JUDGEMENT
1. This Judgement arises out of the Appeal against the decision of Hon. Victor Asiyo (PM) delivered on 26th October, 2023 in Thika MCCC No. E234 of 2022.
Background Facts
2. The Respondent had sued the Appellant seeking recovery of damages under the Fatal Accidents Act and the Law Reforms Act following a fatal accident. The Trial Court entered judgment in favour of the Respondent as follows;
(i) Liability at 100% as against the Defendant.
(ii) General Damages
a) Damages under the Law Reform Act Kshs.150,000.00
b) Damages under the Fatal Accidents Act Kshs.5,000,000.00
c) Special damages Kshs.150,160.00
Total Award Kshs.5,300,160.00
3. The Appellant being aggrieved by the Judgment filed the Memorandum of Appeal dated 14th February 2024 on the following grounds: -
a) The Trial Magistrate erred in law and in fact in awarding damages for loss of dependency at Kshs. 5,000,000/=.
b) The Trial Magistrate erred in law and in fact in adopting an excessive multiplier and in its finding of the appropriate multiplicand.
c) The Trial Magistrate erred in law and in fact his assessment of damages.
d) The Trial Magistrate erred in law and in fact in finding the Appellant fully liable for the occurrence of the accident.
e) The Trial Magistrate erred in law and in fact in finding that the Respondent had proved his case to the required standard.
f) The Trial Magistrate erred in law and in fact in finding that the Respondent had the requisite capacity to lodge the claim for and on behalf of the estate of the Deceased as a single administrator and/or personal representative when the Deceased was survived by a Minor.
4. The Appellant prayed that;
a) The Judgment of the Court dated 26th October, 2023, be reviewed, vacated and/or set aside.
b) The Court to set aside and/or review the award for loss of dependency.
c) The Court to dismiss the claim for want of proof.
Issues for determination
5. The Appeal was disposed of by way of written submissions, which the Court has carefully considered, as well as the Record of Appeal. The Court frames the following issues for determination;
a) Whether the Trial Court erred in finding the Appellant fully liable for the occurrence of the accident.
b) Whether the Trial Court erred in assessment of damages.
Analysis
6. The duty of an Appellate Court was set out in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
a) Whether the Trial Court erred in finding the Appellant fully liable for the occurrence of the accident.
7. On this issue, it was the Appellant’s argument that the Respondent failed to adduce sufficient evidence to prove negligence on the part of the Appellant. According to the Appellant, the police abstract was inconclusive as to who was to blame for the occurrence of the accident. It listed the matter as pending investigation.
8. The Respondent in response submitted that it is not enough to plead particulars of contributory negligence but evidence must be tendered to support those allegations. This is because the burden of proof shifts to the one who alleges. The Court’s finding on 100% liability as against the Appellant was based on principles and evidence and it should not be disturbed.
9. It is not in dispute that the deceased was a pillion passenger. Authorities have held time and again that there is nothing a pillion passenger could do to prevent an accident from occurring since s/he does not have control over the motor cycle. This Court agrees as much. This Court pronounced itself on this issue in the case of David Kiprotich Bor v Kassim Maranga & another, Civil Appeal No. 94 of 2011 [2017] eKLR.
“In my view, the learned trial magistrate fell into error when she apportioned 40% liability on the motor cycle rider and the respondent for the following reasons;
To start with, the motor cycle rider was not a party to the suit as he had not been sued by the respondent nor had he been enjoined to the proceedings as a 3rd party by the appellants. In their evidence, DW1 and DW2 appeared to fault the motor cycle rider for the accident saying that he turned right suddenly without notice when the motor vehicle was just about to overtake him thus causing the collision. If this was the appellant’s position, then they ought to have joined the rider as a 3rd party under Order 1 Rule 15 of the Civil procedure Rules 2010 so that the issue of who between the 1st appellant , the rider and the respondent was to blame for the accident could be determined by the trial court. They did not do so and the learned trial magistrate erred in not appreciating this fact and in proceeding to apportion liability on the rider who was not a party to the suit.
17. Secondly, as a pillion passenger, the respondent was not in control of the motor cycle and there was nothing he could have done either to cause or to avoid the accident. In the circumstances, it was a misdirection on the trial court’s part to blame him in any way for the occurrence of the accident.”
10. The Court notes that PW1 testified that the motor vehicle KBT 914Y and motorcycle KMFD 053 PC were involved in an accident. The motor vehicle was coming from Garissa General direction while the motorcycle was coming from the opposite direction. He further testified that the rider and the pillion passenger died and the motor vehicle was towed to the police station. Noticeably, he pointed out that the occurrence book indicated that the matter is still pending under investigation.
11. The Court confirms that based on the copy of the abstract produced by the Respondent at the Trial Court, it is indeed indicated that the matter was pending under investigation and no one had been charged, and no charges had been preferred.
12. The above notwithstanding, it is trite law that the purpose of a police abstract is to support the fact that an accident was reported. The making of a report is not necessarily proof of occurrence of an accident. Therefore, a police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was reported at a particular police station. This principle was enunciated in Techard Steam & Power Limited vs Mutio Muli & Mutua Ngao [2019] eKLR where the Court held as follows: -
“However, proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. Negligence can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigations officer is not necessarily fatal in accident claims.”
13. Although the witness was not listed in the abstract as a witness, PW3 was allowed to testify on the occurrence of the accident. He testified that the driver was to blame for the accident.PW3 testified that he was an eyewitness driving behind the motorcycle when motor vehicle KBT 914Y emerged from behind another vehicle as it overtook it. The motorcycle attempted to avoid a collision by swerving but due to the short distance, they collided.
14. With regard to this witness, the court shares in the opinion of the Trial Court that PW3’S testimony was an afterthought. It was doubtful as to whether he witnessed the accident. The Court has no intention of interfering with this finding by the Trial Court.
15. The Deceased was a pillion passenger. She had no direct control over the motorcycle. The Motor Cycle rider may or may have not been liable in contributory negligence. However, the Appellant never took out Third Pary proceedings against the rider or the owner of the motor cycle. Without such proceedings the Court is unable to attach any liability against a party who is not a party to these proceedings. The Court follows the decision in David Kiprotich Bor v Kassim Maranga & another [2017] KEHC 5906 (KLR).
16. On this issue, the Court does not interfere with the finding on liability.
17. As to whether the Respondent as a single Administrator of the Estate had capacity to institute this suit, the Court’s answer is in the affirmative.
18. The Appellant has not made any submissions in support of this ground of Appeal. The Respondent maintains that the Respondent was properly empowered to bring this suit.
19. The Court follows the decision in In re Estate of Evalyne Nyawira Njiiri (Deceased) [2025] KEHC 3601 (KLR). The holder of a Limited Grant Ad Litem is empowered to file proceedings in Court, unless that grant is withdrawn or becomes inoperative.
b) Whether the Trial Court erred in awarding damages.
20. 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. For the appellate Court to interfere, it must be shown that the trial Court proceeded on wrong principles, or that it misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.
21. In Kemfro Africa Limited t/a 'Meru Express Services [1976]''& Another V. Lubia & Another (No. 2) [1987] KLR, the Court of Appeal held that:
''…. The principles to be observed by the appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held to be that; it must be satisfied that either that 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.''
22. On this issue, it was the Appellant’s submission that the life expectancy in Kenya is now at 40 years, considering the dwindling life expectancy and the deteriorating economic times. Hence, a multiplier of 10 years is just, fair and reasonable.
23. On the multiplier, the deceased was aged 31 years old. The retirement age in Kenya is at 60 years. The deceased had around 29 years of active working life. The Trial Court settled for a multiplier of 25 years. This Court finds it as quite reasonable considering the vicissitudes of life.
24. In addition, with regard to the dependency ratio, the Appellant submitted that dependency is a matter to be proved by evidence and the Respondent has not been able to prove that the Deceased was the sole breadwinner and that she provided for her father entirely. Therefore, the ratio of 1/3 is adequate and fair, as the Deceased only supported her daughter.
25. The Respondent submitted that there was proof from the chief’s letter that the deceased had a son and her elderly father as the dependants. The dependency of 2/3 was justified and should not be reduced.
26. The deceased left behind elderly parents whom she must have supported in some way. It is undisputed that the deceased was survived by her son. The ratio of 2/3 is therefore appropriate. Considering the advanced age of the father and the young age of the deceased’s son, the ratio adopted is applicable.
27. The Court finds that the damages awarded were appropriate and will therefore not interfere with the damages awarded thereof.
28. In the end, the Appeal fails as it is lacking in merits.
29. As to costs the same are awarded at the discretion of this Court.
30. The Appellant will pay the successful Respondent the cost sof this Appeal.
Determination
31. The Appeal is dismissed in its entirety for lacking in merits.
32. The costs of the Appeal are awarded to the Respondent.
33. It is so ordered.
SIGNED, DATED AND DELIVERED AT THIKA THIS 31ST DAY OF JULY, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Gacheri for the Appellant
N/A for the Respondent
Mr. Amos-Court Assistant
1. This Judgement arises out of the Appeal against the decision of Hon. Victor Asiyo (PM) delivered on 26th October, 2023 in Thika MCCC No. E234 of 2022.
Background Facts
2. The Respondent had sued the Appellant seeking recovery of damages under the Fatal Accidents Act and the Law Reforms Act following a fatal accident. The Trial Court entered judgment in favour of the Respondent as follows;
(i) Liability at 100% as against the Defendant.
(ii) General Damages
a) Damages under the Law Reform Act Kshs.150,000.00
b) Damages under the Fatal Accidents Act Kshs.5,000,000.00
c) Special damages Kshs.150,160.00
Total Award Kshs.5,300,160.00
3. The Appellant being aggrieved by the Judgment filed the Memorandum of Appeal dated 14th February 2024 on the following grounds: -
a) The Trial Magistrate erred in law and in fact in awarding damages for loss of dependency at Kshs. 5,000,000/=.
b) The Trial Magistrate erred in law and in fact in adopting an excessive multiplier and in its finding of the appropriate multiplicand.
c) The Trial Magistrate erred in law and in fact his assessment of damages.
d) The Trial Magistrate erred in law and in fact in finding the Appellant fully liable for the occurrence of the accident.
e) The Trial Magistrate erred in law and in fact in finding that the Respondent had proved his case to the required standard.
f) The Trial Magistrate erred in law and in fact in finding that the Respondent had the requisite capacity to lodge the claim for and on behalf of the estate of the Deceased as a single administrator and/or personal representative when the Deceased was survived by a Minor.
4. The Appellant prayed that;
a) The Judgment of the Court dated 26th October, 2023, be reviewed, vacated and/or set aside.
b) The Court to set aside and/or review the award for loss of dependency.
c) The Court to dismiss the claim for want of proof.
Issues for determination
5. The Appeal was disposed of by way of written submissions, which the Court has carefully considered, as well as the Record of Appeal. The Court frames the following issues for determination;
a) Whether the Trial Court erred in finding the Appellant fully liable for the occurrence of the accident.
b) Whether the Trial Court erred in assessment of damages.
Analysis
6. The duty of an Appellate Court was set out in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
a) Whether the Trial Court erred in finding the Appellant fully liable for the occurrence of the accident.
7. On this issue, it was the Appellant’s argument that the Respondent failed to adduce sufficient evidence to prove negligence on the part of the Appellant. According to the Appellant, the police abstract was inconclusive as to who was to blame for the occurrence of the accident. It listed the matter as pending investigation.
8. The Respondent in response submitted that it is not enough to plead particulars of contributory negligence but evidence must be tendered to support those allegations. This is because the burden of proof shifts to the one who alleges. The Court’s finding on 100% liability as against the Appellant was based on principles and evidence and it should not be disturbed.
9. It is not in dispute that the deceased was a pillion passenger. Authorities have held time and again that there is nothing a pillion passenger could do to prevent an accident from occurring since s/he does not have control over the motor cycle. This Court agrees as much. This Court pronounced itself on this issue in the case of David Kiprotich Bor v Kassim Maranga & another, Civil Appeal No. 94 of 2011 [2017] eKLR.
“In my view, the learned trial magistrate fell into error when she apportioned 40% liability on the motor cycle rider and the respondent for the following reasons;
To start with, the motor cycle rider was not a party to the suit as he had not been sued by the respondent nor had he been enjoined to the proceedings as a 3rd party by the appellants. In their evidence, DW1 and DW2 appeared to fault the motor cycle rider for the accident saying that he turned right suddenly without notice when the motor vehicle was just about to overtake him thus causing the collision. If this was the appellant’s position, then they ought to have joined the rider as a 3rd party under Order 1 Rule 15 of the Civil procedure Rules 2010 so that the issue of who between the 1st appellant , the rider and the respondent was to blame for the accident could be determined by the trial court. They did not do so and the learned trial magistrate erred in not appreciating this fact and in proceeding to apportion liability on the rider who was not a party to the suit.
17. Secondly, as a pillion passenger, the respondent was not in control of the motor cycle and there was nothing he could have done either to cause or to avoid the accident. In the circumstances, it was a misdirection on the trial court’s part to blame him in any way for the occurrence of the accident.”
10. The Court notes that PW1 testified that the motor vehicle KBT 914Y and motorcycle KMFD 053 PC were involved in an accident. The motor vehicle was coming from Garissa General direction while the motorcycle was coming from the opposite direction. He further testified that the rider and the pillion passenger died and the motor vehicle was towed to the police station. Noticeably, he pointed out that the occurrence book indicated that the matter is still pending under investigation.
11. The Court confirms that based on the copy of the abstract produced by the Respondent at the Trial Court, it is indeed indicated that the matter was pending under investigation and no one had been charged, and no charges had been preferred.
12. The above notwithstanding, it is trite law that the purpose of a police abstract is to support the fact that an accident was reported. The making of a report is not necessarily proof of occurrence of an accident. Therefore, a police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was reported at a particular police station. This principle was enunciated in Techard Steam & Power Limited vs Mutio Muli & Mutua Ngao [2019] eKLR where the Court held as follows: -
“However, proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. Negligence can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigations officer is not necessarily fatal in accident claims.”
13. Although the witness was not listed in the abstract as a witness, PW3 was allowed to testify on the occurrence of the accident. He testified that the driver was to blame for the accident.PW3 testified that he was an eyewitness driving behind the motorcycle when motor vehicle KBT 914Y emerged from behind another vehicle as it overtook it. The motorcycle attempted to avoid a collision by swerving but due to the short distance, they collided.
14. With regard to this witness, the court shares in the opinion of the Trial Court that PW3’S testimony was an afterthought. It was doubtful as to whether he witnessed the accident. The Court has no intention of interfering with this finding by the Trial Court.
15. The Deceased was a pillion passenger. She had no direct control over the motorcycle. The Motor Cycle rider may or may have not been liable in contributory negligence. However, the Appellant never took out Third Pary proceedings against the rider or the owner of the motor cycle. Without such proceedings the Court is unable to attach any liability against a party who is not a party to these proceedings. The Court follows the decision in David Kiprotich Bor v Kassim Maranga & another [2017] KEHC 5906 (KLR).
16. On this issue, the Court does not interfere with the finding on liability.
17. As to whether the Respondent as a single Administrator of the Estate had capacity to institute this suit, the Court’s answer is in the affirmative.
18. The Appellant has not made any submissions in support of this ground of Appeal. The Respondent maintains that the Respondent was properly empowered to bring this suit.
19. The Court follows the decision in In re Estate of Evalyne Nyawira Njiiri (Deceased) [2025] KEHC 3601 (KLR). The holder of a Limited Grant Ad Litem is empowered to file proceedings in Court, unless that grant is withdrawn or becomes inoperative.
b) Whether the Trial Court erred in awarding damages.
20. 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. For the appellate Court to interfere, it must be shown that the trial Court proceeded on wrong principles, or that it misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.
21. In Kemfro Africa Limited t/a 'Meru Express Services [1976]''& Another V. Lubia & Another (No. 2) [1987] KLR, the Court of Appeal held that:
''…. The principles to be observed by the appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held to be that; it must be satisfied that either that 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.''
22. On this issue, it was the Appellant’s submission that the life expectancy in Kenya is now at 40 years, considering the dwindling life expectancy and the deteriorating economic times. Hence, a multiplier of 10 years is just, fair and reasonable.
23. On the multiplier, the deceased was aged 31 years old. The retirement age in Kenya is at 60 years. The deceased had around 29 years of active working life. The Trial Court settled for a multiplier of 25 years. This Court finds it as quite reasonable considering the vicissitudes of life.
24. In addition, with regard to the dependency ratio, the Appellant submitted that dependency is a matter to be proved by evidence and the Respondent has not been able to prove that the Deceased was the sole breadwinner and that she provided for her father entirely. Therefore, the ratio of 1/3 is adequate and fair, as the Deceased only supported her daughter.
25. The Respondent submitted that there was proof from the chief’s letter that the deceased had a son and her elderly father as the dependants. The dependency of 2/3 was justified and should not be reduced.
26. The deceased left behind elderly parents whom she must have supported in some way. It is undisputed that the deceased was survived by her son. The ratio of 2/3 is therefore appropriate. Considering the advanced age of the father and the young age of the deceased’s son, the ratio adopted is applicable.
27. The Court finds that the damages awarded were appropriate and will therefore not interfere with the damages awarded thereof.
28. In the end, the Appeal fails as it is lacking in merits.
29. As to costs the same are awarded at the discretion of this Court.
30. The Appellant will pay the successful Respondent the cost sof this Appeal.
Determination
31. The Appeal is dismissed in its entirety for lacking in merits.
32. The costs of the Appeal are awarded to the Respondent.
33. It is so ordered.
SIGNED, DATED AND DELIVERED AT THIKA THIS 31ST DAY OF JULY, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Gacheri for the Appellant
N/A for the Respondent
Mr. Amos-Court Assistant