REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E183 OF 2023
SEIF JUMA DZILLA.........................................…………….………………………APPELLANT
VERSUS
CATHERINE MBEYU MWAMUYE & SAMINI MOSES TSUMA
Suing as the Legal Representatives of the Estate of
ALI MWAMUYE TOKALI-(DECEASED)…………………………........…RESPONDENTS
(Being an Appeal from the Judgment and Decree of the Honourable D. Wasike, Principal Magistrate delivered on 28 th November 2023 in Kilifi Magistrate's Court Civil Suit No. 286 of 2021).
JUDGMENT
1. The appellant filed this appeal through a memorandum dated 20 th December 2023. The appeal is on two issues, liability and assessment of quantum of damages in a claim for negligence arising out of a fatal road traffic accident. Although the introductory paragraph of the memorandum of appeal states that the appeal is on quantum of damages only, the grounds of appeal and submissions are on both liability and assessment of damages.
2. The appellant was the defendant while the respondents were the plaintiffs before the trial court. The respondents sued the appellant for compensation seeking special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
3. Their case before the trial court was presented through the plaint dated 1 st September 2021, the witness statement of PW 2, Catherine Mbeyu Mwamuye together with her testimony and that of PW 1 PC Hassan Bulo of Kilifi police station, traffic duties in court on 14 th March 2023 as well as the various documents filed and produced in evidence as exhibits. The documents produced were (a) Limited Grant Letters of Administration Intestate Ad litem , (b) Death Certificate for Ali Mwamuye Tokali, (c) Police abstract, (d) Copy of post mortem report, (e) Copy of records, (f) Receipt for copy of records, (g) Burial permit, (h) Receipts for burial and legal expenses, (i) Demand letter.
4. The respondents’ case was that the deceased was riding an unregistered motor cycle along the Kilifi-Malindi road at Majaoni area on 17 th May 2020 at around 1930 Hours when the same was involved in an accident with motor vehicle registration number KBW 707T owned and driven by the appellant. The deceased sustained fatal injuries to which he succumbed. The case was reported at Kilifi police station where a police abstract was later issued to the respondents. The respondents blamed the appellant for the accident for being negligent in his manner of driving the vehicle and filed suit for compensation.
5. They claimed general damages for the estate of the deceased which suffered loss and damage as a result of his demise and for the dependents who had been deprived of a source of livelihood. The respondents also claimed special damages of KShs 168,000/= particularized as follows:
a) Copy of records KShs. 550/=
b) Certificate of death KShs 50/=
c) Letters of Administration ( Ad Litem ) KShs. 15,000/=
d) Letters of administration full grant KShs 50,000/=
e) Mortuary charges KShs. 2,500/=
f) Funeral Expenses KShs 100,000/=
Total KShs 168,100/=
6. The appellant’s case on the other hand was pleaded in the statement of defence dated 16 th November 2021. The appellant through the usual manner of pleading in defence denied the entire claim by the respondents that in toto , starting with denial of ownership of the vehicle and denial of occurrence of the accident and that he was negligent in the matter. He then in the alternative pleaded that in case the accident occurred as alleged, the deceased wholly or substantially contributed to the same.
7. At the hearing PW 1, PC Hassan Bulo testified that there was a fatal road traffic accident involving motor vehicle registration number KBW 707T Toyota Harrier and an unregistered motor cycle on 17 th May 2020 which was reported by the driver of the vehicle at Ngerenya police station. The case was afterwards referred to Kilifi police station. Investigations were carried out by Corporal Safari who was since deceased and the file was handed over to him to deal. He relied on the Occurrence Book and the police abstract. He said he did not know who was to blame for the accident.
8. PW 2, Catherine Mbeyu Mwamuye adopted her witness statement dated 1 st September 2021 as her evidence in chief. She also produced as exhibits the documents mentioned above. She said the deceased was her brother aged 29 years old. His dependents were their mother and siblings. That he could provide for them since he was a rider and worked at a quarry and was paid KShs 900/= daily.
9. In cross-examination, PW 2 said that she did not witness the accident. She reiterated that the deceased was working at a quarry and was paid weekly but she had no proof of the same such as employment records. She said their mother at the time was aged over 60 years and that that all the siblings of the deceased were adults.
10. The appellant did not offer any evidence in defence.
11. After hearing the case the learned trial magistrate found that there was no clear evidence of how the accident occurred and who was to blame. She found however that both the deceased rider and the driver of the vehicle, the appellant herein owed a duty of care to each other and held them equally to blame for the accident. She thus apportioned liability in the ratio of 50:50 between the deceased rider and the driver. He then proceeded to assess damages as follows:
a. Pain and suffering KShs 100,000/=
b. Loss of expectation of life KShs 300,000/=
c. Loss of dependency KShs 1,302,288/=
d. Special damages KShs 65,550/=
Total KShs 1,767,838/=.
12. The trial court also ordered that interest would be payable on both general and special damages at court rates from the date of delivery of the judgment until payment in full. The order on payment of interest was not correct, the correct position on special damages being that interest should run from the date of filing suit. The appellant was also ordered to bear the costs of the suit.
13. The appellant was aggrieved by the said judgment and appealed to this court through the memorandum dated 20 th December 2023 based on the grounds that:
a. the learned trial magistrate erred in law and fact in holding that the respondent had proved negligence on a balance of probability without any evidence on the occurrence, blameworthiness and causation being tendered.
b. The damages awarded both under the Fatal Accidents Act and the Law Reform Act were inordinately high.
c. The learned trial magistrate in assessing damages took into account irrelevant factors and overlooked the relevant factors.
d. The learned trial magistrate in choosing the multiplier overlooked the age of the dependents hence ended up choosing a multiplier that was erroneous, inordinately high and unrealistic.
14. The appellant therefore prays for this court to set aside the judgment of the trial court and replace it with an order dismissing the suit in the lower court with costs and that in any event the general damages be reassessed downwards and the appellant be awarded costs in the lower court and in this court.
15. The appeal was canvassed by way of written submissions filed by both parties. Learned counsel for the appellant has condensed the grounds of appeal and argued them on three issues, which are that the appellant challenges the trial court’s findings on liability and assessment of general damages specifically on loss of dependency, pain and suffering and loss of expectation of life. There is no submission on the special damages and I take it that the same are not challenged and so they remain as awarded by the lower court. Learned counsel for the respondent submits that the issue is whether the trial magistrate’s judgment is sound and whether the same should be upheld.
16. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
17. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
18. A court of appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did. (See the case of Mwangi & another v Wambugu [1984] KECA 13 (KLR) .
19. On the issue of liability, learned counsel for the appellant submits that the respondents failed to discharge the burden to prove that the appellant was to blame for the accident as required under sections 107, 108 and 109 of the Evidence Act (Cap. 80) Laws of Kenya.
20. Learned counsel has set out the said sections of the law and cited a large number of authorities on the fact of the burden of proof being upon the plaintiff (respondent herein) to adduce evidence that proves negligence on the part of the defendant (appellant herein) even where the defendant fails to file a defence to the suit and where the defendant fails to call any evidence in the suit, as was the case herein. The cases are Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR) , Moi v Muriithi & another [2014] KECA 642 (KLR) , Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR) , Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) , Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another [2010] KEHC 381 (KLR) , Morris Njagi & another v Beatrice Wanjiku Kiura [2019] KEELC 784 (KLR) .
21. Learned counsel therefore submits that once the trial court found that it could not unequivocally state who was liable for the accident, it meant that the respondents had failed to discharge their evidential burden of proof to show that the appellant was to blame and should have dismissed the case at that point. Learned counsel cites section 3(4) of the Evidence Act which provides that a fact is not proved when it is neither proved nor disproved. He buttressed it with the case of Timothy Mulili Nguutu v Cosmas Muendo & another [2021] KEHC 13197 (KLR) and Hasbury’s Laws of England 4 th edition, Volume 34 page 46 - 47 and Volume 17 paras 13 and 14.
22. Learned counsel therefore submits that the appeal should be allowed, the findings on liability of the trial court set aside and replaced with an order dismissing the respondents’ suit
23. Learned counsel for the respondent submits that the appellant did not adduce any evidence to counter that of the respondents and so the respondents’ evidence remained unchallenged. He submits that from the court proceedings, it is evident that the appellant had recorded and filed a witness statement and he was available in court, on the virtual platform to testify on the date the case was coming up for defence hearing but bolted out at the last minute. Learned counsel submits that this was due to apprehension by the appellant that the evidence tendered by him in evidence may be prejudicial to his case. Learned counsel relies on the case of Elgin Finedays Ltd v Webb 1947 AD 744 , it is stated at 745:
“… it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this failure leads naturally to the inference that he fears such evidence will expose facts unfavourable to him …”.
24. That case is cited in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR) where the Court Appeal stated thus on the same issue;-
“We note that the failure to call a particular witness or voluntarily to produce documents or objects in one's possession is conduct evidence. (See J. Wigmore, Evidence § 265, at 87 (3d ed. 1940). In principle, failure by a party to call a material witnesses may be interpreted as an indication of knowledge that his opponent's evidence is true, or at least that the tenor of the evidence withheld would be unfavorable to his cause. An inference will not be allowed if a party introduces evidence explaining the reasons for his conduct, and reason for failure to call a witness and if the evidence is truly unavailable or shown to be immaterial.85. Comparatively, in Bukenya and Others v Uganda [1972] EA 549, it was stated that a court may infer that the evidence of uncalled witnesses would have tended to be adverse.In Mann Holdings Pte Ltd and another v Ung Yoke Hong [2018] SGHC 69, the Singapore High Court drew adverse inference against a party who had failed to call crucial witnesses to testify at trial.”
25. Learned counsel submits that in fact the trial court ought to have found the appellant wholly liable based on his witness statement placed on the court record and his failure to testify at the last minute. I can only but sympathize with learned counsel for bringing up this issue on appeal rather than during the trial. Since the statement was on record filed by the appellant, learned counsel had an opportunity to put the statement to both of his witnesses for them to state what the appellant had stated therein, rather than hope that he would catch the appellant when he comes to testify. That way, the contents would have been brought to the attention of the court as part of the evidence to be relied upon. Unfortunately, that was not done and it cannot be introduced at this late hour.
26. I have considered the grounds of appeal, the record of appeal and the submissions by learned counsels for the parties. The issues for determination from both the appellant and the respondents’ submissions can be summed up as, whether the trial court’s assessment of liability and general damages was erroneous.
27. In the case of Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
28. The evidence before the trial court which was accepted by both parties was that an accident did occur involving the deceased riding a motorcycle and the appellant’s motor vehicle driven by the appellant. Therefore, the fact of the accident occurring was not in dispute. The next question then is who caused the accident and therefore was to blame for the same between the deceased motorcyclist and the driver who failed to testify in the case? It is true as found by the learned trial magistrate that there was no direct evidence to point to either of the parties as the one to blame. However, lack of direct evidence does not mean no evidence. Many cases are decided on the basis of circumstantial evidence. The circumstances in this case are that there was a collision between a motorcycle and a vehicle on the road.
29. It is true as submitted by learned counsel for the appellant that the onus was on the respondents to prove their case and it never shifted to the appellant. That is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya , which provides:
“107. (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.”
30. Even as I am minded to remember that the burden of proof was upon the respondents who wished the court to find in their favour that the appellant had caused the accident by negligence, section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened . It says :
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
31. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1 st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…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.”
32. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
33. In this case, an accident involving the deceased’s motor cycle and the appellant’s vehicle did occur on the road. In the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame. The Court of Appeal said:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of Barclay – Steward Limited & Another v. Waiyaki [1982-88] 1 KAR 1118, this Court said:-
“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”
The Court said further: -
“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
In Baker v Market Harborough Industrial Co-operative Society Ltd; Wallace v Richards (Leicester) Ltd, Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…”
See also Welch v. Standard Bank Ltd [1970] EA 115 at 117 and Simon v. Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame…”
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
34. In the present case, there is no dispute that there was a collision between the appellant’s motor vehicle and the deceased’s motor cycle on the road. PW 2 had no evidence of how the accident occurred. There was no evidence forthcoming from police officers who are expected to conduct investigations and present it to court to assist the court establish the correct state of facts of how the accident occurred. No sketch maps, drawings or legends were produced in evidence due to the failure by PW 1 who took over investigations after his colleague, the investigating officer passed on, to present them to court. He only produced the police abstract as proof that the accident did occur.
35. It was submitted by learned counsel for the appellant that in the circumstances the trial court ought to have dismissed the case for lack of proof by the respondents of causation on the part of the appellant. As held in the case of Khambi & another (supra) it is a well settled principle that an appellate court will not interfere with findings of fact by the trial court unless it is proved that there was an error in principle or the finding is out rightly wrong.
36. Guided by the decision of Omar Hussein Farah (supra), I find that the learned magistrate was correct in her finding that since both motorists owed a duty of care to each other, liability for causation of the accident had to be shared equally between the driver and the rider. It cannot be the case that neither of them was to blame. It is either one of them was to blame or both of them were to blame to a certain degree. The degree of blameworthiness here is split equally between the two. The appellant had an opportunity to present his case and tilt the scales in his favour but he coiled from it. The only inference to be made is that, had he testified, his recorded statement which was clearly unfavourable to his case would have turned him in. Obviously he did not wish to aid the respondents in proving their case.
37. On a balance of probability, on the basis of the evidence that indeed the collision between the appellant’s vehicle and the deceased’s motor cycle occurred on the road during the night, I find that both the driver of the vehicle and the rider of the motor cycle were equally to blame for the accident.
38. Consequently, I find that the learned trial magistrate properly evaluated the evidence and arrived at a correct conclusion on causation of the accident and the blameworthy of the appellant. That decision is therefore affirmed.
39. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
40. The appeal on assessment of damages is on general damages only.
41. On pain and suffering, learned counsel for the appellant submits that an award of KShs 20,000/= would be adequate noting that the deceased died on the spot and KShs 100,000/= for loss of expectation of life. He relied on the case of Janet Chonge Walumbe & 2 others v Julius Mwaniki & another [2019] KEHC 10656 (KLR) where the court observed that:
“The amount of damages under the Law Reform Act for pain and suffering where death immediately or shortly follow the accident and for loss of expectation of life are conventional figures which I accept today at Ksh. 20,000/- and Ksh. 100,000/-, respectively. For the later see the decision of Nkudate v. Touring & Sports Cars Ltd. (1979) KLR 199 where Platt, J. (as he then was) set the conventional sum for loss of expectation of life in Kenya at Sterling pounds 850 (at today’s exchange rate approximately Ksh. 100,000/-).”
42. Learned counsel for the respondents submits that the award of KShs 100,000/= made by the trial court was correct and should not be disturbed as it was in the range of awards made by courts where the deceased died on the spot. He relied on the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] KEHC 9074 (KLR) where a sum of KShs 50,000/= was awarded for pain and suffering where the deceased died on the spot. On loss of expectation of life, learned counsel submits that the award of KShs 300,000/= by the trial court was sound and the award was not excessive. He relies on the case of Daniel Kuria Nganga v Nairobi City Council [2013] KEHC 6181 (KLR) .
43. I have considered the submissions made by learned counsels and taken note of the decisions cited. I have also considered the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) where the High Court, Odunga, J. (as he then was) held as follows on the assessment of damages for pain and suffering and loss of expectation of life:
“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. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
44. Courts have given varying awards for pain and suffering where death occurred on the spot. For instance in the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] KEHC 9074 (KLR) cited by the respondents, the court awarded KShs 50,000/= for pain and suffering where the deceased died on the spot while in the case of Janet Chonge Walumbe & 2 others v Julius Mwaniki & another [2019] KEHC 10656 (KLR) cited by learned cousel for rhe appellant the court awarded KShs 20,000/= for pain and suffering where the death had occurred on the spot. Yet in Nyauma & another (Suing as the administrators on behalf of Beatrice Moraa Nyamboki) v Mwakaya [2026] KECA 348 (KLR) the Court of Appeal did not interfere where it was was dealing with a second appeal where the High Court had sustained an award of KShs 70,000/= for pain and suffering. And in Tumwesigye v Mutua & another (Both Suing on Behalf of the Estate of Michael Mutua Kavuli - Deceased) [2026] KECA 1333 (KLR) the Court of Appeal sustained awards of KShs 50,000/= for pain and suffering for an instant death and KShs 100,000/= for loss of expectation of life.
45. The trial court indicated that it was guided by the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] KEHC 7614 (KLR) in awarding the sum of KShs 100,000/= for pain and suffering. However, in that case, the High Court observed on appeal that there was no doubt that the deceased died after sometime which included taking him to different hospitals and therefore, the deceased must have suffered some considerable pain before dying. That was not the case herein where the deceased died on the spot. I therefore find that the trial court took into account a factor that it ought not to have done. In the circumstances I find that the award of KShs 100,000/= was inordinately high. If the court had been appropriately guided by the decision cited by the respondent, it would not have departed from the award of KShs 50,000/=. I am therefore satisfied that this court is justified to interfere with the award made by the trial court of KShs 100,000/= for pain and suffering and revise it to KShs 50,000/=
46. On the award for loss of expectation of life, the trial court was guided by the case of Daniel Kuria Ngan
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IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E183 OF 2023
SEIF JUMA DZILLA.........................................…………….………………………APPELLANT
VERSUS
CATHERINE MBEYU MWAMUYE & SAMINI MOSES TSUMA
Suing as the Legal Representatives of the Estate of
ALI MWAMUYE TOKALI-(DECEASED)…………………………........…RESPONDENTS
(Being an Appeal from the Judgment and Decree of the Honourable D. Wasike, Principal Magistrate delivered on 28 th November 2023 in Kilifi Magistrate's Court Civil Suit No. 286 of 2021).
JUDGMENT
1. The appellant filed this appeal through a memorandum dated 20 th December 2023. The appeal is on two issues, liability and assessment of quantum of damages in a claim for negligence arising out of a fatal road traffic accident. Although the introductory paragraph of the memorandum of appeal states that the appeal is on quantum of damages only, the grounds of appeal and submissions are on both liability and assessment of damages.
2. The appellant was the defendant while the respondents were the plaintiffs before the trial court. The respondents sued the appellant for compensation seeking special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
3. Their case before the trial court was presented through the plaint dated 1 st September 2021, the witness statement of PW 2, Catherine Mbeyu Mwamuye together with her testimony and that of PW 1 PC Hassan Bulo of Kilifi police station, traffic duties in court on 14 th March 2023 as well as the various documents filed and produced in evidence as exhibits. The documents produced were (a) Limited Grant Letters of Administration Intestate Ad litem , (b) Death Certificate for Ali Mwamuye Tokali, (c) Police abstract, (d) Copy of post mortem report, (e) Copy of records, (f) Receipt for copy of records, (g) Burial permit, (h) Receipts for burial and legal expenses, (i) Demand letter.
4. The respondents’ case was that the deceased was riding an unregistered motor cycle along the Kilifi-Malindi road at Majaoni area on 17 th May 2020 at around 1930 Hours when the same was involved in an accident with motor vehicle registration number KBW 707T owned and driven by the appellant. The deceased sustained fatal injuries to which he succumbed. The case was reported at Kilifi police station where a police abstract was later issued to the respondents. The respondents blamed the appellant for the accident for being negligent in his manner of driving the vehicle and filed suit for compensation.
5. They claimed general damages for the estate of the deceased which suffered loss and damage as a result of his demise and for the dependents who had been deprived of a source of livelihood. The respondents also claimed special damages of KShs 168,000/= particularized as follows:
a) Copy of records KShs. 550/=
b) Certificate of death KShs 50/=
c) Letters of Administration ( Ad Litem ) KShs. 15,000/=
d) Letters of administration full grant KShs 50,000/=
e) Mortuary charges KShs. 2,500/=
f) Funeral Expenses KShs 100,000/=
Total KShs 168,100/=
6. The appellant’s case on the other hand was pleaded in the statement of defence dated 16 th November 2021. The appellant through the usual manner of pleading in defence denied the entire claim by the respondents that in toto , starting with denial of ownership of the vehicle and denial of occurrence of the accident and that he was negligent in the matter. He then in the alternative pleaded that in case the accident occurred as alleged, the deceased wholly or substantially contributed to the same.
7. At the hearing PW 1, PC Hassan Bulo testified that there was a fatal road traffic accident involving motor vehicle registration number KBW 707T Toyota Harrier and an unregistered motor cycle on 17 th May 2020 which was reported by the driver of the vehicle at Ngerenya police station. The case was afterwards referred to Kilifi police station. Investigations were carried out by Corporal Safari who was since deceased and the file was handed over to him to deal. He relied on the Occurrence Book and the police abstract. He said he did not know who was to blame for the accident.
8. PW 2, Catherine Mbeyu Mwamuye adopted her witness statement dated 1 st September 2021 as her evidence in chief. She also produced as exhibits the documents mentioned above. She said the deceased was her brother aged 29 years old. His dependents were their mother and siblings. That he could provide for them since he was a rider and worked at a quarry and was paid KShs 900/= daily.
9. In cross-examination, PW 2 said that she did not witness the accident. She reiterated that the deceased was working at a quarry and was paid weekly but she had no proof of the same such as employment records. She said their mother at the time was aged over 60 years and that that all the siblings of the deceased were adults.
10. The appellant did not offer any evidence in defence.
11. After hearing the case the learned trial magistrate found that there was no clear evidence of how the accident occurred and who was to blame. She found however that both the deceased rider and the driver of the vehicle, the appellant herein owed a duty of care to each other and held them equally to blame for the accident. She thus apportioned liability in the ratio of 50:50 between the deceased rider and the driver. He then proceeded to assess damages as follows:
a. Pain and suffering KShs 100,000/=
b. Loss of expectation of life KShs 300,000/=
c. Loss of dependency KShs 1,302,288/=
d. Special damages KShs 65,550/=
Total KShs 1,767,838/=.
12. The trial court also ordered that interest would be payable on both general and special damages at court rates from the date of delivery of the judgment until payment in full. The order on payment of interest was not correct, the correct position on special damages being that interest should run from the date of filing suit. The appellant was also ordered to bear the costs of the suit.
13. The appellant was aggrieved by the said judgment and appealed to this court through the memorandum dated 20 th December 2023 based on the grounds that:
a. the learned trial magistrate erred in law and fact in holding that the respondent had proved negligence on a balance of probability without any evidence on the occurrence, blameworthiness and causation being tendered.
b. The damages awarded both under the Fatal Accidents Act and the Law Reform Act were inordinately high.
c. The learned trial magistrate in assessing damages took into account irrelevant factors and overlooked the relevant factors.
d. The learned trial magistrate in choosing the multiplier overlooked the age of the dependents hence ended up choosing a multiplier that was erroneous, inordinately high and unrealistic.
14. The appellant therefore prays for this court to set aside the judgment of the trial court and replace it with an order dismissing the suit in the lower court with costs and that in any event the general damages be reassessed downwards and the appellant be awarded costs in the lower court and in this court.
15. The appeal was canvassed by way of written submissions filed by both parties. Learned counsel for the appellant has condensed the grounds of appeal and argued them on three issues, which are that the appellant challenges the trial court’s findings on liability and assessment of general damages specifically on loss of dependency, pain and suffering and loss of expectation of life. There is no submission on the special damages and I take it that the same are not challenged and so they remain as awarded by the lower court. Learned counsel for the respondent submits that the issue is whether the trial magistrate’s judgment is sound and whether the same should be upheld.
16. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
17. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
18. A court of appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did. (See the case of Mwangi & another v Wambugu [1984] KECA 13 (KLR) .
19. On the issue of liability, learned counsel for the appellant submits that the respondents failed to discharge the burden to prove that the appellant was to blame for the accident as required under sections 107, 108 and 109 of the Evidence Act (Cap. 80) Laws of Kenya.
20. Learned counsel has set out the said sections of the law and cited a large number of authorities on the fact of the burden of proof being upon the plaintiff (respondent herein) to adduce evidence that proves negligence on the part of the defendant (appellant herein) even where the defendant fails to file a defence to the suit and where the defendant fails to call any evidence in the suit, as was the case herein. The cases are Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR) , Moi v Muriithi & another [2014] KECA 642 (KLR) , Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR) , Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) , Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another [2010] KEHC 381 (KLR) , Morris Njagi & another v Beatrice Wanjiku Kiura [2019] KEELC 784 (KLR) .
21. Learned counsel therefore submits that once the trial court found that it could not unequivocally state who was liable for the accident, it meant that the respondents had failed to discharge their evidential burden of proof to show that the appellant was to blame and should have dismissed the case at that point. Learned counsel cites section 3(4) of the Evidence Act which provides that a fact is not proved when it is neither proved nor disproved. He buttressed it with the case of Timothy Mulili Nguutu v Cosmas Muendo & another [2021] KEHC 13197 (KLR) and Hasbury’s Laws of England 4 th edition, Volume 34 page 46 - 47 and Volume 17 paras 13 and 14.
22. Learned counsel therefore submits that the appeal should be allowed, the findings on liability of the trial court set aside and replaced with an order dismissing the respondents’ suit
23. Learned counsel for the respondent submits that the appellant did not adduce any evidence to counter that of the respondents and so the respondents’ evidence remained unchallenged. He submits that from the court proceedings, it is evident that the appellant had recorded and filed a witness statement and he was available in court, on the virtual platform to testify on the date the case was coming up for defence hearing but bolted out at the last minute. Learned counsel submits that this was due to apprehension by the appellant that the evidence tendered by him in evidence may be prejudicial to his case. Learned counsel relies on the case of Elgin Finedays Ltd v Webb 1947 AD 744 , it is stated at 745:
“… it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this failure leads naturally to the inference that he fears such evidence will expose facts unfavourable to him …”.
24. That case is cited in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR) where the Court Appeal stated thus on the same issue;-
“We note that the failure to call a particular witness or voluntarily to produce documents or objects in one's possession is conduct evidence. (See J. Wigmore, Evidence § 265, at 87 (3d ed. 1940). In principle, failure by a party to call a material witnesses may be interpreted as an indication of knowledge that his opponent's evidence is true, or at least that the tenor of the evidence withheld would be unfavorable to his cause. An inference will not be allowed if a party introduces evidence explaining the reasons for his conduct, and reason for failure to call a witness and if the evidence is truly unavailable or shown to be immaterial.85. Comparatively, in Bukenya and Others v Uganda [1972] EA 549, it was stated that a court may infer that the evidence of uncalled witnesses would have tended to be adverse.In Mann Holdings Pte Ltd and another v Ung Yoke Hong [2018] SGHC 69, the Singapore High Court drew adverse inference against a party who had failed to call crucial witnesses to testify at trial.”
25. Learned counsel submits that in fact the trial court ought to have found the appellant wholly liable based on his witness statement placed on the court record and his failure to testify at the last minute. I can only but sympathize with learned counsel for bringing up this issue on appeal rather than during the trial. Since the statement was on record filed by the appellant, learned counsel had an opportunity to put the statement to both of his witnesses for them to state what the appellant had stated therein, rather than hope that he would catch the appellant when he comes to testify. That way, the contents would have been brought to the attention of the court as part of the evidence to be relied upon. Unfortunately, that was not done and it cannot be introduced at this late hour.
26. I have considered the grounds of appeal, the record of appeal and the submissions by learned counsels for the parties. The issues for determination from both the appellant and the respondents’ submissions can be summed up as, whether the trial court’s assessment of liability and general damages was erroneous.
27. In the case of Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
28. The evidence before the trial court which was accepted by both parties was that an accident did occur involving the deceased riding a motorcycle and the appellant’s motor vehicle driven by the appellant. Therefore, the fact of the accident occurring was not in dispute. The next question then is who caused the accident and therefore was to blame for the same between the deceased motorcyclist and the driver who failed to testify in the case? It is true as found by the learned trial magistrate that there was no direct evidence to point to either of the parties as the one to blame. However, lack of direct evidence does not mean no evidence. Many cases are decided on the basis of circumstantial evidence. The circumstances in this case are that there was a collision between a motorcycle and a vehicle on the road.
29. It is true as submitted by learned counsel for the appellant that the onus was on the respondents to prove their case and it never shifted to the appellant. That is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya , which provides:
“107. (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.”
30. Even as I am minded to remember that the burden of proof was upon the respondents who wished the court to find in their favour that the appellant had caused the accident by negligence, section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened . It says :
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
31. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1 st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…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.”
32. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
33. In this case, an accident involving the deceased’s motor cycle and the appellant’s vehicle did occur on the road. In the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame. The Court of Appeal said:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of Barclay – Steward Limited & Another v. Waiyaki [1982-88] 1 KAR 1118, this Court said:-
“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”
The Court said further: -
“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
In Baker v Market Harborough Industrial Co-operative Society Ltd; Wallace v Richards (Leicester) Ltd, Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…”
See also Welch v. Standard Bank Ltd [1970] EA 115 at 117 and Simon v. Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame…”
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
34. In the present case, there is no dispute that there was a collision between the appellant’s motor vehicle and the deceased’s motor cycle on the road. PW 2 had no evidence of how the accident occurred. There was no evidence forthcoming from police officers who are expected to conduct investigations and present it to court to assist the court establish the correct state of facts of how the accident occurred. No sketch maps, drawings or legends were produced in evidence due to the failure by PW 1 who took over investigations after his colleague, the investigating officer passed on, to present them to court. He only produced the police abstract as proof that the accident did occur.
35. It was submitted by learned counsel for the appellant that in the circumstances the trial court ought to have dismissed the case for lack of proof by the respondents of causation on the part of the appellant. As held in the case of Khambi & another (supra) it is a well settled principle that an appellate court will not interfere with findings of fact by the trial court unless it is proved that there was an error in principle or the finding is out rightly wrong.
36. Guided by the decision of Omar Hussein Farah (supra), I find that the learned magistrate was correct in her finding that since both motorists owed a duty of care to each other, liability for causation of the accident had to be shared equally between the driver and the rider. It cannot be the case that neither of them was to blame. It is either one of them was to blame or both of them were to blame to a certain degree. The degree of blameworthiness here is split equally between the two. The appellant had an opportunity to present his case and tilt the scales in his favour but he coiled from it. The only inference to be made is that, had he testified, his recorded statement which was clearly unfavourable to his case would have turned him in. Obviously he did not wish to aid the respondents in proving their case.
37. On a balance of probability, on the basis of the evidence that indeed the collision between the appellant’s vehicle and the deceased’s motor cycle occurred on the road during the night, I find that both the driver of the vehicle and the rider of the motor cycle were equally to blame for the accident.
38. Consequently, I find that the learned trial magistrate properly evaluated the evidence and arrived at a correct conclusion on causation of the accident and the blameworthy of the appellant. That decision is therefore affirmed.
39. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
40. The appeal on assessment of damages is on general damages only.
41. On pain and suffering, learned counsel for the appellant submits that an award of KShs 20,000/= would be adequate noting that the deceased died on the spot and KShs 100,000/= for loss of expectation of life. He relied on the case of Janet Chonge Walumbe & 2 others v Julius Mwaniki & another [2019] KEHC 10656 (KLR) where the court observed that:
“The amount of damages under the Law Reform Act for pain and suffering where death immediately or shortly follow the accident and for loss of expectation of life are conventional figures which I accept today at Ksh. 20,000/- and Ksh. 100,000/-, respectively. For the later see the decision of Nkudate v. Touring & Sports Cars Ltd. (1979) KLR 199 where Platt, J. (as he then was) set the conventional sum for loss of expectation of life in Kenya at Sterling pounds 850 (at today’s exchange rate approximately Ksh. 100,000/-).”
42. Learned counsel for the respondents submits that the award of KShs 100,000/= made by the trial court was correct and should not be disturbed as it was in the range of awards made by courts where the deceased died on the spot. He relied on the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] KEHC 9074 (KLR) where a sum of KShs 50,000/= was awarded for pain and suffering where the deceased died on the spot. On loss of expectation of life, learned counsel submits that the award of KShs 300,000/= by the trial court was sound and the award was not excessive. He relies on the case of Daniel Kuria Nganga v Nairobi City Council [2013] KEHC 6181 (KLR) .
43. I have considered the submissions made by learned counsels and taken note of the decisions cited. I have also considered the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) where the High Court, Odunga, J. (as he then was) held as follows on the assessment of damages for pain and suffering and loss of expectation of life:
“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. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
44. Courts have given varying awards for pain and suffering where death occurred on the spot. For instance in the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] KEHC 9074 (KLR) cited by the respondents, the court awarded KShs 50,000/= for pain and suffering where the deceased died on the spot while in the case of Janet Chonge Walumbe & 2 others v Julius Mwaniki & another [2019] KEHC 10656 (KLR) cited by learned cousel for rhe appellant the court awarded KShs 20,000/= for pain and suffering where the death had occurred on the spot. Yet in Nyauma & another (Suing as the administrators on behalf of Beatrice Moraa Nyamboki) v Mwakaya [2026] KECA 348 (KLR) the Court of Appeal did not interfere where it was was dealing with a second appeal where the High Court had sustained an award of KShs 70,000/= for pain and suffering. And in Tumwesigye v Mutua & another (Both Suing on Behalf of the Estate of Michael Mutua Kavuli - Deceased) [2026] KECA 1333 (KLR) the Court of Appeal sustained awards of KShs 50,000/= for pain and suffering for an instant death and KShs 100,000/= for loss of expectation of life.
45. The trial court indicated that it was guided by the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] KEHC 7614 (KLR) in awarding the sum of KShs 100,000/= for pain and suffering. However, in that case, the High Court observed on appeal that there was no doubt that the deceased died after sometime which included taking him to different hospitals and therefore, the deceased must have suffered some considerable pain before dying. That was not the case herein where the deceased died on the spot. I therefore find that the trial court took into account a factor that it ought not to have done. In the circumstances I find that the award of KShs 100,000/= was inordinately high. If the court had been appropriately guided by the decision cited by the respondent, it would not have departed from the award of KShs 50,000/=. I am therefore satisfied that this court is justified to interfere with the award made by the trial court of KShs 100,000/= for pain and suffering and revise it to KShs 50,000/=
46. On the award for loss of expectation of life, the trial court was guided by the case of Daniel Kuria Ngan
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