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MagistratePartially AllowedBungoma CMC CC. No. E525 of 2024

Dismas Wanyonyi (Suing as the Administrator of the Estate of the Deceased) v Idd Salim Nabuko Manda

Chief Magistrate's Court, Bungoma
9 October 2025
5,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court held a tractor owner 100% liable for a fatal accident and awarded the family Kshs. 2.1 million despite claiming no fault.

What this practically means

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Executive summary

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In this fatal accident claim, the Plaintiff, the father of the deceased, sued the owner of tractor KTCC 546 F hauling trailer ZG 9752 after the deceased was run over from behind on 14th January 2023 while walking along the Bumula–Sikinga road. The Defendant denied the accident and, in the alternative, blamed the deceased. At trial, two eyewitnesses testified that the tractor knocked the deceased from behind without hooting, braking or swerving, while the Defendant's driver, though denying involvement, admitted stopping and finding the deceased lying on the road some 50 metres behind his tractor. The court found the accident occurred and that the tractor was owned by the Defendant and driven by his authorised servant, attracting vicarious liability. It declined to apportion any negligence to the deceased for walking on the left side of the road, holding that the driver of a lethal machine owed the pedestrian a higher duty of care, and found the Defendant 100% liable. On quantum, the court found the deceased was a farmer of unproven income, adopted the statutory minimum wage of Kshs. 8,109.90/= as multiplicand, a 25-year multiplier and a 2/3 dependency ratio, awarding Kshs. 1,621,980/= for loss of dependency, Kshs. 50,000/= for pain and suffering, Kshs. 200,000/= for loss of expectation of life and Kshs. 230,765/= in special damages, a net award of Kshs. 2,102,445/=. Judgment was entered with interest and costs to the Plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff proved on a balance of probabilities that the Defendant's tractor knocked the deceased
  2. 2.Whether the Defendant was vicariously liable for the negligence of his driver
  3. 3.Whether any negligence should be apportioned to the deceased
  4. 4.Quantum: loss of dependency under the Fatal Accidents Act
  5. 5.Quantum: loss of expectation of life and pain and suffering under the Law Reform Act
  6. 6.Quantum: special damages

Key legal issues

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01

Identification of the vehicle involved in the accident

Holding

The Plaintiff proved the subject tractor knocked the deceased; the tractor was the only one stopped by members of the public about 50 metres from the scene.

Reasoning

DW1 admitted driving the tractor along the road on the material evening, heard noise from the public, stopped and found a person lying on the road some 50 metres behind the tractor. Eyewitnesses PW3 and PW4 confirmed the tractor ran over the deceased from behind. The court found the identity of the vehicle established on a balance of probabilities.

p. 4
02

Vicarious liability

Holding

The tractor was owned by the Defendant and driven by his authorised driver or servant, so the Defendant was vicariously liable.

Reasoning

It was common ground that the subject tractor was owned by the Defendant and driven at the time of the accident by his agent or servant with authority or consent. Consequently, any negligence of the driver is visited upon the Defendant, and the court found the Defendant 100% liable.

p. 4
03

Whether negligence should be apportioned to the deceased for walking on the left side of the road

Holding

No negligence was apportioned to the deceased; the Defendant was found 100% liable.

Reasoning

Although pedestrians are generally required to walk facing oncoming traffic, the deceased was walking off the road, and the driver neither hooted, braked nor swerved. Driving a lethal machine, the driver owed the pedestrian a higher duty of care. The court, guided by Monda v Suji and the Masembe principle, declined to apportion any negligence to the deceased.

p. 6
04

Loss of dependency - multiplicand, multiplier and dependency ratio

Holding

Minimum wage of Kshs. 8,109.90/= adopted as multiplicand, multiplier of 25 years, dependency ratio of 2/3, yielding Kshs. 1,621,980/=.

Reasoning

The deceased was a farmer in informal employment with unproven income, so the minimum wage for a general labourer under the Regulation of Wages (General Amendment) Order 2022 was adopted. Life expectancy of 63 years against age 28 supported a 25-year multiplier. The deceased supported his parents and siblings, justifying a 2/3 dependency ratio per Gachoki Gathuri.

p. 15
05

Pain and suffering and loss of expectation of life

Holding

Kshs. 50,000/= for pain and suffering (death was instantaneous) and Kshs. 200,000/= for loss of expectation of life.

Reasoning

The post mortem report showed the deceased died on the spot; following Kimani v Nyaga, nominal damages of Kshs. 50,000/= were appropriate for pain and suffering. For loss of expectation of life the court followed Catholic Diocese of Machakos, which awarded Kshs. 200,000/= for a 30-year-old, the deceased being in the same age bracket.

p. 16

Legal principles established

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  • A police abstract need not list all accident eye witnesses; testimony of witnesses not named in a police abstract cannot be disregarded where the accident was still under investigations.
  • A driver of a motor vehicle owes other road users, including pedestrians, a high duty of care and must take reasonable steps to avoid collisions even where the pedestrian may be on the wrong side of the road.
  • Where a deceased's monthly income cannot be ascertained, the statutory minimum wage should be adopted as the multiplicand.
  • There is no settled rule on the dependency ratio applicable to unmarried deceased persons; the court may properly exercise discretion, including adopting 2/3 where parents are dependants.

Court orders

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  1. 1.Liability apportioned 100% in favour of the Plaintiff against the Defendant
  2. 2.Loss of dependency of Kshs. 1,621,980/= awarded under the Fatal Accidents Act
  3. 3.Kshs. 50,000/= awarded for pain and suffering
  4. 4.Kshs. 200,000/= awarded for loss of expectation of life
  5. 5.Special damages of Kshs. 230,765/= awarded (net award Kshs. 2,102,445/=)
  6. 6.General damages to accrue interest at court rate from date of judgment until payment in full
  7. 7.Special damages to accrue interest at court rate from date of filing suit until payment in full
  8. 8.Plaintiff awarded costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TO
T.O. OmonoSenior Resident Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a fatal accident negligence claim

Relief refused

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Damages for the deceased as a bodaboda rider / pleaded monthly income of Kshs. 30,000/= as multiplicand

No documentary evidence proved that the deceased was a bodaboda rider or earned Kshs. 30,000/= monthly; the court found he was a farmer of unknown income and adopted the statutory minimum wage

p. 8

Costs

The Plaintiff will have the costs of this suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The fact that the subject tractor was the only tractor that was stopped by members of the public just 50 metres from the scene of the accident leaves no doubt on the identity of the tractor that knocked the deceased.
p. 4Identification of the offending vehicle
this court takes the position that a police abstract need not list all the accident's eye witnesses.
p. 5Evidentiary value of a police abstract
In any event, the mere fact that the deceased was walking on the wrong side of the road did not permit the subject tractor's driver to knock the deceased.
p. 6Duty of care owed by driver to pedestrian
Given that the subject tractor's driver was driving a lethal machine, he owe the deceased; a pedestrian, a higher duty of care.
p. 6Higher duty of care for lethal machines
a minimum wage ought to be adopted as a multiplicand where monthly income could not be ascertained.
p. 10Multiplicand where income unproved
Liability – 100% in favour of the Plaintiff
p. 17Final orders - liability
Net Award - Kshs. 2,102,445/=
p. 18Final orders - quantum
The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full.
p. 18Final orders - interest on special damages
The Plaintiff will have the costs of this suit.
p. 18Final orders - costs

Issues in the judgment

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minor

The judgment contains an apparent unfinished editing passage on the dependency ratio: 'Plaintiff on the dependency ratio, the Defendant on the dependency ratio…' appears as an incomplete sentence before the citation of authority.

minor

The Defendant's written submissions were filed incomplete on the CTS platform, which the court itself noted on the record.

minor

Grammatical/typographical errors in the judgment, e.g. incomplete sentence 'may tempt one some degree of negligence on the deceased.'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dismas Wanyonyi (Suing as the Administrator of the Estate of the Deceased) v Idd Salim Nabuko Manda", Case Analysis (2025). Bungoma CMC CC. No. E525 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/417/eng@2025-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.