Nyambogai

Liability 4. On this issue interlocutory judgment was entered against the defendant on 22nd July, 2026 after he failed to enter appearance and le defence. Thus the issue of liability as against the defendant was nal as was in the case of Felix Mathenge v Kenya Power & Lighting Company Ltd (2008) KECA 297 (KLR), where the Court of Appeal held as follows:“ The respondent having failed to enter appearance within the prescribed time after the appellant had requested for it, it became mandatory upon the court to enter interlocutory judgment and for the appellant to set down the suit for assessment of damages. Having entered interlocutory judgment, it was not open once again for the same court in the instant case to state that the appellant had not proved liability against the respondent. The role of the court after entering the interlocutory judgment in such a case like this was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was nal with regard to liability and was unassailable.” 5. There being no evidence showing that the deceased contributed to the occurrences of the accident, this means that the defendant is thus substantially to blame for the accident and hold him 100% liable for the said accident. Quantum 6. Awarding of damages is not an avenue to enrich the injured party but to compensate the injured party what is in the circumstances, fair compensation to both the injured party and the defendant. The award of damages must be commensurate to the sustained injuries. Pain and Suering 7. The underlying principle under this head is that damages for pain and suering are recoverable if the deceased suered pain and suering as a result of his/her injuries in the period before his/her death. 8. Courts of law have however held that in as much as damages under this head are awardable nominal damages should be awarded if the death followed immediately after the accident and the vice versa is also true. 9. Counsel for the plainti proposed a sum of Kshs. 100,000/= and relied on the case of Benedeta Wanjiku Kimani v Changwan Cheboi & another (2013) eKLR, Mwita Nyamohanga & another v Mary Robi Moherai 9suing on behalf Agnes Boke Mwita & another (Migori Civil Appeal No. 3 of 2014 (2015) eKLR, where the court awarded Kshs. 100,000/=. 10. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court stated as follows“ As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suering are recoverable if the deceased suered pain and suering as a result of his injuries in the period before his death…. 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 for pain and suering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suering was prolonged before death.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/847/eng@2026-08-28 2

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11. In our instant case the accident occurred on 17/9/2025. PW1 testied that the deceased died on 18/9/2025 while undergoing treatment after being involved in the accident. The certicate of death shows the date of death as 18/9/2025. The post mortem shows the date of death as 18/9/2025 at 2300 hours after he was involved in a road trac accident. From the evidence of PW1 the deceased died while undergoing treatment on 18/9/2025. This clearly shows that the deceased underwent some pain before he died. 12. In the case Sukari Industries Limited v Clde Machimbo Juma, Homabay HCCA No. 68 of 2015 (2016) eKLR, it was observed that it is natural that any person who suers injury as a result of an accident will suer some form of pain, however brief, and such pain is compensable under this head. 13. Further in the case of Nelson N. Kioko & Another v Mombasa Liners (2012) eKLR, where the court awarded Kshs. 100,000/= where the deceased died on the same day of the accident but not instantly. 14. I have considered the submissions and authorities cited under this head. The deceased must have endured some pain before he died. No amount of money can be commensurate with the pain the deceased underwent before her death, but under this head and guided by the aforementioned authority I award Kshs.100,000/= under this head. Loss of Expectation of Life 15. In assessing damages for loss of expectation of life, the courts apply an objective test the question is not whether the deceased personally anticipated a happy future, but rather what kind of future the deceased might have reasonably enjoyed had they not died prematurely. That the award is meant to compensate for the loss of life itself, not for pecuniary gains or losses the deceased may have experienced as held in the case of Benham v Gambling (1941) AC 157. 16. In our instant case, at the time the deceased untimely demise, the deceased was aged 37 years, in good health, and a businessman. He had a long and promising life ahead, and it is reasonable to expect that he would have lived productively up to the retirement age of 60 years. 17. In the case of Patricia Mona & Dennis Anthony Musyoka (Suing as personal representatives of the Estate of Anthony Musyoka v Samuel Opot Omondi & NEMA Nairobi HCC 574/2010, where the deceased was aged 47 years, the court awarded Kshs. 120,000/= under this head. Similarly, in Violet Jeptum Rahedi v Albert Kubai Mbogori (2013) eKLR, the court awarded Kshs. 150,000/= for a deceased aged 44 years. 18. In the case of Kanyi & another v GWS (Suing as a legal representative of the Estate of MNW - Deceased) (Civil Appeal 200 of 2019) [2023] KEHC 18837 (KLR) (15 June 2023) (Judgment), the court, Mulwa J maintained a sum of 200,000/= for loss of expectation of life. 19. In Kenya Wildlife Services v Georey Gichuru Mwaura (2018) e KLR, a sum of Shs. 150,000/= was granted. 20. In the case of Michubu (Suing as the Legal Representative of the Estate of Agnes Kawira) v St John’s of God Hospital Tigania (Civil Case E024 of 2021) [2024] KEHC 2239 (KLR) (29 February 2024) (Judgment) it was held that the conventional award for loss of expectation of life ranges between KES. 100,000/- and KES. 200,000/-. The sum of KES. 200,000/- is awarded under this heading. 21. Guided by the above authorities and the authorities cited by counsel for the plainti, I hereby award a conventional gure of Kshs. 100,000/= considering the age of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/847/eng@2026-08-28 3

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Loss of Dependency. Multiplier 22. On the multiplier, the deceased was aged 37 years when he died as shown in the death certicate produced by the Plainti as exhibit 3. Everything being equal he would have worked to the ocial retirement age of 60 years. But due allowance must be given for the vagaries, vicissitudes and uncertainties of life. Counsel for the plainti proposed a multiplier of 15 years. I nd that a multiplier of 15 years would be reasonable as proposed by counsel for the plainti. Ratio 23. The deceased was married with two wives and ve children. It is trite that the dependency ratio of a married man who maintains his family household is 2/3 of his income. The deceased being a married man I will therefore adopt a ratio of 2/3. Multiplicand 24. I note that the evidence on record only indicates that the deceased was a businessman. There was no evidence to show that what kind of business he was engaged in and what he was earning. 25. Counsel for the plainti proposed a multiplicand of Kshs. 23,731.80 based on the Regulation of Wages (General) (Amendment) Order 2018 for a sales man in a former municipality, of which Migori was a former municipality. 26. It is my nding that in the absence of tangible proof of earnings, I will adopt a global sum approach in assessing damages for loss of dependency instead of the multiplier method. I am guided by the decision in Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the Estate of Mercy Nzula Maina (deceased) [2016] eKLR, where the Court held as follows: “ 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 gure but is an award that will always be subject to the circumstances of each particular case.” 27. 28. In assessing damages under for loss of dependency using the global sum approach, I have considered the awards made in the following similar past awards:a. In Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another [2020] eKLR the court reduced an award of Kshs. 2,000,000.00/= for Loss of Dependency (a global sum) to Kshs 1,000,000/= for the Estate of a 23-year-old deceased. b. In Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the court on appeal upheld an award of Kshs. 2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children. Having regard to the decisions in the above cited cases, I nd that a global sum of Kshs. 2,000,000/= will be adequate compensation for the plainti under loss of dependency since the deceased died at a young age, had two wives and was survived by ve children. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/847/eng@2026-08-28 4

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The Principle of Double Awards 29. The question of double compensation under the Law Reform Act and the Fatal Accidents Act was explained by the Court of Appeal in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited [2015] eKLR where it was held as follows:“ This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneciaries of the deceased’s estate under the Law Reform Act and dependents under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise. An award under the Law Reform Act is not one of the benets excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (Cap 26) section 2(5) provides that the rights conferred by or for the benet of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words “to be taken into account” and “to be deducted” are two dierent things. The words in section 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should be taken into account and not necessarily deducted. It is sucient if the judgment of the lower court shows that in reaching the gure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.” 30. From the foregoing passage, it is clear that what is required of the court is not to deduct one award from the other but to take into account the possibility of double compensation. Special Damages 31. On special damages, it is trite law that for special damages to be awarded, they must be specically pleaded and also strictly proved. It was held as follows in Maritim & Another v Anjere (1990-1994) EA 312 at 316 in this regard: “ It is now trite law that special damages must not only be pleaded but must also be specically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.” 32. In our instant case the plainti pleaded for Kshs. 256,000/= as special damages made up as follows Kshs. 25,000/= for advocates fees for grant of letters of administration, casket Kshs. 20,000/=, Hearse Kshs.50,000/=, burial clothes Kshs. 5,000/=, subsistence of mourners Kshs. 126,800/=, Post-mortem Kshs. 20,000/= and mortuary bills Kshs.9,200/=. In proving the same the plainti produced receipt for advocates fees for Kshs. 25,000/=. There were no receipts for the casket, hearse, burial clothes, and subsistence of mourners, post mortem and mortuary bills. Thus, the only amount strictly proved is Kshs. 25,000/= https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/847/eng@2026-08-28 5

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33. Record shows that the plainti stated that they spent kshs. 231, 000/= as funeral expenses. No receipts were availed. However, in the case of Jacob Ayiga & Anor v Simion Obayo (2005) eKLR, the court awarded funeral expenses despite lack of proof by way of receipts, on grounds that funeral expenses must be incurred in every case where someone died. 34. The Court of Appeal, in Premier Diary Limited v Amarjit Singh Sagoo & another [2013] eKLR, said as follows on the issue: “ 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 to 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. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/ = was pleaded in the plaint and witnesses who were the relatives of the deceased – testied that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. 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.” 35. In JNK (Suing as the Legal representative of the Estate of MMM (Deceased) v Chairman Board of Governors [...] Boys High School [2018] eKLR, the court said: “ In spite of lack of receipts this court ought not to turn a blind eye to the fact that there were funeral costs incurred as a result of the burial of the deceased.” 36. In the instant suit, counsel for the plainti submitted that the court should take judicial notice of reasonable funeral expenses in Kenya. The plaintis pleaded funeral expenses of Kshs. 200, 000/=. The plaintis did not avail receipts but there is no doubt that the plaintis incurred expenses to bury the deceased. As guided by the above authorities I hereby award Kshs. 200,000/= as reasonable funeral expenses. Thus, the total amount of special damages is Kshs. 225,000/= 37. In conclusion I hereby nd that the plainti has been able to prove his case on a balance of probabilities, and I hereby enter judgment in favour of the plainti as against the defendants as follows:a. Liability…………..100% b. Pain and Suering………………………………...Kshs. 100,000/= c. Loss of expectation of life………………………….Kshs. 100,000/= d. Loss of dependency………………………………..Kshs. 2,000,000 /= e. Special damages……………………………………Kshs. 225,000 /= Total……………………………………………Kshs. /=2,425,000/= 38. The plaintis will have costs of the suit with interest on special damages from the date of ling the suit and on general damages from the date of this judgment till payment in full. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/847/eng@2026-08-28 6

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DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 28TH DAY OF AUGUST, 2026 VIRTUALLY VIA MICROSOFT TEAMS. J. P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kerage…….Court Assistant Plaintis……….absent Defendant……..absent Advocate for plainti……..Mr. Owino present instructed by Mr. Abisai https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/847/eng@2026-08-28 7

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