(Being an Appeal against the judgment of Hon. A. K. Ithuku, CM delivered on 30/11/2023 at Kerugoya Magistrates Court in Civil Suit No. 65 of 2020)
Background
1. This appeal was filed through a memorandum amended on 19/3/2024. The record of appeal is dated 29/5/2024 but the cover page shows 30/5/2024.
2. The appeal seeks to challenge the judgment of the learned trial magistrate delivered on 30/11/2023 on both liability and assessment of damages. The suit before the trial court by the appellants against the respondents, in a plaint dated 9/6/2020, was for compensation in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents of the deceased.
3. It was the appellants’ case before the trial court that the deceased met his death as a result of negligence on the part of the 2nd respondent who was the driver of the 1st respondent’s motor vehicle registration number KCG 904N on 1/5/2019 along the Kutus-Kerugoya road at Kaaria area. The deceased was at the time riding motor cycle registration number KMDT 761Y along the said road when the respondents’ motor vehicle also driven on the said road from the opposite direction knocked the deceased’s motor cycle down as a result of which the deceased sustained fatal injuries from which he succumbed on the spot.
4. The respondents filed a joint statement of defence dated 30/10/2020. They denied the appellants’ claim in toto and put them to strict proof. They further pleaded negligence or contributory negligence on the part of the deceased.
5. The appellants called three witnesses at the hearing while the 2nd respondent testified for the defence.
6. Upon considering the evidence, the learned trial magistrate apportioned liability in the ratio of 30:70 for the appellants against the respondents and awarded damages as follows:
a. General damages:
i. Pain and suffering KShs 20,000/=.
ii. Loss of expectation of life KShs 100,000/=.
iii. Loss of dependency KShs 4,052,040/=.
b. Special damages KShs 301,000/=.
Grounds of appeal
7. The appellants were dissatisfied with that decision and now appeal to this court against both liability and quantum of damages awarded. They contend in the grounds of appeal that the trial court should have found the respondents 100% liable for the accident and for quantum, that both special and general damages were inordinately low.
Duty of this court on appeal
8. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence tendered before the trial court and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
9. This holding is reiterated differently in the Indian case cited by learned counsel for the respondent of Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 where the court gave the following guidance:
“The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it.”
case before the trial court
10. PW 1, Cpl Cecily Namu of Kerugoya police station gave evidence on behalf of Cpl Yosuf who conducted investigations in the case but had been transferred to another station. PW 1 said the accident was reported at Kerugoya police station as involving the deceased as a motorcyclist and motor vehicle registration number KCG 904V Toyota Hilux Pick Up. In the Occurrence Book (OB) it was recorded that the driver of the motor vehicle was overtaking when the accident occurred and there was no mention of the motor cycle overtaking. She said the driver of the motor vehicle registration number KCG 904V Toyota Hilux Pick Up was blamed for the accident and he was charged in court with causing death by dangerous driving and the traffic case was at the time of her testimony pending trial.
11. PW 2, Simon Mwai, was an eye witness to the accident. He adopted his witness statement dated 18/6/2022 as his evidence-in-chief. He said he was driving his motor vehicle registration number KAP 872G on the same road in the same direction as the deceased. The deceased overtook him on his motorcycle. In the opposite direction was the respondents’ Pick-Up overtaking a salon car and, in the process, as the rider (deceased) was trying to swerve to avoid a collision, the Pick-Up hit the rider, throwing him up in the air and he landed in the ditch. Both the Pick-Up and motor cycle landed in the ditch off the road.
12. PW 2 and some pedestrians tried to help the rider but realized that he had already passed on. An ambulance arrived at the scene shortly and the medical personnel in it confirmed that the rider was dead. Police officers also came to the scene and begun investigations. PW 2 later testified in the traffic case at Kerugoya in Traffic Case No. 238 of 2019 against the driver of the pick-up who was charged with causing death by dangerous driving.
13. PW 3, Georgina Wambui Waturu gave evidence at the trial and adopted her undated witness statement filed in court on 29/7/2020 as her evidence in chief. She said the deceased was her husband and they had two children A.N. and N.N. both minors. The deceased was working with ICEA Lion General Assurance Ltd as a motor vehicle assessor inspector. He was earning KShs 244,157/= that he applied towards the family upkeep. He was in good health at the time of the accident.
14. The 2nd defendant Robert Nzau Kilonzo testified as DW 1 for the defence. He said that he was at the time driving the motor vehicle registration number KCG 904V Toyota Hilux Pick Up at a speed of 60-80 km/hr on his left lane when the motor cycle from the opposite direction approached at high speed, encroached into his lane and rammed into his vehicle causing extensive damage to the front right side of the vehicle. He sustained injuries on his right hand and was rushed to Kerugoya hospital by Good Samaritans. He said the point of impact was in the middle of the road.
Submissions
15. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
16. Learned counsel for the appellant addressed the appeal on two broad grounds, that the learned trial magistrate erred in law and in fact in failing to find the respondents 100% liable and by awarding damages that were too low in the circumstances.
17. The submissions are more extensively considered in the analysis following.
Analysis
a) Liability
18. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate on findings of fact as was stated in the case of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
19. This Court will however interfere where the finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (see the case of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR)).
20. After trial the learned trial magistrate found on the issue of liability that the accident happened on the lane where the motor cycle was expected to be and that the Pick-up which was coming from the opposite direction should have been on the other lane and that the driver, 2nd appellant, did not explain why he left his lane. He therefore disbelieved the driver’s version of the accident that the deceased was approaching at very high speed and encroached into his lane and rammed into his vehicle head-on whereat the front side of his vehicle was severely damaged and that the point of impact was in the middle of the road. The learned trial magistrate also found that PW 2, was a credible eye witness and his explanation as supported by the police investigations that the driver tried to overtake carelessly was plausible.
21. Learned counsel for the appellant submits that on that evidence the learned trial magistrate should have found the respondent’s 100% liable for the accident. He relies on the case of Mursal & another v Evelyn Nthangu Manesa (Suing as the legal administrator of Chris Kipkoech) [2022] KEHC 286 (KLR) where the High Court observed that direct establishes a particular fact without the need to make an inference in order to connect the evidence to the fact as was the case for PW 2 herein.
22. Learned counsel for the respondent submits that the learned trial magistrate was correct in his finding that evidence showed that there was some negligence on the part of the deceased and therefore was right in his apportionment of liability as he did. He relied on the cases of Alfred Chivatsi Chai & another v Mercy Zawadi Nyambu [2019] KEHC 2083 (KLR) and Kennedy Muteti Musyoka v Abedinego Mbole [2021] KEHC 1751 (KLR) for the position that the deceased contributed to the accident and he could not entirely escape blame.
23. I have reevaluated the evidence on record and I am satisfied that the learned trial magistrate was correct in disbelieving the evidence of the driver of the vehicle on how the accident occurred. The vehicle and the motor cycle may indeed have had a head-on collision but this was on the motorcyclist’s and not in the middle of the road as he contended. Otherwise how would he explain the fact that both the motor cycle and the vehicle ended up in the ditch on the motor cyclist’s side of the road? His explanation indicates that the motor cyclist encroached in the vehicle’s lane without any cause at all. That is improbable.
24. On his part, PW 2 explained very plausible circumstances causing the collision. PW 2 was an independent witness disinterested in the matter and there was no reason to find that his evidence was not credible. The version of events narrated by him was therefore more believable than that of the driver of the vehicle.
25. The learned magistrate found that the deceased must have seen the Pick-Up approaching as it was during the day and for there to be a head-on collision it would mean he did not take evasive measures. On account of that he apportioned liability in the ratio of 30:70 for the appellants against the respondents.
26. The finding of the learned trial magistrate that in broad daylight the deceased ought to have seen the Pick-up was correct. However, his finding that the deceased did not take evasive action was against the evidence of the eye witness PW 2 who clearly said that the deceased tried to avoid the accident by swerving and the vehicle hit him and they all fell in the ditch to the left. The fact that there was a ditch on the left means the deceased had little he could do, other than what he did, in the circumstances.
27. Consequently, the finding of the learned trial magistrate that the deceased motorcyclist failed to take any evasive action must be upset.
28. There is another issue which the learned trial magistrate failed to consider that was obvious from the evidence of PW 2, that is, that the motor cyclist had just overtaken PW 2 when the collision occurred. This means that he was at high speed as testified by the driver, DW 1 for him to overtake the vehicle driven by PW 2 and also to avoid a collision with the oncoming car which was ahead of the Pick-Up. All the same, the motor cyclist appears to have returned to his lane in time to avoid the oncoming car ahead of the Pick-Up but immediately the collision with the Pick-Up occurred. The collision thus occurred in the motorcyclist’s lane and not in the middle of the road as contended by DW 1.
29. A wholesome consideration of the circumstances obtaining at the time shows that it was not entirely safe for the motorcyclist to overtake PW 2’s car as he did. Therefore, I agree with the submissions by the learned counsel for the respondent that the motorcyclist could not escape blame entirely even as the Pick-up driver was to blame to a greater extent. I therefore find that the apportionment of liability by the learned trial magistrate in the ratio of 30:70 between the motor cyclist and the driver was appropriate even though for different reasons. The ground of appeal on apportionment of liability therefore fails.
b) Assessment of quantum of damages
30. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR).
31. The appellant appears to have dropped the third ground of appeal on the award of damages for pain and suffering as well as the eighth ground of the amended memorandum of appeal on the award of special damages as she did not submit on these two grounds. I therefore leave them as awarded by the trial court at KShs 20,000/= for pain and suffering and KShs 310,000/= special damages.
32. On pain and suffering, in her submissions before the trial court, learned counsel had proposed KShs 20,000/= which is the sum awarded by the trial court. If she had maintained that ground, the appeal could not have succeeded thereon. I find that this award was in order, considering that the deceased died instantly. It was reasonable in line with current awards as per the case of R K O & another v Kenya Power & Lighting Company Ltd [2015] KEHC 3634 (KLR) cited by learned counsel for the appellant before the trial court.
33. On loss of expectation of life, the appellant proposed at the trial and still proposed a sum of KShs 150,000/=. She thus maintains in this appeal that the same be enhanced from KShs 100,000/= awarded by the trial court. She relied on the RKO case above where the deceased died at the age of 40 years from electrocution and the court awarded KShs 150,000/= for loss of expectation of life.
34. The respondents on their part proposed an award of KShs 50,000/= learned counsel terming this as a conventional award. He relied on the case of China Henan International Co-operation Ltd v China Henan International Co-operation Ltd & another [2021] KEHC 2731 (KLR) (the proper citation of the Respondent should be LINET MWANGO NYABARO & DUNCAN GETUNGI NYABARO). However I note that the High Court on appeal observed that the appellant had not challenged the award made by the trial court in the appeal.
35. In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) cited by learned counsel for the respondent, the High Court, Odunga, J. (as he then was) held as follows:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
36. I am persuaded to follow this decision and find that on the principle that this court should not lightly upset the award by the trial court, I will not disturb the award made by the learned trial magistrate. The award of KShs 100,000/= for loss of expectation of life is affirmed and the appeal on that ground is dismissed.
37. On loss of dependency, learned counsel for the appellant submits that the trial magistrate fell into error when he applied a dependency ratio of 1/3 instead of 2/3, a multiplier of 10 years instead of 24 contending that the deceased would have worked in the private sector up to the age of 70 years and a multiplicand of KShs 208,696/= instead of KShs 101,301/= applied by the trial court.
38. Learned counsel for the respondent on his part submits that the trial court was correct in adopting a dependency ratio of 1/3 since the deceased’s wife was also in employment and earning an income. He relies on the case of James Mutunga Mbinda v Stephen Mwalula Mulwa & another (Suing as the Legal Representatives of the Estate of Winfred Mbatha Mwalula (Deceased)) [2021] KEHC 5767 (KLR)where the High Court substituted a dependency ratio of 2/3 made by the trial court with 1/3 finding that the deceased and the spouse were both earning an income and there was no evidence that the deceased was the sole bread winner for the family.
39. At the trial, the respondent had submitted that a dependency ratio of 1/2 be adopted. He now submits that 1/3 dependency ratio adopted by the trial court be retained.
40. With respect, I wish to depart from the finding in the James Mutunga Mbinda case which the learned trial magistrate seems to have relied upon for reasons that even where the two spouses have an income, each would and can still contribute 2/3 of his or her income for the upkeep of the family and the other 1/3 for himself or herself. I am inclined to follow the reasoning in the cases cited by learned counsel for the appellant of Kimunya Abednego alias Abednego Munyao v Zipporah S Musyoka & another [2019] KEHC 10319 (KLR) and Okioko Aepalel & 2 others v Susan Masitsa & another [2018] KEHC 1320 (KLR) where the deceased had a families and a dependency ratio of 2/3 was adopted.
41. Learned counsel also submits that the multiplier of 10 years adopted by the trial court was correct considering the vicissitudes and vagaries of life. He relies on the cases of Wasilwa v Mulongo & another (Suing as the legal and personal representative of the Estate of the Late James Simiyu Wafula) [2023] KEHC 3913 (KLR) where a multiplier of 12 years was adopted for deceased person who was aged 44 years and Charity Mapenzi & another v National Water Conservation & Pipeline Corporation [2005] KEHC 2246 (KLR) where a multiplier of 10 years was adopted for deceased person who was aged 41 years.
42. In the case of Kimunya Abednego (supra) the Court adopted a multiplier of 18 years for a deceased who was aged 42 years while in the case of Okioko Aipalel (supra) the High Court adopted a multiplier of 20 years where the deceased died at the age of 40 observing that he would have lived to work until the age of 60 years, the retirement age.
43. Learned counsels have provided authorities each in support of his position. The decisions cited herein are varied, in support of the position taken by each counsel.
44. The learned trial magistrate adopted a multiplier of 10 years. I am inclined to follow the reasoning in the cases of Kimunya Abednego and Okioko Aipalel and find that the multiplier of 10 years was too low. I will, substitute the multiplier with 20 years because there was evidence by the deceased’s wife, PW 3, that the deceased was in good health at the time he met his death and no reason to suppose that he would not have worked to the ripe age of 60 years for retirement as indicated in his letter of re-engagement dated 1/1/2012 which was produced in evidence as exhibit. I therefore reject the submission by learned counsel for the appellant that he would have worked until 70 years and so a multiplier of 24 years should have been adopted by the trial court.
45. Consequently, the appeal on account of the multiplier succeeds. The finding of the trial court is substituted with a finding that the correct multiplier should have been 20 years.
46. On the multiplicand, learned counsel submits that at the trial, the appellant submitted that the net salary of the deceased was KShs 101,301/= and this was what was applied by the learned trial magistrate. Therefore, the appellant should not be allowed to change course in this appeal and ask that the multiplicand should be KShs 208,696/=. Learned counsel submits farther that transport allowance and mobile allowance should not be included in computation of the multiplicand as these were provided to the deceased to facilitate him to perform his duties at work. Learned counsel submits that taking this into account the correct multiplicand should be KShs 176,196/= and not KShs 208,696/= as submitted by the appellant.
47. I have looked at the pay slip for April 2019 and the basic salary was KShs 244,157/= with transport allowance of KShs 27,500/= and mobile allowance of KShs 5,000/= making a total gross salary of KShs 276,657/=. The pay slip is quite clear in the computation of what was payable to the deceased and needs no further calculation. From that pay slip, the manner to proceed to compute the multiplicand was that from the gross pay of KShs 276,657/= statutory payments namely P.A.Y.E., KShs 66,061/=, N.S.S.F KShs 200/=, and N.H.I.F KShs 1,700/= would be deductible making it 208, 689/=. The submission by learned counsel for the appellant that “other expenses” other than the statutory deductions, which from the pay slip were loan repayments should also have been deducted from the net salary is not correct.
48. However, it is a cardinal principal of pleading that parties are bound by their pleadings. In this case the appellant pleaded that the deceased was earning KShs 244,157/= meaning that the transport and mobile allowance were left out. The ramifications are that this was the figure from which the statutory deductions of KShs 67,961/= were to be made making a multiplicand of KShs 176,961/= as submitted by learned counsel for the respondent.
49. The learned trial magistrate was therefore in error when he applied the sum of KShs 101,301/= as the multiplicand which was arrived at after making those other deductions. That figure is substituted with a multiplicand of KShs 176,961/=.
176,196/= x 20 x 12 x 2/3 = 28,191,360/=.
Disposition
50. The appeal succeeds to the extent of the analyses and findings above and the trial court’s judgment is substituted accordingly.
51. The award of damages therefore works out as follows:
a. Loss of dependency KShs 28,191,360/=
b. Pain and suffering KShs 20,000/=
c. Loss of expectation of life KShs 100,000/=
d. Special damages KShs 310,000/=
Total KShs 28,621,360/=
52. Having apportioned liability in the ratio of 30:70, the damages assessed by this court being KShs KShs 28,621,360/=will be subjected to that ratio making the final award of damages to the appellants to be KShs 20,034,952/=.
53. Each party will bear its costs of the appeal.
54. Stay of execution 30 days granted.
55. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams, this 11th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Obwori (Ms) h/b for Njoroge for the Appellant.
Muturi (Ms) h/b for Magee for the Respondent.
Job: Court Assistant.
Background
1. This appeal was filed through a memorandum amended on 19/3/2024. The record of appeal is dated 29/5/2024 but the cover page shows 30/5/2024.
2. The appeal seeks to challenge the judgment of the learned trial magistrate delivered on 30/11/2023 on both liability and assessment of damages. The suit before the trial court by the appellants against the respondents, in a plaint dated 9/6/2020, was for compensation in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents of the deceased.
3. It was the appellants’ case before the trial court that the deceased met his death as a result of negligence on the part of the 2nd respondent who was the driver of the 1st respondent’s motor vehicle registration number KCG 904N on 1/5/2019 along the Kutus-Kerugoya road at Kaaria area. The deceased was at the time riding motor cycle registration number KMDT 761Y along the said road when the respondents’ motor vehicle also driven on the said road from the opposite direction knocked the deceased’s motor cycle down as a result of which the deceased sustained fatal injuries from which he succumbed on the spot.
4. The respondents filed a joint statement of defence dated 30/10/2020. They denied the appellants’ claim in toto and put them to strict proof. They further pleaded negligence or contributory negligence on the part of the deceased.
5. The appellants called three witnesses at the hearing while the 2nd respondent testified for the defence.
6. Upon considering the evidence, the learned trial magistrate apportioned liability in the ratio of 30:70 for the appellants against the respondents and awarded damages as follows:
a. General damages:
i. Pain and suffering KShs 20,000/=.
ii. Loss of expectation of life KShs 100,000/=.
iii. Loss of dependency KShs 4,052,040/=.
b. Special damages KShs 301,000/=.
Grounds of appeal
7. The appellants were dissatisfied with that decision and now appeal to this court against both liability and quantum of damages awarded. They contend in the grounds of appeal that the trial court should have found the respondents 100% liable for the accident and for quantum, that both special and general damages were inordinately low.
Duty of this court on appeal
8. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence tendered before the trial court and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
9. This holding is reiterated differently in the Indian case cited by learned counsel for the respondent of Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 where the court gave the following guidance:
“The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it.”
case before the trial court
10. PW 1, Cpl Cecily Namu of Kerugoya police station gave evidence on behalf of Cpl Yosuf who conducted investigations in the case but had been transferred to another station. PW 1 said the accident was reported at Kerugoya police station as involving the deceased as a motorcyclist and motor vehicle registration number KCG 904V Toyota Hilux Pick Up. In the Occurrence Book (OB) it was recorded that the driver of the motor vehicle was overtaking when the accident occurred and there was no mention of the motor cycle overtaking. She said the driver of the motor vehicle registration number KCG 904V Toyota Hilux Pick Up was blamed for the accident and he was charged in court with causing death by dangerous driving and the traffic case was at the time of her testimony pending trial.
11. PW 2, Simon Mwai, was an eye witness to the accident. He adopted his witness statement dated 18/6/2022 as his evidence-in-chief. He said he was driving his motor vehicle registration number KAP 872G on the same road in the same direction as the deceased. The deceased overtook him on his motorcycle. In the opposite direction was the respondents’ Pick-Up overtaking a salon car and, in the process, as the rider (deceased) was trying to swerve to avoid a collision, the Pick-Up hit the rider, throwing him up in the air and he landed in the ditch. Both the Pick-Up and motor cycle landed in the ditch off the road.
12. PW 2 and some pedestrians tried to help the rider but realized that he had already passed on. An ambulance arrived at the scene shortly and the medical personnel in it confirmed that the rider was dead. Police officers also came to the scene and begun investigations. PW 2 later testified in the traffic case at Kerugoya in Traffic Case No. 238 of 2019 against the driver of the pick-up who was charged with causing death by dangerous driving.
13. PW 3, Georgina Wambui Waturu gave evidence at the trial and adopted her undated witness statement filed in court on 29/7/2020 as her evidence in chief. She said the deceased was her husband and they had two children A.N. and N.N. both minors. The deceased was working with ICEA Lion General Assurance Ltd as a motor vehicle assessor inspector. He was earning KShs 244,157/= that he applied towards the family upkeep. He was in good health at the time of the accident.
14. The 2nd defendant Robert Nzau Kilonzo testified as DW 1 for the defence. He said that he was at the time driving the motor vehicle registration number KCG 904V Toyota Hilux Pick Up at a speed of 60-80 km/hr on his left lane when the motor cycle from the opposite direction approached at high speed, encroached into his lane and rammed into his vehicle causing extensive damage to the front right side of the vehicle. He sustained injuries on his right hand and was rushed to Kerugoya hospital by Good Samaritans. He said the point of impact was in the middle of the road.
Submissions
15. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
16. Learned counsel for the appellant addressed the appeal on two broad grounds, that the learned trial magistrate erred in law and in fact in failing to find the respondents 100% liable and by awarding damages that were too low in the circumstances.
17. The submissions are more extensively considered in the analysis following.
Analysis
a) Liability
18. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate on findings of fact as was stated in the case of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
19. This Court will however interfere where the finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (see the case of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR)).
20. After trial the learned trial magistrate found on the issue of liability that the accident happened on the lane where the motor cycle was expected to be and that the Pick-up which was coming from the opposite direction should have been on the other lane and that the driver, 2nd appellant, did not explain why he left his lane. He therefore disbelieved the driver’s version of the accident that the deceased was approaching at very high speed and encroached into his lane and rammed into his vehicle head-on whereat the front side of his vehicle was severely damaged and that the point of impact was in the middle of the road. The learned trial magistrate also found that PW 2, was a credible eye witness and his explanation as supported by the police investigations that the driver tried to overtake carelessly was plausible.
21. Learned counsel for the appellant submits that on that evidence the learned trial magistrate should have found the respondent’s 100% liable for the accident. He relies on the case of Mursal & another v Evelyn Nthangu Manesa (Suing as the legal administrator of Chris Kipkoech) [2022] KEHC 286 (KLR) where the High Court observed that direct establishes a particular fact without the need to make an inference in order to connect the evidence to the fact as was the case for PW 2 herein.
22. Learned counsel for the respondent submits that the learned trial magistrate was correct in his finding that evidence showed that there was some negligence on the part of the deceased and therefore was right in his apportionment of liability as he did. He relied on the cases of Alfred Chivatsi Chai & another v Mercy Zawadi Nyambu [2019] KEHC 2083 (KLR) and Kennedy Muteti Musyoka v Abedinego Mbole [2021] KEHC 1751 (KLR) for the position that the deceased contributed to the accident and he could not entirely escape blame.
23. I have reevaluated the evidence on record and I am satisfied that the learned trial magistrate was correct in disbelieving the evidence of the driver of the vehicle on how the accident occurred. The vehicle and the motor cycle may indeed have had a head-on collision but this was on the motorcyclist’s and not in the middle of the road as he contended. Otherwise how would he explain the fact that both the motor cycle and the vehicle ended up in the ditch on the motor cyclist’s side of the road? His explanation indicates that the motor cyclist encroached in the vehicle’s lane without any cause at all. That is improbable.
24. On his part, PW 2 explained very plausible circumstances causing the collision. PW 2 was an independent witness disinterested in the matter and there was no reason to find that his evidence was not credible. The version of events narrated by him was therefore more believable than that of the driver of the vehicle.
25. The learned magistrate found that the deceased must have seen the Pick-Up approaching as it was during the day and for there to be a head-on collision it would mean he did not take evasive measures. On account of that he apportioned liability in the ratio of 30:70 for the appellants against the respondents.
26. The finding of the learned trial magistrate that in broad daylight the deceased ought to have seen the Pick-up was correct. However, his finding that the deceased did not take evasive action was against the evidence of the eye witness PW 2 who clearly said that the deceased tried to avoid the accident by swerving and the vehicle hit him and they all fell in the ditch to the left. The fact that there was a ditch on the left means the deceased had little he could do, other than what he did, in the circumstances.
27. Consequently, the finding of the learned trial magistrate that the deceased motorcyclist failed to take any evasive action must be upset.
28. There is another issue which the learned trial magistrate failed to consider that was obvious from the evidence of PW 2, that is, that the motor cyclist had just overtaken PW 2 when the collision occurred. This means that he was at high speed as testified by the driver, DW 1 for him to overtake the vehicle driven by PW 2 and also to avoid a collision with the oncoming car which was ahead of the Pick-Up. All the same, the motor cyclist appears to have returned to his lane in time to avoid the oncoming car ahead of the Pick-Up but immediately the collision with the Pick-Up occurred. The collision thus occurred in the motorcyclist’s lane and not in the middle of the road as contended by DW 1.
29. A wholesome consideration of the circumstances obtaining at the time shows that it was not entirely safe for the motorcyclist to overtake PW 2’s car as he did. Therefore, I agree with the submissions by the learned counsel for the respondent that the motorcyclist could not escape blame entirely even as the Pick-up driver was to blame to a greater extent. I therefore find that the apportionment of liability by the learned trial magistrate in the ratio of 30:70 between the motor cyclist and the driver was appropriate even though for different reasons. The ground of appeal on apportionment of liability therefore fails.
b) Assessment of quantum of damages
30. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR).
31. The appellant appears to have dropped the third ground of appeal on the award of damages for pain and suffering as well as the eighth ground of the amended memorandum of appeal on the award of special damages as she did not submit on these two grounds. I therefore leave them as awarded by the trial court at KShs 20,000/= for pain and suffering and KShs 310,000/= special damages.
32. On pain and suffering, in her submissions before the trial court, learned counsel had proposed KShs 20,000/= which is the sum awarded by the trial court. If she had maintained that ground, the appeal could not have succeeded thereon. I find that this award was in order, considering that the deceased died instantly. It was reasonable in line with current awards as per the case of R K O & another v Kenya Power & Lighting Company Ltd [2015] KEHC 3634 (KLR) cited by learned counsel for the appellant before the trial court.
33. On loss of expectation of life, the appellant proposed at the trial and still proposed a sum of KShs 150,000/=. She thus maintains in this appeal that the same be enhanced from KShs 100,000/= awarded by the trial court. She relied on the RKO case above where the deceased died at the age of 40 years from electrocution and the court awarded KShs 150,000/= for loss of expectation of life.
34. The respondents on their part proposed an award of KShs 50,000/= learned counsel terming this as a conventional award. He relied on the case of China Henan International Co-operation Ltd v China Henan International Co-operation Ltd & another [2021] KEHC 2731 (KLR) (the proper citation of the Respondent should be LINET MWANGO NYABARO & DUNCAN GETUNGI NYABARO). However I note that the High Court on appeal observed that the appellant had not challenged the award made by the trial court in the appeal.
35. In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) cited by learned counsel for the respondent, the High Court, Odunga, J. (as he then was) held as follows:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
36. I am persuaded to follow this decision and find that on the principle that this court should not lightly upset the award by the trial court, I will not disturb the award made by the learned trial magistrate. The award of KShs 100,000/= for loss of expectation of life is affirmed and the appeal on that ground is dismissed.
37. On loss of dependency, learned counsel for the appellant submits that the trial magistrate fell into error when he applied a dependency ratio of 1/3 instead of 2/3, a multiplier of 10 years instead of 24 contending that the deceased would have worked in the private sector up to the age of 70 years and a multiplicand of KShs 208,696/= instead of KShs 101,301/= applied by the trial court.
38. Learned counsel for the respondent on his part submits that the trial court was correct in adopting a dependency ratio of 1/3 since the deceased’s wife was also in employment and earning an income. He relies on the case of James Mutunga Mbinda v Stephen Mwalula Mulwa & another (Suing as the Legal Representatives of the Estate of Winfred Mbatha Mwalula (Deceased)) [2021] KEHC 5767 (KLR)where the High Court substituted a dependency ratio of 2/3 made by the trial court with 1/3 finding that the deceased and the spouse were both earning an income and there was no evidence that the deceased was the sole bread winner for the family.
39. At the trial, the respondent had submitted that a dependency ratio of 1/2 be adopted. He now submits that 1/3 dependency ratio adopted by the trial court be retained.
40. With respect, I wish to depart from the finding in the James Mutunga Mbinda case which the learned trial magistrate seems to have relied upon for reasons that even where the two spouses have an income, each would and can still contribute 2/3 of his or her income for the upkeep of the family and the other 1/3 for himself or herself. I am inclined to follow the reasoning in the cases cited by learned counsel for the appellant of Kimunya Abednego alias Abednego Munyao v Zipporah S Musyoka & another [2019] KEHC 10319 (KLR) and Okioko Aepalel & 2 others v Susan Masitsa & another [2018] KEHC 1320 (KLR) where the deceased had a families and a dependency ratio of 2/3 was adopted.
41. Learned counsel also submits that the multiplier of 10 years adopted by the trial court was correct considering the vicissitudes and vagaries of life. He relies on the cases of Wasilwa v Mulongo & another (Suing as the legal and personal representative of the Estate of the Late James Simiyu Wafula) [2023] KEHC 3913 (KLR) where a multiplier of 12 years was adopted for deceased person who was aged 44 years and Charity Mapenzi & another v National Water Conservation & Pipeline Corporation [2005] KEHC 2246 (KLR) where a multiplier of 10 years was adopted for deceased person who was aged 41 years.
42. In the case of Kimunya Abednego (supra) the Court adopted a multiplier of 18 years for a deceased who was aged 42 years while in the case of Okioko Aipalel (supra) the High Court adopted a multiplier of 20 years where the deceased died at the age of 40 observing that he would have lived to work until the age of 60 years, the retirement age.
43. Learned counsels have provided authorities each in support of his position. The decisions cited herein are varied, in support of the position taken by each counsel.
44. The learned trial magistrate adopted a multiplier of 10 years. I am inclined to follow the reasoning in the cases of Kimunya Abednego and Okioko Aipalel and find that the multiplier of 10 years was too low. I will, substitute the multiplier with 20 years because there was evidence by the deceased’s wife, PW 3, that the deceased was in good health at the time he met his death and no reason to suppose that he would not have worked to the ripe age of 60 years for retirement as indicated in his letter of re-engagement dated 1/1/2012 which was produced in evidence as exhibit. I therefore reject the submission by learned counsel for the appellant that he would have worked until 70 years and so a multiplier of 24 years should have been adopted by the trial court.
45. Consequently, the appeal on account of the multiplier succeeds. The finding of the trial court is substituted with a finding that the correct multiplier should have been 20 years.
46. On the multiplicand, learned counsel submits that at the trial, the appellant submitted that the net salary of the deceased was KShs 101,301/= and this was what was applied by the learned trial magistrate. Therefore, the appellant should not be allowed to change course in this appeal and ask that the multiplicand should be KShs 208,696/=. Learned counsel submits farther that transport allowance and mobile allowance should not be included in computation of the multiplicand as these were provided to the deceased to facilitate him to perform his duties at work. Learned counsel submits that taking this into account the correct multiplicand should be KShs 176,196/= and not KShs 208,696/= as submitted by the appellant.
47. I have looked at the pay slip for April 2019 and the basic salary was KShs 244,157/= with transport allowance of KShs 27,500/= and mobile allowance of KShs 5,000/= making a total gross salary of KShs 276,657/=. The pay slip is quite clear in the computation of what was payable to the deceased and needs no further calculation. From that pay slip, the manner to proceed to compute the multiplicand was that from the gross pay of KShs 276,657/= statutory payments namely P.A.Y.E., KShs 66,061/=, N.S.S.F KShs 200/=, and N.H.I.F KShs 1,700/= would be deductible making it 208, 689/=. The submission by learned counsel for the appellant that “other expenses” other than the statutory deductions, which from the pay slip were loan repayments should also have been deducted from the net salary is not correct.
48. However, it is a cardinal principal of pleading that parties are bound by their pleadings. In this case the appellant pleaded that the deceased was earning KShs 244,157/= meaning that the transport and mobile allowance were left out. The ramifications are that this was the figure from which the statutory deductions of KShs 67,961/= were to be made making a multiplicand of KShs 176,961/= as submitted by learned counsel for the respondent.
49. The learned trial magistrate was therefore in error when he applied the sum of KShs 101,301/= as the multiplicand which was arrived at after making those other deductions. That figure is substituted with a multiplicand of KShs 176,961/=.
176,196/= x 20 x 12 x 2/3 = 28,191,360/=.
Disposition
50. The appeal succeeds to the extent of the analyses and findings above and the trial court’s judgment is substituted accordingly.
51. The award of damages therefore works out as follows:
a. Loss of dependency KShs 28,191,360/=
b. Pain and suffering KShs 20,000/=
c. Loss of expectation of life KShs 100,000/=
d. Special damages KShs 310,000/=
Total KShs 28,621,360/=
52. Having apportioned liability in the ratio of 30:70, the damages assessed by this court being KShs KShs 28,621,360/=will be subjected to that ratio making the final award of damages to the appellants to be KShs 20,034,952/=.
53. Each party will bear its costs of the appeal.
54. Stay of execution 30 days granted.
55. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams, this 11th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Obwori (Ms) h/b for Njoroge for the Appellant.
Muturi (Ms) h/b for Magee for the Respondent.
Job: Court Assistant.