Kirui & another (Suing as the legal representatives of the Estate of Victor Shikuku Mangusho - Deceased) v Matraco International Limited & another (Civil Suit E10339 of 2021) [2026] KEMC 828 (KLR)

motor vehicle and was vicariously liable for the acts and/or omissions of the 1st Defendant or the authorised driver thereof. 4) The 1st Defendant failed to enter appearance and/or file a Defence. Consequently, Interlocutory Judgment was entered against him on 16th June 2022. 5) The 2nd Defendant entered appearance and filed a Defence. It was subsequently served with the hearing date but failed to attend court for the hearing. An Affidavit of Service dated 26th February 2026 is on record confirming service upon the 2nd Defendant. The hearing therefore proceeded in its absence. 6) The Plaintiffs’ case was that the deceased, Victor Shikuku Mangusho, was on 6th April 2020 lawfully walking along the Southern Bypass Road when motor vehicle registration number KAS 212K, a Mitsubishi Lancer, allegedly driven negligently and recklessly at a high speed, lost control and knocked him down, causing fatal injuries. The Plaintiffs attributed the accident to the negligence of the 1st Defendant or his authorised driver. 7) PW1, Nancy Chebet Kirui, the widow and administrator of the deceased’s estate, testified that she learnt of the accident and the deceased’s death from his cousin, Alex Kiplagat. A post-mortem examination was conducted on 8th April 2020, after which the body was transported to Saboti and buried on 10th April 2020. 8) PW1 stated that the deceased was 29 years old, was in good health and worked as a watchman earning approximately Kshs. 20,000 per month, which he allegedly used to support his family. The Plaintiffs pleaded that the deceased was survived by his widow and other dependants and sought damages under the Law Reform Act and the Fatal Accidents Act, as well as special damages of Kshs. 41,865. 9) The 2nd Defendant, denied liability and maintained that it had sold motor vehicle KAS 212K to Palacio Motors Limited as a trade-in before the accident. It further contended that Palacio Motors Limited subsequently sold the vehicle to the 1st Defendant, who was the sole owner but had failed to transfer the vehicle into his name. 10) The 2nd Defendant therefore maintained that it was not a proper party to the suit and prayed for the dismissal of the

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claim against it with costs. Although it filed a defence, the 2nd Defendant failed to attend the hearing despite service and consequently called no witness or produced evidence to support its defence. Submissions 11) The Plaintiffs filed Written Submissions in support of their case. On liability, they maintained that the 1st Defendant was liable for the accident and submitted that Interlocutory Judgment had already been entered against him on 16th June 2022. 12) The Plaintiffs submitted that the evidence on record established that the deceased was involved in an accident with motor vehicle registration number KAS 212K and subsequently died from the injuries sustained. 13) On quantum, the Plaintiffs urged the court to award damages under the Law Reform Act and the Fatal Accidents Act. In support of their claim, they relied on authorities relating to the assessment of damages, proof of income and dependency, including Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR and Kemfro Africa Limited t/a Meru Express Services (1976) & another v Lubia & another (No. 2) [1985] eKLR. The authorities emphasise that income may be proved by evidence other than formal documentation and that awards under the Law Reform Act and the Fatal Accidents Act must be considered carefully to avoid double compensation. 14) The Plaintiffs also relied on comparable awards to guide the court on damages for pain and suffering, loss of expectation of life and loss of dependency. 15) They urged the court to award the pleaded special damages, costs of the suit and interest. Analysis and Determination 16) I have considered the pleadings, the evidence adduced, the Plaintiffs’ submissions, the authorities relied upon and the 2nd Defendant’s defence. I find that the following issues arise for determination: a) Whether the 1st Defendant is liable for the accident;

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b) Whether the 2nd Defendant is liable for the accident; and c) Whether the Plaintiffs have established their claim for damages and, if so, the appropriate quantum. Liability 1st Defendant 17) Interlocutory Judgment was entered against the 1st Defendant on 16th June 2022. The Interlocutory Judgment has neither been set aside nor varied. 18) The legal effect of a regularly entered Interlocutory Judgment is that the issue of liability against the defaulting Defendant is determined, subject to the assessment of damages. The Court therefore proceeds on the basis that the 1st Defendant is liable unless the Interlocutory Judgment is set aside. 19) In any event, the Plaintiffs’ case was that the 1st Defendant, while driving Motor Vehicle Registration Number KAS 212K, lost control of the said motor vehicle, causing it to veer off its proper course and hit the deceased. The deceased sustained fatal injuries as a result of the accident. 20) The Plaintiffs pleaded and relied on the doctrine of res ipsa loquitur. The evidence was that the 1st Defendant's motor vehicle lost control and hit the deceased. The occurrence of a motor vehicle losing control and colliding with a pedestrian or other road user is, in the absence of an explanation, evidence from which negligence may properly be inferred. 21) In Embu Public Road Services Ltd v Riimi [1968] EA 22, the Court held that where the circumstances of an accident give rise to an inference of negligence, the doctrine of res ipsa loquitur applies and the burden shifts to the Defendant to provide an explanation showing that the accident occurred without negligence on his part. 22) PW1 testified that the deceased was involved in an accident involving Motor Vehicle Registration Number KAS 212K and subsequently succumbed to the injuries sustained. The evidence that the motor vehicle lost control and hit the deceased remained uncontroverted.

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23) The 1st Defendant neither entered appearance nor filed a Defence and did not controvert the Plaintiffs’ allegations of negligence or provide any explanation as to how the accident occurred. No evidence was therefore adduced to rebut the inference of negligence arising from the circumstances of the accident. 24) The doctrine of res ipsa loquitur therefore applies to the circumstances of this case. The 1st Defendant having failed to offer any explanation for the loss of control of the motor vehicle, the inference of negligence against him remains unrebutted. 25) In the circumstances, and taking into account the interlocutory judgment entered against the 1st Defendant and the uncontroverted evidence regarding the manner in which the accident occurred, I find that the 1st Defendant was negligent and is 100% liable for the accident. 2nd Defendant 26) The Plaintiffs pleaded that the 2nd Defendant was the registered owner of motor vehicle registration number KAS 212K and was therefore vicariously liable for the acts and omissions of the 1st Defendant or the driver of the said motor vehicle. 27) The 2nd Defendant denied liability and pleaded that, prior to the accident, it had sold and transferred possession of the motor vehicle to Palacio Motors Limited, which in turn sold the motor vehicle to the 1st Defendant. 28) Although the 2nd Defendant did not call a witness or participate in the hearing, the Plaintiffs were still required to prove their case against it on a balance of probabilities. Sections 107, 108 and 109 of the Evidence Act place the burden of proving a fact upon the party who asserts it. 29) In this regard, I have considered the 2nd Defendant's list of documents dated 14th March 2022. Among the documents filed was a sale agreement dated 11th December 2018 indicating that Motor Vehicle Registration Number KAS 212K was sold by the 2nd Defendant to Palacio Motors Limited. There was also a further agreement dated 18th December 2018 indicating that Palacio Motors Limited subsequently sold the motor vehicle to the 1st Defendant. 30) These agreements are material to the issue of liability. They demonstrate the 2nd Defendant's position that it had

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divested itself of possession and beneficial ownership of the motor vehicle and that the Motor Vehicle had subsequently been sold to the 1st Defendant before the accident. 31) It is, however, necessary to consider the effect of the 2nd Defendant's continued registration as the owner of the motor vehicle. Section 8 of the Traffic Act provides that the person in whose name a motor vehicle is registered shall, unless the contrary is proved, be deemed to be the owner thereof. The presumption created by that provision is therefore rebuttable. 32) In Thuranira Karauri v Agnes Ncheche [1997] eKLR, the Court of Appeal held that registration records are prima facie evidence of ownership but that ownership may be proved through other evidence. Similarly, in Joel Muga Opija v East African Sea Food Limited [2013] eKLR , the Court of Appeal affirmed that the statutory presumption of ownership under section 8 of the Traffic Act is rebuttable and that evidence demonstrating actual or beneficial ownership may displace the presumption arising from registration. 33) The evidence before this Court, particularly the two sale agreements produced by the 2nd Defendant, is sufficient to rebut the presumption that the 2nd Defendant remained the actual or beneficial owner of the motor vehicle at the time of the accident. The documents demonstrate a chain of transactions showing that the motor vehicle had passed from the 2nd Defendant to Palacio Motors Limited and subsequently to the 1st Defendant. 34) Even assuming that the 2nd Defendant remained the registered owner of the motor vehicle, registration alone would not automatically render it vicariously liable for the negligence of the 1st Defendant. 35) In Securicor Kenya Ltd v Kyumba Holdings Ltd [2005] eKLR, the Court of Appeal held that ownership of a motor vehicle does not, by itself, create vicarious liability for the negligence of every person who drives the vehicle. There must be evidence of a relationship giving rise to such liability, including employment, agency, authority or control over the driver. 36) The Court of Appeal further recognised that where a motor vehicle has been sold and possession transferred to another person, a registered owner may not be held vicariously liable

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merely because the formal registration has not yet been changed. 37) In the present case, no evidence was adduced to establish that the 1st Defendant was an employee, servant or agent of the 2nd Defendant. PW1 did not testify that the 1st Defendant was acting under the instructions, control or authority of the 2nd Defendant at the time of the accident. 38) There was also no evidence that the motor vehicle was being used in the business of the 2nd Defendant, for its benefit, or in the course of an employment or agency relationship with the 2nd Defendant. On the contrary, the documentary evidence demonstrates that the 2nd Defendant had previously sold the motor vehicle. 39) The Plaintiffs' case against the 2nd Defendant was therefore founded principally on its alleged registration as owner. However, the evidence of the sale agreements rebutted the presumption arising from registration and established that the 2nd Defendant had divested itself of ownership and possession of the motor vehicle before the accident. 40) Further, no factual or legal basis was established upon which the Court could find that the 1st Defendant was acting as an employee, agent or servant of the 2nd Defendant so as to impose vicarious liability upon it. 41) I consequently find that the Plaintiffs have failed to establish, on a balance of probabilities, that the 2nd Defendant was liable for the negligence of the 1st Defendant. 42) Accordingly, the 1st Defendant is found 100% liable for the accident, while the claim against the 2nd Defendant is dismissed with costs. QUANTUM 43) The Plaintiff filed their submissions dated 29 th July ,2026 and urged the Court to award the Plaintiff Kshs.4,638,425.00 Pain and Suffering 44) The Plaintiff claims Kshs.50,000/= under this head and referred me to the decision in KISII HCCC NO.113 OF 2012 MAKARIO MAKONYE MONYANCHA -VS- HELLEN NYANGENA

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45) From the evidence on record, the accident occurred on 6 th April 2020 and the deceased died instantly. 46) It is natural that any person who suffers injury as a result of an accident will suffer some form of pain. This pain may be brief and fleeting 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 suffering is prolonged before the death. 47) According to various decisions of the High Court, the sums have ranged from Kshs.10,000.00 to Kshs.100,000.00 over the last 20 years and in this case therefore, I award Kshs.30,000.00. Loss of Expectation of Life. 48) The Plaintiff proposes Kshs.150,000.00 and refers me to the decision in KISII HCCC NO.113 OF 2012 MAKARIO MAKONYE MONYANCHA -VS- HELLEN NYANGENA He submits that the deceased was of good health and did not engage in any harmful habits like smoking and drinking and were it not for the accident he would have lived longer since he was not engaged in any harmful habits like smoking, use of drugs and alcohol 49) In common law jurisprudence of which Kenya is part, the Courts have evolved two principles, loss of expectation of life and pain and suffering by the deceased, for award of damages under the Fatal Accidents Act for pain and suffering determined what is commonly referred to as a conventional sum which has increased over the years from Kshs.10,000.00 to Kshs.100,000.00 currently. 50) The generally accepted principle is that very nominal damages will be awarded on this head claim if death followed immediately after the accident. Higher damages will be awarded if the pain and suffering was prolonged before death. His death prematurely deprived him of the normal expectation and enjoyment of life

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51) In this case, the conventional figure for loss of expectation of life is Kshs.100,000.00 and I award the same. Loss of Dependency 52) The Plaintiff submitted that the deceased was 29 years old, hardworking and employed as a security guard, earning an estimated Kshs. 20,000 per month. It was stated that he used two-thirds of his income to support his wife, four young children, parents and siblings, as he was the first-born and sole breadwinner. The plaintiff urged the court to adopt a multiplier of 30 years, noting that the deceased had no particular retirement age and could have continued working for several more years. 53) In the alternative, since there was no documentary proof of the deceased’s earnings, the plaintiff relied on the applicable minimum wage for a security guard of Kshs. 18,319 per month. The plaintiff therefore proposed that loss of dependency be calculated using the formula 30 × 12 × 18,319 × 2/3, resulting in Kshs. 4,396,560. 54) I have considered the Written Submissions by the Plaintiff’s Counsel together with the cited authorities herein. The Plaintiff herein was granted Letters of Administration ad litem on 2nd July ,2021 and the deceased had six dependants. 55) I therefore find that the Plaintiff has sufficiently proved this issue. I have also considered the submissions by Counsel's herein together with the cited authorities in support of the theory of imponderables of life. There are indeed many imponderables of life, and life itself is a mystery of existence. It is not however the province of the Court to explore those imponderences. 56) There is no evidence on record to prove that the deceased was a Security guard before his demise. and the amount of salary he earned

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57) I am aware of the Court of Appeal decisions to the effect that evidence of income is not only to be proved by way of documentary evidence. However, in this case, there is no evidence to the effect that the deceased earned Kshs.20,000.00. 58) I therefore find that there is no basis for this Court to apply the multiplicand as suggested by the Plaintiff. 59) In the case of Mary Khayesi Awalo & Another -VsMwilu Malungu & Another [1999] eKLR, the Court held that: 60) “As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the Courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books”. 61) Further, in Mwanzia -Vs- Ngalali Mutua Kenya Bus Ltd as quoted in Albert Odawa -Vs- Gichimu Githenji [2007] eKLR, the Court made the following observation: “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 dependency and the expected length of the dependency 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.” 62) In the case of Moses Mairua Muchiri -Vs- Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR, the Court held as follows:

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63) “It has been held elsewhere that 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.” 64) In the present case, there was no satisfactory proof of the monthly income of the deceased as a Security Guard . Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. 65) The Global Sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap. 66) In Moses Mairua Muchiri -Vs- Cyrus Maina Macharia [2016] eKLR, a global sum of Kshs.1,700,000.00 was awarded to a lady aged 30 years who was employed and who had evidence of making deposits into her account averaging about Kshs.22,000.00 per Month. In the case of Ainu Shamsi Hauliers Limited -Vs- Moses Sakwa & Another (Suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] eKLR Hon. Lady Justice Mary Njoki upheld the Trial Court’s decision in adopting the Global Sum approach and awarding Kshs.2,000,000.00 to a deceased aged 40 years who had two children. 67) In the present case, the deceased was aged 29 years and was survived survived by the following dependants: 1. Nancy Chebet Kirui – wife, ID No. 35498021 2. Lucy Cherotich Naibei – mother, ID No. 7600074 3. Elvis Kimani – son, 13 years 4. Caleb Kiplangat – son, 12 years

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5. Brain Kiprotich – son, 11 years 6. Fian Kiorop – son, 9 years 68) The more recent decisions of the High Court have consistently affirmed that where the deceased's income is not proved with sufficient certainty, a global award may properly be made. In Ndeti & Another (suing on their own behalf and as administrators of the Estate of Gerald Ndeti Mutua (Deceased)) v Mwangangi & another [2022] KEHC 15732 (KLR), the High Court upheld a global award of Kshs. 2,500,000/=, and emphasised that in making such an award the Court should consider the age and health of the deceased, as well as the number and circumstances of the dependants. 69) Of particular relevance is Car General Kenya Limited v Nene & Another (Suing as the Administrator of the Estate of Agnes Wavinya Joana – Deceased) [2023] KEHC 3260 (KLR), where the Court considered a deceased person aged 32 years and found a global award of Kshs. 2,500,000/= for loss of dependency appropriate. Similarly, in Njagi & another v Njogu & another (Suing as the Legal Representatives of the Estate of Esther Nzisa Mutindi – Deceased) [2025] KEHC 7744 (KLR), the Court awarded Kshs. 2,500,000/= as a global sum for loss of dependency, taking into account the deceased's young age and the prevailing economic circumstances. 70) The Court also finds persuasive Nunguni FSA Community Based Organization v Ngwava & 2 others [2026] KEHC 2463 (KLR), where the High Court noted that Car General Kenya Limited v Nene & another supported a global award of Kshs. 2,500,000/= for a deceased aged 32 years, and reaffirmed that such awards are appropriate where income has not been proved. 71) The present case is distinguishable in that the deceased was even younger, being only 29 years old, and was survived by six dependants. He therefore had a considerable expected working life ahead of him, while the loss suffered by his dependants was substantial and likely to endure for a considerable period. The absence of documentary proof of his income should not, however, operate to deny his dependants reasonable compensation. The assessment must be made with due regard to the evidence, the age of the

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deceased, the extent of dependency, comparable awards and the uncertainties inherent in projecting future earnings. 72) Taking into account the deceased's young age, his expected working life, the fact that he was survived by six dependants, the evidence that he was the family breadwinner, and the comparable authorities cited above, I find that the multiplier approach would, in the absence of reliable proof of income, involve unnecessary speculation. The global sum approach is therefore the more appropriate method of assessment. 73) Accordingly, I award a global sum of Kshs. 2,500,000/= for loss of dependency. In the circumstances of this case, I find the award fair, reasonable and consistent with comparable judicial awards. Special Damages 74) Special Damages must be specifically pleaded and proved. The same was pleaded and proved at Kshs.41,865.00 and I proceed to award the same . Conclusion 75) In conclusion therefore, there shall be Judgment for the Plaintiff against the Defendants jointly and severally in the sum of Kshs.2,671,865.00 (Kenya shillings two million ,six hundred and seventy one thousand ,eight hundred and sixty five ) made up as follows: A. Liability 1st Defendant 100% liable for the accident. B. The suit against the 2nd Defendant, Matraco International Limited, is dismissed for failure to establish liability or a basis for vicarious liability. C. GENERAL DAMAGES (1) Fatal Accidents Act, (Loss of Dependency)…Kshs. 2,671,865.00 D. (II) Law Reform Act. Pain and Suffering ............................................................Kshs.30,000.00 Loss of expectation of life ..............................................Kshs.100,000.00 Loss of Dependency …………….………………..... …..Kshs.2,500,000.00 Special Damages …………………………….…...

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………..Kshs.41,865.00 Total ……………...……………………………..……...… Kshs.2,671,865.00 Disposition 1) The total award for General Damages is Kshs. 2,671,865.00 2) The Plaintiffs shall have the costs of the suit as against the 1st Defendant. 3) Each party shall bear its own costs as between the Plaintiffs and the 2nd Defendant. 4) Interest on the General Damages shall accrue at court rates from the date of this Judgment until payment in full. 5) Interest on Special Damages shall accrue from the date of filing suit until payment in full. 30 Days Right of Appeal. __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 26.8.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 26TH AUGUST ,2026 In the Presence of : M/s Masika for the Plaintiff Defendant :Absent Court Assistant: Phoebe.

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