(Being an appeal from the judgment and decree of Hon Naomi Wairimu, Chief Magistrate, in Migori MCCC No. E105 of 2024 delivered on 11 th November, 2025)
JUDGMENT
Introduction
1. This is an appeal from the Judgment and decree of Hon. Naomi Wairimu, Chief Magistrate, delivered on 11.11.2025 in Migori MCCC No. E105 of 2025. The Appellant was the Plaintiff in the lower court.
2. In the plaint dated the 3 rd July, 2024 the Appellant claimed that the Deceased was a lawful rider along Macalder – Okengo Road when the Respondents, their driver, servants, employees and/or agents drove, managed and or controlled motor vehicle registration number KDM 239 G Mitsubishi Canter FE 85 negligently, recklessly and or carelessly in a manner that caused the said Motor Vehicle to violently hit the Deceased throwing him to the ground in which he sustained fatal injuries. The Appellant therefore sought general damages under the Fatal Accident’s Act and under the Law Reform Act, Special Damages of Kshs. 67,850.00, costs of the suit, interest and any further reliefs the court will be just to grant.
3. In a defence dated the 9 th day of September, 2024, the Respondent denied the respondent’s claim in its entirety and put him to strict proof. Without prejudice, the Respondent further pleaded that the accident was wholly caused by, and/or was substantially contributed to, by the negligence of the Appellant and the owner of the Motor cycle.
4. The trial court upon hearing the case found the deceased and the Respondents both contributed to causing the accident and apportioned liability in the ratio of 40:60 and awarded damages as follows:
a. Loss of Dependancy Kshs. 3,000,000.00
b. Loss of Expectation of Life Kshs. 100,000.00
c. Pain and Suffering Kshs. 100,000.00
Total Kshs. 3,200,000.00
Less 40% liability Kshs. 1,280,000.00
d. Special Damages Kshs. 67,850.00
Amount payable Kshs. 1,987,850.00
e. Costs of the suit and interest.
5. The appellant being dissatisfied with the judgment, instituted the instant appeal vide a Memorandum of Appeal dated 15 th November, 2025 based on the following grounds: -
(1) The trial court erred in law and in fact in apportioning a 40% liability against the Appellant when there was sufficient evidence to make find otherwise.
(2) The trial court erred in law and in fact in misapprehending the law and facts placed before her and determined the suit beyond the standards of proof established in law for civil cases.
(3) The trial magistrate occasioned a travesty of justice by misapprehending the law and facts placed before her by the Appellant by taking into account extraneous circumstances Before her.
(4) Other grounds as may be argued with leave of the Honourable Court .
6. The Appellant proposed that this court allows the appeal and sets aside the apportionment of liability at 40% liability and the same to be substituted with a liability of 100% against the Respondents with costs.
7. The respondents on the other hand filed a cross-appeal through a memorandum of cross-appeal dated 16 th December, 2025 on the following grounds;
(1) The learned trial magistrate erred in law in apportioning liability against the Respondents while there is no evidence given of the Respondents’ negligence.
(2) The learned trial magistrate erred in law and in fact in considering extraneous, unpleaded and unproved matters to find the Respondent liable in negligence at 60%
(3) In the alternative the learned trial magistrate erred in failing to find both the Respondents and the deceased equally liable for the accident.
(4) The learned trial magistrate erred in law and in fact in failing to find the deceased 100% liable for the causation of the accident.
(5) The learned trial magistrate erred in law and in fact in awarding a global figure of Kshs. 2,500,000/= without giving any reasons contrary to Order 21 Rule 4 Civil Procedure Rules.
(6) The learned trial magistrate erred in law and in fact in awarding a global award of Kshs. 2,500,000/= general damages for loss of dependency without heading the settled principles in assessment of damages and while ignoring the precedents cited to her in toto.
(7) The award of general damages was inordinately high so as to amount to a failure of justice .
8. The respondents asked this court to allow the cross-appeal, the judgement on liability be set aside and be substituted with a suitable apportionment and the award of general damages for loss of dependency be set aside or varied to a suitable award with costs.
9. This Court directed that the appeal and the cross-appeal be canvassed by way of written submissions.
Appellants’ Submissions
10. The Appellant faulted the trial court for misapprehending the law in taking into an alleged non-existent consent on an 80:20 percentage ratio and disregarding the Appellant’s evidence and findings regarding the Respondents' driver’s guilty plea in a Traffic Case No. 256 of 2023 in addition to authorities of comparable awards when the court rendered its decision and unfairly apportion 40% contributory liability on the Appellant.
11. The Appellant argued in his submissions that the trial court ought to have found the Respondents 100% jointly and severally liable for the accident based on the doctrine of vicarious liability noting that the Respondents’ driver was charged and pleaded guilty to causing death by dangerous driving contrary to Section 46 of the Traffic Act, there after he was convicted and fined which constituted prima facie evidence under the Evidence Act.
12. On the issue of damages, the Appellant submitted that under this head they are in total agreement with the Honourable trial court's assessment of damages and submitted that the assessment properly took into account the principle of comparable awards and reflects sound law.
13. On the costs of the Appeal, the Appellant relied on Section 27 of the Civil Procedure Act, Cap 21 submitting that costs follow the event and urging the court to award him the costs of the appeal since the Appellant is likely to be the successful party.
14. Conclusively, the Appellant urges this Honourable Court to vacate and/or set aside the trial court’s judgment in part, to apply its discretion in finding the Respondents 100% liable jointly and severally for the accident and to uphold the trial court's finding on damages and additionally to award the costs of the Appeal to the Appellant.
15. The Appellant’s reliance is placed on the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 and Evans Nyakwana vs Cleophas Bwana Ongaro [2015] eKLR, Philip Kiptoo Chemwolo & Another vs Augustine Kubende (1986) KECA 87 (KLR), Evans Nyakwana vs Cleophas Bwana Ongaro, William Kabogo Gitau vs George Thuo & 2 Others (2010) KEHC 4124 (KLR), Palace Investments Limited vs Geoffrey Kariuki Mwenda & Another (2015) eKLR, Galaxy Paints Co. Ltd vs Falcon Guards Ltd (2000) KECA 215 (KLR) & Khayigila V Gigi & Co LTD & Another (1987) KECA 53 (KLR) .
Respondents’ submissions
16. The respondents submitted and opposed the appeal. It was their submission that the Appellant failed to prove that the accident was caused by the negligence of the Respondents or their driver. They maintained that the burden of proof rested upon the Appellant under Sections 107 and 108 of the Evidence Act and that the mere occurrence of an accident did not, by itself, establish negligence.
17. The Respondents submitted that the Appellant called only two witnesses. PW1 who was Corporal Bismark Cheruiyot and the investigating officer produced the police abstract, but he was not an eyewitness to the accident. He did not give a clear account of how the accident occurred or the point of impact or the position of the motor vehicle and motorcycle and lastly where the deceased and the motorcycle landed. It was further argued that he also did not produce a sketch plan, police file or occurrence book and in addition he stated that he had not formed an opinion as to who caused the accident and did not record the registration number of the motorcycle involved.
18. The Respondents further submitted that PW1’s evidence did not establish any specific act of negligence on the part of the Respondents’ driver. Although he stated that the driver of the motor vehicle had been recommended for charging, he did not clearly identify the driver or connect him to the Respondents and to this end the Respondents therefore argued that the police abstract merely confirmed that an accident had been reported and could not, without supporting evidence, amount to proof of negligence.
19. The Respondents relied on Margaret Wanjiru Ndirangu & 4 Others vs Attorney General [2020] eKLR and M’Irwanji Muchai vs Broadways Bakery & Another [1996] eKLR & Wayo & Another, suing on behalf of the Estate of Benjamin Wayo Sailoki (Deceased), vs Bwire [2025] KECA 866 (KLR) and Gitau vs Mundia [2025] KEHC 5887 (KLR )
20. The Respondents acknowledged that they did not call any witness but nevertheless they submitted that their failure to call evidence did not relieve the Appellant of the primary burden of proving negligence. The Appellant was still required to establish his case on a balance of probabilities and since the Appellant’s evidence did not sufficiently demonstrate how the accident occurred or how the Respondents’ driver was negligent it means that the claim ought to have failed.
21. The Respondents also challenged the trial court’s reliance on the alleged conviction in Traffic Case No. 256 of 2023 as the alleged conviction was neither pleaded nor proved in evidence. The police abstract did not identify the driver of motor vehicle registration number KDM 239G and the evidence did not establish that the convicted was the Respondents’ driver, employee or agent.
22. The Respondents further submitted that the trial court introduced the alleged conviction after the hearing had concluded. The court stated that it had “taken the liberty to check on the outcome” of the traffic case and thereafter relied on the alleged conviction in apportioning liability.
23. The Respondents argued that they were not given an opportunity to challenge the conviction, question the identity of the person convicted, establish whether the conviction related to the accident in question, or ascertain whether an appeal was pending.
24. In that regard, the Respondents submitted that the trial court acted outside the limits of its adjudicative role by investigating and relying on evidence that had not been placed before it by the parties. They maintained that the Kenyan judicial system is adversarial and that a court is required to determine a dispute on the pleadings and evidence presented by the parties.
25. The Respondents relied on Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others [2014] KECA 890 (KLR), Bake ‘N’ Bite Limited vs Rachel Nungare & 16 Others [2015] KECA 675 (KLR), David Sironga Ole Tukai vs Francis Arap Muge & Others, Civil Appeal No. 76 of 2014, Antony Francis Wareham t/a AF Wareham & 2 Others vs Kenya Post Office Savings Bank [2004] KECA 166 (KLR), James K. Kamau vs Nairobi City Council [2018] KECA 625 (KLR), and Mohamed vs Sheikh [2024] KECA 1211 (KLR ) .
26. The Respondents submitted that, although a conviction may in appropriate circumstances be relevant under Section 47A of the Evidence Act, the conviction must be properly pleaded, proved and connected to the party against whom it is relied upon. In the present case they submit that the alleged conviction was neither formally produced nor subjected to examination by the Respondents and the trial court therefore erred in relying on it as a basis for imposing civil liability.
27. On contributory negligence, the Respondents submitted that the evidence showed that the deceased was riding a motorcycle carrying two pillion passengers. That conduct was contrary to Section 60 of the Traffic Act, which prohibits carrying more than one person in addition to the rider on a two-wheeled motorcycle. The Respondents argued that carrying two passengers exposed the deceased and the other occupants to additional danger and affected the rider’s ability to control the motorcycle. They relied on Rukwaro & Another vs Maina [2025] KECA 177 (KLR ) , where the Court of Appeal considered the effect of carrying more than one passenger on a motorcycle and held that such unlawful conduct may attract liability, depending on the evidence.
28. The Respondents submitted that the trial court recognized that the deceased had not maintained proper control of the motorcycle but failed to give sufficient effect to that finding. They argued that, had the court properly considered Section 60 of the Traffic Act and the decision in Rukwaro & Another vs Maina , it would have found that the deceased’s conduct was the principal or sole cause of the accident.
29. The Respondents therefore urged the Court to set aside the trial court’s apportionment of liability and find that the Appellant had not proved negligence against the Respondents. In the alternative, they submitted that the deceased’s contribution ought to be substantially increased because he was unlawfully carrying more than one passenger.
30. On the award for loss of dependency, the Respondents submitted that the trial court correctly found that the multiplier method was unsuitable because there was no cogent evidence of the deceased’s income, employment, occupation or skills. The Appellant stated that the deceased earned Kshs. 15,000 per month while working as a motorcycle rider, but no employment letter, salary records, business records or evidence from the alleged employer was produced.
31. The Respondents accepted that, in the absence of reliable proof of income, the court was entitled to adopt a global-sum approach. They nevertheless submitted that the award of Kshs. 3,000,000 was arbitrary and excessive because the trial court did not explain how it arrived at that amount, identify the factors considered, or refer to comparable decisions supporting the award.
32. The Respondents relied on Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd [2013] eKLR, Kemfro Africa Limited t/a Meru Express Service vs A.M.M. Lubia & Another, Arrow Car Limited vs Bimomo & 2 Others (2004) 2 KLR 101, and Ram Gopal Gupta vs Nairobi Tea Packers Limited & 2 Others [2017] eKLR . They submitted that an appellate court may interfere with an award where the trial court applied an incorrect principle, took into account an irrelevant factor, failed to consider a relevant factor, or made an award that is inordinately high or low.
33. The Respondents further submitted that comparable cases should, as far as possible, attract comparable awards. They contended that the trial court did not consider or distinguish the authorities cited by the parties and did not compare the deceased’s age, occupation, marital status, dependants and lack of proven income with awards made in similar cases.
34. The Respondents further referred to Bon Ton Limited vs Beatrice Kanaga Kereda , where a global award of Kshs. 800,000 was made in respect of a boda boda rider whose income was not proved, Dennis Maosa Kibegwa vs Ochieng’i Mosero Joyce & Another [2019] eKLR , where Kshs. 1,000,000 was awarded for a boda boda rider aged 36 years, Paleah Stores Limited & Another vs Nthambi [2022] KEHC 511 (KLR ) where Kshs. 1,000,000 was awarded for a 26-year-old boda boda rider and Ngila & Another vs Musili & Another [2022] KEHC 12991 (KLR ) , where Kshs. 900,000 was awarded for a 22-year-old boda boda rider whose income had not been established.
35. The Respondents also referred to more recent decisions, including Ndatho vs Kireu [2022] KEHC 3133 (KLR), Mogusu & Another vs Nganga & Another [2024] KEHC 2656 (KLR), Bengcom Communications Limited & Another vs Manje & Another [2025] KEHC 8430 (KLR), and Chepkemboi vs Nangila & Another [2025] KEHC 4479 (KLR ). They submitted that those decisions generally demonstrate that global awards in comparable circumstances ranged between approximately Kshs. 800,000 and Kshs. 1,200,000.
36. The Respondents further submitted that the award of Kshs. 3,000,000 was inordinately high and unsupported by the evidence. They urged the Court to set aside that award and, if liability were upheld, substitute it with a reasonable global award of Kshs. 1,000,000.00
37. In conclusion, the Respondents urged the Court to dismiss the Appellant’s appeal challenging the apportionment of liability with costs. They asked the Court to allow the cross-appeal, set aside the finding of liability against the Respondents and find that negligence had not been established against them.
38. The Respondents further prayed that, in the event that the Court upheld any liability against them, the award of Kshs. 3,000,000.00 for loss of dependency be set aside and substituted with a global award of Kshs. 1,000,000.00 They also sought the costs of the appeal and the cross-appeal.
Analysis and Determination
39. This being a first appeal, the court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions. The Court must take great exception with respect to the fact that it has neither seen nor heard the witnesses. These principles were set out in Selle & Another vs Associated Motor Boat Company Ltd & Others (1968) EA 123 by Sir Clement De Lestang, V. P. as follows:
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should made due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally ( Abdul Hameed Saif –v- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270 )”.
40. I have duly considered the pleadings, the evidence adduced before the trial court and the submissions for the counsels representing the parties. The appellant challenges the judgment on the finding of liability whereas the Respondent challenges the judgement both on the finding on liability and on the assessment of damages. The issues for determination are thus the following: -
(5) Whether the trial court erred in its apportioning of liability in the ratio of 40:60
(6) Whether the assessment of the award was erroneous .
Liability
41. While the Appellants submitted that the Respondents ought to have been held wholly liable for the accident, the Respondents on the other hand submitted that it is the deceased who ought to have been found 100% liable for occasioning the accident.
42. The Appellant pleaded in their plaint that the deceased was at the material time was a lawful rider along Macalder – Okenge Road when motor vehicle registration number KDM G Mitsubishi Canter FE 85 was negligently, recklessly and carelessly driven in a such a manner that the said Motor Vehicle violently hit the Deceased throwing to the ground thereby causing him fatal injuries. It was thus averred that the Respondents were vicariously liable for causing the accident. Particulars of negligence were stated in the plaint.
43. The Respondents on their part denied being liable for occasioning the accident and pleaded in their statement of defence that the deceased was to be blamed for the causation of the accident if any occurred. The Respondent also pleaded that in the alternative and without any prejudice the accident was caused by the negligence, carelessness and recklessness of the Deceased who was riding the alleged Motor cycle. Particular of negligence were stated in the Defence on the part of the Appellant.
44. The Appellant called two witnesses in support of their case. PW1 the Police officer testified and confined himself to the contents of the police abstract which this court has duly perused. He testified that the accident involved motor vehicle registration number KDM 239G Mitsubishi Canter and a rider and two pillion passenger occurred on the 9.11.2023 and the rider was fatally injured. On cross examination he testified that he had not formed an opinion on the person who had caused the accident. He stated that a Motor cycle should only carry one pillion passenger and not two as the case herein. He went ahead and stated that he did not charge the pillion passengers but the driver of the Lorry was charged under Traffic Offence No. 256 of 2023 . However, the abstract before court still indicated pending under investigation which he produced as an evidence before the trial court.
45. PW2 adopted her statement and list and bundle of documents and testified that she would have depended on his son in future as he had taken him to school. On cross examination she stated the deceased was 22 years old and used to ride a motor cycle which used to earn him approximately 15,000.00 but she did not see his license for riding. She testified that the Deceased worked for a person called Dan however she does not have any letter before court to indicate the said person was the deceased employer. She further testified that she did not witness the accident and was only called by people and when she got to the scene his son had already passed on.
46. The Respondent did not call any witness in support of their case.
47. The trial magistrate in her judgment stated there was no eye witness who testified. PW2 testified that the person to be blamed was the driver of the motor vehicle and was even charged with a traffic offence, although a perusal of the record indicates that there is no evidence in support of that and the abstract states pending under investigation. It is noteworthy though that the Police Abstract was first issued immediately after the accident and the investigating officer was at liberty to proceed and finalise the investigations. In his evidence before court, he stated that the driver had been charged with the offence of causing death by dangerous driving but was not aware of the outcome. The trial magistrate considered all this evidence and was unable to solely lay blame on either party. The court accordingly apportioned liability of 40:60 between the two parties noting that there was no eye witness to give clarity to what transpired.
48. I have considered the evidence adduced before the trial court as well as the pleadings filed by the parties and the question before this Court is not whether it would have reached a different apportionment but whether the learned trial magistrate proceeded on a wrong principle or misapprehended the evidence or reached a conclusion that was not reasonably open to the trial court on the material before the court.
49. It is evident that indeed an accident occurred on the 9 th November, 2023 involving motor vehicle registration number KDM 239G and the motorcycle which the deceased was riding. It is also not disputed that the deceased was fatally injured. The dispute concerns how the accident occurred and the extent to which each party contributed to it.
50. I note that the evidence of PW1 did not provide a complete reconstruction of how the accident occurred as he was not present when the accident occurred, neither did he produce a sketch plan and or stated the point of impact or the position of the motor vehicle and Motor cycle immediately before and after the collision. In his statement however, he did state that the accident occurred when the driver of the lorry veered off the road and rammed into the motor cycle and thus occasioned the accident and subsequent death of the deceased. That evidence was not controverted with either documents, witness statements or evidence by the defence as they did not call any witnesses. It is thus settled that where a party does not call witnesses to controvert the Plaintiffs evidence, then the same will be deemed unchallenged subject to proof as required under section 107 and 109 of the Evidence Act.
51. The evidence of the Plaintiff coupled with that of the Police Officer who investigated the accident leads this court to make a finding that the trial court misapplied the law in apportioning liability between the driver and the cyclist when no evidence was adduced before court to point towards the culpability of the cyclist. No document or statement is before court to demonstrate or point to the contribution of the cyclist.
52. I further note that the testimony availed before the trial court showed that the motorcycle was carrying two pillion passengers. This conduct is contrary to Section 60 of the Traffic Act which prohibits the carrying of more than one passenger on a two-wheeled motorcycle. The question is thus whether this violation can be deemed in the absence of any other evidence to be the cause of the accident. I deem not. The cyclist was indeed carrying an additional passenger but there is no evidence that this caused the accident.
53. As regards the observation made by the trail court that the Respondent pleaded guilty to the charge of causing death by dangerous driving, I note that no material was placed before court. While I note the import of section 47A of the Evidence Act, on the effect of a judgment in criminal proceedings, that proof was not placed before the court. Section 47A states as follows:
“ A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged ”.
54. In that regard, had the final determination of the traffic case been presented before the trial court during the trial, then it would have been appropriate for the trial court to make its conclusion based on that judgment. To proceed as it did, set a dangerous precedent if allowed to stand.
55. It is therefore my considered view, the above notwithstanding that the trial court was in error in apportioning liability as it did. I will thus set aside the apportionment of 60:40 and find the Defendants/Respondents fully liable for the accident.
Quantum
56. The principles under which an appellate court may disturb an award of damages made by a lower court are well established. The same were espoused by the Court of Appeal in the case of Arrow Car Ltd vs Elijah Shamalla Bimomo & 2 Others (2004) eKLR where it was held thus: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that, short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. … ”
57. This court notes that that neither the Appellant nor the Respondents challenged the awards of Kshs. 100,000.00 for loss of expectation of life, Kshs. 100,000.00 for pain and suffering, or special damages of Kshs. 67,850.00 meaning that those awards therefore will remain undisturbed.
58. The substantive issue raised by the cross-appeal relates to the award for loss of dependency, which the trial court assessed globally at Kshs. 3,000,000.00 and I confine my consideration under this head as to whether the global award for loss of dependency was supported by the evidence or was arrived at on sound principles and was reasonable in light of the circumstances of the deceased and comparable awards.
59. Reliance is placed in Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (Suing as administrator and personal representative of Anthony Mwitu Gakungu Deceased) 2020 eKLR the court held that:
“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.”
60. The trial court on loss of dependency adopted the global-sum approach which I will not depart from because the evidence did not sufficiently establish the deceased’s income, employment or future earnings to enable the court use the multiplier method.
61. However, in having elected to make a global award the trial court was still required to exercise its discretion judicially and to give a reasonable basis for the figure selected. The award of Kshs. 3,000,000.00 for loss of dependency was not adequately explained and was not related to comparable decisions or the particular circumstances of the deceased, who was a young motorcycle rider and whose income was stated but not proved by documentary evidence.
62. I am of the considered view that the principle remains that comparable cases should as much as possible attract comparable awards even where each case will be determined on its own facts. Reliance is placed on the case of Achenda & Another vs [Respondent] [2023] KEHC 18044 (KLR ) , the High Court considered a global
[...truncated]
JUDGMENT
Introduction
1. This is an appeal from the Judgment and decree of Hon. Naomi Wairimu, Chief Magistrate, delivered on 11.11.2025 in Migori MCCC No. E105 of 2025. The Appellant was the Plaintiff in the lower court.
2. In the plaint dated the 3 rd July, 2024 the Appellant claimed that the Deceased was a lawful rider along Macalder – Okengo Road when the Respondents, their driver, servants, employees and/or agents drove, managed and or controlled motor vehicle registration number KDM 239 G Mitsubishi Canter FE 85 negligently, recklessly and or carelessly in a manner that caused the said Motor Vehicle to violently hit the Deceased throwing him to the ground in which he sustained fatal injuries. The Appellant therefore sought general damages under the Fatal Accident’s Act and under the Law Reform Act, Special Damages of Kshs. 67,850.00, costs of the suit, interest and any further reliefs the court will be just to grant.
3. In a defence dated the 9 th day of September, 2024, the Respondent denied the respondent’s claim in its entirety and put him to strict proof. Without prejudice, the Respondent further pleaded that the accident was wholly caused by, and/or was substantially contributed to, by the negligence of the Appellant and the owner of the Motor cycle.
4. The trial court upon hearing the case found the deceased and the Respondents both contributed to causing the accident and apportioned liability in the ratio of 40:60 and awarded damages as follows:
a. Loss of Dependancy Kshs. 3,000,000.00
b. Loss of Expectation of Life Kshs. 100,000.00
c. Pain and Suffering Kshs. 100,000.00
Total Kshs. 3,200,000.00
Less 40% liability Kshs. 1,280,000.00
d. Special Damages Kshs. 67,850.00
Amount payable Kshs. 1,987,850.00
e. Costs of the suit and interest.
5. The appellant being dissatisfied with the judgment, instituted the instant appeal vide a Memorandum of Appeal dated 15 th November, 2025 based on the following grounds: -
(1) The trial court erred in law and in fact in apportioning a 40% liability against the Appellant when there was sufficient evidence to make find otherwise.
(2) The trial court erred in law and in fact in misapprehending the law and facts placed before her and determined the suit beyond the standards of proof established in law for civil cases.
(3) The trial magistrate occasioned a travesty of justice by misapprehending the law and facts placed before her by the Appellant by taking into account extraneous circumstances Before her.
(4) Other grounds as may be argued with leave of the Honourable Court .
6. The Appellant proposed that this court allows the appeal and sets aside the apportionment of liability at 40% liability and the same to be substituted with a liability of 100% against the Respondents with costs.
7. The respondents on the other hand filed a cross-appeal through a memorandum of cross-appeal dated 16 th December, 2025 on the following grounds;
(1) The learned trial magistrate erred in law in apportioning liability against the Respondents while there is no evidence given of the Respondents’ negligence.
(2) The learned trial magistrate erred in law and in fact in considering extraneous, unpleaded and unproved matters to find the Respondent liable in negligence at 60%
(3) In the alternative the learned trial magistrate erred in failing to find both the Respondents and the deceased equally liable for the accident.
(4) The learned trial magistrate erred in law and in fact in failing to find the deceased 100% liable for the causation of the accident.
(5) The learned trial magistrate erred in law and in fact in awarding a global figure of Kshs. 2,500,000/= without giving any reasons contrary to Order 21 Rule 4 Civil Procedure Rules.
(6) The learned trial magistrate erred in law and in fact in awarding a global award of Kshs. 2,500,000/= general damages for loss of dependency without heading the settled principles in assessment of damages and while ignoring the precedents cited to her in toto.
(7) The award of general damages was inordinately high so as to amount to a failure of justice .
8. The respondents asked this court to allow the cross-appeal, the judgement on liability be set aside and be substituted with a suitable apportionment and the award of general damages for loss of dependency be set aside or varied to a suitable award with costs.
9. This Court directed that the appeal and the cross-appeal be canvassed by way of written submissions.
Appellants’ Submissions
10. The Appellant faulted the trial court for misapprehending the law in taking into an alleged non-existent consent on an 80:20 percentage ratio and disregarding the Appellant’s evidence and findings regarding the Respondents' driver’s guilty plea in a Traffic Case No. 256 of 2023 in addition to authorities of comparable awards when the court rendered its decision and unfairly apportion 40% contributory liability on the Appellant.
11. The Appellant argued in his submissions that the trial court ought to have found the Respondents 100% jointly and severally liable for the accident based on the doctrine of vicarious liability noting that the Respondents’ driver was charged and pleaded guilty to causing death by dangerous driving contrary to Section 46 of the Traffic Act, there after he was convicted and fined which constituted prima facie evidence under the Evidence Act.
12. On the issue of damages, the Appellant submitted that under this head they are in total agreement with the Honourable trial court's assessment of damages and submitted that the assessment properly took into account the principle of comparable awards and reflects sound law.
13. On the costs of the Appeal, the Appellant relied on Section 27 of the Civil Procedure Act, Cap 21 submitting that costs follow the event and urging the court to award him the costs of the appeal since the Appellant is likely to be the successful party.
14. Conclusively, the Appellant urges this Honourable Court to vacate and/or set aside the trial court’s judgment in part, to apply its discretion in finding the Respondents 100% liable jointly and severally for the accident and to uphold the trial court's finding on damages and additionally to award the costs of the Appeal to the Appellant.
15. The Appellant’s reliance is placed on the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 and Evans Nyakwana vs Cleophas Bwana Ongaro [2015] eKLR, Philip Kiptoo Chemwolo & Another vs Augustine Kubende (1986) KECA 87 (KLR), Evans Nyakwana vs Cleophas Bwana Ongaro, William Kabogo Gitau vs George Thuo & 2 Others (2010) KEHC 4124 (KLR), Palace Investments Limited vs Geoffrey Kariuki Mwenda & Another (2015) eKLR, Galaxy Paints Co. Ltd vs Falcon Guards Ltd (2000) KECA 215 (KLR) & Khayigila V Gigi & Co LTD & Another (1987) KECA 53 (KLR) .
Respondents’ submissions
16. The respondents submitted and opposed the appeal. It was their submission that the Appellant failed to prove that the accident was caused by the negligence of the Respondents or their driver. They maintained that the burden of proof rested upon the Appellant under Sections 107 and 108 of the Evidence Act and that the mere occurrence of an accident did not, by itself, establish negligence.
17. The Respondents submitted that the Appellant called only two witnesses. PW1 who was Corporal Bismark Cheruiyot and the investigating officer produced the police abstract, but he was not an eyewitness to the accident. He did not give a clear account of how the accident occurred or the point of impact or the position of the motor vehicle and motorcycle and lastly where the deceased and the motorcycle landed. It was further argued that he also did not produce a sketch plan, police file or occurrence book and in addition he stated that he had not formed an opinion as to who caused the accident and did not record the registration number of the motorcycle involved.
18. The Respondents further submitted that PW1’s evidence did not establish any specific act of negligence on the part of the Respondents’ driver. Although he stated that the driver of the motor vehicle had been recommended for charging, he did not clearly identify the driver or connect him to the Respondents and to this end the Respondents therefore argued that the police abstract merely confirmed that an accident had been reported and could not, without supporting evidence, amount to proof of negligence.
19. The Respondents relied on Margaret Wanjiru Ndirangu & 4 Others vs Attorney General [2020] eKLR and M’Irwanji Muchai vs Broadways Bakery & Another [1996] eKLR & Wayo & Another, suing on behalf of the Estate of Benjamin Wayo Sailoki (Deceased), vs Bwire [2025] KECA 866 (KLR) and Gitau vs Mundia [2025] KEHC 5887 (KLR )
20. The Respondents acknowledged that they did not call any witness but nevertheless they submitted that their failure to call evidence did not relieve the Appellant of the primary burden of proving negligence. The Appellant was still required to establish his case on a balance of probabilities and since the Appellant’s evidence did not sufficiently demonstrate how the accident occurred or how the Respondents’ driver was negligent it means that the claim ought to have failed.
21. The Respondents also challenged the trial court’s reliance on the alleged conviction in Traffic Case No. 256 of 2023 as the alleged conviction was neither pleaded nor proved in evidence. The police abstract did not identify the driver of motor vehicle registration number KDM 239G and the evidence did not establish that the convicted was the Respondents’ driver, employee or agent.
22. The Respondents further submitted that the trial court introduced the alleged conviction after the hearing had concluded. The court stated that it had “taken the liberty to check on the outcome” of the traffic case and thereafter relied on the alleged conviction in apportioning liability.
23. The Respondents argued that they were not given an opportunity to challenge the conviction, question the identity of the person convicted, establish whether the conviction related to the accident in question, or ascertain whether an appeal was pending.
24. In that regard, the Respondents submitted that the trial court acted outside the limits of its adjudicative role by investigating and relying on evidence that had not been placed before it by the parties. They maintained that the Kenyan judicial system is adversarial and that a court is required to determine a dispute on the pleadings and evidence presented by the parties.
25. The Respondents relied on Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others [2014] KECA 890 (KLR), Bake ‘N’ Bite Limited vs Rachel Nungare & 16 Others [2015] KECA 675 (KLR), David Sironga Ole Tukai vs Francis Arap Muge & Others, Civil Appeal No. 76 of 2014, Antony Francis Wareham t/a AF Wareham & 2 Others vs Kenya Post Office Savings Bank [2004] KECA 166 (KLR), James K. Kamau vs Nairobi City Council [2018] KECA 625 (KLR), and Mohamed vs Sheikh [2024] KECA 1211 (KLR ) .
26. The Respondents submitted that, although a conviction may in appropriate circumstances be relevant under Section 47A of the Evidence Act, the conviction must be properly pleaded, proved and connected to the party against whom it is relied upon. In the present case they submit that the alleged conviction was neither formally produced nor subjected to examination by the Respondents and the trial court therefore erred in relying on it as a basis for imposing civil liability.
27. On contributory negligence, the Respondents submitted that the evidence showed that the deceased was riding a motorcycle carrying two pillion passengers. That conduct was contrary to Section 60 of the Traffic Act, which prohibits carrying more than one person in addition to the rider on a two-wheeled motorcycle. The Respondents argued that carrying two passengers exposed the deceased and the other occupants to additional danger and affected the rider’s ability to control the motorcycle. They relied on Rukwaro & Another vs Maina [2025] KECA 177 (KLR ) , where the Court of Appeal considered the effect of carrying more than one passenger on a motorcycle and held that such unlawful conduct may attract liability, depending on the evidence.
28. The Respondents submitted that the trial court recognized that the deceased had not maintained proper control of the motorcycle but failed to give sufficient effect to that finding. They argued that, had the court properly considered Section 60 of the Traffic Act and the decision in Rukwaro & Another vs Maina , it would have found that the deceased’s conduct was the principal or sole cause of the accident.
29. The Respondents therefore urged the Court to set aside the trial court’s apportionment of liability and find that the Appellant had not proved negligence against the Respondents. In the alternative, they submitted that the deceased’s contribution ought to be substantially increased because he was unlawfully carrying more than one passenger.
30. On the award for loss of dependency, the Respondents submitted that the trial court correctly found that the multiplier method was unsuitable because there was no cogent evidence of the deceased’s income, employment, occupation or skills. The Appellant stated that the deceased earned Kshs. 15,000 per month while working as a motorcycle rider, but no employment letter, salary records, business records or evidence from the alleged employer was produced.
31. The Respondents accepted that, in the absence of reliable proof of income, the court was entitled to adopt a global-sum approach. They nevertheless submitted that the award of Kshs. 3,000,000 was arbitrary and excessive because the trial court did not explain how it arrived at that amount, identify the factors considered, or refer to comparable decisions supporting the award.
32. The Respondents relied on Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd [2013] eKLR, Kemfro Africa Limited t/a Meru Express Service vs A.M.M. Lubia & Another, Arrow Car Limited vs Bimomo & 2 Others (2004) 2 KLR 101, and Ram Gopal Gupta vs Nairobi Tea Packers Limited & 2 Others [2017] eKLR . They submitted that an appellate court may interfere with an award where the trial court applied an incorrect principle, took into account an irrelevant factor, failed to consider a relevant factor, or made an award that is inordinately high or low.
33. The Respondents further submitted that comparable cases should, as far as possible, attract comparable awards. They contended that the trial court did not consider or distinguish the authorities cited by the parties and did not compare the deceased’s age, occupation, marital status, dependants and lack of proven income with awards made in similar cases.
34. The Respondents further referred to Bon Ton Limited vs Beatrice Kanaga Kereda , where a global award of Kshs. 800,000 was made in respect of a boda boda rider whose income was not proved, Dennis Maosa Kibegwa vs Ochieng’i Mosero Joyce & Another [2019] eKLR , where Kshs. 1,000,000 was awarded for a boda boda rider aged 36 years, Paleah Stores Limited & Another vs Nthambi [2022] KEHC 511 (KLR ) where Kshs. 1,000,000 was awarded for a 26-year-old boda boda rider and Ngila & Another vs Musili & Another [2022] KEHC 12991 (KLR ) , where Kshs. 900,000 was awarded for a 22-year-old boda boda rider whose income had not been established.
35. The Respondents also referred to more recent decisions, including Ndatho vs Kireu [2022] KEHC 3133 (KLR), Mogusu & Another vs Nganga & Another [2024] KEHC 2656 (KLR), Bengcom Communications Limited & Another vs Manje & Another [2025] KEHC 8430 (KLR), and Chepkemboi vs Nangila & Another [2025] KEHC 4479 (KLR ). They submitted that those decisions generally demonstrate that global awards in comparable circumstances ranged between approximately Kshs. 800,000 and Kshs. 1,200,000.
36. The Respondents further submitted that the award of Kshs. 3,000,000 was inordinately high and unsupported by the evidence. They urged the Court to set aside that award and, if liability were upheld, substitute it with a reasonable global award of Kshs. 1,000,000.00
37. In conclusion, the Respondents urged the Court to dismiss the Appellant’s appeal challenging the apportionment of liability with costs. They asked the Court to allow the cross-appeal, set aside the finding of liability against the Respondents and find that negligence had not been established against them.
38. The Respondents further prayed that, in the event that the Court upheld any liability against them, the award of Kshs. 3,000,000.00 for loss of dependency be set aside and substituted with a global award of Kshs. 1,000,000.00 They also sought the costs of the appeal and the cross-appeal.
Analysis and Determination
39. This being a first appeal, the court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions. The Court must take great exception with respect to the fact that it has neither seen nor heard the witnesses. These principles were set out in Selle & Another vs Associated Motor Boat Company Ltd & Others (1968) EA 123 by Sir Clement De Lestang, V. P. as follows:
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should made due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally ( Abdul Hameed Saif –v- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270 )”.
40. I have duly considered the pleadings, the evidence adduced before the trial court and the submissions for the counsels representing the parties. The appellant challenges the judgment on the finding of liability whereas the Respondent challenges the judgement both on the finding on liability and on the assessment of damages. The issues for determination are thus the following: -
(5) Whether the trial court erred in its apportioning of liability in the ratio of 40:60
(6) Whether the assessment of the award was erroneous .
Liability
41. While the Appellants submitted that the Respondents ought to have been held wholly liable for the accident, the Respondents on the other hand submitted that it is the deceased who ought to have been found 100% liable for occasioning the accident.
42. The Appellant pleaded in their plaint that the deceased was at the material time was a lawful rider along Macalder – Okenge Road when motor vehicle registration number KDM G Mitsubishi Canter FE 85 was negligently, recklessly and carelessly driven in a such a manner that the said Motor Vehicle violently hit the Deceased throwing to the ground thereby causing him fatal injuries. It was thus averred that the Respondents were vicariously liable for causing the accident. Particulars of negligence were stated in the plaint.
43. The Respondents on their part denied being liable for occasioning the accident and pleaded in their statement of defence that the deceased was to be blamed for the causation of the accident if any occurred. The Respondent also pleaded that in the alternative and without any prejudice the accident was caused by the negligence, carelessness and recklessness of the Deceased who was riding the alleged Motor cycle. Particular of negligence were stated in the Defence on the part of the Appellant.
44. The Appellant called two witnesses in support of their case. PW1 the Police officer testified and confined himself to the contents of the police abstract which this court has duly perused. He testified that the accident involved motor vehicle registration number KDM 239G Mitsubishi Canter and a rider and two pillion passenger occurred on the 9.11.2023 and the rider was fatally injured. On cross examination he testified that he had not formed an opinion on the person who had caused the accident. He stated that a Motor cycle should only carry one pillion passenger and not two as the case herein. He went ahead and stated that he did not charge the pillion passengers but the driver of the Lorry was charged under Traffic Offence No. 256 of 2023 . However, the abstract before court still indicated pending under investigation which he produced as an evidence before the trial court.
45. PW2 adopted her statement and list and bundle of documents and testified that she would have depended on his son in future as he had taken him to school. On cross examination she stated the deceased was 22 years old and used to ride a motor cycle which used to earn him approximately 15,000.00 but she did not see his license for riding. She testified that the Deceased worked for a person called Dan however she does not have any letter before court to indicate the said person was the deceased employer. She further testified that she did not witness the accident and was only called by people and when she got to the scene his son had already passed on.
46. The Respondent did not call any witness in support of their case.
47. The trial magistrate in her judgment stated there was no eye witness who testified. PW2 testified that the person to be blamed was the driver of the motor vehicle and was even charged with a traffic offence, although a perusal of the record indicates that there is no evidence in support of that and the abstract states pending under investigation. It is noteworthy though that the Police Abstract was first issued immediately after the accident and the investigating officer was at liberty to proceed and finalise the investigations. In his evidence before court, he stated that the driver had been charged with the offence of causing death by dangerous driving but was not aware of the outcome. The trial magistrate considered all this evidence and was unable to solely lay blame on either party. The court accordingly apportioned liability of 40:60 between the two parties noting that there was no eye witness to give clarity to what transpired.
48. I have considered the evidence adduced before the trial court as well as the pleadings filed by the parties and the question before this Court is not whether it would have reached a different apportionment but whether the learned trial magistrate proceeded on a wrong principle or misapprehended the evidence or reached a conclusion that was not reasonably open to the trial court on the material before the court.
49. It is evident that indeed an accident occurred on the 9 th November, 2023 involving motor vehicle registration number KDM 239G and the motorcycle which the deceased was riding. It is also not disputed that the deceased was fatally injured. The dispute concerns how the accident occurred and the extent to which each party contributed to it.
50. I note that the evidence of PW1 did not provide a complete reconstruction of how the accident occurred as he was not present when the accident occurred, neither did he produce a sketch plan and or stated the point of impact or the position of the motor vehicle and Motor cycle immediately before and after the collision. In his statement however, he did state that the accident occurred when the driver of the lorry veered off the road and rammed into the motor cycle and thus occasioned the accident and subsequent death of the deceased. That evidence was not controverted with either documents, witness statements or evidence by the defence as they did not call any witnesses. It is thus settled that where a party does not call witnesses to controvert the Plaintiffs evidence, then the same will be deemed unchallenged subject to proof as required under section 107 and 109 of the Evidence Act.
51. The evidence of the Plaintiff coupled with that of the Police Officer who investigated the accident leads this court to make a finding that the trial court misapplied the law in apportioning liability between the driver and the cyclist when no evidence was adduced before court to point towards the culpability of the cyclist. No document or statement is before court to demonstrate or point to the contribution of the cyclist.
52. I further note that the testimony availed before the trial court showed that the motorcycle was carrying two pillion passengers. This conduct is contrary to Section 60 of the Traffic Act which prohibits the carrying of more than one passenger on a two-wheeled motorcycle. The question is thus whether this violation can be deemed in the absence of any other evidence to be the cause of the accident. I deem not. The cyclist was indeed carrying an additional passenger but there is no evidence that this caused the accident.
53. As regards the observation made by the trail court that the Respondent pleaded guilty to the charge of causing death by dangerous driving, I note that no material was placed before court. While I note the import of section 47A of the Evidence Act, on the effect of a judgment in criminal proceedings, that proof was not placed before the court. Section 47A states as follows:
“ A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged ”.
54. In that regard, had the final determination of the traffic case been presented before the trial court during the trial, then it would have been appropriate for the trial court to make its conclusion based on that judgment. To proceed as it did, set a dangerous precedent if allowed to stand.
55. It is therefore my considered view, the above notwithstanding that the trial court was in error in apportioning liability as it did. I will thus set aside the apportionment of 60:40 and find the Defendants/Respondents fully liable for the accident.
Quantum
56. The principles under which an appellate court may disturb an award of damages made by a lower court are well established. The same were espoused by the Court of Appeal in the case of Arrow Car Ltd vs Elijah Shamalla Bimomo & 2 Others (2004) eKLR where it was held thus: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that, short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. … ”
57. This court notes that that neither the Appellant nor the Respondents challenged the awards of Kshs. 100,000.00 for loss of expectation of life, Kshs. 100,000.00 for pain and suffering, or special damages of Kshs. 67,850.00 meaning that those awards therefore will remain undisturbed.
58. The substantive issue raised by the cross-appeal relates to the award for loss of dependency, which the trial court assessed globally at Kshs. 3,000,000.00 and I confine my consideration under this head as to whether the global award for loss of dependency was supported by the evidence or was arrived at on sound principles and was reasonable in light of the circumstances of the deceased and comparable awards.
59. Reliance is placed in Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (Suing as administrator and personal representative of Anthony Mwitu Gakungu Deceased) 2020 eKLR the court held that:
“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.”
60. The trial court on loss of dependency adopted the global-sum approach which I will not depart from because the evidence did not sufficiently establish the deceased’s income, employment or future earnings to enable the court use the multiplier method.
61. However, in having elected to make a global award the trial court was still required to exercise its discretion judicially and to give a reasonable basis for the figure selected. The award of Kshs. 3,000,000.00 for loss of dependency was not adequately explained and was not related to comparable decisions or the particular circumstances of the deceased, who was a young motorcycle rider and whose income was stated but not proved by documentary evidence.
62. I am of the considered view that the principle remains that comparable cases should as much as possible attract comparable awards even where each case will be determined on its own facts. Reliance is placed on the case of Achenda & Another vs [Respondent] [2023] KEHC 18044 (KLR ) , the High Court considered a global
[...truncated]