1. This Appeal arises from the Judgement and decree in Eldoret Chief Magistrates Court Case No. 838 of 2002. The Respondent instituted the suit vide a Plaint dated 27/10/2022 seeking compensation on behalf of the dependants of the deceased.
2. The accident occurred on 7th March 2022 and it involved the deceased’s motor cycle registration number KMDP 107D and the Appellant’s motor vehicle registration number KCZ 379T which was allegedly being driven by the Appellant's driver. The Respondent pleaded that that the Appellant’s driver negligently drove, managed and controlled motor vehicle registration number KCZ 379T that it lost control and collided into the deceased’s motor cycle registration number KMDP 107D thereby causing fatal injuries to the deceased. The Respondent sought general damages, special damages, costs of the suit and interest.
3. The Appellant filed a defence dated 08/02/2023 through Messrs Kitiwa & Partners. The occurrence of the accident, ownership of the motor vehicle, among others, was generally denied. Liability for the accident was also denied and, in the alternative, it was averred that if the accident occurred as alleged, then the same was wholly caused by negligence on the part of the deceased. The Appellant pleaded that the doctrine of Res Ipsa Loquitor was applicable.
4. The suit proceeded to trial and the Respondent called 2 witnesses viz a police officer and a civilian witness, while the Appellant did not call any witness.
Evidence at the Trial Court
5. PW1 No. 83722 PC Sitty Mohammed, testified that she a police officer attached to Eldoret Central Police Station. She stated that the accident occurred on 07/03/2022 along the Eldoret Webuye Road at Tairi Mbili area. That the said accident involved motor vehicle registration number KCZ 379Y and a motorcycle registration no. KMDP107D wherein the rider sustained fatal injuries. She produced the Police Abstract as PExh1 and stated that the Investigating Officer was on leave
6. In cross examination she stated that she was not the investigating officer and she did not visit the scene or witness the accident. She additionally stated that she did not have the occurrence book or the police file. That she couldn’t tell the court how the accident occurred and she did not have the sketch maps. She further testified that investigations are still pending and that she only produced a Police Abstract as proof that an accident had occurred.
7. PW2, Joan Jepkorir, adopted her witness statement as evidence in chief. She testified that the deceased was her husband. That she was issued with grant of Letters of Administration Ad Litem (PExh2) and a Death Certificate(PExh3). She additionally produced the chiefs’ letter (PExh4) and her children’s’ birth certificate(PExh5). It was her testimony that her late husband was a casual worker who worked as plumber and earned Kshs. 15,000/- per month She produced his employment letter as PExh6. That over and above that he used his motorcycle as a boda boda operator and earned Kshs. 30,000/- per month. She further testified that he was 49 years old and that she incurred Kshs. 500,000/- for funeral expenses. She urged that a result of the accident, her life changed as the deceased was the sole breadwinner of the family and that upon his death, they were forced to move from their house and go back to their rural home. She prayed that they be compensated.
8. PW3, Elijah Barno Kerich, adopted his witness statement dated 02/05/2023 as his evidence in chief. He testified that he is a boda boda rider and he witnessed the road traffic accident in which the deceased sustained fatal injuries. That the accident occurred on 07/03/2022 at around 7pm. He stated that it was not dark. He testified that he had taken a client to Huruma and was returning to town and as he approached Tairi Mbili, he saw a lorry KXCZ 279Y. That he was behind the lorry and the deceased rider was in front of the said lorry. That the deceased was riding on motor cycle KMDP 107D.
9. He testified that the lorry driver hit the rider in front of him and the rider died on the spot. That the lorry was speeding. He stated that people came to the scene. He stated that he then took the phone of the deceased and called his wife to inform him that her husband had been involved in an accident and she came in a short while. That the police too came and he explained to them how the accident occurred. And gave them his contacts. He stated that he blamed the driver of the lorry for causing the accident by not maintaining a reasonable and slow speed at that spot which is a busy place.
10. In cross examination, he reiterated his evidence in chief and further stated that he didn’t see the impact and he only heard the sound of the collision. That the rider was in front of the lorry and after it hit the deceased, the lorry moved forward leaving him lying on the road and stopped a few metres ahead. That the road had no pot holes and the rider did not hit the lorry on the side. That the accident occurred on the left side of the road facing Eldoret. That because they were concentrating on saving the life of the deceased, much as he saw the motor cycle, he could not tell its condition and as for the lorry, it was damaged at the front on the left side bumper. He also stated that notwithstanding the fact that the Police Abstract does not have his name as a witness, he did talk to the police that came to the scene. He stated that he does not know if the police recorded his statement.
11. DWI Julius Somoei Rotuk who is the 2nd Appellant is the only witness who testified on behalf of the defendants. He adopted his Witness Statement and testified that he was driving motor vehicle registration no KCZ 379T along the Eldoret Webuye Road at around 7pm. That at Tairi Mbili area, he heard a sound and stopped to see the cause of the sound. He went behind the vehicle and heard people saying he had hit something. That he saw a motorcycle and someone on the road and they were not in front of him. He testified that the rider of the motor cycle was overtaking from the left side and hit him when he attempted to re-join the highway. That he called the police and they came in 30 minutes and thereafter they went to Eldoret Police Station. That the following day his vehicle was inspected and he was issued with the inspection report which he produced as DExh1He denied causing the accident and further stated that he has not been charged with any traffic offence. In cross examination, he stated that he had not seen the rider and that he passed him on the left side.
12. Upon considering the testimonies of the witnesses and the evidence tendered in court, the submissions on record and attendant authorities, the trial court entered judgement in favour of the Respondents. The trial magistrate apportioned liability at 100% and awarded damages as follows;
i) Pain and suffering Kshs. 10,000
ii) Loss of Expectation of life Kshs. 100,000/-
iii) Loss of Dependency Kshs. 2,000,000/-
iv) Special Damages Kshs. 267,150/-
Appeal
13. Aggrieved by the Judgment of the trial Magistrate, the Appellants filed this Appeal on 16/10/2023 citing 7 grounds in his Memorandum of Appeal as hereunder:
i) That the learned trial Magistrate erred in law and fact in holding the Appellants 100% liable contrary to the evidence on record.
ii) That the learned trial Magistrate erred in law and fact in failing to find that the Respondent did not prove her case on a balance of probabilities.
iii) That the learned trial Magistrate erred in law and fact in failing to find that the deceased was the author of his own misfortunes.
iv) That the learned trial Magistrate erred in law and fact in failing to consider the Appellants’ submissions on liability.
v) That the learned trial Magistrate erred in law and in fact in awarding general damages that were inordinately excessive.
vi) That the learned trial magistrate erred in law and fact in using wrong principles in awarding damages.
vii) The learned trial magistrate erred in law and fact in awarding special damages that were not pleaded and proved.
14. The Appeal was canvassed by way of written Submissions. The Appellants’ Submissions was filed on 15/01/2025 while the Respondent filed on 27/01/2025.
Appellant’s Submissions
15. Counsel for the Appellant urged that in civil cases, a Plaintiff that is, the Respondent herein, is required to prove her claim against the defendant on a balance of probabilities. He cited the case of Kirugi & Another vs. Kabiya & 3 Others [1987] KLR 347 in support. Additionally, he referred the court to the provisions of Section 107 of the Evidence Act. He urged that Section 78 of the Civil Procedure Act provides the role of a first Appellate court as follows:
“...re-evaluate, reassess and reanalyse the extracts of the record and draw its own conclusions.”
and the cited Court of Appeal decision in Peter M. Kariuki v Attorney General [2014] eKLR in support.
16. He recounted the evidence of the witnesses in trial court and proceeded to analyse the same. Counsel urged that the Police Officer’s evidence was of nominal value to the trial court in assessing liability against the Appellant because the said police officer was not the Investigating Officer, she did not visit the scene nor did she produce sketch maps or police file. He urged that without the sketch maps, the trial court could not determine the point of impact and concluded that the evidence of the police officer in that regard amounts to hearsay and that as it is, the evidence lends credence to the appellants’ case that it is the deceased who abruptly overtook the motor appellant’s vehicle registration number KCZ 379T and hit it as stated in his testimony thereby causing the accident. He cited the case of Postal Corporation of Kenya & another vs. Dickens Munayi [2014] eKLR in support of this submission.
17. Counsel submitted further that the trial magistrate relied on the Police Abstract in attributing blame to the appellant for causing the accident. He urged that a police abstract does not prove negligence on the part of a Defendant but only proves the fact that following an accident, the occurrence thereof was reported’ at a particular police station. He relied on the case of Peter Kanithi v Aden Guyo Itaro (2014) eKLR and Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR where Justice Odunga opined that:
“A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence. The Police Abstract Report which was produced before the trial court did not contain any other information apart from the date, of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the vehicle, the victim and the name of the investigating officer. There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the Respondents.”
18. Counsel urged that a police abstract is prepared based on preliminary investigations and statements, which may not reflect the true circumstances of the accident and that in the absence of an investigation report, police file, sketch map or evidence from the Investigating Officer explaining the basis of the findings, the contents of a police abstract should not be used as the sole basis of attributing blame to the Appellants. That in the circumstances, the reliance on the police abstract by the trial Magistrate to attribute blame on the appellants was flawed and unsupported by the evidence on record.
19. On the evidence of PW3 wo testified as the eye witness, Counsel submitted that the said witness testified that the deceased rider was ahead of the lorry when he was hit, and on cross examination, he testified that he was behind the lorry that he alleged hit the motor cyclist. It was his testimony that he did not see the impact but only heard the sound of the collusion. Counsel posited that based on the position of PW 3, he could not see the accident as it occurred and his testimony is only based on what he heard, which was a sound of collision. That therefore, he could not credibly state what had preceded the accident which information was vital in accurately establishing who was at fault based. Additionally, Counsel submitted that the fact that he was not listed as an eye witness in the Police Abstract coupled with the witness’s testimony that he did not record a statement with the police when the accident occurred bring to question the fact of whether the witnesses actually witnessed the accident.
20. Counsel submits that the witness neither witnessed the preceding events nor the accident itself and could therefore not state the point of impact. That in the circumstances, his testimony bears nominal value That in these circumstances, he cannot be viewed as a credible witness and the court should not have considered his testimony. Counsel reiterated that the trial magistrate erred since he relied on the testimony of PW3 as a basis of apportioning liability on the Respondent whereas PW3 had clearly indicated that he was behind the lorry and did not see what happened.
21. Counsel urged that from DW1’s testimony, it is evident that it was the deceased who was at fault since he rode his motorcycle recklessly and negligently. He relied on the case of Nandwa v Kenya Kazi Ltd [1998] KLR, where the Court of Appeal held that liability must reflect the degree of fault of each party based on the evidence to buttress this submission. Additionally, he submitted that no evidence was brought against the appellant’s driver proving that he caused the said accident. He urged that the trial magistrate ought to have found the deceased 100% liable.
22. Counsel submitted that this court can interfere with the award of the lower court, citing the cases of the Jane Chelagat Bor v Andrew Otieno Onduu (1988-1992) 2 KAR 288 and Kemfro Africa Ltd t/a Meru Express service & Gathogo Kanini v AM Lubia & another (1982 — 1988) 1 KAR 777 in support. He further submitted that the damages awarded that were inordinately high and the approach used was flawed and as such, this court has the discretion to interfere with the Hon Magistrate’s award.
23. On the limb of Pain and suffering counsel submitted that damages for pain and suffering in fatal accident claims are designed to compensate the deceased’s estate for the pain and suffering the deceased endured before death. He urged that from the evidence on record, the deceased died on spot and relied on the case of Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative and Administrator of the Estate of Phineas Murithi (deceased) [2020] eKLR where the court awarded Kshs. 10,000/= for pain and suffering for someone who died on the spot in submitting that a similar amount would be adequate compensation under this head. In this regard, he conceded that the award of Kshs. 10,000/= by the lower court is sufficient.
24. On the limb of Loss of expectation of life in submitting that the death certificate produced by the Plaintiff shows that the deceased died at the age of 49 years, Counsel urged that an award of Kshs. 70,000 would be sufficient. He cited the case of FMM & FKS (Both Suing as the Personal Representative of the Estate of M K (Deceased) v Joseph Njuguna Kuria & Moses Gathogo Ndung’u [2016] eKLR, where in deciding on an award on loss of expectation of life, J. Aburili stated as follows;
“I would agree that in life there are many vicissitudes and therefore an award of Kshs 100,000 would be sufficient based on the decision on Nairobi HCC 116/93 John Murithi Kariuki V George Mwangi which was decided in 2012.On damages for loss of expectation of life, it was submitted that an award of Kshs 70,000/-would be sufficient.''
25. Counsel additionally sought to rely on the case of Godana Guyo Halake & another V Patrick Ndeli Ndoli & another (2017) eKLR, where a sum of Kshs.70, 000/= was awarded for loss of expectation of life.
26. On loss of dependency, counsel submitted that the trial magistrate erred in determining the award for loss of damages by adopting the global lump sum approach. He submitted that the Hon Magistrate ought to have adopted the multiplier approach when determining the same. On the Dependency Ratio, counsel submitted that the Respondent however failed to provide any proof in support of her testimony that she was married to the deceased since. That additionally, she failed to prove that she and the alleged children depended on the deceased. Counsel cited the case of Gerald Mbale Mwea vs. Kariko Kihara & Another [1997] eKLR, wherein it was stated, inter alia, that:
"The issue of dependency is always a question of fact to be proved by be who asserts it.”
27. He also relied on the case of James Mukolo Elisha & Another vs. Thomas Martin Kibisu [2014] eKLR. and urged the Court to find that the Respondent had failed to prove dependency and as such a dependency ratio of 1/3 would be sufficient.
28. On the multiplicand, counsel submitted that Section 3 of the Insurance (Motor Vehicle Third Party Risks) Act defines earnings as revenue gained from labour or services and includes the income or money or other form of payment that one receives from employment, business or occupation or in the absence of documentary evidence of such revenue, the applicable minimum wage under the Labour Relations Act or the determination of the reasonable income, whichever is higher. He submitted that the Respondent did not adduce any proof to show that the deceased was a plumber nor the amount of money that he used to give her. She also did not have anything to prove the Kshs. 30,000/= nor the Kshs. 45,000/= that she alleged the deceased used to earn.
29. Counsel urged that it is trite law that in the absence of proof of income the court has to resort to the minimum wage prevailing at the time of the deceased’s death. He cited the case of Gachoki Gathuri (Suing as Legal Rep. of the Estate of James Kinyua Gachoki (Deceased) V John Ndiga Njagi Timothy & 2 Others [2015] eKLR where the court held that; -
"It is trite law that where there is no proof of income, the court will adopt the minimum wage provided in the Regulations of Wages (General Amendment) Order.”
30. Counsel urged that since the Respondent failed to prove that the monthly income, a monthly wage of Kshs. 8,109/-to Kshs 9, 000/- be adopted as the multiplicand. On the multiplier, counsel cited the case of Nelly Nduku Mutua (suing as the legal representative of the estate of James Mutua Makenzi (deceased) versus Africa Line Transport Co Limited & another [2019] eKLR, where the court adopted a multiplier of 10 years for a deceased who died at the age of 48 years. He also cited the case of Crop Africa Limited versus Joseph Murangiri (2020) eKLR, the where the appellate court upheld the trial courts multiplier of 11 years where the deceased died aged 47 years and Christine Chamaiyek v Linister Transporters Ltd [2007] eKLR where the court relied on a multiplier of 6 years for a deceased who was 51 years old at the time of death. He therefore urged that a multiplier of 8 years would be sufficient.
31. On Special Damages Counsel urged that the same were pleaded but not proved. He stated that the basic principle of Special Damages is that they must be specifically pleaded and proven, citing the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of l983 [1985] KLR 716 and Nathan Nyambu Magbanga V Benard M. Wanjala & Another [2012] eKLR in support of this submission. He stated that the Respondent pleaded Kshs. 525,650/- but produced a receipt for Kshs. 97,500/- from Baraka Supermarket, Kshs. 84,500/- from Neema Ceremonies, Kshs. 25,000/- for clothing, Kshs.37, 000/- for Kipagenge tents, Kshs. 22,600/- for post-mortem expenses and Kshs. 550 for copy of records. That these receipts came to a total of Kshs. 267,150/- which Counsel urged are the only Special damages that were proved which is what ought to have been awarded.
32. Counsel urged the court to allow the appeal as prayed.
Respondents’ Submissions
33. Counsel for the respondent submitted that the determination of this appeal revolves around the question whether the Respondent proved her case on a balance of probabilities and whether the awards in quantum of damages should be disturbed. He cited Section 107 (1) of the Evidence Act and Sections 109 and 112 of the same Act on Evidential Burden of Proof. Further, that the two provisions were dealt with in Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another (2005) 1 EA 334.
34. Counsel for the respondent also recounted the testimonies given in court and submitted that the burden was on the Respondent to prove the averments pleaded in her plaint in the trial court. He cited the decision in Mohamed Dagane Falir v Alfonce Mutuku Muli & another (2020) eKLR and Palace Investment Ltd -vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR on what amounts to a balance of probabilities.
35. Counsel urged that PW1 confirmed that the accident which happened on 7/03/2022 was reported to their station. The accident involved the deceased who was the rider, and the 2nd Appellant who was listed as the driver of the lorry on the said date. He urged that this corroborates the Respondent’s testimony to the occurrence of the accident and places the driver, DW1 at the scene of the accident on the day of the accident. He stated that it is the testimony of both PW3 and DW1 that when the collision occurred, the traffic police were summoned and they arrived at the scene of the crime. That further, it is not in contention that an accident happened and a fatality occurred.
36. Counsel submitted that DW1 gave contradicting testimony as to the position of the rider. He first claimed that the deceased was overtaking him from the left side and that the motor- cycle hit the left side of the lorry. On cross examination he went on to state that the rider was not overtaking him but simply passing on the left side of the road and that it is the front part of the vehicle that was damaged. On re-examination, DW1 went on to state that he didn’t see the rider but only heard a noise. That further the rider hit the centre of his vehicle and not the side.
37. Counsel urged that these contradicting statements create doubt on whether the driver of the lorry was keen while driving the motor vehicle and if he truly was in control of the motor vehicle. Counsel submitted that being a certified driver, it was expected of him to be a keen driver and road user. That the fact that it took him to hear the noise to stop, indicates negligence as pleaded by the Plaintiff as he was not on the look-out. Further, that if indeed the rider was on the left side of the road as DW1 claims and that he had seen him, then he ought to have taken notice and driven cautiously. The fact that he testified to seeing the rider to not seeing the rider indicates that his testimony cannot be relied upon as it is untrue. The inspection report which he produced was unclear but however indicates that there was some damage to the front bumper cementing the fact that DW1 was driving behind the rider.
38. Counsel submitted that PW3 testified to hearing a collision and when he went to see the cause of it, he found the rider and the motorcycle on the ground, in front of the lorry. On cross examination he confirmed to seeing the impact dent on the left front side of the lorry’s bumper which is consistent to the inspection report that the front side of the bumper had been damaged. Counsel urged that it is trite law that an eye witness is a person who gives direct evidence on how an event took place and therefore his/her testimony would have more probative value compared to that of a corroborative witness who can only but provide circumstantial or indirect evidence of the events surrounding the accident. He submitted that PW3’s evidence was not impeached and the defence could not prove that he was not at the scene of the accident on the day it happened. Additionally, he submitted that DW1 admitted to there being eyewitnesses who confirmed to him that he had hit something. The statement is consistent with PW3’s testimony of hearing a collision and further strengthens the fact that since there were many eyewitnesses, and that his evidence was not discredited, it cannot be that since PW3’s name did not feature in the police abstract then he did not witness the accident.
39. Counsel submitted that the Appellant was unable to meet the evidentiary burden of proof under Section 109 and 112 of the Evidence Act. He urged that by the fact that DW1 admitted to not seeing the rider of the motorcycle prior and at the time of the accident, then the particulars of negligence on part of the deceased become a nullity as he did not witness the deceased cause the accident and thus the Appellant failed to discharge the burden of proof as per the said sections. That the Appellant did not prove that any of the alleged negligent acts or omission against the deceased which caused or materially contributed to the accident. Counsel further stated that the Respondent produced the deceased’s driving license to indicate that the deceased was a certified road user as well. With this in mind, the burden of proof on the Appellant to demonstrate negligence on part of the deceased became higher and he did not prove it as pleaded.
40. Counsel submitted that it is not in doubt is that a collision occurred between the deceased and the Appellant’s vehicle. Counsel cited the case of Treadsetters Tyres Ltd Vs John Wekesa Wephukulu (2010) eKLR and the case of Evans Nyakwana Vs Cleophas Bwana Ongaro (2015). where it was held that,
“the onus was on the Appellant to prove the driver's negligence and further to prove a causal nexus between the driver's negligence and the accident that occurred.”
41. Counsel reiterated that the Appellant failed to meet the threshold that could infer negligence on the part of the deceased. He urged that what the respondent needed to prove was liability of the appellant on a balance of probability and not beyond reasonable doubt and evaluating the evidence on record, she discharged that burden.
42. On liability, Counsel cited the decision of the High Court in Civil Appeal No. 73 of 2019 - Julita Akinvi Puma v Hillpark Investment Company Limited & another (2022) eKLR and urged that the 2nd Defendant admitted to being the driver of the motor vehicle. Further, that this was confirmed by the Police Abstract, and that he also admitted to a collision happening. Pursuant to the collision, he found the deceased lying lifeless on the road. He urged that by virtue of him hitting the rider while driving the lorry makes him liable for negligence as particularized in the plaint. The 1st Defendant, who was the registered owner of the lorry as proved by the search records, then becomes vicariously liable for the tortious acts committed by his employee. Counsel urged that Vicarious liability is defined in Black’s Law Dictionary 10th Edition by Bryan A. Gamer as
“liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties - also termed as imputed liability.
43. He also cited the case of M.O.M Amin Transporters Ltd Mariam Amin Bahi v Alexander Ndung’u Mbugua & 2 others (20191 eKLR which further defined vicarious liability and that the said Doctrine of Vicarious Liability was expounded in the case of Morgan v Launchbury (1972)2 All ER 606 where the court stated;
“that to establish agency relationship it was necessary to show that the driver was using the car at the owners request express or implied or in his instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.”
44. That the principle was further enunciated in John Nderi Wamugi vs. Ruhesh Okumu Otiangala, Civil Appeal No. 24 of 2015 where the Court stated:
“Vicarious liability is not pegged on legal ownership (of a vehicle) but on employer/employee or agent/principal relationship with particular emphasis on who employed and controlled the tort-feasor.”
45. Counsel therefore urged that the 1st Appellant’s liability is based on putting his motor vehicle in possession of the 2nd Appellant who ended up being a negligent driver. That the 1st Appellant owed a duty of care to other road users to ensure that whoever has possession and use of its vehicle is not negligent. He further submitted that the 2nd Appellant was unable to prove ways that the deceased contributed to the occurrence of the accident, the steps he took to avoid the resultant accident or the fact that the accident was caused by circumstances not within his control. He urged that the inconsistency in the 2nd appellant statement and testimony affirms his involvement in the matter as the particulars of negligence can be singled out. He maintained that the court was justified in finding the 1st Appellant vicariously liable for the acts of negligence of the 2nd Appellant who admitted being the driver/agent of the motor vehicle registration number KCZ 379T at the material day and time of the accident.
46. Counsel submitted that the liability apportioned to the Appellants in the trial court was based on fair analysis of the case and the same should remain as is. That the Appellants are 100% liable for the accident for they were been able to disprove the negligence claims by the Respondent. They were also unable to prove the negligence claims on part of the deceased and it is for this reason that the Respondents prayed that the award on liability be upheld.
47. On the issue of quantum, Counsel submitted that the amount payable as compensation to accident victims should be fair, and that the amount is entirely at the discretion of the Trial Courts subject to the supervision by the Superior Courts of Law in the event that the same turns out to be unreasonably large or unreasonable inadequate. He urged that it is the Respondent’s submission that she supports the award made by the trial court and he urged this court not to disturb the awards given as it was sufficient.
48. Counsel submitted that the interference of an award of damages by a trial court is justified on the well- known principle of inordinately high or low award as to amount to an unreasonable estimate or plain error and misapprehension of evidence in the assessment of damages. He cited the case of Nyota Tissue Products v Charles Wanga & 4 Others (2020) Eklr. Further, he submitted that in the assessment of damages the trial court has discretion and is only bound by need to observe the principles for the award of damages as set out in Southern Engineering Company Ltd. v. Mutia (1985) KLR 730.
49. Counsel submitted that it should be noted that at the time of the accident, the deceased was wearing a helmet and a jacket. He urged that the trial court awarded a conventional sum of Kshs. 10,000/- for pain and suffering which is not disputed. Further, that on loss of expectation of life, the award of Kshs. 100,000/= was sufficient and reasonable. He urged that the trial court cited the landmark case of Hyder Nthenya Musili & Another vs. China Wu Yi Limited & another (2017) eKLR and urged that in light of this precedent, it is quite evident that the award given for loss of expectation of life was discretionary and within reasonable confines. He urged that it be upheld.
50. On dependency, counsel submitted that the Respondent produced her children’s Birth Certificates proving that the deceased bore children with her and a Chief’s Letter to indicate that the chief knew of the deceased and his dependants to include his children and wife who is the Respondent herein. Further, that the trial court held that she the respondent had been unable to prove his earnings as a boda-boda rider and as a result, since there was no proof of the deceased’s monthly income, the court had no option but to award a global for loss of dependency citing 3 cases to buttress his position for reasons that it was the best approach in the circumstances and so the Hon Magistrate did not err as submitted. In support of this submission, counsel cited the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR.
51. Counsel also submitted that the multiplier applied which was at the court’s discretion was appropriate and the award proffered commensurate to the injuries sustained and the circumstances of the case as was well supported by the plethora of cases cited by the trial magistrate. Counsel additionally relied on the case of Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi (Civil Appeal 120 of 2021) (2024) in support of this submission.
52. On special damages, counsel urged that the basic principle of special damages is that they must be specifically pleaded and that out of the damages of Kshs 525,650/= claimed by the Respondent, she proved a total of Kshs 267,150/= which was duly awarded to her and so the trial Magistrate applied the correct principle in awarding the special damages and the same is sufficient as awarded and should not be disturbed. Counsel urged the court to dismiss the appeal with costs as it was unmeritorious.
Determination
53. Having considered the Grounds of Appeal filed by the Appellants, it is my considered opinion that the following arise for determination;
i) Whether the trial court erred in its apportionment of liability
ii) Whether the trial court erred in its award of damages
54. The duty of the first appellate court is as was set out in the case of Kenya Ports Authority v Kuston (Kenya) Ltd. [2009] 2 EA 212, the following was stated:
“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”
55. On liability, in the case of Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 Lord Reid reasoned that:
“To determine what cause an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it …. The question must be determined by applying common sense to the fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can apply generally.”
56. In the case of Haji vs Marair Freight Agencies Ltd (1984) KLR, 139 the Court of Appeal held;
“Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable contribution the blame can be apportioned equally on each …...”
57. I have considered the evidence of the trial court on how the accident occurred. From my summation of the same, it is clear that none of the witnesses, not the PW3 and not DW1 can be said to have witnessed the occurrence of the accident for the court to conclusively rely on the evidence of either one of them and particularly that of PW2 as the trial court did and find that the accident occurred in the manner narrated by them. PW2 from his evidence sated that he was behind the lorry and only hear the bang. But even that aside, given the size of a lorry vis-a- vis the size of a motor cycle, it is highly improbable and most unlikely that the PW2 was in a position to see what was ahead of him. From their testimony, it is clear that each one of them witnessed the scene of the accident after it had occurred. However, what is common ground it that the deceased was hit by the front left side of the appellant’s vehicle.
58. The 2nd appellant states that the deceased was riding his motor cycle on the left side of the appellant’s motor vehicle and it was when he intended to join the road from this side that they collided. PW2 testified that the deceased was hit from behind. Further, I do agree with the submissions of the Counsel for the appellant that the testimony of the Police Officer who testified as PW1 is not helpful at all for the reasons given as herein summarized. I also note from the record that there was no post mortem report produced stating on which part of the body the fatal injuries sustained were. If this had been availed, the type of injuries sustained would have been of assistance to the court even if minimally in determining how the collision occurred and therefore able to determine the probable manner in which the motor vehicle and the motor cycle impacted on each to assist in determining liability. As the evidence stands, it is not possible for the court to conclusively find even on a balance of probabilities that the accident was solely caused by the negligence of the appellant. In this regard then, it is my finding that the Hon Magistrate erred in apportioning liability at 100% as against the Appellant. I therefore set aside this finding and apportion liability equally as between the appellants and the respondent at the ratio of 50:50.
59. On the heads under Pain and suffering and Loss of Expectation of life, the authority of the Hon Justice Aburili herein above cited by the appellants themselves and the holding in the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court is relevant. It was stated therein as follows-
“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. 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.
60. In light of the above authority, having considered the evidence which is to the effect that the deceased died on the spot, was healthy and therefore had the expectation of living a long fulfilling life despite the vagaries uncertainties and vicissitudes of life, I am satisfied that the Hon Magistrate rightly directed himself in the amounts awarded under this head.
61. On whether the trial court erred in adopting a global award on Loss of Dependency, of relevance is the case of Mary Khayesi Awalo & Another - Vs- Mwilu Malungu & Another ELD HCCC NO. 19 of 1997 [1999] eKLR where Nambuye J (as she then was) stated that: -
“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”
62. Further on the insistence by Counsel for the appellant in his submissions that the Hon Magistrate should have used the multiplier as opposed to the global award, the finding in the case of Mwanzia v Ngalali Mutua Kenya Bus Ltd and quoted with approval in Albert Odawa v Gichumu Githenji NKU HCCA No. 15 of 2003 (2007), KLR is relevant. Therein Justice Ringera (as he then was) was of the following view;
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
63. In this case, no proof of work, profession and/or income was availed by the respondent to support her case to warrant the argument by Counsel for the appellant that the Hon Magistrate ought to have applied the Minimum Wage Regulations. In associating myself entirely with the above cited decisions, I am satisfied that the Global award was the best option in determining the appropriate award to pay under this head. I am also satisfied with the Hon Magistrate’s finding that the respondent sufficiently proved by way of the exhibits availed that she was married to the deceased and they had three children. In noting that the children left behind by the deceased are still relatively young and the deceased was their sole breadwinner of the family as is the uncontroverted evidence of PW3, it is my considered opinion that the global award of Ks. 2,000,000/-is a tad too low in the circumstances and I therefore enhance the same to Ks. 3,000,000/-
64. Lastly, I am satisfied that the Special damages as awarded were Specifically pleaded and proved and I see no reason to interfere with the same.
65. The upshot of the above is that the Appeal is allowed only to the extent of the Hon Magistrate’s apportionment on liability with the final determination being as follows;
i) THAT the Hon Magistrate’s finding on liability at 100% against the Appellant is set aside and liability is now hereby apportioned at the ratio of 50:50
ii) THAT the Hon Magistrate’s award on Pain and Suffering at Ks. 10,000/- is now hereby upheld
iii) THAT the Hon Magistrate’s award on Loss of Expectation of life of Ks. 100,000/- is now hereby upheld
iv) THAT the Hon Magistrate’s award on Loss of Dependency of Ks. 2,000,000/- is set aside and the same is enhanced to Ks. 3,000,000/-
v) THAT the Hon Magistrates award on Special Damages of Ks. 267,150/- together with costs and interest at court rates is upheld
vi) TOTAL less 50% contribution comes to Ks. 1,688,575/=
vii) THAT the appellant is to bear the costs of the Appeal.
Read Dated and Signed at ITEN on 2nd April 2025
2. The accident occurred on 7th March 2022 and it involved the deceased’s motor cycle registration number KMDP 107D and the Appellant’s motor vehicle registration number KCZ 379T which was allegedly being driven by the Appellant's driver. The Respondent pleaded that that the Appellant’s driver negligently drove, managed and controlled motor vehicle registration number KCZ 379T that it lost control and collided into the deceased’s motor cycle registration number KMDP 107D thereby causing fatal injuries to the deceased. The Respondent sought general damages, special damages, costs of the suit and interest.
3. The Appellant filed a defence dated 08/02/2023 through Messrs Kitiwa & Partners. The occurrence of the accident, ownership of the motor vehicle, among others, was generally denied. Liability for the accident was also denied and, in the alternative, it was averred that if the accident occurred as alleged, then the same was wholly caused by negligence on the part of the deceased. The Appellant pleaded that the doctrine of Res Ipsa Loquitor was applicable.
4. The suit proceeded to trial and the Respondent called 2 witnesses viz a police officer and a civilian witness, while the Appellant did not call any witness.
Evidence at the Trial Court
5. PW1 No. 83722 PC Sitty Mohammed, testified that she a police officer attached to Eldoret Central Police Station. She stated that the accident occurred on 07/03/2022 along the Eldoret Webuye Road at Tairi Mbili area. That the said accident involved motor vehicle registration number KCZ 379Y and a motorcycle registration no. KMDP107D wherein the rider sustained fatal injuries. She produced the Police Abstract as PExh1 and stated that the Investigating Officer was on leave
6. In cross examination she stated that she was not the investigating officer and she did not visit the scene or witness the accident. She additionally stated that she did not have the occurrence book or the police file. That she couldn’t tell the court how the accident occurred and she did not have the sketch maps. She further testified that investigations are still pending and that she only produced a Police Abstract as proof that an accident had occurred.
7. PW2, Joan Jepkorir, adopted her witness statement as evidence in chief. She testified that the deceased was her husband. That she was issued with grant of Letters of Administration Ad Litem (PExh2) and a Death Certificate(PExh3). She additionally produced the chiefs’ letter (PExh4) and her children’s’ birth certificate(PExh5). It was her testimony that her late husband was a casual worker who worked as plumber and earned Kshs. 15,000/- per month She produced his employment letter as PExh6. That over and above that he used his motorcycle as a boda boda operator and earned Kshs. 30,000/- per month. She further testified that he was 49 years old and that she incurred Kshs. 500,000/- for funeral expenses. She urged that a result of the accident, her life changed as the deceased was the sole breadwinner of the family and that upon his death, they were forced to move from their house and go back to their rural home. She prayed that they be compensated.
8. PW3, Elijah Barno Kerich, adopted his witness statement dated 02/05/2023 as his evidence in chief. He testified that he is a boda boda rider and he witnessed the road traffic accident in which the deceased sustained fatal injuries. That the accident occurred on 07/03/2022 at around 7pm. He stated that it was not dark. He testified that he had taken a client to Huruma and was returning to town and as he approached Tairi Mbili, he saw a lorry KXCZ 279Y. That he was behind the lorry and the deceased rider was in front of the said lorry. That the deceased was riding on motor cycle KMDP 107D.
9. He testified that the lorry driver hit the rider in front of him and the rider died on the spot. That the lorry was speeding. He stated that people came to the scene. He stated that he then took the phone of the deceased and called his wife to inform him that her husband had been involved in an accident and she came in a short while. That the police too came and he explained to them how the accident occurred. And gave them his contacts. He stated that he blamed the driver of the lorry for causing the accident by not maintaining a reasonable and slow speed at that spot which is a busy place.
10. In cross examination, he reiterated his evidence in chief and further stated that he didn’t see the impact and he only heard the sound of the collision. That the rider was in front of the lorry and after it hit the deceased, the lorry moved forward leaving him lying on the road and stopped a few metres ahead. That the road had no pot holes and the rider did not hit the lorry on the side. That the accident occurred on the left side of the road facing Eldoret. That because they were concentrating on saving the life of the deceased, much as he saw the motor cycle, he could not tell its condition and as for the lorry, it was damaged at the front on the left side bumper. He also stated that notwithstanding the fact that the Police Abstract does not have his name as a witness, he did talk to the police that came to the scene. He stated that he does not know if the police recorded his statement.
11. DWI Julius Somoei Rotuk who is the 2nd Appellant is the only witness who testified on behalf of the defendants. He adopted his Witness Statement and testified that he was driving motor vehicle registration no KCZ 379T along the Eldoret Webuye Road at around 7pm. That at Tairi Mbili area, he heard a sound and stopped to see the cause of the sound. He went behind the vehicle and heard people saying he had hit something. That he saw a motorcycle and someone on the road and they were not in front of him. He testified that the rider of the motor cycle was overtaking from the left side and hit him when he attempted to re-join the highway. That he called the police and they came in 30 minutes and thereafter they went to Eldoret Police Station. That the following day his vehicle was inspected and he was issued with the inspection report which he produced as DExh1He denied causing the accident and further stated that he has not been charged with any traffic offence. In cross examination, he stated that he had not seen the rider and that he passed him on the left side.
12. Upon considering the testimonies of the witnesses and the evidence tendered in court, the submissions on record and attendant authorities, the trial court entered judgement in favour of the Respondents. The trial magistrate apportioned liability at 100% and awarded damages as follows;
i) Pain and suffering Kshs. 10,000
ii) Loss of Expectation of life Kshs. 100,000/-
iii) Loss of Dependency Kshs. 2,000,000/-
iv) Special Damages Kshs. 267,150/-
Appeal
13. Aggrieved by the Judgment of the trial Magistrate, the Appellants filed this Appeal on 16/10/2023 citing 7 grounds in his Memorandum of Appeal as hereunder:
i) That the learned trial Magistrate erred in law and fact in holding the Appellants 100% liable contrary to the evidence on record.
ii) That the learned trial Magistrate erred in law and fact in failing to find that the Respondent did not prove her case on a balance of probabilities.
iii) That the learned trial Magistrate erred in law and fact in failing to find that the deceased was the author of his own misfortunes.
iv) That the learned trial Magistrate erred in law and fact in failing to consider the Appellants’ submissions on liability.
v) That the learned trial Magistrate erred in law and in fact in awarding general damages that were inordinately excessive.
vi) That the learned trial magistrate erred in law and fact in using wrong principles in awarding damages.
vii) The learned trial magistrate erred in law and fact in awarding special damages that were not pleaded and proved.
14. The Appeal was canvassed by way of written Submissions. The Appellants’ Submissions was filed on 15/01/2025 while the Respondent filed on 27/01/2025.
Appellant’s Submissions
15. Counsel for the Appellant urged that in civil cases, a Plaintiff that is, the Respondent herein, is required to prove her claim against the defendant on a balance of probabilities. He cited the case of Kirugi & Another vs. Kabiya & 3 Others [1987] KLR 347 in support. Additionally, he referred the court to the provisions of Section 107 of the Evidence Act. He urged that Section 78 of the Civil Procedure Act provides the role of a first Appellate court as follows:
“...re-evaluate, reassess and reanalyse the extracts of the record and draw its own conclusions.”
and the cited Court of Appeal decision in Peter M. Kariuki v Attorney General [2014] eKLR in support.
16. He recounted the evidence of the witnesses in trial court and proceeded to analyse the same. Counsel urged that the Police Officer’s evidence was of nominal value to the trial court in assessing liability against the Appellant because the said police officer was not the Investigating Officer, she did not visit the scene nor did she produce sketch maps or police file. He urged that without the sketch maps, the trial court could not determine the point of impact and concluded that the evidence of the police officer in that regard amounts to hearsay and that as it is, the evidence lends credence to the appellants’ case that it is the deceased who abruptly overtook the motor appellant’s vehicle registration number KCZ 379T and hit it as stated in his testimony thereby causing the accident. He cited the case of Postal Corporation of Kenya & another vs. Dickens Munayi [2014] eKLR in support of this submission.
17. Counsel submitted further that the trial magistrate relied on the Police Abstract in attributing blame to the appellant for causing the accident. He urged that a police abstract does not prove negligence on the part of a Defendant but only proves the fact that following an accident, the occurrence thereof was reported’ at a particular police station. He relied on the case of Peter Kanithi v Aden Guyo Itaro (2014) eKLR and Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR where Justice Odunga opined that:
“A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence. The Police Abstract Report which was produced before the trial court did not contain any other information apart from the date, of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the vehicle, the victim and the name of the investigating officer. There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the Respondents.”
18. Counsel urged that a police abstract is prepared based on preliminary investigations and statements, which may not reflect the true circumstances of the accident and that in the absence of an investigation report, police file, sketch map or evidence from the Investigating Officer explaining the basis of the findings, the contents of a police abstract should not be used as the sole basis of attributing blame to the Appellants. That in the circumstances, the reliance on the police abstract by the trial Magistrate to attribute blame on the appellants was flawed and unsupported by the evidence on record.
19. On the evidence of PW3 wo testified as the eye witness, Counsel submitted that the said witness testified that the deceased rider was ahead of the lorry when he was hit, and on cross examination, he testified that he was behind the lorry that he alleged hit the motor cyclist. It was his testimony that he did not see the impact but only heard the sound of the collusion. Counsel posited that based on the position of PW 3, he could not see the accident as it occurred and his testimony is only based on what he heard, which was a sound of collision. That therefore, he could not credibly state what had preceded the accident which information was vital in accurately establishing who was at fault based. Additionally, Counsel submitted that the fact that he was not listed as an eye witness in the Police Abstract coupled with the witness’s testimony that he did not record a statement with the police when the accident occurred bring to question the fact of whether the witnesses actually witnessed the accident.
20. Counsel submits that the witness neither witnessed the preceding events nor the accident itself and could therefore not state the point of impact. That in the circumstances, his testimony bears nominal value That in these circumstances, he cannot be viewed as a credible witness and the court should not have considered his testimony. Counsel reiterated that the trial magistrate erred since he relied on the testimony of PW3 as a basis of apportioning liability on the Respondent whereas PW3 had clearly indicated that he was behind the lorry and did not see what happened.
21. Counsel urged that from DW1’s testimony, it is evident that it was the deceased who was at fault since he rode his motorcycle recklessly and negligently. He relied on the case of Nandwa v Kenya Kazi Ltd [1998] KLR, where the Court of Appeal held that liability must reflect the degree of fault of each party based on the evidence to buttress this submission. Additionally, he submitted that no evidence was brought against the appellant’s driver proving that he caused the said accident. He urged that the trial magistrate ought to have found the deceased 100% liable.
22. Counsel submitted that this court can interfere with the award of the lower court, citing the cases of the Jane Chelagat Bor v Andrew Otieno Onduu (1988-1992) 2 KAR 288 and Kemfro Africa Ltd t/a Meru Express service & Gathogo Kanini v AM Lubia & another (1982 — 1988) 1 KAR 777 in support. He further submitted that the damages awarded that were inordinately high and the approach used was flawed and as such, this court has the discretion to interfere with the Hon Magistrate’s award.
23. On the limb of Pain and suffering counsel submitted that damages for pain and suffering in fatal accident claims are designed to compensate the deceased’s estate for the pain and suffering the deceased endured before death. He urged that from the evidence on record, the deceased died on spot and relied on the case of Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative and Administrator of the Estate of Phineas Murithi (deceased) [2020] eKLR where the court awarded Kshs. 10,000/= for pain and suffering for someone who died on the spot in submitting that a similar amount would be adequate compensation under this head. In this regard, he conceded that the award of Kshs. 10,000/= by the lower court is sufficient.
24. On the limb of Loss of expectation of life in submitting that the death certificate produced by the Plaintiff shows that the deceased died at the age of 49 years, Counsel urged that an award of Kshs. 70,000 would be sufficient. He cited the case of FMM & FKS (Both Suing as the Personal Representative of the Estate of M K (Deceased) v Joseph Njuguna Kuria & Moses Gathogo Ndung’u [2016] eKLR, where in deciding on an award on loss of expectation of life, J. Aburili stated as follows;
“I would agree that in life there are many vicissitudes and therefore an award of Kshs 100,000 would be sufficient based on the decision on Nairobi HCC 116/93 John Murithi Kariuki V George Mwangi which was decided in 2012.On damages for loss of expectation of life, it was submitted that an award of Kshs 70,000/-would be sufficient.''
25. Counsel additionally sought to rely on the case of Godana Guyo Halake & another V Patrick Ndeli Ndoli & another (2017) eKLR, where a sum of Kshs.70, 000/= was awarded for loss of expectation of life.
26. On loss of dependency, counsel submitted that the trial magistrate erred in determining the award for loss of damages by adopting the global lump sum approach. He submitted that the Hon Magistrate ought to have adopted the multiplier approach when determining the same. On the Dependency Ratio, counsel submitted that the Respondent however failed to provide any proof in support of her testimony that she was married to the deceased since. That additionally, she failed to prove that she and the alleged children depended on the deceased. Counsel cited the case of Gerald Mbale Mwea vs. Kariko Kihara & Another [1997] eKLR, wherein it was stated, inter alia, that:
"The issue of dependency is always a question of fact to be proved by be who asserts it.”
27. He also relied on the case of James Mukolo Elisha & Another vs. Thomas Martin Kibisu [2014] eKLR. and urged the Court to find that the Respondent had failed to prove dependency and as such a dependency ratio of 1/3 would be sufficient.
28. On the multiplicand, counsel submitted that Section 3 of the Insurance (Motor Vehicle Third Party Risks) Act defines earnings as revenue gained from labour or services and includes the income or money or other form of payment that one receives from employment, business or occupation or in the absence of documentary evidence of such revenue, the applicable minimum wage under the Labour Relations Act or the determination of the reasonable income, whichever is higher. He submitted that the Respondent did not adduce any proof to show that the deceased was a plumber nor the amount of money that he used to give her. She also did not have anything to prove the Kshs. 30,000/= nor the Kshs. 45,000/= that she alleged the deceased used to earn.
29. Counsel urged that it is trite law that in the absence of proof of income the court has to resort to the minimum wage prevailing at the time of the deceased’s death. He cited the case of Gachoki Gathuri (Suing as Legal Rep. of the Estate of James Kinyua Gachoki (Deceased) V John Ndiga Njagi Timothy & 2 Others [2015] eKLR where the court held that; -
"It is trite law that where there is no proof of income, the court will adopt the minimum wage provided in the Regulations of Wages (General Amendment) Order.”
30. Counsel urged that since the Respondent failed to prove that the monthly income, a monthly wage of Kshs. 8,109/-to Kshs 9, 000/- be adopted as the multiplicand. On the multiplier, counsel cited the case of Nelly Nduku Mutua (suing as the legal representative of the estate of James Mutua Makenzi (deceased) versus Africa Line Transport Co Limited & another [2019] eKLR, where the court adopted a multiplier of 10 years for a deceased who died at the age of 48 years. He also cited the case of Crop Africa Limited versus Joseph Murangiri (2020) eKLR, the where the appellate court upheld the trial courts multiplier of 11 years where the deceased died aged 47 years and Christine Chamaiyek v Linister Transporters Ltd [2007] eKLR where the court relied on a multiplier of 6 years for a deceased who was 51 years old at the time of death. He therefore urged that a multiplier of 8 years would be sufficient.
31. On Special Damages Counsel urged that the same were pleaded but not proved. He stated that the basic principle of Special Damages is that they must be specifically pleaded and proven, citing the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of l983 [1985] KLR 716 and Nathan Nyambu Magbanga V Benard M. Wanjala & Another [2012] eKLR in support of this submission. He stated that the Respondent pleaded Kshs. 525,650/- but produced a receipt for Kshs. 97,500/- from Baraka Supermarket, Kshs. 84,500/- from Neema Ceremonies, Kshs. 25,000/- for clothing, Kshs.37, 000/- for Kipagenge tents, Kshs. 22,600/- for post-mortem expenses and Kshs. 550 for copy of records. That these receipts came to a total of Kshs. 267,150/- which Counsel urged are the only Special damages that were proved which is what ought to have been awarded.
32. Counsel urged the court to allow the appeal as prayed.
Respondents’ Submissions
33. Counsel for the respondent submitted that the determination of this appeal revolves around the question whether the Respondent proved her case on a balance of probabilities and whether the awards in quantum of damages should be disturbed. He cited Section 107 (1) of the Evidence Act and Sections 109 and 112 of the same Act on Evidential Burden of Proof. Further, that the two provisions were dealt with in Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another (2005) 1 EA 334.
34. Counsel for the respondent also recounted the testimonies given in court and submitted that the burden was on the Respondent to prove the averments pleaded in her plaint in the trial court. He cited the decision in Mohamed Dagane Falir v Alfonce Mutuku Muli & another (2020) eKLR and Palace Investment Ltd -vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR on what amounts to a balance of probabilities.
35. Counsel urged that PW1 confirmed that the accident which happened on 7/03/2022 was reported to their station. The accident involved the deceased who was the rider, and the 2nd Appellant who was listed as the driver of the lorry on the said date. He urged that this corroborates the Respondent’s testimony to the occurrence of the accident and places the driver, DW1 at the scene of the accident on the day of the accident. He stated that it is the testimony of both PW3 and DW1 that when the collision occurred, the traffic police were summoned and they arrived at the scene of the crime. That further, it is not in contention that an accident happened and a fatality occurred.
36. Counsel submitted that DW1 gave contradicting testimony as to the position of the rider. He first claimed that the deceased was overtaking him from the left side and that the motor- cycle hit the left side of the lorry. On cross examination he went on to state that the rider was not overtaking him but simply passing on the left side of the road and that it is the front part of the vehicle that was damaged. On re-examination, DW1 went on to state that he didn’t see the rider but only heard a noise. That further the rider hit the centre of his vehicle and not the side.
37. Counsel urged that these contradicting statements create doubt on whether the driver of the lorry was keen while driving the motor vehicle and if he truly was in control of the motor vehicle. Counsel submitted that being a certified driver, it was expected of him to be a keen driver and road user. That the fact that it took him to hear the noise to stop, indicates negligence as pleaded by the Plaintiff as he was not on the look-out. Further, that if indeed the rider was on the left side of the road as DW1 claims and that he had seen him, then he ought to have taken notice and driven cautiously. The fact that he testified to seeing the rider to not seeing the rider indicates that his testimony cannot be relied upon as it is untrue. The inspection report which he produced was unclear but however indicates that there was some damage to the front bumper cementing the fact that DW1 was driving behind the rider.
38. Counsel submitted that PW3 testified to hearing a collision and when he went to see the cause of it, he found the rider and the motorcycle on the ground, in front of the lorry. On cross examination he confirmed to seeing the impact dent on the left front side of the lorry’s bumper which is consistent to the inspection report that the front side of the bumper had been damaged. Counsel urged that it is trite law that an eye witness is a person who gives direct evidence on how an event took place and therefore his/her testimony would have more probative value compared to that of a corroborative witness who can only but provide circumstantial or indirect evidence of the events surrounding the accident. He submitted that PW3’s evidence was not impeached and the defence could not prove that he was not at the scene of the accident on the day it happened. Additionally, he submitted that DW1 admitted to there being eyewitnesses who confirmed to him that he had hit something. The statement is consistent with PW3’s testimony of hearing a collision and further strengthens the fact that since there were many eyewitnesses, and that his evidence was not discredited, it cannot be that since PW3’s name did not feature in the police abstract then he did not witness the accident.
39. Counsel submitted that the Appellant was unable to meet the evidentiary burden of proof under Section 109 and 112 of the Evidence Act. He urged that by the fact that DW1 admitted to not seeing the rider of the motorcycle prior and at the time of the accident, then the particulars of negligence on part of the deceased become a nullity as he did not witness the deceased cause the accident and thus the Appellant failed to discharge the burden of proof as per the said sections. That the Appellant did not prove that any of the alleged negligent acts or omission against the deceased which caused or materially contributed to the accident. Counsel further stated that the Respondent produced the deceased’s driving license to indicate that the deceased was a certified road user as well. With this in mind, the burden of proof on the Appellant to demonstrate negligence on part of the deceased became higher and he did not prove it as pleaded.
40. Counsel submitted that it is not in doubt is that a collision occurred between the deceased and the Appellant’s vehicle. Counsel cited the case of Treadsetters Tyres Ltd Vs John Wekesa Wephukulu (2010) eKLR and the case of Evans Nyakwana Vs Cleophas Bwana Ongaro (2015). where it was held that,
“the onus was on the Appellant to prove the driver's negligence and further to prove a causal nexus between the driver's negligence and the accident that occurred.”
41. Counsel reiterated that the Appellant failed to meet the threshold that could infer negligence on the part of the deceased. He urged that what the respondent needed to prove was liability of the appellant on a balance of probability and not beyond reasonable doubt and evaluating the evidence on record, she discharged that burden.
42. On liability, Counsel cited the decision of the High Court in Civil Appeal No. 73 of 2019 - Julita Akinvi Puma v Hillpark Investment Company Limited & another (2022) eKLR and urged that the 2nd Defendant admitted to being the driver of the motor vehicle. Further, that this was confirmed by the Police Abstract, and that he also admitted to a collision happening. Pursuant to the collision, he found the deceased lying lifeless on the road. He urged that by virtue of him hitting the rider while driving the lorry makes him liable for negligence as particularized in the plaint. The 1st Defendant, who was the registered owner of the lorry as proved by the search records, then becomes vicariously liable for the tortious acts committed by his employee. Counsel urged that Vicarious liability is defined in Black’s Law Dictionary 10th Edition by Bryan A. Gamer as
“liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties - also termed as imputed liability.
43. He also cited the case of M.O.M Amin Transporters Ltd Mariam Amin Bahi v Alexander Ndung’u Mbugua & 2 others (20191 eKLR which further defined vicarious liability and that the said Doctrine of Vicarious Liability was expounded in the case of Morgan v Launchbury (1972)2 All ER 606 where the court stated;
“that to establish agency relationship it was necessary to show that the driver was using the car at the owners request express or implied or in his instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.”
44. That the principle was further enunciated in John Nderi Wamugi vs. Ruhesh Okumu Otiangala, Civil Appeal No. 24 of 2015 where the Court stated:
“Vicarious liability is not pegged on legal ownership (of a vehicle) but on employer/employee or agent/principal relationship with particular emphasis on who employed and controlled the tort-feasor.”
45. Counsel therefore urged that the 1st Appellant’s liability is based on putting his motor vehicle in possession of the 2nd Appellant who ended up being a negligent driver. That the 1st Appellant owed a duty of care to other road users to ensure that whoever has possession and use of its vehicle is not negligent. He further submitted that the 2nd Appellant was unable to prove ways that the deceased contributed to the occurrence of the accident, the steps he took to avoid the resultant accident or the fact that the accident was caused by circumstances not within his control. He urged that the inconsistency in the 2nd appellant statement and testimony affirms his involvement in the matter as the particulars of negligence can be singled out. He maintained that the court was justified in finding the 1st Appellant vicariously liable for the acts of negligence of the 2nd Appellant who admitted being the driver/agent of the motor vehicle registration number KCZ 379T at the material day and time of the accident.
46. Counsel submitted that the liability apportioned to the Appellants in the trial court was based on fair analysis of the case and the same should remain as is. That the Appellants are 100% liable for the accident for they were been able to disprove the negligence claims by the Respondent. They were also unable to prove the negligence claims on part of the deceased and it is for this reason that the Respondents prayed that the award on liability be upheld.
47. On the issue of quantum, Counsel submitted that the amount payable as compensation to accident victims should be fair, and that the amount is entirely at the discretion of the Trial Courts subject to the supervision by the Superior Courts of Law in the event that the same turns out to be unreasonably large or unreasonable inadequate. He urged that it is the Respondent’s submission that she supports the award made by the trial court and he urged this court not to disturb the awards given as it was sufficient.
48. Counsel submitted that the interference of an award of damages by a trial court is justified on the well- known principle of inordinately high or low award as to amount to an unreasonable estimate or plain error and misapprehension of evidence in the assessment of damages. He cited the case of Nyota Tissue Products v Charles Wanga & 4 Others (2020) Eklr. Further, he submitted that in the assessment of damages the trial court has discretion and is only bound by need to observe the principles for the award of damages as set out in Southern Engineering Company Ltd. v. Mutia (1985) KLR 730.
49. Counsel submitted that it should be noted that at the time of the accident, the deceased was wearing a helmet and a jacket. He urged that the trial court awarded a conventional sum of Kshs. 10,000/- for pain and suffering which is not disputed. Further, that on loss of expectation of life, the award of Kshs. 100,000/= was sufficient and reasonable. He urged that the trial court cited the landmark case of Hyder Nthenya Musili & Another vs. China Wu Yi Limited & another (2017) eKLR and urged that in light of this precedent, it is quite evident that the award given for loss of expectation of life was discretionary and within reasonable confines. He urged that it be upheld.
50. On dependency, counsel submitted that the Respondent produced her children’s Birth Certificates proving that the deceased bore children with her and a Chief’s Letter to indicate that the chief knew of the deceased and his dependants to include his children and wife who is the Respondent herein. Further, that the trial court held that she the respondent had been unable to prove his earnings as a boda-boda rider and as a result, since there was no proof of the deceased’s monthly income, the court had no option but to award a global for loss of dependency citing 3 cases to buttress his position for reasons that it was the best approach in the circumstances and so the Hon Magistrate did not err as submitted. In support of this submission, counsel cited the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR.
51. Counsel also submitted that the multiplier applied which was at the court’s discretion was appropriate and the award proffered commensurate to the injuries sustained and the circumstances of the case as was well supported by the plethora of cases cited by the trial magistrate. Counsel additionally relied on the case of Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi (Civil Appeal 120 of 2021) (2024) in support of this submission.
52. On special damages, counsel urged that the basic principle of special damages is that they must be specifically pleaded and that out of the damages of Kshs 525,650/= claimed by the Respondent, she proved a total of Kshs 267,150/= which was duly awarded to her and so the trial Magistrate applied the correct principle in awarding the special damages and the same is sufficient as awarded and should not be disturbed. Counsel urged the court to dismiss the appeal with costs as it was unmeritorious.
Determination
53. Having considered the Grounds of Appeal filed by the Appellants, it is my considered opinion that the following arise for determination;
i) Whether the trial court erred in its apportionment of liability
ii) Whether the trial court erred in its award of damages
54. The duty of the first appellate court is as was set out in the case of Kenya Ports Authority v Kuston (Kenya) Ltd. [2009] 2 EA 212, the following was stated:
“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”
55. On liability, in the case of Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 Lord Reid reasoned that:
“To determine what cause an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it …. The question must be determined by applying common sense to the fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can apply generally.”
56. In the case of Haji vs Marair Freight Agencies Ltd (1984) KLR, 139 the Court of Appeal held;
“Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable contribution the blame can be apportioned equally on each …...”
57. I have considered the evidence of the trial court on how the accident occurred. From my summation of the same, it is clear that none of the witnesses, not the PW3 and not DW1 can be said to have witnessed the occurrence of the accident for the court to conclusively rely on the evidence of either one of them and particularly that of PW2 as the trial court did and find that the accident occurred in the manner narrated by them. PW2 from his evidence sated that he was behind the lorry and only hear the bang. But even that aside, given the size of a lorry vis-a- vis the size of a motor cycle, it is highly improbable and most unlikely that the PW2 was in a position to see what was ahead of him. From their testimony, it is clear that each one of them witnessed the scene of the accident after it had occurred. However, what is common ground it that the deceased was hit by the front left side of the appellant’s vehicle.
58. The 2nd appellant states that the deceased was riding his motor cycle on the left side of the appellant’s motor vehicle and it was when he intended to join the road from this side that they collided. PW2 testified that the deceased was hit from behind. Further, I do agree with the submissions of the Counsel for the appellant that the testimony of the Police Officer who testified as PW1 is not helpful at all for the reasons given as herein summarized. I also note from the record that there was no post mortem report produced stating on which part of the body the fatal injuries sustained were. If this had been availed, the type of injuries sustained would have been of assistance to the court even if minimally in determining how the collision occurred and therefore able to determine the probable manner in which the motor vehicle and the motor cycle impacted on each to assist in determining liability. As the evidence stands, it is not possible for the court to conclusively find even on a balance of probabilities that the accident was solely caused by the negligence of the appellant. In this regard then, it is my finding that the Hon Magistrate erred in apportioning liability at 100% as against the Appellant. I therefore set aside this finding and apportion liability equally as between the appellants and the respondent at the ratio of 50:50.
59. On the heads under Pain and suffering and Loss of Expectation of life, the authority of the Hon Justice Aburili herein above cited by the appellants themselves and the holding in the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court is relevant. It was stated therein as follows-
“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. 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.
60. In light of the above authority, having considered the evidence which is to the effect that the deceased died on the spot, was healthy and therefore had the expectation of living a long fulfilling life despite the vagaries uncertainties and vicissitudes of life, I am satisfied that the Hon Magistrate rightly directed himself in the amounts awarded under this head.
61. On whether the trial court erred in adopting a global award on Loss of Dependency, of relevance is the case of Mary Khayesi Awalo & Another - Vs- Mwilu Malungu & Another ELD HCCC NO. 19 of 1997 [1999] eKLR where Nambuye J (as she then was) stated that: -
“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”
62. Further on the insistence by Counsel for the appellant in his submissions that the Hon Magistrate should have used the multiplier as opposed to the global award, the finding in the case of Mwanzia v Ngalali Mutua Kenya Bus Ltd and quoted with approval in Albert Odawa v Gichumu Githenji NKU HCCA No. 15 of 2003 (2007), KLR is relevant. Therein Justice Ringera (as he then was) was of the following view;
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
63. In this case, no proof of work, profession and/or income was availed by the respondent to support her case to warrant the argument by Counsel for the appellant that the Hon Magistrate ought to have applied the Minimum Wage Regulations. In associating myself entirely with the above cited decisions, I am satisfied that the Global award was the best option in determining the appropriate award to pay under this head. I am also satisfied with the Hon Magistrate’s finding that the respondent sufficiently proved by way of the exhibits availed that she was married to the deceased and they had three children. In noting that the children left behind by the deceased are still relatively young and the deceased was their sole breadwinner of the family as is the uncontroverted evidence of PW3, it is my considered opinion that the global award of Ks. 2,000,000/-is a tad too low in the circumstances and I therefore enhance the same to Ks. 3,000,000/-
64. Lastly, I am satisfied that the Special damages as awarded were Specifically pleaded and proved and I see no reason to interfere with the same.
65. The upshot of the above is that the Appeal is allowed only to the extent of the Hon Magistrate’s apportionment on liability with the final determination being as follows;
i) THAT the Hon Magistrate’s finding on liability at 100% against the Appellant is set aside and liability is now hereby apportioned at the ratio of 50:50
ii) THAT the Hon Magistrate’s award on Pain and Suffering at Ks. 10,000/- is now hereby upheld
iii) THAT the Hon Magistrate’s award on Loss of Expectation of life of Ks. 100,000/- is now hereby upheld
iv) THAT the Hon Magistrate’s award on Loss of Dependency of Ks. 2,000,000/- is set aside and the same is enhanced to Ks. 3,000,000/-
v) THAT the Hon Magistrates award on Special Damages of Ks. 267,150/- together with costs and interest at court rates is upheld
vi) TOTAL less 50% contribution comes to Ks. 1,688,575/=
vii) THAT the appellant is to bear the costs of the Appeal.
Read Dated and Signed at ITEN on 2nd April 2025