(Being an appeal from the Judgment of Hon. J.E Kemei delivered on 18 th December, 2024 in the Chief Magistrates Court Makueni CMCC No. E039 of 2023)
Background
1. This is an appeal arising from judgment of Hon. J. Kemei delivered on 18 th December, 2024 in CMCC Makueni Civil suit No. E039 of 2023. The suit originated from a plaint dated 26 th April, 2023 filed by Veronica Syombua Kaswii and Mbithe Mang’engé Nzuve who are wife and mother respectively, suing as legal representatives of the late John Kaswii Mang’eng’e being the plaintiffs in the lower court against Stephen Matheka and Simon Gitau Ndung’u, the defendants.
2. In the suit, the Respondents sought reliefs against the Appellants in the nature of general damages, special damages of Kshs. 46,670/- and costs of the suit and interest thereof. The dispute arose out of a road traffic accident which occurred on or about 9 th July, 2022. It was alleged that the 1 st defendant/appellant was at all material times the driver and/or beneficial owner of motor vehicle registration number KBS 466S and the 2 nd Defendant/Appellant was the registered owner.
3. It was further pleaded that on the material date, the subject motor vehicle was so negligently, carelessly driven or controlled and managed by the respondent or driven at a high speed along Wote- Machakos road at Kithamba area that it lost control and veered off its lane and hit the motor cycle registration KMCN 270Q whom the deceased was riding, thereby causing an accident and occasioning the deceased fatal injuries.
4. The 1 st and 2 nd appellants filed their statements of defence dated 11 th August, 2023 and 5 th July 2023 respectively denying the averments in respect to negligence and liability on their part.
5. The suit proceeded to full hearing and upon close of submissions, the trial court delivered its judgment on 18 th December, 2024 against the Appellants in the total sum of Kshs. 2,118,670/- made up as follows-
(a) Pain and suffering- Kshs.100,000/-
(b) Loss of expectation of life- Kshs.100,000/-
(c) Loss of dependency- Kshs.2,072,000/-
(d) Special damages- Kshs.46,670/-
(e) Costs and interest of the suit.
6. Aggrieved by the outcome, the Appellants preferred this appeal through its amended record of appeal dated 11 th August, 2025 premised on the following condensed grounds-
(a) That the learned Magistrate erred in fact and law by assessing liability at 100% against the Appellants.
(b) That the learned trial magistrate erred in law and fact by disregarding the Appellant's evidence in chief on liability within the primary suit thereby arriving at an erroneous exercise in assessment of liability.
(c) That the Learned Magistrate erred in law and fact in awarding general damages to the Respondents amounting to Kshs 2,072,000/=.
(d) That the Learned Magistrate erred in law and in fact in awarding special damages to the Respondents amounting to Kshs 46,670/=.
(e) That the assessment on liability against the Appellants is an erroneous estimate in regard to the circumstances of the case before the trial Court and weight of precedents in similar circumstances .
(f) That the quantum of general and special damages are excessive and an erroneous estimate of the damages awarded to the Respondents in regard to the circumstances of the case before the trial Court against the weight of precedents in similar circumstances.
(g) That the Learned Magistrate erred by applying the wrong principles in law thereby arriving at a wrong decision.
7. The Appellants therefore seeks to have the trial court’s judgment set aside and substituted with a judgment against the respondents with costs.
8. Directions were subsequently taken that the appeal be canvassed by way of written submissions. The Appellants’ counsel, through written submissions dated 23 rd January, 2026 identified two issues for determination; whether the trial magistrate erred in law and fact in finding the Appellants 100% liable and whether the award of general and special damages was excessive and erroneous.
9. On liability, the Appellants submitted that PW1, Corporal Munyesi, produced the police abstract dated 26 th September 2022 but admitted that he was not the investigating officer. In the police abstract the deceased motorcycle rider was blamed for the accident. Although the Appellants acknowledge that a police abstract is not conclusive proof of liability, they submitted that it remains prima facie evidence of the circumstances of the accident unless displaced by cogent evidence. They placed reliance on the case of Khalifa & Another v Said [2019] eKLR, where the court held that a police abstract attributing blame, although not binding, cannot be ignored where no contrary investigative evidence is tendered. The Appellants submitted that the trial court erred by failing to give the abstract probative value or provide reasons for disregarding it.
10. The Appellants challenged the evidence of PW2, who testified that he was approximately 30 meters from the scene. It is submitted that the accident occurred at about 9.30 p.m. to 10.00 p.m., that PW2 gave inconsistent evidence as to who took the deceased to hospital, was not listed as a witness by the police and never recorded a statement despite allegedly being left in custody of the motorcycle. The Appellants submitted that these circumstances materially weakened his credibility. They cited the case of Timsales Ltd v Wilson Libuywa [2008] eKLR , where the Court of Appeal held that inconsistent and uncorroborated eyewitness evidence should be treated with caution, and Joseph Maina Mwangi v Republic [2000] eKLR , where night-time identification and observation were held to require strict scrutiny due to visibility challenges.
11. The Appellants submitted that PW3, the administrator of the deceased’s estate, testified on dependency and income and her evidence did not establish liability.
12. They further submitted that DW1, the driver of the subject vehicle, testified that the accident occurred at night, that it had stopped in its lawful lane, that the deceased rider rammed into the vehicle, that police officers found the vehicle on its proper lane and that the force of impact threw the rider to the opposite side. The Appellants submitted that DW1’s evidence was consistent, coherent and corroborated by the police abstract. They cited the case of Abdul Hameed Saif v Ali Mohamed Sholan (1955) EACA 270 , where evidence from a witness directly involved at the scene was accorded significant probative value where it was consistent and unshaken under cross-examination.
13. The Appellants submitted that despite this evidence, the trial court held the Appellants 100% liable while failing to evaluate DW1’s testimony. Reliance was placed on Peters v Sunday Post Ltd [1958] EA 424 , where the Court of Appeal held that a decision founded on failure to evaluate material evidence is liable to interference on appeal, and Mwangi v Wambugu [1984] eKLR , where the court emphasized that an appellate court may interfere where the trial court failed to take relevant evidence into account or considered irrelevant matters.
14. The Appellants further submitted that DW1, being a first-hand participant, ought to have been accorded greater weight than PW2, who was 30 meters away, observing an accident at night and whose evidence was allegedly inconsistent. Reliance was placed on Lakhamshi v Attorney General [1971] EA 118 , where the court held that where two versions are presented, the court must determine which is more probable based on credibility, consistency and surrounding circumstances.
15. On quantum, the Appellants submitted that the deceased died one day after the accident and that the trial court’s award of Kshs.100,000/= was excessive considering the short period between the accident and death. The Appellant relied on West Kenya Sugar Co. Ltd v Philip Sumba Amukhaya (suing as the Administrator of the Estate of Erick Sumba Amukhaya) [2019] eKLR , where the High Court reduced an award for pain and suffering where death occurred within hours of the accident. The Appellant also relied on Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR , where an award of Kshs.50,000/= was held reasonable where death occurred shortly after an accident, and Hyder Nthenya Musili v China Wu Yi Ltd & Another [2017] eKLR , where comparable awards were made. The Appellants therefore proposes Kshs.50,000/= as adequate compensation for pain and suffering.
16. On loss of expectation of life, the Appellants are not opposed the award of Kshs.100,000/=.
17. On loss of dependency, the Appellants submitted that although the deceased was described as a farmer, no documentary or corroborative evidence was produced to establish his occupation or income. They cited the case of Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR , where the Court of Appeal held: “A claimant must nevertheless provide some evidence, however minimal, from which the court can infer earnings.”
18. The Appellants submitted that no such evidence was placed before the trial court and that the magistrate erred in adopting speculative income. They cited the case of Daniel Mwangi Kimemia & Another v JGM & Another [2016] eKLR , where the court held that the minimum wage is applicable where the deceased’s occupation and earnings are not proved.
19. The Appellants further submitted that the trial court erred in adopting a multiplier of 24 years for a deceased aged 39 years without factoring in the vagaries and uncertainties of life. They cited the case of Pleasant View School Limited v Rose Mutheu Kithoi & Another [2017] eKLR , where a multiplier of 20 years was upheld for a deceased aged 36 years. The Appellant proposes a multiplier of 18 years. They accept that a dependency ratio of ½ is appropriate.
20. The Appellants proposed a monthly income of Kshs.13,000/=, a multiplier of 18 years and a dependency ratio of ½, giving the computation of Kshs.13,000 × 12 × 18 × ½ = Kshs.1,404,000/=. The Court is urged to set aside the award of Kshs.1,872,000/= and substitute it with Kshs.1,404,000/=.
21. On special damages, the Appellants submitted that although Kshs.46,670/= was pleaded, only Kshs.42,920/= were proved by documentary evidence. They cited the case of Hahn v Singh [1985] KLR 716 , where the court held: “ Special damages must not only be pleaded but must also be strictly proved.” The Appellants urged the Court to reduce the award from Kshs.46,670/= to Kshs.42,920/=.
22. The Appellants concluded that the trial magistrate misapprehended the evidence and failed to apply the settled principles governing liability and general damages. The Appellants urged the Court to allow the appeal, set aside the finding on liability and the award on general damages, and substitute them with orders that are just, fair and consistent with established legal principles.
23. The Respondents, through their written submissions dated 5 th May, 2026 identified two issues raised by the appeal: quantum and liability. On liability, the Respondents relied on Khambi & Another vs. Mahiti and Another 1968] EA 70 , where the court held: "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 it fit to substitute its own apportionment for that made by the trial Judge.”
24. The Respondents further submitted that although the police abstract blamed the deceased, no explanation was given for that conclusion. They contended that the police arrived at the scene after the accident and that the eyewitness evidence should carry greater weight. They relied on Techard Steam & Power Limited V Mather & Platt (K) Limited [2014] KEHC 2322 (KLR) , where the court held:
"59. It must always be remembered that the decision of who to charge where there is a collision occurs rests on the police and the parties have no control over that decision. Therefore, the fact that the police decide to charge one driver and not the other cannot be taken to be conclusive evidence of who between the two drivers is culpable. This was the position adopted by the Court of Appeal in Calistus Ochien'g Oyalo & Others vs. Mr. & Mrs. Aoko Civil Appeal No. 130 of 1996 , where it was held that police do conduct their investigations for their purpose and a party cannot be expected to direct them on how to do it. 60. I therefore do not read too much into the fact that the Appellant was charged and acquitted of the traffic offence.”
25. The Respondents acknowledged that PW2 and DW1 gave conflicting accounts but submitted that DW1’s evidence, as contained in his witness statement and given at trial, was not pleaded and ought to be disregarded. They relied on Independent Electoral and Boundaries Commission & Another V Mule & 3 Others [2014] KECA 890 (KLR) , which cited Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002 , where it was held:
"..it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”
26. The Respondents further relied on Madara & 2 Others V Chite & Another [Supra] , citing Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR , where the court held: "In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings......”
27. The Respondents further submitted that unlike DW1, whose evidence was allegedly inconsistent with the pleadings, PW2’s evidence on how the accident occurred was consistent with the pleadings. They relied on Maawiya Ali Abdala T/A South-Coast Paint & Hardware V Bongo Mwamwero Ngome [2022] EKLR , where the court held: "To address the issue who between the parties is more likely to be stating the truth, it should that the respondent's testimony which is inconsistent with his pleadings must be disregarded such gaps and inconsistencies in pleadings and testimony render the respondent's case not established on a balance of probability or at all. The Court upholds the appellant's submission that John Onteri Momanyi -Versus- Motor Boutique Limited [2018] eKLR applies for the holding that the claimant's contradictory evidence and case cannot be trusted and the respondent's coherent and clear evidence and case in such circumstances prevails….”
28. The Respondents submitted that they proved liability on a balance of probabilities and that the Appellants did not demonstrate that the trial court’s findings were unsupported by evidence, based on a misrepresentation of evidence or founded on wrong legal principles. They therefore urge the Court to uphold the trial court’s findings on liability.
29. On quantum, the Respondents submitted that the trial court did not err in awarding damages. On pain and suffering, they argued that the award of Kshs. 100,000/- was not excessive. They relied in the case of Letayoro & Another vs JK (Suing as the legal representative of the estate of the CK (Deceased) (Civil Appeal 13 of 2020) [2022] KEHC 10309 (KLR) (28 June 2022) (Judgement) , where the court upheld Kshs.150,000/= for a deceased who died immediately after the accident, and Beatrice Mukulu Kang’uta & Another V Silverstone Quarry Limited & Another [2016] eKLR , where Kshs.200,000/= was awarded where the deceased died on the same day.
30. The Respondents submitted that on an appeal on quantum, the consideration is not whether a different court would have awarded a different sum, but whether the amount awarded was so high as to warrant interference. They maintain that Kshs.100,000/= falls within the reasonable range for pain and suffering and should not be disturbed.
31. On loss of expectation of life, the Respondents submitted that the Appellants did not object to the award. On loss of dependency, they submitted that the trial court adopted the minimum wage of Kshs.13,000/= and a dependency ratio of ½, which the Appellants did not object. The dispute is on the multiplier of 24 years. The Respondents submitted that the deceased, being a businessman and farmer in the informal sector, could have worked up to 70 years.
32. To support their position, the Respondents relied in the case of Joseph Mwangi Wanyeki V Alex Muriithi Mucoki & Another [2019] KEHC 3609 (KLR) , where the court held: "The Learned Magistrate therefore exercised her discretion within the limits and principles instructive on assessment of damages. The only point of departure as persuaded by the above authorities is on the multiplier of 15 years. I note that life expectancy in Kenya is between 64 and 69 years as per 2018 World Health Organization data index. It is also well known that the life expectancy is dependent upon enjoyment of good health during the life time of a human being. We are not told that the deceased suffered from any ailment prior to his death. He could therefore as well have lived beyond the age of 70 years and still be involved with his farming and Boda-boda. activities.”
33. The Respondents argued that the Appellants did not guide the trial court on a reasonable multiplier and should not be brought on appeal.
34. The Respondents concluded that the awards under the various heads of general damages were reasonable and that it had not been demonstrated that they constituted an erroneous estimate or were too high to warrant interference. They relied on Joseph Mwangi Wanyeki-Vs-Alex Muriithi Mucoki (2019) eKLR , where a 57-year-old farmer who was also in the boda-boda business was awarded Kshs.2,400,000/= for loss of dependency. They therefore submitted that the Appellants have not demonstrated sufficient grounds for interference with the trial court’s judgment.
Analysis and Determination.
35. This court has evaluated the Appellants’ case as well as the opposition by the Respondents. This appeal is on both liability and quantum. This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. ( Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123 ). This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings- Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348 ).
36. On liability, I have noted the evidence tendered by both parties at the trial court. What is apparent from the record is that the expert evidence of PW1, CPL Paul Mogesi, to a large extent is not reliable on whom was to blame for the accident.
37. CPL Mogesi testified that he was attached to Makueni Traffic Base, and he was in court to produce a Police Abstract in relation to an accident which occurred on 9/07/2022 between a motor vehicle registration number KBS 466S Toyota Probox and motor cycle registration no. KMCN 270Q where the rider died. He stated that he was not the investigating officer in the traffic case as it was assigned to one CPL Njoga who had been transferred. He further stated that there was no conclusion as to whom to blame for the accident.
38. On cross examination, he confirmed that he was not the investigating officer. He admitted that he did not have the police file as the matter was under inquest. He stated that there were no police officers at the scene at the time of the accident but they visited later. He did not produce any sketch maps.
39. CPL Mogesi did not state whether the investigating officer handed over the file to him or on what capacity he was standing in on behalf of the investigating officer. Section 33 of the Evidence Act is clear that when an expert witness testifying on behalf of a colleague who cannot be found or who cannot be procured without incurring expenses deemed unnecessary or unreasonable by court, he must lay basis before stepping on the shoes of the author of a document which in this case was the Police Abstract.
40. CPL Mogesi failed to lay sufficient basis on reasons why he was stepping in for the investigating officer. He simply stated that he was a police officer attached to Makueni traffic Base. He did not give information on whether he had been assigned investigation duties of the traffic incident. He also crucially did not give details on how the accident occurred. This is what he stated in his evidence;
“I was not the investigating officer….. the investigating officer was CPL Njoga who was transferred…….an inquest file has been opened…I don’t have the police file as the matter is an inquest…………there is no conclusion as to who to blame for the accident……the police were not at the scene at the time of the accident. They visited after….I have not produced any sketch maps……..the matter is an inquest”
41. The evidence given by PW1, with regard to whom was to blame for the accident was unreliable given that he was not the investigating officer which rendered his evidence hearsay and of little value to the Plaintiffs/Respondents case in regard to the issue of liability. The Plaintiffs/Respondents case in light of the above only rested on the evidence of PW2 and the Police Abstract.
42. The evidence of PW2, Oliver Kilelo indicate that he was an eye witness. He stated that he saw the subject motor cycle being driven by the deceased. He stated that the motor vehicle was over speeding and it veered off the road and got into the lane of the motorcycle causing the accident. He stated that the motorcycle and the rider were thrown off the road. It is in his evidence that the driver of the motor vehicle was to blame for causing the accident.
43. On cross examination, PW2 stated that he was about 30 meters from the accident scene. He stated that he did not have photos nor sketch maps of the accident scene. He stated that he was not aware of any inquest regarding the accident. He stated that he took the deceased to hospital and kept the motorcycle. He retracted the statement and stated that the deceased was taken to the hospital by another personal car and he remained at the scene. He stated that he was not summoned to record statements. He maintained that the scene was visible as there was a petrol station with flash light and affirmed that the accident occurred on the motorcycle’s side and the subject motor vehicle was to blame for the accident.
44. DW1, Jacques Muthiani Moki testified that he was the driver of the subject motor vehicle and the weather condition was dry with good visibility enhanced by the car’s headlights. He stated that he was driving at approximately 60km/h on his lawful lane when the subject motorcycle which was on the opposite lane was being driven at a high speed. He stated that the rider suddenly changed lanes without any indication which forced him to swerve to the extreme left to avoid a head on collision. He stated that due to the proximity and the speed of the motorcycle, it hit the motor vehicle from the right-hand side. On impact, the motorcycle was thrown off to the left side of the road. He stated that the rider was taken to hospital by a good Samaritan and the matter reported to Makueni Police Station where traffic officers visited the scene. It is in his statement that the rider of the motorcycle was to blame for the accident.
45. On cross- examination, he stated that the accident caused the death of the rider. He maintained that he stopped before the impact. He stated that the police found the subject motor vehicle on its lane and blamed the rider for the accident.
46. Based on the above analysis, this court finds that the trial court fell into error by finding that the appellants solely or 100% liable for the accident based on the evidence available. The Police Abstract on record dated 26 th September, 2022 indicate that the Motorcycle Registration Number KMCN 270Q was to blame for the accident. PW1, CPL Mogesi could not sufficiently lay entire blame on the appellants as he indicated that there was no conclusion as to who to blame for the accident as the matter was at inquest.
47. The evidence of PW1 was challenged on cross examination where he admitted that he was not the investigating officer and he was not sure who was to blame for the accident. He also pointed out that the matter was an inquest and he could not lay blame on any of the parties. He did not produce any sketch maps nor any other documents apart from the Police Abstract.
48. I therefore find that the circumstances of this case leave doubt as to who caused the accident. I rely on the guidance of the court of Appeal’s decision in Hussein Farah Vs. Lento Agencies [2006] eKLR where the Court held that; “… where the circumstances leave doubt as to who caused the accident, liability may properly be apportioned between the parties” and hold that liability should be shared between the appellants and the respondents at the ratio of 50:50%.
49. After finding the parties equally liable, this Court will address the issue of quantum and assessment of damages. I’m guided by the decision in Kenya Power and Lighting Company Ltd. Vs. Zakayo Saitoti Ningola Nairobi Civil Appeal No. 522 of 2004 ,where the court stated that in assessing damages, the court has to bear in mind the following principles-
i. Damages should not be inordinately too high or too low.
ii. They are meant to compensate a party for the loss suffered but not to enrich a party, and each case depends on its facts.
iii. Where past decisions are taken into consideration, they should be taken as mere guidelines and each case depends on its own facts.
iv. Where past awards are taken into consideration as guides, an element of inflation should be taken into consideration.
50. On pain and suffering, the Appellants submitted that the deceased died one day after the accident and that the trial court’s award of Kshs.100,000/= was excessive considering the short period between the accident and death. The Appellants proposed Kshs.50,000/= as adequate compensation for pain and suffering. Having extensively analyzed on the authorities cited and the pain and suffering given that the deceased died one day later, this Court finds the award of Kshs. 100,000/= for pain and suffering being reasonable and cannot be said to be so excessive to call for an intervention of this court. The same is therefore upheld.
51. On loss of expectation of life, the Appellants did not oppose the award of Kshs.100,000/= and the amount is therefore upheld.
52. On loss of dependency, the Appellants submitted that although the deceased was described as a farmer, no documentary or corroborative evidence was produced to establish his occupation or income. The Appellants argued that no such evidence was placed before the trial court and that the magistrate therefore erred in adopting speculative income. The Respondents argued that the Appellants did not object to the award. They pointed out that the trial court adopted the minimum wage of Kshs.13,000/= and a dependency ratio of ½, which the Appellants did not object. They argued that the dispute is on the multiplier of 24 years which the Respondents submitted that the deceased, being a businessman and farmer in the informal sector, could have worked up to 70 years.
53. PW3, Veronica Syombua Kasii stated that the deceased was her husband and their children were aged 17,15 and 13 years respectively at the time of the accident. It is in her evidence that the deceased was earning Kshs. 15,000/- per month and stated she did not have any documentary evidence to support the same. She further stated that the deceased committed 90% of his income to the family.
54. The trial court adopted the minimum wage of Kshs. 13,000/- as guided by the Legal Notice No. 2 The Regulation of Wages (General) Amendment Order with a multiplier of 24 years noting that the deceased was aged 39years on of good general health. This court has analyzed the authorities cited and the reasoning of the trial court and I find that the award of Kshs. 1, 872,000/= for loss of dependency being reasonable and cannot be said to be so excessive to call for an intervention of this court. The same is therefore upheld.
55. On special damages, the Appellants contested that Kshs. 46,670/- awarded was not strictly proved as required by law and the Respondents should have been awarded Kshs. 42,920/- which was supported by documentary proof. The Respondents argued that the award of special damages was granted as pleaded. The special damages comprised:
(a) Obtaining of a grant ad litem Kshs. 30,000/-
(b) Medical and mortuary expenses Kshs. 13,620/-
(c) Medical
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Background
1. This is an appeal arising from judgment of Hon. J. Kemei delivered on 18 th December, 2024 in CMCC Makueni Civil suit No. E039 of 2023. The suit originated from a plaint dated 26 th April, 2023 filed by Veronica Syombua Kaswii and Mbithe Mang’engé Nzuve who are wife and mother respectively, suing as legal representatives of the late John Kaswii Mang’eng’e being the plaintiffs in the lower court against Stephen Matheka and Simon Gitau Ndung’u, the defendants.
2. In the suit, the Respondents sought reliefs against the Appellants in the nature of general damages, special damages of Kshs. 46,670/- and costs of the suit and interest thereof. The dispute arose out of a road traffic accident which occurred on or about 9 th July, 2022. It was alleged that the 1 st defendant/appellant was at all material times the driver and/or beneficial owner of motor vehicle registration number KBS 466S and the 2 nd Defendant/Appellant was the registered owner.
3. It was further pleaded that on the material date, the subject motor vehicle was so negligently, carelessly driven or controlled and managed by the respondent or driven at a high speed along Wote- Machakos road at Kithamba area that it lost control and veered off its lane and hit the motor cycle registration KMCN 270Q whom the deceased was riding, thereby causing an accident and occasioning the deceased fatal injuries.
4. The 1 st and 2 nd appellants filed their statements of defence dated 11 th August, 2023 and 5 th July 2023 respectively denying the averments in respect to negligence and liability on their part.
5. The suit proceeded to full hearing and upon close of submissions, the trial court delivered its judgment on 18 th December, 2024 against the Appellants in the total sum of Kshs. 2,118,670/- made up as follows-
(a) Pain and suffering- Kshs.100,000/-
(b) Loss of expectation of life- Kshs.100,000/-
(c) Loss of dependency- Kshs.2,072,000/-
(d) Special damages- Kshs.46,670/-
(e) Costs and interest of the suit.
6. Aggrieved by the outcome, the Appellants preferred this appeal through its amended record of appeal dated 11 th August, 2025 premised on the following condensed grounds-
(a) That the learned Magistrate erred in fact and law by assessing liability at 100% against the Appellants.
(b) That the learned trial magistrate erred in law and fact by disregarding the Appellant's evidence in chief on liability within the primary suit thereby arriving at an erroneous exercise in assessment of liability.
(c) That the Learned Magistrate erred in law and fact in awarding general damages to the Respondents amounting to Kshs 2,072,000/=.
(d) That the Learned Magistrate erred in law and in fact in awarding special damages to the Respondents amounting to Kshs 46,670/=.
(e) That the assessment on liability against the Appellants is an erroneous estimate in regard to the circumstances of the case before the trial Court and weight of precedents in similar circumstances .
(f) That the quantum of general and special damages are excessive and an erroneous estimate of the damages awarded to the Respondents in regard to the circumstances of the case before the trial Court against the weight of precedents in similar circumstances.
(g) That the Learned Magistrate erred by applying the wrong principles in law thereby arriving at a wrong decision.
7. The Appellants therefore seeks to have the trial court’s judgment set aside and substituted with a judgment against the respondents with costs.
8. Directions were subsequently taken that the appeal be canvassed by way of written submissions. The Appellants’ counsel, through written submissions dated 23 rd January, 2026 identified two issues for determination; whether the trial magistrate erred in law and fact in finding the Appellants 100% liable and whether the award of general and special damages was excessive and erroneous.
9. On liability, the Appellants submitted that PW1, Corporal Munyesi, produced the police abstract dated 26 th September 2022 but admitted that he was not the investigating officer. In the police abstract the deceased motorcycle rider was blamed for the accident. Although the Appellants acknowledge that a police abstract is not conclusive proof of liability, they submitted that it remains prima facie evidence of the circumstances of the accident unless displaced by cogent evidence. They placed reliance on the case of Khalifa & Another v Said [2019] eKLR, where the court held that a police abstract attributing blame, although not binding, cannot be ignored where no contrary investigative evidence is tendered. The Appellants submitted that the trial court erred by failing to give the abstract probative value or provide reasons for disregarding it.
10. The Appellants challenged the evidence of PW2, who testified that he was approximately 30 meters from the scene. It is submitted that the accident occurred at about 9.30 p.m. to 10.00 p.m., that PW2 gave inconsistent evidence as to who took the deceased to hospital, was not listed as a witness by the police and never recorded a statement despite allegedly being left in custody of the motorcycle. The Appellants submitted that these circumstances materially weakened his credibility. They cited the case of Timsales Ltd v Wilson Libuywa [2008] eKLR , where the Court of Appeal held that inconsistent and uncorroborated eyewitness evidence should be treated with caution, and Joseph Maina Mwangi v Republic [2000] eKLR , where night-time identification and observation were held to require strict scrutiny due to visibility challenges.
11. The Appellants submitted that PW3, the administrator of the deceased’s estate, testified on dependency and income and her evidence did not establish liability.
12. They further submitted that DW1, the driver of the subject vehicle, testified that the accident occurred at night, that it had stopped in its lawful lane, that the deceased rider rammed into the vehicle, that police officers found the vehicle on its proper lane and that the force of impact threw the rider to the opposite side. The Appellants submitted that DW1’s evidence was consistent, coherent and corroborated by the police abstract. They cited the case of Abdul Hameed Saif v Ali Mohamed Sholan (1955) EACA 270 , where evidence from a witness directly involved at the scene was accorded significant probative value where it was consistent and unshaken under cross-examination.
13. The Appellants submitted that despite this evidence, the trial court held the Appellants 100% liable while failing to evaluate DW1’s testimony. Reliance was placed on Peters v Sunday Post Ltd [1958] EA 424 , where the Court of Appeal held that a decision founded on failure to evaluate material evidence is liable to interference on appeal, and Mwangi v Wambugu [1984] eKLR , where the court emphasized that an appellate court may interfere where the trial court failed to take relevant evidence into account or considered irrelevant matters.
14. The Appellants further submitted that DW1, being a first-hand participant, ought to have been accorded greater weight than PW2, who was 30 meters away, observing an accident at night and whose evidence was allegedly inconsistent. Reliance was placed on Lakhamshi v Attorney General [1971] EA 118 , where the court held that where two versions are presented, the court must determine which is more probable based on credibility, consistency and surrounding circumstances.
15. On quantum, the Appellants submitted that the deceased died one day after the accident and that the trial court’s award of Kshs.100,000/= was excessive considering the short period between the accident and death. The Appellant relied on West Kenya Sugar Co. Ltd v Philip Sumba Amukhaya (suing as the Administrator of the Estate of Erick Sumba Amukhaya) [2019] eKLR , where the High Court reduced an award for pain and suffering where death occurred within hours of the accident. The Appellant also relied on Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR , where an award of Kshs.50,000/= was held reasonable where death occurred shortly after an accident, and Hyder Nthenya Musili v China Wu Yi Ltd & Another [2017] eKLR , where comparable awards were made. The Appellants therefore proposes Kshs.50,000/= as adequate compensation for pain and suffering.
16. On loss of expectation of life, the Appellants are not opposed the award of Kshs.100,000/=.
17. On loss of dependency, the Appellants submitted that although the deceased was described as a farmer, no documentary or corroborative evidence was produced to establish his occupation or income. They cited the case of Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR , where the Court of Appeal held: “A claimant must nevertheless provide some evidence, however minimal, from which the court can infer earnings.”
18. The Appellants submitted that no such evidence was placed before the trial court and that the magistrate erred in adopting speculative income. They cited the case of Daniel Mwangi Kimemia & Another v JGM & Another [2016] eKLR , where the court held that the minimum wage is applicable where the deceased’s occupation and earnings are not proved.
19. The Appellants further submitted that the trial court erred in adopting a multiplier of 24 years for a deceased aged 39 years without factoring in the vagaries and uncertainties of life. They cited the case of Pleasant View School Limited v Rose Mutheu Kithoi & Another [2017] eKLR , where a multiplier of 20 years was upheld for a deceased aged 36 years. The Appellant proposes a multiplier of 18 years. They accept that a dependency ratio of ½ is appropriate.
20. The Appellants proposed a monthly income of Kshs.13,000/=, a multiplier of 18 years and a dependency ratio of ½, giving the computation of Kshs.13,000 × 12 × 18 × ½ = Kshs.1,404,000/=. The Court is urged to set aside the award of Kshs.1,872,000/= and substitute it with Kshs.1,404,000/=.
21. On special damages, the Appellants submitted that although Kshs.46,670/= was pleaded, only Kshs.42,920/= were proved by documentary evidence. They cited the case of Hahn v Singh [1985] KLR 716 , where the court held: “ Special damages must not only be pleaded but must also be strictly proved.” The Appellants urged the Court to reduce the award from Kshs.46,670/= to Kshs.42,920/=.
22. The Appellants concluded that the trial magistrate misapprehended the evidence and failed to apply the settled principles governing liability and general damages. The Appellants urged the Court to allow the appeal, set aside the finding on liability and the award on general damages, and substitute them with orders that are just, fair and consistent with established legal principles.
23. The Respondents, through their written submissions dated 5 th May, 2026 identified two issues raised by the appeal: quantum and liability. On liability, the Respondents relied on Khambi & Another vs. Mahiti and Another 1968] EA 70 , where the court held: "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 it fit to substitute its own apportionment for that made by the trial Judge.”
24. The Respondents further submitted that although the police abstract blamed the deceased, no explanation was given for that conclusion. They contended that the police arrived at the scene after the accident and that the eyewitness evidence should carry greater weight. They relied on Techard Steam & Power Limited V Mather & Platt (K) Limited [2014] KEHC 2322 (KLR) , where the court held:
"59. It must always be remembered that the decision of who to charge where there is a collision occurs rests on the police and the parties have no control over that decision. Therefore, the fact that the police decide to charge one driver and not the other cannot be taken to be conclusive evidence of who between the two drivers is culpable. This was the position adopted by the Court of Appeal in Calistus Ochien'g Oyalo & Others vs. Mr. & Mrs. Aoko Civil Appeal No. 130 of 1996 , where it was held that police do conduct their investigations for their purpose and a party cannot be expected to direct them on how to do it. 60. I therefore do not read too much into the fact that the Appellant was charged and acquitted of the traffic offence.”
25. The Respondents acknowledged that PW2 and DW1 gave conflicting accounts but submitted that DW1’s evidence, as contained in his witness statement and given at trial, was not pleaded and ought to be disregarded. They relied on Independent Electoral and Boundaries Commission & Another V Mule & 3 Others [2014] KECA 890 (KLR) , which cited Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002 , where it was held:
"..it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”
26. The Respondents further relied on Madara & 2 Others V Chite & Another [Supra] , citing Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR , where the court held: "In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings......”
27. The Respondents further submitted that unlike DW1, whose evidence was allegedly inconsistent with the pleadings, PW2’s evidence on how the accident occurred was consistent with the pleadings. They relied on Maawiya Ali Abdala T/A South-Coast Paint & Hardware V Bongo Mwamwero Ngome [2022] EKLR , where the court held: "To address the issue who between the parties is more likely to be stating the truth, it should that the respondent's testimony which is inconsistent with his pleadings must be disregarded such gaps and inconsistencies in pleadings and testimony render the respondent's case not established on a balance of probability or at all. The Court upholds the appellant's submission that John Onteri Momanyi -Versus- Motor Boutique Limited [2018] eKLR applies for the holding that the claimant's contradictory evidence and case cannot be trusted and the respondent's coherent and clear evidence and case in such circumstances prevails….”
28. The Respondents submitted that they proved liability on a balance of probabilities and that the Appellants did not demonstrate that the trial court’s findings were unsupported by evidence, based on a misrepresentation of evidence or founded on wrong legal principles. They therefore urge the Court to uphold the trial court’s findings on liability.
29. On quantum, the Respondents submitted that the trial court did not err in awarding damages. On pain and suffering, they argued that the award of Kshs. 100,000/- was not excessive. They relied in the case of Letayoro & Another vs JK (Suing as the legal representative of the estate of the CK (Deceased) (Civil Appeal 13 of 2020) [2022] KEHC 10309 (KLR) (28 June 2022) (Judgement) , where the court upheld Kshs.150,000/= for a deceased who died immediately after the accident, and Beatrice Mukulu Kang’uta & Another V Silverstone Quarry Limited & Another [2016] eKLR , where Kshs.200,000/= was awarded where the deceased died on the same day.
30. The Respondents submitted that on an appeal on quantum, the consideration is not whether a different court would have awarded a different sum, but whether the amount awarded was so high as to warrant interference. They maintain that Kshs.100,000/= falls within the reasonable range for pain and suffering and should not be disturbed.
31. On loss of expectation of life, the Respondents submitted that the Appellants did not object to the award. On loss of dependency, they submitted that the trial court adopted the minimum wage of Kshs.13,000/= and a dependency ratio of ½, which the Appellants did not object. The dispute is on the multiplier of 24 years. The Respondents submitted that the deceased, being a businessman and farmer in the informal sector, could have worked up to 70 years.
32. To support their position, the Respondents relied in the case of Joseph Mwangi Wanyeki V Alex Muriithi Mucoki & Another [2019] KEHC 3609 (KLR) , where the court held: "The Learned Magistrate therefore exercised her discretion within the limits and principles instructive on assessment of damages. The only point of departure as persuaded by the above authorities is on the multiplier of 15 years. I note that life expectancy in Kenya is between 64 and 69 years as per 2018 World Health Organization data index. It is also well known that the life expectancy is dependent upon enjoyment of good health during the life time of a human being. We are not told that the deceased suffered from any ailment prior to his death. He could therefore as well have lived beyond the age of 70 years and still be involved with his farming and Boda-boda. activities.”
33. The Respondents argued that the Appellants did not guide the trial court on a reasonable multiplier and should not be brought on appeal.
34. The Respondents concluded that the awards under the various heads of general damages were reasonable and that it had not been demonstrated that they constituted an erroneous estimate or were too high to warrant interference. They relied on Joseph Mwangi Wanyeki-Vs-Alex Muriithi Mucoki (2019) eKLR , where a 57-year-old farmer who was also in the boda-boda business was awarded Kshs.2,400,000/= for loss of dependency. They therefore submitted that the Appellants have not demonstrated sufficient grounds for interference with the trial court’s judgment.
Analysis and Determination.
35. This court has evaluated the Appellants’ case as well as the opposition by the Respondents. This appeal is on both liability and quantum. This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. ( Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123 ). This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings- Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348 ).
36. On liability, I have noted the evidence tendered by both parties at the trial court. What is apparent from the record is that the expert evidence of PW1, CPL Paul Mogesi, to a large extent is not reliable on whom was to blame for the accident.
37. CPL Mogesi testified that he was attached to Makueni Traffic Base, and he was in court to produce a Police Abstract in relation to an accident which occurred on 9/07/2022 between a motor vehicle registration number KBS 466S Toyota Probox and motor cycle registration no. KMCN 270Q where the rider died. He stated that he was not the investigating officer in the traffic case as it was assigned to one CPL Njoga who had been transferred. He further stated that there was no conclusion as to whom to blame for the accident.
38. On cross examination, he confirmed that he was not the investigating officer. He admitted that he did not have the police file as the matter was under inquest. He stated that there were no police officers at the scene at the time of the accident but they visited later. He did not produce any sketch maps.
39. CPL Mogesi did not state whether the investigating officer handed over the file to him or on what capacity he was standing in on behalf of the investigating officer. Section 33 of the Evidence Act is clear that when an expert witness testifying on behalf of a colleague who cannot be found or who cannot be procured without incurring expenses deemed unnecessary or unreasonable by court, he must lay basis before stepping on the shoes of the author of a document which in this case was the Police Abstract.
40. CPL Mogesi failed to lay sufficient basis on reasons why he was stepping in for the investigating officer. He simply stated that he was a police officer attached to Makueni traffic Base. He did not give information on whether he had been assigned investigation duties of the traffic incident. He also crucially did not give details on how the accident occurred. This is what he stated in his evidence;
“I was not the investigating officer….. the investigating officer was CPL Njoga who was transferred…….an inquest file has been opened…I don’t have the police file as the matter is an inquest…………there is no conclusion as to who to blame for the accident……the police were not at the scene at the time of the accident. They visited after….I have not produced any sketch maps……..the matter is an inquest”
41. The evidence given by PW1, with regard to whom was to blame for the accident was unreliable given that he was not the investigating officer which rendered his evidence hearsay and of little value to the Plaintiffs/Respondents case in regard to the issue of liability. The Plaintiffs/Respondents case in light of the above only rested on the evidence of PW2 and the Police Abstract.
42. The evidence of PW2, Oliver Kilelo indicate that he was an eye witness. He stated that he saw the subject motor cycle being driven by the deceased. He stated that the motor vehicle was over speeding and it veered off the road and got into the lane of the motorcycle causing the accident. He stated that the motorcycle and the rider were thrown off the road. It is in his evidence that the driver of the motor vehicle was to blame for causing the accident.
43. On cross examination, PW2 stated that he was about 30 meters from the accident scene. He stated that he did not have photos nor sketch maps of the accident scene. He stated that he was not aware of any inquest regarding the accident. He stated that he took the deceased to hospital and kept the motorcycle. He retracted the statement and stated that the deceased was taken to the hospital by another personal car and he remained at the scene. He stated that he was not summoned to record statements. He maintained that the scene was visible as there was a petrol station with flash light and affirmed that the accident occurred on the motorcycle’s side and the subject motor vehicle was to blame for the accident.
44. DW1, Jacques Muthiani Moki testified that he was the driver of the subject motor vehicle and the weather condition was dry with good visibility enhanced by the car’s headlights. He stated that he was driving at approximately 60km/h on his lawful lane when the subject motorcycle which was on the opposite lane was being driven at a high speed. He stated that the rider suddenly changed lanes without any indication which forced him to swerve to the extreme left to avoid a head on collision. He stated that due to the proximity and the speed of the motorcycle, it hit the motor vehicle from the right-hand side. On impact, the motorcycle was thrown off to the left side of the road. He stated that the rider was taken to hospital by a good Samaritan and the matter reported to Makueni Police Station where traffic officers visited the scene. It is in his statement that the rider of the motorcycle was to blame for the accident.
45. On cross- examination, he stated that the accident caused the death of the rider. He maintained that he stopped before the impact. He stated that the police found the subject motor vehicle on its lane and blamed the rider for the accident.
46. Based on the above analysis, this court finds that the trial court fell into error by finding that the appellants solely or 100% liable for the accident based on the evidence available. The Police Abstract on record dated 26 th September, 2022 indicate that the Motorcycle Registration Number KMCN 270Q was to blame for the accident. PW1, CPL Mogesi could not sufficiently lay entire blame on the appellants as he indicated that there was no conclusion as to who to blame for the accident as the matter was at inquest.
47. The evidence of PW1 was challenged on cross examination where he admitted that he was not the investigating officer and he was not sure who was to blame for the accident. He also pointed out that the matter was an inquest and he could not lay blame on any of the parties. He did not produce any sketch maps nor any other documents apart from the Police Abstract.
48. I therefore find that the circumstances of this case leave doubt as to who caused the accident. I rely on the guidance of the court of Appeal’s decision in Hussein Farah Vs. Lento Agencies [2006] eKLR where the Court held that; “… where the circumstances leave doubt as to who caused the accident, liability may properly be apportioned between the parties” and hold that liability should be shared between the appellants and the respondents at the ratio of 50:50%.
49. After finding the parties equally liable, this Court will address the issue of quantum and assessment of damages. I’m guided by the decision in Kenya Power and Lighting Company Ltd. Vs. Zakayo Saitoti Ningola Nairobi Civil Appeal No. 522 of 2004 ,where the court stated that in assessing damages, the court has to bear in mind the following principles-
i. Damages should not be inordinately too high or too low.
ii. They are meant to compensate a party for the loss suffered but not to enrich a party, and each case depends on its facts.
iii. Where past decisions are taken into consideration, they should be taken as mere guidelines and each case depends on its own facts.
iv. Where past awards are taken into consideration as guides, an element of inflation should be taken into consideration.
50. On pain and suffering, the Appellants submitted that the deceased died one day after the accident and that the trial court’s award of Kshs.100,000/= was excessive considering the short period between the accident and death. The Appellants proposed Kshs.50,000/= as adequate compensation for pain and suffering. Having extensively analyzed on the authorities cited and the pain and suffering given that the deceased died one day later, this Court finds the award of Kshs. 100,000/= for pain and suffering being reasonable and cannot be said to be so excessive to call for an intervention of this court. The same is therefore upheld.
51. On loss of expectation of life, the Appellants did not oppose the award of Kshs.100,000/= and the amount is therefore upheld.
52. On loss of dependency, the Appellants submitted that although the deceased was described as a farmer, no documentary or corroborative evidence was produced to establish his occupation or income. The Appellants argued that no such evidence was placed before the trial court and that the magistrate therefore erred in adopting speculative income. The Respondents argued that the Appellants did not object to the award. They pointed out that the trial court adopted the minimum wage of Kshs.13,000/= and a dependency ratio of ½, which the Appellants did not object. They argued that the dispute is on the multiplier of 24 years which the Respondents submitted that the deceased, being a businessman and farmer in the informal sector, could have worked up to 70 years.
53. PW3, Veronica Syombua Kasii stated that the deceased was her husband and their children were aged 17,15 and 13 years respectively at the time of the accident. It is in her evidence that the deceased was earning Kshs. 15,000/- per month and stated she did not have any documentary evidence to support the same. She further stated that the deceased committed 90% of his income to the family.
54. The trial court adopted the minimum wage of Kshs. 13,000/- as guided by the Legal Notice No. 2 The Regulation of Wages (General) Amendment Order with a multiplier of 24 years noting that the deceased was aged 39years on of good general health. This court has analyzed the authorities cited and the reasoning of the trial court and I find that the award of Kshs. 1, 872,000/= for loss of dependency being reasonable and cannot be said to be so excessive to call for an intervention of this court. The same is therefore upheld.
55. On special damages, the Appellants contested that Kshs. 46,670/- awarded was not strictly proved as required by law and the Respondents should have been awarded Kshs. 42,920/- which was supported by documentary proof. The Respondents argued that the award of special damages was granted as pleaded. The special damages comprised:
(a) Obtaining of a grant ad litem Kshs. 30,000/-
(b) Medical and mortuary expenses Kshs. 13,620/-
(c) Medical
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