AGM (Suing on Behalf of a Minor AMG - Deceased) v Buscar East Africa Limited (Civil Case 273 of 2019) [2026] KEMC 89 (KLR)
The bottom line
#A Kenyan court awarded Ksh. 2 million to the family of a child killed by a negligently driven bus that offered no defence.
What this practically means
#Executive summary
#Key legal issues
#Liability for the fatal road traffic accident
The driver of KCF 25XX was 100% negligent; the defendant was 100% vicariously liable.
PW2, a passenger eyewitness, testified the bus was speeding and overtook dangerously into an oncoming truck. The defendant called no evidence. On the police abstract and copy of records, the defendant was the registered owner. Res ipsa loquitur applied: a prudent driver could not overtake into oncoming traffic. No third-party proceedings were taken against the other vehicle's driver and no evidence implicated the deceased, a child passenger.
Whether siblings qualify as dependants under the Fatal Accidents Act
Siblings are not proper dependants; only the parents qualified.
The plaintiff listed the parents and a sibling as dependants. Relying on M'bagine v Nyaga, the court held section 4 of the FAA limits beneficiaries to a wife, husband, parent and child, and the claimant must prove the qualifying relationship and dependency. Accordingly the only proper expected dependants were the parents.
Approach to loss of dependency where the deceased was a minor with no earnings
A global award of Ksh. 1,600,000/= was adopted instead of the multiplier approach.
The deceased was aged 4 and earned no income. The court noted conflicting High Court approaches but found the Court of Appeal has settled on the global award approach for minors without proven earnings (M'bagine, Cherangany Hills, Waweru). Considering the deceased's age, the age of authorities and inflation, it awarded Ksh. 1,600,000/= as proposed.
Proof of special damages
No award for special damages (Ksh. 8,925/=) for failure of strict proof by receipts.
Special damages must be specifically pleaded and strictly proved (Nizar Virani; Ouma v Nairobi City Council; Hahn v Singh). The claims for the death certificate, burial permit, police abstract, motor vehicle search, letters of administration fees and demand letter were not proven by receipts, so no award was made.
Award of interest
Interest on general damages at court rates from judgment; interest on funeral expenses from filing suit.
Section 26 of the Civil Procedure Act gives the court discretion on interest. Following Omunyokol Akol Johnson and Jane Ovuyanzi Raphael, interest on special damages runs from the date of loss while interest on general damages runs from judgment, since general damages are only ascertained at judgment.
Legal principles established
#- The burden of proving negligence rests on the plaintiff, who must adduce evidence of the particulars pleaded, on a balance of probabilities.
- Where the defendant offers no explanation, the fact of an accident occurring in circumstances in which it should not have occurred discharges the plaintiff's burden of showing negligence (res ipsa loquitur).
- Where a motor vehicle is driven by a person other than the owner, a rebuttable presumption arises that the driver was the owner's agent, rendering the owner vicariously liable.
- Siblings are not proper dependants under section 4 of the Fatal Accidents Act.
- Where the deceased was a minor with no proven earnings, a global or conventional award for loss of dependency is appropriate rather than the multiplier approach.
- Special damages must be both specifically pleaded and strictly proved.
- Interest on special damages runs from the date of loss; interest on general damages runs from the date of judgment.
Court orders
#- 1.Judgment for the plaintiff against the defendant on liability, the defendant being 100% vicariously liable
- 2.Damages for pain and suffering of Ksh. 100,000/=
- 3.Damages for loss of expectation of life of Ksh. 150,000/=
- 4.Damages for loss of dependency of Ksh. 1,600,000/=
- 5.Funeral and related expenses of Ksh. 150,000/= (total award Ksh. 2,000,000/=)
- 6.Interest on general damages at court rates from the date of judgment/decree until payment in full
- 7.Interest on funeral expenses from the date of filing suit to the date of judgment/decree
- 8.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a fatal accident negligence claim; no specific constitutional/statutory jurisdictional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AGM (Suing on Behalf of a Minor AMG - Deceased) v Buscar East Africa Limited (Civil Case 273 of 2019) [2026] KEMC 89 (KLR)", Case Analysis (2026). Civil Case No 273 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/89/eng@2026-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.