1. By a Plaint dated 11th January 2024, the Respondents herein, [hereinafter referred to as ‘the suit’] sued the Appellant herein. It was their case that the deceased was lawfully riding his motorcycle along Lusaka Road in Nairobi when the Appellant’s employee, driver, servant and or agent so negligently /carelessly drove, managed and controlled motor vehicle registration KCR 591M and or permitted the said motor vehicle to lose control and collide with motor vehicle registration KMGA 449X as a result of which the deceased was fatally injured.
2. The Respondent averred that the Appellant was vicariously liable for the negligent acts of his servant, employee, driver or agent. As a result of the aforesaid negligence the accident caused fatal and thereby the deceased lost his normal expectations of a happy successful life and the deceased estate and dependants have suffered loss and damage and therefore claimed compensation for the loss suffered.
3. The action was brought on behalf of the Widow, mother and child of the deceased as per the Fatal accidents and Law Reform Acts. The Respondents sought special and general damages together with interest and costs of the suit.
4. The Appellant entered an appearance in the suit and filed a Statement of Defence dated 23rd April 2024 denying the occurrence of the accident as pleaded and, in the alternative, alleged negligence on the part of the Respondent.
5. In its judgment dated 25th April 2025, the trial Court entered judgement n favour of the Respondent and awarded the Kshs.2,230,550/=. Being special damages, loss of dependency, loss of life expectation and pain and suffering. The Trial Court further found the Appellant 100% liable for the accident.
The Appeal
6. Through the Memorandum of Appeal dated 10th July 2025, the Appellant challenged the entire judgment on ten grounds and prayed that judgement be set aside and appeal be allowed. The Grounds raised will later be summarized and analysed in this judgement.
The Appellant’s submissions:
7. The Appellant filed written submissions dated 23rd February 2026 to canvass the appeal. The Appellant submits that the duty of this Court as the first appellate involves a re-assessment and re-evaluation of evidence adduced before the trial court with a view of arriving at its own independent conclusion. The Appellant relied in the case of Selle & Another v Associated Motor Boat Company Limited [1968] EA 123.
8. The Appellant raised an issue whether the evidence adduced before the trial court established that the Respondent was responsible wholly for the accident. The Appellant relied on Section 107 and 109 of the Evidence Act. It is his submission that no cogent and credible evidence was presented before the Trial Court to demonstrate hid drivers’ negligence.
9. It is his submission that legal burden of proof rested with the Respondent throughout the proceedings and never shifted. It was incumbent upon her to establish on a balance of probability the specific acts of negligence attributable to the appellant. Hence the finding of liability of the was not supported but based on speculation.
10. The Appellant concluded by submitting that without prejudice to the foregoing, the Kshs.2,000,000 awarded was excessive and is persuading this Court to substitute the award with Kshs.1,200,000. He supported this position with various authorities.
Respondent’s submissions.
11. The Respondent filed its written submission and list of authorities dated 11th and 11th March 2026 respectively. The Respondent gave a background of the celebrated case of Selle and Another vs Associated Motor Boat Company Ltd & Others on how this Court should go about the Appeal.
12. The Respondent on the issue of burden of proof submitted that the Respondent had proved their case on a balance of probability. To prove their liability they called an Investigation officer who adopted the contents of the police abstract and testified how the accident occurred. It is their submission that the Appellant was blamed for the accident. The witness testified that he visited the scene and investigations were concluded and Appellant’s motor vehicle blamed for the accident.
13. The Respondent supported the award of Kshs.2,000,000 and cited authorities and analysed the circumstances in support of their case seeking to affirm the award by the Trial Magistrate.
14. The Respondents faulted the Appellant for merely denying liability in their defence and according to them their case remained uncontroverted they cited the cases relied upon.
Analysis and determination.
15. Having perused the record, the rival submissions and the decisions referred to therein, the emerging issued will be answered when this Court answers the question if the learned Magistrate erred in his decision. I will procced and analyse the matter with a view to finding an answer.
Whether the Learned Trial Magistrate erred in his decision.
16. Before dealing with the above issue, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.
17. Further the principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
18. In the Court of Appeal decision in Ephantus Mwangi and another v Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988} 1KAR 278 stated that; “A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that:
(a)he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or
(b)if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
19. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
20. A police officer testified on the circumstances of the accident that all the motor vehicles were heading in the same direction and that KAV 321k obstructed the Deceased’s motorcycle and that KCR 591 ran over the motorcycle rider and he succumbed to the injuries. He testified that KCR 591 failed to keep a reasonable distance. He testified that KCR 591 was blamed for the accident.
21. The Appellant’s director testified as well and confirmed the undisputed facts, it was his testimony that their motor vehicle was not to blame for the accident but on cross examination he said he did not have evidence to support his testimony.
22. The Appellant did not avail any evidence to support their averments, it is my considered view that the burden of proof had shifted and as required by the Evidence Act, they ought to have availed evidence that indeed their motor vehicle was not liable. It is worth noting that the driver of the Appellant did not testify to give account of the accident.
23. From the above analysis, I find that the Respondent proved liability against the Appellant herein on a balance of probabilities. I therefore agree with the reasoning and finding of the Trial Court on this that the Appellant was 100% liable.
24. From the proceedings the Respondents testified that the deceased died as a result of the accident. It was said that was he was a motorcycle rider making Ksh.20,000/= per month and that his family depended in his for their daily upkeep. Post-mortem report was availed in Court to confirm his death caused by a fatal road accident whereby a motor vehicle ran over him.
25. Regarding the reasonableness of the amount of Kshs. 2,000,000 awarded for loss of dependency, there are many decided cases applicable to such a situation where the income of the deceased could not be established precisely. This Court will look at a comparable analysis of the amounts the High Court has been awarded in similar cases.
26. In the High Court in [2026] KEHC 8296 (KLR) held as follows:
“Taking into account the deceased’s age, his earning capacity as a boda boda operator, the number of dependants and the uncertainties inherent in informal employment, this Court is persuaded that a global award is the most appropriate approach in the circumstances of this case. In that regard, I find that a sum of Ksh.2,000,000/- represents a fair, reasonable and proportionate award for loss of dependency’’
27. In Case the High Court had set aside the award of the Trial court using the multiplier-multiplicand approach which result to an award of Ksh.2,809,760/. I am therefore persuaded that the use global award is the appropriate in such cases as this since the earnings of the deceased could not be precisely established given the nature of his occupation.
28. The Court of Appeal reiterated this principle in the case of Catholic Diocese of Kisii v Sophia Achieng Tete [2004] eKLR, where it held that:
“Where there is no evidence of income, the court should not engage in conjecture but should instead make a global award based on the circumstances of the case.”
29. The Appellant submitted that a reasonable amount to be awarded would be Kshs.1,200,000. Having looked at numerous authorities on range of amounts that have been awarded by various Courts and being aware that no two cases are similar, I am persuaded that Kshs.2,000,000 awarded by the Trial Court is reasonable and not manifestly high.
30. For avoidance of doubt, the Appellant did not dispute the rest of the prayers awarded by the Trial Court, therefore the same are affirmed.
31. I therefore find that the awards fall within the permissible bounds of judicial discretion. I will not interfere with the trial court’s award.
Disposition:
32. The Judgement of the Trial Court is upheld. The Appeal is dismissed with costs.
Orders accordingly.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 10th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Tikolo for Nguu Learned Counsel for the Appellant.
Kobia Learned Counsel for the Respondents
Michael – Court Assistant.
2. The Respondent averred that the Appellant was vicariously liable for the negligent acts of his servant, employee, driver or agent. As a result of the aforesaid negligence the accident caused fatal and thereby the deceased lost his normal expectations of a happy successful life and the deceased estate and dependants have suffered loss and damage and therefore claimed compensation for the loss suffered.
3. The action was brought on behalf of the Widow, mother and child of the deceased as per the Fatal accidents and Law Reform Acts. The Respondents sought special and general damages together with interest and costs of the suit.
4. The Appellant entered an appearance in the suit and filed a Statement of Defence dated 23rd April 2024 denying the occurrence of the accident as pleaded and, in the alternative, alleged negligence on the part of the Respondent.
5. In its judgment dated 25th April 2025, the trial Court entered judgement n favour of the Respondent and awarded the Kshs.2,230,550/=. Being special damages, loss of dependency, loss of life expectation and pain and suffering. The Trial Court further found the Appellant 100% liable for the accident.
The Appeal
6. Through the Memorandum of Appeal dated 10th July 2025, the Appellant challenged the entire judgment on ten grounds and prayed that judgement be set aside and appeal be allowed. The Grounds raised will later be summarized and analysed in this judgement.
The Appellant’s submissions:
7. The Appellant filed written submissions dated 23rd February 2026 to canvass the appeal. The Appellant submits that the duty of this Court as the first appellate involves a re-assessment and re-evaluation of evidence adduced before the trial court with a view of arriving at its own independent conclusion. The Appellant relied in the case of Selle & Another v Associated Motor Boat Company Limited [1968] EA 123.
8. The Appellant raised an issue whether the evidence adduced before the trial court established that the Respondent was responsible wholly for the accident. The Appellant relied on Section 107 and 109 of the Evidence Act. It is his submission that no cogent and credible evidence was presented before the Trial Court to demonstrate hid drivers’ negligence.
9. It is his submission that legal burden of proof rested with the Respondent throughout the proceedings and never shifted. It was incumbent upon her to establish on a balance of probability the specific acts of negligence attributable to the appellant. Hence the finding of liability of the was not supported but based on speculation.
10. The Appellant concluded by submitting that without prejudice to the foregoing, the Kshs.2,000,000 awarded was excessive and is persuading this Court to substitute the award with Kshs.1,200,000. He supported this position with various authorities.
Respondent’s submissions.
11. The Respondent filed its written submission and list of authorities dated 11th and 11th March 2026 respectively. The Respondent gave a background of the celebrated case of Selle and Another vs Associated Motor Boat Company Ltd & Others on how this Court should go about the Appeal.
12. The Respondent on the issue of burden of proof submitted that the Respondent had proved their case on a balance of probability. To prove their liability they called an Investigation officer who adopted the contents of the police abstract and testified how the accident occurred. It is their submission that the Appellant was blamed for the accident. The witness testified that he visited the scene and investigations were concluded and Appellant’s motor vehicle blamed for the accident.
13. The Respondent supported the award of Kshs.2,000,000 and cited authorities and analysed the circumstances in support of their case seeking to affirm the award by the Trial Magistrate.
14. The Respondents faulted the Appellant for merely denying liability in their defence and according to them their case remained uncontroverted they cited the cases relied upon.
Analysis and determination.
15. Having perused the record, the rival submissions and the decisions referred to therein, the emerging issued will be answered when this Court answers the question if the learned Magistrate erred in his decision. I will procced and analyse the matter with a view to finding an answer.
Whether the Learned Trial Magistrate erred in his decision.
16. Before dealing with the above issue, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.
17. Further the principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
18. In the Court of Appeal decision in Ephantus Mwangi and another v Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988} 1KAR 278 stated that; “A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that:
(a)he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or
(b)if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
19. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
20. A police officer testified on the circumstances of the accident that all the motor vehicles were heading in the same direction and that KAV 321k obstructed the Deceased’s motorcycle and that KCR 591 ran over the motorcycle rider and he succumbed to the injuries. He testified that KCR 591 failed to keep a reasonable distance. He testified that KCR 591 was blamed for the accident.
21. The Appellant’s director testified as well and confirmed the undisputed facts, it was his testimony that their motor vehicle was not to blame for the accident but on cross examination he said he did not have evidence to support his testimony.
22. The Appellant did not avail any evidence to support their averments, it is my considered view that the burden of proof had shifted and as required by the Evidence Act, they ought to have availed evidence that indeed their motor vehicle was not liable. It is worth noting that the driver of the Appellant did not testify to give account of the accident.
23. From the above analysis, I find that the Respondent proved liability against the Appellant herein on a balance of probabilities. I therefore agree with the reasoning and finding of the Trial Court on this that the Appellant was 100% liable.
24. From the proceedings the Respondents testified that the deceased died as a result of the accident. It was said that was he was a motorcycle rider making Ksh.20,000/= per month and that his family depended in his for their daily upkeep. Post-mortem report was availed in Court to confirm his death caused by a fatal road accident whereby a motor vehicle ran over him.
25. Regarding the reasonableness of the amount of Kshs. 2,000,000 awarded for loss of dependency, there are many decided cases applicable to such a situation where the income of the deceased could not be established precisely. This Court will look at a comparable analysis of the amounts the High Court has been awarded in similar cases.
26. In the High Court in [2026] KEHC 8296 (KLR) held as follows:
“Taking into account the deceased’s age, his earning capacity as a boda boda operator, the number of dependants and the uncertainties inherent in informal employment, this Court is persuaded that a global award is the most appropriate approach in the circumstances of this case. In that regard, I find that a sum of Ksh.2,000,000/- represents a fair, reasonable and proportionate award for loss of dependency’’
27. In Case the High Court had set aside the award of the Trial court using the multiplier-multiplicand approach which result to an award of Ksh.2,809,760/. I am therefore persuaded that the use global award is the appropriate in such cases as this since the earnings of the deceased could not be precisely established given the nature of his occupation.
28. The Court of Appeal reiterated this principle in the case of Catholic Diocese of Kisii v Sophia Achieng Tete [2004] eKLR, where it held that:
“Where there is no evidence of income, the court should not engage in conjecture but should instead make a global award based on the circumstances of the case.”
29. The Appellant submitted that a reasonable amount to be awarded would be Kshs.1,200,000. Having looked at numerous authorities on range of amounts that have been awarded by various Courts and being aware that no two cases are similar, I am persuaded that Kshs.2,000,000 awarded by the Trial Court is reasonable and not manifestly high.
30. For avoidance of doubt, the Appellant did not dispute the rest of the prayers awarded by the Trial Court, therefore the same are affirmed.
31. I therefore find that the awards fall within the permissible bounds of judicial discretion. I will not interfere with the trial court’s award.
Disposition:
32. The Judgement of the Trial Court is upheld. The Appeal is dismissed with costs.
Orders accordingly.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 10th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Tikolo for Nguu Learned Counsel for the Appellant.
Kobia Learned Counsel for the Respondents
Michael – Court Assistant.