(Being an Appeal from the Judgment and Decree of the Honourable Becky Cheloti Mulemia, Principal Magistrate delivered on the 7th February 2025 in Chief Magistrate's Court in Milimani Civil Suit No. E2317 of 2023
1. The appellant filed this appeal through a memorandum dated 3rd March 2025. The appeal is on two issues, liability and assessment quantum of damages in a claim for negligence arising out of a fatal road traffic accident. The appellant was the defendant while the respondents were the plaintiffs before the trial court. The respondents sued the appellant for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
2. Their case before the trial court was presented through the plaint dated 15th May 2023, the witness statement of PW 1, Florence Gati Chacha dated 17th April 2023 together with her testimony in court on 15th July 2024 and the evidence of PW 2, PC Ndige Muchiri on 19th September 2024 as well as the various documents filed and produced in evidence as exhibits. The documents produced were (a) copies of plaintiffs’ national identity cards. (b) Limited Grant Letters of Administration Intestate Ad litem and court filing fees invoice & M-pesa. (c). Death Certificate for Samson Kerario Chacha (d). Birth Certificate for Samson Kerario Chacha. (e). Copy of post mortem Form. (f). burial permit. (g). police abstract. (h). Copy of records and receipt. (i). Kenyatta University Teaching Referral & Research Hospital & Home Invoice. (j). Letter from the Chief. (k). Burial ceremony expenses receipts KShs. 1,380,900.00. (l). Demand letter (m). Statutory notice. The police abstract was produced as exhibit 7 by PW 2.
3. It was that on 23rd January 2022, the deceased, Samson Kerario Chacha, a son of the respondents, aged 27 years in good health and spirits and a student at Daystar University was lawfully riding a motor cycle registration number KMEB 726F along Northern Bypass, when the defendant's employee, servant, agent and/or authorized driver so carelessly and negligently drove, managed and/or controlled motor vehicle registration number KDG 046C that he caused the same to lose control, veer off the road and rammed into the deceased’s motor cycle thereby causing an accident in which the deceased sustained fatal injuries and later succumbed. General damages were claimed for the estate of the deceased which suffered loss and damage as a result of his demise and for the dependents. The respondents also claimed special damages of KShs 97,781/= particularized as follows: (a). Copy of records KShs. 550.00 (b). Letters of Administration KShs. 25,000.00 (c). KUTRRH Hospital Expenses KShs. 55,231.00 (d). Kenyatta University Referral Funeral Home KShs. 17,000.00 (e). Funeral Expenses (this was left blank).
4. The appellant’s case on the other hand was pleaded in the statement of defence dated 22nd August 2023, the witness statement of its witness DW 1, Hellen Wanjiku and her testimony in court on 19th September 2024. The appellant denied the claims by the respondents that, through its driver of motor vehicle registration number KDG 046C it was to blame for the accident that caused the death of the deceased. Its case was that the deceased wholly or substantially contributed to the accident.
5. The driver testified and adopted her recorded and filed witness statement in which she stated that the time was 9.45 p.m. The weather was clear and her motor vehicle's headlights were functioning well. As she approached the area known as Marorol she attempted to overtake a prime mover. She checked whether it was okay to overtake and was satisfied that it was safe to overtake. She overtook the prime mover on the right side and returned to her rightful lane and proceeded on. However, the deceased who was riding the motorcycle was at that time overtaking the oncoming vehicle and had encroached her rightful lane at a high speed. She tried to hoot at the motorcycle rider and tried to apply the brakes on her vehicle to no avail and the deceased kept riding towards her car. She could not completely stop since the prime mover was driving behind her car. She swerved to the left to avoid colliding with the deceased who was steering to his right and was right ahead of me. The deceased in the confusion clipped her vehicle on the right side and ended up falling off his motor bike. At the same time, she veered off the road. The airbags in her car deployed. She was helped by good Samaritans who informed her that the deceased had sustained serious and grave Injuries. The deceased was rushed to Kenyatta University Hospital where he succumbed to his injuries.
6. After hearing the case the learned trial magistrate found the appellant wholly liable for the accident and entered judgment for the respondents on liability and assessed damages as follows:
a. Pain and suffering Kshs 50,000/=
b. Loss of expectation of life Kshs 100,000/=
c. Loss of dependency Kshs 2,006,617.80/=
d. Special damages Kshs 1,275,681/=
7. The trial court also ordered that interest would be payable on (a) and (b) above at court rates from the date of delivery of the judgment until payment in full. I believe there was an oversight in not including (c) on the issue of interest payable and also that for (c) the interest would run from the date of filing suit. The appellant was also ordered to bear the costs of the suit.
8. The appellant was aggrieved by the said judgment and appealed to this court through the memorandum dated 3rd March 2025 based on the grounds that:
a. the learned trial magistrate erred in law and fact by failing to properly scrutinize and evaluate the evidence tendered by the appellant and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of liability, quantum and compensation to the respondent.
b. the learned trial magistrate erred in law and fact in deciding the case against the weight of the evidence on record and apportioning liability at 100% against the appellant.
c. the learned magistrate erred in law and fact in finding that the plaintiffs (respondents herein) were entitled to an award under the Fatal Accidents Act.
d. the learned magistrate erred in law in finding that the plaintiff was entitled to an award under the heads of loss of dependency and loss of expectation of life.
e. the learned magistrate erred both in law and fact in making an award on quantum which is too high and was not supported by relevant authorities, guided by the doctrine of precedent, case law of similar facts and guided by the laws of natural justice and or commensurate with the injuries suffered by the plaintiff.
f. the learned magistrate erred in law in finding that the plaintiff was entitled to an award of KShs. 1,177,900/= as special damages yet the said sum was not pleaded in the plaint and or proven in court.
g. the award on general damages and special damages was against the weight of the evidence before the court and was without any consideration to the submissions of the defence/appellant’s counsel whilst failing to take into account that the amounts claimed by the respondent did not relate to injuries as per the medical reports produced in court.
9. Ground (g) seems misplaced because this was not a case of bodily injury.
10. The appellant therefore prays for this court to allow the appeal with costs, set aside and/or vary the judgment of the trial court delivered on 7th February 2025 and reassess the apportionment of liability and assessment of damages and specifically to set aside the award of damages under the Fatal Accidents Act, loss of dependency and loss of expectation of life and special damages of KShs. 1,177,900/= that was not pleaded.
11. The appeal was canvassed by way of written submissions filed by both parties. Learned counsel for the appellant has condensed the grounds of appeal and argued them on three issues, which are that the appellant challenges the trial court’s findings on liability and assessment of both general and special damages. Learned counsel for the respondent has equally argued the appeal on more or less the same basis.
12. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
13. The issue for determination from both the appellant and the respondents’ submissions can be summed up as, whether or not the learned trial magistrate acted on wrong principles in arriving at her impugned decision.
14. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
15. This court will however interfere where the trial court finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (See the case cited by learned counsel for the appellant of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR).
16. On the issue of liability, learned counsel for the appellant submits that the trial court failed to give due regard to the evidence adduced by the appellant’s witness who was the driver of the accident vehicle.
17. In finding the driver wholly liable for the accident the trial court observed thus:
“The Court finds the driver of motor vehicle registration number KDG 046C owed the deceased and other road users a duty of care to adhere to the stipulated road traffic rules and regulations. I am of the view that had the said motor vehicle been driven at the required speed limit, the driver would have managed to drive, control and/or manage the said motor vehicle and the accident may have been avoided.
The Defendant is hereby held wholly liable for causing the accident which led to the demise of the deceased.”
18. There was no evaluation and analysis of the evidence tendered before the court before arriving at the conclusion that the driver of the vehicle was to blame for the accident. In fact, no witness raised the issue of the driver exceeding the speed limit for the vehicle in the circumstances of the case.
19. The evidence before the trial court which was accepted by both parties was that an accident did occur involving the deceased riding a motorcycle and the appellant’s motor vehicle driven by DW 1. The only evidence from the respondents’ side on who was to blame came from the police abstract (Exh. 7) produced by PW 2 in which it was indicated that the results of investigations were that KDG 046C was blamed. PW 2 said that he was not the investigating officer but relying on the police abstract, the results of the investigations were that the motor vehicle was blamed for the accident. To that extent, I am satisfied that a prima facie case had been established by the respondent on a balance of probability that the driver of the motor vehicle was to blame for the accident. If there was no other evidence to challenge the same, the driver would be found wholly liable for the accident. The evidential burden then shifted to the appellant to show that in fact, it was not otherwise.
20. Learned counsel for the appellant correctly submitted before the trial court that parties involved in an accident would usually tailor their evidence to suit their circumstances. That could as well have been the case with DW 1 before the trial court because there are gaps in her evidence.
21. The first gap is the great contrast in her conduct before the traffic court and the civil court. In the traffic court she pleaded guilty and was convicted for causing the accident. When she went to the civil court she completely denied liability and blamed the deceased through her witness statement and testimony. That material inconsistence cannot pass unnoticed.
22. Secondly, her evidence through the witness statement was that “she attempted to overtake” and then proceeded to state that she found it safe to overtake and then proceeded on. The question is why she would say she attempted to overtake unless the situation was that she attempted then found it unsafe but it was too late and she went ahead with the overtaking and the collision occurred with the motorcyclist. That scenario would be quite consistent with her plea of guilty before the traffic court.
23. The way she described how the accident occurred in her evidence presents a scenario whereby the deceased started to and proceeded to overtake the vehicle ahead of him despite her vehicle oncoming from the opposite direction and obviously at high speed as she had just overtaken the prime mover. It is not a case of the deceased’s motor cycle suddenly pulling from behind the vehicle ahead of him only to meet hers on its lane and then a collision occurred. That scenario could as well be transposed to the opposite side of the road where, as per her own evidence, she attempted to overtake the prime mover but the deceased having overtaken the vehicle ahead of him was back to his lane and in that case, DW 1, having presented a dangerous situation, hooted and tried to veer to her right, off the road since there was the prime mover on the left but the deceased steered to his left as well and consequently the vehicle and motor cycle collided there, causing the accident.
24. The scenario presented above is not hypothetical but it is firmed up from the fact that DW 1 readily conceded to causing the accident and pleaded guilty and was convicted and fined. She conceded as much in her testimony. It is highly unlikely that had the scenario been the way she presented it in her evidence before the trial court she would have readily pleaded guilty to the traffic charges. It means that her evidence before the trial court through her witness statement and testimony were tailored to deny liability for causing the accident.
25. This court is aware that a conviction of one party for a traffic offence for careless driving or for causing death by dangerous driving does not per se absolve the other party involved of contributing to the accident. (see the cases of David Kinyanjui & 2 Others v Meshack Omari Monyoro Civil Appeal No. 125 of 1993 (Unreported) and Francis Mwangi V Omar Al-Kurby Civil Appeal No. 87 of 1992 (Unreported), both by the Court of Appeal). But from the evidence tendered by DW 1 it is not possible for a court to find that she was to blame in any way at all for the accident, yet she conceded in the traffic case that she did cause the accident by pleading guilty. Her evidence herein is total blame for the deceased which I have found could not have been the case. I find that her evidence before the trial court could therefore not completely impeach the evidence of investigations that she was to blame for the accident. The only issue remaining is, to what extent was she to blame.
26. However, even as the respondents maintain, supporting the trial court’s findings that DW 1 was wholly to blame for the accident, it must be remembered that the respondents did not adduce evidence of how the accident occurred. They only relied on the indication in the police abstract that DW 1 was to blame and her conviction for the traffic offence. But that could not of itself mean that the deceased was completely without blame.
27. It is also possible that the motor cyclist and the vehicle driver were both overtaking from their respective directions and as they sought to return to their correct lanes they collided and the accident occurred. In that case, it would mean both were negligent in not taking a proper look out for other traffic on the road before overtaking. In that case, the appellant would still find it prudent to plead guilty to the traffic charges and then seek to explain herself in the civil case. However, her explanation would still not be plausible to completely absolve her of blame due to the fact that she had pleaded guilty for the traffic offence.
28. The onus was on the respondents to prove their case and it never shifted to the appellant. That is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya, which provides:
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
29. Even as I am minded to remember that the burden of proof was upon the respondents who wished the court to find in their favour that the appellant had caused the accident by negligence, section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened. It says:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
30. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
31. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
32. In this case, an accident involving the deceased’s motor cycle and the appellant’s vehicle did occur on the road. In the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame. The Court of Appeal said:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of Barclay – Steward Limited & Another v. Waiyaki [1982-88] 1 KAR 1118, this Court said:-
“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”
The Court said further: -
“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
In Baker v Market Harborough Industrial Co-operative Society Ltd; Wallace v Richards (Leicester) Ltd, Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…”
See also Welch v. Standard Bank Ltd [1970] EA 115 at 117 and Simon v. Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame…”
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
33. I have indicated above the various possibilities of how the accident could have occurred which arise from the evidence tendered.
34. Guided by the above decision, I must depart from the finding of the learned trial magistrate that only the appellant was to blame for the accident. There is no dispute that there was a collision between the appellant’s motor vehicle and the deceased’s motor cycle on the road. However, there is no precise evidence of the point of collision, this court having rejected the version of evidence tendered by DW 1. There was no evidence forthcoming from police officers who are expected to conduct investigations and present it to court to assist the court establish the correct state of facts. No sketch maps, drawings or legends were produced in evidence due to the failure by the investigating officer to testify.
35. It was submitted by learned counsel for the appellant that at the very least the trial court ought to have made a finding of contributory negligence against the deceased and apportion liability equally between the parties.
36. On a balance of probability, on the basis of the evidence that indeed the accident occurred and the deceased was involved as a rider of a motor cycle on the road during the night, I find that both the driver of the vehicle and the rider of the motor cycle were to blame for the accident. However, given that the appellant’s driver, DW 1 was convicted for causing the accident, I find that she was more to blame for the accident than the deceased. Consequently, I would set aside the decision of the trial court apportioning blame wholly upon the appellant and apportion liability between the driver and the rider in the ratio of 70:30.
37. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
38. The appeal on assessment of damages was on all heads of damage.
39. On pain and suffering, learned counsel for the appellant submits that an award of KShs 10,000/= would be adequate noting that the deceased died the following day after the accident. He has not provided any authority either in this court or the trial court to back that proposal for an award of KShs 10,000/=. Learned counsel for the respondents submits that the award of KShs 50,000/= made by the trial court was correct and should not be disturbed. Before the trial court, he had proposed an award of KShs 200,000/= and relied on the case of General Motors East Africa Limited v Eunice Alila Ndeswa & another [2015] KEHC 4854 (KLR).
40. In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) the High Court, Odunga, J. (as he then was) held as follows on the assessment of damages for pain and suffering and loss of expectation of life:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
41. I am persuaded to follow this decision and find that on the principle that this court should not lightly upset the award by the trial court, I will not disturb the award made by the learned trial magistrate. The award of KShs 50,000/= for pain and suffering is sustained.
42. The award for loss of expectation of life was not submitted upon by the appellant and so it is assumed that the same was not challenged and it will remain as awarded by the trial court at KShs 100,000/= since it is in line with the decision of Hyder Nthenya Musili above.
43. On loss of dependency, there is no appeal on the multiplicand of KShs 15, 201.65/= and dependency ratio of 1/3 that were adopted by the trial court. The same are maintained herein.
44. Learned counsel for the appellant however submits that the trial magistrate fell into error when she applied a multiplier of 33 years as she failed to rely on the authority presented. He cites the case of Elijah Maina v Adline Wambui Wanjiru & another [2020] KEHC 3112 (KLR) and Rahab Micere Murage vs The Attorney General & Another [2001] KEHC 131 (KLR) where a multiplier of 20 years was applied in a case where the deceased was aged 25 years in each of the cases.
45. Learned counsel for the respondent supports the trial court’s findings. At the trial he had proposed a multiplier of 33 years amd supported it with the case of Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] KEHC 1806 (KLR) where a multiplier of 39 years was applied where the deceased was aged 21 years.
46. Although the learned trial magistrate did not explicitly state that she was guided by the decision cited by counsel for the respondent, I do find that she was so guided. She therefore followed precedent. The fact that she did not adopt the multiplier proposed by the appellant cannot mean that she was in error. I therefore sustain the trial court’s multiplier of 33 years.
47. Loss of dependency therefore remains as awarded by the trial court:
15,201.65/= x 12 x 33 years x 1/3 = 2,006,617.80/=
48. Learned counsel for the appellant also submits that the award of special damages of KShs 1,275,681/= was erroneous because the respondent had only pleaded for a sum of KShs 97,781/=. Learned counsel for the respondent on his part submits that even assuming that some elements of the special damages were not pleaded with mathematical precision, the trial court was still correct in awarding the same. He cited the case of Premier Dairy Ltd v Amarjit Singh Sagoo & another [2009] KECA 469 (KLR) where the Court of Appeal stated thus:
“… that special damages must be pleaded and proved is a correct proposition of the law. We agree with it entirely. The question in this appeal is whether the learned judge disregarded or misapplied this position when he made the award on funeral expenses, a special damage claim, which was pleaded in the plaint but not strictly proved by the second respondent by production of receipts for the expenses incurred when the deceased was cremated.
Learned Counsel for the appellant conceded that it was a matter of public notoriety that families expend money to inter the remains of their dead relatives. Counsel did not go further to propose a formula on how such families are to recover such expenses when it is also a matter of public notoriety that no receipts are kept by bereaved families for s
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1. The appellant filed this appeal through a memorandum dated 3rd March 2025. The appeal is on two issues, liability and assessment quantum of damages in a claim for negligence arising out of a fatal road traffic accident. The appellant was the defendant while the respondents were the plaintiffs before the trial court. The respondents sued the appellant for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
2. Their case before the trial court was presented through the plaint dated 15th May 2023, the witness statement of PW 1, Florence Gati Chacha dated 17th April 2023 together with her testimony in court on 15th July 2024 and the evidence of PW 2, PC Ndige Muchiri on 19th September 2024 as well as the various documents filed and produced in evidence as exhibits. The documents produced were (a) copies of plaintiffs’ national identity cards. (b) Limited Grant Letters of Administration Intestate Ad litem and court filing fees invoice & M-pesa. (c). Death Certificate for Samson Kerario Chacha (d). Birth Certificate for Samson Kerario Chacha. (e). Copy of post mortem Form. (f). burial permit. (g). police abstract. (h). Copy of records and receipt. (i). Kenyatta University Teaching Referral & Research Hospital & Home Invoice. (j). Letter from the Chief. (k). Burial ceremony expenses receipts KShs. 1,380,900.00. (l). Demand letter (m). Statutory notice. The police abstract was produced as exhibit 7 by PW 2.
3. It was that on 23rd January 2022, the deceased, Samson Kerario Chacha, a son of the respondents, aged 27 years in good health and spirits and a student at Daystar University was lawfully riding a motor cycle registration number KMEB 726F along Northern Bypass, when the defendant's employee, servant, agent and/or authorized driver so carelessly and negligently drove, managed and/or controlled motor vehicle registration number KDG 046C that he caused the same to lose control, veer off the road and rammed into the deceased’s motor cycle thereby causing an accident in which the deceased sustained fatal injuries and later succumbed. General damages were claimed for the estate of the deceased which suffered loss and damage as a result of his demise and for the dependents. The respondents also claimed special damages of KShs 97,781/= particularized as follows: (a). Copy of records KShs. 550.00 (b). Letters of Administration KShs. 25,000.00 (c). KUTRRH Hospital Expenses KShs. 55,231.00 (d). Kenyatta University Referral Funeral Home KShs. 17,000.00 (e). Funeral Expenses (this was left blank).
4. The appellant’s case on the other hand was pleaded in the statement of defence dated 22nd August 2023, the witness statement of its witness DW 1, Hellen Wanjiku and her testimony in court on 19th September 2024. The appellant denied the claims by the respondents that, through its driver of motor vehicle registration number KDG 046C it was to blame for the accident that caused the death of the deceased. Its case was that the deceased wholly or substantially contributed to the accident.
5. The driver testified and adopted her recorded and filed witness statement in which she stated that the time was 9.45 p.m. The weather was clear and her motor vehicle's headlights were functioning well. As she approached the area known as Marorol she attempted to overtake a prime mover. She checked whether it was okay to overtake and was satisfied that it was safe to overtake. She overtook the prime mover on the right side and returned to her rightful lane and proceeded on. However, the deceased who was riding the motorcycle was at that time overtaking the oncoming vehicle and had encroached her rightful lane at a high speed. She tried to hoot at the motorcycle rider and tried to apply the brakes on her vehicle to no avail and the deceased kept riding towards her car. She could not completely stop since the prime mover was driving behind her car. She swerved to the left to avoid colliding with the deceased who was steering to his right and was right ahead of me. The deceased in the confusion clipped her vehicle on the right side and ended up falling off his motor bike. At the same time, she veered off the road. The airbags in her car deployed. She was helped by good Samaritans who informed her that the deceased had sustained serious and grave Injuries. The deceased was rushed to Kenyatta University Hospital where he succumbed to his injuries.
6. After hearing the case the learned trial magistrate found the appellant wholly liable for the accident and entered judgment for the respondents on liability and assessed damages as follows:
a. Pain and suffering Kshs 50,000/=
b. Loss of expectation of life Kshs 100,000/=
c. Loss of dependency Kshs 2,006,617.80/=
d. Special damages Kshs 1,275,681/=
7. The trial court also ordered that interest would be payable on (a) and (b) above at court rates from the date of delivery of the judgment until payment in full. I believe there was an oversight in not including (c) on the issue of interest payable and also that for (c) the interest would run from the date of filing suit. The appellant was also ordered to bear the costs of the suit.
8. The appellant was aggrieved by the said judgment and appealed to this court through the memorandum dated 3rd March 2025 based on the grounds that:
a. the learned trial magistrate erred in law and fact by failing to properly scrutinize and evaluate the evidence tendered by the appellant and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of liability, quantum and compensation to the respondent.
b. the learned trial magistrate erred in law and fact in deciding the case against the weight of the evidence on record and apportioning liability at 100% against the appellant.
c. the learned magistrate erred in law and fact in finding that the plaintiffs (respondents herein) were entitled to an award under the Fatal Accidents Act.
d. the learned magistrate erred in law in finding that the plaintiff was entitled to an award under the heads of loss of dependency and loss of expectation of life.
e. the learned magistrate erred both in law and fact in making an award on quantum which is too high and was not supported by relevant authorities, guided by the doctrine of precedent, case law of similar facts and guided by the laws of natural justice and or commensurate with the injuries suffered by the plaintiff.
f. the learned magistrate erred in law in finding that the plaintiff was entitled to an award of KShs. 1,177,900/= as special damages yet the said sum was not pleaded in the plaint and or proven in court.
g. the award on general damages and special damages was against the weight of the evidence before the court and was without any consideration to the submissions of the defence/appellant’s counsel whilst failing to take into account that the amounts claimed by the respondent did not relate to injuries as per the medical reports produced in court.
9. Ground (g) seems misplaced because this was not a case of bodily injury.
10. The appellant therefore prays for this court to allow the appeal with costs, set aside and/or vary the judgment of the trial court delivered on 7th February 2025 and reassess the apportionment of liability and assessment of damages and specifically to set aside the award of damages under the Fatal Accidents Act, loss of dependency and loss of expectation of life and special damages of KShs. 1,177,900/= that was not pleaded.
11. The appeal was canvassed by way of written submissions filed by both parties. Learned counsel for the appellant has condensed the grounds of appeal and argued them on three issues, which are that the appellant challenges the trial court’s findings on liability and assessment of both general and special damages. Learned counsel for the respondent has equally argued the appeal on more or less the same basis.
12. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
13. The issue for determination from both the appellant and the respondents’ submissions can be summed up as, whether or not the learned trial magistrate acted on wrong principles in arriving at her impugned decision.
14. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
15. This court will however interfere where the trial court finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (See the case cited by learned counsel for the appellant of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR).
16. On the issue of liability, learned counsel for the appellant submits that the trial court failed to give due regard to the evidence adduced by the appellant’s witness who was the driver of the accident vehicle.
17. In finding the driver wholly liable for the accident the trial court observed thus:
“The Court finds the driver of motor vehicle registration number KDG 046C owed the deceased and other road users a duty of care to adhere to the stipulated road traffic rules and regulations. I am of the view that had the said motor vehicle been driven at the required speed limit, the driver would have managed to drive, control and/or manage the said motor vehicle and the accident may have been avoided.
The Defendant is hereby held wholly liable for causing the accident which led to the demise of the deceased.”
18. There was no evaluation and analysis of the evidence tendered before the court before arriving at the conclusion that the driver of the vehicle was to blame for the accident. In fact, no witness raised the issue of the driver exceeding the speed limit for the vehicle in the circumstances of the case.
19. The evidence before the trial court which was accepted by both parties was that an accident did occur involving the deceased riding a motorcycle and the appellant’s motor vehicle driven by DW 1. The only evidence from the respondents’ side on who was to blame came from the police abstract (Exh. 7) produced by PW 2 in which it was indicated that the results of investigations were that KDG 046C was blamed. PW 2 said that he was not the investigating officer but relying on the police abstract, the results of the investigations were that the motor vehicle was blamed for the accident. To that extent, I am satisfied that a prima facie case had been established by the respondent on a balance of probability that the driver of the motor vehicle was to blame for the accident. If there was no other evidence to challenge the same, the driver would be found wholly liable for the accident. The evidential burden then shifted to the appellant to show that in fact, it was not otherwise.
20. Learned counsel for the appellant correctly submitted before the trial court that parties involved in an accident would usually tailor their evidence to suit their circumstances. That could as well have been the case with DW 1 before the trial court because there are gaps in her evidence.
21. The first gap is the great contrast in her conduct before the traffic court and the civil court. In the traffic court she pleaded guilty and was convicted for causing the accident. When she went to the civil court she completely denied liability and blamed the deceased through her witness statement and testimony. That material inconsistence cannot pass unnoticed.
22. Secondly, her evidence through the witness statement was that “she attempted to overtake” and then proceeded to state that she found it safe to overtake and then proceeded on. The question is why she would say she attempted to overtake unless the situation was that she attempted then found it unsafe but it was too late and she went ahead with the overtaking and the collision occurred with the motorcyclist. That scenario would be quite consistent with her plea of guilty before the traffic court.
23. The way she described how the accident occurred in her evidence presents a scenario whereby the deceased started to and proceeded to overtake the vehicle ahead of him despite her vehicle oncoming from the opposite direction and obviously at high speed as she had just overtaken the prime mover. It is not a case of the deceased’s motor cycle suddenly pulling from behind the vehicle ahead of him only to meet hers on its lane and then a collision occurred. That scenario could as well be transposed to the opposite side of the road where, as per her own evidence, she attempted to overtake the prime mover but the deceased having overtaken the vehicle ahead of him was back to his lane and in that case, DW 1, having presented a dangerous situation, hooted and tried to veer to her right, off the road since there was the prime mover on the left but the deceased steered to his left as well and consequently the vehicle and motor cycle collided there, causing the accident.
24. The scenario presented above is not hypothetical but it is firmed up from the fact that DW 1 readily conceded to causing the accident and pleaded guilty and was convicted and fined. She conceded as much in her testimony. It is highly unlikely that had the scenario been the way she presented it in her evidence before the trial court she would have readily pleaded guilty to the traffic charges. It means that her evidence before the trial court through her witness statement and testimony were tailored to deny liability for causing the accident.
25. This court is aware that a conviction of one party for a traffic offence for careless driving or for causing death by dangerous driving does not per se absolve the other party involved of contributing to the accident. (see the cases of David Kinyanjui & 2 Others v Meshack Omari Monyoro Civil Appeal No. 125 of 1993 (Unreported) and Francis Mwangi V Omar Al-Kurby Civil Appeal No. 87 of 1992 (Unreported), both by the Court of Appeal). But from the evidence tendered by DW 1 it is not possible for a court to find that she was to blame in any way at all for the accident, yet she conceded in the traffic case that she did cause the accident by pleading guilty. Her evidence herein is total blame for the deceased which I have found could not have been the case. I find that her evidence before the trial court could therefore not completely impeach the evidence of investigations that she was to blame for the accident. The only issue remaining is, to what extent was she to blame.
26. However, even as the respondents maintain, supporting the trial court’s findings that DW 1 was wholly to blame for the accident, it must be remembered that the respondents did not adduce evidence of how the accident occurred. They only relied on the indication in the police abstract that DW 1 was to blame and her conviction for the traffic offence. But that could not of itself mean that the deceased was completely without blame.
27. It is also possible that the motor cyclist and the vehicle driver were both overtaking from their respective directions and as they sought to return to their correct lanes they collided and the accident occurred. In that case, it would mean both were negligent in not taking a proper look out for other traffic on the road before overtaking. In that case, the appellant would still find it prudent to plead guilty to the traffic charges and then seek to explain herself in the civil case. However, her explanation would still not be plausible to completely absolve her of blame due to the fact that she had pleaded guilty for the traffic offence.
28. The onus was on the respondents to prove their case and it never shifted to the appellant. That is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya, which provides:
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
29. Even as I am minded to remember that the burden of proof was upon the respondents who wished the court to find in their favour that the appellant had caused the accident by negligence, section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened. It says:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
30. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
31. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
32. In this case, an accident involving the deceased’s motor cycle and the appellant’s vehicle did occur on the road. In the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame. The Court of Appeal said:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of Barclay – Steward Limited & Another v. Waiyaki [1982-88] 1 KAR 1118, this Court said:-
“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”
The Court said further: -
“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
In Baker v Market Harborough Industrial Co-operative Society Ltd; Wallace v Richards (Leicester) Ltd, Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…”
See also Welch v. Standard Bank Ltd [1970] EA 115 at 117 and Simon v. Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame…”
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
33. I have indicated above the various possibilities of how the accident could have occurred which arise from the evidence tendered.
34. Guided by the above decision, I must depart from the finding of the learned trial magistrate that only the appellant was to blame for the accident. There is no dispute that there was a collision between the appellant’s motor vehicle and the deceased’s motor cycle on the road. However, there is no precise evidence of the point of collision, this court having rejected the version of evidence tendered by DW 1. There was no evidence forthcoming from police officers who are expected to conduct investigations and present it to court to assist the court establish the correct state of facts. No sketch maps, drawings or legends were produced in evidence due to the failure by the investigating officer to testify.
35. It was submitted by learned counsel for the appellant that at the very least the trial court ought to have made a finding of contributory negligence against the deceased and apportion liability equally between the parties.
36. On a balance of probability, on the basis of the evidence that indeed the accident occurred and the deceased was involved as a rider of a motor cycle on the road during the night, I find that both the driver of the vehicle and the rider of the motor cycle were to blame for the accident. However, given that the appellant’s driver, DW 1 was convicted for causing the accident, I find that she was more to blame for the accident than the deceased. Consequently, I would set aside the decision of the trial court apportioning blame wholly upon the appellant and apportion liability between the driver and the rider in the ratio of 70:30.
37. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
38. The appeal on assessment of damages was on all heads of damage.
39. On pain and suffering, learned counsel for the appellant submits that an award of KShs 10,000/= would be adequate noting that the deceased died the following day after the accident. He has not provided any authority either in this court or the trial court to back that proposal for an award of KShs 10,000/=. Learned counsel for the respondents submits that the award of KShs 50,000/= made by the trial court was correct and should not be disturbed. Before the trial court, he had proposed an award of KShs 200,000/= and relied on the case of General Motors East Africa Limited v Eunice Alila Ndeswa & another [2015] KEHC 4854 (KLR).
40. In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) the High Court, Odunga, J. (as he then was) held as follows on the assessment of damages for pain and suffering and loss of expectation of life:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
41. I am persuaded to follow this decision and find that on the principle that this court should not lightly upset the award by the trial court, I will not disturb the award made by the learned trial magistrate. The award of KShs 50,000/= for pain and suffering is sustained.
42. The award for loss of expectation of life was not submitted upon by the appellant and so it is assumed that the same was not challenged and it will remain as awarded by the trial court at KShs 100,000/= since it is in line with the decision of Hyder Nthenya Musili above.
43. On loss of dependency, there is no appeal on the multiplicand of KShs 15, 201.65/= and dependency ratio of 1/3 that were adopted by the trial court. The same are maintained herein.
44. Learned counsel for the appellant however submits that the trial magistrate fell into error when she applied a multiplier of 33 years as she failed to rely on the authority presented. He cites the case of Elijah Maina v Adline Wambui Wanjiru & another [2020] KEHC 3112 (KLR) and Rahab Micere Murage vs The Attorney General & Another [2001] KEHC 131 (KLR) where a multiplier of 20 years was applied in a case where the deceased was aged 25 years in each of the cases.
45. Learned counsel for the respondent supports the trial court’s findings. At the trial he had proposed a multiplier of 33 years amd supported it with the case of Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] KEHC 1806 (KLR) where a multiplier of 39 years was applied where the deceased was aged 21 years.
46. Although the learned trial magistrate did not explicitly state that she was guided by the decision cited by counsel for the respondent, I do find that she was so guided. She therefore followed precedent. The fact that she did not adopt the multiplier proposed by the appellant cannot mean that she was in error. I therefore sustain the trial court’s multiplier of 33 years.
47. Loss of dependency therefore remains as awarded by the trial court:
15,201.65/= x 12 x 33 years x 1/3 = 2,006,617.80/=
48. Learned counsel for the appellant also submits that the award of special damages of KShs 1,275,681/= was erroneous because the respondent had only pleaded for a sum of KShs 97,781/=. Learned counsel for the respondent on his part submits that even assuming that some elements of the special damages were not pleaded with mathematical precision, the trial court was still correct in awarding the same. He cited the case of Premier Dairy Ltd v Amarjit Singh Sagoo & another [2009] KECA 469 (KLR) where the Court of Appeal stated thus:
“… that special damages must be pleaded and proved is a correct proposition of the law. We agree with it entirely. The question in this appeal is whether the learned judge disregarded or misapplied this position when he made the award on funeral expenses, a special damage claim, which was pleaded in the plaint but not strictly proved by the second respondent by production of receipts for the expenses incurred when the deceased was cremated.
Learned Counsel for the appellant conceded that it was a matter of public notoriety that families expend money to inter the remains of their dead relatives. Counsel did not go further to propose a formula on how such families are to recover such expenses when it is also a matter of public notoriety that no receipts are kept by bereaved families for s
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