'
(Being an appeal from the judgment and decree of Hon. Derrick Kuto (Senior Principal Magistrate) delivered on 27th August 2024 in CMCC No. 1192 of 2018 at the Senior Principal Magistrates Court, Mavoko)
Background
1. The appellants aggrieved by the judgment delivered on 27th August 2024 in Mavoko Law Courts Civil Case No. 1192 0f 2018 have lodged this appeal.
2. The genesis of this case can dates back to a plaint dated 14th August 2018 in which the respondents sued the appellants herein seeking special damages in the sum of Kshs 172,000, general damages for pain and suffering under the Fatal Accidents Act and Law Reform Act, costs of the suit, and interest for the said special damages, general damages and costs of the suit.
3. In the plaint, the respondents averred that on or about 20th August 2016, the deceased was lawfully walking off Nairobi-Mombasa Road near Nation Center Area, Mlolongo, when motor vehicle registration number KAU160V was driven fast, carelessly and negligently that it lost control, veered off the road and ran over the deceased causing the death of the deceased later.
4. The 1st appellant, in a defense dated 4th May 2022, denied the respondents’ claim in its entirety and put them to strict proof thereof. It also averred, without prejudice, that if the accident occurred, it was caused solely and substantially by the negligence of the deceased.
5. Upon hearing both parties, the trial court, held that the appellants were 100% liable for the accident. Consequently, the trial court awarded Kshs 100,000 for loss of expectation of life, Kshs 20,000 for pain and suffering, Ksh 846,000 for loss of dependency, and Kshs 172,000 as special damages; the total award being Ksh 1,156,000. The trial court also awarded the respondents interest as well as costs of the suit.
The appeal
6. The appellants filed this appeal vide the Memorandum of Appeal dated 20th September 2024 raising eight (8) grounds reproduced verbatim as follows. That-:
(1) The learned magistrate erred in law and fact by finding that the appellant was negligent at all and erred further in law in finding that the appellant was 100% liable for causing the accident whereas there was no evidence adduced and no witness produced by the respondent at all to prove liability or how the accident occurred.
(2) The learned magistrate erred in law and fact by dismissing the appellant''s defence with respect to the fact they did not had occasion the accident.
(3) The learned magistrate erred in law and in fact by awarding the respondents the sum of Kshs. 20,000/= for pain and suffering whereas there was no evidence as to at what point in time the deceased died.
(4) The learned magistrate erred in law and in fact by awarding the respondents the sum of Kshs. 100,000/= under the head loss of expectation of life whereas there was no proof that the deceased was in good life.
(5) The learned magistrate erred in law and fact by awarding the respondent Kshs. 864,000/= for loss of dependency whereas there was no evidence at all adduced that the deceased was employed.
(6) The learned magistrate erred in law and in fact in taking into consideration of issues which did not arise during the proceedings when writing the judgment.
(7) The learned magistrate erred in law and in fact by coming up with his own inferences when writing the judgment.
(8) The whole judgment was against the weight of the evidence.
7. Consequently, the appellants pray for the appeal be allowed, that the entire judgment and subsequent decree be quashed and/or set aside, that the respondents case be dismissed with costs and that costs of the appeal be awarded to the appellants.
8. The appeal was canvassed by way of written submissions. The appellants filed written submissions dated 25th April 2025 while the respondents’ submissions in rebuttal were dated 21st July 2025.
Appellants’ submissions
9. The appellants set out three issues for determination. First, whether the trial magistrate erred in finding the appellants wholly liable for the accident. On this issue, it is submitted that the trial magistrate ignored the lack of evidence and erroneously attributed full liability to the appellant contrary to sections 107 (1) and 108 of the Evidence Act and the Court of Appeal decision in Treadsetters Tyres Ltd V John Wekesa Wepukhulu [2010] eKLR.
10. It is submitted that the respondents did not witness the accident neither did the Police Constable Michael Too, who produced the police abstract. That neither the owner of the motor vehicle nor their driver was charged with causing the alleged accident.
11. It is urged that the respondents did not discharge their burden of proof. The decisions in Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) and Mbuthia Macharia v Annah Mutua Ndwiga & Another Civil Appeal No. 297 of 2015 [2017] e KLR are relied on to support this contention.
12. Further, that the trial court failed to address itself to the fact that the police abstract as presented did not blame anyone for the accident as it was said to be pending under investigation. The decisions in Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge [2021] eKLR and Kennedy Nyangoya v Bash Hauliers [2016] eKLR are relied on to bolster this contention.
13. It is the appellants case that the evidence of a police officer who was not at the scene of the accident at the time of the accident cannot be used to prove how the accident occured. The decision in David Kajogi M’mugaa v Francis Muthoni [2012] eKLR is relied on to buttress this submission.
14. It is contended that even if the trial were to consider the respondents’ evidence as being uncontroverted, such evidence should have the effect of bringing out the fault of the appellant which it did not. The appellants rely on the decided case of Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR for this submission.
15. The appellants submit that the second issue for this court’s consideration is whether the trial magistrate erred in awarding damages without sufficient evidence. On this issue, the appellant’s case is that the trial magistrate wrongly awarded damages under different heads despite the respondents failing to prove the claims.
16. It is urged that the trial magistrate awarded Kshs 20,000 for pain and suffering without any evidence as to when the deceased died. It is submitted that the court should consider the time the deceased endured pain before death as stated in the case of Ngania & 2 others v Adulu (Suing as the Legal Representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal E005 of 2023) [2024].
17. It is the appellants case that the trial court also awarded Kshs 100,000 for loss of expectation of life without any proof that the deceased had a good or healthy life, and Kshs 865,000 for loss of dependency without any evidence that the deceased was employed or earning an income.
18. The appellants submit that the last issue for this court’s consideration is whether the trial magistrate failed to properly evaluate the evidence and legal principles. Herein, it is urged that the trial court ignored material facts that were crucial to determining liability and relied on extraneous matters that were not raised during the trial court which amounts to an error of law as determined in the case of Florence Nyambura v Robert Mureithi Kalungano [2016] KEHC 7 (KLR).
19. This court is urged to reassess the evidence afresh and overturn the findings of the trial magistrate.
Respondents’ submissions
20. The respondents submit that there are four issues for this court’s determination; first, whether the deceased contributed to the occurrence of the accident, second, whether the learned magistrate erred in law and fact by awarding the amount of damages for pain and suffering, loss of life expectancy and loss of dependency, third, whether the learned magistrate took consideration of issues which did not arise during the proceedings when writing the judgment and therefore coming up with his own inferences when writing the judgment, and lastly who should bear the costs.
21. On the first issue, it is submitted that there is no dispute that an accident occurred. However, it is contended that the testimony of the appellants’ witness is marred with inconsistencies rendering him unreliable. It is submitted that the appellants failed to call the driver who would have been the most competent person to explain how the accident occurred.
22. It is submitted that the respondents failed to discharge their burden of proof contrary to sections 107, 109 and 112 of the Evidence Act. In support of their case, the appellants rely on the decision in A Minor Suing Through Next Friend and Father SRP) v Omolo (Civil Suit 146 of 2013) [2025] KEHC 9015 (KLR) to support their case.
23. On the second issue, the respondents rely on the decisions in Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, and Wilson Mwangi Kabiro (suing as administrator of the Estate of Stephen Irungu Mwangi - deceased vs Charles Nyamumbo Mageto HCCC. No.200 of 2011 [2015] eKLR to urge that the trial court duly exercised its discretion in awarding an award of Kshs. 20,000 for pain and suffering which is reasonable in the circumstances of this case and in compliance with the established principles of law under this head.
24. It is submitted that the courts have adopted an approach of awarding a conventional sum of Kshs. 100,000 in awarding damages for loss of expectation of life but may also consider factors like the deceased''s age, the length of time from injury to death, and whether the death followed immediately from the injury.
25. It is submitted that the appellants contention that there was no proof that the deceased was in good life is misleading as the post mortem report shows that the deceased was of good nutrition and moreover the issue of whether the deceased was in good and healthy life at the time of the accident is not a factor to consider in awarding damages under this head.
26. It is submitted that the trial court correctly applied the multiplier approach having considered the retiring age, income and dependency of two-thirds since the deceased was the sole provider of the family.
27. This court is urged to award Kshs. 960,000 for loss of dependency as opposed to the Kshs. 864,000 awarded by the trial court because it is a mere arithmetical and calculation error as held in Mwangi v Kenya Commercial Bank Ltd [2024] KEH 3283 (KLR).
28. On the third issue, it is the respondents’ case that that the learned magistrate did not consider any issues that did not arise during the proceedings. It is submitted that the judgment written and delivered by the trial court was fully compliant with the law and the legally established principles on apportioning liability and awarding the general damages.
29. On the last issue, this court is urged to exercise its unfettered jurisdiction under section 27 of the Civil Procedure Act and award costs to the respondents.
Analysis and determination
30. I have considered the grounds of appeal, reviewed the record of appeal and examined the parties submissions. It is evident that this appeal challenges both the finding on liability and the quantum of damages awarded by the trial court.
31. Accordingly, the issues for determination by this court are (i) whether the trial court erroneously apportioned liability and (ii) whether the awards of loss of expectation of life, pain and suffering, loss of dependency and special damages granted by the trial court were erroneous or unjustified and/or excessive in the circumstances of this case.
32. This is a first appeal this court is guided by the principles set out in Selle v. Associated Motor Boat Co. Ltd [1968] EA, which require a first appellate court to re-evaluate both law and facts, subject the entire evidence to a fresh and exhaustive scrutiny, and draw its own conclusion while bearing in mind that it did not have the benefit of seeing and hearing the witnesses first hand.
33. Bearing the foregoing in mind, I now turn to the issue of liability. The trial court found that the appellants to be 100% liable for the accident. This finding is contested by the appellants, who urge that there was no evidence to support such a conclusion. Conversely, the respondents maintain that the accident was entirely caused by the appellants and they assert that they presented sufficient evidence to prove their case.
34. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“(1) 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.”
35. In addition, the evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act, as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
36. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR observed:
“In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie interference that the accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiffs favour unless the defendant’s evidence provides some answer adequate to displace that interference.”
37. In the instant case, I note that the evidence on record includes police abstract dated 5th October 2016 which documents the occurrence of an accident involving the deceased and the motor vehicle registered to the 2nd appellant. Also, on record is the deceased’s death certificate, which indicates the cause of death was severe cranio celebral injuries due to blunt force trauma sustained in a motor vehicle accident.
38. The appellants witness, Francis Kavoo Maweu, in his witness statement dated 25th May 2022, stated that he was the conductor aboard the subject vehicle. He recounted:
“We were informed by other road users that there was a pedestrian who had hit the motor vehicle from behind and was lying on the highway.
The pedestrian had crossed the road without having due regard for the busy highway and the motor vehicles approaching. He unfortunately, hit the motor vehicle from behind while it was moving well within the speed limit and the impact caused him to come to fall.
I immediately made my way to the scene and from the onset I noted that the said pedestrian was holding onto a bottle of illicit brew and his clothing was in tatters. It would seem he was intoxicated while crossing.
The police nearby arrived at the scene and took him away. The police informed us that they would reach out for purposes of further investigations and took the particulars of the motor vehicle.”
39. In my considered view, the evidence presented confirms that an accident did occur. However, I am mindful that the respondents, bore both the legal and evidential burden of proof pursuant to the Evidence Act. The Court of Appeal has aptly explained what this entails in Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR), where it was stated at paragraph 15:
“….. The Judge alluded to the provisions of section 107 of the Evidence Act, which deals with the burden of proof in any case and aptly stated that it lies with the party who desires any court to give judgment as to any legal right or liability, is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden and we need not repeat, save to emphasize the same principle of law is amplified by the learned authors of the leading Text Book;-
The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.
14 The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”
(emphasis added)
[16] The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.”
40. Although I have determined that an accident did occur, I note that the respondent’s evidence primarily consisted of the police abstract produced by Police Constable Michael Too. I pause here to point out that the Court of Appeal in Wayo & another (Suing on Behalf of the Estate of Benjamin Wayo Sailoki - Deceased) v Bwire [2025] KECA 866 (KLR) observed at paragraphs 52 and 53:
52. The decision of Ringera, J. (as he then was) in Grace Kanini v Kenya Bus Services Nairobi HCCC No. 4708 of 1989 as referred to by Odunga, J. (as he then was) in the Florence Mutheu Musembi case (supra) held that the production of a police abstract was not conclusive proof that an accident occurred as follows:“On the disputed facts, it is entirely probable that the accident was caused by the negligence of the second defendant who offered not to offer evidence. It is equally probable that it was caused by the negligence of the deceased. And it is equally probable that it was caused partly by the negligence of the deceased and the negligence of the defendant. Without the advantage of divine omniscience, the court cannot know which of the probabilities herein coincides with the truth and it cannot decide the matter by adopting one or the other probability without supporting evidence…a police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence came without more be evidence of negligence…There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the respondents.”
53.We cannot agree more.”
41. In the instant case, upon reviewing the police abstract, I note that it contains only basic information; the date, time and place of the accident, the police station where the accident was report was filed, the victim’s details, the particulars of the ownership of the vehicle involved, the victim’s details; the particulars and ownership of the vehicle involved, the insurance company covering the vehicle, and the name of the investigating officer. It does not include any findings from the investigation, which were indicated to be still pending. The abstract also lists Corporal Too, the investigating officer and PC Wambui as witnesses.
42. Police Constable Michael Too who produced the abstract before the trial court, testified that he did not investigate the scene of the accident. He stated that Corporal Too and PC Wambui were the officers who visited the scene of the accident. Notably, neither Corporal Too nor PC Wambui testified before this court or tendered any evidence. Furthermore, there is no investigation report or sketch maps of the scene to assist this court in determining liability. Accordingly, it is my considered view that the police abstract cannot form the basis for attributing liability to the appellants.
43. Additionally, there were no eyewitnesses to the accident. Although the respondents referred this court to the decision in A Minor Suing Through Next Friend and Father SRP) v Omolo (supra) where it was noted that “Although the Plaintiff has not called any eye witness to testify on the circumstances surrounding the accident in question this court notes that a case cannot collapse merely on the basis that there were no eye witnesses. The court, on the basis of circumstantial evidence or evidence adduced by the defendant that tends to prove his involvement in the alleged act may infer culpability on the part of the defendant….” I note that in this case, the driver of the vehicle alleged to have caused the accident testified.
44. In the instant case, the driver of the suit motor vehicle did not testify. The only testimony from the appellants witness, was that the conductor, whose witness statement, was reproduced earlier in this judgment. In his oral sworn testimony, he testified that an accident occurred and someone died. He stated that they were asked to stop because someone was on the road, but he did not know why the driver stopped. He further testified that he did not see the person being hit and did not witness the accident.
45. I also note that the respondents’ witnesses were not present at the scene of the accident. Their evidence therefore, holds no probative value as none of them witnessed the accident. There was no eye witness who could provide an account of how the accident occurred.
46. The record contains a post mortem request form dated 31st August 2016 seeking an examination to determine the cause of death. However, there is no post mortem report available for this court’s consideration. The death certificate alone is insufficient to enable this court apportion liability. In summary, the evidence before court on the issue of liability is scant and inconclusive.
47. Given the quality of the evidence tendered, there was no reasonable basis upon which the trial court could have found that liability had been established at 100per cent against the appellants. Liability was not proved to the required standard. It is not sufficient to merely establish that an accident occurred, the respondents were required to go further and demonstrate that the accident was caused by the negligence of the appellants’ which they failed to do in this case.
48. The respondents did not discharge their burden of proof. Accordingly, this appeal succeeds entirely on the ground of liability. Nonetheless, I will proceed to address the issue on quantum of damages.
49. It is evident that the trial court awarded Kshs 100,000 for loss of expectation of life and Ksh 20,000 for pain and suffering.
50. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is categorical 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 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.”
51. Similarly, in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 arrive at a figure which was either inordinately high or low.”
52. From these authorities, it is clear that the principles guiding appellate court interference with awards of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages.
53. The question that arises therefore, is whether the trial court’s awards of Ksh 20,000 for pain and suffering and Ksh 100,000 for loss of expectation of life was excessive and unjustified.
54. In Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), Muchemi J, (as she then was) held at paragraph 23:
55. “The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”
56. Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased died immediately after the accident and the trial court awarded Ksh 50,000 for pain and suffering, the appellate court stated:
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
57. In the present case, it is evident that the deceased died on the same day as the accident. Accordingly, and in light of various High Court decisions over the past 20 years indicating that awards for pain and suffering typically range from Ksh, 10,000 to Ksh, 100,000, I do not find the trial court award of kshs 20,000/- to be excessive. I find no reason to interfere with the trial court’s award of Ksh 20,000 for pain and suffering.
58. similarly, based on the case law cited above, which establishes that the conventional award for loss of expectation of life is Kshs 100,000, I find no reason to interfere with the award of the trial court on this.
59. The appellants challenge the award of Ksh 864,000 for loss of dependency, they argue that the deceased’s monthly income could not be ascertained. The respondents on the other hand urge this court to award Kshs. 960,000 for loss of dependency contending that the trial court made an arithmetical and calculation error.
60. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act provides:
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought;..”
61. From the record, the 1st respondent stated in her witness statement dated 14th August 2018 stated that the deceased was a security officer earning Kshs 20,000. In her sworn oral testimony of 2nd October 2019, she adopted her witness statement that stated that her husband was earning Ksh 15,000 as a private guard. Later, in her second sworn testimony of 20th September 2023, she again adopted her witness statement and testified that her husband was a security guard in someone’s company and was paid Ksh 20,000. However no documentary evidence on earnings, either in the form of a letter of employment, employment contract or a pay slip was presented to confirm the deceased’s employment income and to enable the court ascertain if indeed the deceased was employed and what his earnings was. In light of this, I would have adopted the global sum approach in assessing damages under this head.
62. The evidence shows that the deceased was 54 years old and survived by seven dependents. The appellants claim he was the sole breadwinner and that all dependents relied on him. There is also a claim that he paid school fees for the school going children although no evidence was provided. From the records, all the dependents except one are adults. It is therefore prudent to consider comparable High Court awards in similar situations.
63. Nyakundi J. in Amazon Energy Limited v Josephine Martha Musyoka & another [2019] eKLR, reduced the trial court’s global sum award of Kshs 2,500,000 for loss of dependency to Kshs 1,200,000 for a 56-year-old deceased whose only child was in college. Ng’arng’ar J in Kaume & 2 others v Mbugua & another (Suing as the Administrators the Estate of Simon Mbugua Mburu (Deceased)) [2025] KEHC 7836 (KLR) reduced
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(Being an appeal from the judgment and decree of Hon. Derrick Kuto (Senior Principal Magistrate) delivered on 27th August 2024 in CMCC No. 1192 of 2018 at the Senior Principal Magistrates Court, Mavoko)
Background
1. The appellants aggrieved by the judgment delivered on 27th August 2024 in Mavoko Law Courts Civil Case No. 1192 0f 2018 have lodged this appeal.
2. The genesis of this case can dates back to a plaint dated 14th August 2018 in which the respondents sued the appellants herein seeking special damages in the sum of Kshs 172,000, general damages for pain and suffering under the Fatal Accidents Act and Law Reform Act, costs of the suit, and interest for the said special damages, general damages and costs of the suit.
3. In the plaint, the respondents averred that on or about 20th August 2016, the deceased was lawfully walking off Nairobi-Mombasa Road near Nation Center Area, Mlolongo, when motor vehicle registration number KAU160V was driven fast, carelessly and negligently that it lost control, veered off the road and ran over the deceased causing the death of the deceased later.
4. The 1st appellant, in a defense dated 4th May 2022, denied the respondents’ claim in its entirety and put them to strict proof thereof. It also averred, without prejudice, that if the accident occurred, it was caused solely and substantially by the negligence of the deceased.
5. Upon hearing both parties, the trial court, held that the appellants were 100% liable for the accident. Consequently, the trial court awarded Kshs 100,000 for loss of expectation of life, Kshs 20,000 for pain and suffering, Ksh 846,000 for loss of dependency, and Kshs 172,000 as special damages; the total award being Ksh 1,156,000. The trial court also awarded the respondents interest as well as costs of the suit.
The appeal
6. The appellants filed this appeal vide the Memorandum of Appeal dated 20th September 2024 raising eight (8) grounds reproduced verbatim as follows. That-:
(1) The learned magistrate erred in law and fact by finding that the appellant was negligent at all and erred further in law in finding that the appellant was 100% liable for causing the accident whereas there was no evidence adduced and no witness produced by the respondent at all to prove liability or how the accident occurred.
(2) The learned magistrate erred in law and fact by dismissing the appellant''s defence with respect to the fact they did not had occasion the accident.
(3) The learned magistrate erred in law and in fact by awarding the respondents the sum of Kshs. 20,000/= for pain and suffering whereas there was no evidence as to at what point in time the deceased died.
(4) The learned magistrate erred in law and in fact by awarding the respondents the sum of Kshs. 100,000/= under the head loss of expectation of life whereas there was no proof that the deceased was in good life.
(5) The learned magistrate erred in law and fact by awarding the respondent Kshs. 864,000/= for loss of dependency whereas there was no evidence at all adduced that the deceased was employed.
(6) The learned magistrate erred in law and in fact in taking into consideration of issues which did not arise during the proceedings when writing the judgment.
(7) The learned magistrate erred in law and in fact by coming up with his own inferences when writing the judgment.
(8) The whole judgment was against the weight of the evidence.
7. Consequently, the appellants pray for the appeal be allowed, that the entire judgment and subsequent decree be quashed and/or set aside, that the respondents case be dismissed with costs and that costs of the appeal be awarded to the appellants.
8. The appeal was canvassed by way of written submissions. The appellants filed written submissions dated 25th April 2025 while the respondents’ submissions in rebuttal were dated 21st July 2025.
Appellants’ submissions
9. The appellants set out three issues for determination. First, whether the trial magistrate erred in finding the appellants wholly liable for the accident. On this issue, it is submitted that the trial magistrate ignored the lack of evidence and erroneously attributed full liability to the appellant contrary to sections 107 (1) and 108 of the Evidence Act and the Court of Appeal decision in Treadsetters Tyres Ltd V John Wekesa Wepukhulu [2010] eKLR.
10. It is submitted that the respondents did not witness the accident neither did the Police Constable Michael Too, who produced the police abstract. That neither the owner of the motor vehicle nor their driver was charged with causing the alleged accident.
11. It is urged that the respondents did not discharge their burden of proof. The decisions in Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) and Mbuthia Macharia v Annah Mutua Ndwiga & Another Civil Appeal No. 297 of 2015 [2017] e KLR are relied on to support this contention.
12. Further, that the trial court failed to address itself to the fact that the police abstract as presented did not blame anyone for the accident as it was said to be pending under investigation. The decisions in Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge [2021] eKLR and Kennedy Nyangoya v Bash Hauliers [2016] eKLR are relied on to bolster this contention.
13. It is the appellants case that the evidence of a police officer who was not at the scene of the accident at the time of the accident cannot be used to prove how the accident occured. The decision in David Kajogi M’mugaa v Francis Muthoni [2012] eKLR is relied on to buttress this submission.
14. It is contended that even if the trial were to consider the respondents’ evidence as being uncontroverted, such evidence should have the effect of bringing out the fault of the appellant which it did not. The appellants rely on the decided case of Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR for this submission.
15. The appellants submit that the second issue for this court’s consideration is whether the trial magistrate erred in awarding damages without sufficient evidence. On this issue, the appellant’s case is that the trial magistrate wrongly awarded damages under different heads despite the respondents failing to prove the claims.
16. It is urged that the trial magistrate awarded Kshs 20,000 for pain and suffering without any evidence as to when the deceased died. It is submitted that the court should consider the time the deceased endured pain before death as stated in the case of Ngania & 2 others v Adulu (Suing as the Legal Representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal E005 of 2023) [2024].
17. It is the appellants case that the trial court also awarded Kshs 100,000 for loss of expectation of life without any proof that the deceased had a good or healthy life, and Kshs 865,000 for loss of dependency without any evidence that the deceased was employed or earning an income.
18. The appellants submit that the last issue for this court’s consideration is whether the trial magistrate failed to properly evaluate the evidence and legal principles. Herein, it is urged that the trial court ignored material facts that were crucial to determining liability and relied on extraneous matters that were not raised during the trial court which amounts to an error of law as determined in the case of Florence Nyambura v Robert Mureithi Kalungano [2016] KEHC 7 (KLR).
19. This court is urged to reassess the evidence afresh and overturn the findings of the trial magistrate.
Respondents’ submissions
20. The respondents submit that there are four issues for this court’s determination; first, whether the deceased contributed to the occurrence of the accident, second, whether the learned magistrate erred in law and fact by awarding the amount of damages for pain and suffering, loss of life expectancy and loss of dependency, third, whether the learned magistrate took consideration of issues which did not arise during the proceedings when writing the judgment and therefore coming up with his own inferences when writing the judgment, and lastly who should bear the costs.
21. On the first issue, it is submitted that there is no dispute that an accident occurred. However, it is contended that the testimony of the appellants’ witness is marred with inconsistencies rendering him unreliable. It is submitted that the appellants failed to call the driver who would have been the most competent person to explain how the accident occurred.
22. It is submitted that the respondents failed to discharge their burden of proof contrary to sections 107, 109 and 112 of the Evidence Act. In support of their case, the appellants rely on the decision in A Minor Suing Through Next Friend and Father SRP) v Omolo (Civil Suit 146 of 2013) [2025] KEHC 9015 (KLR) to support their case.
23. On the second issue, the respondents rely on the decisions in Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, and Wilson Mwangi Kabiro (suing as administrator of the Estate of Stephen Irungu Mwangi - deceased vs Charles Nyamumbo Mageto HCCC. No.200 of 2011 [2015] eKLR to urge that the trial court duly exercised its discretion in awarding an award of Kshs. 20,000 for pain and suffering which is reasonable in the circumstances of this case and in compliance with the established principles of law under this head.
24. It is submitted that the courts have adopted an approach of awarding a conventional sum of Kshs. 100,000 in awarding damages for loss of expectation of life but may also consider factors like the deceased''s age, the length of time from injury to death, and whether the death followed immediately from the injury.
25. It is submitted that the appellants contention that there was no proof that the deceased was in good life is misleading as the post mortem report shows that the deceased was of good nutrition and moreover the issue of whether the deceased was in good and healthy life at the time of the accident is not a factor to consider in awarding damages under this head.
26. It is submitted that the trial court correctly applied the multiplier approach having considered the retiring age, income and dependency of two-thirds since the deceased was the sole provider of the family.
27. This court is urged to award Kshs. 960,000 for loss of dependency as opposed to the Kshs. 864,000 awarded by the trial court because it is a mere arithmetical and calculation error as held in Mwangi v Kenya Commercial Bank Ltd [2024] KEH 3283 (KLR).
28. On the third issue, it is the respondents’ case that that the learned magistrate did not consider any issues that did not arise during the proceedings. It is submitted that the judgment written and delivered by the trial court was fully compliant with the law and the legally established principles on apportioning liability and awarding the general damages.
29. On the last issue, this court is urged to exercise its unfettered jurisdiction under section 27 of the Civil Procedure Act and award costs to the respondents.
Analysis and determination
30. I have considered the grounds of appeal, reviewed the record of appeal and examined the parties submissions. It is evident that this appeal challenges both the finding on liability and the quantum of damages awarded by the trial court.
31. Accordingly, the issues for determination by this court are (i) whether the trial court erroneously apportioned liability and (ii) whether the awards of loss of expectation of life, pain and suffering, loss of dependency and special damages granted by the trial court were erroneous or unjustified and/or excessive in the circumstances of this case.
32. This is a first appeal this court is guided by the principles set out in Selle v. Associated Motor Boat Co. Ltd [1968] EA, which require a first appellate court to re-evaluate both law and facts, subject the entire evidence to a fresh and exhaustive scrutiny, and draw its own conclusion while bearing in mind that it did not have the benefit of seeing and hearing the witnesses first hand.
33. Bearing the foregoing in mind, I now turn to the issue of liability. The trial court found that the appellants to be 100% liable for the accident. This finding is contested by the appellants, who urge that there was no evidence to support such a conclusion. Conversely, the respondents maintain that the accident was entirely caused by the appellants and they assert that they presented sufficient evidence to prove their case.
34. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“(1) 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.”
35. In addition, the evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act, as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
36. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR observed:
“In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie interference that the accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiffs favour unless the defendant’s evidence provides some answer adequate to displace that interference.”
37. In the instant case, I note that the evidence on record includes police abstract dated 5th October 2016 which documents the occurrence of an accident involving the deceased and the motor vehicle registered to the 2nd appellant. Also, on record is the deceased’s death certificate, which indicates the cause of death was severe cranio celebral injuries due to blunt force trauma sustained in a motor vehicle accident.
38. The appellants witness, Francis Kavoo Maweu, in his witness statement dated 25th May 2022, stated that he was the conductor aboard the subject vehicle. He recounted:
“We were informed by other road users that there was a pedestrian who had hit the motor vehicle from behind and was lying on the highway.
The pedestrian had crossed the road without having due regard for the busy highway and the motor vehicles approaching. He unfortunately, hit the motor vehicle from behind while it was moving well within the speed limit and the impact caused him to come to fall.
I immediately made my way to the scene and from the onset I noted that the said pedestrian was holding onto a bottle of illicit brew and his clothing was in tatters. It would seem he was intoxicated while crossing.
The police nearby arrived at the scene and took him away. The police informed us that they would reach out for purposes of further investigations and took the particulars of the motor vehicle.”
39. In my considered view, the evidence presented confirms that an accident did occur. However, I am mindful that the respondents, bore both the legal and evidential burden of proof pursuant to the Evidence Act. The Court of Appeal has aptly explained what this entails in Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR), where it was stated at paragraph 15:
“….. The Judge alluded to the provisions of section 107 of the Evidence Act, which deals with the burden of proof in any case and aptly stated that it lies with the party who desires any court to give judgment as to any legal right or liability, is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden and we need not repeat, save to emphasize the same principle of law is amplified by the learned authors of the leading Text Book;-
The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.
14 The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”
(emphasis added)
[16] The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.”
40. Although I have determined that an accident did occur, I note that the respondent’s evidence primarily consisted of the police abstract produced by Police Constable Michael Too. I pause here to point out that the Court of Appeal in Wayo & another (Suing on Behalf of the Estate of Benjamin Wayo Sailoki - Deceased) v Bwire [2025] KECA 866 (KLR) observed at paragraphs 52 and 53:
52. The decision of Ringera, J. (as he then was) in Grace Kanini v Kenya Bus Services Nairobi HCCC No. 4708 of 1989 as referred to by Odunga, J. (as he then was) in the Florence Mutheu Musembi case (supra) held that the production of a police abstract was not conclusive proof that an accident occurred as follows:“On the disputed facts, it is entirely probable that the accident was caused by the negligence of the second defendant who offered not to offer evidence. It is equally probable that it was caused by the negligence of the deceased. And it is equally probable that it was caused partly by the negligence of the deceased and the negligence of the defendant. Without the advantage of divine omniscience, the court cannot know which of the probabilities herein coincides with the truth and it cannot decide the matter by adopting one or the other probability without supporting evidence…a police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence came without more be evidence of negligence…There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the respondents.”
53.We cannot agree more.”
41. In the instant case, upon reviewing the police abstract, I note that it contains only basic information; the date, time and place of the accident, the police station where the accident was report was filed, the victim’s details, the particulars of the ownership of the vehicle involved, the victim’s details; the particulars and ownership of the vehicle involved, the insurance company covering the vehicle, and the name of the investigating officer. It does not include any findings from the investigation, which were indicated to be still pending. The abstract also lists Corporal Too, the investigating officer and PC Wambui as witnesses.
42. Police Constable Michael Too who produced the abstract before the trial court, testified that he did not investigate the scene of the accident. He stated that Corporal Too and PC Wambui were the officers who visited the scene of the accident. Notably, neither Corporal Too nor PC Wambui testified before this court or tendered any evidence. Furthermore, there is no investigation report or sketch maps of the scene to assist this court in determining liability. Accordingly, it is my considered view that the police abstract cannot form the basis for attributing liability to the appellants.
43. Additionally, there were no eyewitnesses to the accident. Although the respondents referred this court to the decision in A Minor Suing Through Next Friend and Father SRP) v Omolo (supra) where it was noted that “Although the Plaintiff has not called any eye witness to testify on the circumstances surrounding the accident in question this court notes that a case cannot collapse merely on the basis that there were no eye witnesses. The court, on the basis of circumstantial evidence or evidence adduced by the defendant that tends to prove his involvement in the alleged act may infer culpability on the part of the defendant….” I note that in this case, the driver of the vehicle alleged to have caused the accident testified.
44. In the instant case, the driver of the suit motor vehicle did not testify. The only testimony from the appellants witness, was that the conductor, whose witness statement, was reproduced earlier in this judgment. In his oral sworn testimony, he testified that an accident occurred and someone died. He stated that they were asked to stop because someone was on the road, but he did not know why the driver stopped. He further testified that he did not see the person being hit and did not witness the accident.
45. I also note that the respondents’ witnesses were not present at the scene of the accident. Their evidence therefore, holds no probative value as none of them witnessed the accident. There was no eye witness who could provide an account of how the accident occurred.
46. The record contains a post mortem request form dated 31st August 2016 seeking an examination to determine the cause of death. However, there is no post mortem report available for this court’s consideration. The death certificate alone is insufficient to enable this court apportion liability. In summary, the evidence before court on the issue of liability is scant and inconclusive.
47. Given the quality of the evidence tendered, there was no reasonable basis upon which the trial court could have found that liability had been established at 100per cent against the appellants. Liability was not proved to the required standard. It is not sufficient to merely establish that an accident occurred, the respondents were required to go further and demonstrate that the accident was caused by the negligence of the appellants’ which they failed to do in this case.
48. The respondents did not discharge their burden of proof. Accordingly, this appeal succeeds entirely on the ground of liability. Nonetheless, I will proceed to address the issue on quantum of damages.
49. It is evident that the trial court awarded Kshs 100,000 for loss of expectation of life and Ksh 20,000 for pain and suffering.
50. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is categorical 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 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.”
51. Similarly, in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 arrive at a figure which was either inordinately high or low.”
52. From these authorities, it is clear that the principles guiding appellate court interference with awards of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages.
53. The question that arises therefore, is whether the trial court’s awards of Ksh 20,000 for pain and suffering and Ksh 100,000 for loss of expectation of life was excessive and unjustified.
54. In Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), Muchemi J, (as she then was) held at paragraph 23:
55. “The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”
56. Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased died immediately after the accident and the trial court awarded Ksh 50,000 for pain and suffering, the appellate court stated:
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
57. In the present case, it is evident that the deceased died on the same day as the accident. Accordingly, and in light of various High Court decisions over the past 20 years indicating that awards for pain and suffering typically range from Ksh, 10,000 to Ksh, 100,000, I do not find the trial court award of kshs 20,000/- to be excessive. I find no reason to interfere with the trial court’s award of Ksh 20,000 for pain and suffering.
58. similarly, based on the case law cited above, which establishes that the conventional award for loss of expectation of life is Kshs 100,000, I find no reason to interfere with the award of the trial court on this.
59. The appellants challenge the award of Ksh 864,000 for loss of dependency, they argue that the deceased’s monthly income could not be ascertained. The respondents on the other hand urge this court to award Kshs. 960,000 for loss of dependency contending that the trial court made an arithmetical and calculation error.
60. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act provides:
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought;..”
61. From the record, the 1st respondent stated in her witness statement dated 14th August 2018 stated that the deceased was a security officer earning Kshs 20,000. In her sworn oral testimony of 2nd October 2019, she adopted her witness statement that stated that her husband was earning Ksh 15,000 as a private guard. Later, in her second sworn testimony of 20th September 2023, she again adopted her witness statement and testified that her husband was a security guard in someone’s company and was paid Ksh 20,000. However no documentary evidence on earnings, either in the form of a letter of employment, employment contract or a pay slip was presented to confirm the deceased’s employment income and to enable the court ascertain if indeed the deceased was employed and what his earnings was. In light of this, I would have adopted the global sum approach in assessing damages under this head.
62. The evidence shows that the deceased was 54 years old and survived by seven dependents. The appellants claim he was the sole breadwinner and that all dependents relied on him. There is also a claim that he paid school fees for the school going children although no evidence was provided. From the records, all the dependents except one are adults. It is therefore prudent to consider comparable High Court awards in similar situations.
63. Nyakundi J. in Amazon Energy Limited v Josephine Martha Musyoka & another [2019] eKLR, reduced the trial court’s global sum award of Kshs 2,500,000 for loss of dependency to Kshs 1,200,000 for a 56-year-old deceased whose only child was in college. Ng’arng’ar J in Kaume & 2 others v Mbugua & another (Suing as the Administrators the Estate of Simon Mbugua Mburu (Deceased)) [2025] KEHC 7836 (KLR) reduced
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