[1] This appeal arises from the decision of the Senior Principal Magistrate in Oyugis Senior Principal Magistrate’s Civil Suit No. 20 of 2020: Everline Mwanzi Onsongo (suing as the Legal Representative of the Estate of Enock Agai Kopiyo, Deceased) v Dickson Moriasi Momanyi. The appellant had been sued in that case in connection with a road traffic accident that occurred on or about the 28 th April 2019. In her Plaint dated 24 th January 2020, the respondent averred that the deceased was lawfully driving his Motor Vehicle Registration No. KBN 228U along Oyugis-Kisumu Road when he was involved in a fatal road accident at Atela.
[2] The respondent had contended that the deceased was violently knocked by Motor Registration No. KCL 378K, Toyota Matatu, belonging to the appellant; and thereby sustained grievous injuries from which he succumbed on the spot. The respondent alleged negligence on the part of the driver of Motor Vehicle Registration No. KCL 378K and supplied particulars of negligence at paragraph 5 of the Plaint. She likewise set out the particulars pursuant to The Law Reform Act and the Fatal Accidents Act as well as particulars of special damages in paragraphs 7 and 8 of the Plaint and, on the basis thereof, prayed for judgment against the defendant for general and special damages together with interest and costs.
[3] The appellant denied the respondent’s allegations vide their Statement of Defence dated 18 th February 2022. In particular, the appellant denied the allegations of negligence, loss of dependency as well as loss of earnings, loss of expectation of life and special damage. In the alternative, the appellant averred that if such occurrence as pleaded by the respondent occurred, the same was due to the negligence of the deceased. He therefore prayed for the dismissal of the respondent’s suit before the lower court.
[4] Upon hearing the parties, the learned magistrate found the respondent’s case proved and entered judgment in her favour as follows:
[a] Liability 100%
[b] Pain and Suffering Kshs. 50,000/=
[c] Loss of dependency Kshs. 3,738,940/=
[d] Loss of expectation of life Kshs. 100,000/=
[e] Special damages Kshs. 222,650/=
[5] Being aggrieved by that decision, the appellants filed this appeal on the following grounds:
[a] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the appellant’s submissions on both points of law and facts.
[b] THAT the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
[c] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
[d] THAT the learned magistrate erred in law and fact in finding the appellants 100% liable in view of the evidence produced before the trial Court and in particular the following;
[e] THAT the learned magistrate erred in law and fact allowing the respondent's claim which was not proved on the balance of probability required by law.
[f] THAT the learned magistrate erred in law and fact in failing to consider all the evidence tendered before court.
[g] THAT the learned trial magistrate misdirected himself and based his findings on wrong considerations.
[h] THAT the learned magistrate erred in law and fact in failing to dismiss the respondent's suit with costs.
[i] THAT the learned Magistrate erred in law and in fact in awarding duplicated damages for loss of expectation of life and loss of dependency.
[j] THAT the learned Magistrate erred in law and in fact in holding that the deceased suffered pain and awarding Kshs. 500,000/= [sic] for pain and suffering.
[k] THAT the learned Magistrate erred in law and in fact in adopting a multiplier of 10 years and an erroneous multiplicand and in failing to consider vicissitudes of life when awarding damages under the Fatal Accidents Act.
[l] THAT the learned Magistrate erred in law and in fact in applying a dependency ratio of 2/3.
[m] THAT trial Magistrate erred in fact and in law in awarding the respondent Kshs. 4,111,590/= as damages under the Fatal Accident's Act which award was too excessive in the circumstances.
[n] THAT the learned magistrate erred in fact and in law in awarding the respondent Kshs. 222,650/=as special damages which award was too excessive in the circumstances with no proof to support the awarded amount.
[o] THAT the learned trial magistrate erred in law and fact in failing to appreciate and understand the provisions of Section 8 of the Traffic Act, Cap 403 Laws of Kenya.
[p] THAT the learned trial magistrate erred in law and fact in over relying on the respondent's evidence and submissions.
[q] THAT the learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions and authorities on quantum on applicable principles for assessment of damages and on liability.
[r] THAT the learned magistrate erred in venturing to have issues as core issues for determination of the case.
[s] THAT the learned trial magistrate's decision albeit a discretionary one was plainly wrong.
[6] Accordingly, the appellant prayed for the following orders:
[a] THAT the Appeal be allowed in its entirety.
[b] THAT the judgment of the lower court be set aside in its entirety and the damages be assessed afresh.
[c] THAT the costs of the Appeal and that of the trial court be awarded to him.
[d] IHAT the respondent's suit in the subordinate court be dismissed with costs.
[e] THAT such further orders be made by this Honourable Court as it may deem fit to grant.
[7] The appeal was urged by way of written submissions; directions to that effect having been given on 30 th September 2025. The appellants relied on their written submissions dated 30 th January 2026. The appellant reiterated the factual basis of his appeal and submitted that, although the respondent adduced evidence in respect of the subject accident, she was not an eye witness and could therefore not state exactly how the accident occurred. The appellant likewise impugned the evidence of the other witnesses who testified in favour of the respondent and urged the Court to find that liability was not established to the requisite standard. He singled out the testimony of PC Lenard Mammao Asoma (at pages 41, 42 and 45 of the Record of Appeal), who testified that the traffic case was still pending under investigation and conceded in cross-examination that he did not know the circumstances of the accident.
[8] Accordingly, the appellant urged the Court to rely on the evidence of DW1 who testified that he was driving towards Sondu and was therefore on his correct lane at the time of the accident. He faulted the learned magistrate for his finding on liability on the ground that the evidence presented indicated that the deceased was at fault for overtaking without due care and/or attention as to whether it was safe so to do. The appellant cited the case Mohammed Kassim & 2 others v Salim Fumo Bwanamkuu [20191 eKLR for the proposition that the deceased ought to have taken care of his own safety while driving on a public road.
[9] It was further the submission of the appellant that where, as in this case, the police investigation was inconclusive as to the exact cause of the accident, the lower court ought to have apportioned liability equally between the two drivers concerned. He referred to the cases of Robert Collins Murimi v Benson Njihia Kamau (Suing as the legal representative of the estate of Veronica Nunu Jihia-Deceased) [2017] eKLR and Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2019] eKLR in which the investigations carried out by the police was inconclusive and the police abstract which was produced as an exhibit reflected that the case was pending under investigation. Liability was apportioned at 50:50 in each instance.
[10] Consequently, the appellant contended that the lower court erred by not taking into consideration the negligent conduct of the deceased motorist, yet the circumstances of the accident indicated that he acted in a negligent manner and was therefore the author of his own misfortune. Thus, the appellant urged the Court to set aside the decision of the learned magistrate on liability and substitute the same with a finding that the deceased was fully to blame for the accident.
[11] On quantum, the appellant addressed each of the awards separately. Hence, on pain and suffering, he submitted that the learned magistrate failed to exercise his discretion fairly and considered irrelevant factors in arriving at the sum of Kshs. 50,000/= which in his view was inordinately high. He pointed out that the respondent and her witnesses all acknowledged that the deceased died on the spot. He therefore urged the Court to set aside the award of Kshs. 50,000/= and substitute it with that of Kshs. 20,000/=.
[12] On loss of dependency, the appellant submitted on the applicable principles, including the principle that an appellate court ought not to interfere with the discretion of the trial court unless the lower court took into account an irrelevant factor or left out of account a relevant factor or, the award was so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. The appellant relied on Kanga v Manyoka [1961] EA 705, Lukenya Ranching and Farming Coop Society Ltd v Kavoloto [1979] EA and Paul Kipsang & anor v Titus Osule Osore [2013] eKLR.
[13] In the appellant’s submission, the award made by the lower court for loss of dependency, in the sum of Kshs. 3,738,940/= was not only inordinately high but also unjustified granted the nature of the evidence presented by the parties. He asserted that no proof was availed by the respondent to demonstrate that the deceased had minor dependents or the respective ages of the children. In his submission there was no basis therefore for the lower court to adopt a dependency ratio of 2/3 as it did.
[14] On the multiplier, the appellant conceded that the deceased was aged 50 years at the time of his demise. He however submitted that it was erroneous for the lower court to simply subtract 50 from the retirement age of 60 years. He nevertheless conceded that a multiplier of 10 years be adopted in this instance. He relied on the case of Kenya Power & Lighting Co. Ltd v Benard Kilonzo (suing as the administrator of the Estate of the late Maurice Mutinda Kilonzo [2012] eKLR in which the court adopted a multiplier of 10 years for a deceased of 21 years. He pointed out that the lower court ought to have taken into account the vicissitudes of life and periodic economic upheavals. He relied on the following cases:
[a] Siyaram Enterprises & Another v Samuel Nyachani Nyachani (Suing On behalf Of the estate Of Vincent Ngwacho Nvachani [2015] eKLR in which a multiplier of 16 years was applied where the deceased was 31 years old;
[b] Broadway Bakery Ltd v Phylis Wakonyu Waweru (Suing as the personal representative of the estate of Samuel Wachira Mwangi [2019] eKLR where the court adopted a multiplier of 15 years for a 30-year-old deceased.
[c] Mars Logistics Limited v Susan Kavogoi (Suing as the administrator a dependant and on behalf of the dependants of Evans Imbalia Andiva) [2021] eKLR the court applied a multiplier of 20 years where the deceased died at the age of 25 years.
[15] On the basis of the above authorities, the appellant proposed that loss of dependency be calculated on the basis of a multiplier of 10 years on the basis of 1/3 ratio of dependency as follows:
1/3 x 10 x 12 x 46,736.75 = Kshs. 1,869,470/=
[16] In conclusion, the appellant prayed that the appeal be allowed with costs and orders granted as prayed by him.
[17] On her part, the respondent relied on her written submissions dated 11 th November 2025 in which she addressed the Court on the issue of quantum only. Accordingly, she proposed a single issue for determination, namely, whether or not the appeal as filed is merited.
[18] In respect of pain and suffering, the respondent relied on Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR and Premier Diary Limited Amarit Singh Sagoo [3013] eKLR for the proposition that awards under this head range between Kshs. 10,000/= and Kshs. 50,000/=. Accordingly, the respondent urged the Court to find that the lower court’s award for pain and suffering was within the acceptable range.
[19] In support of her contention that the lower court’s award for loss of dependency was also justified, the respondent relied on Rono v Kipserem (Suing as the Administrator & Legal Representative or the Estate of Ruth Jepkorir Kiplagat - Deceased) (Civil Appeal 9 of 2023) [2025] (KLR) in which the deceased died at the age of 27 years and was survived by her husband and one child. The court applied a multiplier of 25 and a dependency ratio of 2/3. In the same vein, the respondent submitted that the award of Kshs. 100,000/= for loss of expectation of life was within the range of current awards.
[20] On whether the award for loss of expectation of life should be deducted from the award for loss of dependency, the respondent submitted that courts in Kenya have clarified that what the Law Reform Act requires is for the awards under that under to be taken into account and not necessarily to perform a mathematical deduction. She relied on Hellen Warunguru Waweru (suing as the legal representative of Peter Waweru Mwenja (deceased) V Kiarie Show Stores Limited [2015] eKLR to support her argument.
[21] On special damages, the respondent relied on Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR in which the Court of Appeal held that:
"We do not discern from our reading of this decision a departure from the lime tested principle special damages should not only be specifically pleaded but must also be strictly proved We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein did not fall in that class."
[22] Hence, she urged the Court to dismiss the appeal in entirety with costs.
[23] The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held:
“ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
[24] The record of the lower court shows that the respondent testified on 12 th July 2021 as PW1. She adopted her witness statement dated 21 st January 2020 as her evidence. She told the court that the deceased, Enock Agai Kopiyo, was her husband and that he passed away on 28 th April 2019 in a road traffic accident while driving Motor Vehicle Registration No. KBN 228V. She consequently filed the suit for compensation on behalf of the estate of the deceased.
[25] Among the documents produced by the respondent as exhibits were the Certificate of Death in respect of her husband, Grant of Letters of Administration Ad Litem, Police Abstract, Postmortem Report, Receipts for expenses incurred. The respondent also produced the pay slips for the deceased, promotion letter, search certificate and Certificates of Birth in respect of the children of the deceased. She testified that the deceased, who was 50 years at the time of his demise, left four children and that he was the sole provider for the family and would give him Kshs. 15,000/= for household use. She therefore prayed for compensation for the loss of her husband together with costs of the suit.
[26] Bernard Odhiambo (PW2) told the lower court that he was at Atela Primary School on 28 th April 2019 and was a witness to the subject accident involving Motor Vehicles Registration Nos KBN 228U and KCL 378K. His evidence was that the driver of Motor Vehicle Registration No. KCL 378K was to blame for the accident. He explained that the driver was competing for passengers with the driver of another Matatu at a high speed; and that he jumped over a road bump as he was overtaking and hit the oncoming vehicle No. KBN 228U.
[27] On behalf of the appellant, Cpl Jackson Kisoi testified as DW1. He confirmed that an accident occurred at Chabera area on 28 th April 2019 involving Motor Vehicle Registration No. KCL 378K and KBN 228U, Nissan Saloon; and that the driver of the Motor Vehicle Registration No. KBN 228U died on the spot as a result. His evidence was that the deceased was in the process of overtaking a bus when his vehicle collided head on with the Matatu. He explained that the driver of the Matatu was headed for Kisumu while the Saloon car was headed to the opposite direction.
[28] The appellant also called the driver of Motor Vehicle Registration No. KCL 378K, Dennis Otieno Nyandieka as DW2. He confirmed that he was driving the above mentioned motor vehicle on the date in question and that an accident occurred as alleged as he was following another Matatu that he referred to as Egesa. DW2 however denied that he was chasing the other Matatu or that he was in the process of overtaking Egesa when the accident occurred. He blamed the deceased for the accident and contended that the deceased opted to overtake when it was not safe to do so and collided with his motor vehicle on his correct lane.
[29] Needless to mention that the legal burden of proof was on the respondent as the plaintiff prove her allegations of negligence against the appellant. This is a requirement of Section 107(1) of the Evidence Act, CAP 80, which states:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[30] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[31] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, held:
“The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[32] From the foregoing summary, and having considered the appellant’s Grounds of Appeal and the written submissions filed herein as well as the proceedings it is common ground that an accident occurred on the 28 th April 2019 involving a Toyota Matatu Registration No. KCL 378K and Nissan Saloon Registration No. KBN 228U. The parties are also in agreement that, as a result of that collision the deceased, Enock Agai Kopiyo , sustained grievous injuries from which he succumbed. Hence, the issues for re-evaluation herein are:
[a] Whether the learned magistrate erred in fixing liability at 100% as against the appellant.
[b] Whether the learned magistrate erred in assessing damages payable to the estate of the deceased for the damages occasioned to Motor Vehicle Registration No. KBN 228U.
A. On Liability:
[33] In Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR, the Court of Appeal quoted with approval the following passage from the judgment of Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause…”
[34] From the evidence adduced herein, the learned magistrate was faced with two versions and had to determine who between DW2 and the deceased was to blame. Upon re-evaluation of that evidence it is notable that the police officer who testified on behalf of the appellant to say that the deceased was at fault for overtaking recklessly, conceded that he was not one of the investigating officers; and that he did not visit the scene or record any of the witness statements. He conceded further that he relied on the what he was told by the appellant’s driver. In cross-examination, DW1 conceded that the could not tell whether there was a third matatu , yet according to the investigation diary it was manifest that there was mention of another matatu and a bus. Therefore, on a balance of probabilities, the evidence on record established that the accident was occasioned by the sole negligence of the appellant’s driver.
[35] The trial court was faced with two divergent accounts as to how the accident occurred. He opted to believe the account presented by the respondent. On the basis of the evidence presented, I am unable to fault the lower court for its conclusion. As was observed by Sir Kenneth O'Connor in Peters v Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
B. On Quantum:
[36] It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[37] Similarly, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal held that:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on 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. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages." (Also see Butt v Khan [1981] KLR 349)
[38] On quantum, the first disputed item is the award of Kshs. 50,000/= by the lower court for pain and suffering pursuant to the provisions of the Law Reform Act. Although the respondent defended this award, there was uncontroverted evidence that the deceased died on the spot. It shows that In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR it was pointed out that:
"... it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years..."
[39] I would agree with the position presented by the appellant that the sum be reduced. I find an amount of Kshs. 30,000/= to be fair in the circumstances.
[40] For loss of expectation of life, against the conventional sum has been Kshs. 100,000/=, but awards have varied in the discretion of the trial court. (see Joseph Mugweru Njenga & another v Joseph Kamau Nganga [2018] eKLR). Nevertheless, higher awards have also been made with approval. Hence in Stephen Olieka Oyondi v Emmanuel Aswani Okanga (suing as the administrator and personal representative of the esate of Victor Changaya, Deceased) KEHC 3761 (KLR) an award of Kshs. 200,000/= was upheld on appeal. I therefore find no reason to interfere with the award of Kshs. 200,000/= made by the lower court under the head of loss of expectation of life. I therefore find no reason to interfere with the award made for loss of expectation of life by the lower court.
[41] On loss of dependency under the Fatal Accidents Act, the approach applied in Chunibhai J. Patel and Another v P.F. Hayes and Others [1957] EA 748, by the Court of Appeal for East Africa is that:
"The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase…A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum that the court should apportion among the various dependants."
[42] Thus, in establishing the multiplier, the starting point is the age of the deceased. The uncontroverted evidence adduced before the trial court by the two Respondents was that the deceased died at the age of 50 years; and that he was in good health generally. He was working for the County Government of Homa Bay as a Senior Assistant Public Health Officer. His pay slip for the month of February 2019 was produced by the respondent before the lower court and was marked as Exhibit 6. The
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[2] The respondent had contended that the deceased was violently knocked by Motor Registration No. KCL 378K, Toyota Matatu, belonging to the appellant; and thereby sustained grievous injuries from which he succumbed on the spot. The respondent alleged negligence on the part of the driver of Motor Vehicle Registration No. KCL 378K and supplied particulars of negligence at paragraph 5 of the Plaint. She likewise set out the particulars pursuant to The Law Reform Act and the Fatal Accidents Act as well as particulars of special damages in paragraphs 7 and 8 of the Plaint and, on the basis thereof, prayed for judgment against the defendant for general and special damages together with interest and costs.
[3] The appellant denied the respondent’s allegations vide their Statement of Defence dated 18 th February 2022. In particular, the appellant denied the allegations of negligence, loss of dependency as well as loss of earnings, loss of expectation of life and special damage. In the alternative, the appellant averred that if such occurrence as pleaded by the respondent occurred, the same was due to the negligence of the deceased. He therefore prayed for the dismissal of the respondent’s suit before the lower court.
[4] Upon hearing the parties, the learned magistrate found the respondent’s case proved and entered judgment in her favour as follows:
[a] Liability 100%
[b] Pain and Suffering Kshs. 50,000/=
[c] Loss of dependency Kshs. 3,738,940/=
[d] Loss of expectation of life Kshs. 100,000/=
[e] Special damages Kshs. 222,650/=
[5] Being aggrieved by that decision, the appellants filed this appeal on the following grounds:
[a] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the appellant’s submissions on both points of law and facts.
[b] THAT the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
[c] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
[d] THAT the learned magistrate erred in law and fact in finding the appellants 100% liable in view of the evidence produced before the trial Court and in particular the following;
[e] THAT the learned magistrate erred in law and fact allowing the respondent's claim which was not proved on the balance of probability required by law.
[f] THAT the learned magistrate erred in law and fact in failing to consider all the evidence tendered before court.
[g] THAT the learned trial magistrate misdirected himself and based his findings on wrong considerations.
[h] THAT the learned magistrate erred in law and fact in failing to dismiss the respondent's suit with costs.
[i] THAT the learned Magistrate erred in law and in fact in awarding duplicated damages for loss of expectation of life and loss of dependency.
[j] THAT the learned Magistrate erred in law and in fact in holding that the deceased suffered pain and awarding Kshs. 500,000/= [sic] for pain and suffering.
[k] THAT the learned Magistrate erred in law and in fact in adopting a multiplier of 10 years and an erroneous multiplicand and in failing to consider vicissitudes of life when awarding damages under the Fatal Accidents Act.
[l] THAT the learned Magistrate erred in law and in fact in applying a dependency ratio of 2/3.
[m] THAT trial Magistrate erred in fact and in law in awarding the respondent Kshs. 4,111,590/= as damages under the Fatal Accident's Act which award was too excessive in the circumstances.
[n] THAT the learned magistrate erred in fact and in law in awarding the respondent Kshs. 222,650/=as special damages which award was too excessive in the circumstances with no proof to support the awarded amount.
[o] THAT the learned trial magistrate erred in law and fact in failing to appreciate and understand the provisions of Section 8 of the Traffic Act, Cap 403 Laws of Kenya.
[p] THAT the learned trial magistrate erred in law and fact in over relying on the respondent's evidence and submissions.
[q] THAT the learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions and authorities on quantum on applicable principles for assessment of damages and on liability.
[r] THAT the learned magistrate erred in venturing to have issues as core issues for determination of the case.
[s] THAT the learned trial magistrate's decision albeit a discretionary one was plainly wrong.
[6] Accordingly, the appellant prayed for the following orders:
[a] THAT the Appeal be allowed in its entirety.
[b] THAT the judgment of the lower court be set aside in its entirety and the damages be assessed afresh.
[c] THAT the costs of the Appeal and that of the trial court be awarded to him.
[d] IHAT the respondent's suit in the subordinate court be dismissed with costs.
[e] THAT such further orders be made by this Honourable Court as it may deem fit to grant.
[7] The appeal was urged by way of written submissions; directions to that effect having been given on 30 th September 2025. The appellants relied on their written submissions dated 30 th January 2026. The appellant reiterated the factual basis of his appeal and submitted that, although the respondent adduced evidence in respect of the subject accident, she was not an eye witness and could therefore not state exactly how the accident occurred. The appellant likewise impugned the evidence of the other witnesses who testified in favour of the respondent and urged the Court to find that liability was not established to the requisite standard. He singled out the testimony of PC Lenard Mammao Asoma (at pages 41, 42 and 45 of the Record of Appeal), who testified that the traffic case was still pending under investigation and conceded in cross-examination that he did not know the circumstances of the accident.
[8] Accordingly, the appellant urged the Court to rely on the evidence of DW1 who testified that he was driving towards Sondu and was therefore on his correct lane at the time of the accident. He faulted the learned magistrate for his finding on liability on the ground that the evidence presented indicated that the deceased was at fault for overtaking without due care and/or attention as to whether it was safe so to do. The appellant cited the case Mohammed Kassim & 2 others v Salim Fumo Bwanamkuu [20191 eKLR for the proposition that the deceased ought to have taken care of his own safety while driving on a public road.
[9] It was further the submission of the appellant that where, as in this case, the police investigation was inconclusive as to the exact cause of the accident, the lower court ought to have apportioned liability equally between the two drivers concerned. He referred to the cases of Robert Collins Murimi v Benson Njihia Kamau (Suing as the legal representative of the estate of Veronica Nunu Jihia-Deceased) [2017] eKLR and Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2019] eKLR in which the investigations carried out by the police was inconclusive and the police abstract which was produced as an exhibit reflected that the case was pending under investigation. Liability was apportioned at 50:50 in each instance.
[10] Consequently, the appellant contended that the lower court erred by not taking into consideration the negligent conduct of the deceased motorist, yet the circumstances of the accident indicated that he acted in a negligent manner and was therefore the author of his own misfortune. Thus, the appellant urged the Court to set aside the decision of the learned magistrate on liability and substitute the same with a finding that the deceased was fully to blame for the accident.
[11] On quantum, the appellant addressed each of the awards separately. Hence, on pain and suffering, he submitted that the learned magistrate failed to exercise his discretion fairly and considered irrelevant factors in arriving at the sum of Kshs. 50,000/= which in his view was inordinately high. He pointed out that the respondent and her witnesses all acknowledged that the deceased died on the spot. He therefore urged the Court to set aside the award of Kshs. 50,000/= and substitute it with that of Kshs. 20,000/=.
[12] On loss of dependency, the appellant submitted on the applicable principles, including the principle that an appellate court ought not to interfere with the discretion of the trial court unless the lower court took into account an irrelevant factor or left out of account a relevant factor or, the award was so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. The appellant relied on Kanga v Manyoka [1961] EA 705, Lukenya Ranching and Farming Coop Society Ltd v Kavoloto [1979] EA and Paul Kipsang & anor v Titus Osule Osore [2013] eKLR.
[13] In the appellant’s submission, the award made by the lower court for loss of dependency, in the sum of Kshs. 3,738,940/= was not only inordinately high but also unjustified granted the nature of the evidence presented by the parties. He asserted that no proof was availed by the respondent to demonstrate that the deceased had minor dependents or the respective ages of the children. In his submission there was no basis therefore for the lower court to adopt a dependency ratio of 2/3 as it did.
[14] On the multiplier, the appellant conceded that the deceased was aged 50 years at the time of his demise. He however submitted that it was erroneous for the lower court to simply subtract 50 from the retirement age of 60 years. He nevertheless conceded that a multiplier of 10 years be adopted in this instance. He relied on the case of Kenya Power & Lighting Co. Ltd v Benard Kilonzo (suing as the administrator of the Estate of the late Maurice Mutinda Kilonzo [2012] eKLR in which the court adopted a multiplier of 10 years for a deceased of 21 years. He pointed out that the lower court ought to have taken into account the vicissitudes of life and periodic economic upheavals. He relied on the following cases:
[a] Siyaram Enterprises & Another v Samuel Nyachani Nyachani (Suing On behalf Of the estate Of Vincent Ngwacho Nvachani [2015] eKLR in which a multiplier of 16 years was applied where the deceased was 31 years old;
[b] Broadway Bakery Ltd v Phylis Wakonyu Waweru (Suing as the personal representative of the estate of Samuel Wachira Mwangi [2019] eKLR where the court adopted a multiplier of 15 years for a 30-year-old deceased.
[c] Mars Logistics Limited v Susan Kavogoi (Suing as the administrator a dependant and on behalf of the dependants of Evans Imbalia Andiva) [2021] eKLR the court applied a multiplier of 20 years where the deceased died at the age of 25 years.
[15] On the basis of the above authorities, the appellant proposed that loss of dependency be calculated on the basis of a multiplier of 10 years on the basis of 1/3 ratio of dependency as follows:
1/3 x 10 x 12 x 46,736.75 = Kshs. 1,869,470/=
[16] In conclusion, the appellant prayed that the appeal be allowed with costs and orders granted as prayed by him.
[17] On her part, the respondent relied on her written submissions dated 11 th November 2025 in which she addressed the Court on the issue of quantum only. Accordingly, she proposed a single issue for determination, namely, whether or not the appeal as filed is merited.
[18] In respect of pain and suffering, the respondent relied on Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR and Premier Diary Limited Amarit Singh Sagoo [3013] eKLR for the proposition that awards under this head range between Kshs. 10,000/= and Kshs. 50,000/=. Accordingly, the respondent urged the Court to find that the lower court’s award for pain and suffering was within the acceptable range.
[19] In support of her contention that the lower court’s award for loss of dependency was also justified, the respondent relied on Rono v Kipserem (Suing as the Administrator & Legal Representative or the Estate of Ruth Jepkorir Kiplagat - Deceased) (Civil Appeal 9 of 2023) [2025] (KLR) in which the deceased died at the age of 27 years and was survived by her husband and one child. The court applied a multiplier of 25 and a dependency ratio of 2/3. In the same vein, the respondent submitted that the award of Kshs. 100,000/= for loss of expectation of life was within the range of current awards.
[20] On whether the award for loss of expectation of life should be deducted from the award for loss of dependency, the respondent submitted that courts in Kenya have clarified that what the Law Reform Act requires is for the awards under that under to be taken into account and not necessarily to perform a mathematical deduction. She relied on Hellen Warunguru Waweru (suing as the legal representative of Peter Waweru Mwenja (deceased) V Kiarie Show Stores Limited [2015] eKLR to support her argument.
[21] On special damages, the respondent relied on Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR in which the Court of Appeal held that:
"We do not discern from our reading of this decision a departure from the lime tested principle special damages should not only be specifically pleaded but must also be strictly proved We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein did not fall in that class."
[22] Hence, she urged the Court to dismiss the appeal in entirety with costs.
[23] The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held:
“ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
[24] The record of the lower court shows that the respondent testified on 12 th July 2021 as PW1. She adopted her witness statement dated 21 st January 2020 as her evidence. She told the court that the deceased, Enock Agai Kopiyo, was her husband and that he passed away on 28 th April 2019 in a road traffic accident while driving Motor Vehicle Registration No. KBN 228V. She consequently filed the suit for compensation on behalf of the estate of the deceased.
[25] Among the documents produced by the respondent as exhibits were the Certificate of Death in respect of her husband, Grant of Letters of Administration Ad Litem, Police Abstract, Postmortem Report, Receipts for expenses incurred. The respondent also produced the pay slips for the deceased, promotion letter, search certificate and Certificates of Birth in respect of the children of the deceased. She testified that the deceased, who was 50 years at the time of his demise, left four children and that he was the sole provider for the family and would give him Kshs. 15,000/= for household use. She therefore prayed for compensation for the loss of her husband together with costs of the suit.
[26] Bernard Odhiambo (PW2) told the lower court that he was at Atela Primary School on 28 th April 2019 and was a witness to the subject accident involving Motor Vehicles Registration Nos KBN 228U and KCL 378K. His evidence was that the driver of Motor Vehicle Registration No. KCL 378K was to blame for the accident. He explained that the driver was competing for passengers with the driver of another Matatu at a high speed; and that he jumped over a road bump as he was overtaking and hit the oncoming vehicle No. KBN 228U.
[27] On behalf of the appellant, Cpl Jackson Kisoi testified as DW1. He confirmed that an accident occurred at Chabera area on 28 th April 2019 involving Motor Vehicle Registration No. KCL 378K and KBN 228U, Nissan Saloon; and that the driver of the Motor Vehicle Registration No. KBN 228U died on the spot as a result. His evidence was that the deceased was in the process of overtaking a bus when his vehicle collided head on with the Matatu. He explained that the driver of the Matatu was headed for Kisumu while the Saloon car was headed to the opposite direction.
[28] The appellant also called the driver of Motor Vehicle Registration No. KCL 378K, Dennis Otieno Nyandieka as DW2. He confirmed that he was driving the above mentioned motor vehicle on the date in question and that an accident occurred as alleged as he was following another Matatu that he referred to as Egesa. DW2 however denied that he was chasing the other Matatu or that he was in the process of overtaking Egesa when the accident occurred. He blamed the deceased for the accident and contended that the deceased opted to overtake when it was not safe to do so and collided with his motor vehicle on his correct lane.
[29] Needless to mention that the legal burden of proof was on the respondent as the plaintiff prove her allegations of negligence against the appellant. This is a requirement of Section 107(1) of the Evidence Act, CAP 80, which states:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[30] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[31] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, held:
“The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[32] From the foregoing summary, and having considered the appellant’s Grounds of Appeal and the written submissions filed herein as well as the proceedings it is common ground that an accident occurred on the 28 th April 2019 involving a Toyota Matatu Registration No. KCL 378K and Nissan Saloon Registration No. KBN 228U. The parties are also in agreement that, as a result of that collision the deceased, Enock Agai Kopiyo , sustained grievous injuries from which he succumbed. Hence, the issues for re-evaluation herein are:
[a] Whether the learned magistrate erred in fixing liability at 100% as against the appellant.
[b] Whether the learned magistrate erred in assessing damages payable to the estate of the deceased for the damages occasioned to Motor Vehicle Registration No. KBN 228U.
A. On Liability:
[33] In Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR, the Court of Appeal quoted with approval the following passage from the judgment of Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause…”
[34] From the evidence adduced herein, the learned magistrate was faced with two versions and had to determine who between DW2 and the deceased was to blame. Upon re-evaluation of that evidence it is notable that the police officer who testified on behalf of the appellant to say that the deceased was at fault for overtaking recklessly, conceded that he was not one of the investigating officers; and that he did not visit the scene or record any of the witness statements. He conceded further that he relied on the what he was told by the appellant’s driver. In cross-examination, DW1 conceded that the could not tell whether there was a third matatu , yet according to the investigation diary it was manifest that there was mention of another matatu and a bus. Therefore, on a balance of probabilities, the evidence on record established that the accident was occasioned by the sole negligence of the appellant’s driver.
[35] The trial court was faced with two divergent accounts as to how the accident occurred. He opted to believe the account presented by the respondent. On the basis of the evidence presented, I am unable to fault the lower court for its conclusion. As was observed by Sir Kenneth O'Connor in Peters v Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
B. On Quantum:
[36] It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[37] Similarly, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal held that:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on 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. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages." (Also see Butt v Khan [1981] KLR 349)
[38] On quantum, the first disputed item is the award of Kshs. 50,000/= by the lower court for pain and suffering pursuant to the provisions of the Law Reform Act. Although the respondent defended this award, there was uncontroverted evidence that the deceased died on the spot. It shows that In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR it was pointed out that:
"... it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years..."
[39] I would agree with the position presented by the appellant that the sum be reduced. I find an amount of Kshs. 30,000/= to be fair in the circumstances.
[40] For loss of expectation of life, against the conventional sum has been Kshs. 100,000/=, but awards have varied in the discretion of the trial court. (see Joseph Mugweru Njenga & another v Joseph Kamau Nganga [2018] eKLR). Nevertheless, higher awards have also been made with approval. Hence in Stephen Olieka Oyondi v Emmanuel Aswani Okanga (suing as the administrator and personal representative of the esate of Victor Changaya, Deceased) KEHC 3761 (KLR) an award of Kshs. 200,000/= was upheld on appeal. I therefore find no reason to interfere with the award of Kshs. 200,000/= made by the lower court under the head of loss of expectation of life. I therefore find no reason to interfere with the award made for loss of expectation of life by the lower court.
[41] On loss of dependency under the Fatal Accidents Act, the approach applied in Chunibhai J. Patel and Another v P.F. Hayes and Others [1957] EA 748, by the Court of Appeal for East Africa is that:
"The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase…A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum that the court should apportion among the various dependants."
[42] Thus, in establishing the multiplier, the starting point is the age of the deceased. The uncontroverted evidence adduced before the trial court by the two Respondents was that the deceased died at the age of 50 years; and that he was in good health generally. He was working for the County Government of Homa Bay as a Senior Assistant Public Health Officer. His pay slip for the month of February 2019 was produced by the respondent before the lower court and was marked as Exhibit 6. The
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