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

caused by by the Plaintiff’s negligence as particularised in paragraph 6 of the Statement of Defence herein. The Defendant urged this court to dismiss and/or strike out this suit with costs. Consequently, this matter proceeded to a full hearing where the summary of the evidence adduced by the parties herein is as hereunder. Plaintiff’s Case PW1 Dismas Wanyonyi is the deceased’s father. He adopted his witness statement dated 23rd April 2025 as his evidence in chief and produced some of the documents in the Plaintiff’s list of documents as exhibits. He testified that the deceased died aged 28 years old while working as a bodaboda rider and a farmer. He added that the deceased used to support his parents and siblings. PW2 No. 768635 PC Isaac Kimani Njuguna of Chwele Police Station Bungoma Traffic Base produced this accident’s Police Abstract. He stated that he could not blame anyone for the occurrence of the accident since the accident was pending under investigations. PW3 Benard Wanjala Wekesa recalled that on 14th January 2023 at around 2000hrs, he witnessed the accident between the deceased and a tractor registration number KTCC 546 F/ZG 9752. He testified that the accident occurred while he was walking with the deceased from Nasianda general direction headed towards the Bumula general direction. He added that the deceased was knocked from behind by the Defendant’s tractor while they were walking together in a trench off the left side of the road. He also stated that the tractor’s driver did not hoot, swerve, or break to prevent the occurrence of the accident. Bungoma CMC CC. No. E525 of 2024 2 of 19 Judgment

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PW4 Wilson Makheti Khaemba recalled that he witnessed the accident involving the deceased and a tractor registration number KTCC 546 F/ZG 9752 while buying goods in a shop near the scene along the Nasianda – Bumula road. He reiterated that the tractor ran over the deceased from behind and that the said tractor’s driver did not hoot, break, or swerve to prevent the occurrence of the accident. Defendant’s Case DW1 Idd Salim Nabuko Manda adopted his witness statement dated 11th April 2025 as his evidence in chief. He denied knocking down the deceased. He produced a copy of his identity card and driving licence as exhibits. On cross-examination he admitted that he was driving tractor registration number KTCC 546 F/ZG 9752 along Bumula – Sikinga road on the date of the accident when members he heard noise from the members of the public and stopped. He alighted and went some metres behind the tractor he was driving when he found a person lying on the road. ANALYSIS & DETERMINATION This court has duly considered the respective parties’ pleadings, the evidence on record, the written submissions filed, and all the authorities relied upon by each party in support of their cases. Before delving into an analysis of this case, it is imperative for the record to reflect that the Defendant filed incomplete written submissions through the CTS platform. The said submissions were filed without paragraphs 23 - 34 and paragraphs 46 - 57. There is no contest that the accident herein occurred. It is also common ground that the tractor registration number KTCC 546 F/ZG 9752 (subject tractor) was owned by the Defendant at the time of the accident herein. Bungoma CMC CC. No. E525 of 2024 3 of 19 Judgment

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The evidence led by PW3 and PW4 when read together with DW1’s testimony shows that the subject tractor was stopped by members of the public immediately after the accident. DW1 admitted that when he stopped his tractor and alighted to find out whatever had happened, he walked around 50 metres from the subject tractor only to find the deceased lying dead on the road. 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. In view of the above, this court is of the considered view that the Plaintiff proved on a balance of probabilities that the subject tractor knocked the deceased on the date of the accident. It is also common ground that at the time of the accident, the subject tractor was being driven by the Defendant’s agent or servant with the Defendant’s authority or consent. That being the case, it follows that in the event this court finds the subject tractor’s driver negligent in causing the accident herein, the Defendant will be vicariously liable for his authorized driver’s negligence. The foregoing inclines this court to hold and find that the issues for determination in this case are liability and quantum. Liability PW3 and PW4 testified in support of the Plaintiff’s case that the accident herein was solely caused by negligence on the part of the Defendant and the driver of tractor registration number KTCC 546 F hauling trailer registration number ZG 9752. PW3 testified that on the date of the accident, he was walking side by side with the deceased on the left side of the road in a trench on the shoulder of the road coming from Nasianda general direction headed towards the Bungoma CMC CC. No. E525 of 2024 4 of 19 Judgment

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Bumula general direction when the Defendant’s tractor that was reportedly being driven at a high speed knocked the deceased from behind leading to the deceased’s death. PW4’s testimony largely corroborated PW3’s testimony on the circumstances under which the accident herein occurred. The Defendant on the other hand led evidence from DW1 in a bid to prove the particulars of negligence they attributed to the deceased in their Statement of Defence. Interestingly, DW1’s testimony was largely a denial of involvement in the accident herein. The Defendant also sought to impeach PW3 and PW4’s testimony on the circumstances under which the accident herein occurred on the basis that their names were not captured in the police abstract herein. This court takes the position that a police abstract need not list all the accident’s eye witnesses. In any event, the police abstract herein shows that as at the time of its issuance, this accident was pending under investigations. This shows that there was a possibility of more witnesses other than those listed in that police abstract to come forward to give light on the circumstances under which this accident occurred. Therefore, this court finds and holds that PW3 and PW4’s testimony on the circumstances under which the accident herein occurred can not be disregarded simply because their names do not appear in the police abstract herein. This court has already stated in this judgment that the Defendant did not adduce any evidence to prove the particulars of negligence that they attributed to the deceased. This court also notes that the Plaintiff’s case on the circumstances under which the accident herein occurred remained unshaken even after cross-examination by the Defendant’s counsel. Bungoma CMC CC. No. E525 of 2024 5 of 19 Judgment

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In the circumstances, this court takes the position that the accident herein occurred when the deceased was run over from behind by the subject tractor while walking off road on the left side of the road. This court is well aware of the traffic rule that requires a pedestrian to walk on the right hand side of the road so as to face the oncoming traffic. The mere fact that the deceased was knocked while walking on the left side of the road facing away from traffic may tempt one some degree of negligence on the deceased. However, the circumstances of this case show that the deceased was walking off the road at the time of the accident. Further, the Defendant’s driver did not hoot, break or swerve to prevent the occurrence of this accident. To add on that, the fact that the deceased was knocked off the road shows that had the deceased maintained driving the subject tractor along the road, he would not have knocked the deceased. 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. Given that the subject tractor’s driver was driving a lethal machine, he owe the deceased; a pedestrian, a higher duty of care. This court draws inspiration from Monda v Suji & another [Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased] [2023] KEHC 2778 [KLR], where Aburili J posited as follows: “34.In Masembe v Sugar Corporation and another [2002] 2 EA 434, it was held that: “When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.”35.Further, in the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, this court expressed itself thus;“A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.” Guided by the authority above and the reasons above, this court declines to apportion any degree of negligence on the deceased. It is against this backdrop that this court finds and holds the Defendant 100% liable for the occurrence of the accident herein. Bungoma CMC CC. No. E525 of 2024 6 of 19 Judgment

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Quantum Under the Fatal Accidents Act Loss of Dependency The Defendant’s incomplete submissions did not address the issue of how this court ought to make an award under this head. The Plaintiff pleaded for damages under the Fatal Accidents Act. The damages awarded under the Fatal Accidents Act are in the nature of loss of dependency. The claim for damages for loss of dependency is grounded on section 4 of the Fatal Accidents Act. Section 4 of the Fatal Accidents Act provides as follows:Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct. There is evidence on record that the deceased was survived by his parents. Parents are dependents within the meaning of the Fatal Accidents Act. This demonstrates that the claim for damages for loss of dependency is properly before this court. Bungoma CMC CC. No. E525 of 2024 7 of 19 Judgment

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The claim for loss of dependency constitutes the multiplicand, the dependency ratio, and the multiplier. This is applicable where the court adopts the multiplier approach of making awards. In other instances, where the circumstances of a case permit, the court may adopt the global award approach in making an award under this head. Turning to the facts of this case, the Plaintiff pleaded in their Plaint that the deceased died aged 28 years while working as a bodaboda rider and a farmer, reportedly earning a monthly income of Kshs. 30,000/=. Nothing was placed before this court to prove on a balance of probabilities that the deceased was a bodaboda rider at the time of his death. However, the deceased’s certificate of death shows that the deceased was a farmer at the time of his death. The Defendant did not impeach the contents of the deceased’s certificate of death. There is a rebuttable presumption in this jurisdiction of the truth of entries made by a public official in a public document (see section 38 of the Evidence Act). Therefore, this court finds and holds that the deceased was a farmer at the time of his death. It is noteworthy that the Plaintiff failed to lead any documentary evidence to prove on a balance of probabilities that the deceased used to earn a monthly income of Kshs. 30,000/= through farming. Further, there is nothing on record to guide this court on the kind of farming the deceased was engaged in, the kind of products the deceased used to farm, and the size of the deceased’s farm for this court to estimate the deceased’s monthly income. In the circumstances, this court finds and holds that the deceased died a farmer earning an unknown monthly income. Bungoma CMC CC. No. E525 of 2024 8 of 19 Judgment

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Having determined that the deceased died aged 28 years old while working as a farmer with an unknown monthly income, should this court adopt the multiplier approach or the global award approach in making an award under this head. This question was answered in Seremo Korir & Another vs SS (Suing as The Legal Representative of the Estate of MS, Deceased) [2019] eKLR, where the court said: “In the lower court’s judgment, the learned trial magistrate applied the minimum wage scale of Kshs. 12,000/- as the multiplicand. The learned trial magistrate further held that the deceased was a pupil based on a letter from the deceased’s school and that the deceased was 12 years old, a fact that was not contested. It was the appellants’ submission that where the issue of the amount earned by a deceased and their profession is unsettled, courts adopt a lump sum/global sum instead of delving into estimating incomes and professions. On the other hand, the respondent submitted that the learned trial magistrate had the discretion to either adopt the multiplier method or the global assessment method. In this case, I am in agreement with the submissions of the respondent that courts have the discretion to apply either the ‘global sum’, ‘separate heads’, or ‘mixed’ approaches in awarding damages and that it is not cast in stone that just because the deceased was a minor, then courts can only apply the global/lump sum approach”(Emphasis added) In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, stated: Bungoma CMC CC. No. E525 of 2024 9 of 19 Judgment

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“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. the global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.” The authorities above show that the circumstances of this case permit this court to adopt either the multiplier approach or the global award approach in making an award under this head. This court is of the considered view that, given that the deceased’s age and occupation at the time of his death are ascertainable, the multiplier approach is appropriate in determined the award for loss of dependency. (i) Multiplicand This court has already made a finding that the deceased’s monthly income could not be ascertained from the evidence led by the Plaintiffs. The Court of Appeal in Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) vs Hellena Wanjiru Rukanga [2020] eKLR held that a minimum wage ought to be adopted as a multiplicand where monthly income could not be ascertained. In Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR, the court stated:On the question of the multiplicand adopted by the trial court using a minimum wage guideline, it is apparent that the deceased was engaged Bungoma CMC CC. No. E525 of 2024 10 of 19 Judgment

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in informal employment where it is difficult to tell the actual regular income. In such circumstances, the legal position is to adopt the minimum wage guideline as a guiding principle in assessing loss of income. The deceased was a farmer at the time of his death. He was in informal employment. Where the deceased was engaged in informal employment, he is regarded as a general labourer (see the Kimani case (supra)). The deceased died on 14th January 2023. He was a resident of Sikinga at the time of his death. The operative and reigning order at the time of the deceased’s death was the Regulation of Wages (General Amendment) Order 2022. In that Order, the monthly minimum wage for a general labourer in Sikinga (other areas) at the time of the deceased’s age was pegged at Kshs. 8,109.90/=. Given the above, this court adopts a multiplicand of Kshs. 8,109.90/=. (ii) Multiplier It is common ground that the deceased died aged 28 years old. According to the World Bank and the Kenya National Bureau of Statistics reports, the life expectancy in Kenya at the time of the deceased’s death was 63 years. The above shows that the deceased would have lived and worked as a farmer until the age of 63 years or more. That is 25 years or more. In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] KEHC 1362 (KLR), the court adopted a multiplier of 25 years for a 28-year-old deceased. The foregoing inclines this court to adopt a multiplier of 25 years. (iii) Dependency ratio Bungoma CMC CC. No. E525 of 2024 11 of 19 Judgment

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The evidence led by the Plaintiff shows that the deceased was survived by his parents. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent. PW1 testified that the deceased used to use his monthly income to support his parents and his siblings. This shows that the deceased used to support his parents to a larger extent that included helping his parents to take care of his siblings. This court takes judicial notice of the fact that children are expected to provide for their parents, and in most instances they do. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country (see Leonard O. Ekisa & another v Major K. Birgen [2005] KEHC 2214 (KLR)). In Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KECA 42 (KLR), Kneller JA stated thus regarding this issue: In general, in Kenya children are expected to provide and do provide for their parents when the children are in a position to do so and to the extent of their abilities. The children are expected to do that by the established customs of the various African and Asian Communities in Kenya. This particular custom is broadly accepted, respected and practised throughout Kenya both by Africans and Asians. I would say the application of the custom at family level is the basis of the national ethos Bungoma CMC CC. No. E525 of 2024 12 of 19 Judgment

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of being mindful of others’ welfare. In the Asian community, the customs is supported by the Hindu religion whose influence on the life of the Hindu community is well nigh total. That is common knowledge. Given the foregoing, this court is of the considered view that the deceased used to use a substantial portion of his farming income to support his family. This would have changed had the deceased lived long and started his own family. Plaintiff on the dependency ratio, the Defendant on the dependency ratio… Muteti J in Wachira & another v Shikamili & another (Suing as the Personal Representatives and on behalf of the Estate of Wemsy Chakamali Mulwale - Deceased) (Civil Appeal E054 of 2023) [2025] KEHC 6040 (KLR) rendered himself thus on the dependency ratio applicable in cases where the deceased was unmarried but left behind parents. The issue of the ratio to be applied by courts in cases of unmarried persons is still debatable. In Rodgers Kinoti Vs. Linus Bundi Murithi & Another (2022)eKLR the court discussed the applicable dependency ratios in different instances as follows :“It is clear that opinion is divided among High Court judges on whether dependency ratio where the deceased is unmarried ought to be ½ or 1/3. I have reviewed other cases where dependency ratio for unmarried persons were considered. In Joseph Ndirangu Thuo & Another v Kamau Ngugi (Suing as legal representative and administrator of the estate of Peter Waweru (2019)eKLR Mwongo J. used a dependency ratio of ½ for an unmarried lady and cited the cases of Mary Kerubo Mabuka v Newton Mucheke Mburu & 3 others (2006) eKLR where the court used a dependency ratio of ½ on a 26 year old unmarried lady; Alice O. Alukwe v Akamba Public Road Services Ltd (2013) eKLR where the court used a Bungoma CMC CC. No. E525 of 2024 13 of 19 Judgment

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dependency ratio of 1/2 on an unmarried lady aged 24 years and Lucy Wambui Kihoro (Suing as Personal Representative of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] eKLR where the Court similarly used a dependency ratio of ½ on an unmarried son aged 30 years.” The court therefore finds that there is no settled principle on the issue of applicable ratio for unmarried persons. As such the learned Honorable magistrate was within the law in relying on the 2/3 ratio. In any event other courts have applied the same ratio in the case of unmarried persons. See Chania Shuttle Vs. Mary Mumbi [2017] eKLR. It is important to mention that the issue of dependency is a very fluid one. The society is awash with married individuals who do not support their families and to the contrary there exists another whole lot of unmarried fellows who are the bread winners in their families and carry some immeasurable dependency burden.That is not uncommon in our society. The duty on litigants in my view is to ensure that in their evidence, they remain as precise a one can be on the extent of dependency and level of support offered to them by the deceased in cases of this nature. In the end since this court has found that there is no hard and fast rule about the ratio applicable to a claim in relation to an unmarried person, the court finds that the exercise of discretion by the magistrate in adopting 2/3 ratio was proper and within the law. In Gachoki Gathuri (suing as legal Rep. of the estate of James Kinyua Gachoki (Deceased) v John Ndiga Njagi Timothy & 2 others [2015] KEHC 4127 (KLR), the court adopted a dependency ratio of 2/3 where the deceased left behind parents as his dependants. Bungoma CMC CC. No. E525 of 2024 14 of 19 Judgment

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This court has already made a finding in this judgment that the deceased used to support his parents, and also assisted his parents in taking care of his siblings. That means that the deceased used to use a large portion of his income to support his parents. Guided by the authorities above, and considering the circumstances of this case, this court adopts a dependency ratio of 2/3; hence, the award under this head will work out as follows: Kshs. 8,109.90/=X 25X 12 X 2/3=Kshs. 1,621,980/= Under the Law Reform Act (a)Loss of Expectation of Life The Plaintiff urged this court to make an award of Kshs. 200,000/= under this head while the Defendant relied on a 2019 decision in urging this court to make an award of Kshs. 100,000/= under this head. It is common ground that the deceased died aged 28 years old. The deceased’s certificate of death shows that he was a farmer at the time of his death. That shows that the deceased was not working in any risky environment. Further, there is no evidence before this court of the deceased’s ill health before his death. The foregoing shows that the deceased’s life was solely cut short by the accident. The deceased had many more productive years ahead of him but for the accident. In making an award under this head, this court places reliance on Catholic Diocese of Machakos & another v Janet Munaa Mutua & another [2021] KEHC 9151 (KLR), where the court made an award of Kshs. 200,000/= for a 30-year-old who died through a road traffic accident. A 28-year-old and a 30-year-old are people in the same age bracket. Bungoma CMC CC. No. E525 of 2024 15 of 19 Judgment

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It is against this background that this court makes an award of Kshs. 200,000/= for loss of expectation of life. (b) Pain and suffering The Plaintiff submitted that an award of Kshs. 100,000/= would be appropriate in this case while the Defendant took the view that given that the deceased died on the spot Kshs. 10,000/= would be reasonable compensation under this head. The award under this head depends on the duration between the time the accident occurred and the time the deceased died. This legal position was aptly captured in West Kenya Sugar Co. Limited vs Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) (2019) eKLR, where the court observed that:“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.” The accident herein occurred on 14th January 2023. The deceased’s post mortem report dated 15th January 2023 shows that the deceased died on the spot. It is given that even in instances where a person dies on the spot as a result of an accident, the deceased experiences pain before ultimately meeting his maker. Bungoma CMC CC. No. E525 of 2024 16 of 19 Judgment

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In Kimani (Suing as the Legal Administrator of the Estate of the Late Kennedy Kimani Gachoki) v Nyaga & another (Civil Appeal E049 of 2022) [2023] KEHC 24220 (KLR) the High Court upheld an award of Kshs. 50,000/= under this head for a person who died on the spot. Guided by the authority above, this court makes an award of Kshs. 50,000/= under this head. Special Damages The Plaintiff pleaded for Special Damages of Kshs. 230,765= in paragraph 7 of the Plaint herein. The receipts for specials, whose production as evidence was not contested by the Defendant, proved as much. Consequently, this court makes an award of Kshs. 230,765/= under this head. DISPOSITION The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:a) Liability – 100% in favour of the Plaintiff b) General damages under the Fatal Accident Act c) Loss of dependency - Kshs. 1,621,980/= d) Damages under the Law Reform Act e) Pain and Suffering -Kshs. 50,000/= f) Loss of expectation of life - Kshs. 200,000/= g) Special Damages - Kshs. 230,765/= Bungoma CMC CC. No. E525 of 2024 17 of 19 Judgment

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Net Award - Kshs. 2,102,445/= 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. Judgment accordingly. Read, signed, and delivered in open court at Bungoma this 09 th day of October 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Anwar for the Plaintiff Ms. Lang’at for the Defendant C/A: Mr. Rioba Bungoma CMC CC. No. E525 of 2024 18 of 19 Judgment

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