REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEAL NO. 56 OF 2023
KATIA HOLDINGS LIMITED……………………………………………………..APPELLANT
VERSUS
BRENDA NANJALA SIKUKU AND MESHACK MUSAMBIRA OKATO
(Suing as the Administrator of
the estate of Nelson Wandera Okato-Deceased) ………………………………….…RESPONDENTS
JUDGEMENT
1. This appeal arises from the Judgment in Kitui Chief Magistrate’s Court Civil Case No. E084 of 2021 where the respondents had sued the appellant vide a plaint dated 12th March, 2021 claiming General Damages as well as special damages amounting to Kshs. 16,630/= costs of the suit and interests. The claim was founded on negligence arising from a road traffic accident.
2. The respondents had sued the appellant claiming that on 28th May,2020 the appellant’s authorized driver drove motor vehicle registration number KCQ 112S so negligently and carelessly that he caused it collide with Motor Vehicle registration number KCJ 479F that the respondent was driving and the result was fatal as the Deceased succumbed to the injuries he sustained therefrom.
3. The respondents stated the particulars of negligence as follows:
• Driving at an excessive speed in the circumstances.
• Driving the motor vehicle KCQ 112S without due care and attention.
• Driving motor vehicle KCQ 112S so dangerously and/or negligently and without regard to the other road users and particularly the plaintiff.
• Driving motor vehicle KCQ 112S recklessly and in total violation of the Traffic Rules
• Failure to slow down , stop,brake,swerve and /or take any other reasonable step to avoid the said accident
• Driving a defective motor vehicle
• Causing the accident
4. The respondents averred that as a result of the said accident the Plaintiff who was driving succumbed to the injuries he sustained from the said accident.
5. As for the particulars of the special damages, they were specified as follows:
• Copy of motor vehicle records – 550/=
• Letter of Limited grant ad Litem
– Court fees -1080/=
- Advocate fees– 15,000/=
• Total 16,630/=
6. The respondents claimed that the appellant was vicariously liable for the tortuous actions of his driver, agent and/or employee. The appellant filed a defence dated 21st July,2021 and denied that an accident occurred on the said day and place involving motor vehicle registration number KCJ 479F and KCQ 112S as alleged in paragraph 4 of the plaint. The appellant further denied the particulars of negligence and that the respondent( Deceased) died as a result of injuries sustained due to the accident and put him to strict proof.
7. The appellant claimed that the Deceased who was driving motor vehicle KCJ 479F was negligent and gave the particulars of negligence as follows:
• He drove at excessive speed in the circumstance.
• He failed to keep any proper look out or to have any to any other sufficient regard for other traffic.
• Failed to see motor vehicle registration number KCQ 112S in sufficient time to avoid the said collision.
• Failed to stop,slow down, to swerve or in any other way to manage or failed to take any control of the said motor vehicle as to avoid the said collision.
8. In summary, the respondents’ case was that they sued the appellant for compensation as a result of an accident that occurred on 28/5/2020 along Kitui -Mutomo Road. The respondent was driving motor vehicle registration number KCJ 479F. The appellant’s motor vehicle KCQ 112S was negligently driven that the same was allowed to violently collide with motor vehicle registration number KCJ 479F driven by Deceased and in the process the respondent sustained succumbed to the injuries he sustained from the said accident. The respondents claimed that the defendant/appellant was negligent and careless and ought to be found negligent for causing the accident.
The Trial
Respondent’s case
9. PWI Brendah Nanjala Sikuku adopted her written statement dated 12.3.2021 as her evidence in chief. She stated that the deceased was her beloved husband and he passed on 28.5.2020 after he was involved in a tragic road accident on the same day. She stated that at the time of the subject demise her husband was aged 31 years and was in good health and together they were blessed with five children.
10. PW1 testified further that her husband was working as a business man earning a monthly income of Kshs. 80,000 which he used to support their school going children and her. She also produced documents as per the plaintiffs list of documents as exhibits in support of her claim. She blamed the driver of the motor vehicle KCQ 112S for causing the accident for driving it carelessly and recklessly such that he allowed it to collide violently with motor vehicle KCJ 479F which was being driven by the deceased.
11. PW2 was PC Mary Wangari of Kitui Police Station. He testified that the accident occurred on 28.5.20 along Kitui- Mutomo road at Nzeeu bridge involving the defendants motor vehicle Reg No. KCQ112S and KCJ 479F driven by the deceased
12. PW2 stated that the accident was fatal and the deceased succumbed to the injuries sustained. She testified the accident was reported at Kitui Police station and that after investigations by the investigating officer, the police blamed the driver of the defendant's motor vehicle and charged him in court for causing death by dangerous driving. She produced police abstract as evidence that the accident occurred. The case was still pending before the court as at the date when the witness testified.
13. PW3 Alexander Mutua Kyalo testified as the eye witness. He told the court that he was a passenger onboard motor vehicle registration No. KCJ 479F together with deceased. He said that an oncoming motor vehicle registration No. KCQ 112S tried to overtake at Nzeeu Bridge and as a result violently collided with motor vehicle registration No. KCJ. He further testified that the deceased stopped his motor vehicle off the road in the left side in order to avoid oncoming motor vehicle KCQ 1125 which was overtaking at high-speed on the bridge but it was too late. Motor vehicle KCQ 112S hit the deceased motor vehicle pushing it into a ditch. As a result, the deceased sustained injuries and later succumbed to the injuries at Kitui County Hospital. He blamed the driver of the motor vehicle Reg. No. KCQ 112S for causing the accident and demise of the late Nelson Wandera Okato.
Appellant’s case
14. The appellant/defendant in this case chose not to call any witness in support of the case during the hearing before trial court.
Trial court judgement
15. Upon hearing the matter, the trial magistrate delivered a Judgment dated 30th June, 2023 as follows;
‘‘….Liability
The Defendant did not call any witness to tell the court how the accident occurred. The only evidence as to how the accident occurred is evidence of PW 3 Alex Mutua Kyalo, the eye witness. In absence of any other evidence as to how the accident occurred, PW3 evidence remains unchallenged meaning the Plaintiff claim is uncontroverted. I rely in a case where Justice G.Y. Odunga in the case of Linus Nganga Kiongo & 3 others v. Town Council of Kikuyu (2012) Ekir rendered himself on the consequences of a party failing to call evidence while quoting the case of;
Moter Knitwear Mills limited Milimani HCC 834/2002 Honourable Lessit
J citing Autar Singh Bahra & Another vs. Raju Govindji BCC 548 OF 1998
"Although the defendant has denied liability in an amended defence and counter claim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the I' plaintiffs case stand unchallenged, but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated, in the circumstances the counterclaim must fail... " Where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged...."
I therefore hold the driver of motor vehicle KCQ 112S liable for causing the
accident by extension the Defendant is vicariously liable.
….a) Loss of dependency Multiplicand. The deceased's wife testified that the deceased was a businessman caring Kshs. 80,000/= per month. There was no any documentary proof. Superior Courts in various decisions have given three options to be adopted in such a scenario.
1. To resort to the provisions of Regulations of Wages Orders given from time to time by the government like;
(a) in the case of Gachoki Gathuri (suing as legal Rep. of the Estate of James Kinyua Gachoki (deceased) -V- John Ndiga Njagi Timothy & 2 others [2015] eKLR
(b)The case of 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
(c)The case of Nyamira Tea Farmers Sacco -V- Wilfred Nyambati Keraita and another Kisii Civil Appeal No. 68 of 2005[2011] eKLR where Asike Makhandia J stated "In absence of proof of income the trial magistrate ought to have reverted to Regulation of Wages (General Amendment) Order, 2005..
2.The testimony of the witnesses as to the income of the deceased In the case of Mwita Nyamohanga & Another -V- Mary Robi Moherai suing on behalf of the Estate of Joseph Tagare Mwita (deceased) & another (2015], Hon. Justice Majanja held that,
*as concerns the Estate of Stephen Nyamohanga, the learned magistrate relied on the Regulation of Wages (general Amendment) Order to determine the multiplicand. In my view, this was an error as the deceased's wife testified that he earned Kshs. 9.000/= per month. The learned magistrate in relied on the case of Nyamira Tea Farmers Sacco -V- Winfred Nyambati Keraita and another Kisii Civil Appeal No. 68 of 2005 [2011]eKLR where Asike- Makhandia I stated, " in absence of proof of income the trial magistrate ought to have reverted to Regulation of Wages (General Amendment) Order, 2005... (emphasis mine) I agree with his statement of principle but in the case under consideration there was proof of income by way of the deceased's wife testimony which was sufficient to prove income hence there was no need to fall back to the Regulation of Wages Order."
3. Adoption of Global Award System.
Justice Ngaa in Moses Mairua Muchiri -Vs- Cyrus Maina Macharia (Suing as the personal representative of the Estare of Mercy Nzula Maina (Deceased) 2016 he held as follows, It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. IS the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.
Justice Ringera in Albert Odawa -V- Gichimu Gichenju HCCA
No 15 of 2003 (2007), held as follows; "The multiplier approach is just a method of accessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the factors do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do. "
The plaintiff counsel is not averse to the court adopting the global award system and has urged the court if it opts for that to award the Plaintiff global sum of Kshs.5,000,000/= under this head and cited the following authorities to assist the court where,
(a)Justice H. P. G. Waweru, dated S" day of June, 2015, in the case of MNM & Another -V- Solomon Karanja Githinji [2015] Ekir, Civil Case, 303 of 2011. Where the court awarded the global sum of Kshs.3,000,000/= for the deceased person who was 46 years old at the time of death.
(b) Hon, R. E. Aburili, dated 17" day of August, 2016 in the case of Mary Njeri Murigi -v- Peter Macharia & Another (2016) Civil Case No. 318 of 2012 where the court awarded a lump sum of Kshs.4,000,000/= for the deceased person who was 60 years old at time of death and was a businessman. I will adopt the route of global award system. For the monthly earnings are not ascertainable. The deceased met his untimely death at the age of 31 years. It was stated that prior to his death, the deceased was a businessman and he used to support his family. I find a global sum of Kshs. 5,000,000/= as submitted by the Plaintiff counsel reasonable. In awarding this sum, I have taken into consideration the award I have awarded under the Law Reform Act.
…..b) Special damages
The plaintiffs pleaded and proved specials of Kshs. 16,630/=. The claim is hereby allowed
Conclusion
Therefore, I do find the Plaintiff has on balance of probability proved her case against the Defendant and I do enter judgement in her favour as follows;
pain and suffering Kshs.20,000/=
1. Loss of expectation of life Kshs.150,000/=
2. Special damages Kshs.16,630/=
3. Loss of dependency Kshs.5,000,0000/=
Total Kshs.5,186,630/=
The Appeal
16. The appellant was aggrieved by the above Judgment on liability and quantum on loss of dependency and he filed this appeal against the Judgment.
17. The appeal was based on the following grounds pleaded on the memorandum of appeal dated 31 July, 2023 that ;
i. The learned Magistrate erred in law and fact in entering Judgement against the Appellant and finding the Appellant 100% liable when considering the evidence on record and trial, the same had not been proved.
ii. The Learned Magistrate erred in law and fact in failing to appreciate and find that the Respondent had not proved their case on a balance of probability against the Appellant.
iii. The Learned Magistrate erred in law and fact in reaching a conclusion that was contrary to the evidence placed before him and therefore finding the Appellant 100% liable.
iv. The Learned Magistrate erred in law and in fact by adopting a global sum approach for purposes of determining the income of the deceased.
v. The Learned Magistrate erred in law and fact by failing to apply the provisions of the Legal Notice No. 2 on Regulation of Wages (General) (Amendment) Order, 2018 which was the applicable Notice as at the time the deceased died.
vi. The Learned Magistrate erred in law and fact by applying the wrong principles in arriving at the award of general damages for loss of dependency at Kshs. 5,000.000/= which award is inordinately high considering the evidence placed before him and the judicial authorities submitted by the Appellant.
18. The appellants pray that the judgment delivered on liability and quantum of damages on loss of dependency be varied and reduced and replace it with its own assessment. That the appeal be allowed with costs.
19. The appeal proceeded by way of written submission. The appellant filed written submissions dated 22nd May,2025 through the firm of Archer & Wilcock Advocates. The respondents filed did not file written submissions dated 23rd June 2025 through the firm of Musili Mbiti Advocates LLP.
20. The appellant submitted that the trial magistrate erred in law and fact in holding the appellant 100% liable for the accident. He submitted the evidence on record does not support finding of liability against the appellant. The appellant submitted further that the respondent did not discharge their burden of prove against him to required standard.
21. The appellant submitted that the particulars of negligence pleaded by respondents were never substantiated against it. He submitted that PW1 testified that she was not at the scene of accident. He also submitted that PW2 stated that she was not investigating officer and further admitted that the accident was still pending under investigation.
22. The appellant submitted that the trial court erred in finding that the appellant was wholly to blame for the accident merely because the respondent’s case was uncontroverted as no evidence was adduced.
23. The appellant relied on the decision in the case of Statpack Industries Vs. James Mbithi Munyao [2005]Eklr and in the decision in case of Bwire Vs. Wayo & Soiloki(Civil Appeal 032 of 2021)[2022]KEHC 7 (KLR) among others.
24. The appellant submitted that trial court failed to justify the application of the global award system in awarding general damages for loss of dependency. It was submitted that despite the choice of whether to apply a multiplier approach or a global award approach being a matter of court's discretion based on the circumstances of the case, the trial court erred in its decision to adopt the global award system approach in tabulating the damages on loss of dependency.
25. The Appellant submitted that parties are bound by their pleadings. A perusal of the Certificate of Death showed that the deceased's occupation as at the time of his death was "businessman" . It was submitted Deceased’ wife, PW1 testimony was that the deceased was a businessman and earned Kshs 80,000/= per month and he was the breadwinner of the family. It was submitted that she did not adduce any evidence to support the said averment and therefore the deceased's income was unknown.
26. The appellant submitted that there was a miscalculation for the court to use the global award system when the Respondent had clearly pleaded the amount earned by the deceased prior to his death. The Appellant submitted that where a businessperson's wage was unknown, the trial court had the duty to consider adopting the minimum wage of a deceased person's job prevailing at the time of his death.
27. The Appellant submitted that the trial court ought to have reverted to the minimum wage for a general laborer as per the Regulation of Wages (General) (Amendment) Order, 2018 which was applicable at the time of the deceased's death. It was further submitted that deceased was a resident in Kitui and died on the 28th day of May, 2020. Therefore, the applicable multiplicand ought to have been Kshs. 7,240.95/= less statutory deductions.
28. The Appellant submitted that the trial magistrate failed to judicially apply and to evaluate the evidence tendered before it and thereby arrived at a decision which was unsustainable in law and which was not supported by any evidence as he ought to have used the minimum wage for a general laborer.
29. The appellant also submitted on whether the award of Kshs. 5,000,000/= for loss of dependency in light of the evidence on record was inordinately high to persuade this honorable court to interfere with it. The appellant submitted that the general principle to be observed by an appellate court when deciding whether or not to interfere with the quantum of damages awarded by a trial court were stated by Mativo. J in the case Joseph Niogu Kamunge v Charles Muriuki Gachari Civil Appeal 42 of 2014.
30. The appellant submitted that the Learned Magistrate gave a manifestly excessive and inordinately high award considering the age of the deceased, the dependents lefts behind and the circumstances of the case. The Appellant submitted that the court's decision ought to be re-assessed.
31. The Appellant prayed that this court does reassess its judgment and proceed to vary the award on loss of dependency and equally consider the Appellant's submissions on record in regards to loss of dependency. The appellant submitted that considering that the deceased was survived by his wife and five (5) children, a dependency ratio will suffice bringing the amount due under the Fatal Accident Act as hereunder;
Kshs. 7,240 x 12 x 19 years x 2/3 = Kshs. 1,100,480.00/=.
32. The appellant submitted that an award of Kshs. Kshs. 1,100,480.00/= would be reasonable award for loss of dependency subject to 30% contribution and considering the appellant’s submissions.
Respondent’s Submissions
33. It is submitted on liability that that despite the Appellant attributing negligence on the part of the Deceased he did not call any witness, tender any evidence whatsoever or produce any documents to support his allegation which are largely unfounded. It was submitted that it is only an eye witness who can testify on the circumstances of an accident and with regard to how this accident occurred, and in this case, Appellant did not call any witness before the trial magistrate and as such the Respondent's testimony before the trial magistrate stands uncontroverted but rather corroborated by the witnesses before trial court as well as documents produced before trial court.
34. The respondent submitted that the burden of proof in civil cases is on a balance of probability. It was submitted that the Respondent's evidence was never challenged. The respondents relied on the case of Linus Nganga Kiongo & 3 Others V Town Council of Kikuyu [2012] e KLR in support.
35. The respondent submitted that it is clear from the above analysis and the evidence adduced before the trial court the learned trial magistrate did not error in any law or principle while apportioning liability at 100% in favor of the Respondent.
36. The respondent submitted on quantum of damage on Loss of dependency. It was submitted that the trial court considered the facts of the case and law and settled on a methodology of adoption of a global sum. The respondent submitted that they had sought a global sum of 5,000,000/= which was a reasonable global sum. The respondent in support relied on the decision in the case of MNM & Another v Solomon Karanja Githinji [2015]e KLR, Civil case 303 of 2011 among others. The respondents urges the court to dismiss the appellant’s appeal.
Analysis and Determination
37. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. Also In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal held that: -“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”
38. I have considered the grounds of appeal enumerated on the memorandum of appeal. The main issues for determination are :
i. Whether the court should interfere with findings on liability by the learned magistrate.
ii. Whether the court should interfere with the award of quantum of damages for loss of dependency.
Liability
39. The appellant under ground 1 on the memorandum of appeal stated that he learned magistrate erred in fact and in law in apportioning liability at 100% in favour of the respondents against the appellant. That the learned magistrate erred in fact and in law in reaching a conclusion that was contrary to the evidence placed before him and therefore finding the appellant 100% liable.
40. On liability, the appellant was held 100% liable for causing the accident. In Stapley v Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 reiterated in the case of Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment) Lord Reid reasoned that: -
“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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”
41. It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that: -
“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.”
42. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: -
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
43. Accordingly, it was the respondent’s duty to produce evidence that the appellant was liable for causing the accident that led to his death.
44. The appellants submitted that the trial court erred in law and fact in finding that the appellant was wholly to blame for the accident merely because the respondents’ case was uncontroverted.
45. In paragraph 4 of his plaint dated 12th March, 2021, the respondent pleaded as follows: -
“On or about the 28th May, 2020, the Deceased was lawfully and carefully driving motor vehicle registration number KCJ 479F along Kitui - Mutomo road when motor vehicle registration number KCQ 112S was so negligently and/or carelessly driven, managed and/or controlled that the same was allowed to violently collide with motor vehicle registration number KCJ 479F which the Plaintiff was driving and the result was fatal as the Deceased succumbed to the injuries he sustained therefrom.
PARTICULARS OF NEGLIGENCE OF THE DRIVER OF MOTOR VEHICLE REGISTRATION NUMBER KCQ 112S
a) Driving the said motor vehicle in excessive high speed in the circumstances
b) Driving the said motor vehicle without due care and attention
c) Driving the said motor vehicle so dangerously and/or negligently and without regard to other road users and particularly the Plaintiff
d) Driving the said motor vehicle recklessly and in total violation of the Traffic Rules
e) Failure to slow down, stop, brake, swerve and/or take any other reasonable step to avoid the said accident
f) Driving a defective motor vehicle
g) Causing the accident
The Plaintiff will so far as the same is applicable rely on the doctrine of RES IPSA LOQUITOR. By virtue of the premises aforesaid, the Defendants are vicariously liable.”
46. At the trial, the respondent called a witness PW3 Alexander Mutua Kyalo who told court that he was a passenger onboard motor vehicle registration No. KCJ 479F together with deceased. He said that an oncoming motor vehicle registration No. KCQ 112S tried to overtake at Nzeeu Bridge and as a result violently collided with motor vehicle registration No. KCJ.
He further testified that the deceased stopped his motor vehicle off the road in the left side in order to avoid oncoming motor vehicle KCQ 1125 which was
overtaking at high-speed on the bridge but it was too late. Motor vehicle KCQ 112S hit the deceased motor vehicle pushing it into a ditch. As a result, the
deceased sustained injuries and later succumbed to the injuries at Kitui County Hospital. He blamed the driver of the motor vehicle Reg. No. KCQ 1125 for
causing the accident and demise of the late Nelson Wandera Okato.
47. From the foregoing, it is clear that contrary to the allegations by the appellant, it is clear that the evidence presented by the respondent’s witness PW3 supported respondent’s pleadings on the nature of how the accident occurred.
48. Juxtaposed against this testimony, is that the appellant did not call any evidence in support of his defence. The appellant failed to give any version of events that was contrary to what the respondents had alleged and testified on. The appellant never challenged or contradict the testimony of the respondents.
49. In my view, a statement made on oath should as a matter of fact be expressly denied on oath. If not challenged, it remains a fact and the truth for that matter. The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendant and or their counsel to cross-examine the respondents on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.
50. In the circumstances, I am persuaded that the trial court considered the evidence tendered within the appropriate legal framework in arriving at a sound finding that the respondents had proved their case on a balance of probabilities. The appellant Statement of Defence remained mere statements devoid of any evidential value.
51. Accordingly, I find no basis upon which this Court can interfere with the trial court’s finding on liability.
Quantum of Damages
52. It is t
[...truncated]
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEAL NO. 56 OF 2023
KATIA HOLDINGS LIMITED……………………………………………………..APPELLANT
VERSUS
BRENDA NANJALA SIKUKU AND MESHACK MUSAMBIRA OKATO
(Suing as the Administrator of
the estate of Nelson Wandera Okato-Deceased) ………………………………….…RESPONDENTS
JUDGEMENT
1. This appeal arises from the Judgment in Kitui Chief Magistrate’s Court Civil Case No. E084 of 2021 where the respondents had sued the appellant vide a plaint dated 12th March, 2021 claiming General Damages as well as special damages amounting to Kshs. 16,630/= costs of the suit and interests. The claim was founded on negligence arising from a road traffic accident.
2. The respondents had sued the appellant claiming that on 28th May,2020 the appellant’s authorized driver drove motor vehicle registration number KCQ 112S so negligently and carelessly that he caused it collide with Motor Vehicle registration number KCJ 479F that the respondent was driving and the result was fatal as the Deceased succumbed to the injuries he sustained therefrom.
3. The respondents stated the particulars of negligence as follows:
• Driving at an excessive speed in the circumstances.
• Driving the motor vehicle KCQ 112S without due care and attention.
• Driving motor vehicle KCQ 112S so dangerously and/or negligently and without regard to the other road users and particularly the plaintiff.
• Driving motor vehicle KCQ 112S recklessly and in total violation of the Traffic Rules
• Failure to slow down , stop,brake,swerve and /or take any other reasonable step to avoid the said accident
• Driving a defective motor vehicle
• Causing the accident
4. The respondents averred that as a result of the said accident the Plaintiff who was driving succumbed to the injuries he sustained from the said accident.
5. As for the particulars of the special damages, they were specified as follows:
• Copy of motor vehicle records – 550/=
• Letter of Limited grant ad Litem
– Court fees -1080/=
- Advocate fees– 15,000/=
• Total 16,630/=
6. The respondents claimed that the appellant was vicariously liable for the tortuous actions of his driver, agent and/or employee. The appellant filed a defence dated 21st July,2021 and denied that an accident occurred on the said day and place involving motor vehicle registration number KCJ 479F and KCQ 112S as alleged in paragraph 4 of the plaint. The appellant further denied the particulars of negligence and that the respondent( Deceased) died as a result of injuries sustained due to the accident and put him to strict proof.
7. The appellant claimed that the Deceased who was driving motor vehicle KCJ 479F was negligent and gave the particulars of negligence as follows:
• He drove at excessive speed in the circumstance.
• He failed to keep any proper look out or to have any to any other sufficient regard for other traffic.
• Failed to see motor vehicle registration number KCQ 112S in sufficient time to avoid the said collision.
• Failed to stop,slow down, to swerve or in any other way to manage or failed to take any control of the said motor vehicle as to avoid the said collision.
8. In summary, the respondents’ case was that they sued the appellant for compensation as a result of an accident that occurred on 28/5/2020 along Kitui -Mutomo Road. The respondent was driving motor vehicle registration number KCJ 479F. The appellant’s motor vehicle KCQ 112S was negligently driven that the same was allowed to violently collide with motor vehicle registration number KCJ 479F driven by Deceased and in the process the respondent sustained succumbed to the injuries he sustained from the said accident. The respondents claimed that the defendant/appellant was negligent and careless and ought to be found negligent for causing the accident.
The Trial
Respondent’s case
9. PWI Brendah Nanjala Sikuku adopted her written statement dated 12.3.2021 as her evidence in chief. She stated that the deceased was her beloved husband and he passed on 28.5.2020 after he was involved in a tragic road accident on the same day. She stated that at the time of the subject demise her husband was aged 31 years and was in good health and together they were blessed with five children.
10. PW1 testified further that her husband was working as a business man earning a monthly income of Kshs. 80,000 which he used to support their school going children and her. She also produced documents as per the plaintiffs list of documents as exhibits in support of her claim. She blamed the driver of the motor vehicle KCQ 112S for causing the accident for driving it carelessly and recklessly such that he allowed it to collide violently with motor vehicle KCJ 479F which was being driven by the deceased.
11. PW2 was PC Mary Wangari of Kitui Police Station. He testified that the accident occurred on 28.5.20 along Kitui- Mutomo road at Nzeeu bridge involving the defendants motor vehicle Reg No. KCQ112S and KCJ 479F driven by the deceased
12. PW2 stated that the accident was fatal and the deceased succumbed to the injuries sustained. She testified the accident was reported at Kitui Police station and that after investigations by the investigating officer, the police blamed the driver of the defendant's motor vehicle and charged him in court for causing death by dangerous driving. She produced police abstract as evidence that the accident occurred. The case was still pending before the court as at the date when the witness testified.
13. PW3 Alexander Mutua Kyalo testified as the eye witness. He told the court that he was a passenger onboard motor vehicle registration No. KCJ 479F together with deceased. He said that an oncoming motor vehicle registration No. KCQ 112S tried to overtake at Nzeeu Bridge and as a result violently collided with motor vehicle registration No. KCJ. He further testified that the deceased stopped his motor vehicle off the road in the left side in order to avoid oncoming motor vehicle KCQ 1125 which was overtaking at high-speed on the bridge but it was too late. Motor vehicle KCQ 112S hit the deceased motor vehicle pushing it into a ditch. As a result, the deceased sustained injuries and later succumbed to the injuries at Kitui County Hospital. He blamed the driver of the motor vehicle Reg. No. KCQ 112S for causing the accident and demise of the late Nelson Wandera Okato.
Appellant’s case
14. The appellant/defendant in this case chose not to call any witness in support of the case during the hearing before trial court.
Trial court judgement
15. Upon hearing the matter, the trial magistrate delivered a Judgment dated 30th June, 2023 as follows;
‘‘….Liability
The Defendant did not call any witness to tell the court how the accident occurred. The only evidence as to how the accident occurred is evidence of PW 3 Alex Mutua Kyalo, the eye witness. In absence of any other evidence as to how the accident occurred, PW3 evidence remains unchallenged meaning the Plaintiff claim is uncontroverted. I rely in a case where Justice G.Y. Odunga in the case of Linus Nganga Kiongo & 3 others v. Town Council of Kikuyu (2012) Ekir rendered himself on the consequences of a party failing to call evidence while quoting the case of;
Moter Knitwear Mills limited Milimani HCC 834/2002 Honourable Lessit
J citing Autar Singh Bahra & Another vs. Raju Govindji BCC 548 OF 1998
"Although the defendant has denied liability in an amended defence and counter claim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the I' plaintiffs case stand unchallenged, but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated, in the circumstances the counterclaim must fail... " Where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged...."
I therefore hold the driver of motor vehicle KCQ 112S liable for causing the
accident by extension the Defendant is vicariously liable.
….a) Loss of dependency Multiplicand. The deceased's wife testified that the deceased was a businessman caring Kshs. 80,000/= per month. There was no any documentary proof. Superior Courts in various decisions have given three options to be adopted in such a scenario.
1. To resort to the provisions of Regulations of Wages Orders given from time to time by the government like;
(a) in the case of Gachoki Gathuri (suing as legal Rep. of the Estate of James Kinyua Gachoki (deceased) -V- John Ndiga Njagi Timothy & 2 others [2015] eKLR
(b)The case of 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
(c)The case of Nyamira Tea Farmers Sacco -V- Wilfred Nyambati Keraita and another Kisii Civil Appeal No. 68 of 2005[2011] eKLR where Asike Makhandia J stated "In absence of proof of income the trial magistrate ought to have reverted to Regulation of Wages (General Amendment) Order, 2005..
2.The testimony of the witnesses as to the income of the deceased In the case of Mwita Nyamohanga & Another -V- Mary Robi Moherai suing on behalf of the Estate of Joseph Tagare Mwita (deceased) & another (2015], Hon. Justice Majanja held that,
*as concerns the Estate of Stephen Nyamohanga, the learned magistrate relied on the Regulation of Wages (general Amendment) Order to determine the multiplicand. In my view, this was an error as the deceased's wife testified that he earned Kshs. 9.000/= per month. The learned magistrate in relied on the case of Nyamira Tea Farmers Sacco -V- Winfred Nyambati Keraita and another Kisii Civil Appeal No. 68 of 2005 [2011]eKLR where Asike- Makhandia I stated, " in absence of proof of income the trial magistrate ought to have reverted to Regulation of Wages (General Amendment) Order, 2005... (emphasis mine) I agree with his statement of principle but in the case under consideration there was proof of income by way of the deceased's wife testimony which was sufficient to prove income hence there was no need to fall back to the Regulation of Wages Order."
3. Adoption of Global Award System.
Justice Ngaa in Moses Mairua Muchiri -Vs- Cyrus Maina Macharia (Suing as the personal representative of the Estare of Mercy Nzula Maina (Deceased) 2016 he held as follows, It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. IS the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.
Justice Ringera in Albert Odawa -V- Gichimu Gichenju HCCA
No 15 of 2003 (2007), held as follows; "The multiplier approach is just a method of accessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the factors do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do. "
The plaintiff counsel is not averse to the court adopting the global award system and has urged the court if it opts for that to award the Plaintiff global sum of Kshs.5,000,000/= under this head and cited the following authorities to assist the court where,
(a)Justice H. P. G. Waweru, dated S" day of June, 2015, in the case of MNM & Another -V- Solomon Karanja Githinji [2015] Ekir, Civil Case, 303 of 2011. Where the court awarded the global sum of Kshs.3,000,000/= for the deceased person who was 46 years old at the time of death.
(b) Hon, R. E. Aburili, dated 17" day of August, 2016 in the case of Mary Njeri Murigi -v- Peter Macharia & Another (2016) Civil Case No. 318 of 2012 where the court awarded a lump sum of Kshs.4,000,000/= for the deceased person who was 60 years old at time of death and was a businessman. I will adopt the route of global award system. For the monthly earnings are not ascertainable. The deceased met his untimely death at the age of 31 years. It was stated that prior to his death, the deceased was a businessman and he used to support his family. I find a global sum of Kshs. 5,000,000/= as submitted by the Plaintiff counsel reasonable. In awarding this sum, I have taken into consideration the award I have awarded under the Law Reform Act.
…..b) Special damages
The plaintiffs pleaded and proved specials of Kshs. 16,630/=. The claim is hereby allowed
Conclusion
Therefore, I do find the Plaintiff has on balance of probability proved her case against the Defendant and I do enter judgement in her favour as follows;
pain and suffering Kshs.20,000/=
1. Loss of expectation of life Kshs.150,000/=
2. Special damages Kshs.16,630/=
3. Loss of dependency Kshs.5,000,0000/=
Total Kshs.5,186,630/=
The Appeal
16. The appellant was aggrieved by the above Judgment on liability and quantum on loss of dependency and he filed this appeal against the Judgment.
17. The appeal was based on the following grounds pleaded on the memorandum of appeal dated 31 July, 2023 that ;
i. The learned Magistrate erred in law and fact in entering Judgement against the Appellant and finding the Appellant 100% liable when considering the evidence on record and trial, the same had not been proved.
ii. The Learned Magistrate erred in law and fact in failing to appreciate and find that the Respondent had not proved their case on a balance of probability against the Appellant.
iii. The Learned Magistrate erred in law and fact in reaching a conclusion that was contrary to the evidence placed before him and therefore finding the Appellant 100% liable.
iv. The Learned Magistrate erred in law and in fact by adopting a global sum approach for purposes of determining the income of the deceased.
v. The Learned Magistrate erred in law and fact by failing to apply the provisions of the Legal Notice No. 2 on Regulation of Wages (General) (Amendment) Order, 2018 which was the applicable Notice as at the time the deceased died.
vi. The Learned Magistrate erred in law and fact by applying the wrong principles in arriving at the award of general damages for loss of dependency at Kshs. 5,000.000/= which award is inordinately high considering the evidence placed before him and the judicial authorities submitted by the Appellant.
18. The appellants pray that the judgment delivered on liability and quantum of damages on loss of dependency be varied and reduced and replace it with its own assessment. That the appeal be allowed with costs.
19. The appeal proceeded by way of written submission. The appellant filed written submissions dated 22nd May,2025 through the firm of Archer & Wilcock Advocates. The respondents filed did not file written submissions dated 23rd June 2025 through the firm of Musili Mbiti Advocates LLP.
20. The appellant submitted that the trial magistrate erred in law and fact in holding the appellant 100% liable for the accident. He submitted the evidence on record does not support finding of liability against the appellant. The appellant submitted further that the respondent did not discharge their burden of prove against him to required standard.
21. The appellant submitted that the particulars of negligence pleaded by respondents were never substantiated against it. He submitted that PW1 testified that she was not at the scene of accident. He also submitted that PW2 stated that she was not investigating officer and further admitted that the accident was still pending under investigation.
22. The appellant submitted that the trial court erred in finding that the appellant was wholly to blame for the accident merely because the respondent’s case was uncontroverted as no evidence was adduced.
23. The appellant relied on the decision in the case of Statpack Industries Vs. James Mbithi Munyao [2005]Eklr and in the decision in case of Bwire Vs. Wayo & Soiloki(Civil Appeal 032 of 2021)[2022]KEHC 7 (KLR) among others.
24. The appellant submitted that trial court failed to justify the application of the global award system in awarding general damages for loss of dependency. It was submitted that despite the choice of whether to apply a multiplier approach or a global award approach being a matter of court's discretion based on the circumstances of the case, the trial court erred in its decision to adopt the global award system approach in tabulating the damages on loss of dependency.
25. The Appellant submitted that parties are bound by their pleadings. A perusal of the Certificate of Death showed that the deceased's occupation as at the time of his death was "businessman" . It was submitted Deceased’ wife, PW1 testimony was that the deceased was a businessman and earned Kshs 80,000/= per month and he was the breadwinner of the family. It was submitted that she did not adduce any evidence to support the said averment and therefore the deceased's income was unknown.
26. The appellant submitted that there was a miscalculation for the court to use the global award system when the Respondent had clearly pleaded the amount earned by the deceased prior to his death. The Appellant submitted that where a businessperson's wage was unknown, the trial court had the duty to consider adopting the minimum wage of a deceased person's job prevailing at the time of his death.
27. The Appellant submitted that the trial court ought to have reverted to the minimum wage for a general laborer as per the Regulation of Wages (General) (Amendment) Order, 2018 which was applicable at the time of the deceased's death. It was further submitted that deceased was a resident in Kitui and died on the 28th day of May, 2020. Therefore, the applicable multiplicand ought to have been Kshs. 7,240.95/= less statutory deductions.
28. The Appellant submitted that the trial magistrate failed to judicially apply and to evaluate the evidence tendered before it and thereby arrived at a decision which was unsustainable in law and which was not supported by any evidence as he ought to have used the minimum wage for a general laborer.
29. The appellant also submitted on whether the award of Kshs. 5,000,000/= for loss of dependency in light of the evidence on record was inordinately high to persuade this honorable court to interfere with it. The appellant submitted that the general principle to be observed by an appellate court when deciding whether or not to interfere with the quantum of damages awarded by a trial court were stated by Mativo. J in the case Joseph Niogu Kamunge v Charles Muriuki Gachari Civil Appeal 42 of 2014.
30. The appellant submitted that the Learned Magistrate gave a manifestly excessive and inordinately high award considering the age of the deceased, the dependents lefts behind and the circumstances of the case. The Appellant submitted that the court's decision ought to be re-assessed.
31. The Appellant prayed that this court does reassess its judgment and proceed to vary the award on loss of dependency and equally consider the Appellant's submissions on record in regards to loss of dependency. The appellant submitted that considering that the deceased was survived by his wife and five (5) children, a dependency ratio will suffice bringing the amount due under the Fatal Accident Act as hereunder;
Kshs. 7,240 x 12 x 19 years x 2/3 = Kshs. 1,100,480.00/=.
32. The appellant submitted that an award of Kshs. Kshs. 1,100,480.00/= would be reasonable award for loss of dependency subject to 30% contribution and considering the appellant’s submissions.
Respondent’s Submissions
33. It is submitted on liability that that despite the Appellant attributing negligence on the part of the Deceased he did not call any witness, tender any evidence whatsoever or produce any documents to support his allegation which are largely unfounded. It was submitted that it is only an eye witness who can testify on the circumstances of an accident and with regard to how this accident occurred, and in this case, Appellant did not call any witness before the trial magistrate and as such the Respondent's testimony before the trial magistrate stands uncontroverted but rather corroborated by the witnesses before trial court as well as documents produced before trial court.
34. The respondent submitted that the burden of proof in civil cases is on a balance of probability. It was submitted that the Respondent's evidence was never challenged. The respondents relied on the case of Linus Nganga Kiongo & 3 Others V Town Council of Kikuyu [2012] e KLR in support.
35. The respondent submitted that it is clear from the above analysis and the evidence adduced before the trial court the learned trial magistrate did not error in any law or principle while apportioning liability at 100% in favor of the Respondent.
36. The respondent submitted on quantum of damage on Loss of dependency. It was submitted that the trial court considered the facts of the case and law and settled on a methodology of adoption of a global sum. The respondent submitted that they had sought a global sum of 5,000,000/= which was a reasonable global sum. The respondent in support relied on the decision in the case of MNM & Another v Solomon Karanja Githinji [2015]e KLR, Civil case 303 of 2011 among others. The respondents urges the court to dismiss the appellant’s appeal.
Analysis and Determination
37. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. Also In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal held that: -“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”
38. I have considered the grounds of appeal enumerated on the memorandum of appeal. The main issues for determination are :
i. Whether the court should interfere with findings on liability by the learned magistrate.
ii. Whether the court should interfere with the award of quantum of damages for loss of dependency.
Liability
39. The appellant under ground 1 on the memorandum of appeal stated that he learned magistrate erred in fact and in law in apportioning liability at 100% in favour of the respondents against the appellant. That the learned magistrate erred in fact and in law in reaching a conclusion that was contrary to the evidence placed before him and therefore finding the appellant 100% liable.
40. On liability, the appellant was held 100% liable for causing the accident. In Stapley v Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 reiterated in the case of Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment) Lord Reid reasoned that: -
“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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”
41. It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that: -
“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.”
42. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: -
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
43. Accordingly, it was the respondent’s duty to produce evidence that the appellant was liable for causing the accident that led to his death.
44. The appellants submitted that the trial court erred in law and fact in finding that the appellant was wholly to blame for the accident merely because the respondents’ case was uncontroverted.
45. In paragraph 4 of his plaint dated 12th March, 2021, the respondent pleaded as follows: -
“On or about the 28th May, 2020, the Deceased was lawfully and carefully driving motor vehicle registration number KCJ 479F along Kitui - Mutomo road when motor vehicle registration number KCQ 112S was so negligently and/or carelessly driven, managed and/or controlled that the same was allowed to violently collide with motor vehicle registration number KCJ 479F which the Plaintiff was driving and the result was fatal as the Deceased succumbed to the injuries he sustained therefrom.
PARTICULARS OF NEGLIGENCE OF THE DRIVER OF MOTOR VEHICLE REGISTRATION NUMBER KCQ 112S
a) Driving the said motor vehicle in excessive high speed in the circumstances
b) Driving the said motor vehicle without due care and attention
c) Driving the said motor vehicle so dangerously and/or negligently and without regard to other road users and particularly the Plaintiff
d) Driving the said motor vehicle recklessly and in total violation of the Traffic Rules
e) Failure to slow down, stop, brake, swerve and/or take any other reasonable step to avoid the said accident
f) Driving a defective motor vehicle
g) Causing the accident
The Plaintiff will so far as the same is applicable rely on the doctrine of RES IPSA LOQUITOR. By virtue of the premises aforesaid, the Defendants are vicariously liable.”
46. At the trial, the respondent called a witness PW3 Alexander Mutua Kyalo who told court that he was a passenger onboard motor vehicle registration No. KCJ 479F together with deceased. He said that an oncoming motor vehicle registration No. KCQ 112S tried to overtake at Nzeeu Bridge and as a result violently collided with motor vehicle registration No. KCJ.
He further testified that the deceased stopped his motor vehicle off the road in the left side in order to avoid oncoming motor vehicle KCQ 1125 which was
overtaking at high-speed on the bridge but it was too late. Motor vehicle KCQ 112S hit the deceased motor vehicle pushing it into a ditch. As a result, the
deceased sustained injuries and later succumbed to the injuries at Kitui County Hospital. He blamed the driver of the motor vehicle Reg. No. KCQ 1125 for
causing the accident and demise of the late Nelson Wandera Okato.
47. From the foregoing, it is clear that contrary to the allegations by the appellant, it is clear that the evidence presented by the respondent’s witness PW3 supported respondent’s pleadings on the nature of how the accident occurred.
48. Juxtaposed against this testimony, is that the appellant did not call any evidence in support of his defence. The appellant failed to give any version of events that was contrary to what the respondents had alleged and testified on. The appellant never challenged or contradict the testimony of the respondents.
49. In my view, a statement made on oath should as a matter of fact be expressly denied on oath. If not challenged, it remains a fact and the truth for that matter. The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendant and or their counsel to cross-examine the respondents on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.
50. In the circumstances, I am persuaded that the trial court considered the evidence tendered within the appropriate legal framework in arriving at a sound finding that the respondents had proved their case on a balance of probabilities. The appellant Statement of Defence remained mere statements devoid of any evidential value.
51. Accordingly, I find no basis upon which this Court can interfere with the trial court’s finding on liability.
Quantum of Damages
52. It is t
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