(An appeal from the judgment and decree of the Chief Magistrate’s Court at Kangundo (D.N. Sure, PM.) delivered on 24th October 2023 in CMCC No. E005 of 2021)
1. By plaint dated 19th January 2021, the respondent averred that the deceased Benjamin Muendo Kiamba was a pedestrian walking off the Kangundo road on 24th August 2020 when motor vehicle motor vehicle registration number KBV 490Y, owned by the 2nd appellant and negligently driven by the 1st appellant, lost control and fatally knocked him down. The deceased, aged 42 years old, was survived by his adult siblings, with the respondent acting as an administrator of his estate. For those reasons, the respondent sought general damages under the Fatal Accidents Act and the Law Reform Act, together with costs and interest.
2. In her judgement dated 24th October 2023, the trial magistrate apportioned liability at 60:40 in favor of the respondent as against the appellants. She then awarded general damages for pain and suffering at Kshs. 20,000/=, Kshs. 200,000/= for loss of expectation of life and kshs 800,000/- for loss of dependency together with costs and interest.
3. Aggrieved by the findings the appellants filed a joint memorandum of appeal raising four grounds challenging the findings of the trial court. They contended that the trial court erred in apportioning liability in the ratio of 60:40 in total disregard of the evidence adduced in court and thereby arriving at a wrong conclusion; erred in failing to hold that the accident was caused by the deceased attempting to cross at an undesignated pedestrian crossing and erred by ignoring the appellant’s evidence, submissions and authorities cited. For those reasons, the appellants prayed that the judgment dated 24th October 2023 be set aside, damages reassessed and costs awarded in their favor both at trial and on appeal.
4. The appeal was canvassed by way of written submissions. The appellants argued that the trial court failed to properly evaluate the evidence on record, resulting in an erroneous apportionment of liability. He submitted that the respondent’s witnesses did not explain how the appellants were negligent in their driving and that all evidence pointed to deceased for causing the accident. For those reasons, counsel urged the court to allow the appeal.
5. The respondent opposed the appeal. They argued that the evidence of PW1 and PW2 was credible unshaken, and established negligence on the part of the appellants. He submitted that, DW1 was not a credible witness and in fact, admitted to driving at a very high speed. He urged the court to dismiss the appeal with costs.
6. I have considered the memorandum of appeal, the rival submissions, and the record of appeal. The duty of the first appellate court is well settled. In of Jabane vs. Olenja [1986] KLR 661, 664 the Court of Appeal held;
“More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870.”
7. According to the evidence on record, PW1 Janet Katunge Muthama, the administrator of the deceased’s estate, testified that she witnessed the accident on 24th August 2020 along the Kangundo road. She stated that the accident occurred at night while in the company of her deceased brother. The circumstances of the accident were that they attempted to crossed the road at a section without a zebra crossing or bumps. While she managed to run across, the deceased was knocked down by the appellants’ vehicle and died instantly. She blamed the driver of the vehicle for causing the accident.
8. PW1 further testified that after the accident, occupants of the vehicle attempted to escape. She confirmed that the driver was not intoxicated. She described the deceased as a brother, mentor and provider and have suffered as a result of his death. That the deceased was 42 years old and worked fixing cabros during his lifetime and earned Kshs. 1,500.00 monthly which he used to support her children’s education.
9. In support of her evidence, PW1 produced several documents; a burial permit, death certificate dated 16th November 2020 confirming death due to blunt force trauma from a motor vehicle accident, a chief’s letter dated 29th October 2020, a post mortem report dated 28th August 2020 with similar findings as in the death certificate, a limited grant ad litem, motor vehicle search and receipt both dated 18th January 2021 as well as the demand letter and statutory notice.
10. PW2 PC Hesbon Mugalia testified that an accident occurred on 24th August 2020, along Kangundo road involving the deceased and the appellants vehicle. He produced a police abstract dated 2nd November 2020 confirming the accident.
11. DW1 Charles Gachuhi, testified on behalf of the appellants’ that on the material day, at around 8.00p.m he was driving towards Kangundo from Choka. As he approached Tusky’s supermarket, a man suddenly emerged from the bushes and ran across the road without due care. He stated that the accident occurred due to the deceased’s proximity and his own driving at a high speed. He claimed he was driving at 50KPH. He applied emergency brakes to avoid running over the deceased and stopped the vehicle. He further noted that there were two bumps before the accident scene.
12. It is not disputed that an accident occurred on the night of 24th August 2020 along Kangundo road involving motor vehicle registration number KBV 490Y and the deceased, who was a pedestrian. The 1st appellant was the driver, while the 2nd appellant was the owner of the vehicle. Both PW1 and DW1 witnessed the accident.
13. From their evidence, it is clear that the accident occurred at an undesignated crossing area. DW1 admitted that he was driving at high speed and struck the deceased because of his close proximity. Both parties therefore contributed to the accident, each bearing a duty of care towards other road users.
14. Again, Considering the accident occurred near Tusky’s supermarket, an area likely to have heavy pedestrian traffic, DW1 had a heightened responsibility to drive at a reasonable speed. His claim of driving at 50 KPH is doubtful given the fatal outcome. At the same time, the deceased, crossing at night and at an undesignated point, failed to exercise due care. The trial court correctly apportioned liability at 60:40 in favor of the respondent, and I find no reason to disturb that finding.
15. On the award of general damages, this court adopts the principles set out in the case of Butt vs. Khan (1982 -1988) 1 KAR, where it was held;
“An appellate court will not disturb an award of
damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
16. The trial court awarded kshs 20,000/- for pain and suffering. The evidence adduced shows that the deceased died instantly at the scene. The award of Kshs. 20,000.00 is therefore fair and reasonable. On the award for loss of expectation of life, the trial court awarded the sum of Kshs. 200,00.00 which is a conventional figure. I therefore find no basis to interfere with the award. I also note that awards under these heads ought to be discounted from loss of dependency as set out in Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs. A. M. Lubia & Olive Lubia (1982-88), KAR 727.
17. The estate of the deceased was survived by his siblings. PW1 testified that the deceased supported them, particularly by paying school fees for her children. The deceased’s estate was not survived by a spouse or children. Under section 4 of the Fatal Accidents Act, claims for loss of dependency are restricted to the benefit of the deceased’s wife, husband parent and child of the person whose death was so caused. Discussing this provision, the Court of Appeal in the case of Mwangi & another (Suing as the Legal Representatives of the Late Richard Mwangi Gathoni Deceased) vs. Ngure & another [2023] KECA 448 (KLR) dismissed a claim for loss of dependency brought by a sibling under the Fatal Accidents Act by holding as follows:
“It is therefore clear that it is only in respect of claims brought for the benefit of the wife, husband, parent and child of a deceased under the Fatal Accident Act that ought to be brought in the name of the executor or administrator of the person deceased. Loss of dependency falls under Fatal Accident Act. Accordingly, the 2nd Appellant could not make a claim under the said Act for loss of dependency as he was not a dependent.”
18. Guided by this authority, I find that the trial magistrate erred in awarding damages for loss of dependency. The deceased’s siblings do not fall within the statutory definition of dependents under section 4 of the Fatal Accidents Act. The award of Kshs. 800,000 under this head is therefore set aside.
19. As a result of the above, the appeal partially succeeds and I make the following orders;
i. The trial court finding on liability is sustained at 60:40 in favor of the respondent as against the appellants;
ii. The awards for pain and suffering and loss of expectation of life are sustained at Kshs. 20,000/- and Kshs. 200,000/- respectively;
iii. The award of Kshs 800,000/- for loss of dependency is set aside and substituted with an order that the same dismissed.
iv. Since the appeal partially succeeds, each party shall bear their own costs of the appeal, costs of the lower Court case and interest, remain undisturbed.
It is so ordered.
Dated and Delivered at Machakos this 23rd day of April 2026.
1. By plaint dated 19th January 2021, the respondent averred that the deceased Benjamin Muendo Kiamba was a pedestrian walking off the Kangundo road on 24th August 2020 when motor vehicle motor vehicle registration number KBV 490Y, owned by the 2nd appellant and negligently driven by the 1st appellant, lost control and fatally knocked him down. The deceased, aged 42 years old, was survived by his adult siblings, with the respondent acting as an administrator of his estate. For those reasons, the respondent sought general damages under the Fatal Accidents Act and the Law Reform Act, together with costs and interest.
2. In her judgement dated 24th October 2023, the trial magistrate apportioned liability at 60:40 in favor of the respondent as against the appellants. She then awarded general damages for pain and suffering at Kshs. 20,000/=, Kshs. 200,000/= for loss of expectation of life and kshs 800,000/- for loss of dependency together with costs and interest.
3. Aggrieved by the findings the appellants filed a joint memorandum of appeal raising four grounds challenging the findings of the trial court. They contended that the trial court erred in apportioning liability in the ratio of 60:40 in total disregard of the evidence adduced in court and thereby arriving at a wrong conclusion; erred in failing to hold that the accident was caused by the deceased attempting to cross at an undesignated pedestrian crossing and erred by ignoring the appellant’s evidence, submissions and authorities cited. For those reasons, the appellants prayed that the judgment dated 24th October 2023 be set aside, damages reassessed and costs awarded in their favor both at trial and on appeal.
4. The appeal was canvassed by way of written submissions. The appellants argued that the trial court failed to properly evaluate the evidence on record, resulting in an erroneous apportionment of liability. He submitted that the respondent’s witnesses did not explain how the appellants were negligent in their driving and that all evidence pointed to deceased for causing the accident. For those reasons, counsel urged the court to allow the appeal.
5. The respondent opposed the appeal. They argued that the evidence of PW1 and PW2 was credible unshaken, and established negligence on the part of the appellants. He submitted that, DW1 was not a credible witness and in fact, admitted to driving at a very high speed. He urged the court to dismiss the appeal with costs.
6. I have considered the memorandum of appeal, the rival submissions, and the record of appeal. The duty of the first appellate court is well settled. In of Jabane vs. Olenja [1986] KLR 661, 664 the Court of Appeal held;
“More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870.”
7. According to the evidence on record, PW1 Janet Katunge Muthama, the administrator of the deceased’s estate, testified that she witnessed the accident on 24th August 2020 along the Kangundo road. She stated that the accident occurred at night while in the company of her deceased brother. The circumstances of the accident were that they attempted to crossed the road at a section without a zebra crossing or bumps. While she managed to run across, the deceased was knocked down by the appellants’ vehicle and died instantly. She blamed the driver of the vehicle for causing the accident.
8. PW1 further testified that after the accident, occupants of the vehicle attempted to escape. She confirmed that the driver was not intoxicated. She described the deceased as a brother, mentor and provider and have suffered as a result of his death. That the deceased was 42 years old and worked fixing cabros during his lifetime and earned Kshs. 1,500.00 monthly which he used to support her children’s education.
9. In support of her evidence, PW1 produced several documents; a burial permit, death certificate dated 16th November 2020 confirming death due to blunt force trauma from a motor vehicle accident, a chief’s letter dated 29th October 2020, a post mortem report dated 28th August 2020 with similar findings as in the death certificate, a limited grant ad litem, motor vehicle search and receipt both dated 18th January 2021 as well as the demand letter and statutory notice.
10. PW2 PC Hesbon Mugalia testified that an accident occurred on 24th August 2020, along Kangundo road involving the deceased and the appellants vehicle. He produced a police abstract dated 2nd November 2020 confirming the accident.
11. DW1 Charles Gachuhi, testified on behalf of the appellants’ that on the material day, at around 8.00p.m he was driving towards Kangundo from Choka. As he approached Tusky’s supermarket, a man suddenly emerged from the bushes and ran across the road without due care. He stated that the accident occurred due to the deceased’s proximity and his own driving at a high speed. He claimed he was driving at 50KPH. He applied emergency brakes to avoid running over the deceased and stopped the vehicle. He further noted that there were two bumps before the accident scene.
12. It is not disputed that an accident occurred on the night of 24th August 2020 along Kangundo road involving motor vehicle registration number KBV 490Y and the deceased, who was a pedestrian. The 1st appellant was the driver, while the 2nd appellant was the owner of the vehicle. Both PW1 and DW1 witnessed the accident.
13. From their evidence, it is clear that the accident occurred at an undesignated crossing area. DW1 admitted that he was driving at high speed and struck the deceased because of his close proximity. Both parties therefore contributed to the accident, each bearing a duty of care towards other road users.
14. Again, Considering the accident occurred near Tusky’s supermarket, an area likely to have heavy pedestrian traffic, DW1 had a heightened responsibility to drive at a reasonable speed. His claim of driving at 50 KPH is doubtful given the fatal outcome. At the same time, the deceased, crossing at night and at an undesignated point, failed to exercise due care. The trial court correctly apportioned liability at 60:40 in favor of the respondent, and I find no reason to disturb that finding.
15. On the award of general damages, this court adopts the principles set out in the case of Butt vs. Khan (1982 -1988) 1 KAR, where it was held;
“An appellate court will not disturb an award of
damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
16. The trial court awarded kshs 20,000/- for pain and suffering. The evidence adduced shows that the deceased died instantly at the scene. The award of Kshs. 20,000.00 is therefore fair and reasonable. On the award for loss of expectation of life, the trial court awarded the sum of Kshs. 200,00.00 which is a conventional figure. I therefore find no basis to interfere with the award. I also note that awards under these heads ought to be discounted from loss of dependency as set out in Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs. A. M. Lubia & Olive Lubia (1982-88), KAR 727.
17. The estate of the deceased was survived by his siblings. PW1 testified that the deceased supported them, particularly by paying school fees for her children. The deceased’s estate was not survived by a spouse or children. Under section 4 of the Fatal Accidents Act, claims for loss of dependency are restricted to the benefit of the deceased’s wife, husband parent and child of the person whose death was so caused. Discussing this provision, the Court of Appeal in the case of Mwangi & another (Suing as the Legal Representatives of the Late Richard Mwangi Gathoni Deceased) vs. Ngure & another [2023] KECA 448 (KLR) dismissed a claim for loss of dependency brought by a sibling under the Fatal Accidents Act by holding as follows:
“It is therefore clear that it is only in respect of claims brought for the benefit of the wife, husband, parent and child of a deceased under the Fatal Accident Act that ought to be brought in the name of the executor or administrator of the person deceased. Loss of dependency falls under Fatal Accident Act. Accordingly, the 2nd Appellant could not make a claim under the said Act for loss of dependency as he was not a dependent.”
18. Guided by this authority, I find that the trial magistrate erred in awarding damages for loss of dependency. The deceased’s siblings do not fall within the statutory definition of dependents under section 4 of the Fatal Accidents Act. The award of Kshs. 800,000 under this head is therefore set aside.
19. As a result of the above, the appeal partially succeeds and I make the following orders;
i. The trial court finding on liability is sustained at 60:40 in favor of the respondent as against the appellants;
ii. The awards for pain and suffering and loss of expectation of life are sustained at Kshs. 20,000/- and Kshs. 200,000/- respectively;
iii. The award of Kshs 800,000/- for loss of dependency is set aside and substituted with an order that the same dismissed.
iv. Since the appeal partially succeeds, each party shall bear their own costs of the appeal, costs of the lower Court case and interest, remain undisturbed.
It is so ordered.
Dated and Delivered at Machakos this 23rd day of April 2026.