REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E077 OF 2024
JAMES OPEYWAH AYONGAH………………………………..APPELLANT
VERSUS
NYANGASI KAIYA ELLA & ANOTHER
(Suing as personal Representatives of the
Estate of VINCENT ASIEMA NGUSALE ………………....RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Webuye Civil Case No. E034 of 2022 delivered by Hon. Viola Yator (PM) on 24th April 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Principal Magistrate’s Court in Webuye Civil Case No. E034 of 2022 delivered by Hon. Viola Yator (PM) on 24th April 2024, on liability and quantum of damages. In the lower court, the Respondents had sued the Appellant seeking recovery of general and special damages arising from a road accident that occurred on 21st August 2021, in which Vincent Asieme Ngusale sustained fatal injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is duty bound to subject the whole of the evidence adduced before the trial court to a fresh and exhaustive scrutiny and make it’s own conclusions while bearing in mind the fact that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123).
3. The Court of Appeal of East Africa had pronounced itself on the duty of a first appellate court in Peters v Sunday Post Limited {1958} E.A. page 424 thus: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
4. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
5. In the Plaint dated 4th March 2022, the Respondents had averred that on or about 21st August 2021, the deceased was lawfully driving his Motor Vehicle Registration Number KBS 190Q along Webuye-Eldoret road when upon reaching River Nzoia Bridge, the Appellant’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBZ 265 A in such a reckless, negligent and careless manner resulting into an accident, which occasioned fatal injuries to the deceased.
6. In his Statement of Defence dated 13th June 2022, the Appellant denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondent’s negligence wholly or substantially.
D. EVIDENCE
7. PW1, No. 58555 CP James Kegicha, testified that he was based at Webuye Police Station, he was the investigating officer. It was his testimony that the deceased had been the driver of Motor Vehicle Registration Number KBS 190 Q. According to him, the accident involved four vehicles and that when he visited the scene he established that the Motor Vehicle Registration Number KBS 190 Q had four occupants and all of them lost their lives as the vehicle was consumed by fire. This witness produced the Police Abstract as PEXH 1 and stated that upon the conclusion of his investigations he had recommended for an inquest.
8. On cross-examination, PW1 told the Court that at the time of filling the Abstract, the matter was still pending under investigations and the same mater is the subject of a pending inquest.
9. PW2, Nyangasi Kaiya Ella, adopted her recorded statement dated 4th March 2022, as her evidence-in-chief and produced her list of documents as her exhibits. She prayed for the trial Court to help her as her deceased husband was the sole bread winner and he had left her with 3 children.
10. On cross-examination, PW2 told the Court that she did not witness the accident and that she had 3 children with the deceased.
11. On re-examination, she reiterated that the deceased was her husband.
12. DW1, Stephen Akondo Sakwa, adopted his recorded statement dated 6th December 2022, as his evidence-in-chief. He testified that he is a driver and that this was his first road accident.
13. On cross-examination, he told the Court that on 21st August 2021, he was driving a motor vehicle registration No KBZ 265 A which belongs to the Appellant herein from Eldoret heading towards Webuye and when he reached Nzoia bridge he noticed other vehicles ahead of him. Suddenly a saloon vehicle came at high speed and entered between a pickup and when it stopped it was too late for him to avoid a collision as he was carrying a heavy load and could not break. He confirmed that he hit the motor vehicle registration NO KBS 190 Q.
14. On 19th July 2023, the trial Court entered judgment for the Respondent by a finding of 100% liability as against the Appellant. The respondent was awarded general damages and special damages in the sum of Kshs. 4, 750,000.00/= plus costs and interest of the suit from the date of the judgement until payment in full, made up as hereunder:
i) Pain and suffering Ksh 50,000
ii) Loss of Expectation of Life Ksh 100,000
iii) Loss of dependency Ksh 4,000,000
iv) Special damages Ksh 600,000
E. THE APPEAL
15. The Appellants seeks to overturn the judgment on both liability and quantum as per the preferred the following grounds of appeal :-
1. The Honourable magistrate erred in law when he held that the Appellant was 100% to blame for the accident, purely on hearsay evidence.
2. The police were still investigating the accident and it was erroneous of the Honorable Magistrate to hold that even with the investigations still ongoing, the Appellant was 100% liable for the accident.
3. The Honorable Principal Magistrate erred in law and in fact when he held that the sum of Ksh 4,000,000was awardable under loss of dependency an amount that was so inordinately high in the circumstances.
4. The judgment is against the weight of the evidence.
16. The Appellant prays that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that the costs of the appeal be awarded to the Appellant.
17. This appeal was canvassed by way of written submissions and the rival submissions of parties have been duly considered.
F. ANALYSIS AND DETERMINATION
18. On the issue of liability, it was the evidence of DW1 that he indeed hit the deceased’s Motor Vehicle Registration Number KBS 190 Q. According to his recorded statement, which he adopted as his evidence in chief, he had been driving a truck registration number KBZ 265 A, loaded with about 15 tonnes of quarry dust and on arriving at River Nzoia, there was a small car which successfully overtook a pickup and returned back to the lane and when it tried to overtake a third vehicle, the driver noticed an oncoming truck which was close by, and he moved back to the lane and slowed down and when DW1 attempted to reduce the speed of his truck by applying brakes his truck collided with the pick- up given the downward slope of the road and the pick-up then veered off the road onto the metal rim by the bridge. DW1 maintained that the causation of the accident was solely attributable to the salon car that was overtaking, then suddenly stopped.
19. The Court of Appeal decision in Multiple Hauliers (E.A.) Limited Vs. Justus Mutua Malundu & 2 Others, Civil Appeal 93 of 2015, which stated that:
“Every driver on a public road is duty bound to be on the lookout at all times to avoid possible injury and loss to other road users. Where a collision occurs between two motor vehicles, it is in many a situation possible to establish, with evidence of eyewitnesses, who between the two contributed to what extent to the collision.”
20. As duly noted by the trial Court, a very critical and cardinal traffic rule is not difficult to discern, as cars are driven towards the front and not backward on the highway, and drivers take the foremost front seat and have a wider front windshield compared to smaller rear windshields and rearview mirrors. They noted that visibility could be impaired by darkness or bad weather, and extra caution is always advised, leading to the presumption that he who hits another from behind is at fault. In this appeal, the Appellant owed a higher duty of care to the Respondents. The Appellant admitted that he collided with the Respondents vehicle from behind. This fact alone placed the burden on the Appellant to prove that the collision was not due to his negligence. He failed to place any evidence before this Court, from which the Court could make reference to verify the accuracy of his assertions in that respect. Given that there was no clear evidence contradicting the trial Court's findings, I am not convinced there is a valid basis to interfere with the trial Court's decision. Maintaining a safe distance to prevent collisions is an essential duty of care for drivers. Further, the Appellant had an option of taking out 3rd party proceedings to provide convincing evidence that the third-party vehicle or any other factor was the primary cause of the accident.
21. In light of the above analysis, I find that the Appellant has not demonstrated that the trial Court considered matters they should not have considered, or that it failed to consider matters that it should have considered. The Appellant failed to maintain a safe distance from the Respondents vehicle, and this negligence was the proximate cause of the accident. This appeal on liability is hereby dismissed.
22. With regards to quantum, the Appellant solely contends the award made under the heading of loss of dependency. As regards an award under loss of dependency, the Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
23. The trial court considered the fact that the Deceased last active contract of employment was in 2016 and not been able to ascertain his employment status at the point of his demise and his earnings, opted to use a global approach award. Jurisprudence by the Courts reveal that either the multiplier approach or an award of a global figure is applicable when it comes to assessing loss of dependency. In the case of Mwanzia vs Nagalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji [2007] eKLR the Court gave guidance on when to use the multiplier approach as follows:-
“The multiplier approach is just a method of assessing damages. It is not a principle of law of a dogma. It can, and must be abandoned, where the facts do no 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.” [emphasis my own]
24. In the case of Ponderosa Logistics Limited -vs- Wesley Cheptoo Arap Chelagat & Alex Cheptoo (suing as the representative of the estate of Mark Too (Deceased) [2020] eKLR, the Court found that either method was acceptable as follows;-
“These submissions left me with the choice between the multiplier method and the global award method. It is a discretion that I am obligated to exercise judiciously. In my mind both methods are brought with misgivings. In the multiplier one the court has to form an opinion based on the facts before it that this person could have lived and worked for this number of years, this person would have earned so much money, and supported them to a certain extent. Similarly, with the global approach the court again is expected to form an opinion as to value placed on the life lost. In each the court has a way of knowing what vicissitudes that life would have been faced with. Neither is better that the other. It all depends on the facts. Hence in principle there was nothing wrong with the trial court choosing the multiplier approach.”
25. Given that the trial Court was exercising its discretion when it opted to apply the global award approach rather than the multiplier approach and bearing in mind that the deceased herein was a qualified professional who had been a lecturer, I find that the trial court did not exercise it’s discretion capriciously. The sum of Ksh 800,000 proposed by the appellant is incommensurate of the academic and professional status of the deceased. I therefore uphold the award of Kshs. 4,000,000 under the head of loss of dependency.
26. Finally, I find no merit in this Appeal. The judgment delivered on 24th April 2024 is confirmed and upheld. This appeal is dismissed in its entirety. Costs will be met by the Appellant.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 29th day of January, 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A by Omaya.FOR APPELLANT
Ms Aluoda h/b Mr Kulecho FOR RESPONDENTS
Peter Machoni- COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E077 OF 2024
JAMES OPEYWAH AYONGAH………………………………..APPELLANT
VERSUS
NYANGASI KAIYA ELLA & ANOTHER
(Suing as personal Representatives of the
Estate of VINCENT ASIEMA NGUSALE ………………....RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Webuye Civil Case No. E034 of 2022 delivered by Hon. Viola Yator (PM) on 24th April 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Principal Magistrate’s Court in Webuye Civil Case No. E034 of 2022 delivered by Hon. Viola Yator (PM) on 24th April 2024, on liability and quantum of damages. In the lower court, the Respondents had sued the Appellant seeking recovery of general and special damages arising from a road accident that occurred on 21st August 2021, in which Vincent Asieme Ngusale sustained fatal injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is duty bound to subject the whole of the evidence adduced before the trial court to a fresh and exhaustive scrutiny and make it’s own conclusions while bearing in mind the fact that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123).
3. The Court of Appeal of East Africa had pronounced itself on the duty of a first appellate court in Peters v Sunday Post Limited {1958} E.A. page 424 thus: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
4. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
5. In the Plaint dated 4th March 2022, the Respondents had averred that on or about 21st August 2021, the deceased was lawfully driving his Motor Vehicle Registration Number KBS 190Q along Webuye-Eldoret road when upon reaching River Nzoia Bridge, the Appellant’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBZ 265 A in such a reckless, negligent and careless manner resulting into an accident, which occasioned fatal injuries to the deceased.
6. In his Statement of Defence dated 13th June 2022, the Appellant denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondent’s negligence wholly or substantially.
D. EVIDENCE
7. PW1, No. 58555 CP James Kegicha, testified that he was based at Webuye Police Station, he was the investigating officer. It was his testimony that the deceased had been the driver of Motor Vehicle Registration Number KBS 190 Q. According to him, the accident involved four vehicles and that when he visited the scene he established that the Motor Vehicle Registration Number KBS 190 Q had four occupants and all of them lost their lives as the vehicle was consumed by fire. This witness produced the Police Abstract as PEXH 1 and stated that upon the conclusion of his investigations he had recommended for an inquest.
8. On cross-examination, PW1 told the Court that at the time of filling the Abstract, the matter was still pending under investigations and the same mater is the subject of a pending inquest.
9. PW2, Nyangasi Kaiya Ella, adopted her recorded statement dated 4th March 2022, as her evidence-in-chief and produced her list of documents as her exhibits. She prayed for the trial Court to help her as her deceased husband was the sole bread winner and he had left her with 3 children.
10. On cross-examination, PW2 told the Court that she did not witness the accident and that she had 3 children with the deceased.
11. On re-examination, she reiterated that the deceased was her husband.
12. DW1, Stephen Akondo Sakwa, adopted his recorded statement dated 6th December 2022, as his evidence-in-chief. He testified that he is a driver and that this was his first road accident.
13. On cross-examination, he told the Court that on 21st August 2021, he was driving a motor vehicle registration No KBZ 265 A which belongs to the Appellant herein from Eldoret heading towards Webuye and when he reached Nzoia bridge he noticed other vehicles ahead of him. Suddenly a saloon vehicle came at high speed and entered between a pickup and when it stopped it was too late for him to avoid a collision as he was carrying a heavy load and could not break. He confirmed that he hit the motor vehicle registration NO KBS 190 Q.
14. On 19th July 2023, the trial Court entered judgment for the Respondent by a finding of 100% liability as against the Appellant. The respondent was awarded general damages and special damages in the sum of Kshs. 4, 750,000.00/= plus costs and interest of the suit from the date of the judgement until payment in full, made up as hereunder:
i) Pain and suffering Ksh 50,000
ii) Loss of Expectation of Life Ksh 100,000
iii) Loss of dependency Ksh 4,000,000
iv) Special damages Ksh 600,000
E. THE APPEAL
15. The Appellants seeks to overturn the judgment on both liability and quantum as per the preferred the following grounds of appeal :-
1. The Honourable magistrate erred in law when he held that the Appellant was 100% to blame for the accident, purely on hearsay evidence.
2. The police were still investigating the accident and it was erroneous of the Honorable Magistrate to hold that even with the investigations still ongoing, the Appellant was 100% liable for the accident.
3. The Honorable Principal Magistrate erred in law and in fact when he held that the sum of Ksh 4,000,000was awardable under loss of dependency an amount that was so inordinately high in the circumstances.
4. The judgment is against the weight of the evidence.
16. The Appellant prays that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that the costs of the appeal be awarded to the Appellant.
17. This appeal was canvassed by way of written submissions and the rival submissions of parties have been duly considered.
F. ANALYSIS AND DETERMINATION
18. On the issue of liability, it was the evidence of DW1 that he indeed hit the deceased’s Motor Vehicle Registration Number KBS 190 Q. According to his recorded statement, which he adopted as his evidence in chief, he had been driving a truck registration number KBZ 265 A, loaded with about 15 tonnes of quarry dust and on arriving at River Nzoia, there was a small car which successfully overtook a pickup and returned back to the lane and when it tried to overtake a third vehicle, the driver noticed an oncoming truck which was close by, and he moved back to the lane and slowed down and when DW1 attempted to reduce the speed of his truck by applying brakes his truck collided with the pick- up given the downward slope of the road and the pick-up then veered off the road onto the metal rim by the bridge. DW1 maintained that the causation of the accident was solely attributable to the salon car that was overtaking, then suddenly stopped.
19. The Court of Appeal decision in Multiple Hauliers (E.A.) Limited Vs. Justus Mutua Malundu & 2 Others, Civil Appeal 93 of 2015, which stated that:
“Every driver on a public road is duty bound to be on the lookout at all times to avoid possible injury and loss to other road users. Where a collision occurs between two motor vehicles, it is in many a situation possible to establish, with evidence of eyewitnesses, who between the two contributed to what extent to the collision.”
20. As duly noted by the trial Court, a very critical and cardinal traffic rule is not difficult to discern, as cars are driven towards the front and not backward on the highway, and drivers take the foremost front seat and have a wider front windshield compared to smaller rear windshields and rearview mirrors. They noted that visibility could be impaired by darkness or bad weather, and extra caution is always advised, leading to the presumption that he who hits another from behind is at fault. In this appeal, the Appellant owed a higher duty of care to the Respondents. The Appellant admitted that he collided with the Respondents vehicle from behind. This fact alone placed the burden on the Appellant to prove that the collision was not due to his negligence. He failed to place any evidence before this Court, from which the Court could make reference to verify the accuracy of his assertions in that respect. Given that there was no clear evidence contradicting the trial Court's findings, I am not convinced there is a valid basis to interfere with the trial Court's decision. Maintaining a safe distance to prevent collisions is an essential duty of care for drivers. Further, the Appellant had an option of taking out 3rd party proceedings to provide convincing evidence that the third-party vehicle or any other factor was the primary cause of the accident.
21. In light of the above analysis, I find that the Appellant has not demonstrated that the trial Court considered matters they should not have considered, or that it failed to consider matters that it should have considered. The Appellant failed to maintain a safe distance from the Respondents vehicle, and this negligence was the proximate cause of the accident. This appeal on liability is hereby dismissed.
22. With regards to quantum, the Appellant solely contends the award made under the heading of loss of dependency. As regards an award under loss of dependency, the Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
23. The trial court considered the fact that the Deceased last active contract of employment was in 2016 and not been able to ascertain his employment status at the point of his demise and his earnings, opted to use a global approach award. Jurisprudence by the Courts reveal that either the multiplier approach or an award of a global figure is applicable when it comes to assessing loss of dependency. In the case of Mwanzia vs Nagalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji [2007] eKLR the Court gave guidance on when to use the multiplier approach as follows:-
“The multiplier approach is just a method of assessing damages. It is not a principle of law of a dogma. It can, and must be abandoned, where the facts do no 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.” [emphasis my own]
24. In the case of Ponderosa Logistics Limited -vs- Wesley Cheptoo Arap Chelagat & Alex Cheptoo (suing as the representative of the estate of Mark Too (Deceased) [2020] eKLR, the Court found that either method was acceptable as follows;-
“These submissions left me with the choice between the multiplier method and the global award method. It is a discretion that I am obligated to exercise judiciously. In my mind both methods are brought with misgivings. In the multiplier one the court has to form an opinion based on the facts before it that this person could have lived and worked for this number of years, this person would have earned so much money, and supported them to a certain extent. Similarly, with the global approach the court again is expected to form an opinion as to value placed on the life lost. In each the court has a way of knowing what vicissitudes that life would have been faced with. Neither is better that the other. It all depends on the facts. Hence in principle there was nothing wrong with the trial court choosing the multiplier approach.”
25. Given that the trial Court was exercising its discretion when it opted to apply the global award approach rather than the multiplier approach and bearing in mind that the deceased herein was a qualified professional who had been a lecturer, I find that the trial court did not exercise it’s discretion capriciously. The sum of Ksh 800,000 proposed by the appellant is incommensurate of the academic and professional status of the deceased. I therefore uphold the award of Kshs. 4,000,000 under the head of loss of dependency.
26. Finally, I find no merit in this Appeal. The judgment delivered on 24th April 2024 is confirmed and upheld. This appeal is dismissed in its entirety. Costs will be met by the Appellant.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 29th day of January, 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A by Omaya.FOR APPELLANT
Ms Aluoda h/b Mr Kulecho FOR RESPONDENTS
Peter Machoni- COURT ASSISTANT