(Being an appeal from the judgement and resultant decree of the Magistrate’s Court at Ukwala ( Hon. E. Tsimonjero, ( SRM)) dated 16 th May 2025 in Ukwala PMCC No. E005 of 2024 )
1. This is a first appeal arising from the judgment of the learned trial magistrate, Hon. E. Tsimonjero, SRM, delivered on 16th May 2025 in Ukwala PMCC No. E005 of 2024. The learned magistrate dismissed the Appellants’ suit, which was a claim for damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32) following the death of Eunice Akinyi Odhiambo (the deceased) in a road traffic accident.
2. Aggrieved by the aforesaid decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 27 th May 2025 wherein they raised the following grounds of appeal namely; -
a) The learned Magistrate erred in both law and fact in dismissing the suit solely on grounds of the confusion of the registration number of the accident motor vehicle in various pleadings as was filed.
b) The learned Magistrate erred in both law and fact in failing to appreciate that the correct registration of the accident motor vehicle was corrected / amended orally during the hearing of the suit.
c) The learned trial magistrate erred in both law and fact in failing to appreciate that the defendant was not sued as the registered owner but as a benefial owner of the accident motor vehicle KCT 143 A Minibus as indicated in the police abstract, a fact which was not disputed.
d) The learned trial magistrate erred in both law and fact in failing to appreciate that the alleged confusion in the registration of motor vehicle was not fatal to the claim to attract dismissal.
e) The learned trial Magistrate erred in both fact and law in failing to correctly appreciate, interpret and apply the law with respect to proof of ownership of motor vehicle.
f) The learned trial magistrate erred in both fact and law in failing to appreciate that there was no confusion on the demand notice served upon the defendant with respect to the accident motor vehicle KCT 143A minibus.
g) The learned trial Magistrate erred in both fact and law in delivering a Judgement against the weight of evidence adduced on behalf of the appellants.
h) The learned trial Magistrate erred in both law and fact by failing to appreciate that the defendant never disputed the fact that he was the beneficial owner of the said accident motor vehicle KCT 143A Minibus.
i) The learned trial Magistrate erred in both fact and law in failing to appreciate submissions made on behalf of the appellants on liability and quantum.
j) The learned trial Magistrate erred in both law and fact by failing to appreciate the Civil Procedure Act provisions on overriding objective principles of substantive justice vis-a vis procedural technicality.
k) The learned trial Magistrate erred in both fact and law in arriving at a judgment which is unfair and unjust in the circumstances.
3. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123.
3. The Appellants, as administrators of the estate of the deceased filed suit against the Respondent. The claim arose from a road traffic accident that occurred on 25th June 2021 along the Kisumu-Busia road at Sira area. The deceased was a pillion passenger on motorcycle registration number KMEZ 293N when it was allegedly hit by motor vehicle registration number KCT 143A, a minibus belonging to the Respondent. The deceased succumbed to injuries sustained in the accident.
4. The Respondent was duly served with summons to enter appearance but failed to do so. Consequently, an interlocutory judgment was entered in favour of the Appellants and that the suit proceeded for formal proof.
5. Kennedy Odhiambo Nyamuga (PW1), took the oath and testified in Kiswahili. He stated that he is a resident of Simero and works as a casual brick maker. He identified the deceased, Eunice Akinyi Odhiambo as his daughter. He testified that on 25th June 2021 at approximately 06:00 AM his daughter was involved in a fatal road traffic accident. She was traveling as a pillion passenger on a motorcycle registration number KMEZ 293A when she was struck by a motor vehicle, registration number KCJ 145A, belonging to Climax Coaches. His daughter died on the spot as a result of the collision. He reported the incident to the police, recorded a statement and filed his court documents. With the permission of the Court presided over by E. Tsimonjero SRM, on 13th March 2025, his witness statement dated 7th February 2024 and the list of documents of the same date were formally adopted with the documents produced and marked as Plaintiffs Exhibits 1 to 12 (P. Exhibit 1 to P. Exhibit 12). He prayed for compensation for the loss of his daughter as sought in the pleadings.
6. Joshua Odeny (PW2), took the oath and testified in Kiswahili. Although the oral proceedings record did not capture his full verbal testimony, his witness statement on the court record was introduced wherein he recalled the events of 25th June 2021 at around 06:30 AM. He stated that at the material time, he was standing beside the Kisumu-Busia Road at the Sira area when he observed a Boxer Bajaj motorcycle, registration number KMEZ 293 N carrying a pillion passenger. The motorcycle rider was operating the bike at a moderate speed on the correct side of the road. He then observed a minibus, registration number KMEZ 143 A (also referenced as KCT 143 A) approaching the scene at a very high speed. The minibus veered out of its lane, crossed into the oncoming motorcycle’s lane and collided with it. Consequently, the pillion passenger sustained fatal injuries and died at the scene. He blamed the driver of the minibus registration number KMEZ 143 A for causing the fatal accident through speeding, reckless and dangerous driving. Neither the motorcycle rider nor the deceased pillion passenger contributed to the occurrence of the accident in any manner. He subsequently established that the deceased passenger was a 15-year-old girl named Eunice Akinyi Odhiambo.
7. The learned trial magistrate later considered the evidence and came up with the impugned judgement.
8. The Appeal was canvassed by way of written submissions. The Appellant filed their submissions dated 12 th May 2026. There are no submissions by the Respondent.
9. The Appellants, being aggrieved by the entire judgment and decree of the Honourable E. Tsimonjero, Senior Resident Magistrate, delivered on 16th May 2025 in Ukwala PMCC No. E005 of 2024, appealed against the decision in its entirety.
10. The Appellants submitted that, as this is a first appeal, the role of the High Court is to re-evaluate the evidence tendered before the trial magistrate, assess it and proceed to form its own independent conclusion while bearing in mind the limitation of not having seen the witnesses testify. To support this position, they relied on the authority of David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'a (Nyeri HCCA No. 43 of 2013) in which the court held:
"It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of facts and come up with findings and conclusions."
11. They further argued that the appellate court is called upon to analyze and re-assess the evidence on record to reach its own conclusions, noting that it neither saw nor heard the witnesses testify as established in Selle v Associated Motor Boat Co. [1968] EA 123. Additionally, they referenced Kiruga v Kiruga & Another [1988] KLR 348, where the Court of Appeal observed:
"An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which would be exercised with caution."
12. Consequently, the Appellants indicated their intention to argue the appeal on the distinct issues of liability and quantum.
13. The Appellants submitted that liability must always follow fault. They asserted that the law places an obligation on a plaintiff to prove on a balance of probabilities that the injuries incurred resulted from the defendant's negligent acts or omissions. They cited Section 107 of the Evidence Act (Cap 80, Laws of Kenya ) which provides that whoever desires any court to give judgment as to a legal right or liability dependent on facts they assert must prove those facts. They also cited Section 109 of the Evidence Act which states that the burden of proving any particular fact lies on the person who wishes the court to believe in its existence. This principle was further supported by the case of Paul Ng'ang'a & Others v The Attorney General & Others (Petition No. 518 of 2012) which held that he who alleges must prove.
14. They submitted that the suit was filed against the Respondent in the lower court via a Plaint dated 7th February 2024 seeking both general and special damages, costs of the suit and interest at court rates. The facts pleaded in the Plaint were that on 25th June 2021, the deceased was traveling as a pillion passenger on a Boxer motorcycle, registration number KMEZ 293 N when it was struck by a minibus, registration number KCT 143 A along the Kisumu-Busia Road at the Sira area causing the deceased to sustain fatal injuries.
15. The Appellants noted that despite being served, the Respondent failed to enter an appearance. As a result, the matter proceeded by way of formal proof but was ultimately dismissed by the trial court.
16. They pointed out that as shown on page 80 of the record of appeal, the trial magistrate dismissed the suit due to confusion regarding the registration details of the subject motor vehicle. The trial court had ruled that the discrepancies and supporting documents prejudiced the Plaintiffs' claim and that the court could not remedy this as doing so would amount to entering the litigation arena and amending pleadings on behalf of a party.
17. While acknowledging the confusion regarding the vehicle's registration in the pleadings, the Appellants argued that the documents produced in court (such as the police abstract dated 25th June 2021) correctly captured the registration number. They contended that the mistake was made by the drafting advocate and that the client should not be punished for it especially since the client had provided documents containing the correct registration details.
18. They submitted that as shown on pages 12 and 15 of the record of appeal, the Plaintiffs could not have discovered the registration error at the time of signing their statements because the registration was correctly captured therein as KCT 143 A Minibus. They argued that the confusion only arose in the eyewitness statement and in paragraph 2 of the Plaint.
19. They noted that during the proceedings, the advocate adopted the witness statements but failed to notice the variance in the vehicle registration details.
20. The Appellants prayed that the Court look past technicalities and not dismiss the appeal based on the procedural errors cited relying on the provisions of Article 159(2)(d) of the Constitution of Kenya. In the alternative, the Appellants prayed that the High Court order a new trial to allow their advocate to amend the necessary pleadings pursuant to Order 42 Rule 26 of the Civil Procedure Rules 2010 which permits an appellate court to set aside a judgment and decree and order a new trial if it deems it fit. They ultimately prayed that the Court consider their submissions, overturn the judgment of the lower court on liability and hold the Respondent 100% liable for causing the accident or in the alternative, order a new trial before the lower court.
21. On the question of quantum, the Appellants stated that they rely entirely on the submissions they previously filed before the lower court, as set out on pages 39 to 40 of the Appellants' record of appeal.
22. I have considered the record of appeal and submissions tendered. I find the issue for determination is whether the Appellants proved their case on a balance of probabilities before the trial court.
23. The core issue is whether a clerical error or confusion in the registration number of the motor vehicle which is a matter of procedure should defeat the Appellants’ claim for substantive justice. The record shows that there was a mix-up in the registration numbers with the plaint and some witness statements referring to the vehicle as KCJ 143A while the police abstract and other documents including the demand letter correctly identified it as KCT 143A.
24. The Appellants have urged this court to look beyond this technicality. They argue that the mistake was by counsel and that the substantive evidence particularly the police abstract clearly establishes the correct registration number of the accident vehicle.
25. The legal position on the effect of misdescription of a vehicle in pleadings is clear. In the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR) the Court of Appeal emphasized that parties are bound by their pleadings. However, this principle is not absolute. The High Court in Kenneth Waweru v David Gacheru Wamburu [2025] KEHC 14213 (KLR), while dealing with a similar issue where there was a mix-up in the vehicle registration number held that a typographical error in the pleading does not automatically render the suit incompetent. The court can in appropriate circumstances correct such errors to meet the ends of justice.
26. Further, the court in the Kamau & another v Korir [2022] KEHC 15786 (KLR) rectified an error in the judgment concerning a vehicle registration number demonstrating that courts have the power to correct clerical or typographical errors to reflect the true substance of the case.
27. I find that the confusion in the registration number in this case was a procedural technicality that could have been easily rectified by an amendment to the plaint. The Appellants relied heavily on the police abstract which is a crucial document in accident claims. This document clearly and consistently identified the accident vehicle as KCT 143A, a minibus belonging to the Respondent.
28. Article 159(2)(d) of the Constitution of Kenya, 2010, obligates courts to administer justice without undue regard to procedural technicalities. This provision is intended to ensure that justice is not sacrificed on the altar of procedural rules. The Court of Appeal in Thomas Joseph O. Onyango v Attorney General & another [2016] KECA 666 (KLR) invoked this article to overlook a technicality in citing legal provisions focusing instead on the substance of the application. However, this does not mean that procedural rules are irrelevant. As was held in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, Article 159 is not a panacea for all procedural ills nor is it a license to ignore rules of procedure.
29. In the present case, the error in the registration number was not the only evidence before the court. The correct registration number was captured in the police abstract and the demand letter. The Respondent, despite being served, did not enter appearance to challenge the claim or the alleged ownership of the vehicle. The Respondent’s failure to defend the suit meant that the Appellants’ evidence remained uncontroverted. In such circumstances, it would be a grave injustice to dismiss the suit solely on the basis of a clerical error that did not prejudice the Respondent. The doctrine of substantive justice as enshrined in the Constitution and the Civil Procedure Act (Sections 1A and 1B) requires courts to ensure that cases are decided on their merits rather than on mere technicalities.
30. The standard of proof in civil cases is on a balance of probabilities as provided by Section 107 of the Evidence Act (Cap 80). The Appellants were required to prove on a balance of probabilities that the Respondent was liable for the accident. The Appellants tendered the police abstract which implicated the Respondent’s vehicle and the evidence of the Appellants and their witness which was uncontroverted. This unchallenged evidence established a prima facie case.
31. The trial court’s dismissal of the suit was based entirely on the procedural irregularity not on the merits of the case. The court failed to evaluate the evidence that clearly identified the Respondent’s vehicle. This was an error in both law and fact. The trial court should have considered the submission that the error was minor and that the correct particulars were in the police abstract. The dismissal of the suit was therefore unjust and not in line with the constitutional command to administer justice without undue regard to procedural technicalities. Consequently, this Court finds that the trial magistrate erred in dismissing the suit.
32. This is a crucial issue. The Appellants have urged this court to allow the appeal, set aside the judgment of the lower court and write a judgment on both liability and quantum based on the evidence on record. The Appellants alternatively prayed for an order for a new trial under Order 42 Rule 26 of the Civil Procedure Rules.
33. Having carefully considered the circumstances of this case, I am persuaded that the most appropriate remedy is to enter a direct judgment on both liability and quantum rather than ordering a retrial. I say so for the following reasons; first, the evidence on record is sufficient for this court to determine both liability and quantum. The Appellants adduced evidence during the formal proof hearing and the documents were produced as exhibits. The Respondent did not participate in the proceedings and did not challenge the Appellants' evidence. There is no need for a retrial as the evidence is complete.; second, ordering a retrial would cause unnecessary delay and expense to the parties. The accident occurred on 25th June 2021 and the suit was filed in February 2024. The matter has been in court for a considerable period. A retrial would further delay the resolution of the matter and prejudice the Appellants; third, this court has the power to enter judgment on liability and quantum. As a first appellate court, this court has the jurisdiction to re-evaluate the evidence and arrive at its own conclusions. The court can make findings on both liability and quantum based on the evidence on record; fourth, the Respondent's conduct in failing to enter appearance and defend the suit militates against ordering a retrial. The Respondent was duly served but chose not to participate in the proceedings. The Respondent did not file a defense or adduce any evidence. Ordering a retrial would give the Respondent an opportunity to benefit from its own default which would be unjust; fifth, the overriding objective of the Civil Procedure Act requires courts to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. A retrial would be contrary to this objective as it would cause delay and expense.
34. In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, the court held:
"An appellate court can substitute its own assessment of damages for that of the trial court if the trial court proceeded on wrong principles or misapprehended the evidence."
35. In the present case, the trial court did not make any findings on liability or quantum. The suit was dismissed on a technicality. This court is therefore in as good a position as the trial court to determine both liability and quantum based on the evidence on record.
36. Based on the evidence on record, I find that the Appellants have proved liability against the Respondent on a balance of probabilities.
37. T he evidence of the eyewitness, Joshua Odeny established that the accident was caused by the negligence of the driver of the Respondent's motor vehicle. The eyewitness stated that the driver was driving at a very high speed, veered off his lane and hit the motorcycle. The eyewitness further stated that the rider of the motorcycle was riding at a moderate speed on his correct side of the road.
38. The police abstract confirmed that the accident occurred and identified the Respondent's motor vehicle as the one involved. The Respondent did not challenge the police abstract or adduce any evidence to contradict the eyewitness account. The deceased was a pillion passenger on the motorcycle. She had no control over the motorcycle and did not contribute to the accident. I therefore find the Respondent 100% liable for the accident.
39. Having found the Respondent liable, I now proceed to assess the quantum of damages payable to the Appellants. The Appellants claim damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32). The Appellants also claim special damages.
40. The principles governing the assessment of damages under the Fatal Accidents Act and the Law Reform Act are well established. That damages under the Law Reform Act and the Fatal Accidents Act are separate and distinct and a claimant is entitled to both.
41. Under the law reform act (Cap 26), the heads of damages under this Act comprise pain and suffering and loss of expectation of life. The deceased sustained a severe and traumatic brain injury as a result of the road traffic accident and died on the same day. Since death was almost instantaneous, only a nominal award is sustainable. The Appellants proposed a sum of Kshs. 10,000/=. I find this proposal reasonable and award Kshs. 10,000/= under this head.
42. On loss of expectation of life, the Appellants submitted that an award of Kshs. 100,000/- is adequate compensation for loss of expectation of life. The Appellants relied on the fact that the deceased was 15 years old. The principles governing damages for loss of expectation of life are set out in Hellen Waruguru Waweru (Suing as the legal representative of the estate of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR], where the Court of Appeal held:
"The conventional award for loss of expectation of life is Kshs. 100,000/-.
43. In accordance with established judicial guidelines and considering the effects of inflation, a conventional global award is appropriate. The Appellants proposed Kshs. 100,000/=. I award a sum of Kshs. 100,000/= under this head.
44. On the issue of loss of Loss of Dependency under Fatal Accident Act (Cap 32), the deceased was a minor (a 15-year-old student in Form 3) and was not yet earning an income. In such cases, the multiplier-multiplicand method cannot be applied with precision because the deceased’s future earnings are speculative. Instead, courts apply a global sum approach to compensate the parents for the loss of expectation of future support from their child. The Appellants proposed a global award of Kshs. 1,600,000/= relying on Karuku v Kariuki & another (Suing as personal representatives and administrators of John Muriuki Muceke - Deceased) [2023] KEHC 24803 (KLR) where the High Court at Kerugoya upheld a global award of Kshs. 1,200,000/= for the loss of dependency of a deceased person.
45. Taking into account that the deceased was a student in Form 3, whose parents had high expectations for her future and factoring in the prevailing economic conditions and inflation, I find that a global sum of Kshs. 1,500,000/= is a fair and reasonable award for the loss of dependency.
46. The Appellants pleaded and proved the following special damages:
i. Motor vehicle search fees: Kshs. 550/-
ii. Funeral expenses: Kshs. 150,000/-
iii. Advocates' charges on obtaining Grant Ad Litem: Kshs. 30,000/-
Total special damages: Kshs. 180,550/-
47. The principles governing special damages are well established. In Capital Fish Limited v Kenya Power & Lighting Company Limited [2016] eKLR, the Court of Appeal held:
"Special damages must not only be specifically pleaded but also strictly proved."
48. In the present case, the Appellants pleaded the special damages in the plaint and proved them through receipts and other documents. The receipts were produced as exhibits. I therefore award Kshs. 180,550/- as special damages.
a) In view of the foregoing observations, it is my finding that the Appellants appeal has merit. The same is allowed. The judgment and decree of the learned trial magistrate in Ukwala PMCC No. E005 of 2024 delivered on 16th May 2025 is hereby set aside and substituted with judgement being entered in favour of the Appellants as against the Respondent as follows:
a) Liability is entered against the Respondent at 100%.
b) Pain and suffering................................Kshs 10, 000/
c) Loss of expectation of life....................Kshs100,000/
d) Loss on dependency...........................Kshs 1,500,000/
e) Special damages.....................................Kshs 180, 550/
GRAND TOTAL................................... KSHS 1,790,550/
The Appellants are awarded the costs of the suit in this appeal and in in the lower court. The interest on the general damages shall be from the date of this judgement while the special; damages shall attract interest from the date of filing plaint.
Orders accordingly.
Dated and delivered at Siaya, this 18 th day of September 2026
D.KEMEI
JUDGE
In the presence of:
N/A M/s Nyamungi…………………..for the Appellants
N/A…………………………………….for the Respondent
Maurine…………………………………………Court Assistant
SIAYA CIVIL APPEAL E035 OF 2025 JUDGEMENT26SIAYA CIVIL APPEAL E035 OF 2025 JUDGEMENT26 SIAYA CIVIL APPEAL E035 OF 2025 JUDGEMENT26SIAYA CIVIL APPEAL E035 OF 2025 JUDGEMENT26
1. This is a first appeal arising from the judgment of the learned trial magistrate, Hon. E. Tsimonjero, SRM, delivered on 16th May 2025 in Ukwala PMCC No. E005 of 2024. The learned magistrate dismissed the Appellants’ suit, which was a claim for damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32) following the death of Eunice Akinyi Odhiambo (the deceased) in a road traffic accident.
2. Aggrieved by the aforesaid decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 27 th May 2025 wherein they raised the following grounds of appeal namely; -
a) The learned Magistrate erred in both law and fact in dismissing the suit solely on grounds of the confusion of the registration number of the accident motor vehicle in various pleadings as was filed.
b) The learned Magistrate erred in both law and fact in failing to appreciate that the correct registration of the accident motor vehicle was corrected / amended orally during the hearing of the suit.
c) The learned trial magistrate erred in both law and fact in failing to appreciate that the defendant was not sued as the registered owner but as a benefial owner of the accident motor vehicle KCT 143 A Minibus as indicated in the police abstract, a fact which was not disputed.
d) The learned trial magistrate erred in both law and fact in failing to appreciate that the alleged confusion in the registration of motor vehicle was not fatal to the claim to attract dismissal.
e) The learned trial Magistrate erred in both fact and law in failing to correctly appreciate, interpret and apply the law with respect to proof of ownership of motor vehicle.
f) The learned trial magistrate erred in both fact and law in failing to appreciate that there was no confusion on the demand notice served upon the defendant with respect to the accident motor vehicle KCT 143A minibus.
g) The learned trial Magistrate erred in both fact and law in delivering a Judgement against the weight of evidence adduced on behalf of the appellants.
h) The learned trial Magistrate erred in both law and fact by failing to appreciate that the defendant never disputed the fact that he was the beneficial owner of the said accident motor vehicle KCT 143A Minibus.
i) The learned trial Magistrate erred in both fact and law in failing to appreciate submissions made on behalf of the appellants on liability and quantum.
j) The learned trial Magistrate erred in both law and fact by failing to appreciate the Civil Procedure Act provisions on overriding objective principles of substantive justice vis-a vis procedural technicality.
k) The learned trial Magistrate erred in both fact and law in arriving at a judgment which is unfair and unjust in the circumstances.
3. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123.
3. The Appellants, as administrators of the estate of the deceased filed suit against the Respondent. The claim arose from a road traffic accident that occurred on 25th June 2021 along the Kisumu-Busia road at Sira area. The deceased was a pillion passenger on motorcycle registration number KMEZ 293N when it was allegedly hit by motor vehicle registration number KCT 143A, a minibus belonging to the Respondent. The deceased succumbed to injuries sustained in the accident.
4. The Respondent was duly served with summons to enter appearance but failed to do so. Consequently, an interlocutory judgment was entered in favour of the Appellants and that the suit proceeded for formal proof.
5. Kennedy Odhiambo Nyamuga (PW1), took the oath and testified in Kiswahili. He stated that he is a resident of Simero and works as a casual brick maker. He identified the deceased, Eunice Akinyi Odhiambo as his daughter. He testified that on 25th June 2021 at approximately 06:00 AM his daughter was involved in a fatal road traffic accident. She was traveling as a pillion passenger on a motorcycle registration number KMEZ 293A when she was struck by a motor vehicle, registration number KCJ 145A, belonging to Climax Coaches. His daughter died on the spot as a result of the collision. He reported the incident to the police, recorded a statement and filed his court documents. With the permission of the Court presided over by E. Tsimonjero SRM, on 13th March 2025, his witness statement dated 7th February 2024 and the list of documents of the same date were formally adopted with the documents produced and marked as Plaintiffs Exhibits 1 to 12 (P. Exhibit 1 to P. Exhibit 12). He prayed for compensation for the loss of his daughter as sought in the pleadings.
6. Joshua Odeny (PW2), took the oath and testified in Kiswahili. Although the oral proceedings record did not capture his full verbal testimony, his witness statement on the court record was introduced wherein he recalled the events of 25th June 2021 at around 06:30 AM. He stated that at the material time, he was standing beside the Kisumu-Busia Road at the Sira area when he observed a Boxer Bajaj motorcycle, registration number KMEZ 293 N carrying a pillion passenger. The motorcycle rider was operating the bike at a moderate speed on the correct side of the road. He then observed a minibus, registration number KMEZ 143 A (also referenced as KCT 143 A) approaching the scene at a very high speed. The minibus veered out of its lane, crossed into the oncoming motorcycle’s lane and collided with it. Consequently, the pillion passenger sustained fatal injuries and died at the scene. He blamed the driver of the minibus registration number KMEZ 143 A for causing the fatal accident through speeding, reckless and dangerous driving. Neither the motorcycle rider nor the deceased pillion passenger contributed to the occurrence of the accident in any manner. He subsequently established that the deceased passenger was a 15-year-old girl named Eunice Akinyi Odhiambo.
7. The learned trial magistrate later considered the evidence and came up with the impugned judgement.
8. The Appeal was canvassed by way of written submissions. The Appellant filed their submissions dated 12 th May 2026. There are no submissions by the Respondent.
9. The Appellants, being aggrieved by the entire judgment and decree of the Honourable E. Tsimonjero, Senior Resident Magistrate, delivered on 16th May 2025 in Ukwala PMCC No. E005 of 2024, appealed against the decision in its entirety.
10. The Appellants submitted that, as this is a first appeal, the role of the High Court is to re-evaluate the evidence tendered before the trial magistrate, assess it and proceed to form its own independent conclusion while bearing in mind the limitation of not having seen the witnesses testify. To support this position, they relied on the authority of David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'a (Nyeri HCCA No. 43 of 2013) in which the court held:
"It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of facts and come up with findings and conclusions."
11. They further argued that the appellate court is called upon to analyze and re-assess the evidence on record to reach its own conclusions, noting that it neither saw nor heard the witnesses testify as established in Selle v Associated Motor Boat Co. [1968] EA 123. Additionally, they referenced Kiruga v Kiruga & Another [1988] KLR 348, where the Court of Appeal observed:
"An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which would be exercised with caution."
12. Consequently, the Appellants indicated their intention to argue the appeal on the distinct issues of liability and quantum.
13. The Appellants submitted that liability must always follow fault. They asserted that the law places an obligation on a plaintiff to prove on a balance of probabilities that the injuries incurred resulted from the defendant's negligent acts or omissions. They cited Section 107 of the Evidence Act (Cap 80, Laws of Kenya ) which provides that whoever desires any court to give judgment as to a legal right or liability dependent on facts they assert must prove those facts. They also cited Section 109 of the Evidence Act which states that the burden of proving any particular fact lies on the person who wishes the court to believe in its existence. This principle was further supported by the case of Paul Ng'ang'a & Others v The Attorney General & Others (Petition No. 518 of 2012) which held that he who alleges must prove.
14. They submitted that the suit was filed against the Respondent in the lower court via a Plaint dated 7th February 2024 seeking both general and special damages, costs of the suit and interest at court rates. The facts pleaded in the Plaint were that on 25th June 2021, the deceased was traveling as a pillion passenger on a Boxer motorcycle, registration number KMEZ 293 N when it was struck by a minibus, registration number KCT 143 A along the Kisumu-Busia Road at the Sira area causing the deceased to sustain fatal injuries.
15. The Appellants noted that despite being served, the Respondent failed to enter an appearance. As a result, the matter proceeded by way of formal proof but was ultimately dismissed by the trial court.
16. They pointed out that as shown on page 80 of the record of appeal, the trial magistrate dismissed the suit due to confusion regarding the registration details of the subject motor vehicle. The trial court had ruled that the discrepancies and supporting documents prejudiced the Plaintiffs' claim and that the court could not remedy this as doing so would amount to entering the litigation arena and amending pleadings on behalf of a party.
17. While acknowledging the confusion regarding the vehicle's registration in the pleadings, the Appellants argued that the documents produced in court (such as the police abstract dated 25th June 2021) correctly captured the registration number. They contended that the mistake was made by the drafting advocate and that the client should not be punished for it especially since the client had provided documents containing the correct registration details.
18. They submitted that as shown on pages 12 and 15 of the record of appeal, the Plaintiffs could not have discovered the registration error at the time of signing their statements because the registration was correctly captured therein as KCT 143 A Minibus. They argued that the confusion only arose in the eyewitness statement and in paragraph 2 of the Plaint.
19. They noted that during the proceedings, the advocate adopted the witness statements but failed to notice the variance in the vehicle registration details.
20. The Appellants prayed that the Court look past technicalities and not dismiss the appeal based on the procedural errors cited relying on the provisions of Article 159(2)(d) of the Constitution of Kenya. In the alternative, the Appellants prayed that the High Court order a new trial to allow their advocate to amend the necessary pleadings pursuant to Order 42 Rule 26 of the Civil Procedure Rules 2010 which permits an appellate court to set aside a judgment and decree and order a new trial if it deems it fit. They ultimately prayed that the Court consider their submissions, overturn the judgment of the lower court on liability and hold the Respondent 100% liable for causing the accident or in the alternative, order a new trial before the lower court.
21. On the question of quantum, the Appellants stated that they rely entirely on the submissions they previously filed before the lower court, as set out on pages 39 to 40 of the Appellants' record of appeal.
22. I have considered the record of appeal and submissions tendered. I find the issue for determination is whether the Appellants proved their case on a balance of probabilities before the trial court.
23. The core issue is whether a clerical error or confusion in the registration number of the motor vehicle which is a matter of procedure should defeat the Appellants’ claim for substantive justice. The record shows that there was a mix-up in the registration numbers with the plaint and some witness statements referring to the vehicle as KCJ 143A while the police abstract and other documents including the demand letter correctly identified it as KCT 143A.
24. The Appellants have urged this court to look beyond this technicality. They argue that the mistake was by counsel and that the substantive evidence particularly the police abstract clearly establishes the correct registration number of the accident vehicle.
25. The legal position on the effect of misdescription of a vehicle in pleadings is clear. In the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR) the Court of Appeal emphasized that parties are bound by their pleadings. However, this principle is not absolute. The High Court in Kenneth Waweru v David Gacheru Wamburu [2025] KEHC 14213 (KLR), while dealing with a similar issue where there was a mix-up in the vehicle registration number held that a typographical error in the pleading does not automatically render the suit incompetent. The court can in appropriate circumstances correct such errors to meet the ends of justice.
26. Further, the court in the Kamau & another v Korir [2022] KEHC 15786 (KLR) rectified an error in the judgment concerning a vehicle registration number demonstrating that courts have the power to correct clerical or typographical errors to reflect the true substance of the case.
27. I find that the confusion in the registration number in this case was a procedural technicality that could have been easily rectified by an amendment to the plaint. The Appellants relied heavily on the police abstract which is a crucial document in accident claims. This document clearly and consistently identified the accident vehicle as KCT 143A, a minibus belonging to the Respondent.
28. Article 159(2)(d) of the Constitution of Kenya, 2010, obligates courts to administer justice without undue regard to procedural technicalities. This provision is intended to ensure that justice is not sacrificed on the altar of procedural rules. The Court of Appeal in Thomas Joseph O. Onyango v Attorney General & another [2016] KECA 666 (KLR) invoked this article to overlook a technicality in citing legal provisions focusing instead on the substance of the application. However, this does not mean that procedural rules are irrelevant. As was held in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, Article 159 is not a panacea for all procedural ills nor is it a license to ignore rules of procedure.
29. In the present case, the error in the registration number was not the only evidence before the court. The correct registration number was captured in the police abstract and the demand letter. The Respondent, despite being served, did not enter appearance to challenge the claim or the alleged ownership of the vehicle. The Respondent’s failure to defend the suit meant that the Appellants’ evidence remained uncontroverted. In such circumstances, it would be a grave injustice to dismiss the suit solely on the basis of a clerical error that did not prejudice the Respondent. The doctrine of substantive justice as enshrined in the Constitution and the Civil Procedure Act (Sections 1A and 1B) requires courts to ensure that cases are decided on their merits rather than on mere technicalities.
30. The standard of proof in civil cases is on a balance of probabilities as provided by Section 107 of the Evidence Act (Cap 80). The Appellants were required to prove on a balance of probabilities that the Respondent was liable for the accident. The Appellants tendered the police abstract which implicated the Respondent’s vehicle and the evidence of the Appellants and their witness which was uncontroverted. This unchallenged evidence established a prima facie case.
31. The trial court’s dismissal of the suit was based entirely on the procedural irregularity not on the merits of the case. The court failed to evaluate the evidence that clearly identified the Respondent’s vehicle. This was an error in both law and fact. The trial court should have considered the submission that the error was minor and that the correct particulars were in the police abstract. The dismissal of the suit was therefore unjust and not in line with the constitutional command to administer justice without undue regard to procedural technicalities. Consequently, this Court finds that the trial magistrate erred in dismissing the suit.
32. This is a crucial issue. The Appellants have urged this court to allow the appeal, set aside the judgment of the lower court and write a judgment on both liability and quantum based on the evidence on record. The Appellants alternatively prayed for an order for a new trial under Order 42 Rule 26 of the Civil Procedure Rules.
33. Having carefully considered the circumstances of this case, I am persuaded that the most appropriate remedy is to enter a direct judgment on both liability and quantum rather than ordering a retrial. I say so for the following reasons; first, the evidence on record is sufficient for this court to determine both liability and quantum. The Appellants adduced evidence during the formal proof hearing and the documents were produced as exhibits. The Respondent did not participate in the proceedings and did not challenge the Appellants' evidence. There is no need for a retrial as the evidence is complete.; second, ordering a retrial would cause unnecessary delay and expense to the parties. The accident occurred on 25th June 2021 and the suit was filed in February 2024. The matter has been in court for a considerable period. A retrial would further delay the resolution of the matter and prejudice the Appellants; third, this court has the power to enter judgment on liability and quantum. As a first appellate court, this court has the jurisdiction to re-evaluate the evidence and arrive at its own conclusions. The court can make findings on both liability and quantum based on the evidence on record; fourth, the Respondent's conduct in failing to enter appearance and defend the suit militates against ordering a retrial. The Respondent was duly served but chose not to participate in the proceedings. The Respondent did not file a defense or adduce any evidence. Ordering a retrial would give the Respondent an opportunity to benefit from its own default which would be unjust; fifth, the overriding objective of the Civil Procedure Act requires courts to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. A retrial would be contrary to this objective as it would cause delay and expense.
34. In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, the court held:
"An appellate court can substitute its own assessment of damages for that of the trial court if the trial court proceeded on wrong principles or misapprehended the evidence."
35. In the present case, the trial court did not make any findings on liability or quantum. The suit was dismissed on a technicality. This court is therefore in as good a position as the trial court to determine both liability and quantum based on the evidence on record.
36. Based on the evidence on record, I find that the Appellants have proved liability against the Respondent on a balance of probabilities.
37. T he evidence of the eyewitness, Joshua Odeny established that the accident was caused by the negligence of the driver of the Respondent's motor vehicle. The eyewitness stated that the driver was driving at a very high speed, veered off his lane and hit the motorcycle. The eyewitness further stated that the rider of the motorcycle was riding at a moderate speed on his correct side of the road.
38. The police abstract confirmed that the accident occurred and identified the Respondent's motor vehicle as the one involved. The Respondent did not challenge the police abstract or adduce any evidence to contradict the eyewitness account. The deceased was a pillion passenger on the motorcycle. She had no control over the motorcycle and did not contribute to the accident. I therefore find the Respondent 100% liable for the accident.
39. Having found the Respondent liable, I now proceed to assess the quantum of damages payable to the Appellants. The Appellants claim damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32). The Appellants also claim special damages.
40. The principles governing the assessment of damages under the Fatal Accidents Act and the Law Reform Act are well established. That damages under the Law Reform Act and the Fatal Accidents Act are separate and distinct and a claimant is entitled to both.
41. Under the law reform act (Cap 26), the heads of damages under this Act comprise pain and suffering and loss of expectation of life. The deceased sustained a severe and traumatic brain injury as a result of the road traffic accident and died on the same day. Since death was almost instantaneous, only a nominal award is sustainable. The Appellants proposed a sum of Kshs. 10,000/=. I find this proposal reasonable and award Kshs. 10,000/= under this head.
42. On loss of expectation of life, the Appellants submitted that an award of Kshs. 100,000/- is adequate compensation for loss of expectation of life. The Appellants relied on the fact that the deceased was 15 years old. The principles governing damages for loss of expectation of life are set out in Hellen Waruguru Waweru (Suing as the legal representative of the estate of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR], where the Court of Appeal held:
"The conventional award for loss of expectation of life is Kshs. 100,000/-.
43. In accordance with established judicial guidelines and considering the effects of inflation, a conventional global award is appropriate. The Appellants proposed Kshs. 100,000/=. I award a sum of Kshs. 100,000/= under this head.
44. On the issue of loss of Loss of Dependency under Fatal Accident Act (Cap 32), the deceased was a minor (a 15-year-old student in Form 3) and was not yet earning an income. In such cases, the multiplier-multiplicand method cannot be applied with precision because the deceased’s future earnings are speculative. Instead, courts apply a global sum approach to compensate the parents for the loss of expectation of future support from their child. The Appellants proposed a global award of Kshs. 1,600,000/= relying on Karuku v Kariuki & another (Suing as personal representatives and administrators of John Muriuki Muceke - Deceased) [2023] KEHC 24803 (KLR) where the High Court at Kerugoya upheld a global award of Kshs. 1,200,000/= for the loss of dependency of a deceased person.
45. Taking into account that the deceased was a student in Form 3, whose parents had high expectations for her future and factoring in the prevailing economic conditions and inflation, I find that a global sum of Kshs. 1,500,000/= is a fair and reasonable award for the loss of dependency.
46. The Appellants pleaded and proved the following special damages:
i. Motor vehicle search fees: Kshs. 550/-
ii. Funeral expenses: Kshs. 150,000/-
iii. Advocates' charges on obtaining Grant Ad Litem: Kshs. 30,000/-
Total special damages: Kshs. 180,550/-
47. The principles governing special damages are well established. In Capital Fish Limited v Kenya Power & Lighting Company Limited [2016] eKLR, the Court of Appeal held:
"Special damages must not only be specifically pleaded but also strictly proved."
48. In the present case, the Appellants pleaded the special damages in the plaint and proved them through receipts and other documents. The receipts were produced as exhibits. I therefore award Kshs. 180,550/- as special damages.
a) In view of the foregoing observations, it is my finding that the Appellants appeal has merit. The same is allowed. The judgment and decree of the learned trial magistrate in Ukwala PMCC No. E005 of 2024 delivered on 16th May 2025 is hereby set aside and substituted with judgement being entered in favour of the Appellants as against the Respondent as follows:
a) Liability is entered against the Respondent at 100%.
b) Pain and suffering................................Kshs 10, 000/
c) Loss of expectation of life....................Kshs100,000/
d) Loss on dependency...........................Kshs 1,500,000/
e) Special damages.....................................Kshs 180, 550/
GRAND TOTAL................................... KSHS 1,790,550/
The Appellants are awarded the costs of the suit in this appeal and in in the lower court. The interest on the general damages shall be from the date of this judgement while the special; damages shall attract interest from the date of filing plaint.
Orders accordingly.
Dated and delivered at Siaya, this 18 th day of September 2026
D.KEMEI
JUDGE
In the presence of:
N/A M/s Nyamungi…………………..for the Appellants
N/A…………………………………….for the Respondent
Maurine…………………………………………Court Assistant
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