Abraham Komora Dirivo & Another (Suing as the administrators of the estate of Aggrey Ghavere Dirivo - Deceased) v Dollar Shukri Mohammed & Another

the deceased were solely caused by his own negligent and unlawful actions by attempting to jump onto the said motor vehicle which was in motion, thereby slipping and falling down. It is their statement that they rely on the doctrine of contributory negligence and that of volenti non fit injuria. 4. The Defendants stated that the Deceased was not lawfully walking and/or conducting himself in compliance with the applicable road traffic laws and regulations; the Deceased was negligent in that he voluntarily and recklessly attempted to board a moving motor vehicle for the purpose of obtaining a ride thereon; the Deceased unlawfully attempted to jump onto the said moving motor vehicle, as a result of which he slipped and fell, thereby sustaining fatal injuries, at a time when the said motor vehicle was being lawfully driven with due care and in full compliance with all applicable traffic laws and regulations; the actions of the Deceased amount to volenti non fit injuria, and the Defendants shall rely on the same at the hearing hereof. 5. The above, thus, formed the crux of this case, within which it was expected the evidence of the parties would flow from. THE PLAINTIFF’S CASE 6. PW1 was John Kirima, who testified that he is the Assistant Superintendent of Police and the Officer-in-Charge of Traffic in Makueni, holding Service Number 238990. He stated that he previously worked in Hola as the officer-in-charge of Tana River County. He confirmed that an accident report was made on 7 th October 2024 of an accident which had occurred the same day at approximately 0600 hours. He testified that the accident involved an Isuzu lorry, registration number KCZ 132G, driven by Omar Bwanahindi, and a pedestrian named Aggrey Dirivo, who was a Form 3 student at Chanani Secondary School. The witness explained that both the lorry and the pedestrian were heading in the same direction, towards Masalani, when the lorry struck the

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student in the Mikindani area. He stated that the driver failed to stop after the accident, but an individual communicated with the Majengo roadblock. Officers at the roadblock intercepted the lorry and directed it to Hola Police Station. The witness noted that he was informed of the incident via phone and subsequently visited the scene at Mikindani. Upon arrival, he discovered that a good Samaritan had rescued the boy and rushed him to Hola General Hospital, where the boy unfortunately succumbed to his injuries. A post-mortem examination was conducted the same day, and a report was produced. He added that the police issued an abstract dated 7th October 2024, which was produced in court as Exhibit PEXH-1, after which they commenced investigations. Statements were recorded from witnesses, and the case file was forwarded to the Office of the Director of Public Prosecutions (ODPP) for further action. He also mentioned that he was paid KShs. 5,000 to attend court on the day of his testimony. 7. Under cross-examination by Ms. Bujra, the witness reiterated that Omar Bwanahindi was the driver and that the accident was reported at 0600 hours. He confirmed that statements were recorded and the file was sent to the ODPP, who then directed that an inquest be conducted. He testified that he handed the file over to Corporal Ngare before being transferred, and he admitted that he could not confirm the current status of the case. The witness explained that when an accident results in a fatality, the driver is typically charged with causing death by dangerous driving. While he claimed the driver was bonded via cash bail, he admitted he had no physical evidence of the bond, had not verified if the driver was ever officially charged, and had not checked the status of the traffic file before coming to testify. He stated that he was transferred from Hola in December 2025, which was one year and two months after the accident occurred in October 2024. He acknowledged that as of December 2025, the driver had still not been charged, and he did not know the status of the case prior to his transfer. He explained his lack of

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follow-up by stating that he had attended a seven-month course at Kiganjo, went on leave, and was subsequently transferred. 8. During re-examination by Ms. Muli, the witness, clarified that while he was stationed in Hola, the matter was forwarded to the ODPP and an inquest was initiated. He reiterated that the driver had been bonded and that his own transfer occurred before the matter could be concluded. Finally, he confirmed that he was the initial Investigating Officer in the case 9. PW-2 was Abraham Komora Dirivo, who testified that he is a teacher and the father of the deceased herein. He adopted his witness statement dated 12/11/2025 as his evidence-in-chief and also produced the documents in the list of documents dated 12/11/2025 as PEXH-2 to PEXH-9. In his statement, he stated that on 7/10/2024, his son had left home in a good, healthy condition for school at Chanani Day Secondary School. While still at home, the wife came and told him that one Asaf Komora Emmanuel had informed her of an accident near the Mikinduni area along the Hola-Masalani road and his son was involved in the said accident. They then rushed to the scene and found that their son had been hit by a motor vehicle, registration No. KCZ 132G, an Isuzu, which had veered off the road. The said Asaph Komora narrated to them how the accident happened, as he stated he had witnessed it. The deceased was then rushed to Hola Hospital, but he succumbed to the injuries. They reported the matter at Hola Police Station under OB No.11/7/10/2024 and they were issued with a police abstract. 10. The witness further stated that the deceased was a 17-year-old, healthy, and bright child at the time of his demise, and the family had high hopes for him as he seemed to have a bright future ahead of him. The witness further stated that as a family, they had suffered immense grief, emotional distress, and financial loss due to the untimely death of their son. It was his testimony that the driver of the said lorry was to blame for the

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accident for failing to exercise reasonable care and caution to avoid the accident. 11. In cross-examination, the witness stated that he did not witness the accident but he was just told what happened by a bodaboda rider, namely Asaf Komora Emmanuel. He stated that he received information that his son had been hit by a lorry and rushed to the hospital. He denied being told that the said son had jumped on the lorry which was in motion and fell. 12. In re-examination, the witness clarified that he had been told about the accident by an eyewitness, who was also a witness in that case. He concluded by stating that the defendants were the owners of the said motor vehicle. 13. PW-3 was Rahel Halaku Komora from Mikinduni, the mother of the deceased. She adopted her statement dated 12/11/2025 as her evidence-in-chief. In her statement, the witness stated that on that particular day, she woke up and prepared breakfast for her son, who was going to school and was due to sit his exams. Shortly after he had left for school, a young man by the name of Asaph Komora Emmanuel came to the home and informed her that their son had been involved in a road accident; he had been hit by a lorry. The said Asaph Komora confirmed to her that he had witnessed the accident. They rushed to the scene and found the deceased, and they rushed him to Hola Hospital, but he was pronounced dead on arrival. It was her testimony that the driver of the lorry was to blame for the accident for driving recklessly and in a negligent manner while on the road. 14. In cross-examination, the witness stated that she was informed about the accident by one Asaph Komora, she rushed to the scene and found the deceased lying on the roadside injured. They then rushed him to the hospital, but he was pronounced dead on arrival. 15. PW4 was Asaf Komora Emmanuel. He indicated that he was a bodaboda rider from the Kone area. He adopted his statement dated 10/11/2025 as his evidence-in-chief. In his statement, the

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witness states that on 7/10/2024 at around 0600 hrs, while walking along Hola-Masalani road near the Mikinduni area, he witnessed a motor vehicle with registration No. KCZ132G, an Isuzu being driven from the Hola direction at a very high speed. He further states that the driver appeared to have lost control of the vehicle, which veered off the road and hit a young boy who was walking off the tarmac on the side of the road. It is his statement that the young boy who was knocked was the deceased, and he was a student at Chanani Day Secondary School. He states that he immediately rushed to the parents to inform them of the accident as other members of the public came in to assist the injured. According to the witness, the boy was rushed to Hola Hospital but was pronounced dead on arrival. It is his testimony that the driver was the one to blame for the accident, as he was speeding and also failed to keep proper control of the vehicle. 16. In cross-examination, the witness stated that on the material day, he was walking along the road near the Mikinduni area. He reported that as he was walking, a white Isuzu vehicle, registration number KCZ 132G, passed him at a high rate of speed. He observed three students and a boy named Aggrey walking ahead of him on the road. According to the witness, the road had potholes, and the driver was speeding. In an attempt to avoid the potholes, the driver hit Aggrey with the conductor's side of the vehicle, which threw the boy four metres away from the point of impact. The witness noted that Aggrey was hit from behind, fell to the ground, and quickly rolled off the road to avoid sustaining further injuries or being hit again. 17. The witness stated that the vehicle did not stop after the impact and was travelling from Hola towards Masalani. He clarified that he was walking behind Aggrey on the road and that the vehicle was on his left-hand side. He stated that he is a bodaboda rider with 19 years of riding experience.

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18. He further testified that, following the accident, the driver of the motor vehicle reportedly attempted to flee the scene. The witness stated that he quickly pursued the vehicle and recorded its registration number. Upon returning to the scene, good samaritans called for assistance, and a taxi arrived to transport the victim to Hola General Referral Hospital. The witness confirmed that despite receiving medical intervention, the victim passed away. He specified that it was the students who went to inform the deceased’s parents, not himself. He added that the vehicle involved was white and that there were no other vehicles on the road at the time. Furthermore, he recalled that Aggrey was wearing a school uniform for Chandani School, though he could not remember its colour. 19. During re-examination by Ms. Muli, the witness reiterated that he witnessed the accident on the Hola-Masalani road and that the vehicle was travelling on that same road. He reaffirmed seeing the deceased being hit, thrown forward, and rolling out of the road. He concluded by restating that the driver struck the boy while attempting to avoid potholes, failed to stop, and fled the scene before the victim was rushed to the hospital, where he subsequently died. 20. That marked the close of the Plaintiff’s case. THE DEFENDANT’S CASE 21. DW-1 was Omar Bwanahindi, the lorry driver who adopted his statement dated 7/4/2026 as his evidence before the court. In the statement, he stated that he operates the said motor vehicle, registration No. KCZ 132G, which operates between the routes of Hola-Masalani towns. He states that on the material day of 7/10/2024, he went to Masalani from Hola town in the company of Athman Kenga, a turn boy, for the purpose of delivering shop commodities. It was in his statement that on the way he gave a lift to two people, a gentleman and a lady. It was his evidence that when he reached the Gafuru and Bondeni junction, he stopped when he saw three men taking photos of

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the lorry. On inquiry, they informed him that they had received information that a white lorry with a green tent had hit a schoolboy and failed to stop. He spoke on the phone with the person who had made the call, and he was informed that he had hit a schoolboy near Chanani and he failed to stop. He then proceeded with his journey as he knew he had not hit. Upon reaching the Majengo roadblock, he was stopped by police officers and, upon inquiring about the route he had taken, he was informed of the story of hitting a student and failing to stop. He was then directed to drive the vehicle to Majengo Police Post, and he was later escorted to Hola Traffic Office, where he was booked and the vehicle detained. It is his evidence that he has not been charged with any traffic offence at the time of his statement. 22. During cross-examination, the witness stated that he had 20 years' experience as a driver and he possessed a valid driving licence but had not brought it to court. He stated that he understood traffic rules and knew he had to be careful on the road, especially near schools, hospitals, and marketplaces. 23. He testified that he was the driver of the lorry on that particular day, describing the vehicle as bigger than normal vehicles, with blind spots that made it difficult to see what happened behind. He stated that he had left Hola that morning at around 6:00 a.m. heading to Masalani. He noted that there were school-going children on the road and that he had slowed down because the vehicle was heavily loaded and the road was in poor condition with many potholes. 24. The witness stated that the lorry had passengers on board, including a lady named Nina, a turnboy named Athman, and a teacher named Kenneth. He mentioned that Athman was also a witness in the case. He recalled seeing many children walking on both sides of the road from different directions, all wearing school uniforms.

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25. While he had written in his defence statement that the victim tried jumping onto the lorry from behind, he clarified that he did not actually see the victim jump or fall from the vehicle. He stated that neither he nor anyone else in the vehicle heard any impact. He testified that some people stopped him on the road to tell him he had hit someone, but he did not go back to the scene, inspect the vehicle, or stop, and instead proceeded with his journey. He was later stopped at a roadblock, where he informed the officers where he had come from, and they subsequently took his statement. He reiterated that nobody in the vehicle witnessed the accident and that he did not see the deceased being hit. 26. During re-examination, the witness, stated that he was driving carefully on the road and that his luggage did not allow him to travel at a high speed. He maintained that he did not hit anyone on the road. 27. Lina Buya was DW-2. She adopted her statement dated 7/4/2026. She states that on the particular day of the said accident, she was on the road travelling from Hola towards Bondeni. She was given a lift by the DW1, who was the driver of a lorry. He was with a turn boy in the vehicle. She states that on reaching Ndura secondary, they saw three men who were taking photos of their vehicle. On inquiry from the driver, they said that the lorry had been reported as having been involved in an accident. The driver engaged them and spoke briefly to someone on the phone, and then they left to continue with their journey. It is her assertion that she did not witness any accident while in the lorry. 28. During cross-examination, the witness stated that on the particular day of the incident, she was heading to Bondeni as a passenger in the lorry. She noted that the vehicle carried a driver and a turnboy, and that she had not paid for the trip but had instead requested a lift. She testified that she was seated in the front, looking straight ahead, and remained quiet throughout

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the journey. She mentioned that it was her first time interacting with the crew and that she did not know the deceased. 29. While she observed many students on the road, she stated that she did not see anyone, including the deceased, trying or attempting to jump onto the lorry. She testified that they continued their journey until they were stopped by KPR (Kenya Police Reservists) officers, emphasizing that nobody else had stopped them on the road prior to that. She noted that she was later called by phone to record her statement at Hola Police Station. Furthermore, she stated that someone outside the vehicle would have been better positioned to see the accident than she was from the inside, concluding that she did not see anything regarding the alleged accident. 30. During re-examination, the asserted that if anyone had been hit from the front of the vehicle, she would have seen it. She reiterated that she did not see any accident occur. 31. DW-3 was Kenneth Jillo Bonaya, a school teacher at Duayo Primary and Junior Secondary School. He adopted his statement dated 8/6/2026 as his testimony in this case. In the statement, he states that on 7/10/2024, he was on his way to school when he boarded the lorry, registration No. KCZ 132 G, which was being driven by one Omar Bwanaidi, who is well known to him. In the vehicle during the journey, there were four people seated in the front seats. That when they reached the Gafuru and Bondeni junction, they encountered three men who were taking photos of the lorry. Upon inquiry, they said that the lorry was reported as having been involved in an accident. The driver talked to them and talked to someone on the phone, and then they proceeded with their journey. He was dropped at his destination without any further incident. The driver called him later in the evening and informed him that he had been intercepted at the Majengo roadblock by the police. It is his evidence that there was no accident that involved the said lorry.

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32. During cross-examination, the witness stated that on the day of the incident, he was travelling to school, noting that he teaches at Duayo Primary and Junior Secondary School (JSS). He explained that he was a passenger in the lorry, though he acknowledged being aware that lorries are not allowed to carry passengers. He specified that he was seated in the front cabin of the vehicle, positioned between the driver and the turn boy. He clarified that there were four individuals inside the cabin in total, all of whom were seated rather than standing. 33. The witness testified that he had a proper view of the road ahead, although he was unable to see the vehicle's blind spots. Regarding the deceased, he stated that he did not know him well at the time but recognized him by face, knowing that they came from the same village. He further noted seeing many students from Chanani Secondary School walking along the road but stated that he did not see the deceased among them. He added that he did not see any students attempting to jump onto the lorry, nor did he witness anything regarding the accident itself. He affirmed that everything contained in his written statement was a true account. He recounted that they were eventually stopped on the road by the Police Reserve, who informed the driver that the lorry had caused an accident. The witness stated that they subsequently continued with their journey without inspecting the vehicle or the scene to see if an accident had actually occurred. Finally, he stated that he had known the driver for some time, but re-emphasized that he did not see the accident and could not explain how it happened, if indeed it had occurred. 34. DW-4 was Mahamed Sheikh Haret Maalim, the 2nd Defendant and the husband of the 1st Defendant. He adopted his witness statement dated7/4/2026 as his testimony before the court. In the statement, he states that he is the registered owner of the suit motor vehicle, KCZ 132G, make Isuzu. He averred that the lorry is operated by his driver, namely Omar. Regarding the

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events of 7/10/2024, it is his testimony that he received a phone call from his driver, Omar, at around 1000 hrs informing him that he had been stopped at a roadblock on allegations of having caused the death of a person and failed to stop. He states that he proceeded to the said junction and he found the vehicle and the driver, who were taken to Majengo police post. It is his evidence that the said vehicle was taken for inspection and later released as there was no evidence that it had caused any accident. It is evidence that all the available evidence pointed to the fact that the deceased jumped at the back of the vehicle, slipped, and fell down. 35. During cross-examination by Ms. Muli, the witness, stated that the suit motor vehicle belonged to him and was registered in his name. He testified that he was the person who authorized its use, including on the specific day of the incident, and that he was responsible for ensuring the vehicle was roadworthy. He stated that in October 2024, he had permitted Omar to drive the lorry on that particular day. He clarified that he was not inside the vehicle and did not see anything because he was in Masalani at the time. 36. The witness further stated that the driver called him on the phone to report the accident while the driver was at Majengo. He also noted that he spoke with the police over the phone. He testified that they did not visit the scene where the accident occurred, nor did he speak to any eyewitnesses. He stated that he relied entirely on what the driver told him regarding the accident and did not conduct any independent investigations. 37. He informed the court that Omar had worked for him for almost ten years and was still employed at his place. He reiterated that he was merely told what had happened but did not witness anything himself. He maintained that the vehicle was wellmaintained and fitted with a speed governor set to a maximum speed of 60 km/h. He added that he knew how to drive a motor vehicle.

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38. The witness stated that the police conducted their investigations at the station and informed him that they would take the vehicle for inspection. He noted that the police detained the driver, but he secured the driver's release on bond, after which both the driver and the vehicle were released. He admitted that he did not follow up to confirm the final outcome of the police investigations and re-emphasized that he did not witness the accident. 39. That marked the close of the defence case. SUBMISSIONS 40. The parties were directed to file their submissions. The Plaintiff filed their submissions dated1/9/2026,6 which the court has considered in this judgment. The Plaintiff, as per the submissions, prays for judgment in the sum of KShs. 2,260,7500 together with costs. The Defendants did not file any submissions in the matter despite being given a chance twice to file their submissions. ISSUES FOR DETERMINATION AND ANALYSIS 41. The Plaintiffs, in their submissions, raised four issues for determination, which were who is to blame for the accident, if the Plaintiffs are entitled to the pleaded damages, the appropriate quantum, and who should bear the costs of the suit. 42. The issues raised above can be summarized into three: who was liable for the accident, what is the quantum, and who bears the costs. The same issues are discussed below: A. LIABILITY 43. The Plaintiffs pleaded negligence by the Defendants as their cause of action. Thus, in such a case, the burden of proof would be on the Plaintiff to prove the negligence of the Defendant. This is emphasized by Sections 107, 108, and 109 of the Evidence Act. 44. The legal burden of proof means that the responsibility to provide evidence belongs to the side making the claim. There is, also, an evidential burden of proof which is the burden of

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proving any particular fact which one desires the court to believe in its existence, and this is provided in Sections 109 and 112 of the Evidence Act. 45. The above provisions were discussed in the case of Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court held as follows: As a general proposition under Section 107(1) of the Evidence Act, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is, however, the evidential burden that is cast upon any party—the burden of proving any particular fact which he desires the court to believe in its existence—which is captured in Sections 109 and 112 of the Act. 46. Consequently, the Plaintiffs must adduce sufficient evidence to establish that the Defendants drove the said motor vehicle in a negligent manner, hence causing the accident. Failure to discharge this burden will result in the dismissal of their case. 47. In Charlesworth and Percy on Negligence, 9 th edition at pg. 387:as quoted in Treadsetters Tyres Limited vs. John Wekesa Wepukhulu (2010) eKLR, it is stated: “I an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence, it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted, and after it is concluded, two questions: (1) whether, on that evidence, negligence may be reasonably inferred, and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.

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48. The Court of Appeal in the case of Michael Hubert Kloss and Another vs. David Seroney & 5 Others [2009] eKLR as follows: The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it...“ The question must be determined by applying common sense to the facts of each particular case. One may find that, as a matter of history, several people have been at fault and that if any one of them had acted properly, the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. 49. As has been stated in many authorities, there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence on the part of the defendant where the claim is based on negligence. There is no doubt there is a person who died, and the allegations are that he died as a result of a road traffic accident. The issue, therefore, would be

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whether the defendants were negligent and their negligence was a proximate cause of the fatal accident. 50. The Plaintiffs stated that the deceased was headed to school when he was hit by the said motor vehicle, which failed to stop after the accident. The main witness to the said effect is PW-4, who was the eyewitness who stated that he witnessed the lorry hitting the deceased from behind, causing his death. In his statement, the witness states as follows: 1. THAT on 7ᵗʰ October,2024,4 at around 6:00 a.m., I was walking along Hola–Masalani Road near the Mikindunii area when I witnessed a motor vehicle, registration number KCZ 132, an ISUZU, being driven from the Hola direction at a very high speed. 2. THAT the driver appeared to have lost control of the vehicle, which veered off the road and hit a young boy who was walking off the tarmac on the side of the road. 51. While being cross-examined by the advocate for the Defendants, the witness stated that the road had potholes, and the driver was speeding. In an attempt to avoid the potholes, the driver hit Aggrey with the conductor's/turnboy's side of the vehicle, which threw the boy four metres away from the point of impact. He further stated that Aggrey was hit from behind, fell to the ground, and quickly rolled off the road to avoid sustaining further injuries or being hit again. 52. From the proceedings before the court, this was the only witness who saw what happened. 53. The other witnesses did not see anything, including the defendants herein. The defence witnesses, DW-1 to DW-3, who were on the said motor vehicle, both in their statements and before the court, stated that they did not see anything. They did

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not see the accident; they did not see the lorry hit the deceased. 54. The burden of proof in civil cases rests with the plaintiff, and the plaintiff in such a case has the duty to prove the case on a balance of probabilities. However, in civil matters, unlike criminal cases, the burden of proof keeps on shifting from one to another depending on the evidence provided. In criminal matters, it is incumbent upon the prosecution to prove their case beyond reasonable doubt, and the accused is never under any duty to prove anything on their part. 55. In Miller vs. Minister of Pensions [1947] 2 All ER 372, Lord Denning stated as follows: That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 56. A reading of Sections 107 and 108 of the Evidence Act would reveal this assertion. Section 107 provides: 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. When a person is bound to prove

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the existence of any fact, it is said that the burden of proof lies on that person 57. While Section 108 provides that the onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 58. This would therefore mean that in civil cases, when the Plaintiff alleges, the Plaintiff has a duty to prove the allegations on a balance of probability. In return, the defendant will have a duty if they offer any defence to prove the said defence so as to make the court believe in their assertion. 59. Justice BK Njoroge in Daud vs. Moraa [2025] KEHC 12007 (KLR) stated as follows as to the shifting of this burden of proof and mainly on the evidentiary part. From the foregoing, it is clear that the Appellant, being the Plaintiff in the Trial Court, bore both the initial legal and evidentiary burden to prove his case against the Respondent on a balance of probabilities. Equally, the Respondent bore the burden of proving her counter-claim on a balance of probabilities. Generally, it is only after a party has discharged their burden that the evidentiary burden shifts to the opposing party to adduce evidence in rebuttal. The evidential burden is dynamic, operating like a pendulum that may shift back and forth depending on the stage of the proceedings and the evidence presented. At any given point, its position is determined by asking: who would fail if no further evidence were adduced? 60. The Plaintiffs assert that the said lorry hit the deceased from the side of the conductor, which would mean the left side. With that evidence and assertion, the Plaintiffs have discharged their

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duty and have satisfactorily proved the particulars of negligence pleaded. The evidentiary burden would then turn to the Defendants to give their side of the story and to dissuade the court from the Plaintiffs’ evidence. 61. The plaintiffs pleaded that there was contributory negligence. In the case of Mombasa Maize Millers & another vs. Elius Kinyua Gicovi [2021] eKLR where Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) vs. Sandra Morgan, and held as follows: In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said: “……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 62. So, how did the deceased contribute to the accident, according to the defendants? It is the assertion of the Defendants that the

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deceased contributed to his misfortune when he jumped over the lorry when it was moving, causing him to fall and causing the injuries which led to his death. 63. However, the witnesses in their testimonies before the court did not advance this defence at all. All the expected eyewitnesses simply said, “I did not see anything like that.” They denied witnessing anything while on the road on the particular day related to the accident. 64. While this may be a good defence and it might be true that they did not see anything, the question then would be what about their defence of contributory negligence? Why plead one thing then give a testimony which is contrary to your pleadings? There is, however, a solution to such issues where a party pleads one issue but then produces evidence on issues not pleaded. 65. This solution is found in the case of Daniel Otieno Migore vs. South Nyanza Sugar Co. Ltd [2018] eKLR, where Justice Mrima stated as follows: It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all proceedings derive. It hence follows that any evidence adduced consonance with in a matter the pleadings. must be in Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002

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where Adereji, JSC expressed himself thus on the importance and place of pleadings: “…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded…… …In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 66. The defendants stated they did not see. They did not see the deceased jump on the lorry and fall down. This defence or testimony does not support any of the assertions pleaded; hence, the same is rejected in its entirety. This would therefore mean that the defendants remain with no defence, without which then the evidence provided by the Plaintiff is taken to prove liability and negligence of the driver of the said lorry. 67. The defendants and/or their agents are therefore held 100% liable for the said accident and the death of the deceased herein. B. QUANTUM 68. I shall consider how much to award under the following heads as per the Law Reform Act and the Fatal Accidents Act and the pleadings before the court a) Loss of Dependency b) Pain and Suffering

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c) Loss of Expectation of Life d) Special Damages A. Loss of dependency 69. The deceased is stated to have been a Form 3 student aged 17 years, which was evidenced by the certificate and the school ID. At that age, he had no established income, making the calculation of future earnings speculative. The performance on the school report card shows a potential student with good chances of pursuing higher education and maybe securing stable employment. 70. Musyoka J, in Lake Victoria North Water Services Board vs. Oduo & another (Suing as the administrator of the Estate of Joyce Opondo - DCD) [2025] KEHC 3836 (KLR) describes loss of dependency as follows: Loss of dependency is recoverable under the Fatal Accidents Act. Claims under the Fatal Accidents Act are brought by or on behalf of the dependents or dependants of the deceased, that is individuals who were dependent on the deceased person during his lifetime. They would cover claims for loss of financial support, being compensation for the financial support that the dependants would have continued to receive had the deceased stayed alive. They would also cover loss of the services that the dependants were receiving from the deceased, say household chores, childcare, consortium, etc. See EA Growers Limited vs. Charles Ng’ang’a Ngugi [2015] KEHC 5067 (KLR) (Ngaah, J). 14. It would also include bereavement damages, usually a fixed sum awarded for the grief and emotional distress caused by the death, which would be concurrent to the loss of expectation of life, under the Law Reform Act. It would be, in

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respect of claims under the Fatal Accidents Act, that issues about the age, income or earnings of the deceased, multiplicand, employment multiplier, or activities, dependency ratio, dependants, etc, would arise. 71. Therefore, based on the foregoing, the best approach would be a global sum approach, considering the deceased was a minor with no known source of income. It would be more of a speculation to try to put a figure on his future earnings. In adopting this method, I am required to be guided by the age of the deceased, the expected length of dependency, and the estimated income. Care should be taken to ensure the award is not so inordinately high or low as to be a wrong estimate of damages 72. The deceased is stated to have only two dependents, the parents. Maybe he was their only child. The Plaintiff quoted several authorities, which I will not reproduce, and the figures range between KShs.1,500,000 and KShs.2,000,000. 73. The three authorities are: a) Twokay Chemicals Limited vs. Patrick Makau Mutisya & Another [2019] eKLR, a global award of Kshs. 1,500,000/= for loss of dependency in respect of a female deceased minor aged 16 years was upheld. b) Francis Odhiambo Nyunja & 2 Others vs. Josephine Malala Owinyi (Suing as Administrator of the Estate of Kevin Osore Rapando – Deceased) [2020] eKLR, an award of Kshs. 1,500,000/= was considered sufficient in respect of a Form 3 male deceased aged 17 years. c) JAO & Another (Suing as Legal Representatives of the Estate of VOO – Deceased) vs. Akoth [2025] KEHC 16563 (KLR), the deceased was male, 17 years old and being taken care of by the guardians. 74. Considering the authorities above, the 1 st authority would not be relevant in our situation as the deceased was female and 16

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years old. A study of the authorities, however, points to the courts awarding between KShs.1,000,000 and KShs.2,000,000. 75. In Nzuki vs. Maithya & another (Suing as the Legal Representatives of the Estate of Joseph Wambua - Deceased) [2024] KEHC 2752 (KLR) justice Limo upheld an award of a sum of KShs.1,000,000 in a case where the deceased was a male aged 17 years old and was a student. 76. In Muli & another vs. Nzioka & another (Suing as the Administrators of the Estate of the Late Michael Makau Nzioka) [2022] KEHC 224 (KLR) the court awarded a sum of KShs.1,500,000 for a male minor aged 17 years who was school going. 77. Looking at the authorities mentioned and considering when faced with authorities giving variant figures, and considering the age of the minor and his performance in school as exhibited by the report form, he was an average student based on the grades, but that is not enough for me to predict his future and how he would have turned out. I exercise my discretion and award a sum of KShs. 1,500,000 under this head. B. Pain and suffering 78. The evidence presented before the court shows that the deceased died on the same day of the accident. He is said to have been pronounced dead on arrival at the hospital, according to the statement of the witnesses. This would therefore mean that he died in under an hour from the time of the accident. 79. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA NO. 68 of 2015 [2016] EKLR Justice Majanja stated that: On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring

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immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from KShs. 10,000 to KShs. 100,000 over the last 20 years hence I cannot say that that the sum of KShs. 50,000 awarded under this head is unreasonable.” 80. The Plaintiffs did not cite any authority in support of the proposed amount of KShs.100,000, but based on the above authority in the Muli case, I would award a sum of KShs.50,000 for pain and suffering. C. Loss of Expectation of Life 81. Based on the authorities quoted above, I would award a sum of KShs. 100,000 under this head. No similar cases compare, but the authorities quoted above compare to the one at hand and, as such, I consider the figure to be the most appropriate under the circumstances. D. Special damages 82. The rule of thumb in special damages is that they must be pleaded specifically and thereafter proven, without which the court shall not award. 83. Justice Kizito Magare in Adana vs. Ogora [2025] KEHC 4446 (KLR)stated as follows on the issue of special damages: On special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 stated that: “The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General

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damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded. 84. The Plaintiff pleaded the following under particulars of Special damages: a. Obtaining letters of administration: Ksh. 45,000/= b. Police abstract: Ksh. 200/= c. Motor vehicle search: Ksh. 550/= d. Post Mortem expenses: Ksh. 15,000/= Total: Kshs. 60,750/= 85. The Plaintiff only provided a document or receipt to support the motor vehicle search, which is a receipt dated 11/6/2025, and the same is awarded accordingly as prayed. The other pleaded heads are rejected for lack of sufficient supporting documents. Parties are bound by their pleadings, and you only get what you ask for and prove. C. COSTS OF THE SUIT 86. Costs follow the event, and there are no compelling reasons to depart from the general rule. Thus, the Plaintiffs shall have costs of the suit with interest from the date of the judgment. D. CONCLUSION 87. In sum, judgment is hereby entered in favour of the plaintiff against the defendants in the following terms: a) Liability 100% jointly and severally against the Defendants b) Loss of Dependency-KShs.1,500,000

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c) Pain and Suffering-KShs. 50,000 d) Loss of Expectation of Life-KShs. 100,000 e) Special Damages-KShs.550 f) Costs of the suit to the Plaintiffs, together with interest at the court rates from the date of the judgment There shall be a 30-day stay of execution. JUDGMENT READ, SIGNED, AND DELIVERED IN OPEN COURT AT HOLA THIS 29TH DAY OF SEPTEMBER, 2026 W.O. KOMBWAYO, RM Delivered in the presence of: CA-KOFA Ms.Muli for the Plaintiffs N/A for the Defendants

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