[1] This is an appeal from the Judgment delivered on 28 th September 2023 by Hon. C. Okore , Principal Magistrate, in Oyugis C MCC No. 185 of 2019: Bridget Wanyama (suing as the legal representative of the estate of Bonface Otieno Obonyo, Deceased and others v Mini Bakeries (NBI) Limited. The respondent had sued the appellant alongside Wahab Trading Limited, Patrick Otieno Owuor and Phentus Ragla Oketch for general and special damages in respect of the death of Bonface Otieno Obonyo , the deceased, in a road traffic accident that occurred on 10 th July 2019.
[2] The respondent had contended that the deceased was travelling in Motor Vehicle Registration No. KCV 085D as a lawful fare paying passenger when the motor vehicle KBW 187Z was so negligently driven and managed that it lost control and collided with motor Vehicle Registration No. KCV 085D, thereby occasioning the deceased fatal injuries. The respondent set out the particulars of negligence as well as particulars under the Fatal Accidents Act and the Law Reform Act at paragraphs 10 and 11 of the Plaint. In addition, the respondent furnished the defendants with particulars of special damages at paragraph 12 of the Plaint.
[3] The appellant and its co-defendants denied the respondent’s allegations. In particular, the appellant challenged the respondent’s locus standi to file the lower court suit. It also denied that it was the registered owner of Motor Vehicle Registration No. KBW 187Z and put the respondent to strict proof thereof. The appellant further denied that the accident arose due to the negligence of its driver. In the alternative, the appellant averred that if an accident occurred then the same was due to the sole and/or contributory negligence of the deceased and the driver of Motor Vehicle Registration No. KCV 085D, Toyota Van. It supplied the particulars thereof at paragraph 18 of the Plaint.
[4] At paragraph 19 of its Defence, the appellant averred that, if the accident occurred, then the same was outside its scope and control, notwithstanding the exercise of all reasonable care, diligence and skill. Accordingly, the appellant prayed for the dismissal of the suit before the lower court.
[5] Upon hearing the parties, the learned magistrate rendered her judgment on the 28 th September 2023 in which she found the four defendants jointly and severally liable to the respondent fully for the loss suffered by the estate of the deceased. She assessed the damages payable at Kshs. 6,251,000/= and entered judgment in that sum together with interest and costs.
[6] Being aggrieved by that decision, the appellant filed the instant appeal on 31 st October 2023 on the following grounds:
[a] That the learned magistrate grossly misdirected herself in treating the evidence and submissions on liability before her superficially and consequently coming to a wrong conclusion on the same.
[b] That the learned magistrate did not in the alternative consider or sufficiently consider the demand for contributory negligence based on the evidence adduced and the submissions filed by the appellant.
[c] That the learned magistrate grossly misdirected herself in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.
[d] That the learned magistrate misdirected herself in ignoring the principles applicable and relevant authorities cited in the written submissions presented and filed by the appellant.
[e] That the learned magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellant.
[f] That the learned magistrate erred in failing to hold that the respondent has failed to prove negligence on the part of the appellant while the onus of proof lay with the respondent.
[g] That the learned magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent and failed to apply the applicable precedents and tenets of law.
[h] That the learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.
[i] That the learned magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.
[7] Therefore, the appellant prayed that his appeal be allowed with costs and that the judgment of the lower court be set aside.
[8] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 2 nd February 2026. Hence, the appellant filed written submissions dated 2 nd March 2026 and reiterated the written submissions filed by it before the lower court. The appellant proposed the following three issues for determination:
[a] Whether the lower court’s finding on liability was properly arrived at;
[b] Whether the award of general damages was excessive; and,
[c] Whether the special damages awarded to the respondent was strictly proved as required by law.
[9] On liability, the appellant made reference to Sections 107, 108 and 109 of the Evidence Act for the proposition that he who alleges must prove. In the appellant’s submission, the respondent adduced no evidence at all to prove negligence on the part of its driver. It relied on Dharmagma Patel & another v T A (Minor) suing through his mother and next friend H H [2014] eKLR and urged the Court to find that, in the circumstances, there was no basis for the finding made against it by the lower court on liability. It relied on the evidence of the investigating officer before the lower court that the 4 th respondent, the driver of Motor Vehicle Registration No. KCV 085D, was charged for causing the accident.
[10] In the appellant’s submission, the learned magistrate did not analyze the uncontested legal arguments presented by it in its written submissions. It reiterated those submissions and relied on Mohamed Muyunga v Vinoth Abwolet Eshepet [2020] eKLR to support its contention that, if anything, liability for the accident lay on the driver of Motor Vehicle Registration No. KCV 085D. It urged the Court to find that the trial court erred by apportioning liability without basis even when the evidence pointed directly at the negligence of the 4 th respondent.
[11] On quantum, it was the submission of the appellant that damages must be within the limits set out by decided cases and also within limits the Kenyan economy can afford. It relied on Osman Mohammed & another v Saluro Bundit Mohammed , Civil Appeal No. 30 of 1997 to support its submissions. Further to the foregoing, the appellant faulted the lower court for adopting the global approach without justification yet in this particular case, the age of the deceased, the amount of his monthly income and the expected length of dependency were proved. The appellant posited that, using the multiplier approach would have yielded no more than Kshs. 923,459.88 so that the total award would have come to Kshs. 1,033,439.88 which ought to be borne equally between the two parties involved as owners and drivers of Motor Vehicles Registration No. KCV 085D and KBW 187Z.
[12] On special damages, the appellant submitted that although the respondent asked for Kshs. 1,322,390/=, only Kshs. 338,295/= was specifically proved; and therefore the award by the lower court under the head of special damages was unwarranted. It relied on Swalleh C. Kariuki & another v Violet Owiso Okuyu [2021] eKLR and Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR. Hence, the appellant prayed for its appeal to be allowed with costs and the judgment of the lower court set aside.
[13] The respondent relied on her written submissions dated 7 th May 2026. She proposed the following issues for determination:
[a] Whether the trial court erred in its finding on liability.
[b] Whether the award the on quantum was excessive or based on wrong principles?
[c] Whether special damages were specifically pleaded and strictly proved?
[d] Whether the Court should interfere with the findings of the trial court?
[14] On the respondent defended the decision of the lower court on liability and made reference to the evidence presented before the lower court by her and her witnesses. In particular, the respondent referred the Court to the testimony of Jacline Nakanu Namgaya (PW2), an independent eye witness who had boarded the matatu together with the deceased and other passengers. On the basis of PW2’s evidence, the respondent urged the Court to find that both drivers were to blame and therefore that the lower court arrived at the correct decision. The respondent relied on Lakhashi v Attorney General (1971) EA 118 in support of her argument. The respondent added that neither the appellant nor its co-defendants adduced any evidence in proof of their allegations of contributory negligence on the part of the deceased.
[15] On whether the lower court’s award of general damages was excessive, the respondent referred the Court to the case of Butt v Khan Civil Appeal No. 40 of 1997 and Kemfro Africa Limited t/a "Meru Express Services [1976] & another v Lubia & another KECA 137 (KLR) for the applicable principles. She urged the Court to find that the appellant had failed to demonstrate any misdirection on the part of the lower court warranting interference by this Court. She posited that the learned magistrate exercised her discretion judiciously in adopting the global sum approach. She relied on the decision by Hon. Ringera, J. (as he then was) in Mwanzia v Ngalali Mutua & Kenya Bus Service (Msa) Ltd & another as quoted in Albert Odawa v Gichimu Gichenji [2007] KEHC 1358 (KLR) for the proposition that the multiplier approach is just a method of assessing damages should be abandoned where the facts do not facilitate its application.
[16] Further to the foregoing, the respondent submitted that the appellant's proposal of only 7 years’ dependency was not only speculative and unreasonable but was entirely unsupported by evidence on record. She cited various precedents in which the victims were over 60 years old to discount the assertion by the appellant that life expectancy in Kenya is 50 years. She urged the Court to also take into account the inflationary trends and find that the lower court’s award is reasonable in the circumstances.
[17] On special damages, the respondent pointed out that the lower court found as a fact that special damages were strictly proved through production of receipts and by calling the makers of the documents to testify before court. She contended that she fully discharged the burden of proof in that regard and urged the Court to dismiss the appellant’s proposed figure of Kshs. 169,147.50 as arbitrary. Thus, the respondent prayed that the appeal be dismissed with costs and the decision of the lower court upheld on both liability and quantum.
[18] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[19] The respondent testified before the lower court on 19 th August 2021 and stated that the deceased was her husband; and that he died on 10 th July 2019 from injuries sustained in a road traffic accident. She further stated that she was called by a police officer who was at the scene of the accident, and that on arrival at the scene she found two motor vehicles, a matatu Registration No. KCV 085D and a bread delivery lorry Registration No. KBW 187Z. She was informed that the deceased died as he was being taken to hospital and the body was taken to Gendia Hospital Mortuary. PW1 produced several documents to support her claim for general and special damages.
[20] Jackline Nakanu Namgaya (PW2) also testified before the lower court and stated that she was travelling in matatu Registration No. KCV 085D and that the said motor vehicle was involved in a road traffic accident at about 5.00 a.m. on the 10 th July 2019. She explained that the matatu was being driven at a moderate speed on the left side lane facing Kisumu Direction; and that a lorry came from the opposite direction, veered off its lane and hit the matatu head on. She stated that one of the passengers died in that accident.
[21] Peter Namasake (PW3) stated that he is a contractor basically engaged in road and water works under the name Revive Construction Co. Ltd. He testified that he was engaged by PW1 to construct a grave, which he did for Kshs. 80,500/=. He undertook the works and was duly paid. He also produced a receipt he issued for the payment and confirmed that, on the instructions of PW1, he bought a plaque with a name tag of the deceased for Kshs. 13,500/= which he placed on the grave. He produced the relevant documents as exhibits before the lower court.
[22] Lilian Liseje (PW4) the Bursar of Kadika Girls Secondary School, also testified before the lower court and confirmed that their school bus was hired by PW1 for which they charged her Kshs. 62,000/=. She produced the receipt issued to her as the Plaintiff’s Exhibit 13 before the lower court.
[23] The respondent also called Janet Amenya Oyucho (PW5). She likewise produced the receipt for hire of a bus to transport mourners to Nyadorera.
[24] Rose Mbericha Nujoma (PW6) testified that she is a business woman, engaged the supply of chairs, tents, public address system and transport under the name Mwanzo Investment Company. She added that PW1 hired 10 tents, 1,000 chairs and public address system from her for which she charged Kshs. 55,000/=. She produced the receipt she issued for the transaction as the Plaintiff’s Exhibit 15.
[25] The evidence of PC Kiplangat Cheboi (PW7) was that an accident occurred on 10 th July 2019 involving two motor vehicles namely, Motor Vehicle Registration No. KBW 197Z Mitsubishi Canter and Motor Vehicle Registration No. KCV 085D, Toyota Hiace matatu . He mentioned that the driver of Motor Vehicle KCV 085D was charged with causing death by dangerous driving and that one of the victims was Boniface Otieno , the deceased herein. As at the time he testified, PW7 could not ascertain whether or not the driver had been convicted or the offence or not. He produced the Police Abstract as the Plaintiff’s Exhibit 3.
[26] The respondent’s last witness was Racheal Felister Otieno (PW8). She testified that she offered catering services to PW1 at the funeral of her husband Boniface Otieno , and was paid Kshs. 817,350/=. She explained that she was trading under the name Good Shepherd Catering Services. She identified and produced the receipt issued in respect of the transaction as the Plaintiff’s Exhibit 17.
[27] On behalf of the appellant its driver Kennedy Ochieng Nyaidho testified as DW1. He adopted his witness statement dated 14 th July 2021 and stated that, on the 10 th July 2021, he was driving Motor Vehicle KDW along the Kisumu Kendu Bay Road; and that on reaching Rakwaro area, he saw an oncoming vehicle. He further stated that the oncoming motor vehicle veered off its lane and swerved to his lane and that it took a swerving action that caused the matatu to lose control and roll into a ditch. DW1 pointed out that he was not charged with any traffic offence; and that instead he testified as a witness in the traffic case against the driver of Motor Vehicle KCB 085D in which the said driver was found guilty, convicted and fined Kshs. 100,000/=.
[28] DW2 was Fredrick Omondi Oluoch , the appellant’s turn boy. He testified that he was assisting DW1 on the date in question and that they were distributing bread along the route between Kisumu and Kendu Bay. He further stated that he saw the matatu veer off its lane and that DW1 flashed his full lights to alert the matatu driver of the danger; but the matatu proceeded to hit the right side of their lorry before losing control and rolled off the road.
[29] On the basis of the foregoing evidence the learned magistrate found both drivers liable in that while the matatu driver was to blame for veering off his lane, DW1 was at fault for turning on the lorry’s full lights and thereby blinding the matatu driver into losing control. She accordingly held the defendants 100% liable to the respondent for the death of her husband.
[30] I have given careful consideration to the appellant’s grounds of appeal, the Record of Appeal filed herein and the written submissions filed by learned counsel. It is manifest from the evidence that the question of locus standi was wrongly taken. The respondent testified, and her evidence was not rebutted at all in this regard, that she is the widow of the deceased. She produced a Grant of Letters of Administration Ad Litem dated 17 th October 2019 obtained by her for the specific purpose of filing the subject suit. I therefore find no merit in the appellant’s objection on the ground of locus standi . In the premises, the issues for re-evaluation in this appeal are:
[a] Whether the learned magistrate erred in her finding on liability
[b] Whether the learned magistrate erred in her assessment of damages.
[31] From the standpoint of Section 107(1) of the Evidence Act, the legal burden of proof was on the respondent as the plaintiff before the lower court. That provision is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[32] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[33] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[34] Consequently, having alleged negligence at paragraph 10 of her Plaint, it was for the respondent to prove those allegations on a balance of probabilities. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[35] In this instance, the evidence adduced by the respondent as against the 1 st , 2 nd and 3 rd defendants before the lower court was entirely uncontroverted. As against the appellant, the evidence was clear that there two motor vehicles collided and the learned magistrate took into consideration the evidence of DW1 and DW2 that shortly before the collision, DW1 turned on the full lights of Motor Vehicle KBW 187Z. In the learned magistrate’s view, this act had the effect of blinding the driver of Motor Vehicle KCV 085D and therefore contributed to the causation of the accident.
[36] Although the appellant submitted that since the driver of KCV 085D was charged with the offence of causing death by dangerous driving, the learned magistrate erred in attributing fault to its driver. First and foremost, the evidence of PW7 was entirely premised on the Police Abstract marked the Plaintiff’s Exhibit 7. He conceded that he did not ascertain whether or not the 2 nd defendant had been convicted as a matter of fact. The evidence of conviction was given by DW1, but no document was presented in proof thereof. Even assuming that indeed the 2 nd defendant was found guilty and convicted of a traffic offence in connection with the subject accident that conviction of itself could not be the basis for absolving the appellant from liability.
[37] In Robinson v Oluoch [1971] EA 376, it was held that:
“Careless driving necessarily connotes some degree of negligence and in those circumstances it may not be open to the respondent to deny that his driving, in relation to the accident, was negligent, but that is a very different matter from saying that a conviction for an offence involving negligent driving is conclusive evidence that the convicted person was the only person whose negligence caused the accident, and that he is precluded from alleging contributory negligence on the part of another person in the subsequent civil proceedings. That is not what section 47A states. It is quite proper for a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident.”
[38] Indeed, in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR the Court of Appeal acknowledged this by quoting the following passage from the case of Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681,
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
[39] I therefore find no basis for faulting the decision of the lower court on liability.
[40] On quantum, the contest appears to be on whether the learned magistrate erred by applying the global sum approach yet there was proof of the age of the deceased, the amount of his monthly income and the expected length of dependency were proved. The appellant posited that in the circumstances hereof the multiplier approach was more appropriate; and urged the Court to adopt that method.
[41] The evidence adduced before the lower court by the respondent was that the deceased was aged 43 years at the time of his demise; and that he was working with the Ministry of Public Service, Youth and Gender Affairs as a Senior Youth Development Officer earning a gross monthly pay of Kshs. 69,810/= with a net of Kshs. 32,980/=. That evidence was not rebutted by the defendants. Evidence was also presented by the respondent in proof of the particulars supplied in the Plaint for purposes of the Law Reform Act and the Fatal Accidents Act. In the premises, the multiplier approach was a more accurate option that a global sum award. It is therefore my finding that the learned magistrate erred and misdirected herself by stating that:
“It is hard to use the multiplicand method to make this award since the court will be operating on speculations, suppositions and guess work.”
[42] Therefore, on loss of dependency, the approach that the lower court ought to have taken is that which was taken in Chunibhai J. Patel and Another vs. P.F. Hayes and Others [1957] EA 748, by the Court of Appeal for East Africa, namely:
"The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase."
[43] The deceased’s pay slip for June 2019 was produced as the Plaintiff’s Exhibit 11 before the lower court. It confirms that the deceased’s gross monthly income at the time was Kshs. 69,810/=. Although he ended up with a net salary of Kshs. 32,980/= that is the net sum of various deductions including savings and credit savings and loan recoveries. The only amount that ought to be deducted from the gross salary is the Pay as You Earn tax in the sum of 13,599.30 to ascertain the multiplicand. As a Senior Youth Development Offficer, the deceased would have retired at the age of 60 years. He supported his wife and four children and would therefore spend one-third of his income on the family. Accordingly, the damages due for loss of dependency ought to have been calculated as follows:
Kshs. 56,210 x12 x 17 x 1/3 - Kshs. 3,822,280/=
[44] The estate was also entitled to awards under pain and suffering and loss of expectation of life. In Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR it was held that:
“...The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”
[45] In this instance, PW1 testified that the deceased died at the scene as he was being put in a motor vehicle that was to transport him to the hospital; and therefore an award of Kshs. 20,000/= would suffice in those circumstances, noting that the pain was not prolonged before his demise.
[46] The appellant also disputed the sum of Kshs. 1,322,390/= awarded by the lower court under the head of special damages. According to the appellant, only Kshs. 338,295/= was proved. Indeed, in Hahn v Singh [1985] KLR, it was held that:
“ “Special damages must not only be specifically claimed but also strictly proved…The degree of certainty and the particularity of proof required depends on the circumstances and the nature of the acts themselves…”
[47] Accordingly, the appellant submitted that although the respondent asked for Kshs. 1,322,390/=, only Kshs. 338,295/= was specifically proved; and therefore the award by the lower court under the head of special damages was unwarranted. It relied on Swalleh C. Kariuki & another v Violet Owiso Okuyu [2021] eKLR and Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR and contended that the claim by the respondent was extortionist.
[48] A re-evaluation of the evidence presented before the lower court shows that the respondent produced credible evidence to support the expenses claimed by way of special damages. It also called several service providers in proof of her claims under the head of special damages. When it comes to funeral expenses, it is now trite that the bereaved are not expected to keep receipts for every expense incurred.
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[2] The respondent had contended that the deceased was travelling in Motor Vehicle Registration No. KCV 085D as a lawful fare paying passenger when the motor vehicle KBW 187Z was so negligently driven and managed that it lost control and collided with motor Vehicle Registration No. KCV 085D, thereby occasioning the deceased fatal injuries. The respondent set out the particulars of negligence as well as particulars under the Fatal Accidents Act and the Law Reform Act at paragraphs 10 and 11 of the Plaint. In addition, the respondent furnished the defendants with particulars of special damages at paragraph 12 of the Plaint.
[3] The appellant and its co-defendants denied the respondent’s allegations. In particular, the appellant challenged the respondent’s locus standi to file the lower court suit. It also denied that it was the registered owner of Motor Vehicle Registration No. KBW 187Z and put the respondent to strict proof thereof. The appellant further denied that the accident arose due to the negligence of its driver. In the alternative, the appellant averred that if an accident occurred then the same was due to the sole and/or contributory negligence of the deceased and the driver of Motor Vehicle Registration No. KCV 085D, Toyota Van. It supplied the particulars thereof at paragraph 18 of the Plaint.
[4] At paragraph 19 of its Defence, the appellant averred that, if the accident occurred, then the same was outside its scope and control, notwithstanding the exercise of all reasonable care, diligence and skill. Accordingly, the appellant prayed for the dismissal of the suit before the lower court.
[5] Upon hearing the parties, the learned magistrate rendered her judgment on the 28 th September 2023 in which she found the four defendants jointly and severally liable to the respondent fully for the loss suffered by the estate of the deceased. She assessed the damages payable at Kshs. 6,251,000/= and entered judgment in that sum together with interest and costs.
[6] Being aggrieved by that decision, the appellant filed the instant appeal on 31 st October 2023 on the following grounds:
[a] That the learned magistrate grossly misdirected herself in treating the evidence and submissions on liability before her superficially and consequently coming to a wrong conclusion on the same.
[b] That the learned magistrate did not in the alternative consider or sufficiently consider the demand for contributory negligence based on the evidence adduced and the submissions filed by the appellant.
[c] That the learned magistrate grossly misdirected herself in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.
[d] That the learned magistrate misdirected herself in ignoring the principles applicable and relevant authorities cited in the written submissions presented and filed by the appellant.
[e] That the learned magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellant.
[f] That the learned magistrate erred in failing to hold that the respondent has failed to prove negligence on the part of the appellant while the onus of proof lay with the respondent.
[g] That the learned magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent and failed to apply the applicable precedents and tenets of law.
[h] That the learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.
[i] That the learned magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.
[7] Therefore, the appellant prayed that his appeal be allowed with costs and that the judgment of the lower court be set aside.
[8] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 2 nd February 2026. Hence, the appellant filed written submissions dated 2 nd March 2026 and reiterated the written submissions filed by it before the lower court. The appellant proposed the following three issues for determination:
[a] Whether the lower court’s finding on liability was properly arrived at;
[b] Whether the award of general damages was excessive; and,
[c] Whether the special damages awarded to the respondent was strictly proved as required by law.
[9] On liability, the appellant made reference to Sections 107, 108 and 109 of the Evidence Act for the proposition that he who alleges must prove. In the appellant’s submission, the respondent adduced no evidence at all to prove negligence on the part of its driver. It relied on Dharmagma Patel & another v T A (Minor) suing through his mother and next friend H H [2014] eKLR and urged the Court to find that, in the circumstances, there was no basis for the finding made against it by the lower court on liability. It relied on the evidence of the investigating officer before the lower court that the 4 th respondent, the driver of Motor Vehicle Registration No. KCV 085D, was charged for causing the accident.
[10] In the appellant’s submission, the learned magistrate did not analyze the uncontested legal arguments presented by it in its written submissions. It reiterated those submissions and relied on Mohamed Muyunga v Vinoth Abwolet Eshepet [2020] eKLR to support its contention that, if anything, liability for the accident lay on the driver of Motor Vehicle Registration No. KCV 085D. It urged the Court to find that the trial court erred by apportioning liability without basis even when the evidence pointed directly at the negligence of the 4 th respondent.
[11] On quantum, it was the submission of the appellant that damages must be within the limits set out by decided cases and also within limits the Kenyan economy can afford. It relied on Osman Mohammed & another v Saluro Bundit Mohammed , Civil Appeal No. 30 of 1997 to support its submissions. Further to the foregoing, the appellant faulted the lower court for adopting the global approach without justification yet in this particular case, the age of the deceased, the amount of his monthly income and the expected length of dependency were proved. The appellant posited that, using the multiplier approach would have yielded no more than Kshs. 923,459.88 so that the total award would have come to Kshs. 1,033,439.88 which ought to be borne equally between the two parties involved as owners and drivers of Motor Vehicles Registration No. KCV 085D and KBW 187Z.
[12] On special damages, the appellant submitted that although the respondent asked for Kshs. 1,322,390/=, only Kshs. 338,295/= was specifically proved; and therefore the award by the lower court under the head of special damages was unwarranted. It relied on Swalleh C. Kariuki & another v Violet Owiso Okuyu [2021] eKLR and Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR. Hence, the appellant prayed for its appeal to be allowed with costs and the judgment of the lower court set aside.
[13] The respondent relied on her written submissions dated 7 th May 2026. She proposed the following issues for determination:
[a] Whether the trial court erred in its finding on liability.
[b] Whether the award the on quantum was excessive or based on wrong principles?
[c] Whether special damages were specifically pleaded and strictly proved?
[d] Whether the Court should interfere with the findings of the trial court?
[14] On the respondent defended the decision of the lower court on liability and made reference to the evidence presented before the lower court by her and her witnesses. In particular, the respondent referred the Court to the testimony of Jacline Nakanu Namgaya (PW2), an independent eye witness who had boarded the matatu together with the deceased and other passengers. On the basis of PW2’s evidence, the respondent urged the Court to find that both drivers were to blame and therefore that the lower court arrived at the correct decision. The respondent relied on Lakhashi v Attorney General (1971) EA 118 in support of her argument. The respondent added that neither the appellant nor its co-defendants adduced any evidence in proof of their allegations of contributory negligence on the part of the deceased.
[15] On whether the lower court’s award of general damages was excessive, the respondent referred the Court to the case of Butt v Khan Civil Appeal No. 40 of 1997 and Kemfro Africa Limited t/a "Meru Express Services [1976] & another v Lubia & another KECA 137 (KLR) for the applicable principles. She urged the Court to find that the appellant had failed to demonstrate any misdirection on the part of the lower court warranting interference by this Court. She posited that the learned magistrate exercised her discretion judiciously in adopting the global sum approach. She relied on the decision by Hon. Ringera, J. (as he then was) in Mwanzia v Ngalali Mutua & Kenya Bus Service (Msa) Ltd & another as quoted in Albert Odawa v Gichimu Gichenji [2007] KEHC 1358 (KLR) for the proposition that the multiplier approach is just a method of assessing damages should be abandoned where the facts do not facilitate its application.
[16] Further to the foregoing, the respondent submitted that the appellant's proposal of only 7 years’ dependency was not only speculative and unreasonable but was entirely unsupported by evidence on record. She cited various precedents in which the victims were over 60 years old to discount the assertion by the appellant that life expectancy in Kenya is 50 years. She urged the Court to also take into account the inflationary trends and find that the lower court’s award is reasonable in the circumstances.
[17] On special damages, the respondent pointed out that the lower court found as a fact that special damages were strictly proved through production of receipts and by calling the makers of the documents to testify before court. She contended that she fully discharged the burden of proof in that regard and urged the Court to dismiss the appellant’s proposed figure of Kshs. 169,147.50 as arbitrary. Thus, the respondent prayed that the appeal be dismissed with costs and the decision of the lower court upheld on both liability and quantum.
[18] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[19] The respondent testified before the lower court on 19 th August 2021 and stated that the deceased was her husband; and that he died on 10 th July 2019 from injuries sustained in a road traffic accident. She further stated that she was called by a police officer who was at the scene of the accident, and that on arrival at the scene she found two motor vehicles, a matatu Registration No. KCV 085D and a bread delivery lorry Registration No. KBW 187Z. She was informed that the deceased died as he was being taken to hospital and the body was taken to Gendia Hospital Mortuary. PW1 produced several documents to support her claim for general and special damages.
[20] Jackline Nakanu Namgaya (PW2) also testified before the lower court and stated that she was travelling in matatu Registration No. KCV 085D and that the said motor vehicle was involved in a road traffic accident at about 5.00 a.m. on the 10 th July 2019. She explained that the matatu was being driven at a moderate speed on the left side lane facing Kisumu Direction; and that a lorry came from the opposite direction, veered off its lane and hit the matatu head on. She stated that one of the passengers died in that accident.
[21] Peter Namasake (PW3) stated that he is a contractor basically engaged in road and water works under the name Revive Construction Co. Ltd. He testified that he was engaged by PW1 to construct a grave, which he did for Kshs. 80,500/=. He undertook the works and was duly paid. He also produced a receipt he issued for the payment and confirmed that, on the instructions of PW1, he bought a plaque with a name tag of the deceased for Kshs. 13,500/= which he placed on the grave. He produced the relevant documents as exhibits before the lower court.
[22] Lilian Liseje (PW4) the Bursar of Kadika Girls Secondary School, also testified before the lower court and confirmed that their school bus was hired by PW1 for which they charged her Kshs. 62,000/=. She produced the receipt issued to her as the Plaintiff’s Exhibit 13 before the lower court.
[23] The respondent also called Janet Amenya Oyucho (PW5). She likewise produced the receipt for hire of a bus to transport mourners to Nyadorera.
[24] Rose Mbericha Nujoma (PW6) testified that she is a business woman, engaged the supply of chairs, tents, public address system and transport under the name Mwanzo Investment Company. She added that PW1 hired 10 tents, 1,000 chairs and public address system from her for which she charged Kshs. 55,000/=. She produced the receipt she issued for the transaction as the Plaintiff’s Exhibit 15.
[25] The evidence of PC Kiplangat Cheboi (PW7) was that an accident occurred on 10 th July 2019 involving two motor vehicles namely, Motor Vehicle Registration No. KBW 197Z Mitsubishi Canter and Motor Vehicle Registration No. KCV 085D, Toyota Hiace matatu . He mentioned that the driver of Motor Vehicle KCV 085D was charged with causing death by dangerous driving and that one of the victims was Boniface Otieno , the deceased herein. As at the time he testified, PW7 could not ascertain whether or not the driver had been convicted or the offence or not. He produced the Police Abstract as the Plaintiff’s Exhibit 3.
[26] The respondent’s last witness was Racheal Felister Otieno (PW8). She testified that she offered catering services to PW1 at the funeral of her husband Boniface Otieno , and was paid Kshs. 817,350/=. She explained that she was trading under the name Good Shepherd Catering Services. She identified and produced the receipt issued in respect of the transaction as the Plaintiff’s Exhibit 17.
[27] On behalf of the appellant its driver Kennedy Ochieng Nyaidho testified as DW1. He adopted his witness statement dated 14 th July 2021 and stated that, on the 10 th July 2021, he was driving Motor Vehicle KDW along the Kisumu Kendu Bay Road; and that on reaching Rakwaro area, he saw an oncoming vehicle. He further stated that the oncoming motor vehicle veered off its lane and swerved to his lane and that it took a swerving action that caused the matatu to lose control and roll into a ditch. DW1 pointed out that he was not charged with any traffic offence; and that instead he testified as a witness in the traffic case against the driver of Motor Vehicle KCB 085D in which the said driver was found guilty, convicted and fined Kshs. 100,000/=.
[28] DW2 was Fredrick Omondi Oluoch , the appellant’s turn boy. He testified that he was assisting DW1 on the date in question and that they were distributing bread along the route between Kisumu and Kendu Bay. He further stated that he saw the matatu veer off its lane and that DW1 flashed his full lights to alert the matatu driver of the danger; but the matatu proceeded to hit the right side of their lorry before losing control and rolled off the road.
[29] On the basis of the foregoing evidence the learned magistrate found both drivers liable in that while the matatu driver was to blame for veering off his lane, DW1 was at fault for turning on the lorry’s full lights and thereby blinding the matatu driver into losing control. She accordingly held the defendants 100% liable to the respondent for the death of her husband.
[30] I have given careful consideration to the appellant’s grounds of appeal, the Record of Appeal filed herein and the written submissions filed by learned counsel. It is manifest from the evidence that the question of locus standi was wrongly taken. The respondent testified, and her evidence was not rebutted at all in this regard, that she is the widow of the deceased. She produced a Grant of Letters of Administration Ad Litem dated 17 th October 2019 obtained by her for the specific purpose of filing the subject suit. I therefore find no merit in the appellant’s objection on the ground of locus standi . In the premises, the issues for re-evaluation in this appeal are:
[a] Whether the learned magistrate erred in her finding on liability
[b] Whether the learned magistrate erred in her assessment of damages.
[31] From the standpoint of Section 107(1) of the Evidence Act, the legal burden of proof was on the respondent as the plaintiff before the lower court. That provision is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[32] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[33] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[34] Consequently, having alleged negligence at paragraph 10 of her Plaint, it was for the respondent to prove those allegations on a balance of probabilities. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[35] In this instance, the evidence adduced by the respondent as against the 1 st , 2 nd and 3 rd defendants before the lower court was entirely uncontroverted. As against the appellant, the evidence was clear that there two motor vehicles collided and the learned magistrate took into consideration the evidence of DW1 and DW2 that shortly before the collision, DW1 turned on the full lights of Motor Vehicle KBW 187Z. In the learned magistrate’s view, this act had the effect of blinding the driver of Motor Vehicle KCV 085D and therefore contributed to the causation of the accident.
[36] Although the appellant submitted that since the driver of KCV 085D was charged with the offence of causing death by dangerous driving, the learned magistrate erred in attributing fault to its driver. First and foremost, the evidence of PW7 was entirely premised on the Police Abstract marked the Plaintiff’s Exhibit 7. He conceded that he did not ascertain whether or not the 2 nd defendant had been convicted as a matter of fact. The evidence of conviction was given by DW1, but no document was presented in proof thereof. Even assuming that indeed the 2 nd defendant was found guilty and convicted of a traffic offence in connection with the subject accident that conviction of itself could not be the basis for absolving the appellant from liability.
[37] In Robinson v Oluoch [1971] EA 376, it was held that:
“Careless driving necessarily connotes some degree of negligence and in those circumstances it may not be open to the respondent to deny that his driving, in relation to the accident, was negligent, but that is a very different matter from saying that a conviction for an offence involving negligent driving is conclusive evidence that the convicted person was the only person whose negligence caused the accident, and that he is precluded from alleging contributory negligence on the part of another person in the subsequent civil proceedings. That is not what section 47A states. It is quite proper for a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident.”
[38] Indeed, in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR the Court of Appeal acknowledged this by quoting the following passage from the case of Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681,
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
[39] I therefore find no basis for faulting the decision of the lower court on liability.
[40] On quantum, the contest appears to be on whether the learned magistrate erred by applying the global sum approach yet there was proof of the age of the deceased, the amount of his monthly income and the expected length of dependency were proved. The appellant posited that in the circumstances hereof the multiplier approach was more appropriate; and urged the Court to adopt that method.
[41] The evidence adduced before the lower court by the respondent was that the deceased was aged 43 years at the time of his demise; and that he was working with the Ministry of Public Service, Youth and Gender Affairs as a Senior Youth Development Officer earning a gross monthly pay of Kshs. 69,810/= with a net of Kshs. 32,980/=. That evidence was not rebutted by the defendants. Evidence was also presented by the respondent in proof of the particulars supplied in the Plaint for purposes of the Law Reform Act and the Fatal Accidents Act. In the premises, the multiplier approach was a more accurate option that a global sum award. It is therefore my finding that the learned magistrate erred and misdirected herself by stating that:
“It is hard to use the multiplicand method to make this award since the court will be operating on speculations, suppositions and guess work.”
[42] Therefore, on loss of dependency, the approach that the lower court ought to have taken is that which was taken in Chunibhai J. Patel and Another vs. P.F. Hayes and Others [1957] EA 748, by the Court of Appeal for East Africa, namely:
"The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase."
[43] The deceased’s pay slip for June 2019 was produced as the Plaintiff’s Exhibit 11 before the lower court. It confirms that the deceased’s gross monthly income at the time was Kshs. 69,810/=. Although he ended up with a net salary of Kshs. 32,980/= that is the net sum of various deductions including savings and credit savings and loan recoveries. The only amount that ought to be deducted from the gross salary is the Pay as You Earn tax in the sum of 13,599.30 to ascertain the multiplicand. As a Senior Youth Development Offficer, the deceased would have retired at the age of 60 years. He supported his wife and four children and would therefore spend one-third of his income on the family. Accordingly, the damages due for loss of dependency ought to have been calculated as follows:
Kshs. 56,210 x12 x 17 x 1/3 - Kshs. 3,822,280/=
[44] The estate was also entitled to awards under pain and suffering and loss of expectation of life. In Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR it was held that:
“...The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”
[45] In this instance, PW1 testified that the deceased died at the scene as he was being put in a motor vehicle that was to transport him to the hospital; and therefore an award of Kshs. 20,000/= would suffice in those circumstances, noting that the pain was not prolonged before his demise.
[46] The appellant also disputed the sum of Kshs. 1,322,390/= awarded by the lower court under the head of special damages. According to the appellant, only Kshs. 338,295/= was proved. Indeed, in Hahn v Singh [1985] KLR, it was held that:
“ “Special damages must not only be specifically claimed but also strictly proved…The degree of certainty and the particularity of proof required depends on the circumstances and the nature of the acts themselves…”
[47] Accordingly, the appellant submitted that although the respondent asked for Kshs. 1,322,390/=, only Kshs. 338,295/= was specifically proved; and therefore the award by the lower court under the head of special damages was unwarranted. It relied on Swalleh C. Kariuki & another v Violet Owiso Okuyu [2021] eKLR and Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR and contended that the claim by the respondent was extortionist.
[48] A re-evaluation of the evidence presented before the lower court shows that the respondent produced credible evidence to support the expenses claimed by way of special damages. It also called several service providers in proof of her claims under the head of special damages. When it comes to funeral expenses, it is now trite that the bereaved are not expected to keep receipts for every expense incurred.
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