1. BACKGROUND
1. This appeal emanates from the judgment and decree of the Chief Magistrate’s Court at Machakos in CMCC No. E193 of 2023 delivered on 10th September 2025. The suit was instituted by Elizabeth Mbula Kitaka and Festus Ndeto Kitaka Makumbi, the Appellants herein, as the legal representatives of the estate of Kitaka Makumbi Nguti alias Morris Kitaka Makumbi (Deceased), against Onesmus Maundu Mbumbu, the Respondent herein, following a fatal road traffic accident which occurred on 28th June 2021 along Machakos–Wote Road near Katuaa.
2. The Appellants pleaded that the deceased was walking and/or standing off the road along a pedestrian path when motor vehicle registration number KBV 607M, owned by the Respondent and driven by his driver, servant or agent, lost control and knocked him down. The deceased sustained fatal injuries and was pronounced dead shortly after being taken to Machakos Level 5 Hospital. Further, the Appellants sought general damages under the Law Reform Act and the Fatal Accidents Act, special damages of Kshs.180,230/-, loss of consortium, costs and interest.
3. The Respondent denied ownership, negligence and liability. In the alternative, he pleaded that the accident was caused wholly or partly by the deceased, whom he accused of walking into the vehicle’s path, walking in a zigzag manner, failing to observe traffic rules and being intoxicated.
4. The matter proceeded to hearing. The Appellants called two witnesses, namely PC Gideon Cheptinde and Elizabeth Mbula Kitaka. The Respondent closed his case without calling any witness. The trial court subsequently dismissed the Appellants’ suit on the ground that liability had not been proved.
5. Being dissatisfied with that determination, the Appellants preferred the present appeal through a Memorandum of Appeal dated 9th October 2025. They faulted the learned trial magistrate for failing to evaluate the evidence and submissions, applying the wrong principles in determining liability, failing to appreciate that the Respondent had called no evidence and rendering a judgment that did not contain a concise statement of the case, the issues for determination and adequate reasons for the decision.
6. The appeal was canvassed through written submissions. The Appellants submitted that they proved the occurrence of the accident, the involvement of the Respondent’s vehicle and the deceased’s resulting death. They argued that the Respondent did not call the driver or any other witness to rebut their evidence or substantiate the particulars of contributory negligence pleaded in the defence. They therefore urged this Court to allow the appeal, set aside the dismissal and enter judgment in their favour.
B. ISSUES FOR DETERMINATION
7. Having considered the grounds of appeal, the record of appeal and the Appellants’ written submissions, I find that the issues arising for determination are:
a. Whether the trial court properly evaluated the evidence and gave adequate reasons for its decision;
b. Whether the Appellants proved negligence against the Respondent on a balance of probabilities; and
c. If liability was proved, what damages should be awarded.
C.DUTY OF THIS COURT
8. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and draw its own independent conclusions, while bearing in mind that it did not see or hear the witnesses. The Court of Appeal in Raphael N. Kiburi v Hussein Adendere [2013] KECA 494 (KLR) reiterated that a first appellate court must reappraise the entire evidence and make its own findings, allowing for the advantage enjoyed by the trial court in seeing and hearing the witnesses.
a. Whether the trial court properly evaluated the evidence and gave adequate reasons for its decision
9. Starting with the form of the impugned judgment, Order 21 rule 4 of the Civil Procedure Rules requires a judgment in a defended suit to contain a concise statement of the case, the points for determination, the decision thereon and the reasons for the decision. A court is not required to reproduce every piece of evidence or submission, but it must identify the material issues, evaluate the evidence and explain the basis of its conclusions. In the present case, the trial court concluded that liability had not been proved without adequately analysing the police evidence, the ownership records, the Respondent’s failure to call evidence and the evidential effect of the unsubstantiated particulars of negligence pleaded against the deceased. The judgment therefore fell short of the requirements of Order 21 rule 4.
b) Whether the Appellants proved negligence against the Respondent on a balance of probabilities
Liability
10. On liability, Sections 107, 108 and 109 of the Evidence Act place the burden of proving negligence upon the person who alleges it. The Respondent’s failure to call evidence did not automatically prove the Appellants’ case. The Appellants were first required to establish facts from which negligence could reasonably be inferred. In Mumbi M’Nabea v David M. Wachira [2016] KECA 773 (KLR), the Court of Appeal affirmed that the standard in a civil claim is proof on a balance of probabilities and that where the evidence is evenly balanced, the party bearing the burden of proof fails.
11. PW1, PC Gideon Cheptinde, testified that the accident was recorded at Machakos Police Station and involved the deceased and motor vehicle KBV 607M. He produced the police abstract and attributed blame to the vehicle’s driver. PW2, the deceased’s widow, did not witness the accident but testified that she was informed of it by the police and that the deceased died shortly after being taken to hospital. She produced the grant of letters of administration ad litem, death certificate, post-mortem report, chief’s letter, demand letter, receipts and the NTSA copy of records.
12. The NTSA record identified the Respondent as the registered owner of motor vehicle KBV 607M. The death and post-mortem records established that the deceased died from injuries sustained in the road traffic accident. The occurrence of the accident, the vehicle’s involvement, its ownership and the deceased’s resulting death were therefore proved on a balance of probabilities.
13. The principal question is whether the available evidence proved negligence. The fact that an accident occurred does not, without more, establish negligence. In Wayo & another (Suing on behalf of the Estate of Benjamin Wayo Sailoki, Deceased) v Bwire [2025] KECA 866 (KLR), the Court of Appeal held that the testimony of an investigating officer and the deceased’s son, neither of whom witnessed the accident, was insufficient where there was no eyewitness, sketch plan or credible circumstantial evidence proving negligence. The Court emphasised that a police abstract is not, by itself, conclusive proof of liability.
14. The circumstances of the present case are, however, distinguishable. PW1 did not merely confirm the occurrence of the accident but attributed blame to the driver. More importantly, the Respondent pleaded a specific alternative account alleging that the deceased walked in a zigzag manner, entered the vehicle’s path and was intoxicated. The Respondent nevertheless called neither the driver nor any witness and produced no evidence in support of those allegations. Pleadings are not evidence, and an allegation of contributory negligence must be proved by the party relying upon it.
15. In Moses Theuri Ndumia v I G Transporters Limited & Gregory Mutuka [2018] KECA 297 (KLR), the Court of Appeal restored a finding of liability where the claimant had adduced uncontroverted oral and documentary evidence, including police testimony and a police abstract attributing blame to the respondents, while the respondents called no evidence to challenge that account or prove their allegations of contributory negligence. The Court held that, where only one side adduces evidence, liability should not be apportioned in the absence of evidence supporting the pleaded alternative account.
16. Similarly, the Court of Appeal in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Four by Four Safaris Company Ltd [2004] KECA 65 (KLR) stated that the legal burden rests upon the party asserting the affirmative of an issue, while the evidential burden concerning a particular fact rests on the person who wishes the court to believe in its existence. In the present case, once the Appellants established the collision, ownership, resulting death and police attribution of fault, the evidential burden shifted to the Respondent to support his allegations that the deceased caused or contributed to the accident.
17. A driver owes pedestrians a duty to keep a proper lookout, maintain effective control and take reasonable steps to avoid an accident. The deceased was a pedestrian who was struck by the Respondent’s vehicle and sustained fatal injuries. The police evidence attributed fault to the driver, while the Respondent offered no explanation of how his vehicle came to strike the deceased. In the circumstances, the Appellants’ evidence established a prima facie inference of negligence which was never displaced. The trial court therefore erred in dismissing the claim merely because the Appellants had not called an eyewitness.
18. Upon my independent evaluation of the evidence, I find that the Appellants proved their case against the Respondent on a balance of probabilities. I accordingly set aside the trial court’s finding on liability and substitute it with a finding that the Respondent is 100% liable for the accident.
c) If liability was proved, what damages should be awarded.
Quantum
19. Turning to quantum, the trial court, having dismissed the suit, did not assess the damages that would have been payable had the claim succeeded. A trial court should assess damages even after finding against a claimant on liability because an appellate court may reverse that finding. Since all the relevant evidence is already on record, remitting the suit for assessment would occasion unnecessary delay and expense. This Court shall therefore assess the damages.
20. Regarding pain and suffering, the evidence was that the deceased was taken to Machakos Level 5 Hospital while unconscious and was pronounced dead shortly afterwards. The Appellants proposed Kshs.200,000/=. Damages under this head depend principally upon the period the deceased survived and whether there was evidence of conscious pain. Since the deceased survived only briefly and there is no evidence that he regained consciousness, I find an award of Kshs.50,000/-reasonable.
21. On loss of expectation of life, the deceased was aged 60 years and was said to have been in good health. Taking into account the conventional nature of the award and comparable decisions, I award Kshs.150,000 under this head.
22. As regards loss of dependency, the Appellants pleaded that the deceased was a farmer who maintained his family, but no documentary evidence of his earnings was produced. The absence of documentary proof does not extinguish a claim by a person working in the informal sector, although it makes the multiplier approach inappropriate where the multiplicand cannot be ascertained without speculation.
23. In Samuel Nyoro & another v Joyce Wanjiku Kamau & another (Suing as Legal Representatives of the Estate of Kamau Muturi, Deceased) [2020] eKLR, the High Court upheld a global award of Kshs.600,000 for a deceased aged 78 years where dependency by the widow was established. In this case, the deceased was 60 years old and was survived by his widow and children, including a minor aged 15 years. Taking into account his age, occupation, family circumstances, inflation and the absence of reliable proof of income, I find that a global award of Kshs.1,000,000 is reasonable for loss of dependency.
24. The Appellants also prayed for loss of consortium. That claim was not separately particularised, supported by focused evidence or addressed in their submissions. The widow’s pecuniary loss has, in any event, been considered under loss of dependency. I therefore decline to make a separate award under that head.
25. On special damages, the Appellants pleaded Kshs.180,230 comprising Kshs.1,000 for obtaining letters of administration, Kshs.550 for the motor vehicle search and Kshs.178,680 as funeral expenses. PW2 produced receipts in support of the claim. Special damages must be specifically pleaded and strictly proved, and I am satisfied that the Appellants met that requirement. I accordingly award Kshs.180,230.
26. In awarding damages under both the Law Reform Act and the Fatal Accidents Act, the Court has borne in mind the decision of the Court of Appeal in Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR) that the award made under the Law Reform Act must be taken into account but need not be mathematically deducted from the award under the Fatal Accidents Act. No deduction is warranted in the present case.
27. Flowing from the foregoing, the appeal succeeds. The judgment and decree of the Chief Magistrate’s Court at Machakos delivered on 10th September 2025 in CMCC No. E193 of 2023 are hereby set aside and substituted with judgment in favour of the Appellants.
D. Determination
28. Judgment is hereby entered for the Appellants against the Respondent as follows:
i. Liability -100%;
ii. Pain and suffering -Kshs.50,000;
iii. Loss of expectation of life -Kshs.150,000;
iv. Loss of dependency -Kshs.1,000,000;
v. Special damages -Kshs.180,230;
vi. Total award -Kshs.1,380,230;
vii. General damages shall attract interest at court rates from 10th September 2025 until payment in full;
viii. Special damages shall attract interest at court rates from the date of filing the suit until payment in full; and
ix. The Respondent shall bear the costs of the proceedings before the trial court and the costs of this appeal.
READ AND DATED THIS 20TH AUGUST 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI JUDGE
1. This appeal emanates from the judgment and decree of the Chief Magistrate’s Court at Machakos in CMCC No. E193 of 2023 delivered on 10th September 2025. The suit was instituted by Elizabeth Mbula Kitaka and Festus Ndeto Kitaka Makumbi, the Appellants herein, as the legal representatives of the estate of Kitaka Makumbi Nguti alias Morris Kitaka Makumbi (Deceased), against Onesmus Maundu Mbumbu, the Respondent herein, following a fatal road traffic accident which occurred on 28th June 2021 along Machakos–Wote Road near Katuaa.
2. The Appellants pleaded that the deceased was walking and/or standing off the road along a pedestrian path when motor vehicle registration number KBV 607M, owned by the Respondent and driven by his driver, servant or agent, lost control and knocked him down. The deceased sustained fatal injuries and was pronounced dead shortly after being taken to Machakos Level 5 Hospital. Further, the Appellants sought general damages under the Law Reform Act and the Fatal Accidents Act, special damages of Kshs.180,230/-, loss of consortium, costs and interest.
3. The Respondent denied ownership, negligence and liability. In the alternative, he pleaded that the accident was caused wholly or partly by the deceased, whom he accused of walking into the vehicle’s path, walking in a zigzag manner, failing to observe traffic rules and being intoxicated.
4. The matter proceeded to hearing. The Appellants called two witnesses, namely PC Gideon Cheptinde and Elizabeth Mbula Kitaka. The Respondent closed his case without calling any witness. The trial court subsequently dismissed the Appellants’ suit on the ground that liability had not been proved.
5. Being dissatisfied with that determination, the Appellants preferred the present appeal through a Memorandum of Appeal dated 9th October 2025. They faulted the learned trial magistrate for failing to evaluate the evidence and submissions, applying the wrong principles in determining liability, failing to appreciate that the Respondent had called no evidence and rendering a judgment that did not contain a concise statement of the case, the issues for determination and adequate reasons for the decision.
6. The appeal was canvassed through written submissions. The Appellants submitted that they proved the occurrence of the accident, the involvement of the Respondent’s vehicle and the deceased’s resulting death. They argued that the Respondent did not call the driver or any other witness to rebut their evidence or substantiate the particulars of contributory negligence pleaded in the defence. They therefore urged this Court to allow the appeal, set aside the dismissal and enter judgment in their favour.
B. ISSUES FOR DETERMINATION
7. Having considered the grounds of appeal, the record of appeal and the Appellants’ written submissions, I find that the issues arising for determination are:
a. Whether the trial court properly evaluated the evidence and gave adequate reasons for its decision;
b. Whether the Appellants proved negligence against the Respondent on a balance of probabilities; and
c. If liability was proved, what damages should be awarded.
C.DUTY OF THIS COURT
8. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and draw its own independent conclusions, while bearing in mind that it did not see or hear the witnesses. The Court of Appeal in Raphael N. Kiburi v Hussein Adendere [2013] KECA 494 (KLR) reiterated that a first appellate court must reappraise the entire evidence and make its own findings, allowing for the advantage enjoyed by the trial court in seeing and hearing the witnesses.
a. Whether the trial court properly evaluated the evidence and gave adequate reasons for its decision
9. Starting with the form of the impugned judgment, Order 21 rule 4 of the Civil Procedure Rules requires a judgment in a defended suit to contain a concise statement of the case, the points for determination, the decision thereon and the reasons for the decision. A court is not required to reproduce every piece of evidence or submission, but it must identify the material issues, evaluate the evidence and explain the basis of its conclusions. In the present case, the trial court concluded that liability had not been proved without adequately analysing the police evidence, the ownership records, the Respondent’s failure to call evidence and the evidential effect of the unsubstantiated particulars of negligence pleaded against the deceased. The judgment therefore fell short of the requirements of Order 21 rule 4.
b) Whether the Appellants proved negligence against the Respondent on a balance of probabilities
Liability
10. On liability, Sections 107, 108 and 109 of the Evidence Act place the burden of proving negligence upon the person who alleges it. The Respondent’s failure to call evidence did not automatically prove the Appellants’ case. The Appellants were first required to establish facts from which negligence could reasonably be inferred. In Mumbi M’Nabea v David M. Wachira [2016] KECA 773 (KLR), the Court of Appeal affirmed that the standard in a civil claim is proof on a balance of probabilities and that where the evidence is evenly balanced, the party bearing the burden of proof fails.
11. PW1, PC Gideon Cheptinde, testified that the accident was recorded at Machakos Police Station and involved the deceased and motor vehicle KBV 607M. He produced the police abstract and attributed blame to the vehicle’s driver. PW2, the deceased’s widow, did not witness the accident but testified that she was informed of it by the police and that the deceased died shortly after being taken to hospital. She produced the grant of letters of administration ad litem, death certificate, post-mortem report, chief’s letter, demand letter, receipts and the NTSA copy of records.
12. The NTSA record identified the Respondent as the registered owner of motor vehicle KBV 607M. The death and post-mortem records established that the deceased died from injuries sustained in the road traffic accident. The occurrence of the accident, the vehicle’s involvement, its ownership and the deceased’s resulting death were therefore proved on a balance of probabilities.
13. The principal question is whether the available evidence proved negligence. The fact that an accident occurred does not, without more, establish negligence. In Wayo & another (Suing on behalf of the Estate of Benjamin Wayo Sailoki, Deceased) v Bwire [2025] KECA 866 (KLR), the Court of Appeal held that the testimony of an investigating officer and the deceased’s son, neither of whom witnessed the accident, was insufficient where there was no eyewitness, sketch plan or credible circumstantial evidence proving negligence. The Court emphasised that a police abstract is not, by itself, conclusive proof of liability.
14. The circumstances of the present case are, however, distinguishable. PW1 did not merely confirm the occurrence of the accident but attributed blame to the driver. More importantly, the Respondent pleaded a specific alternative account alleging that the deceased walked in a zigzag manner, entered the vehicle’s path and was intoxicated. The Respondent nevertheless called neither the driver nor any witness and produced no evidence in support of those allegations. Pleadings are not evidence, and an allegation of contributory negligence must be proved by the party relying upon it.
15. In Moses Theuri Ndumia v I G Transporters Limited & Gregory Mutuka [2018] KECA 297 (KLR), the Court of Appeal restored a finding of liability where the claimant had adduced uncontroverted oral and documentary evidence, including police testimony and a police abstract attributing blame to the respondents, while the respondents called no evidence to challenge that account or prove their allegations of contributory negligence. The Court held that, where only one side adduces evidence, liability should not be apportioned in the absence of evidence supporting the pleaded alternative account.
16. Similarly, the Court of Appeal in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Four by Four Safaris Company Ltd [2004] KECA 65 (KLR) stated that the legal burden rests upon the party asserting the affirmative of an issue, while the evidential burden concerning a particular fact rests on the person who wishes the court to believe in its existence. In the present case, once the Appellants established the collision, ownership, resulting death and police attribution of fault, the evidential burden shifted to the Respondent to support his allegations that the deceased caused or contributed to the accident.
17. A driver owes pedestrians a duty to keep a proper lookout, maintain effective control and take reasonable steps to avoid an accident. The deceased was a pedestrian who was struck by the Respondent’s vehicle and sustained fatal injuries. The police evidence attributed fault to the driver, while the Respondent offered no explanation of how his vehicle came to strike the deceased. In the circumstances, the Appellants’ evidence established a prima facie inference of negligence which was never displaced. The trial court therefore erred in dismissing the claim merely because the Appellants had not called an eyewitness.
18. Upon my independent evaluation of the evidence, I find that the Appellants proved their case against the Respondent on a balance of probabilities. I accordingly set aside the trial court’s finding on liability and substitute it with a finding that the Respondent is 100% liable for the accident.
c) If liability was proved, what damages should be awarded.
Quantum
19. Turning to quantum, the trial court, having dismissed the suit, did not assess the damages that would have been payable had the claim succeeded. A trial court should assess damages even after finding against a claimant on liability because an appellate court may reverse that finding. Since all the relevant evidence is already on record, remitting the suit for assessment would occasion unnecessary delay and expense. This Court shall therefore assess the damages.
20. Regarding pain and suffering, the evidence was that the deceased was taken to Machakos Level 5 Hospital while unconscious and was pronounced dead shortly afterwards. The Appellants proposed Kshs.200,000/=. Damages under this head depend principally upon the period the deceased survived and whether there was evidence of conscious pain. Since the deceased survived only briefly and there is no evidence that he regained consciousness, I find an award of Kshs.50,000/-reasonable.
21. On loss of expectation of life, the deceased was aged 60 years and was said to have been in good health. Taking into account the conventional nature of the award and comparable decisions, I award Kshs.150,000 under this head.
22. As regards loss of dependency, the Appellants pleaded that the deceased was a farmer who maintained his family, but no documentary evidence of his earnings was produced. The absence of documentary proof does not extinguish a claim by a person working in the informal sector, although it makes the multiplier approach inappropriate where the multiplicand cannot be ascertained without speculation.
23. In Samuel Nyoro & another v Joyce Wanjiku Kamau & another (Suing as Legal Representatives of the Estate of Kamau Muturi, Deceased) [2020] eKLR, the High Court upheld a global award of Kshs.600,000 for a deceased aged 78 years where dependency by the widow was established. In this case, the deceased was 60 years old and was survived by his widow and children, including a minor aged 15 years. Taking into account his age, occupation, family circumstances, inflation and the absence of reliable proof of income, I find that a global award of Kshs.1,000,000 is reasonable for loss of dependency.
24. The Appellants also prayed for loss of consortium. That claim was not separately particularised, supported by focused evidence or addressed in their submissions. The widow’s pecuniary loss has, in any event, been considered under loss of dependency. I therefore decline to make a separate award under that head.
25. On special damages, the Appellants pleaded Kshs.180,230 comprising Kshs.1,000 for obtaining letters of administration, Kshs.550 for the motor vehicle search and Kshs.178,680 as funeral expenses. PW2 produced receipts in support of the claim. Special damages must be specifically pleaded and strictly proved, and I am satisfied that the Appellants met that requirement. I accordingly award Kshs.180,230.
26. In awarding damages under both the Law Reform Act and the Fatal Accidents Act, the Court has borne in mind the decision of the Court of Appeal in Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR) that the award made under the Law Reform Act must be taken into account but need not be mathematically deducted from the award under the Fatal Accidents Act. No deduction is warranted in the present case.
27. Flowing from the foregoing, the appeal succeeds. The judgment and decree of the Chief Magistrate’s Court at Machakos delivered on 10th September 2025 in CMCC No. E193 of 2023 are hereby set aside and substituted with judgment in favour of the Appellants.
D. Determination
28. Judgment is hereby entered for the Appellants against the Respondent as follows:
i. Liability -100%;
ii. Pain and suffering -Kshs.50,000;
iii. Loss of expectation of life -Kshs.150,000;
iv. Loss of dependency -Kshs.1,000,000;
v. Special damages -Kshs.180,230;
vi. Total award -Kshs.1,380,230;
vii. General damages shall attract interest at court rates from 10th September 2025 until payment in full;
viii. Special damages shall attract interest at court rates from the date of filing the suit until payment in full; and
ix. The Respondent shall bear the costs of the proceedings before the trial court and the costs of this appeal.
READ AND DATED THIS 20TH AUGUST 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI JUDGE