Raeli & another (Suing as the Administrators and/or Personal Representatives of the Estate of Muoki Kioko-Deceased) v Ali & another (Civil Case E097 of 2021) [2026] KEMC 81 (KLR)
The bottom line
#Without evidence showing which driver caused a fatal crash, a Kenyan court split blame equally, cutting the family's compensation in half.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an accident occurred on 10/9/2020 at Kiboko area along Mombasa-Nairobi highway involving motor vehicles KCW 176Z and KAU 270C/ZE 7049
- 2.Whether the deceased was the driver of motor vehicle KCW 176Z
- 3.Whether motor vehicle KAU 270C/ZE 7049 belonged to the 2nd defendant at the material time
- 4.Whether the 1st defendant was the driver of motor vehicle KAU 270C/ZE 7049 at the time of the alleged accident
- 5.Whether the 1st defendant was negligent and therefore liable for the accident
- 6.Whether the 2nd defendant is vicariously liable for the accident
- 7.Whether the deceased died as a result of injuries sustained in the accident
- 8.Whether the estate of the deceased and his dependants are entitled to damages
- 9.The nature and quantum of damages
- 10.Who should bear the costs of the suit
Key legal issues
#Whether the plaintiffs proved negligence and liability against the 1st defendant
The plaintiffs failed to discharge the burden of proving which driver was to blame; the police abstract marked the matter pending under investigation and did not apportion blame, so liability was apportioned equally between the two drivers, the 1st defendant being held 50% liable.
The court found the accident occurred and identified the vehicles, driver and owner from the police abstract and copy of records. However, no eyewitness testified; PW2 neither visited the scene nor investigated. The abstract indicated pending investigations with no blame apportioned. Analysis of the sketch map and skid marks left the court unable to tell who was to blame, so the equal apportionment authorities were applied.
Whether the 2nd defendant was vicariously liable
The 2nd defendant, as registered owner, was held 50% vicariously liable for the 1st defendant's negligence.
Under the respondeat superior doctrine and the presumption in Kansa v Solanki, where a vehicle driven by someone other than the owner causes negligent damage, a rebuttable presumption of agency arises. The defendants called no evidence to rebut the inference that the 1st defendant was driving in the course of his employment with the 2nd defendant.
The proper multiplicand for loss of dependency in the absence of proof of earnings
The multiplier approach was adopted using the statutory minimum wage for a driver of a medium-sized motor vehicle (Ksh. 18,881.21) rather than the unproven Ksh. 35,000/= claimed.
The court reviewed conflicting High Court approaches (global award versus multiplier) and was guided by the Court of Appeal in Silverstone Quarry, holding that where employment is established but earnings are unproved, the gazetted minimum wage may be adopted. Applying a 25-year multiplier and 2/3 dependency ratio produced Ksh. 3,776,242, reduced to Ksh. 3,000,000 for taxes and vicissitudes of life.
Proof of special damages and funeral expenses
Only Ksh. 1,100/= (motor vehicle search) was strictly proved; funeral expenses of Ksh. 51,000/= were awarded as prayed under the Law Reform Act and Fatal Accidents Act without strict proof.
Special damages must be specifically pleaded and strictly proved; no receipt existed for the grant ad litem. However, funeral expenses may be awarded under both statutes without the confines of strict proof, the court taking judicial notice that funeral expenses are usually incurred.
Legal principles established
#- The burden of proving negligence lies on the plaintiff; particulars of negligence in a plaint are insufficient without evidence
- Mere proof of occurrence of an accident does not impute negligence
- Where there is no concrete evidence to determine who is to blame between two drivers, both are held equally to blame
- Where there is no evidence refuting that a driver was driving in the course of employment, a rebuttable presumption of agency arises making the owner vicariously liable
- Where a deceased was in employment but earnings are not proved, the court may adopt the gazetted minimum wage as the multiplicand
- 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. 80,000/=
- 2.Damages for loss of expectation of life of Ksh. 200,000/=
- 3.Damages for loss of dependency of Ksh. 3,000,000/=
- 4.Funeral and related expenses of Ksh. 51,000/=
- 5.Special damages of Ksh. 1,100/=
- 6.50% contribution deducted, leaving a balance of Ksh. 1,666,050/= due to the plaintiffs
- 7.Interest on general damages at court rates from the date of judgment/decree until payment in full; interest on funeral expenses and special damages from the date of filing suit to the date of judgment/decree
- 8.Half the costs of the suit awarded 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 accident negligence claim (not expressly stated in the judgment)
Relief refused
#Special damages of Ksh. 30,000/= for obtaining a grant ad litem
No payment receipts for the letters of administration ad litem were produced
Full liability (100%) against the defendants as sought by the plaintiffs
No acceptable evidence established which driver was to blame; liability apportioned equally
Costs
Plaintiffs awarded HALF the costs of the 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.
It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintifi must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability.
Mere proof of occurrence of an accident does not impute negligence. There must be acceptable evidence to show that the party being blamed was negligent.
It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.
In summary, I find that the plaintifis have partially proven their case on a balance of probabilities against the defendants.
The plaintifis are also awarded interest on the damages as well as HALF the costs of the suit.
Issues in the judgment
#Numbering irregularity in the judgment: a passage attributed to paragraph 31 appears inserted out of sequence (after paragraph 23) and refers to a different matter (motor vehicle KAY 718S, deceased as passenger), inconsistent with the present case where the deceased was a driver
The judgment is dated 24th March 2026 but hears a 2020 accident and records PW2 testifying on 22/7/2025; the counsel/defendant submissions also assert only Ksh. 32,050/= of special damages proven while the court awarded Ksh. 1,100/= plus Ksh. 51,000/= funeral expenses under separate heads
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raeli & another (Suing as the Administrators and/or Personal Representatives of the Estate of Muoki Kioko-Deceased) v Ali & another (Civil Case E097 of 2021) [2026] KEMC 81 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/81/eng@2026-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.