' This is an appeal from the Judgment and decree of Hon. C.A. Ocharo (SPM) dated 13.2.2024 arising from Kisii CMCC No. E293 of 2022.
The Memorandum of Appeal dated 1.3.2024 is against the award of liability and general damages. The Appellant posited that the lower court made an award of general damages under pain and suffering, loss of expectation of life and loss of dependency that was inordinately high. The appeal also challenged the finding on liability of 100%.
The Plaint dated 19.4.2022 claimed damages for an accident that occurred on 27.10.2021 when the deceased was walking along Kisii-Migori Road at Denmark area when the Appellant, his driver or agent negligently and dangerously drove motor vehicle Registration No. KCB 257P causing it to violently hit the deceased hence the accident.
The Respondents set forth particulars of negligence for the accident motor vehicle and pleaded special damages of Ksh. 149,000/= as well as general damages under the Law Reform Act and Fatal Accidents Act. The appeal is not on special damages.
The Appellant entered appearance and filed a defence dated 25.7.2022, in which he denied the particulars of negligence and the injuries as pleaded in the plaint. He further set out ten particulars of negligence attributed to the deceased pedestrian. There was a reply to defence filed in respect thereof on 08.08.2022.
The lower court heard the parties and proceeded to render the impugned judgment in which the Court allowed the liability of 100% against the Appellant and awarded Ksh. 30,000/= for pain and suffering, Ksh. 2,164,211.20/= for loss of dependency, and Ksh. 100,000/= for loss of expectation of life. Special damages were awarded at Ksh. 139,000/=.
Aggrieved by the finding of the lower court, the Appellant lodged the appeal herein, and advanced the following grounds.
That the Honourable court erred in law when the same entered judgment on liability, in favour of the respondent as against the appellant at 100% whereas un-rebutted evidence and material were present demonstrating that the respondent was solely responsible.
The learned trial magistrate erred in law when she awarded excessive general damages in the circumstances.
That the learned trial magistrate grossly erred in law when the same disregarded the appellant’s written submissions which properly addressed her on the principles and law applicable in respect of the claim falling for determination before her.
The learned trial magistrate erred in law and in fact by failing to properly evaluate the evidence on record thus reaching to an erroneous decision.
Evidence
At the hearing, PW1 was Sarah Muthoni. The deceased was her husband. He provided medical expenses, school fees and food to the household. On cross examination, it was her stated case that she had 2 children, Edin and Zacharia. They were in school. The deceased was a businessman operating a shop and earned Ksh. 30,000 per month. Her husband was 44 years and he died on the same day.
PW2 was No. 82476 PC Acqinata Shiholi of Nyanchwa Police Station. The matter was investigated by PC Chumo who was on leave. She produced the police abstract. It was her case that the accident in which the deceased died occurred on 27.10.2021 at 5.30 pm. On cross examination she stated that the matter was reported and the Appellant blamed. He was charged with causing death by dangerous driving in Traffic Case No. 114/2020. The case was ongoing after he pleaded not guilty. She testified that the Appellant was carrying 140 bags of coffee and he lost brakes and rammed into the deceased who was walking off the road.
PW3 was Boniface Nyamweya. It was his case that he witnessed the accident. He was 40-50 metres from the scene of the accident. He blamed the accident motor vehicle. The driver of the motor vehicle was driving at high speed, lost control and hit the deceased.
DW1 was Nemwel Oroko Momanyi. He was the driver of the accident motor vehicle. He relied on his witness statement in his evidence in chief. On cross examination, it was his case that the deceased was on a bike heading to Kisumu direction. A Nissan was overtaking a bike and realizing it could not make it, swerved and hit the bike. He was driving at 60 km/h. He denied that the motor vehicle had a problem with brakes, or had any mechanical or brake failure.
Submissions
The Appellant filed submissions dated 28.8.2025 by which he submitted that the court ought to have apportioned liability as he proved that the deceased jumped off the moving bike hence the accident. He submitted that the witness did not witness see the speedometer.
On quantum, it was submitted that Ksh. 10,000/= ought to have been awarded for pain and suffering as the deceased died on the same day. He cited Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative and administrator of the Estate of Phineas Murithi (deceased) [2020] KEHC 4679 (KLR) .
On loss of dependency, it was also submitted that the minimum wage ought to have been capped at Ksh. 8,000/= and a multiplier of 12 years would be appropriate. Therefore, according to him, Ksh. 768,000/= was adequate compensation and the award by the lower court ought to be set side. Reliance was placed on the case of Regina Chelimo Magut & another v Linear Coach Limited [2020] eKLR - Civil Suit 84 of 2004.
There was no any logical explanation for capping the minimum wage at 8,000/=. Reliance was placed on the case of Regina Chelimo Magut & another v Linear Coach Limited [2020] eKLR - Civil Suit 84 of 2004. Incidentally, the cited decision supports the Respondent’s position. In that case, a 45-year-old man was awarded a multiplier of 15 years, while the deceased herein, one year younger was granted 16 years, thereby affirming the reasonableness of the multiplier awarded in this matter.
The appellant proposed the court to reduce from the amount awarded to Ksh. 768,000/=. There were no submissions in any other limb.
On the part of the Respondents, it was submitted that the Respondent proved liability of 100% against the Appellant. Further, that the award on general damages was commensurate and ought not to be disturbed. They relied on the case of Southern Engineering Company Ltd v Mutia [1985] KECA 49 (KLR ) , where the court of appeal stated as follows:
.. the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question. This is shown by a passage from an English case in the House of Lords to which reference has often been made in this Court, but which I think illustrates Mr. Gautama’s point that it is the quality and calibre of the judgment in question which is its most important factor, and that the reference to other and possibly to outside decisions is, in a sense, incidental to that. The passage is from Lord Morris’ speech in H West & Son v Shephard, [1964] AC 326 at page 353, and reads as follows:-
“The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of experience. 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 and 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 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..
Even more definite regarding the upward trend was the statement made by Madan JA twenty-one months later in Ugenya Bus Services v Gachoki Civil Appeal 66 of 1981, where there was a hand injury but also the amputation of the right leg, as follows:-
“I also know that the days of small and stingy awards are gone. They were decidedly miserly in any event, like Kshs. 20,000.00 for the loss of a forearm or Kshs. 50,000.00 for the loss of an eye. Even without the curse of inflation they were niggardly. I remember but ignore them. We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives.”
The foregoing was further reinforced, if such reinforcement were needed, Mr. Gautama said, by the citation of the words of Sachs LJ in the 4th Edition of Kemp & Kemp on Damages, Volume I, where he said: in Dimmock v Miles [1969] CA No 436:
“the notional scales applied by judges when assessing damages in personal injury cases are nowadays apt to change with ever-increasing rapidity. One, but only one, of the causes of such changes is the ever-decreasing worth of monetary units.
Further reliance was on the case of Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KECA 42 (KLR) , where the court of appeal (Kneller, Hancox & Nyarangi, JJA), posited as follows, per Kneller JA:
This court, I remind myself, is only entitled to increase an award of damages by the High Court if it is so inordinately low it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the judge:
(a) proceeded on a wrong principle; or
(b) misapprehended the evidence in some material respect.
On liability they submitted that the court is being invited to make assumptions not borne out of evidence. Reliance was placed inter alia on the case of Kansa v Solanki (1969) EA 318. On the basis of the said case, he submitted that there was a presumption which was proved in evidence that the driver of the accident motor vehicle was negligent. In that case the court of appeal held as follows:
“ Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.
They submitted that direct, circumstantial, oral, as well as documentary evidence showed that the vehicle was driven at high speed and reeled off the road and hit a pedestrian off the road. She blamed the accident on the recklessness of the appellant. They submitted that DW1’s evidence was unreliable, since he alleged that an unknown vehicle hit an unknown motorcycle. She submitted that there was no credible evidence to explicate the appellant from liability.
On quantum they submitted that the appeal is based on no evidence as the award was standard, in all aspects. They submitted that an award of between 10,000/= to Ksh. 100,000/= is still sufficient. Reliance was placed on the case of Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR) , where F. Muchemi, J, stated as follows:
22. Under the Law Reform act, In Rose vs Ford, (1937) AC 826 it was held that damages for loss of expectation of life can be recovered on behalf of a deceased’s estate. Further, in Benham vs Gambling, (1941) AC 157 it was further held that only moderate awards should be granted under this head for the following reasons:
“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not f loss of future pecuniary prospects.”
23. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.
On damages for loss of expectation of life, reliance was placed on the case of Alexander Okinda Anangwe vs Reuben Muriuki Kahuha & Others (2015) eKLR and Nairobi HCCC No 1638 of 1998 Beatrice Wangui Thairu v Ezekiel Barngetuny & Another . She submitted that the award was proper.
On the issue of loss of dependency, the Respondent relied on The Regulation of Wages (General) (Amendment) Order, 2020 , though the applicable regulation containing the relevant wage figures is the Regulation of Wages (General) (Amendment) Order, 2018 , for the category of a shop assistant. Reliance was further placed on the decision in Naomi Momanyi v G4S Security Services Ltd & another [2018] eKLR , where the court held that inflationary trends must be taken into account; otherwise, the resultant awards would cease to be compensatory. It was also submitted that the claim for special damages had been strictly proved and was therefore payable as pleaded.
Analysis
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 , this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."
The Appellant urged the court to find that the lower court erred in finding the Appellant 100% liable. The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the Appellant failed to prove his case. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 , the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
The question then is what amounts to proof on a balance of probabilities . Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
The balance of probabilities is also about what is likely to have happened than the other. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR , the Judges of appeal held that:
“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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden 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…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
The Appellant’s driver herein was driving motor vehicle registration No. KCB 257P along Kisii-Migori road. The evidence of the eye witness, PW3 was that he was overspeeding, while the Appellant testified that he was driving at 60 km/h. PW2’s testimony was that the motor vehicle had faulty brakes and it then veered off the road and overran the deceased off the road. DW1 in his testimony thus disputed over speeding, however, he testified that there was a Nissan which tried to overtake but as it could not manage, it swerved back to the left and hit the motorbike which the deceased was on. This was a clear admission that he lost control of the motor vehicle.
The first question is whether the court should deal with the defence raised by the appellant. Reading though the defence evidence, it is my hope that the culture of lies can be curtailed. Parties and their advocates ought to accord the courts due credit; courts are not institutions to be misled by incredible or fanciful narratives lacking any evidential foundation. It is such unfounded allegations that tend to unnecessarily cloud the real issues for determination and waste valuable judicial time. The court recalls the words of Madan, J (as he then was) when in N vs. N [1991] KLR 685 expressed himself in the following terms:
I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”
What is the essence of asking a pedestrian whether he saw a speedometer? The creation of a motion cycle and unknown Nissan at this stage makes mockery of common sense. Parties cannot just blatantly lie and deviate from their pleadings and expect to get away with it. The court cannot apportion liability to an unknown Nissan, which is a phantom of imagination.
The courts cannot apportion liability with non-parties. In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:
To determine what cause 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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone 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, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.
The question that arises is how to apportion liability between the Appellants and nonparties? There were no third party proceedings against the unknown Nissan. In the case of Abbay Abubakar Haji Patuma Ali Abdulla Vs Freight Agencies Ltd [1984] KECA 14 (KLR) it was held that:
The trial judge rightly applied to the facts before him the relevant law enunciated by Spry, V P in Lakhamshi v Attorney General, (1971) E A 118, 120 for such cases which -
“It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.
Further, in the case of EN v Hussein Dairy Limited & 3 others [2020] KEHC 5366 (KLR) , P.J.O. Otieno, J stated as follows in regard to the attribution of negligence to a nonparty, like the unknown Nissan herein:
17) I agree with the Appellant’s submissions that this point was moot and given that in the absence of the third party, the trial magistrate could not apportion liability in the manner he did. This position was similarly adopted in the case of Pauline Wangare Mburu v Benedict Raymond Kutondo NKU HCCC No. 210 of 2003 [2005] eKLR where the court observed as follows,
[T]he defendant did not deem it necessary to issue a third party notice to enjoin the owner of motor vehicle registration number KAH 129 V to this suit. In the circumstances therefore, it would be moot for this court to apportion liability to a person who is not a party to this suit. The defendants shall therefore bear 100% liability.
Where the Respondents in the lower court proved their case to the required standard, it was the duty of the Appellant to prove contributory negligence which in my view he failed.
There could be no liability against an alleged third party driving the alleged Nissan matatu who was not party to the proceedings as no fault was established against him. In the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, the court of appeal posited as doth:
There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.
It was the duty of the Appellant to take out Third Party Proceedings against a party he wished to take up liability. The Appellant did not issue a Third Party Notice. I have no basis to interfere with the reasoning of the lower court. The Appellant ought to have invoked the provisions of Order 1 Rule 15 of the Civil Procedure Rules as follows:
(1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)-
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them.
Due to failure to join a third party for the alleged Nissan matatu, there were no directions on apportionment of liability. It was thus the duty of the Appellant to prove contributory negligence which in my view they failed. Contributory negligence could not be shelved to a third party who was not a party to the proceedings and the presumption remained that the Appellant was the registered owner of the motor vehicle whose driver was an agent of the Appellant. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that:
“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”.
The evidence of the Appellant was not inconsistent with his negligence for the accident. This is the rule in Embu Road Services V Riimi (1968) EA22 and 25 Mzuri Muhhidin V Nazzar Bin Seif (1961) EA 201, Menezes Stylianicers Ltd CA No.46 of 1962 in which the courts held inter alia that; -
“Where the circumstances of the accident gave rise to the inference of negligence, the defendant, in order to escape liability, has to show that there was a probable cause of the accident, which does not create negligence or that the explanation for the accident was consistent only with absence of negligence. The essential point in this case, therefore is a question of fact, that is whether the explanation given by the Respondent shows that the probable cause of the accident was not due to his negligence or that it was consistent only with absence of negligence”. See also Odungas Digest on Civil case law and Procedure 3rd Edition Vol 7 page 5789 at paragraph (D).
The third party that the Appellant alleged, was not a party to the proceedings and no adverse finding could be made against them. In Kenya Commercial Bank v Suntra Investment Bank Ltd (2015) eKLR , the court observed that:-
“The defence does not even allude to the said third party; the issue has just propped up in the submissions by the Defendant. In any case, the said third party is not a party in the suit and no claim has been laid against it by the Plaintiff or the Defendant. In law, a third party is enjoined in a suit at the instance of the Defend
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The Memorandum of Appeal dated 1.3.2024 is against the award of liability and general damages. The Appellant posited that the lower court made an award of general damages under pain and suffering, loss of expectation of life and loss of dependency that was inordinately high. The appeal also challenged the finding on liability of 100%.
The Plaint dated 19.4.2022 claimed damages for an accident that occurred on 27.10.2021 when the deceased was walking along Kisii-Migori Road at Denmark area when the Appellant, his driver or agent negligently and dangerously drove motor vehicle Registration No. KCB 257P causing it to violently hit the deceased hence the accident.
The Respondents set forth particulars of negligence for the accident motor vehicle and pleaded special damages of Ksh. 149,000/= as well as general damages under the Law Reform Act and Fatal Accidents Act. The appeal is not on special damages.
The Appellant entered appearance and filed a defence dated 25.7.2022, in which he denied the particulars of negligence and the injuries as pleaded in the plaint. He further set out ten particulars of negligence attributed to the deceased pedestrian. There was a reply to defence filed in respect thereof on 08.08.2022.
The lower court heard the parties and proceeded to render the impugned judgment in which the Court allowed the liability of 100% against the Appellant and awarded Ksh. 30,000/= for pain and suffering, Ksh. 2,164,211.20/= for loss of dependency, and Ksh. 100,000/= for loss of expectation of life. Special damages were awarded at Ksh. 139,000/=.
Aggrieved by the finding of the lower court, the Appellant lodged the appeal herein, and advanced the following grounds.
That the Honourable court erred in law when the same entered judgment on liability, in favour of the respondent as against the appellant at 100% whereas un-rebutted evidence and material were present demonstrating that the respondent was solely responsible.
The learned trial magistrate erred in law when she awarded excessive general damages in the circumstances.
That the learned trial magistrate grossly erred in law when the same disregarded the appellant’s written submissions which properly addressed her on the principles and law applicable in respect of the claim falling for determination before her.
The learned trial magistrate erred in law and in fact by failing to properly evaluate the evidence on record thus reaching to an erroneous decision.
Evidence
At the hearing, PW1 was Sarah Muthoni. The deceased was her husband. He provided medical expenses, school fees and food to the household. On cross examination, it was her stated case that she had 2 children, Edin and Zacharia. They were in school. The deceased was a businessman operating a shop and earned Ksh. 30,000 per month. Her husband was 44 years and he died on the same day.
PW2 was No. 82476 PC Acqinata Shiholi of Nyanchwa Police Station. The matter was investigated by PC Chumo who was on leave. She produced the police abstract. It was her case that the accident in which the deceased died occurred on 27.10.2021 at 5.30 pm. On cross examination she stated that the matter was reported and the Appellant blamed. He was charged with causing death by dangerous driving in Traffic Case No. 114/2020. The case was ongoing after he pleaded not guilty. She testified that the Appellant was carrying 140 bags of coffee and he lost brakes and rammed into the deceased who was walking off the road.
PW3 was Boniface Nyamweya. It was his case that he witnessed the accident. He was 40-50 metres from the scene of the accident. He blamed the accident motor vehicle. The driver of the motor vehicle was driving at high speed, lost control and hit the deceased.
DW1 was Nemwel Oroko Momanyi. He was the driver of the accident motor vehicle. He relied on his witness statement in his evidence in chief. On cross examination, it was his case that the deceased was on a bike heading to Kisumu direction. A Nissan was overtaking a bike and realizing it could not make it, swerved and hit the bike. He was driving at 60 km/h. He denied that the motor vehicle had a problem with brakes, or had any mechanical or brake failure.
Submissions
The Appellant filed submissions dated 28.8.2025 by which he submitted that the court ought to have apportioned liability as he proved that the deceased jumped off the moving bike hence the accident. He submitted that the witness did not witness see the speedometer.
On quantum, it was submitted that Ksh. 10,000/= ought to have been awarded for pain and suffering as the deceased died on the same day. He cited Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative and administrator of the Estate of Phineas Murithi (deceased) [2020] KEHC 4679 (KLR) .
On loss of dependency, it was also submitted that the minimum wage ought to have been capped at Ksh. 8,000/= and a multiplier of 12 years would be appropriate. Therefore, according to him, Ksh. 768,000/= was adequate compensation and the award by the lower court ought to be set side. Reliance was placed on the case of Regina Chelimo Magut & another v Linear Coach Limited [2020] eKLR - Civil Suit 84 of 2004.
There was no any logical explanation for capping the minimum wage at 8,000/=. Reliance was placed on the case of Regina Chelimo Magut & another v Linear Coach Limited [2020] eKLR - Civil Suit 84 of 2004. Incidentally, the cited decision supports the Respondent’s position. In that case, a 45-year-old man was awarded a multiplier of 15 years, while the deceased herein, one year younger was granted 16 years, thereby affirming the reasonableness of the multiplier awarded in this matter.
The appellant proposed the court to reduce from the amount awarded to Ksh. 768,000/=. There were no submissions in any other limb.
On the part of the Respondents, it was submitted that the Respondent proved liability of 100% against the Appellant. Further, that the award on general damages was commensurate and ought not to be disturbed. They relied on the case of Southern Engineering Company Ltd v Mutia [1985] KECA 49 (KLR ) , where the court of appeal stated as follows:
.. the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question. This is shown by a passage from an English case in the House of Lords to which reference has often been made in this Court, but which I think illustrates Mr. Gautama’s point that it is the quality and calibre of the judgment in question which is its most important factor, and that the reference to other and possibly to outside decisions is, in a sense, incidental to that. The passage is from Lord Morris’ speech in H West & Son v Shephard, [1964] AC 326 at page 353, and reads as follows:-
“The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of experience. 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 and 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 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..
Even more definite regarding the upward trend was the statement made by Madan JA twenty-one months later in Ugenya Bus Services v Gachoki Civil Appeal 66 of 1981, where there was a hand injury but also the amputation of the right leg, as follows:-
“I also know that the days of small and stingy awards are gone. They were decidedly miserly in any event, like Kshs. 20,000.00 for the loss of a forearm or Kshs. 50,000.00 for the loss of an eye. Even without the curse of inflation they were niggardly. I remember but ignore them. We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives.”
The foregoing was further reinforced, if such reinforcement were needed, Mr. Gautama said, by the citation of the words of Sachs LJ in the 4th Edition of Kemp & Kemp on Damages, Volume I, where he said: in Dimmock v Miles [1969] CA No 436:
“the notional scales applied by judges when assessing damages in personal injury cases are nowadays apt to change with ever-increasing rapidity. One, but only one, of the causes of such changes is the ever-decreasing worth of monetary units.
Further reliance was on the case of Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KECA 42 (KLR) , where the court of appeal (Kneller, Hancox & Nyarangi, JJA), posited as follows, per Kneller JA:
This court, I remind myself, is only entitled to increase an award of damages by the High Court if it is so inordinately low it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the judge:
(a) proceeded on a wrong principle; or
(b) misapprehended the evidence in some material respect.
On liability they submitted that the court is being invited to make assumptions not borne out of evidence. Reliance was placed inter alia on the case of Kansa v Solanki (1969) EA 318. On the basis of the said case, he submitted that there was a presumption which was proved in evidence that the driver of the accident motor vehicle was negligent. In that case the court of appeal held as follows:
“ Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.
They submitted that direct, circumstantial, oral, as well as documentary evidence showed that the vehicle was driven at high speed and reeled off the road and hit a pedestrian off the road. She blamed the accident on the recklessness of the appellant. They submitted that DW1’s evidence was unreliable, since he alleged that an unknown vehicle hit an unknown motorcycle. She submitted that there was no credible evidence to explicate the appellant from liability.
On quantum they submitted that the appeal is based on no evidence as the award was standard, in all aspects. They submitted that an award of between 10,000/= to Ksh. 100,000/= is still sufficient. Reliance was placed on the case of Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR) , where F. Muchemi, J, stated as follows:
22. Under the Law Reform act, In Rose vs Ford, (1937) AC 826 it was held that damages for loss of expectation of life can be recovered on behalf of a deceased’s estate. Further, in Benham vs Gambling, (1941) AC 157 it was further held that only moderate awards should be granted under this head for the following reasons:
“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not f loss of future pecuniary prospects.”
23. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.
On damages for loss of expectation of life, reliance was placed on the case of Alexander Okinda Anangwe vs Reuben Muriuki Kahuha & Others (2015) eKLR and Nairobi HCCC No 1638 of 1998 Beatrice Wangui Thairu v Ezekiel Barngetuny & Another . She submitted that the award was proper.
On the issue of loss of dependency, the Respondent relied on The Regulation of Wages (General) (Amendment) Order, 2020 , though the applicable regulation containing the relevant wage figures is the Regulation of Wages (General) (Amendment) Order, 2018 , for the category of a shop assistant. Reliance was further placed on the decision in Naomi Momanyi v G4S Security Services Ltd & another [2018] eKLR , where the court held that inflationary trends must be taken into account; otherwise, the resultant awards would cease to be compensatory. It was also submitted that the claim for special damages had been strictly proved and was therefore payable as pleaded.
Analysis
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 , this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."
The Appellant urged the court to find that the lower court erred in finding the Appellant 100% liable. The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the Appellant failed to prove his case. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 , the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
The question then is what amounts to proof on a balance of probabilities . Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
The balance of probabilities is also about what is likely to have happened than the other. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR , the Judges of appeal held that:
“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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden 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…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
The Appellant’s driver herein was driving motor vehicle registration No. KCB 257P along Kisii-Migori road. The evidence of the eye witness, PW3 was that he was overspeeding, while the Appellant testified that he was driving at 60 km/h. PW2’s testimony was that the motor vehicle had faulty brakes and it then veered off the road and overran the deceased off the road. DW1 in his testimony thus disputed over speeding, however, he testified that there was a Nissan which tried to overtake but as it could not manage, it swerved back to the left and hit the motorbike which the deceased was on. This was a clear admission that he lost control of the motor vehicle.
The first question is whether the court should deal with the defence raised by the appellant. Reading though the defence evidence, it is my hope that the culture of lies can be curtailed. Parties and their advocates ought to accord the courts due credit; courts are not institutions to be misled by incredible or fanciful narratives lacking any evidential foundation. It is such unfounded allegations that tend to unnecessarily cloud the real issues for determination and waste valuable judicial time. The court recalls the words of Madan, J (as he then was) when in N vs. N [1991] KLR 685 expressed himself in the following terms:
I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”
What is the essence of asking a pedestrian whether he saw a speedometer? The creation of a motion cycle and unknown Nissan at this stage makes mockery of common sense. Parties cannot just blatantly lie and deviate from their pleadings and expect to get away with it. The court cannot apportion liability to an unknown Nissan, which is a phantom of imagination.
The courts cannot apportion liability with non-parties. In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:
To determine what cause 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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone 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, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.
The question that arises is how to apportion liability between the Appellants and nonparties? There were no third party proceedings against the unknown Nissan. In the case of Abbay Abubakar Haji Patuma Ali Abdulla Vs Freight Agencies Ltd [1984] KECA 14 (KLR) it was held that:
The trial judge rightly applied to the facts before him the relevant law enunciated by Spry, V P in Lakhamshi v Attorney General, (1971) E A 118, 120 for such cases which -
“It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.
Further, in the case of EN v Hussein Dairy Limited & 3 others [2020] KEHC 5366 (KLR) , P.J.O. Otieno, J stated as follows in regard to the attribution of negligence to a nonparty, like the unknown Nissan herein:
17) I agree with the Appellant’s submissions that this point was moot and given that in the absence of the third party, the trial magistrate could not apportion liability in the manner he did. This position was similarly adopted in the case of Pauline Wangare Mburu v Benedict Raymond Kutondo NKU HCCC No. 210 of 2003 [2005] eKLR where the court observed as follows,
[T]he defendant did not deem it necessary to issue a third party notice to enjoin the owner of motor vehicle registration number KAH 129 V to this suit. In the circumstances therefore, it would be moot for this court to apportion liability to a person who is not a party to this suit. The defendants shall therefore bear 100% liability.
Where the Respondents in the lower court proved their case to the required standard, it was the duty of the Appellant to prove contributory negligence which in my view he failed.
There could be no liability against an alleged third party driving the alleged Nissan matatu who was not party to the proceedings as no fault was established against him. In the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, the court of appeal posited as doth:
There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.
It was the duty of the Appellant to take out Third Party Proceedings against a party he wished to take up liability. The Appellant did not issue a Third Party Notice. I have no basis to interfere with the reasoning of the lower court. The Appellant ought to have invoked the provisions of Order 1 Rule 15 of the Civil Procedure Rules as follows:
(1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)-
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them.
Due to failure to join a third party for the alleged Nissan matatu, there were no directions on apportionment of liability. It was thus the duty of the Appellant to prove contributory negligence which in my view they failed. Contributory negligence could not be shelved to a third party who was not a party to the proceedings and the presumption remained that the Appellant was the registered owner of the motor vehicle whose driver was an agent of the Appellant. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that:
“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”.
The evidence of the Appellant was not inconsistent with his negligence for the accident. This is the rule in Embu Road Services V Riimi (1968) EA22 and 25 Mzuri Muhhidin V Nazzar Bin Seif (1961) EA 201, Menezes Stylianicers Ltd CA No.46 of 1962 in which the courts held inter alia that; -
“Where the circumstances of the accident gave rise to the inference of negligence, the defendant, in order to escape liability, has to show that there was a probable cause of the accident, which does not create negligence or that the explanation for the accident was consistent only with absence of negligence. The essential point in this case, therefore is a question of fact, that is whether the explanation given by the Respondent shows that the probable cause of the accident was not due to his negligence or that it was consistent only with absence of negligence”. See also Odungas Digest on Civil case law and Procedure 3rd Edition Vol 7 page 5789 at paragraph (D).
The third party that the Appellant alleged, was not a party to the proceedings and no adverse finding could be made against them. In Kenya Commercial Bank v Suntra Investment Bank Ltd (2015) eKLR , the court observed that:-
“The defence does not even allude to the said third party; the issue has just propped up in the submissions by the Defendant. In any case, the said third party is not a party in the suit and no claim has been laid against it by the Plaintiff or the Defendant. In law, a third party is enjoined in a suit at the instance of the Defend
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