Mabia (Suing As The Legal Representatives Of The Estate Of Stephen Orupia (Deceased v Buluma (Civil Case E184 of 2024) [2025] KEMC 443 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accident was caused by the negligence of the Defendant's driver, and if the deceased contributed to it, to what extent
- 2.Whether the Defendant is vicariously liable for her driver's negligence
- 3.What damages are payable under the Fatal Accidents Act and the Law Reform Act (loss of dependency, loss of expectation of life, pain and suffering)
- 4.Whether special damages were pleaded and strictly proved
Key legal issues
#Liability for the accident
Both the lorry driver and the deceased were negligent; liability apportioned 60%:40% in favour of the Plaintiff
PW2, PW3 and DW2 established that the deceased hung behind the moving lorry and jumped off it. A 12-year-old is not of tender years and can appreciate the danger of hanging on and jumping from a moving lorry. However, the driver could have seen the deceased through the side mirrors and did not testify to displace that inference, so he failed to exercise due care. The driver, controlling a lethal machine, bears the higher degree of blame.
Vicarious liability
The Defendant, as owner, is vicariously liable for her driver's negligence
It was uncontested that the lorry was driven by the Defendant's agent/driver for her benefit at the time of the accident; the defence of non-ownership of KCT 179A failed as the parties agreed the accident involved KCT 197A, a clerical error in the plaint not fatal to the case.
Loss of dependency for a deceased minor
Global award of Kshs. 1,000,000/= in favour of the parents and grandfather as dependants
The multiplier approach is speculative for a child whose future earning capacity cannot be known, following Chhabhadiya Enterprise Ltd. Parents and a grandfather are dependants within the meaning of section 2 and 4 of the Fatal Accidents Act, and in the Kenyan context children are customarily expected to support their parents. A global award of Kshs. 1,000,000/= was made having regard to comparable awards and inflation.
Loss of expectation of life and pain and suffering
Kshs. 100,000/= under each head
The deceased was 12 and in good health, warranting Kshs. 100,000/= for loss of expectation of life. He died the day after the accident on 19th July 2024, so only nominal/conventional damages apply for pain and suffering; the court awarded Kshs. 100,000/= considering he must have experienced pain before death.
Special damages
Only Kshs. 5,190/= proved and awarded; unpleaded heads refused
The plaintiff did not plead the specifics of special damages, and cannot via submissions claim funeral expenses or costs of letters of administration not pleaded. Receipts for ad-litem (Kshs. 1,000/=) and Lifecare Hospitals (Kshs. 4,190/=), uncontested, were strictly proved.
Legal principles established
#- The plaintiff in a negligence action bears the legal burden of proving the accident was caused by the defendant's negligence, upon which the evidential burden shifts to the defendant
- A child can only be found guilty of contributory negligence if of an age expected to take precautions for their own safety and if blameworthy
- A driver owes a duty of care even to an unauthorised person hanging behind the lorry, to stop and ensure they alight safely; failure to keep lookout through side mirrors is negligence
- Where the vehicle operator controlled a lethal machine, the operator bears a higher degree of blameworthiness than a less culpable contributor
- The multiplier method for loss of dependency for a deceased minor is speculative; the global lumpsum approach is preferable
- Special damages must be specifically pleaded and strictly proved
Court orders
#- 1.Liability apportioned at 60%:40% in favour of the Plaintiff
- 2.Loss of dependency awarded at Kshs. 1,000,000/= under the Fatal Accidents Act
- 3.Pain and suffering awarded at Kshs. 100,000/= under the Law Reform Act
- 4.Loss of expectation of life awarded at Kshs. 100,000/= under the Law Reform Act
- 5.Special damages awarded at Kshs. 5,190/= (receipts for ad-litem Kshs. 1,000/= and Lifecare Hospitals Kshs. 4,190/=)
- 6.Grand award of Kshs. 1,205,190/= less 50%, net award of Kshs. 723,114/=
- 7.General damages to accrue interest at court rate from date of judgment till payment in full
- 8.Special damages to accrue interest at court rate from date of filing suit till payment in full
- 9.Plaintiff awarded costs of the suit
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 accident claim (plaintiff's amended plaint of 20th December 2024)
Relief refused
#Loss of dependency on the multiplier approach as urged (Kshs. 1,800,000/=)
Multiplier approach for a child is speculative; the court adopted the global/lumpsum approach instead
Funeral expenses of Kshs. 30,000/= and costs of filing letters of administration of Kshs. 20,000/=
Not specifically pleaded; submissions are not evidence and cannot add unpleaded heads of special damages
Costs
The Plaintiff will have the costs of this suit.
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.
Judgment is entered against the Defendant in the following terms: a)Liability – 60%:40% in favour of the Plaintiff
The General Damages will accrue interest at court rate from the date of this judgment till payment in full.
The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full.
The Plaintiff will have the costs of this suit.
there was a clerical error in the Plaintiff’s amended Plaint herein on the lorry’s registration number thus the said clerical error is not fatal to the Plaintiff’s case
A 12 year old child is capable of understanding the dangers of hanging on a moving lorry as well as the dangers of jumping from a moving lorry.
It mattered not that the deceased was an unauthorised passenger on the lorry.
Issues in the judgment
#Arithmetic inconsistency in the disposition: a grand award of Kshs. 1,205,190/= 'Less 50%' would give Kshs. 602,595/=, but the judgment states a net award of Kshs. 723,114/= (which equals 60% of the grand award). Also the list of heads is out of sequence, with 'd) Damages under the Law Reform Act' appearing before 'c) Special Damages'.
The judgment refers to 'the Claimant' and a 'Statement of Claim' although the parties are styled Plaintiff/Defendant and the pleading is an amended Plaint.
The date of the accident is inconsistently pleaded: the plaint pleads 18th July 2024, but in quantum the court states the accident occurred on 14th January 2023 (apparently reproducing dates from a cited authority).
The plaint heading/prayer is misdescribed as 'General damages under the Fatal (sic) and Law Reform Act'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mabia (Suing As The Legal Representatives Of The Estate Of Stephen Orupia (Deceased v Buluma (Civil Case E184 of 2024) [2025] KEMC 443 (KLR)", Case Analysis (2025). Bungoma CMC CC. No. E525 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/443/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.