'
(Being an appeal from the whole judgment and decree of Hon. Derrick Kutto (Senior Principal Magistrate) delivered on 23rd February, 2024 in Civil case No. E653 of 2021 at the Chief Magistrate Court, Mavoko)
Background
1. The appellant seeks to overturn the decision of Hon. Derrick Kuto rendered in Civil case No. E653 of 2021 at the Chief Magistrate Court at Mavoko in a judgment dated 23rd February 2024.
2. The genesis of this case can be traced to a plaint dated 18th August, 2021 where the respondents herein sued the appellant seeking general damages under the Fatal Accidents Act and Law Reform Act, special damages of Kshs. 95, 325, and costs of the suit and interest from the date of filing the suit.
3. In the plaint, the respondents averred that or about 19th December, 2020, the deceased was a lawful pillion passenger on a motor cycle along Nairobi – Mombasa service lane when near Gateway Mall or thereabouts, the appellant, his driver, servant and/or agent, while in the course of his employment of driving motor vehicle registration No. KCU 598X, drove so recklessly, carelessly and/or negligently along the said road by permitting it to loose control, veer off the road and knock the said motor cycle hence causing fatal injuries to the deceased.
4. The appellant, despite being served did not enter appearance and an interlocutory judgement was entered against him. However, this was set aside and in a defence dated 15th February 2022, the appellant denied the respondents’ claim in its entirety and put the respondents to strict proof thereof.
5. Upon hearing both parties, the trial court in its judgment dated 23rd February 2024, concluded that the accident occurred and the same was caused by the appellant. The court held that the appellant was 100% liable and awarded Kshs 60,000 for pain and suffering, Kshs 9, 743,763.2 as general damages for lost years, Kshs 100,000 for loss of expectation of life, and Kshs 93, 325 as special damages. The grand total damages were assessed and awarded at Kshs 9,997,088.2. The respondents were also awarded costs and interest.
The appeal
6. This decision triggered the appeal before me. The appellant filed this appeal vide the Memorandum of Appeal dated 18th March 2024 raising eleven (11) grounds reproduced verbatim as follows. That-:
(1) The learned magistrate erred in law and fact in giving a narrow interpretation of the facts, leading to an erroneous assessment of the issue of liability.
(2) The learned magistrate erred in law and in fact as he failed to take into account the issue of liability which was not proved by the respondents against the appellant.
(3) The learned magistrate erred in law and in fact in failing to consider the law on negligence and thereby erroneously finding the appellant to blame at 100% liability.
(4) The Learned magistrate erred in law and fact in awarding general and special damages when there was no legal basis for the award.
(5) The learned trial magistrate erred in law and fact in awarding general damages that were so excessive as to amount to an abuse of discretion.
(6) The learned trial magistrate erred in law and in fact in awarding special damages that were far in excess of the amount proved.
(7) The learned magistrate erred in law and in fact in applying wrong principles in awarding both general and special damages.
(8) The learned trial magistrate erred in law and in fact in totally ignoring the law and the submissions put in by the appellant thereby arriving at a wrong decision on quantum of damages.
(9) The learned trial magistrate misdirected himself on the applicable measure of award of general and special damages in favour of the respondent.
(10) The learned magistrate erred in law and in fact in awarding damages that were so excessive as to represent an erroneous estimate of the loss suffered.
(11) The judgment of the learned magistrate is against the law and weight of the evidence on record.
7. Consequently, the appellant prays that the appeal be allowed; that the judgment of the trial court delivered on 23rd February 2024 be quashed and/or set aside; that this Honourable Court do proceed to evaluate the evidence afresh and make its own determination on liability, quantum, and costs; that the respondent be ordered to bear the costs of both this appeal and the proceedings in the trial court; and that the Court grant any other relief it deems just and appropriate in the circumstances.
8. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 10th December 2024 while the respondents filed undated written submissions in rebuttal.
Appellant’s submissions
9. The appellant submits that based on the Memorandum of Appeal; three (3) issues arise for determination. It is submitted that ground 1-3 deal with whether the learned trial magistrate erred in law and fact in giving a narrow interpretation of the facts and failing to consider the law on negligence leading to an erroneous assessment of the issue of liability.
10. It is submitted that grounds 4-10 deal with whether the learned trial magistrate properly scrutinized the evidence on record and assessed the quantum of damages that it awarded the respondents and that ground 11 is on whether the costs awarded to the respondents by the trial court should be interfered with.
11. On the first issue, it is submitted that that no eye witness was presented by the respondents to give an account on how the alleged accident actually occurred to enable the trial court to correctly apportion liability.
12. The appellant submits that the evidence tendered by Police Officer Corporal Amdany who was not the investigating officer, did not witness the occurrence of the accident, and did not produce a sketch map, could not be a basis to blame the appellant.
13. It is submitted that the only eye witness to the accident was the appellant and therefore his evidence was uncontroverted in respect to how the accident occurred. It is therefore submitted that the learned trial Court erred in holding the appellant 100% liable. These submissions are buttressed with the decisions in Postal Corporation of Kenya & Another vs Dickens Munayo [2014] eKLR, Majani & another (Suing as the legal representatives/administrators of the Late Antony Liphede) v Godfrey (Civil Appeal E030 of 2022) [2023] KEHC 18048 (KLR) (26 May 2023), Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi (Civil Appeal 120 of 2021) [2024] KEHC 2434 (KLR) (7 March 2024), and Sally Kibiii and Another versus Francis Ogaro [2012] eKLR.
14. It is the appellant’s case that having been acquitted in the traffic case, he was clearly absolved from liability at least from shouldering 100% liability if at all.
15. The appellant submits that where liability is not clear, courts have held that both parties are to bear liability equally. In this regard the Court of appeal decision in Hussein Omar Farah v Lento Agencies [2006] eKLR and the decisions in Rottger v Karisa & another (Suing on behalf of the Estate of Said Thoya) (Civil Appeal E062 of 2023) [2023] KEHC 26981 (KLR) (18 December 2023) and Mercy Ben & another v Mt Kenya Distributors & another [2022] eKLR are relied on.
16. The appellant therefore invites the court to apportion liability equally between the appellant and respondent, deceased, in the ratio of 50:50.
17. On the second issue, it is submitted that the trial court erroneously applied an estimate of Kshs 76,123.15 monthly income as the multiplicand and there was no evidence to support the salary alleged except for an undated pay slip allegedly for the month of February 2020.
18. It is the appellant’s case that given the uncertainty surrounding the deceased’s actual earnings, the trial court ought to have either awarded a global figure, as was stated in the case of Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri [2020] eKLR Civil Appeal 98 of 2018 or based its multiplicand on minimum wage as was stated in was stated in Beatrice W. Murage v Consumer Transport Ltd & Another (2014) eKLR.
19. It is the appellant’s case that the respondents did not call the makers of the medical report or the police abstract, and neither did they illustrate to the court that the makers were either dead, or could not be found, or were incapable of giving evidence, or that their attendance could not be procured without an amount of delay or expense contrary to section 35 of the Evidence Act. The decisions in Nairobi Court of Appeal Parkar & another v NQ & 2 others (Civil Appeal 139 of 2020) [2023] KECA 908 (KLR) (24 July 2023), Raphael Kyalo Mwanza v Bob Morgan Services Limited [2022] eKLR and Mohammed Hassan Musa & Another v Peter M. Mailanyi & Another [2000] eKLR are relied on to support this contention.
20. This court is urged to reduce the multiplier to a realistic ten years taking into account the nature of the deceased’s alleged trade and the fact that the deceased was employed on contractual basis and for a particular project.
21. The appellant concludes by submitting that the costs awarded to the respondents by the trial court should be interfered with and a proper assessment made in compliance with the law and evidence tendered.
Respondents’ submissions
22. On liability, the respondents submit that the appellant completely failed to tender any witness or documentary evidence to mitigate their liability and hence were held 100% liable for the said accident.
23. It is submitted that the evidence of the police officer, an independent witness, who testified as per what was contained in police file and Occurrence Book, was water tight so as to persuade the trial court to hold the appellant 100% liable.
24. On quantum, it is submitted that the the trial court was justified to have arrived at the said quantum.
25. On the award for pain and suffering, it is the respondents case that award of Kshs 60,000 was reasonable and sufficient. The decision in Nrb HCCC No 1550 OF 2005 Alexander Okinda Anagwe vs Reuben Muriuki Kahuha where the deceased died on arrival at the hospital and yet was awarded Kshs 100,000 is relied on to buttress their case.
26. On the award for loss of expectation, to support the decision of the trial court, it is their case that in NRB HCCC No 1209 of 1999 Jane G. Achieng Kinda vs Charles Mageto the court awarded a sum of Kshs 200,000 to a 50-year-old.
27. It is the respondents case that that the trial court was correct to use Kshs 76,123.15 being the Net Salary after the Statutory deductions and tax. They rely on the decisions in Peggy Frances Hayes vs Chunibhal J. Patel & Another Civil case No. 173 of 1956, Kakamega HCCA No 58 of 2017 Easy Coach Bus Services & Benedictor Nyangaresi Ochi VS Henry Charles Tsuma & Ambose Jumbo Loka; Leonard O. Ekisa & Another VS Major K. Birgen [ 2005] eKLR, Jacob Ayiga Maruja & Another vs Simeone Obayo CA Civil Appeal No. 167 of 2002 [ 2005] eKLR and Bashir Ahmed Butt vs Uwais Ahmed Khan [1982-88] KAR for this assertion.
28. It is submitted that the deceased was 44 years and would have worked up to retirement age of 60 years. The decision in Nakuru HCC No. 373 of 2008 Bendeta Wanjiku Kimani [Suing as the Administrator of the Estate of Samwel Njenga Ngunjiri [deceased] vs Changwon cheboi & Anwarali & Brothers Limited is relied on for this submission.
29. It is the respondents case that they pleaded and specifically proved the special damages. The respondent’s conclude by submitting that this appeal is misplaced, an abuse of court process, unmerited and must be dismissed with costs to the respondent.
Analysis and determination
30. I have considered the grounds of appeal, read through the record of appeal and the submissions of the parties. It is clear that this appeal is against both the liability apportioned at the ratio of 1oo% in favour of the respondent against the appellant and the quantum of damages awarded by the trial court.
31. Therefore, the issues that present themselves for determination by this court are (i) whether the trial court erroneously apportioned liability at the ratio of 1oo% in favour of the respondent against the appellant, and (ii) whether the awards of pain and suffering, lost years, loss of expectation of life and special damages granted by the trial court were erroneous or unjustified and/or excessive in the circumstances of this case.
32. This is a first appeal. As enunciated in Selle v. Associated Motor Boat Co. Ltd [1968] EA, this first appellate court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis but bearing in mind the fact that this court did not have an opportunity to see and hear the witnesses first hand.
33. Bearing this in mind, I proceed to address whether the trial court erroneously apportioned liability at the ratio of 1oo% in favour of the respondent against the appellant. It is the appellant’s case that there was no eyewitness to give an account of how the alleged accident occurred to enable the trial court correctly apportion liability. The respondents on the other hand argue that they tendered sufficient evidence and that the appellant did not tender any witness or documentary evidence to mitigate his liability and hence was held, correctly, 100% liable for the accident.
34. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
35. In addition, the evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act, as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
36. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR observed:
“In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie interference that the accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiffs favour unless the defendant’s evidence provides some answer adequate to displace that interference.”
37. In the instant case, there is no doubt that an accident occurred. The appellant testified that while he was driving, an oncoming lorry with full lights caused him to slow down whereupon he heard a bang, swerved to the left and entered a ditch.
38. The respondents witness, corporal Zephaniah Amdany produced a police abstract that stated that the appellant hit the motorcycle driver which was headed in the same direction as him. As a consequence, the pillion passenger died on the spot and the motorcycle driver died in the hospital. Both the motor vehicle and motorcycle were towed to the police station and the bodies taken to the mortuary.
39. I am guided by the Court of Appeal decision in Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR) where it observed:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused 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 facts of each particular case.”
40. In addition, in Mumbi M''Nabea v David M.Wachira [2016] KECA 773 (KLR), the Court of Appeal observed:
“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”
41. In the instant case, the appellant faulted the evidence of the respondents because there was no eyewitness. He also argued that the police officer who produced the abstract was not the investigating officer and he did not produce a sketch map to shed light on how the accident occurred. I pose to point out here that the Court of Appeal, in Equator Distributors v Joel Muriu [2018] eKLR has pronounced itself on the probative value given to sketch maps as follows:
“35.On probative value to be given to a police sketch map, we are aware that a police sketch map for a road traffic accident is prepared after the event, it is not an eye witness account. However, it carries some probative value. The sketch map is not binding on the trial court and it is upon the court to establish facts from all the evidence on record. A police sketch map is just but an item of evidence to be considered…”
42. Bearing this binding authority in mind, I do not find it fatal to the respondents’ case that there was no sketch map produced. In fact, applying common sense, and considering the facts on record, the evidence in the Occurrence Book and the Police Abstract, and noting that there is no other evidence to rebut the contents of the police abstract, I am of the considered view that the evidence tendered by the respondents was, on a balance of probabilities, enough to bestow 100% liability on the appellant.
43. I also note that the appellant did not tender any credible evidence so as to mitigate liability or prove contributory negligence. The appellant failed to place any evidence, that could contradict the trial court’s findings on liability.
44. I am also quick to add, that the deceased, travelling as a pillion passenger, merely sitting in the motor cycle, being transported from one point to another, was a passive participant in the occurrence of the accident. I do not see how she can be blamed for causing the accident by apportioning liability to her in any way or at all. I therefore find the holding of the trial court on liability at 100% as proper. I see no justifiable reason for disturbing the same and it is now hereby upheld.
Award on pain and suffering
45. On pain and suffering, the trial court awarded the Ksh 60,000. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is categorical that:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
46. Similarly in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“An appellate court will not disturb an award of damages unless it is so 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 arrive at a figure which was either inordinately high or low.”
47. What therefore emerges is that the principles on which an appellate court will disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages.
48. As such, the question that arises is whether the trial court’s award of Ksh 60,000 was excessive and unjustified. In Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), the court held at paragraph 23:
“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.”
49. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh 50,000.00 for pain and suffering, the appellate court stated:
“[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 Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
50. In the instant case, it is unclear from the record whether the deceased died on the spot or succumbed at the hospital while receiving treatment. What is evident, however, is that she died on the same day of the accident. Accordingly, a legal presumption can be made that she suffered some form of pain.
51. As such, considering that the various decisions of the High Court range from Ksh, 10,000 to Ksh, 100,000 over the last 20 years for the award of pain and suffering, I do not find the award by the trial court in this case excessive. Therefore, I find no reason to interfere with the trial court’s award of Ksh 60,000 for pain and suffering.
Award on loss of expectation of life
52. In the same breath, considering, from case law cited above, that the conventional award for loss of expectation of life is Kshs 100,000, I find no reason to interfere with the award of the trial court on this. Indeed, the trial court aptly noted that the deceased was in good health and there was no evidence to the contrary. The award of Ksh 100,000 therefore stands.
Lost years award
53. On the award of 9,743,763.2 for lost years, the appellant submits that the trial court erroneously applied an estimate of Kshs. 76,123.15 monthly income as the multiplicand. It is urged that there was no proof that the deceased was in formal employment, worked as an excavator as alleged and that he earned the said amount. This court is therefore urged to resort to the principle of lump sum or alternatively, base its multiplicand on minimum wage. All this is refuted by the respondents who argue that the trial court was correct when it observed that it would not adopt the lump sum figure as it was fully seized with sufficient details on the deceased''s age, occupation and approximate earnings.
54. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act provides:
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought;..”
55. Evidence before the trial court was that the deceased was 44 years, in formal employment at China Communication Company limited and a payslip showing a net salary of Kshs 76,123.15 after statutory deductions was produced in evidence. Based on this, it would be untenable and unfair to resort to the principle of lump sum or alternatively, base its multiplicand on minimum wage. Besides, the appellant did not present any contrary evidence on this for this court’s consideration.
56. I note that the trial court took into consideration the uncertainties of life, and applied 16 years as the multiplier. Considering that the appellant was only 44 years old, it is not farfetched to hold that there is a possibility that she would have worked for more than 60 years. Therefore, I find that the trial magistrate was correct to apply 16 years as the multiplier. Consequently, I find no convincing reason to interfere with the findings of the trial court on the damages awarded for lost years.
Award on special damages.
57. On the award of special damages, the trial court awarded Ksh 93,325. The respondent sought special damages of 95, 325. The appellant faults the trial court for awarding special damages that were far in excess of the amount proved.
58. It is now firmly established that special damages must not only be specifically pleaded but also strictly proved before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
59. I have gone through the record and noted that the special damages sought were Ksh 1,275 for the filing fees of the grant, Ksh 30,000 as advocate legal fees, Ksh 550 for official search and Ksh 63,500 for funeral expenses all amounting to Ksh 95,325.
60. However, only the receipts for the funeral expenses of Ksh 65,000 are in the record. It is therefore my finding that the special damages pleaded and proved amount to Ksh 63,500.
61. The upshot of all the above is that the trial magistrate’s judgment is varied in the following terms:
i. Pain & Suffering Ksh 60,000
ii. Lost years Ksh 9,743,763.2
iii. Loss of expectation of life Ksh 100,000
iv. Special damages Ksh 63,500
NET Ksh 9,967,263.2
62. In the result, only the award on special damages is disturbed by the court. All other findings remain undisturbed. The upshot of all the above is that the trial magistrate’s judgment is partially upheld. Each party will bear its own costs of the appeal.
It is so ordered.
Delivered, Dated and Signed this 6th day of November 2025
'
(Being an appeal from the whole judgment and decree of Hon. Derrick Kutto (Senior Principal Magistrate) delivered on 23rd February, 2024 in Civil case No. E653 of 2021 at the Chief Magistrate Court, Mavoko)
Background
1. The appellant seeks to overturn the decision of Hon. Derrick Kuto rendered in Civil case No. E653 of 2021 at the Chief Magistrate Court at Mavoko in a judgment dated 23rd February 2024.
2. The genesis of this case can be traced to a plaint dated 18th August, 2021 where the respondents herein sued the appellant seeking general damages under the Fatal Accidents Act and Law Reform Act, special damages of Kshs. 95, 325, and costs of the suit and interest from the date of filing the suit.
3. In the plaint, the respondents averred that or about 19th December, 2020, the deceased was a lawful pillion passenger on a motor cycle along Nairobi – Mombasa service lane when near Gateway Mall or thereabouts, the appellant, his driver, servant and/or agent, while in the course of his employment of driving motor vehicle registration No. KCU 598X, drove so recklessly, carelessly and/or negligently along the said road by permitting it to loose control, veer off the road and knock the said motor cycle hence causing fatal injuries to the deceased.
4. The appellant, despite being served did not enter appearance and an interlocutory judgement was entered against him. However, this was set aside and in a defence dated 15th February 2022, the appellant denied the respondents’ claim in its entirety and put the respondents to strict proof thereof.
5. Upon hearing both parties, the trial court in its judgment dated 23rd February 2024, concluded that the accident occurred and the same was caused by the appellant. The court held that the appellant was 100% liable and awarded Kshs 60,000 for pain and suffering, Kshs 9, 743,763.2 as general damages for lost years, Kshs 100,000 for loss of expectation of life, and Kshs 93, 325 as special damages. The grand total damages were assessed and awarded at Kshs 9,997,088.2. The respondents were also awarded costs and interest.
The appeal
6. This decision triggered the appeal before me. The appellant filed this appeal vide the Memorandum of Appeal dated 18th March 2024 raising eleven (11) grounds reproduced verbatim as follows. That-:
(1) The learned magistrate erred in law and fact in giving a narrow interpretation of the facts, leading to an erroneous assessment of the issue of liability.
(2) The learned magistrate erred in law and in fact as he failed to take into account the issue of liability which was not proved by the respondents against the appellant.
(3) The learned magistrate erred in law and in fact in failing to consider the law on negligence and thereby erroneously finding the appellant to blame at 100% liability.
(4) The Learned magistrate erred in law and fact in awarding general and special damages when there was no legal basis for the award.
(5) The learned trial magistrate erred in law and fact in awarding general damages that were so excessive as to amount to an abuse of discretion.
(6) The learned trial magistrate erred in law and in fact in awarding special damages that were far in excess of the amount proved.
(7) The learned magistrate erred in law and in fact in applying wrong principles in awarding both general and special damages.
(8) The learned trial magistrate erred in law and in fact in totally ignoring the law and the submissions put in by the appellant thereby arriving at a wrong decision on quantum of damages.
(9) The learned trial magistrate misdirected himself on the applicable measure of award of general and special damages in favour of the respondent.
(10) The learned magistrate erred in law and in fact in awarding damages that were so excessive as to represent an erroneous estimate of the loss suffered.
(11) The judgment of the learned magistrate is against the law and weight of the evidence on record.
7. Consequently, the appellant prays that the appeal be allowed; that the judgment of the trial court delivered on 23rd February 2024 be quashed and/or set aside; that this Honourable Court do proceed to evaluate the evidence afresh and make its own determination on liability, quantum, and costs; that the respondent be ordered to bear the costs of both this appeal and the proceedings in the trial court; and that the Court grant any other relief it deems just and appropriate in the circumstances.
8. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 10th December 2024 while the respondents filed undated written submissions in rebuttal.
Appellant’s submissions
9. The appellant submits that based on the Memorandum of Appeal; three (3) issues arise for determination. It is submitted that ground 1-3 deal with whether the learned trial magistrate erred in law and fact in giving a narrow interpretation of the facts and failing to consider the law on negligence leading to an erroneous assessment of the issue of liability.
10. It is submitted that grounds 4-10 deal with whether the learned trial magistrate properly scrutinized the evidence on record and assessed the quantum of damages that it awarded the respondents and that ground 11 is on whether the costs awarded to the respondents by the trial court should be interfered with.
11. On the first issue, it is submitted that that no eye witness was presented by the respondents to give an account on how the alleged accident actually occurred to enable the trial court to correctly apportion liability.
12. The appellant submits that the evidence tendered by Police Officer Corporal Amdany who was not the investigating officer, did not witness the occurrence of the accident, and did not produce a sketch map, could not be a basis to blame the appellant.
13. It is submitted that the only eye witness to the accident was the appellant and therefore his evidence was uncontroverted in respect to how the accident occurred. It is therefore submitted that the learned trial Court erred in holding the appellant 100% liable. These submissions are buttressed with the decisions in Postal Corporation of Kenya & Another vs Dickens Munayo [2014] eKLR, Majani & another (Suing as the legal representatives/administrators of the Late Antony Liphede) v Godfrey (Civil Appeal E030 of 2022) [2023] KEHC 18048 (KLR) (26 May 2023), Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi (Civil Appeal 120 of 2021) [2024] KEHC 2434 (KLR) (7 March 2024), and Sally Kibiii and Another versus Francis Ogaro [2012] eKLR.
14. It is the appellant’s case that having been acquitted in the traffic case, he was clearly absolved from liability at least from shouldering 100% liability if at all.
15. The appellant submits that where liability is not clear, courts have held that both parties are to bear liability equally. In this regard the Court of appeal decision in Hussein Omar Farah v Lento Agencies [2006] eKLR and the decisions in Rottger v Karisa & another (Suing on behalf of the Estate of Said Thoya) (Civil Appeal E062 of 2023) [2023] KEHC 26981 (KLR) (18 December 2023) and Mercy Ben & another v Mt Kenya Distributors & another [2022] eKLR are relied on.
16. The appellant therefore invites the court to apportion liability equally between the appellant and respondent, deceased, in the ratio of 50:50.
17. On the second issue, it is submitted that the trial court erroneously applied an estimate of Kshs 76,123.15 monthly income as the multiplicand and there was no evidence to support the salary alleged except for an undated pay slip allegedly for the month of February 2020.
18. It is the appellant’s case that given the uncertainty surrounding the deceased’s actual earnings, the trial court ought to have either awarded a global figure, as was stated in the case of Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri [2020] eKLR Civil Appeal 98 of 2018 or based its multiplicand on minimum wage as was stated in was stated in Beatrice W. Murage v Consumer Transport Ltd & Another (2014) eKLR.
19. It is the appellant’s case that the respondents did not call the makers of the medical report or the police abstract, and neither did they illustrate to the court that the makers were either dead, or could not be found, or were incapable of giving evidence, or that their attendance could not be procured without an amount of delay or expense contrary to section 35 of the Evidence Act. The decisions in Nairobi Court of Appeal Parkar & another v NQ & 2 others (Civil Appeal 139 of 2020) [2023] KECA 908 (KLR) (24 July 2023), Raphael Kyalo Mwanza v Bob Morgan Services Limited [2022] eKLR and Mohammed Hassan Musa & Another v Peter M. Mailanyi & Another [2000] eKLR are relied on to support this contention.
20. This court is urged to reduce the multiplier to a realistic ten years taking into account the nature of the deceased’s alleged trade and the fact that the deceased was employed on contractual basis and for a particular project.
21. The appellant concludes by submitting that the costs awarded to the respondents by the trial court should be interfered with and a proper assessment made in compliance with the law and evidence tendered.
Respondents’ submissions
22. On liability, the respondents submit that the appellant completely failed to tender any witness or documentary evidence to mitigate their liability and hence were held 100% liable for the said accident.
23. It is submitted that the evidence of the police officer, an independent witness, who testified as per what was contained in police file and Occurrence Book, was water tight so as to persuade the trial court to hold the appellant 100% liable.
24. On quantum, it is submitted that the the trial court was justified to have arrived at the said quantum.
25. On the award for pain and suffering, it is the respondents case that award of Kshs 60,000 was reasonable and sufficient. The decision in Nrb HCCC No 1550 OF 2005 Alexander Okinda Anagwe vs Reuben Muriuki Kahuha where the deceased died on arrival at the hospital and yet was awarded Kshs 100,000 is relied on to buttress their case.
26. On the award for loss of expectation, to support the decision of the trial court, it is their case that in NRB HCCC No 1209 of 1999 Jane G. Achieng Kinda vs Charles Mageto the court awarded a sum of Kshs 200,000 to a 50-year-old.
27. It is the respondents case that that the trial court was correct to use Kshs 76,123.15 being the Net Salary after the Statutory deductions and tax. They rely on the decisions in Peggy Frances Hayes vs Chunibhal J. Patel & Another Civil case No. 173 of 1956, Kakamega HCCA No 58 of 2017 Easy Coach Bus Services & Benedictor Nyangaresi Ochi VS Henry Charles Tsuma & Ambose Jumbo Loka; Leonard O. Ekisa & Another VS Major K. Birgen [ 2005] eKLR, Jacob Ayiga Maruja & Another vs Simeone Obayo CA Civil Appeal No. 167 of 2002 [ 2005] eKLR and Bashir Ahmed Butt vs Uwais Ahmed Khan [1982-88] KAR for this assertion.
28. It is submitted that the deceased was 44 years and would have worked up to retirement age of 60 years. The decision in Nakuru HCC No. 373 of 2008 Bendeta Wanjiku Kimani [Suing as the Administrator of the Estate of Samwel Njenga Ngunjiri [deceased] vs Changwon cheboi & Anwarali & Brothers Limited is relied on for this submission.
29. It is the respondents case that they pleaded and specifically proved the special damages. The respondent’s conclude by submitting that this appeal is misplaced, an abuse of court process, unmerited and must be dismissed with costs to the respondent.
Analysis and determination
30. I have considered the grounds of appeal, read through the record of appeal and the submissions of the parties. It is clear that this appeal is against both the liability apportioned at the ratio of 1oo% in favour of the respondent against the appellant and the quantum of damages awarded by the trial court.
31. Therefore, the issues that present themselves for determination by this court are (i) whether the trial court erroneously apportioned liability at the ratio of 1oo% in favour of the respondent against the appellant, and (ii) whether the awards of pain and suffering, lost years, loss of expectation of life and special damages granted by the trial court were erroneous or unjustified and/or excessive in the circumstances of this case.
32. This is a first appeal. As enunciated in Selle v. Associated Motor Boat Co. Ltd [1968] EA, this first appellate court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis but bearing in mind the fact that this court did not have an opportunity to see and hear the witnesses first hand.
33. Bearing this in mind, I proceed to address whether the trial court erroneously apportioned liability at the ratio of 1oo% in favour of the respondent against the appellant. It is the appellant’s case that there was no eyewitness to give an account of how the alleged accident occurred to enable the trial court correctly apportion liability. The respondents on the other hand argue that they tendered sufficient evidence and that the appellant did not tender any witness or documentary evidence to mitigate his liability and hence was held, correctly, 100% liable for the accident.
34. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
35. In addition, the evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act, as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
36. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR observed:
“In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie interference that the accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiffs favour unless the defendant’s evidence provides some answer adequate to displace that interference.”
37. In the instant case, there is no doubt that an accident occurred. The appellant testified that while he was driving, an oncoming lorry with full lights caused him to slow down whereupon he heard a bang, swerved to the left and entered a ditch.
38. The respondents witness, corporal Zephaniah Amdany produced a police abstract that stated that the appellant hit the motorcycle driver which was headed in the same direction as him. As a consequence, the pillion passenger died on the spot and the motorcycle driver died in the hospital. Both the motor vehicle and motorcycle were towed to the police station and the bodies taken to the mortuary.
39. I am guided by the Court of Appeal decision in Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR) where it observed:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused 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 facts of each particular case.”
40. In addition, in Mumbi M''Nabea v David M.Wachira [2016] KECA 773 (KLR), the Court of Appeal observed:
“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”
41. In the instant case, the appellant faulted the evidence of the respondents because there was no eyewitness. He also argued that the police officer who produced the abstract was not the investigating officer and he did not produce a sketch map to shed light on how the accident occurred. I pose to point out here that the Court of Appeal, in Equator Distributors v Joel Muriu [2018] eKLR has pronounced itself on the probative value given to sketch maps as follows:
“35.On probative value to be given to a police sketch map, we are aware that a police sketch map for a road traffic accident is prepared after the event, it is not an eye witness account. However, it carries some probative value. The sketch map is not binding on the trial court and it is upon the court to establish facts from all the evidence on record. A police sketch map is just but an item of evidence to be considered…”
42. Bearing this binding authority in mind, I do not find it fatal to the respondents’ case that there was no sketch map produced. In fact, applying common sense, and considering the facts on record, the evidence in the Occurrence Book and the Police Abstract, and noting that there is no other evidence to rebut the contents of the police abstract, I am of the considered view that the evidence tendered by the respondents was, on a balance of probabilities, enough to bestow 100% liability on the appellant.
43. I also note that the appellant did not tender any credible evidence so as to mitigate liability or prove contributory negligence. The appellant failed to place any evidence, that could contradict the trial court’s findings on liability.
44. I am also quick to add, that the deceased, travelling as a pillion passenger, merely sitting in the motor cycle, being transported from one point to another, was a passive participant in the occurrence of the accident. I do not see how she can be blamed for causing the accident by apportioning liability to her in any way or at all. I therefore find the holding of the trial court on liability at 100% as proper. I see no justifiable reason for disturbing the same and it is now hereby upheld.
Award on pain and suffering
45. On pain and suffering, the trial court awarded the Ksh 60,000. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is categorical that:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
46. Similarly in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“An appellate court will not disturb an award of damages unless it is so 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 arrive at a figure which was either inordinately high or low.”
47. What therefore emerges is that the principles on which an appellate court will disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages.
48. As such, the question that arises is whether the trial court’s award of Ksh 60,000 was excessive and unjustified. In Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), the court held at paragraph 23:
“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.”
49. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh 50,000.00 for pain and suffering, the appellate court stated:
“[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 Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
50. In the instant case, it is unclear from the record whether the deceased died on the spot or succumbed at the hospital while receiving treatment. What is evident, however, is that she died on the same day of the accident. Accordingly, a legal presumption can be made that she suffered some form of pain.
51. As such, considering that the various decisions of the High Court range from Ksh, 10,000 to Ksh, 100,000 over the last 20 years for the award of pain and suffering, I do not find the award by the trial court in this case excessive. Therefore, I find no reason to interfere with the trial court’s award of Ksh 60,000 for pain and suffering.
Award on loss of expectation of life
52. In the same breath, considering, from case law cited above, that the conventional award for loss of expectation of life is Kshs 100,000, I find no reason to interfere with the award of the trial court on this. Indeed, the trial court aptly noted that the deceased was in good health and there was no evidence to the contrary. The award of Ksh 100,000 therefore stands.
Lost years award
53. On the award of 9,743,763.2 for lost years, the appellant submits that the trial court erroneously applied an estimate of Kshs. 76,123.15 monthly income as the multiplicand. It is urged that there was no proof that the deceased was in formal employment, worked as an excavator as alleged and that he earned the said amount. This court is therefore urged to resort to the principle of lump sum or alternatively, base its multiplicand on minimum wage. All this is refuted by the respondents who argue that the trial court was correct when it observed that it would not adopt the lump sum figure as it was fully seized with sufficient details on the deceased''s age, occupation and approximate earnings.
54. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act provides:
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought;..”
55. Evidence before the trial court was that the deceased was 44 years, in formal employment at China Communication Company limited and a payslip showing a net salary of Kshs 76,123.15 after statutory deductions was produced in evidence. Based on this, it would be untenable and unfair to resort to the principle of lump sum or alternatively, base its multiplicand on minimum wage. Besides, the appellant did not present any contrary evidence on this for this court’s consideration.
56. I note that the trial court took into consideration the uncertainties of life, and applied 16 years as the multiplier. Considering that the appellant was only 44 years old, it is not farfetched to hold that there is a possibility that she would have worked for more than 60 years. Therefore, I find that the trial magistrate was correct to apply 16 years as the multiplier. Consequently, I find no convincing reason to interfere with the findings of the trial court on the damages awarded for lost years.
Award on special damages.
57. On the award of special damages, the trial court awarded Ksh 93,325. The respondent sought special damages of 95, 325. The appellant faults the trial court for awarding special damages that were far in excess of the amount proved.
58. It is now firmly established that special damages must not only be specifically pleaded but also strictly proved before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
59. I have gone through the record and noted that the special damages sought were Ksh 1,275 for the filing fees of the grant, Ksh 30,000 as advocate legal fees, Ksh 550 for official search and Ksh 63,500 for funeral expenses all amounting to Ksh 95,325.
60. However, only the receipts for the funeral expenses of Ksh 65,000 are in the record. It is therefore my finding that the special damages pleaded and proved amount to Ksh 63,500.
61. The upshot of all the above is that the trial magistrate’s judgment is varied in the following terms:
i. Pain & Suffering Ksh 60,000
ii. Lost years Ksh 9,743,763.2
iii. Loss of expectation of life Ksh 100,000
iv. Special damages Ksh 63,500
NET Ksh 9,967,263.2
62. In the result, only the award on special damages is disturbed by the court. All other findings remain undisturbed. The upshot of all the above is that the trial magistrate’s judgment is partially upheld. Each party will bear its own costs of the appeal.
It is so ordered.
Delivered, Dated and Signed this 6th day of November 2025
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