Wakwabubi & 2 others

5. The Defendants entered appearance and filed their respective Statements of Defence putting the Plaintiff to strict proof of her averments in the Plaint. The Defendants denied the occurrence of the accident. They pleaded in the alternative that if the accident occurred, then the same was contributed to and substantially caused by the deceased’s negligent acts and omissions enumerated in the said Statements of Defence. They prayed that the Plaintiff’s case be dismissed with costs. 6. In response, the Plaintiffs filed replies to the Statements of Defence on record reiterating the contents of their Plaint. 7. Given the divergent positions taken by the parties herein on who was to blame for the accident, this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. 8. The evidence adduced by the Plaintiffs and the Defendants is summarized below. EVIDENCE Plaintiff’s case 9. PW1 Bridged Nangami Wakwabubi testified that she was the deceased’s widow. She did not witness the accident. She visited the deceased at Bungoma County Referral Hospital (BCRH) after the accident on 26th April 2025, where she confirmed that the deceased had been involved in an accident. She added that the deceased died on 05 th May 2025 while undergoing treatment at BCRH. 10. She also stated the deceased was survived by two widows, nine children and a mother. She added that the deceased was a farmer and a businessman who used to earn a monthly income of Kshs. 30,000/= at the time of his death. 11. She produced the documents filed in the Plaintiffs’ list of documents on record save for the receipts for funeral expenses. 12. In cross-examination, she stated that the deceased and his pillion passenger. She added that the deceased was a power saw operator, but she could not tell his monthly income. She also stated that whereas the funeral harambee raised Kshs. 400,000/=, the funeral expenses exceeded the Kshs. 400,000/= raised. 13. No. 81XXX PC Jackline Achieng of Bungoma Police Station produced a police abstract showing that the accident herein was reported at Bungoma Police Station vide OB. No. 107/26/04/2025 as an exhibit.

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14. She conceded in cross-examination that she was not the accident’s investigating officer. She could not say whether the deceased was a licensed rider or whether the deceased’s motorcycle had been insured at the time of the accident. 15. PW3 Gilbert Wafula Barasa testified that he witnessed the accident. He recalled that on 26th April 2025 at around 2000hrs, while walking from Bumula to Mateka general direction, he saw the deceased riding a motorcycle from Bumula headed to Mateka general direction when the Defendant’s motor vehicle, which was being driven from the opposite direction at a high speed, hit a pothole, lost control, swerved to the right, then rammed into the deceased’s motorcycle. 16. He added in cross-examination that the accident was caused by the bad state of the road and speeding by the Defendants’ motor vehicle. He reiterated that he witnessed the accident. He could not tell why his name was not captured in the police abstract as the accident’s witness. 17. PW4 Kennedy Maina Macharia testified that he was the proprietor of Eagles Catering Services, which offered catering services and provided chairs as well as tents during the deceased’s funeral. 18. He produced the receipt for Kshs. 35,000/= for catering services, and the receipt for Kshs. 25,000/= for tents and chairs. 19. He admitted in cross-examination that the receipts he had produced were not ETR receipts. 20. PW5 Nevil Mwanya stated that he is a driver at Grace Funeral Home Services. He recalled that he sold a coffin and clothes to the 1 st Plaintiff at Kshs. 39,000/= and offered hearse services to the deceased’s family at Kshs. 15,000/=. He produced receipts to evidence the payments. 21. In cross-examination, he admitted that the receipts he had produced were not ETR receipts. Defendants’ Case 22. DW1 No. 225242 Sgt. Harrison Kwambai adopted his witness statement on record as his evidence in chief. His evidence was that the accident occurred when he was driving the Defendants’ motor vehicle at a speed of 20-30 km/hr from Mateka general direction headed to the Bumula DCC’s office when the motorcycle the Plaintiff had boarded,

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which was coming from the opposite direction, swerved and hit the Defendants’ motor vehicle on the left front bumper. 23. He added that the impact caused the Plaintiff to smash the motor vehicle’s front windscreen. He produced his driving licence and the Defendants’ motor vehicle Certificate of Examination and Test dated 02nd May 2025 as exhibits. 24. In cross-examination, he stated that the motor vehicle had been leased to the National Police Service at the time of the accident. He added that he was driving the motor vehicle in the course of his official duties when the accident occurred. 25. DW2 No. 217XXX CI Joseph Kimaiyo Yano adopted his witness statement dated 08th August 2026 as his evidence in chief. His testimony was largely a rendition of DW1’s testimony. Therefore, it will not serve any useful purpose to reproduce the same here. ANALYSIS AND DETERMINATION 26. This Court has given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the respective parties. 27. The uncontroverted evidence on record shows that the accident herein occurred, causing the deceased to sustain fatal injuries. The evidence on record also proved on a balance of probabilities that the 2nd Defendant had leased the motor vehicle herein to the 1st Defendant at the time of the accident. 28. However, the 2nd Defendant did not place before this court the lease agreement between them and the 1st Defendant for this court to know whether the terms of the said lease agreement exempted the 2nd Defendant from any liability arising from an accident involving the motor vehicle herein during the pendency of the said lease agreement. 29. In the absence of the evidence alluded to in paragraph 28, the 1 st and 2nd Defendants, being the beneficial and the registered owners respectively of the motor vehicle herein, must be held vicariously liable for DW1’s negligent acts or omissions, if any, if the accident herein occurred in the course of DW1’s official duties. 30. It is also common ground that DW1 was on official duty at the time the accident occurred. Therefore, in the event this court finds that DW1’s negligent acts or omissions caused the accident herein, the Defendants will be jointly and vicariously liable for DW1’s negligent acts or omissions.

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31. The foregoing inclines this court to find that the issues for determination are liability and quantum. Liability 32. PW3 testified that he witnessed the accident. His testimony was that the accident occurred when the motor vehicle, which was being driven at a high speed, hit a pothole, lost control, swerved to the right-hand side, and rammed into the deceased’s motorcycle. He added that the bad state of the road and the motor vehicle’s speeding also contributed to the accident. He blamed DW1’s negligence for the accident. 33. DW1 and DW2, on their part, maintained that the accident occurred on the left side of the road as one faces Bumula general direction in the motor vehicle’s lane after the motorcycle the Plaintiff had boarded hit the motor vehicle’s front bumper on the lefthand side. 34. The 1st Defendant submitted that in the absence of a sketch plan, and DW1 having not been convicted of any traffic offence arising from the accident, the uncorroborated evidence by PW3 could not be used to find the Defendants liable for the accident. 35. For the 2nd Defendant, they sought to impeach PW3’s credibility on the basis that he did not record a statement with the police, that the police did not have a record of him witnessing the accident, and that PW3 could not have clearly witnessed the accident given that it occurred at night at around 2000hrs. They also submitted that the Plaintiffs’ omission to file the accident’s sketch plan was fatal to the Plaintiffs’ case. 36. This court will first dispose of the issue raised by the 2 nd Defendant that PW3 was not a credible witness given that there are no police records showing that he witnessed the accident. 37. It is given that the police abstract on record does not list PW3 as a witness. However, PW3 reiterated during cross-examination that he witnessed the accident and recorded his statement with the police. He added that many people witnessed the accident given that the scene was at a market. 38. The Defendants did not controvert PW3’s testimony that he recorded his statement with the police after the accident and that the scene of the accident was at a market. This proves on a balance of probabilities that many people, including PW3, witnessed the accident. In such an instance, one does not expect police officers to list the names of everyone who was at the market

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as witnesses in the police abstract. Only those witnesses who volunteer their names to the police are usually listed as witnesses in the police abstract. 39. In any event, the mere fact that a witness’ name does not appear on the police abstract does not mean that such a witness did not witness the accident if such a witness’ testimony is not controverted by the Defendants, as was held by the Court of Appeal sitting in Joel Muga Opija vs East African Sea Food Limited (2013) eKLR as follows: ‘We do not think that the mere fact that this witness was not listed as a witness in the abstract lessened the weight of his evidence……In any case he was not challenged by any evidence from the Respondent on the contrary. We think that without any evidence challenging his evidence the fact would remain that the deceased was hit from behind and he fell on the left hand side. The driver must have been seeing him in front of him and there was no evidence that the deceased changed his manner of cycling or that he went zig sagging on the road. We see no reason to disturb the learned Magistrate’s finding on negligence.’ 40. This court had the benefit of observing PW3’s demeanour when he testified before this court. His testimony on the circumstances under which the accident occurred remained cogent even after cross-examination by the Defendants. He was a credible witness. 41. PW3’s testimony was also corroborated by the motor vehicle Certificate of Examination and Test dated 02nd May 2025 produced by DW1 showing that the accident caused damage to the motor vehicle’s front bumper on the O/S side. The O/S side, in layman’s language, is the right-hand side or the driver’s side of the motor vehicle. 42. The contents of the said motor vehicle inspection report that the accident caused damage to the motor vehicle’s bumper on the right-hand side disproves the Defendants’ version of events on how the accident occurred. The Defendant’s motor vehicle was not hit by the motorcycle on the left side of the front bumper as alleged by the Defendants. 43. Further, the damage to the motor vehicle’s front windscreen, which the Defendants attributed to the motorcycle’s pillion passengers’ fall arising from the accident’s impact, lends credence to the Plaintiffs’ case that the motor vehicle was being driven at a high speed when the accident occurred.

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44. The foregoing proves on a balance of probabilities that PW3 witnessed the accident; thus, his testimony on the circumstances under which the accident occurred cannot be ignored by this court. 45. Given that this court has made a finding that PW3’s testimony on how the accident occurred was corroborated by the motor vehicle Certificate of Examination and Test dated 02nd May 2025, the omission by the Plaintiffs to produce the accident’s sketch plan, and the lack of evidence that DW1 was convicted of any traffic offence arising from the accident was not fatal to the Plaintiffs’ case as submitted by the Defendants. To hold otherwise would be raising the standard of proof in a civil matter like this to beyond reasonable doubt instead of the well-settled standard of a balance of probabilities. 46. On the 1st Defendant’s submission that the deceased ought to be blamed for causing or contributing to the accident given that the deceased’s motorcycle was not insured and that the deceased was unlicensed when the accident occurred, this court takes the position that the mere fact that a rider was not licensed and that the motorcycle was not licensed when the accident occurred is not prima facie evidence of negligence. Negligence cannot be proved by assumptions but evidence. This court’s position on this issue finds support from Odhiambo v Oyugi (Civil Appeal E235 of 2024) [2026] KEHC 10951 (KLR) where Wachira J rendered herself thus: “The Respondent in an attempt to demonstrate negligence on the part of the Appellant stated that the Appellant had no driving license and was a new rider. The failure to have a driving license and being a new rider is not evidence of negligence. For the court to apportion liability, there needed to be evidence demonstrating negligence on the part of the Appellant. The Respondent did not avail that evidence.” 47. DW1 owed the deceased a duty of care to ensure that the deceased and his pillion passenger reached their destination safe and sound. That duty of care was breached when, as proved by PW3 on a balance of probabilities, DW1 lost control of the motor vehicle at high speed and rammed into the motorcycle, thereby occasioning the deceased fatal injuries.

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48. It is against this backdrop that this court finds the Defendants jointly and severally 100% liable for the occurrence of the accident. Quantum Under the Fatal Accidents Act Loss of Dependency 49. The Plaintiffs pleaded for damages under the Fatal Accidents Act. The damages awarded under the Fatal Accidents Act are contingent on proof of loss of dependency. 50. 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. 51. The Plaintiffs pleaded in their Plaint that the deceased was survived by his two widows, nine children, and mother. They produced a bundle of birth certificates and the Bumula Location chief’s letter dated 10th June 2025 in support of their averment on the deceased’s dependents. 52. The 1st Defendant took issue with the Plaintiffs’ failure to produce birth certificates for all the deceased’s children pleaded in the Plaint. They also took issue the discrepancies in the deceased’s name in the birth certificates produced by the Plaintiffs. 53. This court agrees with the 1st Defendant that one of the birth certificates produced by the Plaintiffs refers to the deceased as Joseph Wanjala. However, it should be remembered that the Plaintiffs also produced their chief’s letter dated 10 th June 2025 to prove on a balance of probabilities that the deceased was survived by the dependants pleaded in the Plaint.

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54. The evidential value of a chief’s letter on a deceased’s dependants was well explained in Tipper Hauliers Limited v Gladys Nanjala Namulata & another (Suing as the Legal Representative of the Estate of the Late Peter Wafula 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’s dependents. I decline to accept the appellant’s submission to the contrary effect. 55. Guided by the authority above, it follows that even in the face of discrepancies in the deceased’s name in one of the birth certificates produced by the Plaintiffs, the uncontroverted Bumula location chief’s letter dated 10th July 2025 proved on a balance of probabilities that the deceased was survived by the dependants pleaded in the Plaint. 56. A parent, widows, and children are dependants within the meaning of section 4 of the Fatal Accidents Act. PW1 testified how the deceased used to support his family before his demise. It is also worth noting that the deceased was survived by school-going children who would have continued to depend on him for a very considerable period of

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time had his life not been cut short by the accident. Therefore, the claim for loss of dependency is properly before this court. 57. 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. 58. The Plaintiffs pleaded in their Plaint that the deceased died aged 41 years old while working as a farmer and a businessman. Whereas PW1 had testified during examinationin-chief that the deceased ran a power saw business earning a monthly income of Kshs. 30,000/=; she conceded in cross-examination that she could not tell the deceased’s monthly income. 59. A reading of the deceased’s Certificate of Death on record shows that the registrar of deaths made an entry that the deceased was a businessman at the date of his death. In the absence of evidence to the contrary, it follows that the Plaintiffs proved on a balance of probabilities that the deceased was a businessman before his death. 60. The Plaintiffs and the 2nd Defendant urged this court to adopt a multiplier approach in making an award under this head. The 1st Defendant, on their part, submitted that in the absence of proof of the deceased’s monthly income, the global award approach was the appropriate mode of awarding damages under this head. 61. Given PW1’s concession that she could not tell the deceased’s monthly income, this court is in agreement with the 1st Defendants’ submission that the circumstances of this case call for the adoption of a global award approach in awarding damages under this head, since 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 which this court declines the invitation to take. 62. The position taken by this court is buttressed by the holding 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

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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 ependency, and the expected length of the ependency 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.” 63. 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.” (Emphasis added) 64. The 1st Defendant submitted that a global award of Kshs. 800,000/= under this head by relying on Makau & another v Kavila (Suing as the widow and personal representative of the Estate of Martin Muthama Matati - Deceased) (Civil Appeal E293 of 2023) [2026] KEHC 10088 (KLR) where a global award of Kshs. 800,000/= was made under this head for a deceased who died at 41 years old and was survived by a widow and seven children. 65. The Makau case (supra) is distinguishable from this case since the deceased’s occupation and monthly income in that case were not proved on a balance of probabilities, compared to this case where it has been proved on a balance of probabilities that the deceased was a businessman at the time of his death. Therefore, that authority is not applicable in this case. 66. The circumstances of this case are almost similar to the circumstances in Mbuba v Waweru & another (Civil Appeal E089 of 2025) [2026] KEHC 10310 (KLR) where

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the court made a global award of Kshs. 2,000,000/= for a 40-year-old businessman with an unknown monthly income, survived by a widow and three school-going children. 67. Guided by the authority above, this court makes a global award of Kshs. 2,000,000/= under this head. 68. 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 69. 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 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…” 70. The deceased died aged 41 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. 71. Therefore, the only logical conclusion to be drawn is that the deceased’s life was cut short by the accident herein. 72. 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.”

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73. 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 74. The award under this head depends on the duration between the time the accident occurred and the time the deceased died. 75. General damages for pain and suffering 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). 76. The deceased died nine days after the occurrence of the accident. In I Spy Africa Ltd & another v Kanja & another (Suing as the Administrators to the Estate of the Late John Mbau Mbugua - Deceased) (Civil Appeal E069 of 2022) [2026] KEHC 720 (KLR), the High Court upheld an award of Kshs. 100,000/= for pain and suffering where the deceased died several days after the accident. 77. In the circumstances, this Court makes an award of Kshs. 100,000/= under this head. Special Damages 78. The Plaintiffs pleaded for special damages of Kshs. 168,650/= enumerated in paragraph 10 of the Plaint. 79. The 1st Defendant submitted that the Plaintiffs should not be awarded the special damages sought since they relied on non-ETR receipts in claiming the said special damages. 80. The 2nd Defendant conceded that the receipts produced by the Plaintiffs proved special damages of Kshs. 54,650/= given that the Plaintiffs only marked the receipts for Kshs. 114, 000/= for identification. 81. The record shows that PW1, PW4 and PW5 produced all the receipts the Plaintiffs relied on to claim the pleaded special damages. This shows that the 2nd Defendant’s submission that some of the receipts for specials were only marked for identification lacks any basis. 82. On whether non-ETR receipts can be used to award special damages, the law on the evidential value of a non-tax-compliant receipt was settled by the Court of Appeal in Paul N. Njoroge Vs. Abdul Sabuni Sabonyo [2015] eKLR as follows:

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“21. The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous…” 83. Further, it is not the payor’s duty to pay tax but the payees. Expecting Plaintiffs to walk around looking for service providers who issue ETR or tax-compliant receipts when they need urgent services will be stretching civil litigation rules to unreasonable levels, thereby prejudicing many Plaintiffs for omissions made by other people. 84. The long and short of it all is that there is no law in this jurisdiction requiring special damages to be claimed strictly through ETR. This leads to the inevitable finding that the receipts produced by the Plaintiffs were admissible receipts which strictly proved the special damages claimed. 85. The Plaintiffs’ claim for special damages included a claim for legal fees of Kshs. 45,000/= for the limited grant. 86. There are two schools of thought in the High Court on whether a claim for legal fees for a limited grant is a special damage or whether it should be a claim under costs of suit. One school of thought is that such a claim is a proper claim for special damages (see Wayongo & another (Suing as personal representatives of the Estate of Brendan Juma Wayongo - Deceased) v Skypro Limited & another (Civil Case E004 of 2023) [2026] KEHC 7141 (KLR), while the other school of thought is that a claim for legal fees for a limited grant is strictly a claim for costs of the suit (see Chemoiyai Laban v Rachel Afanci Onacha (Suing as the Administrator ad litem of the Estate of Mark Muderwa Onacha (Deceased) [2021] KEHC 1298 (KLR)). 87. This court subscribes to the latter school of thought that the claim for legal fees for the limited grant is a claim for costs of the suit which should be claimed during assessment of costs of the suit. In the circumstances, this court declines to award the claim of Kshs. 45,000/= for the limited grant at this stage. 88. In sum, this court finds and holds that the Plaintiff pleaded and proved special damages of Kshs. 123,650/=. DETERMINATION 89. Given the foregoing, judgment is entered against the Defendants jointly and severally in the following terms:-

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(a) Liability 100% 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. 100,000/= Loss of expectation of life - Kshs. 100,000/= (d) Special Damages - Kshs. 123,650/= Net Award - Kshs. 2,323,650/= 90. The General Damages will accrue interest at court rate from the date of this judgment till payment in full. 91. The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full. 92. The Plaintiff will have the costs of this suit. 93. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 25th day of August 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Khisa for the Plaintiff Mr. Juma for the 1st Defendant Ms. Wambani for the 2nd Defendant C/A: Mr. Rioba

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