1. The Plaintiffs sued in their capacity as administrators of the estate of Kone Nouhoum Cheik (deceased), alleging negligence at Ken Gen’s Olkaria Geothermal Spa, where the deceased was injured on 29th September 2018 and later died.
2. The Plaintiffs called three witnesses. Zawadi Khadija, the deceased’s mother, testified that she was not present at the spa on the day of the incident. Her evidence was based on what she was informed concerning how the accident occurred. She produced various documents including photographs, a police abstract, and employment contracts allegedly evidencing the deceased’s income. However, she admitted under cross-examination that the photographs were not taken by her and Joseph Mathenge who had sworn the certificate of electronic evidence was not called to testify. She also conceded that although she claimed the signage at the spa was worn out, she did not witness it herself on the material day.
3. The second witness, Jennifer Kimwati Munywoki, the deceased’s widow, similarly confirmed that she was not present during the incident. Her evidence focused mainly on dependency and the family’s financial loss. She stated that the deceased was the family’s breadwinner but did not produce documentation to demonstrate his income or the family's expenditure. Her knowledge of the spa's condition and the events of the day was also hearsay.
4. The third witness, Victor Mutarambiwa, was the only person who was present with the deceased at the spa on the date of the accident. He testified that the deceased was feeling hot after a hike and proceeded directly to the pool without consulting any attendant. Victor excused himself to use the washroom and did not see the deceased enter the pool. When he returned, he found the deceased injured and being assisted by Ken Gen staff. Victor also attempted to introduce photographs and a video into evidence but admitted that these were taken much later, during a visit by Hon. Esther Passaris and her media team on 05th December 2018, and that he was not the one who captured them. The maker of the certificate of electronic evidence, Joseph Mathenge, was again not called to testify.
5. The video and photographs relied on by the Plaintiffs were not produced by their makers (notably Joseph Mathenge and Hon. Esther Passaris), and thus were challenged as inadmissible for lack of proper certification under the Evidence Act.
6. The Defendant called six witnesses. Kennedy Rono, a senior staff member and part of the accident investigation team, testified that Ken Gen had conducted a thorough internal investigation. He produced the incident report dated 07th October 2018 and photographs showing extensive safety signage, including “No Diving” warnings and depth indicators. He asserted that the deceased had ignored these warnings and that adequate safety measures were in place.
7. Ken Ngecha Gatogo, a trained lifeguard on duty that day, testified that he saw the deceased run and dive into the pool. Together with fellow lifeguard Bernard Sila, he assisted in pulling the deceased out of the pool and called for emergency help. Both lifeguards confirmed the pool was well-marked and properly staffed.
8. Kennedy Ngugi, a clinical officer at the spa’s Mvuke Clinic, testified that he attended to the deceased immediately after the incident and arranged for his transfer to Mt. Longonot Hospital and later to Nairobi Hospital. He produced the clinic’s treatment notes as evidence.
9. Geoffrey Wambugu, a security guard, corroborated the lifeguards’ testimony, stating that he witnessed the deceased run and dive into the pool despite posted signage and verbal warnings.
10. Eric Ondieki, the ambulance driver, confirmed that he was called to the scene immediately, picked up the deceased, and transported him to Mvuke Clinic and subsequently to hospital. He described the emergency response as prompt and coordinated.
Issues for Determination
11. Based on the parties’ pleadings and the Plaintiffs’ submission dated 07th April 2025 and Defendant’s submissions dated 07th May 2025, the following key issues arise for determination:
1) Whether the Defendant, as occupier of the Olkaria Geothermal Spa, owed a duty of care to the deceased on 29th September 2018.
2) Who is to blame for the accident.
3) Whether the Plaintiffs have proved their claim for special damages and loss of dependency, and the appropriate quantum of damages.
4) Whether the Plaintiffs are entitled to the reliefs sought.
1) Whether the Defendant, as occupier of the Olkaria Geothermal Spa, owed a duty of care to the deceased on 29th September 2018.
12. As already stated hereinabove, the deceased, Kone Nouhoum Cheik, tragically died on 29th September 2018 after diving into a geothermal spa pool operated by the Defendant at Olkaria. The question in this issue is whether the Defendant, as occupier, owed a duty of care to the deceased under the Occupiers Liability Act.
13. Section 3(2) of the Occupiers Liability Act (Cap. 34, Laws of Kenya) imposes on occupiers a duty to take reasonable care to ensure that lawful visitors are safe in using the premises. This duty is qualified by Section 3(5), which excludes liability in respect of risks willingly accepted by the visitor. The duty under Section 3(2) is not absolute. As observed by Githinji, JA in Soma Properties Ltd v HAYM [2015] eKLR and reaffirmed in Catherine Wangechi Wariahe v Meridian Hotel Ltd [2016] eKLR, the Act does not guarantee absolute safety, but requires that the occupier take reasonable care in all the circumstances.
14. In Catherine Wangechi (supra), the Court, citing Letang v Ottawa Electric Railway Co and Wills J in Osborne v London & North Western Railway Co, affirmed that the occupier must ensure that visitors are reasonably safe but is not held to a standard of strict liability. The occupier’s duty is to implement reasonable systems to guard against foreseeable risks.
15. Accordingly, it is not in dispute that the Defendant, as occupier of the geothermal spa facility, owed a statutory duty of care under Section 3(2) of the Act to the deceased as a lawful visitor.
2) Who is to blame for the accident
16. Whereas it is not disputed that Kone Nouhoum Cheik died as a result of injuries sustained from diving into the geothermal swimming pool, the Defendant maintains that the same were occasioned by his own reckless conduct and is not attributable to the Defendant.
17. The Defendant contended that it had discharged its duty of care by maintaining the swimming pool in good condition, providing adequate staffing, and erecting appropriate warning signage around the facility. It submitted that an occupier cannot be held to guarantee safety when a user voluntarily violates safety rules. In Soma Properties Ltd v HAYM [2015] eKLR, the Court emphasized that reasonableness and not perfection is the applicable standard of care expected of an occupier. Similarly, in Christine Kalama v Jane Wanja Njeru [2019] eKLR, the Court declined to impose liability on an occupier where a plaintiff had voluntarily exposed themselves to an obvious risk and the occupier had demonstrated reasonable precautions were in place.
18. Further, applying the principles in Caparo Industries Plc v Dickman [1990] 2 AC 605, the Court considers whether the harm was foreseeable, whether there existed sufficient proximity between the parties, and whether it would be fair, just, and reasonable to impose a duty of care. On this basis, the Defendant contended that it had met the threshold for discharging its obligations under the Occupiers Liability Act.
19. However, the Plaintiff pointed to a specific omission which is the Defendant’s failure to warn of the silica-induced opacity of the geothermal water, which obscured visibility and posed a latent hazard to users. In Jumba Holdings Ltd v Safepak Ltd [2016] eKLR, the Court held that where an occupier is aware of a latent, non-obvious danger, it must issue specific warnings; general signage is insufficient.
20. There is no evidence of warning signs specifically cautioning against diving into opaque geothermal water. While the Court accepts that a reasonable system existed generally, the specific omission to warn about the unique hazard posed by silica opacity was not sufficiently mitigated.
21. On the issue of voluntary assumption of risk, the defence of volenti non fit injuria, incorporated in Section 3(5) of the Act, requires that the visitor freely and voluntarily, with full knowledge of the nature and extent of the risk, impliedly agreed to incur it. As stated in Catherine Wangechi (supra):
"If the defendant desires to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the Plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it."
22. This principle requires full awareness of the risk, genuine freedom of choice, and absence of coercion. The Court finds that the deceased did not have full knowledge of the latent hazard posed by the silica opacity. There is no evidence that he was warned about it, and general signage, did not address this specific danger. The defence of volenti non fit injuria is therefore not available to the Defendant.
23. The Defendant’s position was that the deceased ran and dove into the pool without heeding warning signs or instructions from staff. The only direct evidence of the deceased’s entry into the pool came from Geoffrey Wambugu, a security guard at the facility, who testified that he saw the deceased run and dive into the pool. This testimony was not controverted. None of the Plaintiff’s witnesses, including Victor Mutarambiwa who accompanied the deceased, saw the manner in which the deceased entered the pool. Mutarambiwa stated that he was in the washroom when the deceased entered the water.
24. Diving into an unfamiliar geothermal pool without inquiry or precaution, particularly when the water was opaque due to silica, was plainly unsafe. The deceased’s conduct fell below the standard of care expected of a prudent visitor.
25. In light of the above, the Court finds that the Defendant breached its duty by failing to warn of a latent hazard, while the deceased was contributorily negligent in failing to exercise reasonable caution in the circumstances. In such situations, the Court of Appeal has approved apportionment of liability where both parties are at fault and conclusive allocation is not possible. See Raghbir Singh Chatte v National Bank of Kenya Ltd [1996] eKLR and Peter Waweru v Lazarus Ratemo & Another [2007] eKLR.
26. As the proprietor of the spa, the Defendant bore a substantial duty to ensure the safety of all visitors. In light of this, this court assigns 90% of the liability to the Defendant and 10% to the Plaintiffs.
3) Whether the Plaintiffs are entitled to damages and, if so, the appropriate quantum
27. The Plaintiffs claim both special and general damages arising from the wrongful death of the deceased. The legal basis for this claim is the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32), which entitle the estate and dependents of a deceased person to compensation for loss suffered as a result of a tortious act leading to death.
28. Under the Law Reform Act, damages are awardable for pain and suffering before death, as well as for loss of expectation of life. Under the Fatal Accidents Act, the dependents of the deceased may recover damages for loss of dependency and associated pecuniary loss.
29. In assessing the quantum of damages, the Court is guided by the general principles applicable under the Law Reform Act and the Fatal Accidents Act. The objective is to award fair compensation for the loss suffered, while ensuring that the awards are not speculative, exaggerated, or unjustified.
30. The Court must evaluate the nature of the injuries, the circumstances surrounding the death, the status of the deceased, the extent of dependency, and the evidence placed before it. Guided by established precedent and the submissions of the parties, the Court proceeds to evaluate each head of damages.
31. The Plaintiffs claim both special and general damages arising from the wrongful death of the deceased. The legal basis for this claim is the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32), which entitle the estate and dependents of a deceased person to compensation for loss suffered as a result of a tortious act leading to death.
32. Under the Law Reform Act, damages are awardable for pain and suffering before death, as well as for loss of expectation of life. Under the Fatal Accidents Act, the dependents of the deceased may recover damages for loss of dependency and associated pecuniary loss.
Pain and suffering
33. On the claim for pain and suffering, the Plaintiffs submitted after the accident on 29th September 2018, the deceased was rescued from the pool alive, taken to Hospital, and died five months later on 28th February 2019. As such, they urged the Court to award a sum of KES. 100,000. In Allan Owiti Awuor & another v Tabitha Micere Mathu (Suing as Personal Representative of the Estate Of Peter Math Ng’ang’a) [2021] KEHC 9079 (KLR), a sum of KES. 100,000 was awarded for a deceased that died a day after the accident. The Plaintiffs proposed an award of KES. 300,000 under this heading and the Defendant made no offer. From the injuries sustained by the deceased, there is no doubt that the experienced severe pain during this period he was under treatment. The Court finds the proposal of KES. 300,000 reasonable and the same is awarded.
Loss of expectation of life
34. As for the loss of expectation of life, the Plaintiffs proposed KES. 300,000 and placed reliance on M’inoti & another (Suing as Legal Representatives of the Estate of Charles Kithinji Ringera-Deceased) v Gitonga & another [2024] KEHC 3180 (KLR) where KES. 200,000 was awarded under this heading. The Defendant did not make any offer. I find that an award of KES. 200,000 under this heading is reasonable and the same is awarded.
35. . Courts have consistently awarded between KES. 100,000 and KES. 200,000 for this head of damages in recent years. See Otieno v Muthama (supra) and Rose Ogola v AG [2015] eKLR. Considering the deceased was a healthy 28-year-old man with no known terminal illness or predisposing condition, the Court awards Kshs. 300,000 under this head.
Loss of dependency
36. On the claim under the Fatal Accidents Act, the Plaintiffs stated that the deceased was a budding artist and television personality with a promising career. They proposed a multiplicand of KES. 530,000 per month supported by what was contended to be the deceased’s rising career and public profile. Plaintiff Exhibit 15 contained the deceased’s contracts including an Actor’s Agreement with Multan Production Ltd dated 01st June 2018, paying KES. 131,600 for his role in Selina and a Modelling Contract dated 04th September 2018 with Media Edge Interactive Ltd (on behalf of East African Breweries Ltd) for KES 200,000. Plaintiffs also proposed a multiplier of 20 years for the reason died at the age of 33 years and 2/3rd dependency ratio.
37. There was however no evidence of any actual earnings or payments made from the produced acting contracts or any other. The Court agrees with the Defendant that no evidence was tendered showing that the deceased was earning a monthly sum of KES. 530,000 at the time of his death.
38. Where the earnings of a deceased person were unknown or could not be ascertained, the courts commonly held that a global award/sum ought to be adopted.
39. The global sum is not a figure given arbitrarily but rather, it is an award based on the circumstances of the case and similar decisions by courts in the past. In the case of Frankline Kimathi Maariu & another Vs 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, it stated:
“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.”
40. The evidence on record reveals that deceased had a wife and a child hence it would be expected that the deceased had to take care of them by earning an income.
41. From the circumstances of the case, it is evident that the application of a global sum approach is appropriate. In the case of Hashi Hauliers & another Vs Joel Songok & another (2021) eKLR the court awarded a global sum of KES. 1,000,000 being damages for loss of dependency.
42. In the case of Charles Oriwo Odeyo Vs. Appollo Justus Andabwa & Another [2017] eKLR, it was held that the court in making an award for general damages must always consider the prevailing inflation.
43. Considering that it is 4 years since the decision in Hashi Hauliers & another Vs Joel Songok & another (supra), the Court awards a conventional sum of KES. 2,000,000 under this head.
Special damages
44. The Court of Appeal in Hann versus Singh (1985) KLR 716 and Capital Fish Kenya Limited v the Kenya Power & Lighting Company Limited [2016] eKLR; 189 of 2014 (Nairobi), stated that special damages must not only be specifically pleaded but must be strictly proved.
45. The Plaintiffs pleaded and particularized special damages in their Plaint, including funeral expenses, mortuary fees, transportation, postmortem costs, and related expenses. In support, the Plaintiffs produced receipts and invoices.
46. The Plaintiffs list of documents dated 11th December 2020 reveals that AVA Medicare Limited was paid KES. 13,150 vide receipt dated 15th December 2018; KES. 187,950 vide receipt dated 21st December 2018; KES. 400,000 vide receipt dated 16th January 2029 and KES. 112,400/- vide receipt dated 25th January 2019. The further supplementary list of documents contains for the total sum of KES. 69,110 in three (3) receipts for KES. 23,100; KES. 23,120 and KES. 22,890
47. From the foregoing, the Court is satisfied that the amount of KES. 782,610 under this head has been duly proved.
Disposition
48. Having considered the pleadings, evidence, and submissions of the parties, it is hereby ordered as follows:
1) Liability is determined at 90:10% in favour of the Plaintiffs against the Defendant
2) Judgment is hereby entered in favour of the Plaintiffs against the Defendant as follows:
i. Pain and suffering: KES. 300,000
ii. Loss of expectation of life: KES. 300,000
iii. Loss of dependency: KES. 2,000,000
iv. Special damages: KES. 782,610
3) The sum that had been expended at the time of filing this suit shall attract interest at court rates from the date of filing this suit until payment in full.
4) The Plaintiffs shall have 90% costs of the suit.
Appearances
Court Assistant - Ubah
For Plaintiff - Mr. Kamau for Maina, Omore & Mwaura Advocates
For Defendant - Mr. Nderitu for Awele Jackson Advocates LLP
2. The Plaintiffs called three witnesses. Zawadi Khadija, the deceased’s mother, testified that she was not present at the spa on the day of the incident. Her evidence was based on what she was informed concerning how the accident occurred. She produced various documents including photographs, a police abstract, and employment contracts allegedly evidencing the deceased’s income. However, she admitted under cross-examination that the photographs were not taken by her and Joseph Mathenge who had sworn the certificate of electronic evidence was not called to testify. She also conceded that although she claimed the signage at the spa was worn out, she did not witness it herself on the material day.
3. The second witness, Jennifer Kimwati Munywoki, the deceased’s widow, similarly confirmed that she was not present during the incident. Her evidence focused mainly on dependency and the family’s financial loss. She stated that the deceased was the family’s breadwinner but did not produce documentation to demonstrate his income or the family's expenditure. Her knowledge of the spa's condition and the events of the day was also hearsay.
4. The third witness, Victor Mutarambiwa, was the only person who was present with the deceased at the spa on the date of the accident. He testified that the deceased was feeling hot after a hike and proceeded directly to the pool without consulting any attendant. Victor excused himself to use the washroom and did not see the deceased enter the pool. When he returned, he found the deceased injured and being assisted by Ken Gen staff. Victor also attempted to introduce photographs and a video into evidence but admitted that these were taken much later, during a visit by Hon. Esther Passaris and her media team on 05th December 2018, and that he was not the one who captured them. The maker of the certificate of electronic evidence, Joseph Mathenge, was again not called to testify.
5. The video and photographs relied on by the Plaintiffs were not produced by their makers (notably Joseph Mathenge and Hon. Esther Passaris), and thus were challenged as inadmissible for lack of proper certification under the Evidence Act.
6. The Defendant called six witnesses. Kennedy Rono, a senior staff member and part of the accident investigation team, testified that Ken Gen had conducted a thorough internal investigation. He produced the incident report dated 07th October 2018 and photographs showing extensive safety signage, including “No Diving” warnings and depth indicators. He asserted that the deceased had ignored these warnings and that adequate safety measures were in place.
7. Ken Ngecha Gatogo, a trained lifeguard on duty that day, testified that he saw the deceased run and dive into the pool. Together with fellow lifeguard Bernard Sila, he assisted in pulling the deceased out of the pool and called for emergency help. Both lifeguards confirmed the pool was well-marked and properly staffed.
8. Kennedy Ngugi, a clinical officer at the spa’s Mvuke Clinic, testified that he attended to the deceased immediately after the incident and arranged for his transfer to Mt. Longonot Hospital and later to Nairobi Hospital. He produced the clinic’s treatment notes as evidence.
9. Geoffrey Wambugu, a security guard, corroborated the lifeguards’ testimony, stating that he witnessed the deceased run and dive into the pool despite posted signage and verbal warnings.
10. Eric Ondieki, the ambulance driver, confirmed that he was called to the scene immediately, picked up the deceased, and transported him to Mvuke Clinic and subsequently to hospital. He described the emergency response as prompt and coordinated.
Issues for Determination
11. Based on the parties’ pleadings and the Plaintiffs’ submission dated 07th April 2025 and Defendant’s submissions dated 07th May 2025, the following key issues arise for determination:
1) Whether the Defendant, as occupier of the Olkaria Geothermal Spa, owed a duty of care to the deceased on 29th September 2018.
2) Who is to blame for the accident.
3) Whether the Plaintiffs have proved their claim for special damages and loss of dependency, and the appropriate quantum of damages.
4) Whether the Plaintiffs are entitled to the reliefs sought.
1) Whether the Defendant, as occupier of the Olkaria Geothermal Spa, owed a duty of care to the deceased on 29th September 2018.
12. As already stated hereinabove, the deceased, Kone Nouhoum Cheik, tragically died on 29th September 2018 after diving into a geothermal spa pool operated by the Defendant at Olkaria. The question in this issue is whether the Defendant, as occupier, owed a duty of care to the deceased under the Occupiers Liability Act.
13. Section 3(2) of the Occupiers Liability Act (Cap. 34, Laws of Kenya) imposes on occupiers a duty to take reasonable care to ensure that lawful visitors are safe in using the premises. This duty is qualified by Section 3(5), which excludes liability in respect of risks willingly accepted by the visitor. The duty under Section 3(2) is not absolute. As observed by Githinji, JA in Soma Properties Ltd v HAYM [2015] eKLR and reaffirmed in Catherine Wangechi Wariahe v Meridian Hotel Ltd [2016] eKLR, the Act does not guarantee absolute safety, but requires that the occupier take reasonable care in all the circumstances.
14. In Catherine Wangechi (supra), the Court, citing Letang v Ottawa Electric Railway Co and Wills J in Osborne v London & North Western Railway Co, affirmed that the occupier must ensure that visitors are reasonably safe but is not held to a standard of strict liability. The occupier’s duty is to implement reasonable systems to guard against foreseeable risks.
15. Accordingly, it is not in dispute that the Defendant, as occupier of the geothermal spa facility, owed a statutory duty of care under Section 3(2) of the Act to the deceased as a lawful visitor.
2) Who is to blame for the accident
16. Whereas it is not disputed that Kone Nouhoum Cheik died as a result of injuries sustained from diving into the geothermal swimming pool, the Defendant maintains that the same were occasioned by his own reckless conduct and is not attributable to the Defendant.
17. The Defendant contended that it had discharged its duty of care by maintaining the swimming pool in good condition, providing adequate staffing, and erecting appropriate warning signage around the facility. It submitted that an occupier cannot be held to guarantee safety when a user voluntarily violates safety rules. In Soma Properties Ltd v HAYM [2015] eKLR, the Court emphasized that reasonableness and not perfection is the applicable standard of care expected of an occupier. Similarly, in Christine Kalama v Jane Wanja Njeru [2019] eKLR, the Court declined to impose liability on an occupier where a plaintiff had voluntarily exposed themselves to an obvious risk and the occupier had demonstrated reasonable precautions were in place.
18. Further, applying the principles in Caparo Industries Plc v Dickman [1990] 2 AC 605, the Court considers whether the harm was foreseeable, whether there existed sufficient proximity between the parties, and whether it would be fair, just, and reasonable to impose a duty of care. On this basis, the Defendant contended that it had met the threshold for discharging its obligations under the Occupiers Liability Act.
19. However, the Plaintiff pointed to a specific omission which is the Defendant’s failure to warn of the silica-induced opacity of the geothermal water, which obscured visibility and posed a latent hazard to users. In Jumba Holdings Ltd v Safepak Ltd [2016] eKLR, the Court held that where an occupier is aware of a latent, non-obvious danger, it must issue specific warnings; general signage is insufficient.
20. There is no evidence of warning signs specifically cautioning against diving into opaque geothermal water. While the Court accepts that a reasonable system existed generally, the specific omission to warn about the unique hazard posed by silica opacity was not sufficiently mitigated.
21. On the issue of voluntary assumption of risk, the defence of volenti non fit injuria, incorporated in Section 3(5) of the Act, requires that the visitor freely and voluntarily, with full knowledge of the nature and extent of the risk, impliedly agreed to incur it. As stated in Catherine Wangechi (supra):
"If the defendant desires to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the Plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it."
22. This principle requires full awareness of the risk, genuine freedom of choice, and absence of coercion. The Court finds that the deceased did not have full knowledge of the latent hazard posed by the silica opacity. There is no evidence that he was warned about it, and general signage, did not address this specific danger. The defence of volenti non fit injuria is therefore not available to the Defendant.
23. The Defendant’s position was that the deceased ran and dove into the pool without heeding warning signs or instructions from staff. The only direct evidence of the deceased’s entry into the pool came from Geoffrey Wambugu, a security guard at the facility, who testified that he saw the deceased run and dive into the pool. This testimony was not controverted. None of the Plaintiff’s witnesses, including Victor Mutarambiwa who accompanied the deceased, saw the manner in which the deceased entered the pool. Mutarambiwa stated that he was in the washroom when the deceased entered the water.
24. Diving into an unfamiliar geothermal pool without inquiry or precaution, particularly when the water was opaque due to silica, was plainly unsafe. The deceased’s conduct fell below the standard of care expected of a prudent visitor.
25. In light of the above, the Court finds that the Defendant breached its duty by failing to warn of a latent hazard, while the deceased was contributorily negligent in failing to exercise reasonable caution in the circumstances. In such situations, the Court of Appeal has approved apportionment of liability where both parties are at fault and conclusive allocation is not possible. See Raghbir Singh Chatte v National Bank of Kenya Ltd [1996] eKLR and Peter Waweru v Lazarus Ratemo & Another [2007] eKLR.
26. As the proprietor of the spa, the Defendant bore a substantial duty to ensure the safety of all visitors. In light of this, this court assigns 90% of the liability to the Defendant and 10% to the Plaintiffs.
3) Whether the Plaintiffs are entitled to damages and, if so, the appropriate quantum
27. The Plaintiffs claim both special and general damages arising from the wrongful death of the deceased. The legal basis for this claim is the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32), which entitle the estate and dependents of a deceased person to compensation for loss suffered as a result of a tortious act leading to death.
28. Under the Law Reform Act, damages are awardable for pain and suffering before death, as well as for loss of expectation of life. Under the Fatal Accidents Act, the dependents of the deceased may recover damages for loss of dependency and associated pecuniary loss.
29. In assessing the quantum of damages, the Court is guided by the general principles applicable under the Law Reform Act and the Fatal Accidents Act. The objective is to award fair compensation for the loss suffered, while ensuring that the awards are not speculative, exaggerated, or unjustified.
30. The Court must evaluate the nature of the injuries, the circumstances surrounding the death, the status of the deceased, the extent of dependency, and the evidence placed before it. Guided by established precedent and the submissions of the parties, the Court proceeds to evaluate each head of damages.
31. The Plaintiffs claim both special and general damages arising from the wrongful death of the deceased. The legal basis for this claim is the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32), which entitle the estate and dependents of a deceased person to compensation for loss suffered as a result of a tortious act leading to death.
32. Under the Law Reform Act, damages are awardable for pain and suffering before death, as well as for loss of expectation of life. Under the Fatal Accidents Act, the dependents of the deceased may recover damages for loss of dependency and associated pecuniary loss.
Pain and suffering
33. On the claim for pain and suffering, the Plaintiffs submitted after the accident on 29th September 2018, the deceased was rescued from the pool alive, taken to Hospital, and died five months later on 28th February 2019. As such, they urged the Court to award a sum of KES. 100,000. In Allan Owiti Awuor & another v Tabitha Micere Mathu (Suing as Personal Representative of the Estate Of Peter Math Ng’ang’a) [2021] KEHC 9079 (KLR), a sum of KES. 100,000 was awarded for a deceased that died a day after the accident. The Plaintiffs proposed an award of KES. 300,000 under this heading and the Defendant made no offer. From the injuries sustained by the deceased, there is no doubt that the experienced severe pain during this period he was under treatment. The Court finds the proposal of KES. 300,000 reasonable and the same is awarded.
Loss of expectation of life
34. As for the loss of expectation of life, the Plaintiffs proposed KES. 300,000 and placed reliance on M’inoti & another (Suing as Legal Representatives of the Estate of Charles Kithinji Ringera-Deceased) v Gitonga & another [2024] KEHC 3180 (KLR) where KES. 200,000 was awarded under this heading. The Defendant did not make any offer. I find that an award of KES. 200,000 under this heading is reasonable and the same is awarded.
35. . Courts have consistently awarded between KES. 100,000 and KES. 200,000 for this head of damages in recent years. See Otieno v Muthama (supra) and Rose Ogola v AG [2015] eKLR. Considering the deceased was a healthy 28-year-old man with no known terminal illness or predisposing condition, the Court awards Kshs. 300,000 under this head.
Loss of dependency
36. On the claim under the Fatal Accidents Act, the Plaintiffs stated that the deceased was a budding artist and television personality with a promising career. They proposed a multiplicand of KES. 530,000 per month supported by what was contended to be the deceased’s rising career and public profile. Plaintiff Exhibit 15 contained the deceased’s contracts including an Actor’s Agreement with Multan Production Ltd dated 01st June 2018, paying KES. 131,600 for his role in Selina and a Modelling Contract dated 04th September 2018 with Media Edge Interactive Ltd (on behalf of East African Breweries Ltd) for KES 200,000. Plaintiffs also proposed a multiplier of 20 years for the reason died at the age of 33 years and 2/3rd dependency ratio.
37. There was however no evidence of any actual earnings or payments made from the produced acting contracts or any other. The Court agrees with the Defendant that no evidence was tendered showing that the deceased was earning a monthly sum of KES. 530,000 at the time of his death.
38. Where the earnings of a deceased person were unknown or could not be ascertained, the courts commonly held that a global award/sum ought to be adopted.
39. The global sum is not a figure given arbitrarily but rather, it is an award based on the circumstances of the case and similar decisions by courts in the past. In the case of Frankline Kimathi Maariu & another Vs 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, it stated:
“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.”
40. The evidence on record reveals that deceased had a wife and a child hence it would be expected that the deceased had to take care of them by earning an income.
41. From the circumstances of the case, it is evident that the application of a global sum approach is appropriate. In the case of Hashi Hauliers & another Vs Joel Songok & another (2021) eKLR the court awarded a global sum of KES. 1,000,000 being damages for loss of dependency.
42. In the case of Charles Oriwo Odeyo Vs. Appollo Justus Andabwa & Another [2017] eKLR, it was held that the court in making an award for general damages must always consider the prevailing inflation.
43. Considering that it is 4 years since the decision in Hashi Hauliers & another Vs Joel Songok & another (supra), the Court awards a conventional sum of KES. 2,000,000 under this head.
Special damages
44. The Court of Appeal in Hann versus Singh (1985) KLR 716 and Capital Fish Kenya Limited v the Kenya Power & Lighting Company Limited [2016] eKLR; 189 of 2014 (Nairobi), stated that special damages must not only be specifically pleaded but must be strictly proved.
45. The Plaintiffs pleaded and particularized special damages in their Plaint, including funeral expenses, mortuary fees, transportation, postmortem costs, and related expenses. In support, the Plaintiffs produced receipts and invoices.
46. The Plaintiffs list of documents dated 11th December 2020 reveals that AVA Medicare Limited was paid KES. 13,150 vide receipt dated 15th December 2018; KES. 187,950 vide receipt dated 21st December 2018; KES. 400,000 vide receipt dated 16th January 2029 and KES. 112,400/- vide receipt dated 25th January 2019. The further supplementary list of documents contains for the total sum of KES. 69,110 in three (3) receipts for KES. 23,100; KES. 23,120 and KES. 22,890
47. From the foregoing, the Court is satisfied that the amount of KES. 782,610 under this head has been duly proved.
Disposition
48. Having considered the pleadings, evidence, and submissions of the parties, it is hereby ordered as follows:
1) Liability is determined at 90:10% in favour of the Plaintiffs against the Defendant
2) Judgment is hereby entered in favour of the Plaintiffs against the Defendant as follows:
i. Pain and suffering: KES. 300,000
ii. Loss of expectation of life: KES. 300,000
iii. Loss of dependency: KES. 2,000,000
iv. Special damages: KES. 782,610
3) The sum that had been expended at the time of filing this suit shall attract interest at court rates from the date of filing this suit until payment in full.
4) The Plaintiffs shall have 90% costs of the suit.
Appearances
Court Assistant - Ubah
For Plaintiff - Mr. Kamau for Maina, Omore & Mwaura Advocates
For Defendant - Mr. Nderitu for Awele Jackson Advocates LLP