set down for hearing for the parties herein to prove the averments in their pleadings on a balance of probabilities. 11. The summary of the evidence led before this court by the parties herein is set out below. Plaintifi ’s Case 12. PW1 Reverend Andrew Sagana Nariki is the deceased’s father. He adopted his witness statement dated 25th March 2025 as his evidence in chief. He produced all the documents filed by the Plaintifis herein as exhibits, save for the police abstract. 13. He also stated that the deceased’s children were school-going children. 14. He admitted in cross-examination that he did not witness the accident. 15. PW2 Paul Simiyu Barasa adopted his witness statement dated 16th April 2025 as his evidence in chief. He recalled that on the date of the incident while standing on the left side of the road as one faces Kanduyi from the Bungoma general direction, he saw the deceased standing some few meters ahead of him. 16. He then saw the motor vehicle coming from the Bungoma general direction, headed to Kanduyi, suddenly lose control, swerve, and knock the deceased. 17. He added that the motor vehicle was being driven at a high speed and that the deceased was knocked ofi the road. 18. PW3 No. 7xxx6 PC Isaac Kimani Njuguna of Bungoma Trafic Base produced the accident’s police abstract dated 05th September 2024 (Pexh.5) showing that the accident herein occurred on 04th August 2024 along Kanduyi – Bungoma road involving the motor vehicle and a pedestrian (the deceased) who was fatally injured as a result of the accident. 19. He could not tell if anyone had been charged for causing the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 2

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20. He conceded in cross-examination that he was not the accident’s investigating oficer. He added that the accident’s witnesses were Andrew Sagana, Caleb Kenyanya, and PC Lemoge. He could not tell the motor vehicle’s resting point after the accident. Defendants’ Case 21. DW1 Stephen Onyango Makanga adopted his witness statement filed on 24th October 2025 as his evidence in chief. He recalled that the accident occurred when the deceased suddenly crossed the road at an undesignated area. He added that despite applying the brakes the accident still occurred. 22. He further testified in cross-examination that the deceased jumped and hit the motor vehicle while he was driving at 30 Km/hr. 23. He clarified in re-examination that the accident occurred when the deceased jumped while crossing the road to avoid being hit by a tuk-tuk, which was on the outer lane, only to be hit by his motor vehicle, which was being driven on the inner lane. 24. DW2 Fredrick Omondi an investigator from Tracefile Insurance Forensic Services investigated the circumstances under which the accident occurred. His testimony was that the accident occurred when the motor vehicle was being driven on the inner lane along Bungoma – Kanduyi road headed to Kanduyi general direction, while a tuk-tuk being driven towards the same direction was being driven in the outer lane only for the deceased to suddenly emerge in front of the tuk-tuk in an attempt to cross the road from the left side to the right side. 25. He added that by the deceased suddenly emerging on the road, the motor vehicle driver did not have suficient time to decelerate or swerve, thus leading to the occurrence of the accident. 26. He produced the Investigations Report dated 11th July 2025 as an exhibit (Dexh. 1). 27. He further stated in cross-examination that the Investigations Report herein showed the accident’s point of impact as evidenced by the scene photos and the sketch plan in the said report. He added that the scene photos showed the motor vehicle’s final resting point after the accident. Analysis & Determination 28. This court has given due regard to the pleadings, evidence, written submissions, and the authorities placed before this court by the parties herein. 29. The parties herein are in agreement that the accident occurred. The Defendant’s ownership of the motor vehicle is also not disputed. 30. It is against this backdrop that this court holds and finds that the issues for determination are liability and quantum. Liability 31. The Plaintifis urged this court to find the Defendants 100% liable for the occurrence of the accident since the motor vehicle driver knocked the deceased ofi the road, given the eye witness testimony by PW2. 32. They added that the motor vehicle driver should also be blamed for the occurrence of the accident given that the police had recommended a charge of causing death by dangerous driving against him. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 3

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33. The Plaintifis further submitted that the report prepared by DW2 on the circumstances under which the accident occurred was not of any evidential value on account of the lack of an independent witness, since the same was largely based on DW1’s statement. 34. The Defendants, on the other hand, submitted that the deceased should be found 100% liable for the occurrence of the accident given that the motor vehicle knocked him while he was crossing the road at an undesignated area. 35. This court notes that PW2 and DW1 who witnessed the accident took a divergent position on the circumstances under which the accident occurred. Whereas PW2 stated that the accident occurred when the motor vehicle hit the deceased ofi-road, DW1 maintained that he knocked down the deceased while the deceased was trying to avoid being hit by a tuk-tuk as he crossed the road at an undesignated area. 36. The law in this jurisdiction is that he who alleges must prove. Therefore, it follows that the Plaintifis and the Defendants bore the burden of proving the particulars of negligence pleaded in their pleadings. 37. The Plaintifi simply chose to rely on PW2’s testimony on the circumstances of the accident and an entry in the police abstract that police oficers intended to charge DW1 with an ofience of causing death by dangerous driving. 38. It has been held several times that an entry in a police abstract that a motor vehicle driver was to be charged for a trafic ofience is not conclusive evidence that such a driver was to blame for the occurrence of the accident. 39. This court takes the view that in the face of the contradictory evidence by DW1 on the circumstances under which the accident occurred, it was prudent for the Plaintifis to place before this court the accident’s sketch plan, investigations file, or call the accident’s investigating oficer as a witness for this court to fully appreciate the accident’s point of impact. 40. Whereas the Plaintifis urged this court to disregard DW2’s report on the circumstances under which the accident occurred, this court notes that the sketch plan and the scene photos in the said report corroborated the Defendants’ version of events on how the accident occurred. 41. The scene photos show that the motor vehicle’s resting point and the point of impact were not ofiroad, as alleged by PW2. The said photos show that the accident actually happened along the road. 42. It is for the reasons above that this court finds that the Defendants proved on a balance of probabilities that the accident herein occurred when the deceased was crossing the road at an undesignated area. 43. The foregoing shows that the deceased in this case breached the Highway Code by crossing the road at an undesignated area, thereby exposing himself to danger. Breach of the Highway Code by a road user attracts sanctions when determining liability in a trafic case. This position is fortified by section 68 (3) of the Traffic Act, which provides that: “ A failure on the part of any person to observe any provisions of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in the proceedings be relied upon by any party to the proceedings as tending to establish to negative any liability which is in question in those proceedings." 44. The above is in line with the legal maxim that one cannot profit from their own wrong (ex turpi causa non oritur actio). Therefore, it follows that the Plaintifi, having breached the Highway Code, must be held to have contributed to the occurrence of the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 4

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45. On the face of it, one may easily rush to wholly blame the deceased for the occurrence of the accident. However, it is worth noting that a prudent driver does not knock anything along their way just because that thing is wrongly on the road. The mere fact that the deceased was in the wrong did not give the motor vehicle driver the licence to knock down the deceased. The motor vehicle driver still owed the deceased a duty of care. This legal position can be gleaned from Masembe v Sugar Corporation and another [2002] 2 EA 434, where it was held that: “ When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” 46. Guided by the authority above, it follows that the motor vehicle driver owed the deceased a duty of care to ensure the deceased’s safety regardless of whether the deceased was crossing the road at a designated point or not. 47. The motor vehicle driver would have prevented the occurrence of the accident if he had been driving the motor vehicle at a reasonable speed capable of making him brake on time on anything emerging suddenly on his path. 48. This court takes the considered view that the motor vehicle driver owed the deceased a higher duty of care, given that he was driving a motor vehicle, which is a dangerous machine if not handled well. To this end, this court places reliance on Monda v Suji & another [Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased] [2023] KEHC 2778 [KLR], where Aburili J posited as follows: “ 35. 49. Further, in the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, this court expressed itself thus;“A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.” Given the reasons above, and taking the totality of the circumstances of this case into consideration, this court apportions liability in the ratio of 80%:20% in favour of the Plaintifi as against the Defendants jointly and severally. Quantum Under the Fatal Accidents Act Loss of Dependency 50. The Plaintifi pleaded for damages under the Fatal Accidents Act. The damages awarded under the Fatal Accidents Act are contingent on proof of loss of dependency. 51. 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 5

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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. 52. The Plaintifis pleaded in their Plaint that the deceased was survived by his father, mother, and three children aged 17 years, 15 years, and 12 years. The documents on record proved as much. 53. The deceased father, mother, 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. 54. 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. 55. The Plaintifis pleaded in their Plaint that the deceased died aged 43 years old while running cereals selling business earning a monthly income of Kshs. 40,000/=. The deceased’s certificate of death proved on a balance of probabilities that the deceased died aged 43 years old. 56. However, the Plaintifi conceded in their submissions that they had not proved on a balance of probabilities that the deceased was a businessman earning Kshs. 40,000/= per month at the time of his death. The Plaintifis urged this court to adopt the global award approach in making the award under this head. 57. The Plaintifis submitted that a global award of Kshs. 2,500,000/= was reasonable compensation under this head given that the deceased was survived by young children. They placed reliance on Bendeta Nduku Ndetu & Another v James Mwovi Mwangangi & Another (2022) eKLR, where a global award of Kshs. 2,500,000/= was made where the deceased was 48 years old at the time he died, leaving behind a wife and three school-going children aged 20, 16, and 6 years old. They also cited Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] KEHC 4971 (KLR), where a global award of Kshs. 2,000,000/= was made for a 40year-old driver who was survived by his 29-year-old wife and young children. 58. The Defendants urged this court to adopt a multiplier approach in making an award under this head by adopting the minimum wage of a driver in Bungoma, a dependency ratio of 2/3, and a multiplier of 12 years. In the alternative, the Defendants submitted that a global award of Kshs. 1,000,000/= was suficient under this head. 59. The foregoing begs the question of whether this court should adopt the multiplier approach or the global award approach in making an award under this head. 60. This court agrees with the Plaintifi that the deceased’s occupation and monthly income of Kshs. 40,000/= is not ascertainable. That being the case, 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 6

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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 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.” 61. 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.” 62. It is against this backdrop that this court adopts the global award approach in making an award under this head. 63. The authorities relied upon by the Plaintifis for an award of Kshs. 2,500,000/= under this head are distinguishable from this case. For instance, in the Bendeta Nduku Ndetu case (supra) the deceased was not only survived by his children but also by his wife. In the Ainu Shamsi Hauliers Limited case (supra), the deceased was a 40-year-old driver who was survived by his 29-year-old wife and young children. In this case, the deceased’s occupation was unknown. He was also not survived by a wife. He was only survived by his parents and three children. 64. The circumstances of this case are almost similar to the circumstances in Sarah Naitore M’ikunyua v Geofrey Mwangi Bor & Another [2021] KEHC 3224 (KLR), where Ksh 1,206,712/= was awarded under the multiplier approach for a 43-year-old tailor who was survived by his mother and a son. 65. In Ngure & 2 others v Gitau (Suing as the Legal Administrator of the Estate of Joseph Ngigi Wangari) (Civil Appeal E036 of 2024) [2025] KEHC 12683 (KLR), the court made a global award of Kshs. 1,000,000/= for a 45-year-old man who was survived by his father and his brother. 66. In Ngari v Kariithi & another (Suing as the Administrators of the Estate of the Late Jacob Ngando Mwaria) (Civil Appeal 4 of 2019) [2025] KEHC 7915 (KLR), Ng’arng’ar J made a global award of Kshs. 1,700,000/= for a 43-year-old man who was survived by a wife and two children aged 10 years and 5 years. 67. A reading of the authorities above shows that a global award of between Kshs. 1,000,000 to Kshs. 1,700,000/= is usually awarded under this head for a deceased person within the deceased’s age group who leaves behind dependents. 68. Guided by the authorities and considering the circumstances of this case and more particularly the deceased’s children’s age, this court is of the considered view that a global award of Kshs. 1,200,000/ = is reasonable under this head. 69. 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. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 7

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Under the Law Reform Act (a) Loss of Expectation of Life 70. 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, sufiering 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 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…” 71. The deceased died aged 43 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. 72. Therefore, the only logical conclusion to be drawn is that the deceased’s life was cut short by the accident herein. 73. 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 sufiering the awards range from Kshs. 10,000/- with higher damages being awarded if the pain and sufiering was prolonged before death.” 74. 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 sufiering 75. The award under this head depends on the duration between the time the accident occurred and the time the deceased died. 76. General damages for pain and sufiering range from Kshs. 10,000/= where death is instantaneous to Kshs. 100,000/= where death occurs later. (See Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR). 77. The deceased died some hours after the occurrence of the accident. In TB v MOO & another (Suing as the legal representatives of the Estate of the Late LM - Deceased) (Civil Appeal 79 of 2021) [2025] KEHC 3520 (KLR), the court awarded Kshs. 100,000/= for pain and sufiering where the deceased died some hours after the accident. 78. It is for the reasons above that this court makes an award of Kshs. 100,000/= under this head for the fieeting pain and sufiering the deceased must have experienced before meeting his death. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 8

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Special Damages 79. The parties herein were in agreement that the Plaintifis pleaded and proved Special Damages of Kshs. 12,650/= to the required standards. Consequently, this court awards the Plaintifis Special Damages of Kshs. 12,650/=. Reasonable funeral expenses 80. The Plaintifi prayed for an award of reasonable funeral expenses. PW1 testified that the deceased’s family spent around Kshs. 250,000/= in the deceased’s burial and funeral expenses. 81. The Plaintifis did not place receipts before this court to evidence the burial and funeral expenses of Kshs. 250,000/=. 82. Be that as it may, the Court of Appeal in Premier Diary Limited vs. Amarjit Singh Sagoo & another [2013] eKLR gave guidance on the award under this head by stating thus; “ We do not think that it is a breach of the general rule that special damages must be pleaded and proved to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take Judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern of 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...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.” 83. The import of the above authority is that even in the absence of receipts to prove burial and funeral expenses, courts in this jurisdiction are required to take judicial notice of the funeral expenses and make a reasonable award for the same. 84. In the circumstances, this court finds and holds that Kshs. 150,000/= is reasonable burial and funeral expenses for a 43-year-old man. Determination 85. Given the foregoing, judgment is entered against the Defendants jointly and severally in the following terms:i. Liability 80%:20% in favour of the Plaintifis ii. General damages under the Fatal Accident Act Loss of dependency - Kshs. 1,200,000/= iii. Damages under the Law Reform Act Pain and Sufiering -Kshs. 100,000/= Loss of expectation of life - Kshs. 100,000/= iv. Special Damages - Kshs. 12,650/= v. Reasonable Funeral Expenses - Kshs. 150,000/= Grand Award - Kshs. 1,562,650/= https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 9

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Less 20% Net Award - Kshs. 1,250,120/= 86. The General Damages will accrue interest at court rate from the date of this judgment till payment in full. 87. The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full. 88. The Plaintifi will have the costs of this suit, subject to the ratio of liability herein. 89. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 26TH DAY OF MARCH 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Achieng for the Defendants C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/623/eng@2026-03-26 10

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