[1] This appeal arises from the judgment and decree of the Principal Magistrate’s Court in Homa Bay Chief Magistrate’s Civil Case No. E039 of 2020: Wilson Achieng Atho and another (suing as the legal representative of the estate of Wilkister Aluoch Atmo, Deceased) v George Ouma Onyango and another in which the respondents had sued the appellants for general and special damages in respect of a road traffic accident that occurred on 26 th May 2020 in which the deceased, Wilkister Aluoch Atmo, sustained fatal injuries. They averred that the deceased was travelling as a lawful pillion passenger along the Homa Bay-Rongo Road when, at Arujo area, the 1 st appellant drove Motor Vehicle Registration No. KCP 664G, Toyota Matatu, so recklessly that it lost control, swerved off the road and hit the deceased.
[2] The respondents alleged that the accident was solely due to the negligence of the 1 st appellant for which the 2 nd appellant was vicariously liable. They supplied particulars of negligence at paragraph 5 of their Plaint dated 17 th June 2020 as amended on 27 th July 2020. The respondents also supplied particulars pursuant to the Fatal Accidents Act and the Law Reform Act as well as particulars of special damages.
[3] The appellants denied all elements of the respondents’ claim vide a Statement of Defence dated 29 th March 2022. In the alternative, they pleaded that if indeed an accident occurred as alleged, then it was occasioned by the negligence of the deceased. They likewise provided the particulars of negligence alleged at paragraph 5 of their Defence. In addition, the appellants alleged negligence against the rider of the motor cycle carrying the deceased and supplied the particulars in that regard. They accordingly prayed for the dismissal of the suit.
[4] Upon hearing the parties and their witnesses, the learned magistrate found the appellants wholly liable to the respondents and entered judgment in their favour in the total sum of Kshs. 5,441,500/= computed as follows:
[a] Liability 100%
[b] Special damages Kshs. 241,500/=
[c] Pain and suffering Kshs. 100,000/=
[d] Loss of expectation of life Kshs. 100,000/=
[e] Loss of dependency Kshs. 5,000,000/=
Total Kshs. 5,441,500/=
[5] Being aggrieved by the decision of the lower court, the appellants filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in fact and in law in finding that they were 100% liable for the accident which was the subject matter of the suit.
[b] That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.
[c] That the learned magistrate erred in law and in fact by awarding Kshs. 5,441,500/= as general damages under the Fatal Accidents Act, an amount that was inordinately high, unjustified and contrary to the evidence on record.
[d] That the learned magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 100,000/= for pain and suffering while not considering the deceased died shortly after the accident.
[e] That the learned magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 100,000/= for loss of expectation of life, an amount which was excessive and unjustified.
[f] That the learned magistrate erred in law and fact by awarding the estate of the deceased a sum of Kshs. 5,000,000/= for loss of dependency that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.
[g] That the learned magistrate erred in law and fact by adopting a multiplicand of Kshs. 25,000/= when no evidence was adduced to prove the same thus arriving at an excessive and erroneous estimate of damages.
[h] That the learned magistrate erred in law and fact in awarding special damages of Kshs. 241,500/= an amount which was not pleaded and strictly proved.
[i] That the learned magistrate erred in law and fact by ignoring and/or failing to consider the appellants’ submissions on quantum and legal authorities relied upon in support thereof.
[j] That the learned magistrate erred in law and fact in relying on extraneous circumstances not supported by the evidence on record.
[k] That the learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant and without addressing her mind to the circumstances of the case.
[l] That the learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
[6] Therefore, the appellants prayed for orders that:
[a] Their appeal be allowed with costs.
[b] The judgment of the lower court delivered on 26 th February 2024 in Homa Bay CMCC No. E039 of 2020 on both liability and quantum be set aside and a judgment of this Court dismissing the suit against the appellants with costs be entered in its place.
[c] Without prejudice to [b] above, the Court be pleased to re-assess the damages due for pain and suffering, loss of expectation of life and loss of dependency in line with the evidence on record.
[d] The costs of the appeal and that of the trial court be awarded to the appellants.
[e] Such further orders be made as the Court may deem fit to grant.
[7] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 30 th September 2025. The appellants thereafter filed written submissions dated 3 rd February 2026. In addition to the twin issues of liability and quantum, the appellants submitted that the respondents had no locus standi to file the lower court suit in so far as they failed to produce Grant of Letters of Administration as required by Section 2(1) of the Law Reform Act and Section 80(2) of the Law of Succession Act. They relied on Trouistik Union International & another v Jane Mbeyu & another , Civil Appeal No. 145 of 1990, among other authorities, to support this argument.
[8] The appellants further submitted that, under Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya, the burden of proof was on the respondents to demonstrate their allegations of negligence on a balance of probabilities. The appellants provided a summary of the evidence adduced by the parties before the lower court and urged the Court to find that, unlike the respondents, they adduced credible evidence to prove that motorcyclist was to blame for the accident for suddenly turning right without any warning or indication. They accordingly urged the Court to overturn the decision of the lower court on liability and find in their favour.
[9] On quantum, the appellants took the view that, since the deceased died immediately, she did not undergo much pain prior to succumbing. They therefore submitted that the trial court erred in awarding her estate Kshs. 100,000/= for pain and suffering. In their view, an award of Kshs. 20,000/= would have sufficed. They relied on Nzuki v Maithya & another (suing as the legal representatives of the Estate of Joseph Wambua-Deceased) (Civil Appeal E024 of 2022) 120241 KEHC 2752 (KLR) (11 March 2024) (Judgment) in which the deceased was pronounced dead on arrival at the hospital and the High Court on appeal affirmed the award of Kshs. 20,000/= for pain and suffering.
[10] The appellants also impugned the award made by the lower court under the head of loss of dependency, contending that the respondents failed to prove income. They contended that, although PW4 produced the CIC Life Assurance Agent Contract dated 1 st January 2020 in proof of the deceased’s income, that document provided, at Paragraph 1.2 that the engagement between CIC Insurance and the deceased should not be construed as an employment contract or employer/employee contract. They further pointed out that the contract was only for one year and would terminate automatically on 31 st December 2020 and was therefore not an appropriate proof of income for purposes of determining the multiplicand in the circumstances.
[11] It was further the submission of the appellants that, although PW4 testified that the deceased was earning commissions in the sum of Kshs. 22,000/= per month, the assertion was not backed up by any documentary evidence such as a pay slip, bank Statement or M-pesa payment notification. In the premises, the appellants posited that the lower court ought to have been guided by the minimum wage of Kshs. 6,736/30 as published vide Legal Notice No. 2 of 2018, and adopted a multiplier of 16 years, taking into account the vicissitudes of life. They relied on Julius Ngobito Muriungi v Iohn Gichunuku Mairoki [2021] eKLR where the court adopted a multiplier of 28 years in the case of a deceased who was aged 22 years at the time of his death.
[12] The appellants also urged the Court to deduct awards made under the Law Reform Act from the award under the Fatal Accidents Act since the dependants are the same. They relied on the cases of Simeon Kiplimo Murey & 3 Others v Kenya Bus Management Services Limited & 4 Others , Civil Appeal No. 2 of 2013; David Kajogi M'mugaa v Francis Muthomi , Civil Appeal No. 118 Of 2010; Francis Wainaina Kirungu (Suing as the personal representative of the Estate of John Karania Wainaina (Deceased) v Elijah Oketch Adellah [2015] eKLR and Kemfro v A. M. Lubia and Olive Lubia [1982-1988] KAR 727 to buttress their argument.
[13] In respect of special damages component of the award, the appellants submitted that, whereas the respondents pleaded Kshs. 115,000/= in their Amended Plaint, only Kshs. 55,000/= was proved. They also urged the Court to take into account the admission by the respondents that family and friends contributed to the funeral expenses. Accordingly, the appellants prayed for the dismissal of the appeal with costs.
[14] The respondents filed written submissions dated 14 th February 2026 in which they proposed the following issues for determination:
[a] Whether the award of general damages made to the respondents herein was manifestly and inordinately excessive in the circumstances.
[b] Whether learned magistrate acted in error and failed to properly evaluate the evidence on record thus reaching erroneous decision.
[c] Whether the learned magistrate erred by misapprehending the principles applicable to assessment of damages in personal injuries claims, thus occasioning miscarriage of justice.
[d] Whether the learned magistrate erred in law and fact by relying on extraneous issues as a basis of her determination on liability.
[15] In response to the appellants’ contention that they lacked the locus standi to file the lower court suit, the respondents submitted that the issue is an afterthought in so far as it was neither raised before the lower court nor as a ground of appeal in the appellants’ Amended Memorandum of Appeal. They therefore submitted that under Order 42 Rule 4 of the Civil Procedure Rules, it is not permissible for the appellants to urge or be heard in support of any ground of objection not set forth in the Memorandum of Appeal without leave of the court. They pointed out that no such leave was applied for or obtained by the appellants; and therefore the issue of locus standi ought not to be entertained on appeal. They relied on the case of Uhuru Highway Development Ltd V Central Bank of Kenya & 2 Others [1995] KECA 168 (KLR) in support of this argument.
[16] Further to the foregoing, the respondents submitted that the appellants’ submissions on locus standi are misconceived since they in fact applied for and were issued with Grant of Letters of Administration in respect of the estate of the deceased, Wilkister Aluoch Atmo in Homa Bay Succession Cause No. 16 of 2020 . They therefore contended that they were duly authorized to sue and lawfully filed the lower court suit on behalf of the estate of the deceased for purposes of Section 82(a) of the Law of Succession Act.
[17] It was further the submission of the respondents that, on the basis of the evidence presented before the lower court, the learned magistrate correctly found the appellants 100% liable for the loss suffered by the estate of the deceased. They urged the Court to note that the appellants failed to prove any of their allegations of negligence on the part of either the deceased or the motorcyclist. They relied on the case of William Kabogo Gitau v George Thuo & Others (supra) in urging the Court to uphold the lower court’s decision on liability.
[18] The respondents also supported the lower court’s decision on quantum. On pain and suffering, they urged the Court to take into consideration that they adduced credible evidence before the lower court that the deceased died on the 26 th May 2020 at 4:00 p.m. after having been involved in the subject accident at 11:00 a.m. The respondents also pointed out that they adduced evidence to show that the deceased was admitted at the hospital and operated on before she succumbed; that she was 32 months pregnant and that the infant was also lost as a result of the injuries sustained by the deceased. Hence, the respondents urged the Court to find that the assertion by the appellants that the deceased died on the spot was baseless; and that the lower court was justified in making the award of Kshs. 100,000/= for pain and suffering.
[19] In the same vein, the respondents urged the Court to find that the sum of Kshs. 100,000/= awarded by the lower court for loss of expectation of life was justified, considering that the deceased died at an early age of 24 years; and that she had a son and parents who was wholly dependent on her. They accordingly urged the Court to affirm the award of Kshs.100,000/= for loss of expectation of life.
[20] On loss of dependency, the respondents urged the Court to take into consideration that the deceased was aged 24 years at the time of death and was earning about Kshs. 25,000/= per month as an insurance sales agent. Accordingly, they justified the formula adopted by the lower court of Kshs. 25,000/= x 12 x 25 x 2/3 to arrive at Kshs. 5,000,000/= for loss of dependency. On proof of income, the respondents relied on the case of Jacob Ayiga and another v Simon Abayo (suing as The Personal Representative of the Estate of Thomas Ndaya Abayo [2005] eKLR in which the Court of Appeal emphasized that it is not mandatory for one to produce documents in proof of earning. They added that, where there is no proof of income, the courts are at liberty to employ the global sum award.
[21] On special damages, the respondents urged the Court to bear in mind the decision of the Court of Appeal in Premier Dairy Limited v Amarjit Singh Sagoo & another [2013] eKLR for the proposition that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when their primary concern is that a close relative has died and the body needs to be interred according to the custom of the particular community involved; and that what was awarded by the lower court was not only supported by evidence but was also reasonable. They urged for the dismissal of the appeal with costs.
[22] 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..."
[23] It is equally apt to point out, at this stage, that 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 .
[24] 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…”
[25] 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.”
[26] I have therefore gone through the record of the lower court and confirmed that the respondents called four witnesses before the lower court. The first witness was the 1 st respondent , Wilson Achieng Atho (PW1). He adopted his witness statement dated 17 th June 2020 as his evidence in chief. He testified that he was going about his normal duties on the 26 th April 2020 when, at about 11.45 a.m. he was informed that his daughter, Wilkister Aluoch Atmo (the deceased herein) had been injured in a road traffic accident at Arujo area. He stated that he immediately proceeded to the scene, a distance of about 3 km away from his home. He found a group of people gathered at the scene and was informed that the victims had been rushed to Homa Bay County Referral Hospital.
[27] The 1 st respondent further stated that he went to the hospital and was told his daughter, Wilkister , was undergoing an operation to save her as well as the life of her unborn baby. He explained that Wilkister was about 8 months pregnant at the time. PW1 testified that the operation lasted about 2 hours and that when he eventually got to see Wilkister , he noted that she had grievous injuries; and that the baby had died and the fetus was placed beside her. He added that, although Wilkister was taken to the ward for further attention, she died later that day at about 4.00 p.m.
[28] The 1 st respondent also testified that the incident was reported to the police for appropriate action. He confirmed that he was able to obtain Grant of Letters of Administration Ad Litem, among other documents, with a view of instituting the lower court suit on behalf of the estate of the deceased. He also stated that the deceased was a single mother of one and was expecting her second child. The 1 st respondent also testified that the deceased, who was working as a saleslady at the time of her death, was the sole breadwinner for their family. He produced several documents in support of their claim as per the List and Bundle of Documents dated 17 th June 2020.
[29] The respondents called PC Kenneth Walumbe , a police officer then attached to Homa Bay Police Station as their second witness. PW2 confirmed that an accident occurred on the 26 th May 2020 at Arujo area on the Homa Bay-Rongo Road involving Motor Vehicle Registration No. KCP 664Q, Toyota Matatu, and a motorcycle which was carrying a pregnant pillion passenger. He explained that both the motor vehicle and the motor cycle were heading towards the same direction and that the motorcyclist was hit from behind by the motor vehicle.
[30] The respondents’ third witness before the lower court was Dalvonce D. Achieng . He testified that he was walking along the Homa Bay-Rongo Road on the 26 th May 2020 at about 11.30 a.m. and that, on reaching Arujo area, he saw Motor Vehicle Registration No. KCP 664Q overtaking three motorcycles which were heading towards Rongo direction. He told the lower court that the driver of the said motor vehicle successfully overtook the first two motorcyclists, but hit from the back the third one, which was ahead of them all. He testified that that cyclist was carrying a pregnant pillion passenger, who was injured and was rushed to hospital. He added that he later got to learn that the victim had died while undergoing treatment.
[31] The last witness for the respondents was George Ouma Omari (PW4). He testified that he got to know the deceased while working for CIC Insurance; and that the deceased was engaged as one of the sales agents for the company. PW4 produced a copy of the contract signed between CIC Insurance and the deceased to demonstrate that she was indeed working as a sales agent at the time of her demise; and that she was earning commissions of Kshs. 22,000/= per month on the average.
[32] On behalf of the appellants, PC Erick Odhiambo of Homa Bay Police station testified as DW1. He likewise confirmed that the subject accident occurred and was reported at the Homa Bay Police Station’s Traffic Base. On the basis of the records maintained at their office, DW1 confirmed that the subject motor vehicle hit the motorcyclist from behind; that the motor vehicle was in the process of overtaking and that the point of impact was on the right lane facing Homa Bay direction.
[33] In the light of the evidence presented before the lower court, there is no dispute that an accident occurred on the 26 th May 2020 at Arujo area on the Homa Bay-Rongo Road involving Motor Vehicle Registration No. KCP 644Q, Toyota Matatu, and a motor cycle whose particulars were not provided. It is also not in dispute that the motorcyclist was carrying a pillion passenger who was identified to be Wilkister Aluoch Atmo , the deceased herein.
[34] There was credible evidence presented by the respondents to prove that the deceased was expectant at the time, and that she died along with her unborn baby as a result of the injuries sustained by her in the subject road traffic accident. Apart from the eye witness account presented by PW2, the respondents relied on the testimony of PW1, PW3 and PW4 as well as the documents produced before the lower court as exhibits. The documents included a Certificate of Death, Postmortem Report and Police Abstract.
[35] Although the appellants argued that the respondents lacked the locus standi to file the lower court suit, the evidence presented by the respondents show that this argument is misconceived. The proceedings show that the respondents applied for and were issued with Grant of Letters of Administration Ad Litem in respect of the estate of the deceased, Wilkister Aluoch Atmo in Homa Bay Succession Cause No. 16 of 2020 . They produced the same as the Plaintiff’s Exhibit 1. This is manifest at page 13 of the Supplementary Record of Appeal. Clearly, the respondents were thereby duly authorized to file the lower court suit on behalf of the estate of the deceased for purposes of Section 82(a) of the Law of Succession Act.
[36] In the premises, having given due consideration to the grounds of appeal filed herein and the submissions made by learned counsel, the only issues for determination are:
[a] Whether the learned magistrate erred in her determination on liability;
[b] Whether the learned magistrate erred in assessing the damages payable.
A. On liability:
[37] Needless to mention that the burden of proof was on the respondents to prove their allegations of negligence on a balance of probabilities. 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…”
[38] One of the respondents’ witnesses before the lower court was Dalvonce D. Achieng . He testified that he was walking along the Homa Bay-Rongo Road and that at Arujo area, he saw Motor Vehicle Registration No. KCP 664Q overtaking three motorcycles which were heading towards Rongo direction. He told the lower court that the driver of the said motor vehicle successfully overtook the first two motorcyclists, but hit the third one, which was ahead of them all. He testified that that the said motorcyclist was carrying a pillion passenger, who was injured and was rushed to hospital.
[39] The respondents also called a police officer, PC Kenneth Walumbe as PW2 who confirmed that indeed an accident occurred at Arujo on the Homa Bay-Rongo Road involving Motor Vehicle Registration No KCP 664Q and a motorcyclist, in which the deceased, Wilkister Aluoch was fatally injured. PW2 produced the Police Abstract as an exhibit.
[40] The evidence presented by the respondents plainly shows that the 2 nd appellant, as the driver of the subject motor vehicle was to blame for the occurrence. It is notable that the same was not rebutted by the appellants. Their sole witness, PC Erick Odhiambo (DW1) conceded that he was not one of the investigating officers. He made it plain that by the time he testified before the lower court he had worked at Homa Bay Police Station for only 4 months; and therefore his evidence was based on the information contained in the police file. Moreover, he testified that the record, and in particular the sketch plan, indicated that the point of impact was on the right lane, facing Homa Bay.
[41] Clearly, the evidence of DW1 as to the point of impact confirms the evidence presented by the respondents that the motor vehicle and the three motorcycles were headed towards Rongo direction from Homa Bay and therefore the fault was that of the driver for hitting the third motor cycle from behind while the cyclist was on his correct lane. Indeed in Shiva Carriers Ltd & another v Mejumaa Said Abdalla & another [2020] KEHC 5284 (KLR) in which a similar scenario presented itself, the Court observed as follows:
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. ..
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.
[42] 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.”
[43] It is noteworthy too that, although the appellants alleged contributory negligence and gave specific particulars of their allegations not only against the deceased but also against the motorcyclist, they adduced no evidence in proof of those allegations. The appellants having failed to avail any proof of their allegations of negligence against the motorcyclist, the respondents’ evidence was unassailed.
[44] Similarly, the appellants availed no proof on the allegations
[...truncated]
[2] The respondents alleged that the accident was solely due to the negligence of the 1 st appellant for which the 2 nd appellant was vicariously liable. They supplied particulars of negligence at paragraph 5 of their Plaint dated 17 th June 2020 as amended on 27 th July 2020. The respondents also supplied particulars pursuant to the Fatal Accidents Act and the Law Reform Act as well as particulars of special damages.
[3] The appellants denied all elements of the respondents’ claim vide a Statement of Defence dated 29 th March 2022. In the alternative, they pleaded that if indeed an accident occurred as alleged, then it was occasioned by the negligence of the deceased. They likewise provided the particulars of negligence alleged at paragraph 5 of their Defence. In addition, the appellants alleged negligence against the rider of the motor cycle carrying the deceased and supplied the particulars in that regard. They accordingly prayed for the dismissal of the suit.
[4] Upon hearing the parties and their witnesses, the learned magistrate found the appellants wholly liable to the respondents and entered judgment in their favour in the total sum of Kshs. 5,441,500/= computed as follows:
[a] Liability 100%
[b] Special damages Kshs. 241,500/=
[c] Pain and suffering Kshs. 100,000/=
[d] Loss of expectation of life Kshs. 100,000/=
[e] Loss of dependency Kshs. 5,000,000/=
Total Kshs. 5,441,500/=
[5] Being aggrieved by the decision of the lower court, the appellants filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in fact and in law in finding that they were 100% liable for the accident which was the subject matter of the suit.
[b] That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.
[c] That the learned magistrate erred in law and in fact by awarding Kshs. 5,441,500/= as general damages under the Fatal Accidents Act, an amount that was inordinately high, unjustified and contrary to the evidence on record.
[d] That the learned magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 100,000/= for pain and suffering while not considering the deceased died shortly after the accident.
[e] That the learned magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 100,000/= for loss of expectation of life, an amount which was excessive and unjustified.
[f] That the learned magistrate erred in law and fact by awarding the estate of the deceased a sum of Kshs. 5,000,000/= for loss of dependency that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.
[g] That the learned magistrate erred in law and fact by adopting a multiplicand of Kshs. 25,000/= when no evidence was adduced to prove the same thus arriving at an excessive and erroneous estimate of damages.
[h] That the learned magistrate erred in law and fact in awarding special damages of Kshs. 241,500/= an amount which was not pleaded and strictly proved.
[i] That the learned magistrate erred in law and fact by ignoring and/or failing to consider the appellants’ submissions on quantum and legal authorities relied upon in support thereof.
[j] That the learned magistrate erred in law and fact in relying on extraneous circumstances not supported by the evidence on record.
[k] That the learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant and without addressing her mind to the circumstances of the case.
[l] That the learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
[6] Therefore, the appellants prayed for orders that:
[a] Their appeal be allowed with costs.
[b] The judgment of the lower court delivered on 26 th February 2024 in Homa Bay CMCC No. E039 of 2020 on both liability and quantum be set aside and a judgment of this Court dismissing the suit against the appellants with costs be entered in its place.
[c] Without prejudice to [b] above, the Court be pleased to re-assess the damages due for pain and suffering, loss of expectation of life and loss of dependency in line with the evidence on record.
[d] The costs of the appeal and that of the trial court be awarded to the appellants.
[e] Such further orders be made as the Court may deem fit to grant.
[7] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 30 th September 2025. The appellants thereafter filed written submissions dated 3 rd February 2026. In addition to the twin issues of liability and quantum, the appellants submitted that the respondents had no locus standi to file the lower court suit in so far as they failed to produce Grant of Letters of Administration as required by Section 2(1) of the Law Reform Act and Section 80(2) of the Law of Succession Act. They relied on Trouistik Union International & another v Jane Mbeyu & another , Civil Appeal No. 145 of 1990, among other authorities, to support this argument.
[8] The appellants further submitted that, under Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya, the burden of proof was on the respondents to demonstrate their allegations of negligence on a balance of probabilities. The appellants provided a summary of the evidence adduced by the parties before the lower court and urged the Court to find that, unlike the respondents, they adduced credible evidence to prove that motorcyclist was to blame for the accident for suddenly turning right without any warning or indication. They accordingly urged the Court to overturn the decision of the lower court on liability and find in their favour.
[9] On quantum, the appellants took the view that, since the deceased died immediately, she did not undergo much pain prior to succumbing. They therefore submitted that the trial court erred in awarding her estate Kshs. 100,000/= for pain and suffering. In their view, an award of Kshs. 20,000/= would have sufficed. They relied on Nzuki v Maithya & another (suing as the legal representatives of the Estate of Joseph Wambua-Deceased) (Civil Appeal E024 of 2022) 120241 KEHC 2752 (KLR) (11 March 2024) (Judgment) in which the deceased was pronounced dead on arrival at the hospital and the High Court on appeal affirmed the award of Kshs. 20,000/= for pain and suffering.
[10] The appellants also impugned the award made by the lower court under the head of loss of dependency, contending that the respondents failed to prove income. They contended that, although PW4 produced the CIC Life Assurance Agent Contract dated 1 st January 2020 in proof of the deceased’s income, that document provided, at Paragraph 1.2 that the engagement between CIC Insurance and the deceased should not be construed as an employment contract or employer/employee contract. They further pointed out that the contract was only for one year and would terminate automatically on 31 st December 2020 and was therefore not an appropriate proof of income for purposes of determining the multiplicand in the circumstances.
[11] It was further the submission of the appellants that, although PW4 testified that the deceased was earning commissions in the sum of Kshs. 22,000/= per month, the assertion was not backed up by any documentary evidence such as a pay slip, bank Statement or M-pesa payment notification. In the premises, the appellants posited that the lower court ought to have been guided by the minimum wage of Kshs. 6,736/30 as published vide Legal Notice No. 2 of 2018, and adopted a multiplier of 16 years, taking into account the vicissitudes of life. They relied on Julius Ngobito Muriungi v Iohn Gichunuku Mairoki [2021] eKLR where the court adopted a multiplier of 28 years in the case of a deceased who was aged 22 years at the time of his death.
[12] The appellants also urged the Court to deduct awards made under the Law Reform Act from the award under the Fatal Accidents Act since the dependants are the same. They relied on the cases of Simeon Kiplimo Murey & 3 Others v Kenya Bus Management Services Limited & 4 Others , Civil Appeal No. 2 of 2013; David Kajogi M'mugaa v Francis Muthomi , Civil Appeal No. 118 Of 2010; Francis Wainaina Kirungu (Suing as the personal representative of the Estate of John Karania Wainaina (Deceased) v Elijah Oketch Adellah [2015] eKLR and Kemfro v A. M. Lubia and Olive Lubia [1982-1988] KAR 727 to buttress their argument.
[13] In respect of special damages component of the award, the appellants submitted that, whereas the respondents pleaded Kshs. 115,000/= in their Amended Plaint, only Kshs. 55,000/= was proved. They also urged the Court to take into account the admission by the respondents that family and friends contributed to the funeral expenses. Accordingly, the appellants prayed for the dismissal of the appeal with costs.
[14] The respondents filed written submissions dated 14 th February 2026 in which they proposed the following issues for determination:
[a] Whether the award of general damages made to the respondents herein was manifestly and inordinately excessive in the circumstances.
[b] Whether learned magistrate acted in error and failed to properly evaluate the evidence on record thus reaching erroneous decision.
[c] Whether the learned magistrate erred by misapprehending the principles applicable to assessment of damages in personal injuries claims, thus occasioning miscarriage of justice.
[d] Whether the learned magistrate erred in law and fact by relying on extraneous issues as a basis of her determination on liability.
[15] In response to the appellants’ contention that they lacked the locus standi to file the lower court suit, the respondents submitted that the issue is an afterthought in so far as it was neither raised before the lower court nor as a ground of appeal in the appellants’ Amended Memorandum of Appeal. They therefore submitted that under Order 42 Rule 4 of the Civil Procedure Rules, it is not permissible for the appellants to urge or be heard in support of any ground of objection not set forth in the Memorandum of Appeal without leave of the court. They pointed out that no such leave was applied for or obtained by the appellants; and therefore the issue of locus standi ought not to be entertained on appeal. They relied on the case of Uhuru Highway Development Ltd V Central Bank of Kenya & 2 Others [1995] KECA 168 (KLR) in support of this argument.
[16] Further to the foregoing, the respondents submitted that the appellants’ submissions on locus standi are misconceived since they in fact applied for and were issued with Grant of Letters of Administration in respect of the estate of the deceased, Wilkister Aluoch Atmo in Homa Bay Succession Cause No. 16 of 2020 . They therefore contended that they were duly authorized to sue and lawfully filed the lower court suit on behalf of the estate of the deceased for purposes of Section 82(a) of the Law of Succession Act.
[17] It was further the submission of the respondents that, on the basis of the evidence presented before the lower court, the learned magistrate correctly found the appellants 100% liable for the loss suffered by the estate of the deceased. They urged the Court to note that the appellants failed to prove any of their allegations of negligence on the part of either the deceased or the motorcyclist. They relied on the case of William Kabogo Gitau v George Thuo & Others (supra) in urging the Court to uphold the lower court’s decision on liability.
[18] The respondents also supported the lower court’s decision on quantum. On pain and suffering, they urged the Court to take into consideration that they adduced credible evidence before the lower court that the deceased died on the 26 th May 2020 at 4:00 p.m. after having been involved in the subject accident at 11:00 a.m. The respondents also pointed out that they adduced evidence to show that the deceased was admitted at the hospital and operated on before she succumbed; that she was 32 months pregnant and that the infant was also lost as a result of the injuries sustained by the deceased. Hence, the respondents urged the Court to find that the assertion by the appellants that the deceased died on the spot was baseless; and that the lower court was justified in making the award of Kshs. 100,000/= for pain and suffering.
[19] In the same vein, the respondents urged the Court to find that the sum of Kshs. 100,000/= awarded by the lower court for loss of expectation of life was justified, considering that the deceased died at an early age of 24 years; and that she had a son and parents who was wholly dependent on her. They accordingly urged the Court to affirm the award of Kshs.100,000/= for loss of expectation of life.
[20] On loss of dependency, the respondents urged the Court to take into consideration that the deceased was aged 24 years at the time of death and was earning about Kshs. 25,000/= per month as an insurance sales agent. Accordingly, they justified the formula adopted by the lower court of Kshs. 25,000/= x 12 x 25 x 2/3 to arrive at Kshs. 5,000,000/= for loss of dependency. On proof of income, the respondents relied on the case of Jacob Ayiga and another v Simon Abayo (suing as The Personal Representative of the Estate of Thomas Ndaya Abayo [2005] eKLR in which the Court of Appeal emphasized that it is not mandatory for one to produce documents in proof of earning. They added that, where there is no proof of income, the courts are at liberty to employ the global sum award.
[21] On special damages, the respondents urged the Court to bear in mind the decision of the Court of Appeal in Premier Dairy Limited v Amarjit Singh Sagoo & another [2013] eKLR for the proposition that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when their primary concern is that a close relative has died and the body needs to be interred according to the custom of the particular community involved; and that what was awarded by the lower court was not only supported by evidence but was also reasonable. They urged for the dismissal of the appeal with costs.
[22] 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..."
[23] It is equally apt to point out, at this stage, that 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 .
[24] 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…”
[25] 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.”
[26] I have therefore gone through the record of the lower court and confirmed that the respondents called four witnesses before the lower court. The first witness was the 1 st respondent , Wilson Achieng Atho (PW1). He adopted his witness statement dated 17 th June 2020 as his evidence in chief. He testified that he was going about his normal duties on the 26 th April 2020 when, at about 11.45 a.m. he was informed that his daughter, Wilkister Aluoch Atmo (the deceased herein) had been injured in a road traffic accident at Arujo area. He stated that he immediately proceeded to the scene, a distance of about 3 km away from his home. He found a group of people gathered at the scene and was informed that the victims had been rushed to Homa Bay County Referral Hospital.
[27] The 1 st respondent further stated that he went to the hospital and was told his daughter, Wilkister , was undergoing an operation to save her as well as the life of her unborn baby. He explained that Wilkister was about 8 months pregnant at the time. PW1 testified that the operation lasted about 2 hours and that when he eventually got to see Wilkister , he noted that she had grievous injuries; and that the baby had died and the fetus was placed beside her. He added that, although Wilkister was taken to the ward for further attention, she died later that day at about 4.00 p.m.
[28] The 1 st respondent also testified that the incident was reported to the police for appropriate action. He confirmed that he was able to obtain Grant of Letters of Administration Ad Litem, among other documents, with a view of instituting the lower court suit on behalf of the estate of the deceased. He also stated that the deceased was a single mother of one and was expecting her second child. The 1 st respondent also testified that the deceased, who was working as a saleslady at the time of her death, was the sole breadwinner for their family. He produced several documents in support of their claim as per the List and Bundle of Documents dated 17 th June 2020.
[29] The respondents called PC Kenneth Walumbe , a police officer then attached to Homa Bay Police Station as their second witness. PW2 confirmed that an accident occurred on the 26 th May 2020 at Arujo area on the Homa Bay-Rongo Road involving Motor Vehicle Registration No. KCP 664Q, Toyota Matatu, and a motorcycle which was carrying a pregnant pillion passenger. He explained that both the motor vehicle and the motor cycle were heading towards the same direction and that the motorcyclist was hit from behind by the motor vehicle.
[30] The respondents’ third witness before the lower court was Dalvonce D. Achieng . He testified that he was walking along the Homa Bay-Rongo Road on the 26 th May 2020 at about 11.30 a.m. and that, on reaching Arujo area, he saw Motor Vehicle Registration No. KCP 664Q overtaking three motorcycles which were heading towards Rongo direction. He told the lower court that the driver of the said motor vehicle successfully overtook the first two motorcyclists, but hit from the back the third one, which was ahead of them all. He testified that that cyclist was carrying a pregnant pillion passenger, who was injured and was rushed to hospital. He added that he later got to learn that the victim had died while undergoing treatment.
[31] The last witness for the respondents was George Ouma Omari (PW4). He testified that he got to know the deceased while working for CIC Insurance; and that the deceased was engaged as one of the sales agents for the company. PW4 produced a copy of the contract signed between CIC Insurance and the deceased to demonstrate that she was indeed working as a sales agent at the time of her demise; and that she was earning commissions of Kshs. 22,000/= per month on the average.
[32] On behalf of the appellants, PC Erick Odhiambo of Homa Bay Police station testified as DW1. He likewise confirmed that the subject accident occurred and was reported at the Homa Bay Police Station’s Traffic Base. On the basis of the records maintained at their office, DW1 confirmed that the subject motor vehicle hit the motorcyclist from behind; that the motor vehicle was in the process of overtaking and that the point of impact was on the right lane facing Homa Bay direction.
[33] In the light of the evidence presented before the lower court, there is no dispute that an accident occurred on the 26 th May 2020 at Arujo area on the Homa Bay-Rongo Road involving Motor Vehicle Registration No. KCP 644Q, Toyota Matatu, and a motor cycle whose particulars were not provided. It is also not in dispute that the motorcyclist was carrying a pillion passenger who was identified to be Wilkister Aluoch Atmo , the deceased herein.
[34] There was credible evidence presented by the respondents to prove that the deceased was expectant at the time, and that she died along with her unborn baby as a result of the injuries sustained by her in the subject road traffic accident. Apart from the eye witness account presented by PW2, the respondents relied on the testimony of PW1, PW3 and PW4 as well as the documents produced before the lower court as exhibits. The documents included a Certificate of Death, Postmortem Report and Police Abstract.
[35] Although the appellants argued that the respondents lacked the locus standi to file the lower court suit, the evidence presented by the respondents show that this argument is misconceived. The proceedings show that the respondents applied for and were issued with Grant of Letters of Administration Ad Litem in respect of the estate of the deceased, Wilkister Aluoch Atmo in Homa Bay Succession Cause No. 16 of 2020 . They produced the same as the Plaintiff’s Exhibit 1. This is manifest at page 13 of the Supplementary Record of Appeal. Clearly, the respondents were thereby duly authorized to file the lower court suit on behalf of the estate of the deceased for purposes of Section 82(a) of the Law of Succession Act.
[36] In the premises, having given due consideration to the grounds of appeal filed herein and the submissions made by learned counsel, the only issues for determination are:
[a] Whether the learned magistrate erred in her determination on liability;
[b] Whether the learned magistrate erred in assessing the damages payable.
A. On liability:
[37] Needless to mention that the burden of proof was on the respondents to prove their allegations of negligence on a balance of probabilities. 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…”
[38] One of the respondents’ witnesses before the lower court was Dalvonce D. Achieng . He testified that he was walking along the Homa Bay-Rongo Road and that at Arujo area, he saw Motor Vehicle Registration No. KCP 664Q overtaking three motorcycles which were heading towards Rongo direction. He told the lower court that the driver of the said motor vehicle successfully overtook the first two motorcyclists, but hit the third one, which was ahead of them all. He testified that that the said motorcyclist was carrying a pillion passenger, who was injured and was rushed to hospital.
[39] The respondents also called a police officer, PC Kenneth Walumbe as PW2 who confirmed that indeed an accident occurred at Arujo on the Homa Bay-Rongo Road involving Motor Vehicle Registration No KCP 664Q and a motorcyclist, in which the deceased, Wilkister Aluoch was fatally injured. PW2 produced the Police Abstract as an exhibit.
[40] The evidence presented by the respondents plainly shows that the 2 nd appellant, as the driver of the subject motor vehicle was to blame for the occurrence. It is notable that the same was not rebutted by the appellants. Their sole witness, PC Erick Odhiambo (DW1) conceded that he was not one of the investigating officers. He made it plain that by the time he testified before the lower court he had worked at Homa Bay Police Station for only 4 months; and therefore his evidence was based on the information contained in the police file. Moreover, he testified that the record, and in particular the sketch plan, indicated that the point of impact was on the right lane, facing Homa Bay.
[41] Clearly, the evidence of DW1 as to the point of impact confirms the evidence presented by the respondents that the motor vehicle and the three motorcycles were headed towards Rongo direction from Homa Bay and therefore the fault was that of the driver for hitting the third motor cycle from behind while the cyclist was on his correct lane. Indeed in Shiva Carriers Ltd & another v Mejumaa Said Abdalla & another [2020] KEHC 5284 (KLR) in which a similar scenario presented itself, the Court observed as follows:
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. ..
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.
[42] 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.”
[43] It is noteworthy too that, although the appellants alleged contributory negligence and gave specific particulars of their allegations not only against the deceased but also against the motorcyclist, they adduced no evidence in proof of those allegations. The appellants having failed to avail any proof of their allegations of negligence against the motorcyclist, the respondents’ evidence was unassailed.
[44] Similarly, the appellants availed no proof on the allegations
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