Makau & another (Suing as the Administrators of the Estate of the Late Makau Mulatya - Deceased) v Dwa Estate Limited (Civil Case E051 of 2022) [2025] KEMC 325 (KLR)
The bottom line
#A Kenyan court halved a family's fatal accident compensation because the deceased motorcyclist shared equal blame with the lorry driver.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who between the deceased and the driver of the defendant's motor vehicle was to blame for the accident?
- 2.Whether the estate of the deceased and his dependants are entitled to damages
- 3.If so, the nature and quantum thereof
- 4.Who should bear the costs of this suit?
Key legal issues
#Liability for the road traffic accident
Both the deceased and the defendant's driver were negligent; liability apportioned equally at 50% each, with the defendant vicariously liable for its driver
The court analysed the point of impact on the extreme left of the road facing Kitui direction and found that neither party's version fully explained the impact point. The deceased must have made a right turn without proper calculation of distance, while the defendant's driver failed to slow down or take evasive action. Photographs showing damage to the left headlamp area supported the inference that the deceased had already turned when struck. Drawing on Baker, Lakhamshi and subsequent Kenyan authority, liability was apportioned equally.
Vicarious liability of the defendant
The defendant, as owner and employer of the driver, was 50% vicariously liable for the accident
It was admitted and not in dispute that DW 1 was driving the motor vehicle in the course of his employment with the defendant at the material time. Applying the doctrine of respondeat superior and the presumption of agency in Kenya Bus Services Ltd v Humphrey and Kansa v Solanki, the defendant was fixed with vicarious liability for its driver's share of the negligence.
Quantum of damages under the Law Reform Act and Fatal Accidents Act
Awards of Ksh. 100,000 for pain and suffering, Ksh. 120,000 for loss of expectation of life, Ksh. 1,500,000 global award for loss of dependency, Ksh. 80,350 funeral expenses and Ksh. 550 special damages
The deceased died about 30 minutes after the accident, justifying Ksh. 100,000 for pain and suffering as proposed by the plaintiffs. He died aged 66; comparables at Ksh. 100,000 were uplifted for inflation to Ksh. 120,000 for loss of expectation of life. Dependency of adult children required no age-cap proof; a global award of Ksh. 1,500,000 was appropriate given the multiplier method was unsuitable. Funeral expenses of Ksh. 80,350 were awarded as prayed notwithstanding absence of receipts.
Proof of special damages
Special damages of Ksh. 550 for a motor vehicle records search awarded as it was specifically pleaded and proved by receipt
The court restated the rule from Hahn v Singh and Ouma v Nairobi City Council that special damages must be specifically pleaded and strictly proved. Since a receipt supported the claim for the motor vehicle search, the Ksh. 550 claimed was awarded.
Interest on damages
Interest on general damages from date of judgment; interest on funeral expenses and special damages from date of filing suit
Relying on section 26 of the Civil Procedure Act, Jane Wanjiku Wambui v Anthony Kigamba Hato and the Ugandan Supreme Court decision in Omunyokol Akol Johnson v Attorney General, the court held that special damages attract interest from the date of loss/filing suit while general damages, being ascertained only at judgment, attract interest from the date of judgment until payment in full.
Legal principles established
#- The burden of proving negligence lies on the plaintiff, who must adduce evidence to prove particulars of negligence pleaded, on a balance of probabilities
- Where the evidence on a road traffic accident is insufficient to fix blame on either party, the court may apportion liability equally; where both parties are negligent but blame cannot be distributed, it is divided equally
- An employer/owner is vicariously liable for the negligence of a driver driving in the course of employment, with a rebuttable presumption of agency where the vehicle is driven by a person other than the owner
- Special damages must be specifically pleaded and strictly proved
- Interest on special damages runs from the date of loss, while interest on general damages runs from the date of judgment
Court orders
#- 1.Damages for pain and suffering of Ksh. 100,000/=
- 2.Damages for loss of expectation of life of Ksh. 120,000/=
- 3.Damages for loss of dependency of Ksh. 1,500,000/=
- 4.Funeral and related expenses of Ksh. 80,350/=
- 5.Special damages of Ksh. 550/=
- 6.Total award of Ksh. 1,800,900/= less 50% contribution, leaving a balance of Ksh. 900,450/= due to the plaintiffs
- 7.Interest on general damages (pain and suffering, loss of expectation of life and loss of dependency) at court rates from the date of judgment/decree until payment in full
- 8.Interest on funeral expenses and special damages from the date of filing suit to the date of judgment/decree
- 9.Half the costs of the suit to the plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a fatal road-traffic negligence claim under the Fatal Accidents Act and Law Reform Act
Relief refused
#50% of the total damages claimed
Liability apportioned equally between the deceased and the defendant's driver, so the plaintiffs recover only half the damages
Funeral expenses beyond the pleaded Ksh. 80,350/=
The plaintiffs did not properly plead and prove a higher figure; the court awarded only the nominal figure as prayed
Costs
Plaintiffs awarded half the costs of the suit, with interest on damages as set out in the disposition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It was admitted that DW 1 was driving the motor vehicle in the course of his employment with the defendant. Consequently, I find the defendant 50% vicariously liable for the accident.
It is trite law that special damages must be specifically pleaded and strictly proved.
Given the age of the authorities and the vagaries of infiation, I agree with the plaintifis that an award of Ksh. 1,500,000/= would sufice. I award the same.
In summary, I find that the plaintifis have proven their case on a balance of probabilities against the defendant. Consequently, I hereby make the following awards in favour of the plaintifis:
The plaintifis are also awarded interest on the damages as well as half the costs of the suit.
Issues in the judgment
#The judgment inconsistently records the motor vehicle registration number, stating KCE 838Q in the list of undisputed facts although the pleadings and the rest of the judgment use KCE 839Q
The court found both parties negligent and apportioned blame equally, while also stating that the plaintiffs proved their case on a balance of probabilities against the defendant, a formulation that requires reconciliation with the 50% apportionment
The judgment in the disposition computes the total as Ksh. 1,800,900/= but the components (100,000 + 120,000 + 1,500,000 + 80,350 + 550) sum to Ksh. 1,800,900/=, while the printed total appears as 'Ksh.1 800,900/=' with a typographical spacing error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau & another (Suing as the Administrators of the Estate of the Late Makau Mulatya - Deceased) v Dwa Estate Limited (Civil Case E051 of 2022) [2025] KEMC 325 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/325/eng@2025-12-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.