1. The background of the appeal is that vide a plaint dated 25th October 2021, the Plaintiff/Appellant averred that at all times material to this suit, the Defendant/Respondent, a limited liability company carrying out business within the Republic of Kenya, was the registered and/or beneficial owner and/or insured of motor vehicle registration number KBR 172T ZE 4146. That on or about 25th February 2021, the deceased was lawfully walking on the pavement of the road at King’orani area when along the new Mombasa-Nairobi highway when the Defendant’s authorized driver so negligently and carelessly drove the Defendant’s motor vehicle registration number KBR 172T ZE 4146 permitting it to veer off the road, hit and knock him down as a result of which he was fatally injured.
2. The Plaintiff/Appellant prayed in the plaint for damages against the Respondent for general damages, special damages of Kshs. 291,150, costs of this suit and interest at court rates on general damages, special damages and costs of the suit.
3. This suit was heard in the trial court and judgment delivered on 6th July 2023 where the trial court found liability to be 50% against the Plaintiff and 50% against the Defendant. On general damages, the court awarded Kshs. 10,000 for loss of life, Kshs. 100,000 for pain and suffering, Kshs. 1,612,824 for lost years (multiplicand of Kshs. 11,800 x 2/3 x 17 x 12 was applied), and Kshs. 241,550 for special damages. The awards amounted to Kshs. 1,964,374, less 50% liability, the Plaintiff got Kshs. 982,187 plus costs of the suit from date of institution and interest from the date of judgment.
4. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 20th July 2023 on grounds that the learned magistrate erred in finding that the Plaintiff was 50% liable for causing the said accident which occurred on 25th February 2021, that the learned magistrate misdirected herself and based her finding on wrong considerations, that the learned magistrate failed to consider the fact that the Appellant’s salary as a driver was Kshs. 33,000 per month and not Kshs. 11,800 while awarding lost years, that the learned magistrate failed to consider the fact that the Appellant’s injuries were solely occasioned by the Respondent and thus the Respondents were 100% liable, that the learned magistrate erred in fact by failing to take into account and to consider the evidence adduced on behalf of the Appellant, that the learned magistrate failed to appreciate the submissions of the learned counsel for the Appellant by finding in favour of the Respondent herein, and that in the circumstances of the case, the findings of the learned magistrate are insupportable in law or on the basis of the evidence adduced.
5. The Appellant prayed for orders that the appeal be allowed, that the judgment delivered on 6th July 2023 be set aside and/or varied, that the order made by the learned magistrate apportioning liability at 50% against the Plaintiff be set aside and/or varied, and that the cost of this appeal be awarded to the Appellant.
6. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 29th November 2023 contented that there are consequences for a party failing to adduce evidence. The Appellant cited the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCC No. 834 of 2002 which cited with authority the case of Autar Sign Bahra & Another v Raju Govindji, HCCC No. 548 of 1998, Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCCS No. 1243 of 2001, Karuru Munyororo v Joseph Ndumia Murage & Another, Nyeri HCCC No. 95 of 1998, Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007 which cited the decision in Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997, and the case of Interchemie EA Limited v Nakuru Veterinary Center Limited, Nairobi (Milimani) HCCC No. 165B of 2000.
7. The Appellant submitted that the testimony of the Defendant’s driver was false as a road cannot be tarmacked and under construction at the same time. That the said evidence should therefore not be taken seriously considering it was uncorroborated. The Appellant stated that the police officer while relying on the evidence in the police file and occurrence book confirmed that the road was still under construction, that the accident occurred at daytime and the front bumper of the Respondent’s motor vehicle was damaged. That the Respondent was therefore solely to blame for the accident and ought to have been held 100% liable and vicariously liable.
8. According to the Appellant, the copy of pay slip produced as P-Exhibit-5 showed a monthly salary of Kshs. 25,000 and not Kshs.11,700. The Appellant submitted on uncontroverted and unchallenged evidence by citing the cases of Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, Ephantus Mwangi v Duncan Mwangi Wambugu (1984) eKLR, Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCCS No. 1243 of 2001, and Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007. That the burden of proof is provided for under Section 107, 108 and 109 of the Evidence Act and that the trial court was expected to test evidence of the Appellant to determine whether it was discharged on a balance of probabilities.
9. The Respondent in their submissions dated 8th December 2023 argued that the issues raised by the Appellant are on liability and on the Appellant’s salary used in tabulation of loss of dependency. The Respondent submitted that the Appellant was not an eye witness and had no idea how the accident happened. That PW2, the police officer, also testified that he was not the investigating officer in the matter and that he did not visit the scene of the accident. That on cross examination, he stated that the deceased was crossing the road at a place where there was no pedestrian crossing. That the matter was pending investigation and no party was blamed for the accident. That DW1 testified and stated that he was driving at King’orani area when a pedestrian suddenly crossed the road. That when he tried to swerve, unfortunately there was a car approaching from the other side. That he tried braking to avoid hitting the pedestrian but it was not possible due to the close proximity. The Respondent submitted that in such instances, courts apportion liability equally. The Respondent cited the cases of Salmin Mbarak Awadh v Emma Nthoki Mutwota, HCCA No. 29 of 2017 and Domitila Wangui Karugu & Another v Dagu Hidris Haide (2020) eKLR
10. The Respondent submitted on loss of dependency that it is trite law that all salary earned in Kenya must be subjected to statutory deductions and that after the deceased’s salary is subjected to the deductions, the remainder that is regarded as the deceased’s salary was Kshs. 16,800. That it is undisputed that the deceased was aged 35 years at the time of his death and that it would be more reasonable if a multiplier of 10 years is adopted together with dependency ratio of 1/3. The Respondent relied on the case of Mombasa Maize Millers Limited v WIM (Suing as the representative of JAM (Deceased) (2016) eKLR. The Respondent prayed that the appeal is dismissed with costs.
11. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle vs. Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
12. I have considered pleadings, evidence and proceedings of the trial court, the Memorandum of Appeal and submissions filed herein by the parties. The issues for determination are: -
(a) Whether liability apportioned at the ratio of 50:50 was fair
(b) Whether the award on lost years was proper
13. On the first issue, the court in Khambi and Another v Mahithi and Another (1968) EA 70 held that: -
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
14. The Plaint dated 25th October 2021 showed that the deceased was lawfully walking along the pavement when the driver permitted the vehicle to veer off the road, hit and knock him down as a result of which he sustained fatal injuries. According to the evidence tendered by PW2, the OB extract showed that the pedestrian was crossing the road from left to right, the vehicle inspection report showed that the deceased was hit by the front bumper, and the police abstract showed that the road was under construction at the time. DW1 informed the court that he did not see the deceased crossing the road, that the front bumper of the vehicle got damaged and that the accident occurred at daytime.
15. In consideration of the above, the deceased and the driver are to blame for the accident. The law is trite as established by authorities that where both parties are at fault, liability is apportioned equally. The trial court was therefore fair in apportioning liability at the ratio of 50:50.
16. On the second issues, this court has perused the evidence on record and established that the death certificate shows that the deceased was aged 35 years at the time of his death. I find that a multiplier of 15 years would be appropriate in the circumstances considering vagaries of life.
17. Additionally, the evidence tendered of the letter dated 26th March 2021 from Vipa General Transporters Limited and the copy of pay slip show that the deceased was employed and earned a salary of Kshs. 25,000 per month.
18. I find that the trial court erred in applying a multiplicand of Kshs. 11,800 x 2/3 x 17 x 12 = Kshs. 1,612,824. This court therefore sets it aside and substitutes it with a multiplicand of Kshs. 25,000 x 2/3 x 15 x 12 = Kshs. 3,000,000
19. In the upshot, I find that the appeal partially succeeds as follows: -
(a) Liability is apportioned in the ratio of 50:50 as against the Appellant and the Respondent.
(b) On the lost years, the Appellant is awarded Kshs. 3,000,000. The total award on damages less 50% is Kshs. 1,675,500.
(c) The Appellant is awarded half the costs of the appeal.
DATED and DELIVERED VIRTUALLY at MOMBASA this 20TH day of FEBRUARY, 2025
2. The Plaintiff/Appellant prayed in the plaint for damages against the Respondent for general damages, special damages of Kshs. 291,150, costs of this suit and interest at court rates on general damages, special damages and costs of the suit.
3. This suit was heard in the trial court and judgment delivered on 6th July 2023 where the trial court found liability to be 50% against the Plaintiff and 50% against the Defendant. On general damages, the court awarded Kshs. 10,000 for loss of life, Kshs. 100,000 for pain and suffering, Kshs. 1,612,824 for lost years (multiplicand of Kshs. 11,800 x 2/3 x 17 x 12 was applied), and Kshs. 241,550 for special damages. The awards amounted to Kshs. 1,964,374, less 50% liability, the Plaintiff got Kshs. 982,187 plus costs of the suit from date of institution and interest from the date of judgment.
4. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 20th July 2023 on grounds that the learned magistrate erred in finding that the Plaintiff was 50% liable for causing the said accident which occurred on 25th February 2021, that the learned magistrate misdirected herself and based her finding on wrong considerations, that the learned magistrate failed to consider the fact that the Appellant’s salary as a driver was Kshs. 33,000 per month and not Kshs. 11,800 while awarding lost years, that the learned magistrate failed to consider the fact that the Appellant’s injuries were solely occasioned by the Respondent and thus the Respondents were 100% liable, that the learned magistrate erred in fact by failing to take into account and to consider the evidence adduced on behalf of the Appellant, that the learned magistrate failed to appreciate the submissions of the learned counsel for the Appellant by finding in favour of the Respondent herein, and that in the circumstances of the case, the findings of the learned magistrate are insupportable in law or on the basis of the evidence adduced.
5. The Appellant prayed for orders that the appeal be allowed, that the judgment delivered on 6th July 2023 be set aside and/or varied, that the order made by the learned magistrate apportioning liability at 50% against the Plaintiff be set aside and/or varied, and that the cost of this appeal be awarded to the Appellant.
6. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 29th November 2023 contented that there are consequences for a party failing to adduce evidence. The Appellant cited the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCC No. 834 of 2002 which cited with authority the case of Autar Sign Bahra & Another v Raju Govindji, HCCC No. 548 of 1998, Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCCS No. 1243 of 2001, Karuru Munyororo v Joseph Ndumia Murage & Another, Nyeri HCCC No. 95 of 1998, Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007 which cited the decision in Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997, and the case of Interchemie EA Limited v Nakuru Veterinary Center Limited, Nairobi (Milimani) HCCC No. 165B of 2000.
7. The Appellant submitted that the testimony of the Defendant’s driver was false as a road cannot be tarmacked and under construction at the same time. That the said evidence should therefore not be taken seriously considering it was uncorroborated. The Appellant stated that the police officer while relying on the evidence in the police file and occurrence book confirmed that the road was still under construction, that the accident occurred at daytime and the front bumper of the Respondent’s motor vehicle was damaged. That the Respondent was therefore solely to blame for the accident and ought to have been held 100% liable and vicariously liable.
8. According to the Appellant, the copy of pay slip produced as P-Exhibit-5 showed a monthly salary of Kshs. 25,000 and not Kshs.11,700. The Appellant submitted on uncontroverted and unchallenged evidence by citing the cases of Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, Ephantus Mwangi v Duncan Mwangi Wambugu (1984) eKLR, Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCCS No. 1243 of 2001, and Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007. That the burden of proof is provided for under Section 107, 108 and 109 of the Evidence Act and that the trial court was expected to test evidence of the Appellant to determine whether it was discharged on a balance of probabilities.
9. The Respondent in their submissions dated 8th December 2023 argued that the issues raised by the Appellant are on liability and on the Appellant’s salary used in tabulation of loss of dependency. The Respondent submitted that the Appellant was not an eye witness and had no idea how the accident happened. That PW2, the police officer, also testified that he was not the investigating officer in the matter and that he did not visit the scene of the accident. That on cross examination, he stated that the deceased was crossing the road at a place where there was no pedestrian crossing. That the matter was pending investigation and no party was blamed for the accident. That DW1 testified and stated that he was driving at King’orani area when a pedestrian suddenly crossed the road. That when he tried to swerve, unfortunately there was a car approaching from the other side. That he tried braking to avoid hitting the pedestrian but it was not possible due to the close proximity. The Respondent submitted that in such instances, courts apportion liability equally. The Respondent cited the cases of Salmin Mbarak Awadh v Emma Nthoki Mutwota, HCCA No. 29 of 2017 and Domitila Wangui Karugu & Another v Dagu Hidris Haide (2020) eKLR
10. The Respondent submitted on loss of dependency that it is trite law that all salary earned in Kenya must be subjected to statutory deductions and that after the deceased’s salary is subjected to the deductions, the remainder that is regarded as the deceased’s salary was Kshs. 16,800. That it is undisputed that the deceased was aged 35 years at the time of his death and that it would be more reasonable if a multiplier of 10 years is adopted together with dependency ratio of 1/3. The Respondent relied on the case of Mombasa Maize Millers Limited v WIM (Suing as the representative of JAM (Deceased) (2016) eKLR. The Respondent prayed that the appeal is dismissed with costs.
11. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle vs. Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
12. I have considered pleadings, evidence and proceedings of the trial court, the Memorandum of Appeal and submissions filed herein by the parties. The issues for determination are: -
(a) Whether liability apportioned at the ratio of 50:50 was fair
(b) Whether the award on lost years was proper
13. On the first issue, the court in Khambi and Another v Mahithi and Another (1968) EA 70 held that: -
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
14. The Plaint dated 25th October 2021 showed that the deceased was lawfully walking along the pavement when the driver permitted the vehicle to veer off the road, hit and knock him down as a result of which he sustained fatal injuries. According to the evidence tendered by PW2, the OB extract showed that the pedestrian was crossing the road from left to right, the vehicle inspection report showed that the deceased was hit by the front bumper, and the police abstract showed that the road was under construction at the time. DW1 informed the court that he did not see the deceased crossing the road, that the front bumper of the vehicle got damaged and that the accident occurred at daytime.
15. In consideration of the above, the deceased and the driver are to blame for the accident. The law is trite as established by authorities that where both parties are at fault, liability is apportioned equally. The trial court was therefore fair in apportioning liability at the ratio of 50:50.
16. On the second issues, this court has perused the evidence on record and established that the death certificate shows that the deceased was aged 35 years at the time of his death. I find that a multiplier of 15 years would be appropriate in the circumstances considering vagaries of life.
17. Additionally, the evidence tendered of the letter dated 26th March 2021 from Vipa General Transporters Limited and the copy of pay slip show that the deceased was employed and earned a salary of Kshs. 25,000 per month.
18. I find that the trial court erred in applying a multiplicand of Kshs. 11,800 x 2/3 x 17 x 12 = Kshs. 1,612,824. This court therefore sets it aside and substitutes it with a multiplicand of Kshs. 25,000 x 2/3 x 15 x 12 = Kshs. 3,000,000
19. In the upshot, I find that the appeal partially succeeds as follows: -
(a) Liability is apportioned in the ratio of 50:50 as against the Appellant and the Respondent.
(b) On the lost years, the Appellant is awarded Kshs. 3,000,000. The total award on damages less 50% is Kshs. 1,675,500.
(c) The Appellant is awarded half the costs of the appeal.
DATED and DELIVERED VIRTUALLY at MOMBASA this 20TH day of FEBRUARY, 2025