A Mombasa magistrate has awarded Sh1.62 million to the family of a 30‑year‑old waste picker who died after falling from a moving tipper lorry at the Mwakirunge Dumpsite.
Senior resident magistrate Emily Mwamuye found the driver principally negligent, while also ruling the deceased bore some responsibility for his own safety.
The accident occurred on December 14, 2024, when Tumaini Nguwa Tsuwi was in the process of boarding a garbage lorry owned by Dhanjal Brothers Limited.
An eyewitness, Mohamed Chipi Athumani, recounted the events to the court
“His evidence was that he was at Mwakirunge Dumpsite together with the deceased; that the driver of KAX 393L requested the deceased to board; and that the driver moved the vehicle before the deceased had properly settled. The deceased fell and was run over by the left rear tyre,” the court heard.
Tumaini died the same day.
The defendant, Dhanjal Brothers Limited, denied negligence through its driver, Ndambuki Ngui.
“In his written statement he stated the deceased, without his knowledge or consent, precariously hung onto the rear of the moving lorry, lost his grip and fell.”
Ngui said he did not actually see the deceased board, becoming aware of the accident only after people screamed and told him to stop.
“He could not say with certainty where, or from which side, the deceased boarded.”
He explained the tipper’s cabin configuration meant he would not have a clear view of someone attempting to climb onto the rear.
The defendant also relied on a statement from an alleged eyewitness, Andrew Mtana Mbaru, who said the deceased had tried to board while the lorry was still moving, but that witness did not testify in court.
The deceased’s father, Nguwa Tsuwi Kalama, who testified as PW2, told the court of his son’s work in waste sorting and metal collection, an informal livelihood that sustained him and his parents.
The magistrate ruled that the plaintiffs had proved negligence on a balance of probabilities.
“PW3’s [Athumani] account was direct. He stated that the driver requested the deceased to board and thereafter moved before the deceased had safely settled,” she observed.
"DW1 [Ngui] could not give direct evidence contradicting the precise act of boarding because, by his own account, he did not see the deceased boarding.”
“The fact that DW1 stated that, because of the configuration of the vehicle, he could not see persons boarding from the rear does not absolve him. If anything, the limited visibility of a heavy commercial vehicle demanded greater caution before moving when persons were in close proximity.”
However, the court also found the deceased had contributed to his own injuries.
“Boarding or riding upon such a vehicle carried an obvious element of danger,” the magistrate observed.
“Even accepting PW3’s evidence that the driver permitted or invited the deceased to board, the deceased was still required to exercise reasonable care for his own safety.”
The magistrate rejected the defence that a person who voluntarily assumes a risk cannot later claim damages.
“For that defence to succeed, the court must be satisfied not merely that the deceased encountered a risk, but that he freely and voluntarily agreed to waive any claim arising from that risk."
"On my finding that the driver permitted or acquiesced in the boarding process, the evidence does not establish such voluntary acceptance.”
Liability was apportioned at 80 per cent against the defendant and 20 per cent against the deceased.
The court awarded Sh50,000 for pain and suffering, Sh150,000 for loss of expectation of life, and Sh1,611,375 for loss of dependency based on a monthly multiplicand of Sh16,113.75, a 25‑year multiplier and a one‑third dependency ratio for the deceased’s parents.
The parents were recognised as the sole statutory dependants, while the deceased’s siblings fell outside the Fatal Accidents Act class.
Special damages of Sh215,150 comprising legal fees for the limited grant, mortuary charges and funeral expenses were also allowed.
The gross award of Sh2,026,525 was reduced by 20 per cent to a net sum of Sh1,621,220.
The court also awarded interest on general damages from the date of judgment and on special damages from the date of filing suit, together with costs to the plaintiffs.
