Nyukuru & another

The motor vehicle which knocked her was identified in the Plaint dated 29/10/2020as Registration No. KCN 579 R whose ownership and management was attributed to the Defendants. That Plaint was later amended on 4/5/2023 upon the demise of the initial Plaintiff Joseeph Nyukuri Busuru, her father. The current Plaintiffs namely Samuel Lusweti Nyukuri and Joyce Nafula Nyukuri, her brother and sister were substituted thereto upon that amendment. The case was defended by the 2nd and 3rd Defendants who first filed their defence statement dated 18/3/2021 and later amended it on 19/6/2023. They denied the claim. The two were sued as owners in possession and drive r of the suit motor vehicle registration No. KCN 579F respectively while the 1 st Defendant was sued as its registered owner. Evidnce called by parties Only the Plaintiff’s called evidence in their case. The defence was closed without anywitness being called after the defence adjourned their case twice. Their third attempt to adjourn their case was denied. In the evidence on record, the Plaintiff called the following witnesses: 1. PC Jacklyne Were (PW1). She produced the police abstract. BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 2|Page

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2. Joyce Nafula Nyikuri (PW2) the 2nd Plaintiff. She had letters of administration Ad litem authorizing her to sue in this matter together with her brother, the 1 st Plaintiff. Other documents she produced together with the Ad litem were in respect to the deceased’s death and the expenses. 3. Samuel Lusweti Nyikuri (PW3), the 1st Plaintiff. He corroborated the evidence of PW2. 4. Klvin Lazarus Wanyama (PW4) an eye witness to the accident. He testified and adopted his witness statement dated 29/10/2020. His evidence was that he went to the scene after the accident hearing a loud bang while inside his house situated 200 m away. Upon coming out of his house, he saw the suit motor vehicle heading towards Bungoma direction from Webuye with its hazards lights on. When he crossed the road to the other side, he saw the deceased lying on the ground bleeding profusely. He knew her before. In her evidence PW1 said that the matter was pending under investigation and so nobody had been charged for causing the accident this far. She clarified that because she was not the investigating officer, she could not tell how the accident occurred. She also had no sketches to show the point of impact with respect to the collision. Issues for determination BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 3|Page

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These are: 1) Whether the Defendants are liable for the accident. 2) Whether the Defendants should pay damages to the deceased’s estate under both the Law Reform Act and Fatal Accident Act. 3) Whether the Defendants should pay costs of this suit. Analysis and determination The following matters are clear to the court and require no much probing. 1) Death of the deceased. It is clear that the deceased death occurred on 5/2/2020 due to fatal injuries she sustained in a road traffic accident. This is as per the certificate of death on record – Exhibit 5. 2) The alleged accident indeed occurred on 5/2/2020 along Webuye Bungoma road at Ndengelwa. Both witnesses who testified orally in the Plaintiff’s case and documentary evidence attested to this fact. Witnesses who confirmed this fact were PW1 and PW4. A police abstract produced by PW1 confirmed that the accident was indeed reposed and also that the deceased was totally involved. 3) The motor vehicle involved was Registration NO. KCN 579 Toyota matatu per the police abstract. Ownership of the suit motor vehicle. BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 4|Page

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The Plaintiffs’ allegation as pleaded in their amended Plaint is that the motor vehicle is owned by the 1 st and 2nd Defendant’s jointly. According to them, the 1st Defendant is the registered owner while the 2nd Defendant is its owner in possession or beneficial owner. They further allege that the 3rd Defendant was its driver. Based on the copy of records and police abstract exhibits 17 and 1 respectively, I do agree with them that indeed the 1 st and 2nd Respondents are the registered owners of the suit motor vehicle. However, I am unable to connect the 3 rd Defendant to the suit motor vehicle as its driver since he is not listed in the copy of records in that capacity at all. The plaintiffs submitted that the because the 3 rd defendant did not call any evidence, the court should infer that they chose not to because, they knew that they were liable. They relied on the decision which addresses how the court should deal with a scenario where a party fails to call evidence to controvert that of the other party of Trust Bank Limited – Paramount Bank Limited & 2 Others Nairobi ( Milimani) HCCC 1243 of 2011. However, that could have held sway, had the plaintiffs proved ownership of the motor as belonging to the 3 rd Party but which they did not. Therefore, I would divorce him from the matter entirely. For that reason, no liability will attach to him from the outset. Liability of the 1st and 2nd Defendants. BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 5|Page

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The liability of these two parties will depend on the evidence adduced by the Plaintiff concerning causation of the accident. This being a Civil matter, proof of liability and other matters requiring proof is on a balance of probability – See the case of Musyoka vs. Kungri (Environment and Land Appeal 063 of 2024) [2026] KEELC 4958 (KLR) (30 July 2026) (Ruling) and Gogo Odhiambo & 2 Others (Civil Appeal 126 of 2020 [2026] KECA 1563 (KLR) 24 July 2026 (Judgment). According to the evidenced of PW1 as per the contents of the police abstract, the case about the accident is still pending under investigation (PW1). She further stated and thereby admitted that she was not the investigating officer and had no sketch plans or file that could have assisted her to explain how the accident occurred. She herself had no idea of the circumstances concerning its occurrence. That means that the court only has the evidence of PW4 left to consider with respect to that issue. Consideration of that evidence must be weighed based on the understanding that he who alleges existence of any fact must prove the existence of the same on a balance of probability. This is a requirement under Section 107 – 109 of the Evidence Act. See Nicholas Mwangi Mugo & 3 Others vs. Lucy Nyaguthi Kimani & 5 Others [2021] KEHC 1382 (KLR) and Formax Insurance Brokery Limited –Vs- Glory Car His Tours [2018] KEHC 9941 (KLR). BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 6|Page

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According to PW4, he arrived at the scene upon hearing a loud bang while inside his house situated 200m away. On reaching there, he found the accident had already happened. At the scene was the suit motor vehicle which was facing towards Bungoma direction from Webuye side. Across the road was the deceased who was lying on the ground severely injured and bleeding profusely. He reiterated on cross examination that he indeed arrived at the scene after the accident. In submissions on record, the Plaintiffs’ submitted in favour of the defendants being held 100 % liable for the accident. They relied on the case of Trust Bank Limited (supra) and Banker -vMarket Harborough Industrial Co-operative Society Limited [1953] WLR 1472. The two cases address the issue of failure of a party to call evidence controverting that of the other party. On their part, KRK Advocates for the 1 st and 2nd Defendants submitted that the deceased was to blame. They stated that a pedestrian too has a duty of care to other road users and are duty bound to follow the High Way Code. They asked for dismissal of the case. They added that the plaintiffs were a duty to prove their case on a preponderance of probabilities and that a draw is not enough. They relied on the case of Patrick Mutie Kamau & Anor -v- July Wambui Ndurumo [ 1997] eKLR and Palace Investments Ltd -v- Geoffrey Kariuki & Anor (2015) eKLR. BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 7|Page

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But the Defendants submitted otherwise. Their argument was that the Plaintiff failed to prove their liability beyond occurrence of the accident. In the court’s estimation of facts disclosed by PW4, he never actually witnessed the occurrence of the accident. witnessed was aftermath. What he He was therefore not useful to the court on the issue of liability. In absence of any other evidence apart from that of PW4 which this court has found un-useful, its finding on liability is that the same was not proved. Quantum Despite not having found the Defendant liable, I am under a duty to assess damages nonetheless. See Mwanasokoni b. Kenya Bus Services Ltd & 3 Others (Civil Appeal 35 of 1985) [1985] KECA 82 (KLR) 26July 1985. In the case the court held that: “Despite his dismissal of the suit, the Judge went on correctly, to assess damages he would have awarded in the event of liability being established.” Therefore, in spite of a lack of finding on liability in the Plaintiffs’ favor, I will still go ahead to access quantum. Quantum under Law Reform Act Pain and suffering BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 8|Page

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The deceased died on the same day of the accident on the spot as per the contents of the certificate of death. The case of generally accepted principle is that nominal damages are to be awarded on this head where death occurred soon after the accident. See Sukari Industries Limited V Clyde Machimbo Juma Homa Bay HCCA 68 of 2015 (2016) eKLR. Given the on the spot death and on the basis of the decision of Njoroge Kigathi & Another (suing as legal representative of state of the Late Gabriel Wandeeri Ndungu (2016) KEHC 6656 (KLR), I would award Kshs50,000 for this head of damages. Loss of expectation of Life This normally attracts a conventional sum ofKshs100,000/=.See Zachery Asiago Ogentoto & Another Civil Appeal 74 of 2019 [2021] eKLR. I therefore award Kshs100,000/= for this head of damages. Quantum under Fatal Accident Act Loss of Dependency The damages for loss of Dependence apply where a deceased person is survived by defendants. Section 4(1) of Fatal Accidents Act provides the categories of persons for which the damages for loss of dependency or lost years are to benefit. These are a wife, husband parent BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 9|Page

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or child of the deceased victim of the accident. A sister and brother are not included in that Section. There tow Plaintiffs are a brother and sister of the deceased. However, they acted as deceased’s legal administrators by dint of the letters of Administrator Ad litem they were issued with before taking over as plaintiffs. The evidence showed that the deceased had a child of her own who survived her. Therefore, an award under this head of damages would have been awarded to them for the benefit of the minor. In assessing the same, it is observed that the deceased had post O-Level qualifications. The certificates on record show that after scoring a C-Plain in her KCSE she undertook a certificate course in marketing. She also did a course in Computer Application Packages. Additionally, she was engaged in acting and film production as shown by further certificates on record. It was indicated in her certificate of death that she was both an actress and marketer. A certificate of appreciation by Lifestraw shows that she was successfully engage in a promotional campaign on use Lifestraw water filters for safe clean drinking water in western Kenya given her marketing skills. Her sister PW2 registered a film production company enterprise known as Bungoma Wood Productions. It is apparent that that the BGM CMC CIVIL CASE NO. 425 OF 2020 two worked together JUDGMENT actress 10 | P a g e

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company. That shows that she was an active and enterprising person with good future prospects but which were cut short by accident. unproved. But her income remains There was nothing to show that she earned Kshs200,000/= per what was narrated by the Plaintiffs’. Therefore, I would in absence of any evidence of income resolve to adopt the global approach in assessing loss of dependency. On the basis of the observations I have made above, I am of the considered view that a global sum of Kshs3,000.000/= would have sufficed. I rely on the case of: 1) Kinuthia vs. Kiungu (suing as the legal representative of the estate of Oscar Mukhami Kithoji (deceased) (Civil Appeal E165 of 2022) (2024) KEHC 9515 (KLR) (30 July 2024) (Judgment) - Kshs 2,000,000/= awarded as loss of dependency in respect to a deceased person who was a 3rd year university student. 2) Wambui & Another vs Njogu (suing as administrator of the estate of Caroline Kaigonji Kama & 2 Others [2025] KEHC 2742 (KLR). Kshs 3,000,000/= was awarded in respect of a 24-year-old graduate who was not yet employed. BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 11 | P a g e

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In this case, the deceased was already in employment postgraduation. She was a marketer and actress and for this reason,the award of kshs3,000,000/= would have sufficed in view. Special damages These must not only be pleaded but also strictly proved. See Avermax Kenya Limited v Kapa Oil Refinaries Ltd (Civil Appeal E010 of 2025) KEHC 10151 (KLR) 9 July 2026 (Judgment). In this case, a sum of Kshs244,625/= was pleaded. Several receipts wee produced to cover funeral expenses legal fee and costs of obtaining a copy or records. From the receipts on record a sum of Kshs271,610 was proved. However, being that only Kshs244,625/= was pleaded, that is what the court would have awarded had the suit succeeded. In the upshot, this suit is found unproved and is dismissed. Each party to bear its own costs given that this was a fatal claim. Hon. R. B. N. Maloba SPM 20/8/2026 Dated & Delivered this 20th day of August 2026 In the presence of; BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 12 | P a g e

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Mr. Wanjala for Mr. Bwonchiri for the plaintiff. N/A for BGM CMC CIVIL CASE NO. 425 OF 2020 JUDGMENT 13 | P a g e

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