( Being an appeal from the judgment and decree by Hon. Martin N. Mutua, Senior Resident Magistrate, in in Makueni Magistrate’s Civil Suit No. 208 of 2016 delivered on 8 th November, 2024 )
JUDGMENT.
1. This is an appeal by Manji Food Industries Limited (the Appellant) against the judgement of the Hon. Martin N. Mutua, Senior Resident Magistrate, dated and delivered on 8/11/2024 .
2. That the 1 st Respondent is the personal representatives of the Estate of the late Jacob Musyoka Mbevi – Deceased (herein referred to as the deceased) and vide a plaint dated the 15 th day of November, 2016 , the 1 st Respondents claimed for special damages, damages under the Law Reforms Act and the Fatal Accidents Act , costs of the suit, any other or further relief the Honourable Court deemed fit and just to grant.
3. The 1 st Respondent pleaded that on or about the 29 th day of November, 2013 , the deceased was traveling as a pillion passenger aboard an unregistered Motor vehicle along the Machakos – Wote road when the Appellant and the 2 nd Respondent’s driver, servant and or agent negligently drove, controlled and or managed Motor vehicle registration number KAQ 692Z that the Appellant and the 2 nd Respondent permitted the same Motor Vehicle to veer of its lane and collided with the Motor cycle the deceased was on board and as a consequence whereof the deceased sustained fatal injuries. That the deceased lost his expectation of life and the dependent’s of the deceased have suffered loss and damages in that they have been deprived of their means of livelihood and support. That the Deceased at the time was aged 44 years, was strong and in good health and he was working as a farmer and casual laborer earning a total of Kshs. 15,000.00. Whether the amount earned was per day, per month or per year has not been pleaded in the plaint.
4. The Appellant filed their Defence in which the Appellant denied the averment and allegation put forth by the 1 st Respondent and without prejudice to the allegation raised by the 1 st Respondent the Appellant averred that the Respondent was negligent and the accident was therefore caused by their own negligence and the 1 st Respondent was put to strict proof thereof. That after hearing, the trial court allowed the 1 st Respondents’ suit jointly and severally against the Appellant and the 2 nd Respondent with costs and interests.
5. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 22 nd November, 2024 on the following Six (6) grounds:
1. The Honourable Senior Resident Magistrate erred in law and fact in holding that the Appellant was liable for the accident whereas the 1 st Respondent did not prove any liability or negligence against the Appellant for the accident whatsoever and erroneously shifting the burden to the Appellant despite the 1 st Respondent failing to adduce any evidence of negligence.
2. That the Honourable Senior Resident Magistrate erred in law and in fact in failing to hold that the Appellant had proved that the deceased rider was solely liable for the negligence that caused the accident whereby the Honourable Senior Resident Magistrate completely disregarded the weight of the Appellant’s evidence.
3. That the Honourable Senior Resident Magistrate erred in law and in fact in failing to find that the 1 st Respondent had failed to prove that the Appellant was the beneficial owner of motor vehicle KAQ 692Z and there was no proof of any nexus between the Appellant and the said Motor vehicle and therefore no liability could attach to the Appellant arising from the accident.
4. That the Honourable Senior Resident Magistrate erred in law and in fact in awarding an excessive award on loss of dependency and this amounted to an erroneous estimate of damages vis a vis the authorities cited by the Appellant for award for comparable deceased persons with no proof of income in its written submissions.
5. That the Honourable Senior Resident Magistrate erred and misdirected himself in law in failing to adequately consider the written submissions and authorities filed and cited by the Appellant on the issue of liability and quantum.
6. That the Honourable Senior Resident Magistrate erred and misdirected himself in law and fact by awarding the 1 st Respondent the special damages that was not strictly proved by the evidence of receipts to prove payment thereof by the 1 st Respondent.
6. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed submissions dated the 20 th day of January, 2026 in which the Appellant denied liability and quantum payable as per the judgement of the trial court and relied on the decisions in Eastern Produce (K) Limited vs Christopher Atiado Osiro (2006) eKLR, Treadsetters Tyres Ltd vs Jonah Wekesa Wepukhulu (2010) eKLR, Gilbert Kimatare Nairi & Another (suing as personal representatives of the Estate of Lemavian Richard Kimatare (Deceased) v Civiscope Limited (2021) eKLR, Moses Mairua Muchiri vs Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased) (2016) eKLR, & Zacharia Waweru Thumbi vs Samuel Njoroge Thuku (2006) eKLR which I gave duly considered.
7. The 1 st Respondent also filed her written submissions dated the 3 rd of December, 2025 in which she submitted that the appeal was not merited and the same ought to be dismissed with costs. She placed reliance on the decisions in Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) E.A 123, Kennedy Nyangoya vs Bush Hauiliers (2016) eKLR, Jennifer Mathenge vs Patrick Muriuki Maina HCCA No. 43 o 2015, Daniel Otieno Migore vs South Nyanza Sugar Company Limited (2018) eKLR, Charles Masoso Barasa & Prisca Lubya (suing as legal representatives of the estate of the late Jacob Munyanya versus Chepkoech Rotich & Another HCC No 49 of 2011 and Oyugi Judith & Another vs Fredrick Odhiambo Ongong & 3 Others (2014) eKLR which I have also duly considered.
8. The 2 nd Respondent equally filed his written submissions dated the 23 rd of September, 2024 in which he urges the Honourable court to consider his submissions herein and to dismiss the Plaintiff’s case and for the avoidance of doubt the Plaintiff in the trial court is the 1 st Respondent in the suit herein.
Analysis & determination
9. The duty of an appellate court, especially when dealing with a first appeal, is to undertake a comprehensive and independent re-assessment of the evidence presented before the trial court and to arrive at its own conclusions. While it is not bound by the factual findings of the trial magistrate and may reach different conclusions where the trial court misapprehended the evidence or failed to consider relevant circumstances and probabilities, the appellate court must nonetheless remain mindful that the trial court had the distinct advantage of directly observing the witnesses’ demeanor and hearing their testimony firsthand as elucidated in the cases of Mbogo and Another v Shah [1968] EA 93 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 .
10. I have read and considered the memorandum of appeal and the parties’ submission. The crux of this appeal is purely based on two (2) limbs being on liability and quantum. I will deal with the issue of liability first.
Liability
11. The appellant has argued that the trial Court misdirected itself at apportioning liability against the Appellant and the 2 nd Respondent at 100% liability. At the point of filing suit, by dint of Section 107(1) and 108 of the Evidence Act Cap 80 Laws of Kenya, the burden of proof lay with the Plaintiff who had sought the relief of this Court. He then tendered his evidence and blamed the Appellant for the accident. The burden of proof then shifted to the Appellant to rebut the plaintiff’s case. Upon perusal of the proceedings, it is not in dispute that the said accident occurred on the 29 th January, 2013 .
12. During the course of trial, I note that PW1 Caroline Nini Mutua , the 1 st Respondent testified on cross examination that she was at home and did not witness the accident. She only became aware of the accident after two hours and that the deceased had died on the spot. She stated that the 2 nd Respondent was the owner of the owner of the Motor vehicle and that she had sued the motor vehicle owners.
13. PW2 produced a police abstract in relation to the accident where the deceased suffered fatal injuries. As per the abstract produced it is evident that the Appellant was the owner in possession of the Motor vehicle on the apparent day. The matter was pending under investigations at the time the Police Abstract was issued and the said witness did not investigate the accident.
14. DW1 who testified as witness of the Appellant informed court that he was not the driver of the Motor Vehicle but was onboard the said Motor vehicle at the time of the accident. He informed court that the driver of the Motor vehicle did not record any statement. He further stated that he witnessed the accident and that the rider and the pillion passenger were drank.
15. To establish negligence in a Road Traffic Accident, claim in Kenya, a claimant or a plaintiff must prove duty, breach, causation and injury which is capable of being compensated by an award of damages. Evidence is crucial with courts assessing the credibility of witnesses and the cogency of facts presented by both the plaintiff’s testimonies and the defendant’s answer to the claim. The burden of proof rested on the claimant or plaintiff to prove negligence on a balance of probabilities. With regard to this, in a tort of negligence, the onus is upon the claimant to prove his claim. See the case of Stephen Kanjabi Wariari Vs Dennis Mutwiri Muriuki & Another [2022] eKLR .
16. The Court has analyzed the pleadings and evidence before the trial Court, and has considered the grounds of appeal filed herein and the appellant's written submissions.
17. From the evidence on record, I am satisfied that the learned trial magistrate properly evaluated the evidence before arriving at the finding on liability against the Appellant and the 2 nd Respondent. The Appellant's being the owner in possession at the time of the accident was not disputed and was corroborated by the Police Abstract produced in evidence. The registered owner being the 2 nd Respondent was also not disputed and was supported by the Motor vehicle copy of record produced in evidence. In addition, DW1, the only witness who testified for the defence stated that he was a salesman with the Appellant. For inexplicable reasons, the Appellant did not avail the driver of the motor vehicle who would have provided evidence to demonstrate that the Appellant either was or was not the beneficial owner of the motor vehicle.
18. In that regard, the Appellants plea that they were not the beneficial owners of the motor vehicle is not sustainable. I am persuaded and guided by the determination made in Joel Muga Opija v East African Sea Food Limited [2013] eKLR, the Court noted that the defendant did not give evidence in his defence to challenge the plaintiff’s evidence about ownership of the motor vehicle in question, despite the plaintiff having alleged that it belonged to the defendant and having produced a police abstract report to that effect. The Court there held:
“It is noteworthy, it, that Bosire sat in Thuranira’s case (supra), Wandera’s case (supra) and in the Lake Flower’s case. It would appear that like us, he treated the comments in Thuranira’s case as orbiter. It is clear to us that there has been a move from the rigid position that was pronounced, albeit as orbiter, in the Thuranira case. In any case in our view an exhibit is evidence and in this case, the appellant’s evidence that the police recorded the respondent as the owner of the vehicle and Ouma’s evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter the evidence. We think, with respect, that the learned judge in failing to consider in depth the legal position in respect of what is required to prove ownership, erred on point of law in that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the registrar of motor vehicles showing who the registered owner is, but when the abstract is not challenged and is produced in court without any objection, its contents cannot be later denied (emphasis mine) .”
19. Equally in Wellington Ng’ang’a Muthiora vs Akamba Public Road Services & Another , [2010[ eKLR , this Court held:
“… where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as a proof of ownership in the absence of anything else as proof in Civil Cases was within the standards of probability and not beyond reasonable doubt as in criminal cases. However, where it is challenged by evidence or in cross-examination the plaintiff would need to produce certificate from the registrar of motor vehicles which would only be conclusive evidence in the absence of proof to the contrary.”
20. On liability, I am of the considered view that while PW1 did not witness the accident, her evidence established the occurrence of the accident and the death of the deceased. More importantly, the Appellant's witness (DW1) admitted that he was present in the motor vehicle at the time of the accident and purported to narrate how the accident occurred. However, his allegation that the deceased rider and the pillion passenger were drunk remained a mere assertion as no documentary or independent evidence was adduced to support that allegation.
21. Equally significant was the failure by the driver of the motor vehicle who was the person best placed to explain the circumstances leading to the accident did not testify before the trial court. The failure to call such a crucial witness entitled the trial court to draw an adverse inference against the Appellant and the 2 nd Respondent. In Bukenya & Others v Uganda , the East African Court of Appeal held that where a party fails to call material witnesses who are available, the court is entitled to infer that their evidence would have been adverse to that party.
22. Further, the Appellant failed to rebut the 1 st Respondents' case by credible evidence capable of displacing the finding of negligence on a balance of probabilities. Once the 1 st Respondent established that the accident involved the Appellant & 2 nd Appellant's motor vehicle and produced prima facie evidence of the occurrence of the accident and the resultant fatal injuries, the evidential burden shifted to the Appellant to offer a plausible explanation consistent with the exercise of reasonable care and the Appellant did not discharge that burden hence making them liable.
23. This position accords with the decision in Embu Public Road Services Ltd v Riimi [1968] EA 22 , where the Court held that where the circumstances of an accident give rise to an inference of negligence and the defendant fails to provide a satisfactory explanation, liability may properly be inferred.
24. Likewise, in Statpack Industries v James Mbithi Munyao, Civil Appeal No. 152 of 2003 , the Court of Appeal reiterated that the legal burden of proof remains with the plaintiff throughout, but once a prima facie case is established, the evidential burden shifts to the defendant to rebut the evidence. In the present case, the Appellant failed to discharge that evidential burden.
25. It is noteworthy that the rider of the motorcycle was not joined into the proceedings. That would have allowed the trial court to consider the possibility
26. Consequently, I find no basis upon which to interfere with the trial court's finding on liability against the Appellant and 2 nd Respondent respectively.
Quantum
27. Generally, assessment of damages is not an easy task. A court is supposed to give a reasonable award which is neither extravagant nor oppressive as it is guided by factors such as previous awards for similar injuries and the principles that have been developed by the courts over the years. What constitutes a reasonable award is really an exercise of the courts discretion and will depend on the peculiar facts of each case.
28. The trial court awarded general damages for pain and suffering at Kshs. 100,000/=, loss of expectation of life at 100,000/=, loss of dependency at a global figure of Kshs 1,000,000/= and special damages being Kshs 80,040/=. The Appellant contends that the award is inordinately high and should not be granted.
29. The general principle to be observed by an appellate court in deciding whether to disturb quantum of damages were set out in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini vs AM Lubia and Olive Lubia (1982-88) 1 KAR 727 and restated by the Court of Appeal in the case of Arrow Car Ltd Vs Elijah Shamalla Bimomo & 2 Others (2004) eKLR that: -
“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. ”
30. Moreover, in the case of Butt v Khan [1978] KECA 24 (KLR ) , the court held as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. This, with respect, is what I think happened in this case. The learned judge attached undue importance to the likelihood of epilepsy developing in the future”.
31. I take note that it is not sufficient for this court to substitute it’s the trial court’s figure merely because it might have awarded a different amount had it been the trial court. There must be a demonstrable error in principle or a manifestly erroneous assessment. In the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 :
“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.”
32. The injuries sustained by the deceased were fatal in nature. Having carefully re-evaluated the evidence on record, I will consider each of the awards.
33. In regard to the award on pain and suffering, PW1 and the post mortem report show that the deceased died on the spot. The trial court stated that the deceased died the same day. The factual evidence is that the deceased died on the spot. The court awarded Kshs. 100,000.00. Comparable authorities cited by the parties provide for a range of between Kshs. 10,000.00 to Kshs. 30,000.00. I will thus substitute the award of Kshs. 100,000.00 with Kshs. 30,000.00.
34. The trail court awarded Kshs. 100,000.00 for loss of expectation of life. The deceased was stated to be aged 44 years at the time of his tragic demise. Comparable awards fall within that range. I will thus uphold the award of Kshs. 100,000.00.
35. On the award for the loss of dependency, the trial court correctly opined that the Plaintiffs did not produce any evidence of the deceased’s earnings either from the farm or the casual jobs he was alleged to involve himself in. The court thus proceeded by using the global award method in assessing damages payable under this head. The court awarded Kshs. 1,000,000.00. The Appellant has stated that a sum of Kshs. 600,000.00 would be reasonable. He has relied, in addition to the authorities cited during the trial on Antony Njoroge Nganga (Legal Representative of the Estate of the Late Fred Nganga Njoroge aka Fred Ng’ang’a Njoroge) vs James Kinyanjui Mwangi & 2 Others (2022) eKLR, Gilbert Kimatare Nairi & Another vs Civicope Limited (2021) eKLR and Mary Khayesi Awalo & Another Mwilu Mulungi & Another (1999) eKLR . In the case of Gilbert , the deceased was aged 42 years and an award of Kshs. 600,000.00 was given in 2021. Accounting for inflation, I deem that an award of Kshs. 700,000.00 is fair and reasonable. I will thus substitute an award of Kshs. 1,000,000.00 given by the trial court with an award of Kshs. 700,000.00.
36. On Special damages, I am guided by the case of Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716 , whereby the Court of Appeal held as follows:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
37. I have re-evaluated the record and I note that Kshs. 80,040.00 was pleaded, the same was awarded by the trial court however the receipts attached in evidence amounts to Kshs. 79,190.00 receipts produced in evidence prove a total sum of Kshs. 79,190.00 and not Kshs. 80,040.00 as awarded by the trial court.
38. The award of Kshs. 80,040/= was therefore unsupported by the documentary evidence on record. Consequently, the award under the head of special damages is set aside and substituted with an award of Kshs. 79,190/=, being the amount strictly proved.
Final Disposition
39. In the result, the appeal partially succeeds only to the extent that the award of special damages is interfered with. The findings of the trial court on liability are upheld in its entirety, as are the awards under the heads of pain and suffering, loss of expectation of life, and loss of dependency.
40. Consequently, the judgment of the trial court is varied as follows:
a. Liability 100%
b. Pain and Suffering Kshs. 30,000.00
c. Loss of Expectation of Life Kshs. 100,000.00
d. Loss of Dependency Kshs. 700,000.00
e. Special Damages Kshs. 79,190.00
Total Kshs. 909,190.00
41. The 1 st Respondents shall be entitled to interest on the awards as ordered by the trial court from the date of the judgment by the trial court.
42. As the appeal has succeeded partially, I will direct that each party bear their costs of the appeal, and the costs awarded by the trial court shall remain undisturbed
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA No. E135 OF 2024 MANJI FOOD IND. LTD VS CAROLINE N. MUTUA & 2 OTHERS JDT Pg. 14
JUDGMENT.
1. This is an appeal by Manji Food Industries Limited (the Appellant) against the judgement of the Hon. Martin N. Mutua, Senior Resident Magistrate, dated and delivered on 8/11/2024 .
2. That the 1 st Respondent is the personal representatives of the Estate of the late Jacob Musyoka Mbevi – Deceased (herein referred to as the deceased) and vide a plaint dated the 15 th day of November, 2016 , the 1 st Respondents claimed for special damages, damages under the Law Reforms Act and the Fatal Accidents Act , costs of the suit, any other or further relief the Honourable Court deemed fit and just to grant.
3. The 1 st Respondent pleaded that on or about the 29 th day of November, 2013 , the deceased was traveling as a pillion passenger aboard an unregistered Motor vehicle along the Machakos – Wote road when the Appellant and the 2 nd Respondent’s driver, servant and or agent negligently drove, controlled and or managed Motor vehicle registration number KAQ 692Z that the Appellant and the 2 nd Respondent permitted the same Motor Vehicle to veer of its lane and collided with the Motor cycle the deceased was on board and as a consequence whereof the deceased sustained fatal injuries. That the deceased lost his expectation of life and the dependent’s of the deceased have suffered loss and damages in that they have been deprived of their means of livelihood and support. That the Deceased at the time was aged 44 years, was strong and in good health and he was working as a farmer and casual laborer earning a total of Kshs. 15,000.00. Whether the amount earned was per day, per month or per year has not been pleaded in the plaint.
4. The Appellant filed their Defence in which the Appellant denied the averment and allegation put forth by the 1 st Respondent and without prejudice to the allegation raised by the 1 st Respondent the Appellant averred that the Respondent was negligent and the accident was therefore caused by their own negligence and the 1 st Respondent was put to strict proof thereof. That after hearing, the trial court allowed the 1 st Respondents’ suit jointly and severally against the Appellant and the 2 nd Respondent with costs and interests.
5. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 22 nd November, 2024 on the following Six (6) grounds:
1. The Honourable Senior Resident Magistrate erred in law and fact in holding that the Appellant was liable for the accident whereas the 1 st Respondent did not prove any liability or negligence against the Appellant for the accident whatsoever and erroneously shifting the burden to the Appellant despite the 1 st Respondent failing to adduce any evidence of negligence.
2. That the Honourable Senior Resident Magistrate erred in law and in fact in failing to hold that the Appellant had proved that the deceased rider was solely liable for the negligence that caused the accident whereby the Honourable Senior Resident Magistrate completely disregarded the weight of the Appellant’s evidence.
3. That the Honourable Senior Resident Magistrate erred in law and in fact in failing to find that the 1 st Respondent had failed to prove that the Appellant was the beneficial owner of motor vehicle KAQ 692Z and there was no proof of any nexus between the Appellant and the said Motor vehicle and therefore no liability could attach to the Appellant arising from the accident.
4. That the Honourable Senior Resident Magistrate erred in law and in fact in awarding an excessive award on loss of dependency and this amounted to an erroneous estimate of damages vis a vis the authorities cited by the Appellant for award for comparable deceased persons with no proof of income in its written submissions.
5. That the Honourable Senior Resident Magistrate erred and misdirected himself in law in failing to adequately consider the written submissions and authorities filed and cited by the Appellant on the issue of liability and quantum.
6. That the Honourable Senior Resident Magistrate erred and misdirected himself in law and fact by awarding the 1 st Respondent the special damages that was not strictly proved by the evidence of receipts to prove payment thereof by the 1 st Respondent.
6. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed submissions dated the 20 th day of January, 2026 in which the Appellant denied liability and quantum payable as per the judgement of the trial court and relied on the decisions in Eastern Produce (K) Limited vs Christopher Atiado Osiro (2006) eKLR, Treadsetters Tyres Ltd vs Jonah Wekesa Wepukhulu (2010) eKLR, Gilbert Kimatare Nairi & Another (suing as personal representatives of the Estate of Lemavian Richard Kimatare (Deceased) v Civiscope Limited (2021) eKLR, Moses Mairua Muchiri vs Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased) (2016) eKLR, & Zacharia Waweru Thumbi vs Samuel Njoroge Thuku (2006) eKLR which I gave duly considered.
7. The 1 st Respondent also filed her written submissions dated the 3 rd of December, 2025 in which she submitted that the appeal was not merited and the same ought to be dismissed with costs. She placed reliance on the decisions in Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) E.A 123, Kennedy Nyangoya vs Bush Hauiliers (2016) eKLR, Jennifer Mathenge vs Patrick Muriuki Maina HCCA No. 43 o 2015, Daniel Otieno Migore vs South Nyanza Sugar Company Limited (2018) eKLR, Charles Masoso Barasa & Prisca Lubya (suing as legal representatives of the estate of the late Jacob Munyanya versus Chepkoech Rotich & Another HCC No 49 of 2011 and Oyugi Judith & Another vs Fredrick Odhiambo Ongong & 3 Others (2014) eKLR which I have also duly considered.
8. The 2 nd Respondent equally filed his written submissions dated the 23 rd of September, 2024 in which he urges the Honourable court to consider his submissions herein and to dismiss the Plaintiff’s case and for the avoidance of doubt the Plaintiff in the trial court is the 1 st Respondent in the suit herein.
Analysis & determination
9. The duty of an appellate court, especially when dealing with a first appeal, is to undertake a comprehensive and independent re-assessment of the evidence presented before the trial court and to arrive at its own conclusions. While it is not bound by the factual findings of the trial magistrate and may reach different conclusions where the trial court misapprehended the evidence or failed to consider relevant circumstances and probabilities, the appellate court must nonetheless remain mindful that the trial court had the distinct advantage of directly observing the witnesses’ demeanor and hearing their testimony firsthand as elucidated in the cases of Mbogo and Another v Shah [1968] EA 93 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 .
10. I have read and considered the memorandum of appeal and the parties’ submission. The crux of this appeal is purely based on two (2) limbs being on liability and quantum. I will deal with the issue of liability first.
Liability
11. The appellant has argued that the trial Court misdirected itself at apportioning liability against the Appellant and the 2 nd Respondent at 100% liability. At the point of filing suit, by dint of Section 107(1) and 108 of the Evidence Act Cap 80 Laws of Kenya, the burden of proof lay with the Plaintiff who had sought the relief of this Court. He then tendered his evidence and blamed the Appellant for the accident. The burden of proof then shifted to the Appellant to rebut the plaintiff’s case. Upon perusal of the proceedings, it is not in dispute that the said accident occurred on the 29 th January, 2013 .
12. During the course of trial, I note that PW1 Caroline Nini Mutua , the 1 st Respondent testified on cross examination that she was at home and did not witness the accident. She only became aware of the accident after two hours and that the deceased had died on the spot. She stated that the 2 nd Respondent was the owner of the owner of the Motor vehicle and that she had sued the motor vehicle owners.
13. PW2 produced a police abstract in relation to the accident where the deceased suffered fatal injuries. As per the abstract produced it is evident that the Appellant was the owner in possession of the Motor vehicle on the apparent day. The matter was pending under investigations at the time the Police Abstract was issued and the said witness did not investigate the accident.
14. DW1 who testified as witness of the Appellant informed court that he was not the driver of the Motor Vehicle but was onboard the said Motor vehicle at the time of the accident. He informed court that the driver of the Motor vehicle did not record any statement. He further stated that he witnessed the accident and that the rider and the pillion passenger were drank.
15. To establish negligence in a Road Traffic Accident, claim in Kenya, a claimant or a plaintiff must prove duty, breach, causation and injury which is capable of being compensated by an award of damages. Evidence is crucial with courts assessing the credibility of witnesses and the cogency of facts presented by both the plaintiff’s testimonies and the defendant’s answer to the claim. The burden of proof rested on the claimant or plaintiff to prove negligence on a balance of probabilities. With regard to this, in a tort of negligence, the onus is upon the claimant to prove his claim. See the case of Stephen Kanjabi Wariari Vs Dennis Mutwiri Muriuki & Another [2022] eKLR .
16. The Court has analyzed the pleadings and evidence before the trial Court, and has considered the grounds of appeal filed herein and the appellant's written submissions.
17. From the evidence on record, I am satisfied that the learned trial magistrate properly evaluated the evidence before arriving at the finding on liability against the Appellant and the 2 nd Respondent. The Appellant's being the owner in possession at the time of the accident was not disputed and was corroborated by the Police Abstract produced in evidence. The registered owner being the 2 nd Respondent was also not disputed and was supported by the Motor vehicle copy of record produced in evidence. In addition, DW1, the only witness who testified for the defence stated that he was a salesman with the Appellant. For inexplicable reasons, the Appellant did not avail the driver of the motor vehicle who would have provided evidence to demonstrate that the Appellant either was or was not the beneficial owner of the motor vehicle.
18. In that regard, the Appellants plea that they were not the beneficial owners of the motor vehicle is not sustainable. I am persuaded and guided by the determination made in Joel Muga Opija v East African Sea Food Limited [2013] eKLR, the Court noted that the defendant did not give evidence in his defence to challenge the plaintiff’s evidence about ownership of the motor vehicle in question, despite the plaintiff having alleged that it belonged to the defendant and having produced a police abstract report to that effect. The Court there held:
“It is noteworthy, it, that Bosire sat in Thuranira’s case (supra), Wandera’s case (supra) and in the Lake Flower’s case. It would appear that like us, he treated the comments in Thuranira’s case as orbiter. It is clear to us that there has been a move from the rigid position that was pronounced, albeit as orbiter, in the Thuranira case. In any case in our view an exhibit is evidence and in this case, the appellant’s evidence that the police recorded the respondent as the owner of the vehicle and Ouma’s evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter the evidence. We think, with respect, that the learned judge in failing to consider in depth the legal position in respect of what is required to prove ownership, erred on point of law in that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the registrar of motor vehicles showing who the registered owner is, but when the abstract is not challenged and is produced in court without any objection, its contents cannot be later denied (emphasis mine) .”
19. Equally in Wellington Ng’ang’a Muthiora vs Akamba Public Road Services & Another , [2010[ eKLR , this Court held:
“… where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as a proof of ownership in the absence of anything else as proof in Civil Cases was within the standards of probability and not beyond reasonable doubt as in criminal cases. However, where it is challenged by evidence or in cross-examination the plaintiff would need to produce certificate from the registrar of motor vehicles which would only be conclusive evidence in the absence of proof to the contrary.”
20. On liability, I am of the considered view that while PW1 did not witness the accident, her evidence established the occurrence of the accident and the death of the deceased. More importantly, the Appellant's witness (DW1) admitted that he was present in the motor vehicle at the time of the accident and purported to narrate how the accident occurred. However, his allegation that the deceased rider and the pillion passenger were drunk remained a mere assertion as no documentary or independent evidence was adduced to support that allegation.
21. Equally significant was the failure by the driver of the motor vehicle who was the person best placed to explain the circumstances leading to the accident did not testify before the trial court. The failure to call such a crucial witness entitled the trial court to draw an adverse inference against the Appellant and the 2 nd Respondent. In Bukenya & Others v Uganda , the East African Court of Appeal held that where a party fails to call material witnesses who are available, the court is entitled to infer that their evidence would have been adverse to that party.
22. Further, the Appellant failed to rebut the 1 st Respondents' case by credible evidence capable of displacing the finding of negligence on a balance of probabilities. Once the 1 st Respondent established that the accident involved the Appellant & 2 nd Appellant's motor vehicle and produced prima facie evidence of the occurrence of the accident and the resultant fatal injuries, the evidential burden shifted to the Appellant to offer a plausible explanation consistent with the exercise of reasonable care and the Appellant did not discharge that burden hence making them liable.
23. This position accords with the decision in Embu Public Road Services Ltd v Riimi [1968] EA 22 , where the Court held that where the circumstances of an accident give rise to an inference of negligence and the defendant fails to provide a satisfactory explanation, liability may properly be inferred.
24. Likewise, in Statpack Industries v James Mbithi Munyao, Civil Appeal No. 152 of 2003 , the Court of Appeal reiterated that the legal burden of proof remains with the plaintiff throughout, but once a prima facie case is established, the evidential burden shifts to the defendant to rebut the evidence. In the present case, the Appellant failed to discharge that evidential burden.
25. It is noteworthy that the rider of the motorcycle was not joined into the proceedings. That would have allowed the trial court to consider the possibility
26. Consequently, I find no basis upon which to interfere with the trial court's finding on liability against the Appellant and 2 nd Respondent respectively.
Quantum
27. Generally, assessment of damages is not an easy task. A court is supposed to give a reasonable award which is neither extravagant nor oppressive as it is guided by factors such as previous awards for similar injuries and the principles that have been developed by the courts over the years. What constitutes a reasonable award is really an exercise of the courts discretion and will depend on the peculiar facts of each case.
28. The trial court awarded general damages for pain and suffering at Kshs. 100,000/=, loss of expectation of life at 100,000/=, loss of dependency at a global figure of Kshs 1,000,000/= and special damages being Kshs 80,040/=. The Appellant contends that the award is inordinately high and should not be granted.
29. The general principle to be observed by an appellate court in deciding whether to disturb quantum of damages were set out in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini vs AM Lubia and Olive Lubia (1982-88) 1 KAR 727 and restated by the Court of Appeal in the case of Arrow Car Ltd Vs Elijah Shamalla Bimomo & 2 Others (2004) eKLR that: -
“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. ”
30. Moreover, in the case of Butt v Khan [1978] KECA 24 (KLR ) , the court held as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. This, with respect, is what I think happened in this case. The learned judge attached undue importance to the likelihood of epilepsy developing in the future”.
31. I take note that it is not sufficient for this court to substitute it’s the trial court’s figure merely because it might have awarded a different amount had it been the trial court. There must be a demonstrable error in principle or a manifestly erroneous assessment. In the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 :
“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.”
32. The injuries sustained by the deceased were fatal in nature. Having carefully re-evaluated the evidence on record, I will consider each of the awards.
33. In regard to the award on pain and suffering, PW1 and the post mortem report show that the deceased died on the spot. The trial court stated that the deceased died the same day. The factual evidence is that the deceased died on the spot. The court awarded Kshs. 100,000.00. Comparable authorities cited by the parties provide for a range of between Kshs. 10,000.00 to Kshs. 30,000.00. I will thus substitute the award of Kshs. 100,000.00 with Kshs. 30,000.00.
34. The trail court awarded Kshs. 100,000.00 for loss of expectation of life. The deceased was stated to be aged 44 years at the time of his tragic demise. Comparable awards fall within that range. I will thus uphold the award of Kshs. 100,000.00.
35. On the award for the loss of dependency, the trial court correctly opined that the Plaintiffs did not produce any evidence of the deceased’s earnings either from the farm or the casual jobs he was alleged to involve himself in. The court thus proceeded by using the global award method in assessing damages payable under this head. The court awarded Kshs. 1,000,000.00. The Appellant has stated that a sum of Kshs. 600,000.00 would be reasonable. He has relied, in addition to the authorities cited during the trial on Antony Njoroge Nganga (Legal Representative of the Estate of the Late Fred Nganga Njoroge aka Fred Ng’ang’a Njoroge) vs James Kinyanjui Mwangi & 2 Others (2022) eKLR, Gilbert Kimatare Nairi & Another vs Civicope Limited (2021) eKLR and Mary Khayesi Awalo & Another Mwilu Mulungi & Another (1999) eKLR . In the case of Gilbert , the deceased was aged 42 years and an award of Kshs. 600,000.00 was given in 2021. Accounting for inflation, I deem that an award of Kshs. 700,000.00 is fair and reasonable. I will thus substitute an award of Kshs. 1,000,000.00 given by the trial court with an award of Kshs. 700,000.00.
36. On Special damages, I am guided by the case of Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716 , whereby the Court of Appeal held as follows:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
37. I have re-evaluated the record and I note that Kshs. 80,040.00 was pleaded, the same was awarded by the trial court however the receipts attached in evidence amounts to Kshs. 79,190.00 receipts produced in evidence prove a total sum of Kshs. 79,190.00 and not Kshs. 80,040.00 as awarded by the trial court.
38. The award of Kshs. 80,040/= was therefore unsupported by the documentary evidence on record. Consequently, the award under the head of special damages is set aside and substituted with an award of Kshs. 79,190/=, being the amount strictly proved.
Final Disposition
39. In the result, the appeal partially succeeds only to the extent that the award of special damages is interfered with. The findings of the trial court on liability are upheld in its entirety, as are the awards under the heads of pain and suffering, loss of expectation of life, and loss of dependency.
40. Consequently, the judgment of the trial court is varied as follows:
a. Liability 100%
b. Pain and Suffering Kshs. 30,000.00
c. Loss of Expectation of Life Kshs. 100,000.00
d. Loss of Dependency Kshs. 700,000.00
e. Special Damages Kshs. 79,190.00
Total Kshs. 909,190.00
41. The 1 st Respondents shall be entitled to interest on the awards as ordered by the trial court from the date of the judgment by the trial court.
42. As the appeal has succeeded partially, I will direct that each party bear their costs of the appeal, and the costs awarded by the trial court shall remain undisturbed
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA No. E135 OF 2024 MANJI FOOD IND. LTD VS CAROLINE N. MUTUA & 2 OTHERS JDT Pg. 14