Obiero & another (Suing as the Legal Administrators of the Estate of the Late Kibet Weldon Metet (Deceased)) v Ndungʼu & another

motor vehicle KDL 102R. They further disputed the deceased's alleged income, dependency and the special damages claimed. 4. The Plaintis called two witnesses. PW1 was the deceased's brother, and PW2 was the investigating police ocer. The Defendants did not call any evidence. B. Pleadings i.Plaint PARA 5. The Plaintis, Catherine Chepkemoi Maina alias Alice Obiero and Nicholas Kipngetich Orina, suing as the legal administrators of the estate of the late Kibet Weldon Metet, instituted the suit vide plaint dated 12th July 2024 against John Kiranga Ndungu and Ann Njeri Kamau, in their respective capacities as the registered owner and benecial owner, insurer and/or driver of motor vehicle registration number KCE 575N. They aver that on or about 25th July 2023, the deceased was lawfully travelling as a passenger in the said motor vehicle when, at Stima area along the Narok–Mai Mahiu Road, the Defendants’ driver, agent, servant and/or employee negligently and carelessly drove and controlled the vehicle, causing it to collide with motor vehicle registration number KDL 102R. The deceased sustained fatal injuries and died as a result of the accident. PARA 6. The Plaintis attribute the accident to, among other things, excessive speed, dangerous and careless driving, careless overtaking, driving without due care and attention, failure to brake, slow down, stop or otherwise control the vehicle to avoid the collision, driving a defective motor vehicle, and failure to have due regard for other road users. They also invoke the doctrine of res ipsa loquitur. PARA 7. The Plaintis plead that prior to the accident, the deceased was aged 28 years, in good health and working as a farmer earning approximately Kshs. 30,000 per month, which income his dependants lost following his death. They therefore claim damages under the Fatal Accidents Act, Cap. 32 and the Law Reform Act, Cap. 26. They pleaded dependents; Catherine Chepkemoi Maina alias Alice Obiero (mother) and Ezekiel Obiero (father). PARA 8. The Plaintis further claim special damages of Kshs. 187,050, comprising funeral, post-mortem and mortuary expenses of Kshs. 135,500, ling fees for a Limited Grant Ad Litem of Kshs. 1,000, motor vehicle search fees of Kshs. 550, and advocates’ fees for obtaining letters of administration of Kshs. 50,000. They aver that despite demand and notice of intention to sue, the Defendants failed, neglected or refused to settle the claim. They consequently pray for judgment against the Defendants jointly and severally for the special damages, damages under the Fatal Accidents Act and Law Reform Act, costs of the suit, interest and any other relief the Court may deem appropriate. ii.Statement of Defence 9. The Defendants’ Statement of Defence dated 19th August, 2024 generally denies the allegations contained in the Plaint, save for those expressly admitted. The Defendants partially admit the descriptions of the parties but deny knowledge of the alleged ownership, benecial ownership, insurance and/or control of motor vehicle registration number KCE 575N, and put the Plaintis to strict proof. They further deny that the deceased was lawfully travelling as a passenger in the said motor vehicle on 25th July 2023, or that an accident occurred involving motor vehicles KCE 575N and KDL 102R, resulting in the deceased’s fatal injuries. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 2

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10. The Defendants specically deny all the particulars of negligence pleaded against their driver, agent, servant and/or employee. In the alternative, and without prejudice to that denial, they contend that if an accident occurred, it was not caused by any negligence attributable to them. Instead, they plead that the accident was wholly or substantially caused by the negligence of the deceased and the driver of motor vehicle registration number KDL 102R. The deceased is alleged to have failed to fasten his safety belt, engaged the driver in an animated conversation, failed to comply with the Traffic Act and Highway Code, and failed to have due regard for his own safety. 11. The Defendants further attribute negligence to the driver of motor vehicle KDL 102R, including driving a defective vehicle, parking or stalling it in the path of KCE 575N, failing to display appropriate reectors or indicators, driving at an excessive speed, failing to keep a proper lookout or exercise proper control, failing to observe trac rules and other road users, failing to slow down, swerve or stop to avoid the accident, driving under the inuence of alcohol or other intoxicants, and encroaching into the lane of KCE 575N. The Defendants consequently seek leave to issue a Third-party Notice against the owner and/or driver of motor vehicle KDL 102R. 12. The Defendants deny the allegations concerning the deceased’s health, occupation, earnings and dependency, as well as the pleaded dependants and the claim for special damages, and put the Plaintis to strict proof. They also deny having been served with the alleged demand letter and notice of intention to sue. Although they admit the jurisdiction of the Court, they deny that the Plaintis have any sustainable cause of action against them. They therefore pray that the suit be dismissed with costs. iii. Reply to Defence 13. The Plaintis’ Reply to the Defendants’ Statement of Defence dated 21st August 2024 is a general denial of the averments contained in the Defence, save for matters expressly admitted. The Plaintis specically deny the contents of paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Defence and reiterate and rely upon the averments made in the Plaint. The Plaintis maintain their claim against the Defendants and put them to strict proof of the allegations raised in the Defence. Consequently, the Plaintis pray that the Defendants’ Statement of Defence be struck out and that judgment be entered in their favour as sought in the Plaint. C. Evidence 14. The Plaintis called two witnesses. PW1, Nicholas Kipngetich Orina, testied that he was a brother of the deceased, Kibet Weldon Metet. He adopted his witness statement dated 12th July 2024 as his evidence in chief and produced the documents contained in the Plaintis’ List of Documents dated 12th July 2024, save for document number 7, as exhibits. 15. PW1 testied that he did not witness the accident. He stated that on 25th July 2023, at about noon, he received a telephone call informing him that his brother had been involved in an accident and had been taken to Hospital. He did not personally visit the Hospital. He conrmed that the deceased died on the same day. 16. PW1 testied that prior to his death, the deceased was a farmer who cultivated potatoes, beans and other crops and earned approximately Kshs.30,000 per month. He stated that the deceased was in good health before the accident and assisted their parents by providing food and meeting their medical expenses. However, he admitted that he had no documentary evidence establishing the deceased’s monthly income or demonstrating the nancial support allegedly provided to the parents. He further stated that he had not produced documents showing the nature or extent of the dependency. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 3

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17. PW1 stated that the deceased was approximately 28 years old at the time of his death, although during cross-examination he indicated that he could not remember his brother’s exact age. He testied that funeral expenses were approximately Kshs.200,000, inclusive of a hospital bill, and that the family conducted a fundraising through which neighbors contributed approximately Kshs.50,000. He further testied that he had produced a letter from the Chief and an identication document relating to the deceased’s parents in support of the assertion that they depended upon the deceased. 18. With regard to the circumstances of the accident, PW1 stated that he was informed that the driver of motor vehicle registration number KCE 575N was overtaking when the accident occurred. He, however, conrmed that this information was not based on his own observation. On re-examination, he maintained that he learnt of his brother’s death after the accident at about noon and reiterated that the deceased was 28 years old and that, given the nature of his work as a farmer, he did not consider documentary evidence of his earnings necessary. He also reiterated that the family incurred approximately Kshs.200,000 in expenses. 19. PW2 was a police ocer who was previously attached to Ntulele Police Station and was at the material time performing trac duties. His evidence was adopted from his testimony in MCCC No. E175 of 2024. He testied that on 25th July 2023 a road trac accident occurred at Stima area along the Narok–Mai Mahiu Road involving motor vehicles, including registration numbers KCE 575N, KDL 102R and KDE 191X/ZG7491, the latter being a semi-trailer. 20. PW2 testied that he visited the scene of the accident together with another police ocer. Upon investigation at the scene, he established the possible point of impact and prepared a sketch plan. His evidence was that motor vehicle registration number KCE 575N was travelling towards Narok and overtook the semi-trailer while the vehicles were approaching a corner on a section of the road marked with a continuous yellow line. The said vehicle consequently collided head-on with motor vehicle registration number KDL 102R, which was travelling in the opposite direction towards Mai Mahiu. 21. PW2 testied that the occupants of the vehicles sustained serious injuries and that four persons were injured. He conrmed that the deceased, Kibet Weldon Metet, was one of the occupants of motor vehicle KCE 575N. He further testied that, from his investigations and the position of the vehicles and point of impact, motor vehicle KCE 575N was to blame for the accident because it had improperly overtaken the semi-trailer at a section of the road where overtaking was prohibited. 22. PW2 further testied that the road at the accident scene had a continuous yellow line and that the accident occurred at a corner. He stated that the point of impact was on the lane belonging to motor vehicle KDL 102R, which was travelling from Narok towards Mai Mahiu. He produced the relevant police documents, including the Police Abstract and the police le documents, as exhibits. 23. During cross-examination, PW2 conrmed that he was the investigating ocer. He referred to the Occurrence Book, which recorded that the driver of the semi-trailer, registration number KDE 191X/ ZG7491, was travelling from Mai Mahiu towards Narok. Upon reaching Stima area, the driver encountered motor vehicle KCE 575N, which overtook the trailer while the latter was climbing a section of the road. In the process, KCE 575N moved into the lane of oncoming trac and collided with KDL 102R, which was descending towards Mai Mahiu. 24. PW2 stated that when he visited the scene at approximately 4.45 p.m., the trailer had overturned and the building blocks it was carrying had spilled onto the road. He maintained that KCE 575N was responsible for the accident because it had overtaken on a continuous yellow line. He further conrmed that KDL 102R was travelling on its proper side of the road. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 4

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25. PW2 acknowledged during cross-examination that he was not an eyewitness to the accident. He also stated that although he had recorded the statement of the driver of the lorry, he did not have that witness statement in court. He nevertheless maintained that his conclusion regarding the cause of the accident was based on his investigations at the scene, including the position of the vehicles and the point of impact. 26. The Defendants did not call any witness to rebut the evidence adduced by the Plaintis. Their case was therefore not supported by any oral testimony challenging the evidence of PW1 and PW2 regarding the circumstances of the accident, the deceased’s presence in motor vehicle KCE 575N, or the alleged manner in which the accident occurred. D. Submissions. i. Plainti ’s Submissions 27. The Plaintis, in their written submissions dated 7th July 2026, submit that they have proved their case on a balance of probabilities and are entitled to judgment against the Defendants on liability and quantum. They contend that the deceased, Kibet Weldon Metet, was lawfully travelling as a passenger in motor vehicle registration number KCE 575N on 25th July 2023 along the Narok–Mai Mahiu Road when, at Stima area, the vehicle’s driver negligently overtook another vehicle and collided with the oncoming motor vehicle KDL 102R, fatally injuring the deceased. 28. On liability, the Plaintis rely on the evidence of PW1 and PW2, the investigating police ocer. PW1 testied that the deceased was a passenger in KCE 575N and that the driver caused the accident through careless overtaking, dangerous driving and/or excessive speed. PW2 corroborated this evidence and produced the Occurrence Book and Police Abstract, conrming that the accident occurred on 25th July 2023 and involved three motor vehicles. He testied that KCE 575N overtook a trailer on a continuous yellow line at a section of the road not designated for overtaking and collided with KDL 102R. He further conrmed that the point of impact was on the lane of KDL 102R and that the deceased was fatally injured. 29. The Plaintis submit that the deceased was merely a passenger and had no control over the vehicle, and therefore could not have contributed to the accident. They argue that the evidence of PW1 and PW2 remained uncontroverted because the Defendants did not call any witness to rebut it. Consequently, they urge the Court to nd the Defendants 100% liable for the accident, submitting that their case was proved on a balance of probabilities. 30. On damages under the Law Reform Act, the Plaintis propose Kshs.150,000 for pain and suering, relying on the death certicate and post-mortem report, which showed that the deceased died from subdural hemorrhage arising from the road trac accident. In support, they rely on General Cargo (Transport) Limited v Ndeme (Suing as Administrator of the Estate of Mwandingo Mkama Beja – Deceased), Civil Appeal No. 174 of 2022 [2023] KENSC 27244 (KLR), where Kshs.100,000 was upheld for a deceased who died on the same day; in Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, where Kshs.75,000 was upheld for a deceased who died on the spot; and Munuhe & Another (Suing as Legal Representative of the Estate of Peter Maina Ndegwa) v Mutua, Civil Appeal No. 78 of 2023 [2024] KEHC 10944 (KLR), where Kshs.70,000 was awarded. The Plaintis submit that, taking ination into account, Kshs.150,000 is reasonable. 31. For loss of expectation of life, the Plaintis seek Kshs.200,000, stating that the deceased was aged 28 years and in good health at the time of his death. They rely on Francis Wainaina Kirungu Kirungu (Suing as Personal Representative of the Estate of John Karanja Wainaina – Deceased) v Elijah Oketch https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 5

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Adellah [2015] eKLR, as well as Patricia Mona & Dennis Anthony Musyoka (Suing as Personal Administrators of the Estate of Anthony Musyoka) v Samuel Opot Omondi & National Environment Authority, Nairobi HCCC No. 574 of 2010, where Kshs.120,000 was awarded for a 47-year-old deceased, and Violet Jeptum Rhaheli v Albert Kubai Mbogori (2013), where Kshs.150,000 was awarded for a 44-year-old deceased. The Plaintis urge an enhanced award of Kshs.200,000 owing to ination. 32. Under the Fatal Accidents Act, the Plaintis submit that the deceased earned approximately Kshs.30,000 per month as a farmer and was the sole breadwinner for his parents, who were identied as his dependants. They contend that although his work was in the informal sector and documentary proof of income was unavailable, the Court should take judicial notice of the nature of informal farming activities and nd that both income and dependency were proved. They propose a multiplicand of Kshs.30,000, or alternatively the minimum wage of Kshs.18,047.40 applicable to a general labourer under the Regulations of Wages (General) (Amendment) Order, 2026. They rely on Melbrimo Investment Company Limited v Dinah Kemunto & Francis Sese (Suing as Personal Representatives of the Estate of Stephen Sinange alias Reuben Sinange – Deceased) [2022] eKLR and Isaack Kimani Kanyingi & Another (Suing as Legal Representatives of the Estate of Loise Gathoni Mugo – Deceased) v Hellena Wanjiru Rukanga [2020] eKLR, for the proposition that the applicable minimum wage may be adopted where the deceased’s income cannot be ascertained. 33. As regards the multiplier, the Plaintis propose 42 years, arguing that the deceased, being a farmer, would not necessarily have retired at the conventional age of 60 years and could have continued working beyond 70 years. They rely on Chania Shuttle v Mary Mumbi [2017] eKLR, where the Court recognised that an average Kenyan man may remain economically active beyond the age of 70 years. They further propose a dependency ratio of two-thirds, on the basis that the deceased was survived by his mother and father and was their sole breadwinner. Using a multiplicand of Kshs.30,000, a multiplier of 42 years, and a dependency ratio of 2/3, they calculate loss of dependency at Kshs.10,080,000. Alternatively, using Kshs.18,047.40 as the multiplicand, they propose Kshs.6,063,926.40. 34. On special damages, the Plaintis seek Kshs.187,050 as pleaded. They submit that funeral expenses were necessarily incurred and that not all receipts could reasonably be expected to have been retained during the period of mourning. They rely on Section 6 of the Fatal Accidents Act, which permits an award for funeral expenses, and Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, where the Court of Appeal recognised the practical diculty of requiring bereaved families to maintain receipts for every funeral expenditure and upheld a reasonable award for funeral expenses despite incomplete documentary proof. 35. In conclusion, the Plaintis propose a total award of Kshs.10,617,050, comprising Kshs.150,000 for pain and suering, Kshs.200,000 for loss of expectation of life, Kshs.10,080,000 for loss of dependency, and Kshs.187,050 in special damages. They further pray for costs of the suit and interest, and urge the Court to nd the Defendants wholly liable for the accident. ii Defendants’ Submissions. 36. The Defendants, in their written submissions, submit that the Plaintis have failed to prove their case on a balance of probabilities and therefore the suit ought to be dismissed with costs, or liability apportioned equally at 50:50. They contend that although the Plaintis alleged that the deceased was travelling as a passenger in motor vehicle KCE 575N when it negligently collided with KDL 102R, the burden remained upon the Plaintis to prove the alleged negligence. They rely on Sections 107(1) https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 6

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and 109 of the Evidence Act, Cap. 80, which place the burden of proving asserted facts upon the party seeking judgment and the party who wishes the Court to believe in the existence of a particular fact. 37. On liability, the Defendants challenge the evidence of PW1 on the basis that he did not witness the accident and only learnt of the deceased’s death through a telephone call. They therefore submit that his evidence regarding the manner in which the accident occurred was hearsay and should be disregarded. They further contend that although PW2, the police ocer, produced the Police Abstract dated 16th August 2023, the Abstract did not attribute blame to the Defendants and indicated that investigations were still pending. The Defendants also point out that the police le, sketch plan and photographs of the accident scene were not produced, and that PW2 was not an eyewitness to the accident. 38. In support of their position regarding the evidentiary value of the Police Abstract, the Defendants rely on Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge [2021] eKLR, where the Court held that a Police Abstract merely establishes that an accident was reported to the police and, without information concerning the investigations and their outcome, cannot by itself constitute evidence of negligence. The Defendants consequently submit that the Plaintis failed to establish how the accident occurred or that the Defendants were responsible for it. 39. The Defendants further submit that their failure to call evidence did not automatically entitle the Plaintis to judgment. They rely on Margaret Wanjiru Ndirangu & 4 Others v Attorney General [2020] KECA 683 (KLR), where the Court of Appeal held that before a court can nd that a plainti's case is uncontroverted merely because the defendant did not testify, it must rst be satised that the plainti has adduced credible and believable evidence capable of proving the claim on a balance of probabilities. The Defendants therefore maintain that the Plaintis' evidence was insucient to establish negligence and urge dismissal of the suit, or alternatively apportionment of liability at 50:50. 40. On quantum, and in the alternative, should the Court nd the Defendants liable, they propose substantially lower awards. For pain and suering, they submit that since the deceased died on the same day as the accident, an award of Kshs.20,000 would suce. They rely on Peter & Another v VOO & Another (Suing as the Legal Representative of the Estate of CJAJ), Civil Appeal No. E043 of 2021 [2023] KENSC 26124 (KLR) (29 November 2023), where the appellate court upheld an award of Kshs.20,000 for a deceased who died on the same day as the accident. 41. For loss of expectation of life, the Defendants submit that although the deceased was 30 years old according to the death certicate referred to in their submissions, there was no evidence establishing that he was in perfect health before his death. They therefore propose an award of Kshs.50,000, relying on Joash Gitange v Rebecca Kemunto Gikenyi & Miriam Orare, Suing as Legal Representatives of Franklin Nyamora Orare (Deceased) [2019] eKLR, where Kshs.50,000 was awarded for a deceased aged 26 years. They also rely on the principle in Benham v Gambling [1941] AC 157, that damages for loss of expectation of life should be moderate and are intended to compensate for the loss of life rather than nancial or pecuniary loss. 42. With respect to loss of dependency under the Fatal Accidents Act, the Defendants challenge the alleged monthly income of Kshs.30,000, arguing that no documentary evidence was produced to establish either the deceased’s occupation as a farmer or his earnings. They therefore submit that a global-sum approach would be appropriate. They rely on Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi (Suing as Administrator and Personal Representative of the Estate of Antony Mwiti Gakungu – Deceased) [2020] eKLR, where the Court observed that where monthly income is not satisfactorily proved, the court may adopt either a global sum or the minimum wage approach. They also rely on Mwangi (Suing as Administrators of the Estate of Peter Maina Mwangi – Deceased) v Arim, https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 7

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Civil Appeal No. E045 of 2021 [2022] KEHC 3295 (KLR) (8 July 2022), which recognised that the multiplier method is not mandatory where earnings are unproved and a global sum may be adopted. 43. The Defendants propose a global award of between Kshs.800,000 and Kshs.1,000,000 for loss of dependency, relying on Gitari & 2 Others v Kassim & 2 Others [2024] KEHC 14065 (KLR), where Kshs.1,000,000 was awarded for a 24-year-old deceased; Warui v Thimbui (Suing as Legal Representatives of the Estate of Rahab Wanjiru Ngari – Deceased) [2024] KEHC 16859 (KLR), where Kshs.1,000,000 was awarded for a 24-year-old unmarried deceased whose parents were the dependants; and John Macharia v Josphat Muriungi Muguange & Another [2020] eKLR, where Kshs.1,000,000 was awarded for a 31-year-old deceased. Alternatively, if the multiplier approach is adopted, the Defendants urge the Court to use the applicable minimum wage for a casual labourer. 44. On the dependency ratio, the Defendants submit that since the deceased was unmarried and his parents were the only pleaded dependants, a ratio of 1/3 rather than 2/3 should apply. They rely on Kathuni v Kinyari (Sued as the Legal Representative of the Estate of Kelvin Lugendi Gibendi – Deceased) [2024] KENSC 1458 (KLR), where a 1/3 dependency ratio was applied to an unmarried deceased. They further contend that the alleged Kshs.30,000 monthly income was unsupported and urge the Court, if it adopts the multiplier approach, to use Kshs.8,109.90, said to be the general laborer’s wage under the Regulations of Wages (General) (Amendment) Order 2022. 45. As to the multiplier, the Defendants propose 15 years, arguing that although the deceased was aged 28 years, the assessment should take into account the vagaries and vicissitudes of life. They rely on John Muchiri Njoroge & Another v Prisca Mmbone & Another [2019] eKLR and Petrocity Enterprises (U) Ltd v Roseline Sikudi, Suing as Legal Representative of the Estate of Pascal Ngadi (Deceased) & 2 Others [2017] eKLR, which recognised that such uncertainties may reduce the period of active working life. They also cite Njuka v Gituma [2022] KEHC 13849 (KLR), where a multiplier of 20 years was adopted for a 28-year-old deceased. On that basis, they calculate loss of dependency at Kshs.486,549 using 15 years, or Kshs.648,792 using 20 years. 46. Regarding special damages, the Defendants submit that such damages must be specically pleaded and strictly proved. They rely on Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), citing the established principle in Maritim & Another v Anjere (1990–1994) EA 312 at 316, that special damages must not only be pleaded but also specically proved, and any amount not pleaded should be disallowed. They note that the Plaintis pleaded Kshs.187,050, comprising Kshs.50,000 for advocates’ fees in obtaining the grant, Kshs.1,000 for ling the grant, Kshs.550 for the copy of records, and Kshs.135,500 for funeral expenses. The Defendants argue that the Kshs.50,000 raised through a fundraising should be deducted from the funeral expenses and that the advocates’ fees and grant ling fees were unsupported by receipts. They therefore urge the Court to award only those special damages strictly proved by documentary evidence. E. Issuesfor Determinaton 47. From the pleadings, evidence and submissions, the following issues arise for determination: i. Whether the Plaintis have proved that the deceased was a passenger in motor vehicle registration number KCE 575N and that the accident occurred as pleaded; ii. Whether the accident was caused by the negligence of the driver of motor vehicle registration number KCE 575N and whether the Defendants are vicariously liable; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 8

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iii. Whether the deceased or the driver of motor vehicle registration number KDL 102R contributed to the occurrence of the accident; iv. Whether the Plaintis are entitled to damages under the Law Reform Act and the Fatal Accidents Act and, if so, the quantum thereof; v. Whether the claim for special damages has been proved; and vi. Who should bear the costs of the suit and whether interest is payable? F. Analaysis and Determinaton i.Liability 48. The burden of proof. Section 107(1) of the Evidence Act, Cap. 80 provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 49. Section 108 further provides that the burden of proof in a suit lies on the person who would fail if no evidence at all were given on either side. Section 109 places the burden of proving a particular fact upon the person who wishes the Court to believe in its existence. 50. The applicable standard is proof on a balance of probabilities. In Miller v Minister of Pensions [1947] 2 All ER 372, Denning J stated that proof on a balance of probabilities means that the Court must be satised that the occurrence of the event was more probable than not. The same principle has consistently been applied by the Kenyan courts. 51. The Plaintis were therefore required to establish, on a balance of probabilities, that the deceased was a passenger in KCE 575N, that the accident occurred, that it was caused by the negligence of the driver of that vehicle, and that the Defendants are legally liable for the resulting loss. 52. PW1 was not an eyewitness to the accident. His evidence regarding how the accident occurred was based on information given to him after the event. To that extent, his evidence cannot independently establish the manner in which the accident occurred. His evidence is, however, relevant to the identity of the deceased, his relationship to the deceased, the deceased's occupation and the alleged dependency. 53. More importantly, the Court has the evidence of PW2, the investigating police ocer. PW2 testied that he visited the scene of the accident and investigated the circumstances surrounding it. His evidence was that KCE 575N was travelling towards Narok and overtook a semi-trailer at a corner on a section of the road marked by a continuous yellow line. While undertaking the overtaking manoeuvre, KCE 575N entered the lane of oncoming trac and collided head-on with KDL 102R, which was travelling towards Mai Mahiu. 54. PW2 further testied that the point of impact was on the lane of KDL 102R and that, based on his investigations, KCE 575N was to blame for the accident because it had improperly overtaken the trailer on a section of the road where overtaking was prohibited. 55. The Defendants contend that PW2 was not an eyewitness and that the Police Abstract did not itself attribute blame to the Defendants. That submission, however, overlooks the distinction between the Police Abstract and the oral evidence of the investigating ocer. The Plaintis' case is not founded solely on the Police Abstract. PW2 gave direct evidence of what he observed when he visited and investigated the scene, including the position of the vehicles and the point of impact. His evidence was not merely that an accident had been reported. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 9

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56. It is correct that a Police Abstract, standing alone, does not necessarily prove negligence. In Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge [2021] eKLR, the Court emphasised that a Police Abstract primarily establishes that an accident was reported and does not, without more, establish negligence. In the present case, however, there is more: there is the testimony of the investigating ocer concerning his investigations and his conclusion as to the cause of the accident. 57. The Defendants did not call the driver of KCE 575N, the owner of the vehicle, or any other witness to controvert PW2's evidence. They did not produce any evidence showing that KCE 575N was travelling on its proper lane, that it had not overtaken the trailer, or that KDL 102R encroached onto its lane. 58. The fact that the Defendants did not call evidence does not, by itself, relieve the Plaintis of their burden of proof. The Court is guided in this regard by Margaret Wanjiru Ndirangu & 4 Others v Attorney General [2020] KECA 683 (KLR), where the Court of Appeal cautioned that a plainti's case does not automatically succeed merely because the defendant does not testify. The Court must rst determine whether the evidence adduced by the plainti is credible and sucient to establish the claim. 59. In the present case, having considered the evidence as a whole, I nd that PW2's evidence regarding the manner in which the accident occurred was credible and consistent. His evidence that KCE 575N overtook the semi-trailer on a continuous yellow line and entered the lane of the oncoming KDL 102R is supported by the evidence regarding the point of impact. 60. The circumstances established by PW2 are inconsistent with the contention that the accident was caused by the deceased or by the driver of KDL 102R. The evidence demonstrates that the driver of KCE 575N undertook an overtaking manoeuvre at a prohibited section of the road and, in doing so, entered the path of an oncoming vehicle. 61. A driver is under a duty to exercise reasonable care and skill and to maintain proper control of his vehicle. A driver who overtakes at a prohibited section of the road, particularly at a corner and across a continuous yellow line, assumes an obvious risk of colliding with oncoming trac. Such conduct constitutes negligence. 62. The doctrine of res ipsa loquitur, relied upon by the Plaintis, is in any event of limited assistance where, as here, there is direct evidence explaining how the accident occurred. The doctrine is an evidentiary principle which may permit an inference of negligence where the circumstances of an accident are such that, in the ordinary course of things, it would not have occurred without negligence and the thing causing the accident was under the defendant's control. It does not relieve a plainti from establishing the essential facts of the claim. 63. I am satised, on a balance of probabilities, that the accident was caused by the negligent manner in which motor vehicle KCE 575N was driven. In particular, the driver negligently overtook the semitrailer at a prohibited section of the road and entered the lane of the oncoming motor vehicle KDL 102R. 64. The next question is whether the Defendants are liable for that negligence. The Plaintis pleaded that the Defendants were the registered owner, benecial owner, insurer and/or driver and that the negligent driver was their servant, agent and/or employee. The Defendants denied the allegations but did not adduce evidence to rebut the Plaintis' case. 65. On the evidence before the Court, and in the absence of any contrary evidence from the Defendants, I nd that the Plaintis have established the necessary connection between motor vehicle KCE 575N and the Defendants sucient to found liability as pleaded. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 10

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66. The Defendants pleaded contributory negligence against the deceased, alleging, among other things, that he failed to fasten his seat belt and failed to have regard to his own safety. No evidence was adduced to establish any of those allegations. A plea of contributory negligence is an allegation of fact which must itself be proved. Mere pleading does not constitute evidence. 67. The deceased was a passenger, and there is no evidence that he had any control over the manner in which KCE 575N was driven. There is also no evidence establishing that he failed to wear a seat belt or that such failure, if any, contributed to the occurrence of the collision. The defence allegation that he engaged the driver in an animated conversation is similarly unsupported by evidence. 68. The Defendants also pleaded negligence against the driver of KDL 102R. Again, no evidence was adduced in support of those allegations. On the contrary, PW2's evidence was that KDL 102R was travelling on its proper lane and that the point of impact was on its lane because KCE 575N had entered it while overtaking. 69. I therefore nd no evidentiary basis for apportioning liability to the deceased or the driver of KDL 102R. Liability is accordingly found against the Defendants at 100%. ii. Quantum of Damages 70. Having determined liability, I turn to quantum. The assessment of damages is discretionary and must be guided by comparable awards and the particular circumstances of the case. The Court must also avoid either overcompensating or undercompensating the claimant. a. Pain and suering 71. The evidence establishes that the deceased sustained fatal injuries and died on the date of the accident. The Plaintis seek Kshs.150,000, while the Defendants propose Kshs.20,000. 72. In General Cargo (Transport) Limited v Ndeme (Suing as Administrator of the Estate of Mwandingo Mkama Beja – Deceased), Civil Appeal No. 174 of 2022 [2023] KENSC 27244 (KLR), the Court upheld an award of Kshs.100,000 for pain and suering where the deceased died on the same day of the accident. In Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, Kshs.75,000 was upheld in circumstances where the deceased died on the spot. 73. In the High Court upheld Kshs.20,000 where the deceased died on the same day. Peter & Another v VOO & Another (Suing as the Legal Representative of the Estate of CJAJ), Civil Appeal No. E043 of 2021 [2023] KENSC 26124 (KLR), 74. Considering the authorities and the circumstances of the present case, particularly the fact that the deceased did not survive for a prolonged period after the accident, I nd an award of Kshs.50,000 reasonable under this head. b. Loss of expectation of life 75. The Plaintis seek Kshs.200,000, while the Defendants propose Kshs.50,000. 76. Damages for loss of expectation of life are awarded under the Law Reform Act to compensate the estate for the shortening of the deceased's life. The award is conventional and should be moderate. The principle was stated in Benham v Gambling [1941] AC 157, where the House of Lords held that the damages should be moderate and not be treated as compensation for pecuniary loss. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 11

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77. The Kenyan courts have made awards under this head varying with the circumstances and the prevailing level of awards. In Joash Gitange v Rebecca Kemunto Gikenyi & Miriam Orare, Suing as Legal Representatives of Franklin Nyamora Orare (Deceased) [2019] eKLR, Kshs.50,000 was awarded to the estate of a deceased aged 26 years. 78. Taking into account the age of the deceased as established on the evidence and the prevailing awards, I award Kshs.100,000 for loss of expectation of life. c. Loss of dependency 79. The more substantial issue is the claim under the Fatal Accidents Act. The Plaintis plead that the deceased was aged 28 years, worked as a farmer and earned Kshs.30,000 per month. They contend that his parents were dependent upon him and propose a dependency ratio of two-thirds and a multiplier of 42 years. 80. The Defendants dispute the income and dependency and propose either a global award of Kshs.800,000 to Kshs.1,000,000 or, alternatively, a much lower multiplicand and multiplier. 81. Section 4(1) of the Fatal Accidents Act provides that an action may be brought for the benet of the wife, husband, parent and child of the deceased. Section 8 requires the claim to specify the persons for whose benet the action is brought. 82. The guiding principle is that damages for loss of dependency are intended to compensate the dependants for the pecuniary benet they would have received from the deceased had he survived. The claimant must therefore establish both dependency and the basis upon which the loss is to be quantied. 83. PW1 testied that the deceased was a farmer who cultivated potatoes, beans and other crops and earned approximately Kshs.30,000 per month. However, he candidly admitted that he had no documentary evidence of the deceased's income. He also admitted that he had not produced documentary evidence demonstrating the extent of nancial support given to the deceased's parents. 84. The absence of documentary evidence does not necessarily defeat a claim for loss of dependency. In Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR, the Court of Appeal held that there is no requirement that proof of income must invariably be by production of documentary evidence, particularly where the deceased was engaged in informal employment. 85. Nevertheless, the Court must determine the income on the basis of the evidence available. The assertion of Kshs.30,000 per month was not supported by independent evidence. PW1 was not living with the deceased and did not produce business records, agricultural records, bank statements, sale records or other evidence capable of demonstrating that the deceased consistently earned Kshs.30,000 per month. 86. I therefore nd that the specic multiplicand of Kshs.30,000 has not been proved. In such circumstances, the Court may adopt an appropriate minimum wage or, depending on the circumstances, make a global award. The principle was recognised in Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi (Suing as Administrator and Personal Representative of the Estate of Antony Mwiti Gakungu – Deceased) [2020] eKLR and Mwangi (Suing as Administrators of the Estate of Peter Maina Mwangi – Deceased) v Arim, Civil Appeal No. E045 of 2021 [2022] KEHC 3295 (KLR). 87. On dependency, PW1 stated that the deceased assisted his parents by providing food and meeting their medical expenses. The Plaintis produced a letter from the Chief and an identication document https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 12

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relating to the parents. The evidence establishes some degree of dependency, but it does not establish that the deceased was the sole or principal breadwinner or the precise amount of nancial support he provided. 88. The deceased was unmarried, and the pleaded dependants were his parents. In such circumstances, a dependency ratio of two-thirds cannot be adopted as a matter of course. In Kathuni v Kinyari (Sued as the Legal Representative of the Estate of Kelvin Lugendi Gibendi – Deceased) [2024] KENSC 1458 (KLR), the Court recognised the appropriateness of a one-third dependency ratio in circumstances involving an unmarried deceased. 89. As regards the multiplier, the deceased was a young man. However, the Court must take into account the uncertainties and vicissitudes of life, including the nature of his occupation. The multiplier is not intended to be a mathematical certainty. In John Muchiri Njoroge & Another v Prisca Mmbone & Another [2019] eKLR, the Court recognised that the multiplier must account for the uncertainties of life. Similarly, in Njuka v Gituma [2022] KEHC 13849 (KLR), a multiplier of 20 years was adopted for a deceased aged 28 years. 90. In the circumstances of this case, I consider a multiplier of 20 years reasonable. 91. Since the deceased's actual income was not satisfactorily proved, and considering the evidence that he was engaged in farming, I consider a global approach more appropriate than applying an unsupported multiplicand. Comparable decisions cited by the Defendants, including Gitari & 2 Others v Kassim & 2 Others [2024] KEHC 14065 (KLR), Warui v Thimbui (Suing as Legal Representatives of the Estate of Rahab Wanjiru Ngari – Deceased) [2024] KEHC 16859 (KLR) and John Macharia v Josphat Muriungi Muguange & Another [2020] eKLR, demonstrate that a global sum may be appropriate where the evidence of earnings and dependency is limited. 92. Taking all the circumstances into account, including the deceased's age, occupation, the evidence of some parental dependency, the absence of proof of his actual earnings, and comparable awards, I nd a global award of Kshs.1,000,000 reasonable for loss of dependency. d. Special damages 93. The Plaintis pleaded special damages of Kshs.187,050. Special damages must be specically pleaded and strictly proved. This principle is well settled. In Hahn v Singh [1985] KLR 716, the Court of Appeal held that special damages must not only be specically pleaded but must also be strictly proved. See also Maritim & Another v Anjere (1990–1994) EA 312. 94. The Plaintis claimed Kshs.135,500 as funeral, post-mortem and mortuary expenses, Kshs.1,000 as ling fees for the Limited Grant Ad Litem, Kshs.550 as motor vehicle search fees and Kshs.50,000 as advocates' fees for obtaining letters of administration. 95. The evidence of PW1 was that funeral expenses were approximately Kshs.200,000 and that the family raised approximately Kshs.50,000 through a fundraising. The evidence therefore does not, without more, establish that the precise sum of Kshs.135,500 was incurred by the estate. More importantly, special damages must be proved by appropriate documentary evidence where such evidence is reasonably available. 96. To the extent that the Plaintis produced receipts or other documentary evidence supporting particular items, those amounts are awardable. However, the pleaded sum of Kshs.187,050 cannot be awarded merely because it was pleaded. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 13

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97. The claim for advocates' fees for obtaining the grant is also not, in my view, recoverable as special damages in the manner pleaded, absent a specic legal basis and proof that the expenditure constitutes damage owing from the Defendants' tortious conduct. Likewise, ling fees relating to obtaining representation are generally matters of costs rather than damages. 98. On the evidence before the Court, I nd that the Plaintis have proved the motor vehicle search fee of Kshs.550. The other claimed special damages have not been strictly proved to the required standard. 99. Accordingly, special damages are awarded at Kshs.550. 100. The awards under the Law Reform Act and the Fatal Accidents Act arise from dierent causes of action and are ordinarily considered separately. However, the Court must bear in mind the statutory requirement under section 2(5) of the Law Reform Act concerning the relationship between the two forms of recovery so as to avoid double compensation. 101. In the present case, the claim for loss of expectation of life and pain and suering is compensation to the estate, while the loss of dependency claim compensates the dependants for their pecuniary loss. I therefore nd no basis, on the evidence before me, for making a further deduction from the award for loss of dependency. iii. Costs and Interest 102. The Plaintis have substantially succeeded in establishing liability. They are therefore entitled to the costs of the suit. Interest on general damages shall run from the date of this judgment, while interest on the proved special damages shall run from the date of ling suit. F. Conclusion 103. In the result, judgment is hereby entered for the Plaintis against the Defendants jointly and severally as follows: a. Liability is apportioned at 100%. b. Kshs.50,000 for pain and suering; c. Kshs.100,000 for loss of expectation of life; d. Kshs.1,000,000 for loss of dependency; e. Kshs.550 as special damages; f. The total award is therefore Kshs.1,150,550; g. The Plaintis shall have the costs of the suit; and h. Interest shall accrue on the general damages from the date of this judgment and on the special damages from the date of ling suit until payment in full. DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS THIS 21ST DAY OF SEPTEMBER, 2026 HON. HM NYABERI, CHIEF MAGISTRATE IN THE PRESENCE OF: Court assistant: Danson Solian https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 14

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Plainti advocate: Ms. Chepkorir holding brief for Mrs. Chelangat Defendant advocate: Ms. Otieno ORDER: 45 days stay of execution. TABLE Narok Civil Case No. E174 Of 2024 Page 8 Of 8 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/935/eng@2026-09-21 15

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