(Being an Appeal from the judgment of Hon. A. Ndung’u (SRM) in the Senior Resident Magistrate’s Court at Makindu, Civil Case No.292 of 2013 delivered on 7th February 2019)
Introduction
1. The Respondents filed Makindu, Magistrate’s Court Civil Case No.292 of 2013 seeking general damages special damages, costs of the suit and interest under the Law Reform Act (LRA) and the Fatal Accidents Act (FAA) on behalf of the Estate of Peter King’oo Masai pursuant to a fatal road accident on 31/08/2011 (material day) along the Nairobi-Mombasa Road. They averred that on the material day, the deceased was lawfully travelling in motor vehicle registration number KBG 427R when at Taleh area, just past Mtito Andei town, the Appellant’s driver/servant/agent lost control of the said vehicle, veered off the road and rolled into a ditch as a result of which the deceased sustained fatal injuries.
2. The Appellant filed a statement of defence denying all the allegations of fact in the plaint and put the respondent to strict proof thereof. It averred that an accident happened on the date and time but not in the manner stated in the plaint and that the same was caused by the sole negligence of the plaintiff.
3. The was heard and judgment delivered where the learned trial magistrate apportioned liability at 70:30 against the Appellant and assessed damages as follows;
Special damages………………………..kshs 500/=
Pain & suffering………………………….kshs 50,000/=
Loss of expectation of life………………kshs 100,000/=
Loss of dependency………………….....kshs 1, 760,000/=
Total…………………………………..…. kshs 1,910,500/=
Less 30%...............................................kshs 573,150/=
Final award……………………….……..kshs 1,337, 350/=
4. Aggrieved by the award, the Appellant filed this appeal on the following grounds;
a) That the learned magistrate erred in law and fact in allowing the Respondent’s claim and finding that the Respondent had on a balance of probabilities proved his case.
b) That the learned magistrate erred in law and fact in taking into consideration irrelevant issues misguiding herself and misinterpreting facts and the law and in granting too much weight to the submissions by the Respondent while taking no consideration of the evidence placed before court by the Appellant to prove liability and contributory negligence.
c) That the learned magistrate erred in law and fact in failing to consider case precedents when determining and giving quantum to pain and suffering at kshs 50,000/= and loss of expectation of life.
d) That the learned magistrate erred by not giving due consideration to the law and the submissions of the Appellant when in fact no evidence of the earning of the Respondent was tabled before court nor any evidence as to whether the deceased was indeed a farmer.
e) The learned magistrate erred in finding that the Respondent earned an average of kshs 10,000/= with no evidence to confirm the said observation.
f) The learned magistrate misguided herself and the judgment/decree appealed from is inexplicable on the facts, pleadings, evidence and the law and the subordinate court erroneously relied majorly on the pleadings/averments of the Respondent and took into consideration unparticularized/unsubstantiated allegations by the Respondent.
5. Parties took directions to canvass the appeal through written submissions. The parties complied and filed their respective submissions.
The Appellant’s Submissions
6. The Appellants identified the issues for determination to be;
a) Whether the learned magistrate erred in law and fact in allowing the Respondent’s claim and in finding that the Respondent had proved its case on a balance of probabilities.
b) Whether the learned magistrate erred in fact and in law in failing to take into consideration the evidence placed before the court by the Appellant to prove liability and contributory negligence.
c) Whether the learned magistrate erred in failing to consider precedent when determining and giving quantum to pain and suffering and loss of life.
d) Whether the learned magistrate erred in finding that the deceased was a farmer earning an average of kshs 10,000/=.
7. As to whether the Respondents proved their case on a balance of probabilities, reliance was placed on sections 107, 108 and 109 of the Evidence Act for the submission that the Respondents had a duty to prove negligence as they had alleged that the accident occurred due to the negligence of the driver. Reliance was placed on Kanyungu Njogu -vs- Daniel Kimani Maingi (2000) eKLR where the court stated;
“On the undisputed fact, it is entirely probable that the accident was caused by the negligence of the second defendant. It is equally probable that it was caused by the negligence of the defendant and it is also equally probable that it was caused partly by the negligence of the deceased. Without the advantage of divine omniscience, I cannot know which of the probabilities herein coincides with the truth and I cannot decide the matter by adopting one or the other probability without supporting evidence. I can only decide the case on a balance of probability if there is evidence to enable me to say that it was more probable than not that the second defendant wholly or partly contributed to the accident. There is no such evidence. In the premises, I must not without a little anguish, dismiss the plaintiff’s suit on the ground that fault has not been established against the defendants.”
8. It was submitted that the learned magistrate failed to consider the fact that the Respondent’s claim was unsupported by evidence and that a greater responsibility was on the Respondent to provide evidence to sustain the claim of negligence. That the evidence provided by the Respondent does not suffice to demonstrate that they have discharged their burden on a balance of probabilities.
9. It was submitted that through its witness, DW1, the Appellant demonstrated that its driver swerved to avoid a head-on collision with an oncoming trailer but the vehicle hit a pothole which led to the vehicle overturning. That the driver’s statement notwithstanding, the officers went on to charge him with the offence of causing death by dangerous driving relying on the fact that there were no vehicles at the scene when they arrived. It was contended that a person who has caused an accident is not likely to remain at the scene. It was further contended that the mere fact that the driver was charged with the offence was not sufficient to discharge the Respondents of their burden.
10. As to whether the trial magistrate failed to consider the Appellant’s evidence, it was submitted that she failed to give sufficient weight to the deceased’s negligence that contributed to his injuries. Reliance was placed on Wayne Ann Holdings Ltd t/a Superplus Food Stores -vs- Sandra Morgan where the court stated;
“In this case contributory negligence was raised as a defence. When such a defence is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly (1951) AC 601 at page 611, Lord Simon said: ‘..when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that where a man is part author of his own injury, he cannot call on the other party to compensate him in full..”
11. It was submitted that according to the witness statement of the driver, the deceased willingly chose to sit at the back of the van in order to guard his goods from bandits who were known to rob lorries that were transporting cargo/produce within the area. That, the deceased was aware that he would not be protected by a seatbelt at the back and the result was that he was crushed under the weight of the sacks. It was contended that a higher apportionment of liability by the deceased was necessary.
12. As to whether the trial magistrate failed to consider precedent, it was submitted that courts have repeatedly affirmed that where a deceased passes on immediately or soon after the accident, the award should only be of nominal damages. Reliance was placed on West Kenya Sugar Co. Ltd -vs- Philip Sumba Julaya (2019) eKLR where the court stated;
“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. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”
13. Further reliance was placed on the following cases;
a) Charles Masoso Barasa & Anor -vs- Chepkoech Rotich & Anor (2014) eKLR where kshs 15,000/= was awarded for a deceased who died within hours of the accident and kshs 80,000/= for loss of expectation of life for the 28-year-old deceased.
b) Satwidner Singh Bhogal -vs- Satwinder Kaur Benawra & 2 Others (2004) eKLR where kshs 10,000/= was awarded for a deceased who died within hours of the accident and kshs 70,000/= for loss of expectation of life for the 23-year-old deceased.
c) Floice Adema Onami -vs- Kezia Mothoni Ngure & 2 Others where kshs 5,000/= was awarded for a deceased who died within a day.
14. It was contended that the trial magistrate failed to consider such precedent when awarding an unreasonable sum of ksh 50,000/= for pain and suffering and ksh 100,000/= for loss of expectation of life.
15. It was submitted that the trial magistrate failed to consider precedent particularly on the issue of double benefit of the deceased’s personal representatives. Reliance was placed on Kemfro -vs- A.M Lubia & Olive Lubia (1982-1988) KAR 27 where it was demonstrated that in the event that the people entitled to the deceased’s estate are the same person for whose benefit the action over the Fatal Accidents Act is brought, the award for loss of expectation of life is deductible.
16. As to whether the trial magistrate erred in finding that the deceased was a farmer earning an average of kshs 10,000/=, it was submitted that courts have previously resorted to the minimum wage in the absence of evidence of income earned by the deceased. Reliance was placed on the case of Beatrice W Murage -vs- Consumer Transport Ltd & Anor (2014) eKLR where the court stated;
“She said that he was a farmer in wheat having 30 Ha of land and kept cattle. However, there was no shred of evidence adduced to support the said evidence or the allegations in the plaint. With the evidence contradicting the pleadings, the court cannot know what the deceased did for a living if at all. I find the submission that the deceased earned kshs 30,000/= per month totally baseless. Ordinarily, if one does not prove what the deceased earned, the court would base the earnings on the minimum wage.”
17. It was submitted that the trial magistrate erred in relying on the word of the Respondents without an iota of evidence to substantiate their claim of the deceased’s trade or earnings. That, in the unlikely event that the Respondents had provided proof of the deceased’s trade as a farmer, the trial magistrate erred in failing to consider the minimum wage that was applicable at the time of the deceased’s death. Further reliance was placed on Isaack Kimani Kanyingi & Anor -vs- Hellena Wanjiru Rukanga (2020) eKLR where the court stated;
“If there is sufficient evidence that the deceased was carrying out the alleged business, the court has to assess the income, doing the best that it can in the circumstances of the case…The minimum wage of kshs 11,995/= was an appropriate place to begin because the deceased being a business lady carrying out a timber and furniture business...”
18. It was submitted that the deceased died on 31/08/2011 and since the law did not provide for the minimum wage of a farmer, the appropriate alternative would be the minimum wage of an unskilled worker which was kshs 3,765/= as per Legal Notice No. 63 of 2011.
Respondents’ Submissions
19. As to whether the trial magistrate erred by allowing their claim, it was submitted that the driver’s narrative was rebutted by the police officer who confirmed that there was no other vehicle at the scene. It was contended that the driver was under a duty to adduce evidence in support of the allegation of the existence of the trailer.
20. As to whether the trial magistrate failed to consider the Appellant’s evidence, it was submitted that the Appellant raised the defence of contributory negligence by alleging that the deceased did not wear a seat belt but did not adduce substantive evidence to support the allegation. Reliance was placed inter alia on Samuel Muriuki Mugo -vs- David Kariuki Migua (2022) eKLR where the court stated;
“14. It is trite that a driver owes a duty of care to his passengers…. As such, we could also safely say that the 2nd appellant herein owed the respondent a duty of care. The respondent testified on how he had boarded the motor vehicle registration number KBB 846G on 24.07.2016 in which he was seated in the driver’s cabin; It is not in dispute that the respondent was aboard the motor vehicle in question and that, the 2nd appellant owed him a duty of care; that the duty was breached when the 2nd appellant caused an accident which occurred on the material date involving the suit motor vehicle; that the motor vehicle was driven carelessly and recklessly since the driver (2nd appellant herein) was over speeding when at some point, he lost control of the motor vehicle causing it to violently waver on the road and thereafter overturn thus causing the respondent bodily injuries. The same was corroborated by PW2 who produced police abstract which did show that the respondent was a passenger in the motor vehicle in question on the material date. To that end, the finding of the trial court that the appellants were liable for the injuries sustained by the respondent can thus not be faulted.
21. It was submitted that the awards made by the trial court are reasonable taking into account the fact that it referred to authorities almost similar to the case before it.
Duty of Court
22. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. (Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123)
23. I have carefully considered the grounds of appeal, the rival submissions and entire record. The issues for determination are:
a) Whether the apportionment of liability should be disturbed.
b) Whether the quantum of damages should be disturbed.
Evidence on liability
24. PW1 was Mwikali Syengo, the deceased’s wife. She testified that the deceased boarded a lorry at Kibwezi in order to take vegetables to Mombasa. She was not there when the accident happened.
25. PW2 was P.C Paul Ongulu of Mtito Andei Traffic Sub-Base. He testified that on 30/08/2011 at around 22.40hours, the station received a report of an accident at Taleh hotel area along Mombasa-Nairobi Highway. The officers proceeded to the scene where they found that an Isuzu lorry, KBG 427R had been involved in an accident. It was being driven by Fredrick Musyoka Mukonge heading to Mombasa general direction. There were 8 passengers on board and Peter King’oo Masai died on the spot. According to the occurrence book entry details, the driver stated that an oncoming motor vehicle encroached on his lane and he swerved to the far left to avoid a head on collision but he lost control and overturned. Investigations were carried out and the outcome was that the driver was charged with causing death by dangerous driving contrary to section 46 of the Traffic Act. That despite the driver’s explanation, the officers did not find any other witness at the scene. There was no blame attributed to the passenger. The investigating officer was transferred before PW2 reported to the station.
26. On cross-examination, he said that he had been at the station for about 4 years but was not there at the time of the accident. He had passed through the Mombasa-Nairobi highway as an individual. There were no potholes indicated according to the records. He could not tell whether there were potholes then. He had the witness statement of Christine Jane Mbila, the investigating officer (I.O) who visited the scene. He didn’t know whether Christine Jane Mbila was an eye witness. After an accident, officers attend the scene to ensure the road is motorable, clear the scene and establish who could be responsible for the accident. Being the driver of the motor vehicle involved in the accident, he was responsible for the accident without continuing proof. He was charged as he was the driver of the said motor vehicle. There was no other driver or motor vehicle at the scene.
27. DW1 was Francis Musyoka Makonge and he adopted his statement filed on 06/07/2017 as his evidence in chief. He stated that he was an employee of the defendant working as a driver from the year 2009 to 2011. On or about 31/08/2011, the company cabin lorry registration No. KBG 427 was hired by two farmers to transport various produce to Mombasa. As he approached an area called Kambu near Mtito Andei, the farmers ordered him to stop so that they could enter the back with a panga they had bought. The reason was that the area was notoriously known for bandits who would rob lorries transporting produce or any cargo. Upon reaching Migingo area, there was a vehicle recklessly driving on his side and he swerved to avoid it and hit a pothole. The vehicle rolled and halted near a hotel. He got minor injuries but the people at the back were crushed by the sacks of produce and one of the farmers died.
28. In his further evidence in court, he said that some people went behind and two remained at the front. He could not recall how many people went behind the vehicle. He could not recall their names. He said that he was not speeding and was driving between 50 – 60 km/h.
29. On cross-examination, he said that the passengers did not do anything to cause the accident and that he did not know their names. He reported what happened at Mtito Andei police station and they called so that the said trailer would be stopped at Kambu road block but was not found. The motor vehicle was for carrying luggage and the passengers were the owners of the luggage. The passengers sat at the back to guard their luggage as there was no turn boy. He confirmed that there was no independent witness to confirm the circumstances of the accident. The police looked for the trailer but could not get it. The trailer emerged from Taleh hotel and joined the road abruptly. The motor vehicle was loaded hence impossible to stop immediately. He had plied the road severally and knew Taleh hotel area.
Whether the apportionment of liability should be disturbed.
Analysis
30. The Appellant’s argument is that a higher contributory negligence should have been apportioned to the deceased because he sat at the back of the lorry voluntarily where there was no seat belt to ensure his safety. In the statement of defence, one of the particulars of negligence pleaded was; ‘Failing to wear a seat belt while a passenger in motor vehicle registration number KBG 427R’.
31. PW2 testified that there were 8 passengers in the lorry and DW1 said that all the passengers were clients of the company and it was a must for them to accompany their luggage to Mombasa. As much as the Appellant wants to blame the deceased for sitting at the back of the lorry, it is evident that 8 people could not fit at the cabin which usually carries two passengers and the driver hence obvious that there had to be people at the back. The Appellant cannot have its cake and eat it as it allowed excess people in the vehicle with full knowledge that seatbelts were not available for all of them.
32. As for DW1’s narrative that he was swerving to avoid a trailer, there is no evidence upon which this court can conclude that it was actually the case and DW1 himself conceded that there was no independent witness to confirm the narrative. The Appellant wanted the court to believe that there was a trailer hence it was under a duty to prove that fact. In the absence of that, the fact is that a lorry driven by DW1 was involved in an accident and one passenger died hence imputing carelessness on the part of DW1. The Appellant had to shoulder the higher liability as its driver was the one in control of a lethal machine hence he owed a higher duty of care to his passengers. I find relevance in K. Chemjor & Another -vs- Laban Kiptoo, [2019] eKLR where the court observed that;
“…There being no evidence that could lead to any other probability that another person was involved or the cause of the accident, the Court on a balance of probabilities test believes the explanation for the accident as given by the respondent, and there was in it no reasonable hypothesis that another vehicle or person was involved in the cause of the accident. The respondent had discharged his burden of proof under sections 107 and 108 of the Evidence Act in showing that the accident was occasioned by the 2nd appellant in his driving fast beyond his ability to control the vehicle when he encountered another road user. There being no evidence of involvement in the cause of the accident by any other person, the Court finds on a balance of probabilities that the events as related by the respondent are more probable than not.”
33. The trial court heard the evidence and in my considered view the 30% apportioned to the deceased is sufficient for his role in boarding a vehicle which could not provide him with a seatbelt. Consequently, I do not find any error in the apportionment of liability.
Whether the quantum of damages should be disturbed.
34. Awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In Butt –vs Khan (1977)1KAR it was held that;
“An appellate Court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.
Award under Law Reform Act
35. Th Appellant argued that the award of kshs 50,000/= for pain and suffering was unreasonable and should be reduced to 5,000/=.
36. The evidence of PW2 was that the deceased died on the spot and DW1 said that the deceased was crushed by the weight of the produce which was being transported. I find relevance in the words of Majanja J. in Sukari Industries Limited –vs- Clyde Machimbo Juma; Homa Bay HCCA NO. 68 of 2015 [2016] eKLR where he stated that;
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years...” (emphasis mine)
37. Accordingly, the award of Kshs 30,000/= is within an acceptable range and I find no reason to interfere with the trial courts discretion.
38. With regard to the award for loss of expectation of life, the Appellant contends that it should be reduced to Kshs 80,000/=. However, we have a myriad of cases where Ksh 100,000/= has been awarded as a conventional figure. In Hyder Nthenya Musili & Another –vs- China Wu Yi Limited & Another [2017] eKLR, the learned Judge observed that ‘The conventional award for loss of expectation of life is Kshs. 100,000/=’
39. Similarly, in Melbrimo Investment Company Limited –Vs- Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR the court upheld an award of Kshs 100,000/=.
40. Accordingly, my view is that the award of Kshs 100,000/= is reasonable.
Award under the Fatal Accidents Act
41. With regard to the multiplicand, it was pleaded that the deceased was a farmer earning a monthly income of Kshs 20,000/= per month and the deceased’s wife, PW1, testified that the deceased was taking vegetables to Mombasa when the accident occurred. She also testified that he used to earn between 40,000/= & 50,000/= from sale of farm produce. On cross – examination, she said that they had a farm at Athi where they cultivated tomatoes, green peppers, green maize and green leaves.
42. The Appellant argued that the trial magistrate erred for relying on the Respondents’ word without an iota of evidence to substantiate their claim on the deceased’s trade or earnings. However, the evidence of their own witness, DW1 corroborated that of PW1 when he testified that the lorry was hired by two farmers to transport produce to Mombasa and the accident happened on their way to Mombasa. On a balance of probabilities therefore, it was established that the deceased was a farmer and my view is that it is not proper to categorize him as an unskilled worker as suggested by the Appellant.
43. In arriving at a multiplicand of 10,000/=, the trial magistrate took an average of the pleaded amount which in my view is a reasonable estimation in the circumstances of this case. Further, she was guided by a Court of Appeal authority where it was held that production of documents is not the only way to prove earnings.
44. The deceased died at the age of 33 years and was survived by his wife and two children aged 7 and 5 years at the time. The trial court used a dependency ratio of 2/3 and multiplier of 22 years which I find reasonable. In my view, it was possible for the deceased to work gainfully for another 22 years. Further, the ratio of 2/3 has been used in numerous authorities where a deceased person was survived by a spouse and young children. In John Simon Ashers & another -vs- Nelson Okello Onjao [2020] eKLR the court opined that;
“The dependency ratio of 2/3 is normally applied in a case where the deceased has dependents such as the deceased in this case and I find that the same was correctly applied.”
45. Consequently, I am of the view that there is no need to interfere with the award on loss of dependency.
46. It was also the Appellant’s argument that the award of loss of expectation of life should have been deducted from the award on loss of dependency as it amounted to double compensation. Section 2(5) of the Law Reform Act provides that;
“(5) the right conferred by this part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on dependants by the Fatal Accidents Act or the Carriage by Air Act 1932 of the United Kingdom.”
47. The provision was discussed in Richard Omeyo Omino -vs- Christine A. Onyango: Kisumu Civil Appeal No. 61 of 2007 as follows;
"The Law Reform Act Section 2 (5) provides that the rights conferred by or under the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.
The words "to be taken into account" and "to be deducted" are two different things. The words in Section 4 (2) of the Fatal Accidents Act are "taken into account". This section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”
48. I am aware of many cases where a deduction has been done but I agree with the above reasoning to the effect that a court is only required to ‘take into account’ and not to engage in mathematical deduction. In our case, the magistrate stated that; ‘On loss of expectation of life, I will award a global sum of Kshs 100,000/= and note that the same will not be deducted from an award to same beneficiaries as held in Hellen Waruguru Waweru -vs- Kiarie Shoe Store Ltd (2015) eKLR’. It is therefore evident that the trial magistrate took into account the award under the LRA.
49. The special damages of Kshs 500/= were pleaded and proved.
Disposition
50. From the foregoing I find that the appeal has no merit. The Judgment of the trial court is sustained. The appeal is dismissed with costs to the respondent.
Dated signed and delivered Virtually this 4th July 2025
Mumbua T Matheka
Judge.
CA Chrispol
Ms Kaylo for Respondent
N/A for Resp
Introduction
1. The Respondents filed Makindu, Magistrate’s Court Civil Case No.292 of 2013 seeking general damages special damages, costs of the suit and interest under the Law Reform Act (LRA) and the Fatal Accidents Act (FAA) on behalf of the Estate of Peter King’oo Masai pursuant to a fatal road accident on 31/08/2011 (material day) along the Nairobi-Mombasa Road. They averred that on the material day, the deceased was lawfully travelling in motor vehicle registration number KBG 427R when at Taleh area, just past Mtito Andei town, the Appellant’s driver/servant/agent lost control of the said vehicle, veered off the road and rolled into a ditch as a result of which the deceased sustained fatal injuries.
2. The Appellant filed a statement of defence denying all the allegations of fact in the plaint and put the respondent to strict proof thereof. It averred that an accident happened on the date and time but not in the manner stated in the plaint and that the same was caused by the sole negligence of the plaintiff.
3. The was heard and judgment delivered where the learned trial magistrate apportioned liability at 70:30 against the Appellant and assessed damages as follows;
Special damages………………………..kshs 500/=
Pain & suffering………………………….kshs 50,000/=
Loss of expectation of life………………kshs 100,000/=
Loss of dependency………………….....kshs 1, 760,000/=
Total…………………………………..…. kshs 1,910,500/=
Less 30%...............................................kshs 573,150/=
Final award……………………….……..kshs 1,337, 350/=
4. Aggrieved by the award, the Appellant filed this appeal on the following grounds;
a) That the learned magistrate erred in law and fact in allowing the Respondent’s claim and finding that the Respondent had on a balance of probabilities proved his case.
b) That the learned magistrate erred in law and fact in taking into consideration irrelevant issues misguiding herself and misinterpreting facts and the law and in granting too much weight to the submissions by the Respondent while taking no consideration of the evidence placed before court by the Appellant to prove liability and contributory negligence.
c) That the learned magistrate erred in law and fact in failing to consider case precedents when determining and giving quantum to pain and suffering at kshs 50,000/= and loss of expectation of life.
d) That the learned magistrate erred by not giving due consideration to the law and the submissions of the Appellant when in fact no evidence of the earning of the Respondent was tabled before court nor any evidence as to whether the deceased was indeed a farmer.
e) The learned magistrate erred in finding that the Respondent earned an average of kshs 10,000/= with no evidence to confirm the said observation.
f) The learned magistrate misguided herself and the judgment/decree appealed from is inexplicable on the facts, pleadings, evidence and the law and the subordinate court erroneously relied majorly on the pleadings/averments of the Respondent and took into consideration unparticularized/unsubstantiated allegations by the Respondent.
5. Parties took directions to canvass the appeal through written submissions. The parties complied and filed their respective submissions.
The Appellant’s Submissions
6. The Appellants identified the issues for determination to be;
a) Whether the learned magistrate erred in law and fact in allowing the Respondent’s claim and in finding that the Respondent had proved its case on a balance of probabilities.
b) Whether the learned magistrate erred in fact and in law in failing to take into consideration the evidence placed before the court by the Appellant to prove liability and contributory negligence.
c) Whether the learned magistrate erred in failing to consider precedent when determining and giving quantum to pain and suffering and loss of life.
d) Whether the learned magistrate erred in finding that the deceased was a farmer earning an average of kshs 10,000/=.
7. As to whether the Respondents proved their case on a balance of probabilities, reliance was placed on sections 107, 108 and 109 of the Evidence Act for the submission that the Respondents had a duty to prove negligence as they had alleged that the accident occurred due to the negligence of the driver. Reliance was placed on Kanyungu Njogu -vs- Daniel Kimani Maingi (2000) eKLR where the court stated;
“On the undisputed fact, it is entirely probable that the accident was caused by the negligence of the second defendant. It is equally probable that it was caused by the negligence of the defendant and it is also equally probable that it was caused partly by the negligence of the deceased. Without the advantage of divine omniscience, I cannot know which of the probabilities herein coincides with the truth and I cannot decide the matter by adopting one or the other probability without supporting evidence. I can only decide the case on a balance of probability if there is evidence to enable me to say that it was more probable than not that the second defendant wholly or partly contributed to the accident. There is no such evidence. In the premises, I must not without a little anguish, dismiss the plaintiff’s suit on the ground that fault has not been established against the defendants.”
8. It was submitted that the learned magistrate failed to consider the fact that the Respondent’s claim was unsupported by evidence and that a greater responsibility was on the Respondent to provide evidence to sustain the claim of negligence. That the evidence provided by the Respondent does not suffice to demonstrate that they have discharged their burden on a balance of probabilities.
9. It was submitted that through its witness, DW1, the Appellant demonstrated that its driver swerved to avoid a head-on collision with an oncoming trailer but the vehicle hit a pothole which led to the vehicle overturning. That the driver’s statement notwithstanding, the officers went on to charge him with the offence of causing death by dangerous driving relying on the fact that there were no vehicles at the scene when they arrived. It was contended that a person who has caused an accident is not likely to remain at the scene. It was further contended that the mere fact that the driver was charged with the offence was not sufficient to discharge the Respondents of their burden.
10. As to whether the trial magistrate failed to consider the Appellant’s evidence, it was submitted that she failed to give sufficient weight to the deceased’s negligence that contributed to his injuries. Reliance was placed on Wayne Ann Holdings Ltd t/a Superplus Food Stores -vs- Sandra Morgan where the court stated;
“In this case contributory negligence was raised as a defence. When such a defence is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly (1951) AC 601 at page 611, Lord Simon said: ‘..when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that where a man is part author of his own injury, he cannot call on the other party to compensate him in full..”
11. It was submitted that according to the witness statement of the driver, the deceased willingly chose to sit at the back of the van in order to guard his goods from bandits who were known to rob lorries that were transporting cargo/produce within the area. That, the deceased was aware that he would not be protected by a seatbelt at the back and the result was that he was crushed under the weight of the sacks. It was contended that a higher apportionment of liability by the deceased was necessary.
12. As to whether the trial magistrate failed to consider precedent, it was submitted that courts have repeatedly affirmed that where a deceased passes on immediately or soon after the accident, the award should only be of nominal damages. Reliance was placed on West Kenya Sugar Co. Ltd -vs- Philip Sumba Julaya (2019) eKLR where the court stated;
“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. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”
13. Further reliance was placed on the following cases;
a) Charles Masoso Barasa & Anor -vs- Chepkoech Rotich & Anor (2014) eKLR where kshs 15,000/= was awarded for a deceased who died within hours of the accident and kshs 80,000/= for loss of expectation of life for the 28-year-old deceased.
b) Satwidner Singh Bhogal -vs- Satwinder Kaur Benawra & 2 Others (2004) eKLR where kshs 10,000/= was awarded for a deceased who died within hours of the accident and kshs 70,000/= for loss of expectation of life for the 23-year-old deceased.
c) Floice Adema Onami -vs- Kezia Mothoni Ngure & 2 Others where kshs 5,000/= was awarded for a deceased who died within a day.
14. It was contended that the trial magistrate failed to consider such precedent when awarding an unreasonable sum of ksh 50,000/= for pain and suffering and ksh 100,000/= for loss of expectation of life.
15. It was submitted that the trial magistrate failed to consider precedent particularly on the issue of double benefit of the deceased’s personal representatives. Reliance was placed on Kemfro -vs- A.M Lubia & Olive Lubia (1982-1988) KAR 27 where it was demonstrated that in the event that the people entitled to the deceased’s estate are the same person for whose benefit the action over the Fatal Accidents Act is brought, the award for loss of expectation of life is deductible.
16. As to whether the trial magistrate erred in finding that the deceased was a farmer earning an average of kshs 10,000/=, it was submitted that courts have previously resorted to the minimum wage in the absence of evidence of income earned by the deceased. Reliance was placed on the case of Beatrice W Murage -vs- Consumer Transport Ltd & Anor (2014) eKLR where the court stated;
“She said that he was a farmer in wheat having 30 Ha of land and kept cattle. However, there was no shred of evidence adduced to support the said evidence or the allegations in the plaint. With the evidence contradicting the pleadings, the court cannot know what the deceased did for a living if at all. I find the submission that the deceased earned kshs 30,000/= per month totally baseless. Ordinarily, if one does not prove what the deceased earned, the court would base the earnings on the minimum wage.”
17. It was submitted that the trial magistrate erred in relying on the word of the Respondents without an iota of evidence to substantiate their claim of the deceased’s trade or earnings. That, in the unlikely event that the Respondents had provided proof of the deceased’s trade as a farmer, the trial magistrate erred in failing to consider the minimum wage that was applicable at the time of the deceased’s death. Further reliance was placed on Isaack Kimani Kanyingi & Anor -vs- Hellena Wanjiru Rukanga (2020) eKLR where the court stated;
“If there is sufficient evidence that the deceased was carrying out the alleged business, the court has to assess the income, doing the best that it can in the circumstances of the case…The minimum wage of kshs 11,995/= was an appropriate place to begin because the deceased being a business lady carrying out a timber and furniture business...”
18. It was submitted that the deceased died on 31/08/2011 and since the law did not provide for the minimum wage of a farmer, the appropriate alternative would be the minimum wage of an unskilled worker which was kshs 3,765/= as per Legal Notice No. 63 of 2011.
Respondents’ Submissions
19. As to whether the trial magistrate erred by allowing their claim, it was submitted that the driver’s narrative was rebutted by the police officer who confirmed that there was no other vehicle at the scene. It was contended that the driver was under a duty to adduce evidence in support of the allegation of the existence of the trailer.
20. As to whether the trial magistrate failed to consider the Appellant’s evidence, it was submitted that the Appellant raised the defence of contributory negligence by alleging that the deceased did not wear a seat belt but did not adduce substantive evidence to support the allegation. Reliance was placed inter alia on Samuel Muriuki Mugo -vs- David Kariuki Migua (2022) eKLR where the court stated;
“14. It is trite that a driver owes a duty of care to his passengers…. As such, we could also safely say that the 2nd appellant herein owed the respondent a duty of care. The respondent testified on how he had boarded the motor vehicle registration number KBB 846G on 24.07.2016 in which he was seated in the driver’s cabin; It is not in dispute that the respondent was aboard the motor vehicle in question and that, the 2nd appellant owed him a duty of care; that the duty was breached when the 2nd appellant caused an accident which occurred on the material date involving the suit motor vehicle; that the motor vehicle was driven carelessly and recklessly since the driver (2nd appellant herein) was over speeding when at some point, he lost control of the motor vehicle causing it to violently waver on the road and thereafter overturn thus causing the respondent bodily injuries. The same was corroborated by PW2 who produced police abstract which did show that the respondent was a passenger in the motor vehicle in question on the material date. To that end, the finding of the trial court that the appellants were liable for the injuries sustained by the respondent can thus not be faulted.
21. It was submitted that the awards made by the trial court are reasonable taking into account the fact that it referred to authorities almost similar to the case before it.
Duty of Court
22. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. (Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123)
23. I have carefully considered the grounds of appeal, the rival submissions and entire record. The issues for determination are:
a) Whether the apportionment of liability should be disturbed.
b) Whether the quantum of damages should be disturbed.
Evidence on liability
24. PW1 was Mwikali Syengo, the deceased’s wife. She testified that the deceased boarded a lorry at Kibwezi in order to take vegetables to Mombasa. She was not there when the accident happened.
25. PW2 was P.C Paul Ongulu of Mtito Andei Traffic Sub-Base. He testified that on 30/08/2011 at around 22.40hours, the station received a report of an accident at Taleh hotel area along Mombasa-Nairobi Highway. The officers proceeded to the scene where they found that an Isuzu lorry, KBG 427R had been involved in an accident. It was being driven by Fredrick Musyoka Mukonge heading to Mombasa general direction. There were 8 passengers on board and Peter King’oo Masai died on the spot. According to the occurrence book entry details, the driver stated that an oncoming motor vehicle encroached on his lane and he swerved to the far left to avoid a head on collision but he lost control and overturned. Investigations were carried out and the outcome was that the driver was charged with causing death by dangerous driving contrary to section 46 of the Traffic Act. That despite the driver’s explanation, the officers did not find any other witness at the scene. There was no blame attributed to the passenger. The investigating officer was transferred before PW2 reported to the station.
26. On cross-examination, he said that he had been at the station for about 4 years but was not there at the time of the accident. He had passed through the Mombasa-Nairobi highway as an individual. There were no potholes indicated according to the records. He could not tell whether there were potholes then. He had the witness statement of Christine Jane Mbila, the investigating officer (I.O) who visited the scene. He didn’t know whether Christine Jane Mbila was an eye witness. After an accident, officers attend the scene to ensure the road is motorable, clear the scene and establish who could be responsible for the accident. Being the driver of the motor vehicle involved in the accident, he was responsible for the accident without continuing proof. He was charged as he was the driver of the said motor vehicle. There was no other driver or motor vehicle at the scene.
27. DW1 was Francis Musyoka Makonge and he adopted his statement filed on 06/07/2017 as his evidence in chief. He stated that he was an employee of the defendant working as a driver from the year 2009 to 2011. On or about 31/08/2011, the company cabin lorry registration No. KBG 427 was hired by two farmers to transport various produce to Mombasa. As he approached an area called Kambu near Mtito Andei, the farmers ordered him to stop so that they could enter the back with a panga they had bought. The reason was that the area was notoriously known for bandits who would rob lorries transporting produce or any cargo. Upon reaching Migingo area, there was a vehicle recklessly driving on his side and he swerved to avoid it and hit a pothole. The vehicle rolled and halted near a hotel. He got minor injuries but the people at the back were crushed by the sacks of produce and one of the farmers died.
28. In his further evidence in court, he said that some people went behind and two remained at the front. He could not recall how many people went behind the vehicle. He could not recall their names. He said that he was not speeding and was driving between 50 – 60 km/h.
29. On cross-examination, he said that the passengers did not do anything to cause the accident and that he did not know their names. He reported what happened at Mtito Andei police station and they called so that the said trailer would be stopped at Kambu road block but was not found. The motor vehicle was for carrying luggage and the passengers were the owners of the luggage. The passengers sat at the back to guard their luggage as there was no turn boy. He confirmed that there was no independent witness to confirm the circumstances of the accident. The police looked for the trailer but could not get it. The trailer emerged from Taleh hotel and joined the road abruptly. The motor vehicle was loaded hence impossible to stop immediately. He had plied the road severally and knew Taleh hotel area.
Whether the apportionment of liability should be disturbed.
Analysis
30. The Appellant’s argument is that a higher contributory negligence should have been apportioned to the deceased because he sat at the back of the lorry voluntarily where there was no seat belt to ensure his safety. In the statement of defence, one of the particulars of negligence pleaded was; ‘Failing to wear a seat belt while a passenger in motor vehicle registration number KBG 427R’.
31. PW2 testified that there were 8 passengers in the lorry and DW1 said that all the passengers were clients of the company and it was a must for them to accompany their luggage to Mombasa. As much as the Appellant wants to blame the deceased for sitting at the back of the lorry, it is evident that 8 people could not fit at the cabin which usually carries two passengers and the driver hence obvious that there had to be people at the back. The Appellant cannot have its cake and eat it as it allowed excess people in the vehicle with full knowledge that seatbelts were not available for all of them.
32. As for DW1’s narrative that he was swerving to avoid a trailer, there is no evidence upon which this court can conclude that it was actually the case and DW1 himself conceded that there was no independent witness to confirm the narrative. The Appellant wanted the court to believe that there was a trailer hence it was under a duty to prove that fact. In the absence of that, the fact is that a lorry driven by DW1 was involved in an accident and one passenger died hence imputing carelessness on the part of DW1. The Appellant had to shoulder the higher liability as its driver was the one in control of a lethal machine hence he owed a higher duty of care to his passengers. I find relevance in K. Chemjor & Another -vs- Laban Kiptoo, [2019] eKLR where the court observed that;
“…There being no evidence that could lead to any other probability that another person was involved or the cause of the accident, the Court on a balance of probabilities test believes the explanation for the accident as given by the respondent, and there was in it no reasonable hypothesis that another vehicle or person was involved in the cause of the accident. The respondent had discharged his burden of proof under sections 107 and 108 of the Evidence Act in showing that the accident was occasioned by the 2nd appellant in his driving fast beyond his ability to control the vehicle when he encountered another road user. There being no evidence of involvement in the cause of the accident by any other person, the Court finds on a balance of probabilities that the events as related by the respondent are more probable than not.”
33. The trial court heard the evidence and in my considered view the 30% apportioned to the deceased is sufficient for his role in boarding a vehicle which could not provide him with a seatbelt. Consequently, I do not find any error in the apportionment of liability.
Whether the quantum of damages should be disturbed.
34. Awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In Butt –vs Khan (1977)1KAR it was held that;
“An appellate Court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.
Award under Law Reform Act
35. Th Appellant argued that the award of kshs 50,000/= for pain and suffering was unreasonable and should be reduced to 5,000/=.
36. The evidence of PW2 was that the deceased died on the spot and DW1 said that the deceased was crushed by the weight of the produce which was being transported. I find relevance in the words of Majanja J. in Sukari Industries Limited –vs- Clyde Machimbo Juma; Homa Bay HCCA NO. 68 of 2015 [2016] eKLR where he stated that;
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years...” (emphasis mine)
37. Accordingly, the award of Kshs 30,000/= is within an acceptable range and I find no reason to interfere with the trial courts discretion.
38. With regard to the award for loss of expectation of life, the Appellant contends that it should be reduced to Kshs 80,000/=. However, we have a myriad of cases where Ksh 100,000/= has been awarded as a conventional figure. In Hyder Nthenya Musili & Another –vs- China Wu Yi Limited & Another [2017] eKLR, the learned Judge observed that ‘The conventional award for loss of expectation of life is Kshs. 100,000/=’
39. Similarly, in Melbrimo Investment Company Limited –Vs- Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR the court upheld an award of Kshs 100,000/=.
40. Accordingly, my view is that the award of Kshs 100,000/= is reasonable.
Award under the Fatal Accidents Act
41. With regard to the multiplicand, it was pleaded that the deceased was a farmer earning a monthly income of Kshs 20,000/= per month and the deceased’s wife, PW1, testified that the deceased was taking vegetables to Mombasa when the accident occurred. She also testified that he used to earn between 40,000/= & 50,000/= from sale of farm produce. On cross – examination, she said that they had a farm at Athi where they cultivated tomatoes, green peppers, green maize and green leaves.
42. The Appellant argued that the trial magistrate erred for relying on the Respondents’ word without an iota of evidence to substantiate their claim on the deceased’s trade or earnings. However, the evidence of their own witness, DW1 corroborated that of PW1 when he testified that the lorry was hired by two farmers to transport produce to Mombasa and the accident happened on their way to Mombasa. On a balance of probabilities therefore, it was established that the deceased was a farmer and my view is that it is not proper to categorize him as an unskilled worker as suggested by the Appellant.
43. In arriving at a multiplicand of 10,000/=, the trial magistrate took an average of the pleaded amount which in my view is a reasonable estimation in the circumstances of this case. Further, she was guided by a Court of Appeal authority where it was held that production of documents is not the only way to prove earnings.
44. The deceased died at the age of 33 years and was survived by his wife and two children aged 7 and 5 years at the time. The trial court used a dependency ratio of 2/3 and multiplier of 22 years which I find reasonable. In my view, it was possible for the deceased to work gainfully for another 22 years. Further, the ratio of 2/3 has been used in numerous authorities where a deceased person was survived by a spouse and young children. In John Simon Ashers & another -vs- Nelson Okello Onjao [2020] eKLR the court opined that;
“The dependency ratio of 2/3 is normally applied in a case where the deceased has dependents such as the deceased in this case and I find that the same was correctly applied.”
45. Consequently, I am of the view that there is no need to interfere with the award on loss of dependency.
46. It was also the Appellant’s argument that the award of loss of expectation of life should have been deducted from the award on loss of dependency as it amounted to double compensation. Section 2(5) of the Law Reform Act provides that;
“(5) the right conferred by this part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on dependants by the Fatal Accidents Act or the Carriage by Air Act 1932 of the United Kingdom.”
47. The provision was discussed in Richard Omeyo Omino -vs- Christine A. Onyango: Kisumu Civil Appeal No. 61 of 2007 as follows;
"The Law Reform Act Section 2 (5) provides that the rights conferred by or under the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.
The words "to be taken into account" and "to be deducted" are two different things. The words in Section 4 (2) of the Fatal Accidents Act are "taken into account". This section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”
48. I am aware of many cases where a deduction has been done but I agree with the above reasoning to the effect that a court is only required to ‘take into account’ and not to engage in mathematical deduction. In our case, the magistrate stated that; ‘On loss of expectation of life, I will award a global sum of Kshs 100,000/= and note that the same will not be deducted from an award to same beneficiaries as held in Hellen Waruguru Waweru -vs- Kiarie Shoe Store Ltd (2015) eKLR’. It is therefore evident that the trial magistrate took into account the award under the LRA.
49. The special damages of Kshs 500/= were pleaded and proved.
Disposition
50. From the foregoing I find that the appeal has no merit. The Judgment of the trial court is sustained. The appeal is dismissed with costs to the respondent.
Dated signed and delivered Virtually this 4th July 2025
Mumbua T Matheka
Judge.
CA Chrispol
Ms Kaylo for Respondent
N/A for Resp