[1] The two appellants, Gen Cargo Transporters Limited and Rongai Workshop, were sued before the lower court by the two respondents, Isaac K. Ngetich and Jane Jelimo, in their capacity as the administrator of the estate of Rogers Kiprop (hereinafter the deceased). Their cause of action was that, at all material times, the two appellants were the registered and beneficial owners of Motor Vehicle Registration No. KCH 150J/ZC 8611; and that the said motor vehicle was so negligently driven along the Kapsabet-Eldoret road that it veered off the road and knocked the deceased as he was cycling off the left side of the road. The deceased suffered severe injuries from which he thereafter succumbed.
[2] The respondents supplied particulars of negligence, injuries, as well as special damages at paragraphs 5 and 6 of their Plaint dated 14 th November 2023. They likewise pleaded the requisite particulars pursuant to the relevant provisions of the Law Reform Act, Cap 26, and the Fatal Accidents Act, Cap 31 of the Laws of Kenya. They prayed for compensation on behalf of the deceased’s estate by way of general damages, special damages, interest and costs of the suit. They also prayed for any other relief the Court may deem fit and just to grant.
[3] The appellants denied the claim vide their Statement of Defence dated 11 th December 2023. They denied that the deceased was involved in a road traffic accident as alleged, or that the accident was solely caused by the negligence of their driver or agent. To the contrary, it was the contention of the appellants that, if indeed an accident occurred as alleged before the lower court, then it was occasioned by or contributed to by the negligence of the deceased. They likewise provided the particulars of negligence, as alleged by them, at paragraph 7 of their Defence.
[4] Upon hearing the parties and their witnesses, the learned magistrate found the appellant wholly liable for the accident and assessed damages payable by them as follows together with interest and costs:
[a] General damages
Under the Law Reform Act
[i] Pain and suffering Kshs. 100,000/=
[ii] Loss of expectation of life Kshs. 200,000/=
Under the Fatal Accidents Act Kshs. 1,500,000/=
[b] Special Damages Kshs. 130,000/=
Total Kshs. 1,930,000/=
[5] Aggrieved by the decision of the lower court, the appellant filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in law and fact in holding them 100% liable contrary to the evidence on record.
[b] That the learned magistrate erred in law and fact in failing to dismiss the respondents’ case.
[c] That the learned magistrate erred in law and fact in failing to find that the respondents had failed to prove their case on a balance of probabilities.
[d] That the learned trial magistrate misdirected himself by basing his findings on wrong considerations.
[e] That the learned magistrate erred in law and fact in awarding general damages that were inordinately excessive.
[f] 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.
[g] That the learned magistrate erred in law and fact by using the wrong principles to assess damages.
[6] On account of the foregoing grounds , the appellants prayed that their appeal be allowed in its entirety, and that:
[a] The judgment of the lower court be set aside.
[b] An order be made dismissing the respondent’s suit.
[c] The costs of the appeal and of the lower court be paid to them.
[7] The appeal was canvassed by way of written submissions. The appellants relied on their written submissions dated 31 st January 2026 and proposed two issues for determination, namely:
[a] Whether the trial court erred in holding the appellants 100% liable for the accident;
[b] Whether the damages awarded by the trial court are excessive.
[8] On liability, the appellants submitted that the burden of proof was on the respondents to prove their allegations of negligence satisfactorily. They made reference to Beauty Line Limited v David Njuguna Gichari [2012] eKLR, Pesa Hamisi v P.N. Mashru Limited [2020] eKLR and Donogue v Stevenson [1932] AC 562 for the submission that although a driver owes the general duty of care to other road users, it must be demonstrated that the driver, in this instance was negligent; which fact was not proved before the lower court. They pointed out that PW3, a police officer who testified on behalf of the respondents, merely produced the Police Abstract and conceded that he was not the investigating officer, he did not visit the scene of accident and did not have the sketch map to show the point of impact or such other details from which liability could be inferred.
[9] It was further the submission of the appellants that the Police Abstract exhibited by PW3 indicated that the case was pending under investigations and therefore no one had been charged with any traffic offence in relation to the accident. It was therefore the submission of the appellants that, since neither PW1 nor PW2 witnessed the accident, liability was not proved on a balance of probabilities. On the authority of Postal Corporation of Kenya & another v Dickens Munayi [2014] eKLR, among others, the appellants submitted that, in the absence of a sketch map of the scene of the subject accident, it could not be ascertained who was to blame for the accident.
[10] Consequently, the appellants contended that without proof of negligence on the part of their driver, there was no basis for the lower court’s finding on liability as no causal link was proved. They relied on Samuel Kimani & another v Mary Wanjiku Kamau & another [2019] eKLR in support of their argument that an injury per se is not sufficient to hold someone liable.
[11] On quantum, the appellants submitted that, although the lower court awarded Kshs. 100,000/= under the head of pain and suffering, the evidence presented showed the deceased died on the spot or moments after the accident. In their proposal, Kshs. 10,000/= would have sufficed. They based their argument on Moses Koome Mithika & another v Doreen Gatwiri & another (suing as the legal representative and administrator of the Estate of Phineas Murithi (deceased) [2020] eKLR in which the court awarded Kshs. 10,000/= for pain and suffering for death on the spot.
[12] The appellants also urged the Court to find that the award made by the court on loss of expectation of life was excessive. They relied on B enham v Gambling [1941] AC 157 as cited in the case of Zipporah Wambui v Nelly Mukite Wanyama (suing as the widow and administrator of the Estate of the late Gorge Nafula Wanjala) & another, Godana Guyo Halake & another v Patrick Ndeli Ndoli & another [2017] eKLR and Doris Nyaguthi v Kariuki Kago, Nairobi HCCC No. 2152 of 2000 to support their proposal of Kshs. 70,000/= under the head of loss of expectation of life. Their argument was that the damages are in respect of loss of life, and not of future pecuniary prospects.
[13] Under the head of loss of dependency, for which the lower court awarded Kshs. 1,500,000/= the appellants submitted that it was imperative for dependency to be proved. They argued that in the absence of evidence of dependency, there was no basis for the award. They relied on Kemfro Africa Limited t/a Meru Express Services & another v Lubia & another (No. 2) and Livingstone Mwambugu Mwakungo & another v Sarah Anyango Jaoko [2016] eKLR among other authorities for the proposition that dependency goes to the core of any claim under the Fatal Accidents Act and must be proved on a balance of probabilities.
[14] Lastly, the appellants submitted that, since the deceased was a student with no known source of income, the learned magistrate ought to have adopted the global sum method in determining loss of dependency. They relied on Simon Kibet Langat & another v Miriam Wairimu Ngugi (suing as the administrator of the Estate of Daniel Mwiruti Ngugi [2016] eKLR, Oshivji Kuvenji & another v James Mohammed Ongenge [2012] eKLR, Palm Transporters & another v W W W [2015] eKLR, Chen Wembo & 2 others v I K K & another and Moranga Abel Nyakenyanya v Jackson Kichwen [1999] eKLR to support their proposal that an award of Kshs. 500,000/= would suffice under the head of loss of dependency.
[15] The appellants also impugned the lower court’s award under the head of special damages. On the authority of Hahn v Singh [1985] KECA 129 (KLR) they argued that the award of Kshs. 300,000/= was neither proved nor justified, contending that only Kshs. 260,000/= was pleaded and proved. Accordingly, they urged the Court to set aside the award of Kshs. 300,000/= for special damages and substitute it with an award of Kshs. 260,000/= only.
[16] The respondents filed written submissions dated 9 th March 2026. They provided a summary of their pleadings before the lower court, the evidence adduced by them and the judgment of the lower court. They were in agreement with the appellants as to the issues for determination in this appeal, namely:
[a] Whether the trial court erred in holding the appellants 100% liable for the accident; and,
[b] Whether the quantum of damages awarded was excessive.
[17] The respondents submitted that the trial court correctly found the appellants 100% liable as the evidence adduced established negligence on a balance of probabilities. They relied on the case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR to support their argument on the burden of proof. They further submitted that, although they discharged the legal burden of proof, the appellants failed to be prove the particulars of negligence, as alleged by them, on the part of the deceased as no evidence was adduced by them in support thereof. They also relied on the doctrine of res ipsa loquitor and submitted that the plaintiff did not have to show any specific acts of negligence apart from demonstrating that under normal circumstances the accident should not have occurred; and that the mere fact of its occurrence was proof of negligence of the appellants’ driver or agent.
[18] In response to the submissions of the appellant on the probative value of the evidence of PW3 and the failure to produce a sketch plan of the scene of the accident, the respondents submitted that the circumstances were such that the deceased was hit from behind and ran over by the appellants’ driver. They posited therefore that the court did not require a sketch plan to determine the point of impact as the deceased had right of way as other motorists going towards the same direction. The respondents relied on Shiva Carriers Ltd & another v Mejumaa Said Abdalla & another [2020] KEHC 5284 (KLR) and Multiple Hauliers (EA) Ltd v Ustus Mutua Malundu & 2 others [2017] KEHC 4278 (KLR) and urged the Court to find that the appellants’ driver was wholly liable for the accident.
[19] On quantum, the respondents underscored their evidence to the effect that the deceased died, not on the spot, but on his way to the hospital. They defended the lower court’s award of Kshs. 100,000/= and urged the court to consider the comparable cases of Stanwel Holdings Limited & another v Rachael Haluku Emanuel & another [2020] eKLR and Oyondi v Okanga (suing as the administrator and personal representative of the Estate of Victor Changaya, Deceased) [2023] KEHC 3761 in which a similar amount was awarded under the head of pain and suffering.
[20] The respondents also defended the lower court’s award of Kshs. 200,000/= for loss of expectation of life and highlighted the fact that the deceased was a student aged 19 years at the time; and that he was healthy and was expected to have remained productive for a longer time. They relied on Joseph Mugweru Njenga & another v Joseph Kamau Nganga [2018] eKLR where an award of Kshs. 300,000/= was made in respect of an 18-year-old victim.
[21] The respondents conceded that dependency must be proved on a balance or probabilities and urged the Court to find that, in this instance, they demonstrated that the deceased was a bright Form 3 student who was helping with family chores. They also stated that his mother and grandmother relied on him and expected support from him in his adulthood. The respondents contended that the deceased’s potential was duly proved by them and therefore the award of Kshs. 1,500,000/= under the head of loss of dependency should not be disturbed.
[22] The respondents further submitted that it was incumbent upon the appellants to demonstrate that the trial court committed an error of principle or made an award that was inordinately high to warrant interference by this Court. They relied on Kenya Power & Lighting Company v D B O (suing as the next friend and father to D M, Deceased) [2024] KEHC 15436 (KLR) in which a similar award of Kshs. 1,500,000/= was upheld on appeal, taking into account the rate of inflation.
[23] On the basis of their submissions, the respondents urged for the dismissal of the appeal with costs.
[24] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...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..."
[25] The 1 st respondent, Isaac K. Ngetich , testified before the lower court on 29 th August 2024 as PW1 and adopted his witness statement dated 14 th November 2023 in which he stated that, on the 31 st March 2023 at about 6:30 p.m. he received a call that Rogers Kiprop (the deceased) had been involved in a road traffic accident while cycling back home from school. He rushed to Mosoriot Sub County Hospital on being told that he had been taken there for treatment but on arrival was told that the deceased had passed away as a result of the injuries he had sustained. They made arrangements to move the body to Samaritan Farewell Home for preservation pending postmortem examination.
[26] PW1 further stated that, he got to learn that the deceased had been hit by Motor Vehicle Registration No. KCH 150J/ZC 8611 while lawfully peddling his bicycle along the Kapsabet-Eldoret road on his correct side of the road. He added that, as the guardian of the deceased, he reported the incident to Kapsabet Police Station for appropriate action. They later conducted a search and got to learn that the subject motor vehicle belonged to the appellants.
[27] It was further the testimony of PW1 that, at the time of his death, the deceased was aged 19 years; and that he led a vibrant and healthy life. He further stated that the deceased was a Form 2 student and aspired to be an engineer when he grew up. He also mentioned that, as a guardian, he had hopes that the deceased would grow up into a fine young man who would help him in his old age. He testified that the deceased’s father had died and, as his uncle he was the one taking care of his welfare.
[28] In addition to producing their List and Bundle of Documents before the lower court as exhibits, PW1 mentioned the names of the other dependants of the deceased as follows:
[a] Jane Jelimo - Mother
[b] Flora Tuwei - Grandmother
[29] Jane Jelimo , the deceased’s mother, testified as PW2 before the lower court. She likewise adopted her witness statement dated 14 th November 2023. Her evidence was along similar lines as the evidence of PW1. She added that, as she was preparing to go to hospital upon receiving the report of the accident, she received information that her son had passed away. She testified that the deceased was a student at the time and was aged 19 years; and that he would help around the homestead with normal chores. PW2 further stated that like any other parent, she hoped that the deceased would grow up into a fine young man who would help her in her old age.
[30] The last witness for the respondents was PC Cheserek Kiptoo (PW3) who was then attached to Kapsabet Police Station on traffic duties. His evidence was that an accident occurred on the 31 st August 2023 at about 18:30 hours along the Kapsabet-Eldoret road involving Motor Vehicle Registration No. No. KCH 150J/ZC 8611 and the deceased in this matter. He stated that the motor vehicle hit the cyclist from behind as they were heading towards the same direction; and that the cyclist died on his way to the hospital. He confirmed that the accident was reported at their station and a Police Abstract issued which was exhibited before the lower court as the Plaintiff’s Exhibit 5.
[31] PW3 conceded in cross-examination that he was not the investigating officer, and that his evidence was premised on the records kept at their station. He also conceded that he did not visit the scene and that, although from their investigations the driver of the subject motor vehicle was found to be at fault, he had not been charged by the time the Police Abstract was issued. He explained that they were still awaiting the directions of the Director of Public Prosecutions on whether or not to charge.
[32] The appellants opted to adduce no evidence in defence. Submissions were thereafter invited before the lower court rendered the impugned judgment.
[33] Section 107(1) of the Evidence Act, placed the legal burden of proof was on the respondents as the plaintiffs before the lower court. That provision is explicit that:
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 .
[34] 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) the Court of Appeal 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…”
[35] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ 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.”
[36] And, as aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[37] As has been pointed out herein above, the respondent supplied particulars of negligence at paragraph 5 of their Plaint. In essence, they alleged that the appellants’ driver drover the suit motor vehicle recklessly and without due care or attention to other road users. While it is true that neither of them witnessed the accident, they called a police officer, PW3, whose testimony was that the motor vehicle and the deceased cyclist were headed in the same direction; and that the deceased was ahead. He further testified that, from the independent investigations conducted, the driver of the motor vehicle was found to be at fault.
[38] The evidence presented by the respondent demonstrated that the deceased was hit from behind; and that he was riding on the same side of the road, heading towards the same direction as the subject motor vehicle. No contrary explanation was proffered by the appellants. Authorities abound for the position that under those circumstances, the driver of the motor vehicle was obliged to keep a safe distance from the deceased. For instance, in Shiva Carriers Ltd & another v Mejumaa Said Abdalla & another (supra) it was held:
29. Was liability proved in these circumstances? Going through the evidence adduced in this matter, the evidence laid before the trial court by the Respondents to the effect that the deceased’s motorcycle was hit from behind by the 1 st Appellant’s motor vehicle, was prima facie evidence of negligence on the part of the driver thereof (the 2 nd Appellant). This explains why the 2 nd Appellant was charged with the offence of causing death by dangerous driving.
30. In those circumstances the Appellants especially the 2 nd Appellant was under a duty to explain from his perspective how the accident occurred, and to provide evidence of the alleged negligence of the Deceased pleaded in the statement of defence. By laying before the trial court evidence that Motorcycle was hit from behind by the 1 st Appellant’s motor vehicle which was being driven from behind, and without any offer of explanation by the Appellants how the 1 st Appellant’s motor vehicle came to hit the Deceased’s motor cycle from behind, the Appellants discharged the burden of proof.
31. Every driver on a public road is duty bound to be on the lookout at all times to avoid possible injury and losses to other road users. Since the Deceased’s motorcycle was hit from behind, it would have been very difficult, if not impossible, for the deceased to avoid the accident. The argument by the Appellants that the deceased was the author of his misfortune is not supported by the evidence on record.
[39] In Samuel Stephen Were v Sukari Industries Ltd [2018] eKLR, a similar viewpoint was expressed as hereunder:
“…the evidence, taken as a whole, points to the fact that the tractor was being driven behind the motorbike at a high speed when it lost control and hit the motorbike ahead of it. Since the motorbike was hit from behind, it would have been very difficult, if not impossible for the deceased to avoid the accident.”
[40] Accordingly, the evidential burden of proof shifted to appellants to explain the circumstances in which the accident occurred. Having failed to avail any proof and instead opted to rely on written submissions, it is plain that the respondents’ evidence was unassailed. It is noted that they instead opted to rely on their written submissions, regarding which the Court of Appeal held as follows in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLR:
“…Submissions cannot take the place of evidence. The 1 st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “ marketing language ”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented…”
[41] It is therefore my finding that, on the basis of the evidence presented before the lower court by the respondents, liability was established at 100%.
[42] On quantum, the first disputed item is the award of Kshs. 100,000/= by the lower court for pain and suffering pursuant to the provisions of the Law Reform Act. Although the appellants disputed this sum on the assumption that the deceased died on the spot, the evidence presented before the lower court is to the contrary. It shows that the deceased died while undergoing treatment. 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..."
[43] As pointed out by the respondents, in Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another (supra) Kshs. 100,000/= was awarded for pain and suffering in a case where the deceased died on the spot. Since the award by the lower court in this case was within the acceptable range, I find no basis for faulting the lower court’s decision under that head.
[44] 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.
[45] On loss of dependency under the Fatal Accidents Act, the learned magistrate employed the global approach in awarding the sum of Kshs. 1,500,000/=. She took into account that the deceased was a student at the time and had a bright future ahead of him. That is the correct approach in the peculiar circumstances of this case and therefore the arguments by the appellants that it was imperative to prove dependency are misplaced. The Court of Appeal made it clear in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] eKLR that:
"...in the context of Kenya, and that is the relevant context, parents of a deceased young man who would have been preparing himself for a career with a view to looking after his parents in their old age suffer real economic loss. The financial assistance relative to the ability of the deceased which is normally expected and readily provided is obliterated by the death. The cost of bringing up the deceased ... are extinguished. Now, almost all assistance of this kind would in the conditions of Kenya be almost wholly economic in substance. So much so that the loss caused by the death could never be adequately compensated in monetary terms. No question of a windfall to the parents can therefore reasonably arise."
[46] Similarly in Kenya Breweries Ltd v Saro [1991] eKLR, the Court of Appeal held:
"...in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four year old one who has not been to school and whose abilities are yet not ascertained...But the issue of some damages being payable in both cases is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and do invariably take care of their aged parents...In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and ir
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[2] The respondents supplied particulars of negligence, injuries, as well as special damages at paragraphs 5 and 6 of their Plaint dated 14 th November 2023. They likewise pleaded the requisite particulars pursuant to the relevant provisions of the Law Reform Act, Cap 26, and the Fatal Accidents Act, Cap 31 of the Laws of Kenya. They prayed for compensation on behalf of the deceased’s estate by way of general damages, special damages, interest and costs of the suit. They also prayed for any other relief the Court may deem fit and just to grant.
[3] The appellants denied the claim vide their Statement of Defence dated 11 th December 2023. They denied that the deceased was involved in a road traffic accident as alleged, or that the accident was solely caused by the negligence of their driver or agent. To the contrary, it was the contention of the appellants that, if indeed an accident occurred as alleged before the lower court, then it was occasioned by or contributed to by the negligence of the deceased. They likewise provided the particulars of negligence, as alleged by them, at paragraph 7 of their Defence.
[4] Upon hearing the parties and their witnesses, the learned magistrate found the appellant wholly liable for the accident and assessed damages payable by them as follows together with interest and costs:
[a] General damages
Under the Law Reform Act
[i] Pain and suffering Kshs. 100,000/=
[ii] Loss of expectation of life Kshs. 200,000/=
Under the Fatal Accidents Act Kshs. 1,500,000/=
[b] Special Damages Kshs. 130,000/=
Total Kshs. 1,930,000/=
[5] Aggrieved by the decision of the lower court, the appellant filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in law and fact in holding them 100% liable contrary to the evidence on record.
[b] That the learned magistrate erred in law and fact in failing to dismiss the respondents’ case.
[c] That the learned magistrate erred in law and fact in failing to find that the respondents had failed to prove their case on a balance of probabilities.
[d] That the learned trial magistrate misdirected himself by basing his findings on wrong considerations.
[e] That the learned magistrate erred in law and fact in awarding general damages that were inordinately excessive.
[f] 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.
[g] That the learned magistrate erred in law and fact by using the wrong principles to assess damages.
[6] On account of the foregoing grounds , the appellants prayed that their appeal be allowed in its entirety, and that:
[a] The judgment of the lower court be set aside.
[b] An order be made dismissing the respondent’s suit.
[c] The costs of the appeal and of the lower court be paid to them.
[7] The appeal was canvassed by way of written submissions. The appellants relied on their written submissions dated 31 st January 2026 and proposed two issues for determination, namely:
[a] Whether the trial court erred in holding the appellants 100% liable for the accident;
[b] Whether the damages awarded by the trial court are excessive.
[8] On liability, the appellants submitted that the burden of proof was on the respondents to prove their allegations of negligence satisfactorily. They made reference to Beauty Line Limited v David Njuguna Gichari [2012] eKLR, Pesa Hamisi v P.N. Mashru Limited [2020] eKLR and Donogue v Stevenson [1932] AC 562 for the submission that although a driver owes the general duty of care to other road users, it must be demonstrated that the driver, in this instance was negligent; which fact was not proved before the lower court. They pointed out that PW3, a police officer who testified on behalf of the respondents, merely produced the Police Abstract and conceded that he was not the investigating officer, he did not visit the scene of accident and did not have the sketch map to show the point of impact or such other details from which liability could be inferred.
[9] It was further the submission of the appellants that the Police Abstract exhibited by PW3 indicated that the case was pending under investigations and therefore no one had been charged with any traffic offence in relation to the accident. It was therefore the submission of the appellants that, since neither PW1 nor PW2 witnessed the accident, liability was not proved on a balance of probabilities. On the authority of Postal Corporation of Kenya & another v Dickens Munayi [2014] eKLR, among others, the appellants submitted that, in the absence of a sketch map of the scene of the subject accident, it could not be ascertained who was to blame for the accident.
[10] Consequently, the appellants contended that without proof of negligence on the part of their driver, there was no basis for the lower court’s finding on liability as no causal link was proved. They relied on Samuel Kimani & another v Mary Wanjiku Kamau & another [2019] eKLR in support of their argument that an injury per se is not sufficient to hold someone liable.
[11] On quantum, the appellants submitted that, although the lower court awarded Kshs. 100,000/= under the head of pain and suffering, the evidence presented showed the deceased died on the spot or moments after the accident. In their proposal, Kshs. 10,000/= would have sufficed. They based their argument on Moses Koome Mithika & another v Doreen Gatwiri & another (suing as the legal representative and administrator of the Estate of Phineas Murithi (deceased) [2020] eKLR in which the court awarded Kshs. 10,000/= for pain and suffering for death on the spot.
[12] The appellants also urged the Court to find that the award made by the court on loss of expectation of life was excessive. They relied on B enham v Gambling [1941] AC 157 as cited in the case of Zipporah Wambui v Nelly Mukite Wanyama (suing as the widow and administrator of the Estate of the late Gorge Nafula Wanjala) & another, Godana Guyo Halake & another v Patrick Ndeli Ndoli & another [2017] eKLR and Doris Nyaguthi v Kariuki Kago, Nairobi HCCC No. 2152 of 2000 to support their proposal of Kshs. 70,000/= under the head of loss of expectation of life. Their argument was that the damages are in respect of loss of life, and not of future pecuniary prospects.
[13] Under the head of loss of dependency, for which the lower court awarded Kshs. 1,500,000/= the appellants submitted that it was imperative for dependency to be proved. They argued that in the absence of evidence of dependency, there was no basis for the award. They relied on Kemfro Africa Limited t/a Meru Express Services & another v Lubia & another (No. 2) and Livingstone Mwambugu Mwakungo & another v Sarah Anyango Jaoko [2016] eKLR among other authorities for the proposition that dependency goes to the core of any claim under the Fatal Accidents Act and must be proved on a balance of probabilities.
[14] Lastly, the appellants submitted that, since the deceased was a student with no known source of income, the learned magistrate ought to have adopted the global sum method in determining loss of dependency. They relied on Simon Kibet Langat & another v Miriam Wairimu Ngugi (suing as the administrator of the Estate of Daniel Mwiruti Ngugi [2016] eKLR, Oshivji Kuvenji & another v James Mohammed Ongenge [2012] eKLR, Palm Transporters & another v W W W [2015] eKLR, Chen Wembo & 2 others v I K K & another and Moranga Abel Nyakenyanya v Jackson Kichwen [1999] eKLR to support their proposal that an award of Kshs. 500,000/= would suffice under the head of loss of dependency.
[15] The appellants also impugned the lower court’s award under the head of special damages. On the authority of Hahn v Singh [1985] KECA 129 (KLR) they argued that the award of Kshs. 300,000/= was neither proved nor justified, contending that only Kshs. 260,000/= was pleaded and proved. Accordingly, they urged the Court to set aside the award of Kshs. 300,000/= for special damages and substitute it with an award of Kshs. 260,000/= only.
[16] The respondents filed written submissions dated 9 th March 2026. They provided a summary of their pleadings before the lower court, the evidence adduced by them and the judgment of the lower court. They were in agreement with the appellants as to the issues for determination in this appeal, namely:
[a] Whether the trial court erred in holding the appellants 100% liable for the accident; and,
[b] Whether the quantum of damages awarded was excessive.
[17] The respondents submitted that the trial court correctly found the appellants 100% liable as the evidence adduced established negligence on a balance of probabilities. They relied on the case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR to support their argument on the burden of proof. They further submitted that, although they discharged the legal burden of proof, the appellants failed to be prove the particulars of negligence, as alleged by them, on the part of the deceased as no evidence was adduced by them in support thereof. They also relied on the doctrine of res ipsa loquitor and submitted that the plaintiff did not have to show any specific acts of negligence apart from demonstrating that under normal circumstances the accident should not have occurred; and that the mere fact of its occurrence was proof of negligence of the appellants’ driver or agent.
[18] In response to the submissions of the appellant on the probative value of the evidence of PW3 and the failure to produce a sketch plan of the scene of the accident, the respondents submitted that the circumstances were such that the deceased was hit from behind and ran over by the appellants’ driver. They posited therefore that the court did not require a sketch plan to determine the point of impact as the deceased had right of way as other motorists going towards the same direction. The respondents relied on Shiva Carriers Ltd & another v Mejumaa Said Abdalla & another [2020] KEHC 5284 (KLR) and Multiple Hauliers (EA) Ltd v Ustus Mutua Malundu & 2 others [2017] KEHC 4278 (KLR) and urged the Court to find that the appellants’ driver was wholly liable for the accident.
[19] On quantum, the respondents underscored their evidence to the effect that the deceased died, not on the spot, but on his way to the hospital. They defended the lower court’s award of Kshs. 100,000/= and urged the court to consider the comparable cases of Stanwel Holdings Limited & another v Rachael Haluku Emanuel & another [2020] eKLR and Oyondi v Okanga (suing as the administrator and personal representative of the Estate of Victor Changaya, Deceased) [2023] KEHC 3761 in which a similar amount was awarded under the head of pain and suffering.
[20] The respondents also defended the lower court’s award of Kshs. 200,000/= for loss of expectation of life and highlighted the fact that the deceased was a student aged 19 years at the time; and that he was healthy and was expected to have remained productive for a longer time. They relied on Joseph Mugweru Njenga & another v Joseph Kamau Nganga [2018] eKLR where an award of Kshs. 300,000/= was made in respect of an 18-year-old victim.
[21] The respondents conceded that dependency must be proved on a balance or probabilities and urged the Court to find that, in this instance, they demonstrated that the deceased was a bright Form 3 student who was helping with family chores. They also stated that his mother and grandmother relied on him and expected support from him in his adulthood. The respondents contended that the deceased’s potential was duly proved by them and therefore the award of Kshs. 1,500,000/= under the head of loss of dependency should not be disturbed.
[22] The respondents further submitted that it was incumbent upon the appellants to demonstrate that the trial court committed an error of principle or made an award that was inordinately high to warrant interference by this Court. They relied on Kenya Power & Lighting Company v D B O (suing as the next friend and father to D M, Deceased) [2024] KEHC 15436 (KLR) in which a similar award of Kshs. 1,500,000/= was upheld on appeal, taking into account the rate of inflation.
[23] On the basis of their submissions, the respondents urged for the dismissal of the appeal with costs.
[24] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...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..."
[25] The 1 st respondent, Isaac K. Ngetich , testified before the lower court on 29 th August 2024 as PW1 and adopted his witness statement dated 14 th November 2023 in which he stated that, on the 31 st March 2023 at about 6:30 p.m. he received a call that Rogers Kiprop (the deceased) had been involved in a road traffic accident while cycling back home from school. He rushed to Mosoriot Sub County Hospital on being told that he had been taken there for treatment but on arrival was told that the deceased had passed away as a result of the injuries he had sustained. They made arrangements to move the body to Samaritan Farewell Home for preservation pending postmortem examination.
[26] PW1 further stated that, he got to learn that the deceased had been hit by Motor Vehicle Registration No. KCH 150J/ZC 8611 while lawfully peddling his bicycle along the Kapsabet-Eldoret road on his correct side of the road. He added that, as the guardian of the deceased, he reported the incident to Kapsabet Police Station for appropriate action. They later conducted a search and got to learn that the subject motor vehicle belonged to the appellants.
[27] It was further the testimony of PW1 that, at the time of his death, the deceased was aged 19 years; and that he led a vibrant and healthy life. He further stated that the deceased was a Form 2 student and aspired to be an engineer when he grew up. He also mentioned that, as a guardian, he had hopes that the deceased would grow up into a fine young man who would help him in his old age. He testified that the deceased’s father had died and, as his uncle he was the one taking care of his welfare.
[28] In addition to producing their List and Bundle of Documents before the lower court as exhibits, PW1 mentioned the names of the other dependants of the deceased as follows:
[a] Jane Jelimo - Mother
[b] Flora Tuwei - Grandmother
[29] Jane Jelimo , the deceased’s mother, testified as PW2 before the lower court. She likewise adopted her witness statement dated 14 th November 2023. Her evidence was along similar lines as the evidence of PW1. She added that, as she was preparing to go to hospital upon receiving the report of the accident, she received information that her son had passed away. She testified that the deceased was a student at the time and was aged 19 years; and that he would help around the homestead with normal chores. PW2 further stated that like any other parent, she hoped that the deceased would grow up into a fine young man who would help her in her old age.
[30] The last witness for the respondents was PC Cheserek Kiptoo (PW3) who was then attached to Kapsabet Police Station on traffic duties. His evidence was that an accident occurred on the 31 st August 2023 at about 18:30 hours along the Kapsabet-Eldoret road involving Motor Vehicle Registration No. No. KCH 150J/ZC 8611 and the deceased in this matter. He stated that the motor vehicle hit the cyclist from behind as they were heading towards the same direction; and that the cyclist died on his way to the hospital. He confirmed that the accident was reported at their station and a Police Abstract issued which was exhibited before the lower court as the Plaintiff’s Exhibit 5.
[31] PW3 conceded in cross-examination that he was not the investigating officer, and that his evidence was premised on the records kept at their station. He also conceded that he did not visit the scene and that, although from their investigations the driver of the subject motor vehicle was found to be at fault, he had not been charged by the time the Police Abstract was issued. He explained that they were still awaiting the directions of the Director of Public Prosecutions on whether or not to charge.
[32] The appellants opted to adduce no evidence in defence. Submissions were thereafter invited before the lower court rendered the impugned judgment.
[33] Section 107(1) of the Evidence Act, placed the legal burden of proof was on the respondents as the plaintiffs before the lower court. That provision is explicit that:
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 .
[34] 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) the Court of Appeal 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…”
[35] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ 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.”
[36] And, as aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[37] As has been pointed out herein above, the respondent supplied particulars of negligence at paragraph 5 of their Plaint. In essence, they alleged that the appellants’ driver drover the suit motor vehicle recklessly and without due care or attention to other road users. While it is true that neither of them witnessed the accident, they called a police officer, PW3, whose testimony was that the motor vehicle and the deceased cyclist were headed in the same direction; and that the deceased was ahead. He further testified that, from the independent investigations conducted, the driver of the motor vehicle was found to be at fault.
[38] The evidence presented by the respondent demonstrated that the deceased was hit from behind; and that he was riding on the same side of the road, heading towards the same direction as the subject motor vehicle. No contrary explanation was proffered by the appellants. Authorities abound for the position that under those circumstances, the driver of the motor vehicle was obliged to keep a safe distance from the deceased. For instance, in Shiva Carriers Ltd & another v Mejumaa Said Abdalla & another (supra) it was held:
29. Was liability proved in these circumstances? Going through the evidence adduced in this matter, the evidence laid before the trial court by the Respondents to the effect that the deceased’s motorcycle was hit from behind by the 1 st Appellant’s motor vehicle, was prima facie evidence of negligence on the part of the driver thereof (the 2 nd Appellant). This explains why the 2 nd Appellant was charged with the offence of causing death by dangerous driving.
30. In those circumstances the Appellants especially the 2 nd Appellant was under a duty to explain from his perspective how the accident occurred, and to provide evidence of the alleged negligence of the Deceased pleaded in the statement of defence. By laying before the trial court evidence that Motorcycle was hit from behind by the 1 st Appellant’s motor vehicle which was being driven from behind, and without any offer of explanation by the Appellants how the 1 st Appellant’s motor vehicle came to hit the Deceased’s motor cycle from behind, the Appellants discharged the burden of proof.
31. Every driver on a public road is duty bound to be on the lookout at all times to avoid possible injury and losses to other road users. Since the Deceased’s motorcycle was hit from behind, it would have been very difficult, if not impossible, for the deceased to avoid the accident. The argument by the Appellants that the deceased was the author of his misfortune is not supported by the evidence on record.
[39] In Samuel Stephen Were v Sukari Industries Ltd [2018] eKLR, a similar viewpoint was expressed as hereunder:
“…the evidence, taken as a whole, points to the fact that the tractor was being driven behind the motorbike at a high speed when it lost control and hit the motorbike ahead of it. Since the motorbike was hit from behind, it would have been very difficult, if not impossible for the deceased to avoid the accident.”
[40] Accordingly, the evidential burden of proof shifted to appellants to explain the circumstances in which the accident occurred. Having failed to avail any proof and instead opted to rely on written submissions, it is plain that the respondents’ evidence was unassailed. It is noted that they instead opted to rely on their written submissions, regarding which the Court of Appeal held as follows in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLR:
“…Submissions cannot take the place of evidence. The 1 st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “ marketing language ”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented…”
[41] It is therefore my finding that, on the basis of the evidence presented before the lower court by the respondents, liability was established at 100%.
[42] On quantum, the first disputed item is the award of Kshs. 100,000/= by the lower court for pain and suffering pursuant to the provisions of the Law Reform Act. Although the appellants disputed this sum on the assumption that the deceased died on the spot, the evidence presented before the lower court is to the contrary. It shows that the deceased died while undergoing treatment. 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..."
[43] As pointed out by the respondents, in Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another (supra) Kshs. 100,000/= was awarded for pain and suffering in a case where the deceased died on the spot. Since the award by the lower court in this case was within the acceptable range, I find no basis for faulting the lower court’s decision under that head.
[44] 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.
[45] On loss of dependency under the Fatal Accidents Act, the learned magistrate employed the global approach in awarding the sum of Kshs. 1,500,000/=. She took into account that the deceased was a student at the time and had a bright future ahead of him. That is the correct approach in the peculiar circumstances of this case and therefore the arguments by the appellants that it was imperative to prove dependency are misplaced. The Court of Appeal made it clear in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] eKLR that:
"...in the context of Kenya, and that is the relevant context, parents of a deceased young man who would have been preparing himself for a career with a view to looking after his parents in their old age suffer real economic loss. The financial assistance relative to the ability of the deceased which is normally expected and readily provided is obliterated by the death. The cost of bringing up the deceased ... are extinguished. Now, almost all assistance of this kind would in the conditions of Kenya be almost wholly economic in substance. So much so that the loss caused by the death could never be adequately compensated in monetary terms. No question of a windfall to the parents can therefore reasonably arise."
[46] Similarly in Kenya Breweries Ltd v Saro [1991] eKLR, the Court of Appeal held:
"...in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four year old one who has not been to school and whose abilities are yet not ascertained...But the issue of some damages being payable in both cases is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and do invariably take care of their aged parents...In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and ir
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