A. INTRODUCTION.
1. This appeal emanates from the judgement and decree of Hon. M.A. Odhiambo, Senior Resident Magistrate delivered on 31st October, 2023 in Meru CMCC No. E205 of 2022, a tortious liability claim arising out of a road traffic accident that is said to have occurred on 24th January, 2021 in which the deceased met his demise. The appeal challenges the findings of the trial court on both liability and quantum.
2. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 27th November, 2023, in seeking to set aside the judgement and decree of the trial court:
i. THAT the learned trial Magistrate erred in law and in facts by failing to consider or take into consideration that the Appellant had on a balance of probabilities established that the Respondent and his authorized agents were wholly liable for the accident thereby arriving at the wrong conclusion on liability.
ii. THAT the learned trial Magistrate erred in law and in facts in apportioning ratio on liability at the ratio of 50:50 between the Appellant and the Respondent whereas the Respondent did not call any evidence during trial and/or successfully challenge the version of the eye witness account thereby fell into error on the apportionment of liability.
iii. THAT the learned trial Magistrate erred in law and in facts by following the Court of Appeal decision in Chege Kimotho & others v Maria Vesters & Anor [1988] eKLR whereas the said decision had been overruled by the decision in Salvatore De Luca v Abdullahi Hemed Khalil & Anor [1994] eKLR, which is a more recent decision on award of loss of consortium thereby fell into error while refusing to award damages under loss of consortium thereby arriving at the wrong conclusion.
iv. THAT the learned trial Magistrate erred in law and in facts in using a global sum approach in complete ignorance of the uncontroverted evidence on income of the deceased person of Kes. 40,000/- adduced by the Appellant thereby fell into error on principle on the amounts of loss of dependency payable to the estate of the deceased.
v. THAT the judgment and decree of the learned trial Magistrate dated 31st October 2023 is against the weight of evidence, submissions and authorities placed before the court therefore erroneous.
vi. THAT the judgment of the learned trial Magistrate dated 31st October, 2023 is bad in law.
3. The Appellant proposes that the appeal be allowed, the judgement of the trial court dated 31st October, 2023 be set aside, this Court be pleased to find the Respondent 100% liable for the accident and proceeds to reassess the damages payable to the Appellant under the head of loss of dependency and that the Appellant be awarded the costs of this appeal as well as the costs of the proceedings before the trial court.
B. DUTY OF THIS COURT.
4. As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
vii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
C. THE PLEADINGS BEFORE THE TRIAL COURT.
7. The suit before the trial court was commenced vide the plaint dated 6th July, 2022 in which the Appellant pleaded that he had obtained a limited grant ad litem in respect of the estate of the late Samwel Muchui and was therefore clothed with the requisite legal capacity to institute the suit on behalf of the deceased’s estate.
8. The Appellant pleaded that at all material times, the Respondent was the beneficial owner of motor vehicle registration number KBQ 707J, an Isuzu lorry.
9. It was averred that on 24th January, 2021, the deceased was lawfully riding motorcycle registration number KMES 389H along the Meru–Industrial Road near Walker Garage Junction within Meru Town when the Respondent, by himself, his driver, agent and/or servant, so negligently, recklessly and carelessly drove, managed and controlled the said motor vehicle that it veered off the road and collided with the motorcycle, thereby fatally injuring the deceased.
10. The Appellant attributed the accident wholly to the negligence of the Respondent and/or his driver, whose particulars included driving at an excessive speed, driving recklessly and on the wrong side of the road, failing to keep any proper lookout, failing to stop, swerve or otherwise control the motor vehicle so as to avoid the collision, driving without due regard to other road users and traffic regulations, driving a defective motor vehicle and thereby causing the accident and the deceased’s death.
11. The Appellant pleaded that as a consequence of the accident, the deceased sustained fatal injuries, occasioning loss and damage to his estate and dependants.
12. It was further pleaded that at the time of his death, the deceased was 19 years old, was in good health and earned approximately Ksh.40,000/- per month as a driver and businessman. The Appellant identified the deceased’s beneficiaries as his wife, Linet Kiende, his son, Tony Mwenda and his uncle, Stanley Murerwa Mugambi.
13. The Appellant claimed special damages amounting to Ksh.158,930/-, comprising hospital expenses, post-mortem expenses, the cost of obtaining the limited grant ad litem, funeral expenses, motor vehicle search fees, the cost of issuing a demand notice and postage charges. He also sought damages under the Fatal Accidents Act and the Law Reform Act, damages for loss of consortium, costs of the suit and interest.
14. The Appellant further pleaded that he would rely on the doctrines of res ipsa loquitur and vicarious liability, averred that the cause of action arose within the jurisdiction of the trial court, and stated that despite issuing the requisite demand and notice of intention to sue, the Respondent and his insurers failed to settle the claim, thereby necessitating the institution of the suit.
15. The Respondent resisted the Appellant’s claim and to that end filed a statement of defence dated 15th March, 2023 in which he generally denied the allegations contained in the plaint and put the Appellant to strict proof thereof.
16. The Respondent admitted the descriptive averments relating to the parties but denied being the beneficial owner of motor vehicle registration number KBQ 707J, thereby putting the Appellant to strict proof of ownership.
17. The Respondent further denied that the Appellant had the requisite legal capacity to institute the suit on behalf of the estate of the deceased and put him to strict proof of the alleged limited grant ad litem.
18. The Respondent denied that the accident pleaded by the Appellant occurred in the manner alleged, or at all, and specifically denied the allegations of negligence attributed to him or to his driver, servant and/or agent.
19. Without prejudice to the foregoing denials, the Respondent pleaded in the alternative that if the accident occurred as alleged, then it was wholly or substantially caused by the negligence of the deceased. In that regard, the Respondent alleged that the deceased rode the motorcycle at an excessive speed, failed to observe traffic rules, rode in a zigzag manner, overtook dangerously, failed to heed the approach of the Respondent’s motor vehicle, failed to take evasive action to avoid the collision and rode into the path of the said motor vehicle.
20. The Respondent further pleaded that he would rely on the doctrine of contributory negligence, the provisions of the Traffic Act and the Highway Code.
21. The Respondent also denied that the deceased sustained the injuries alleged or that his estate suffered the loss and damage pleaded. He similarly denied the claim for special damages, the deceased’s age, occupation and alleged monthly income, as well as the particulars of the alleged dependants, all of which he put the Appellant to strict proof.
22. The Respondent denied the applicability of the doctrines of res ipsa loquitur and vicarious liability, denied having been served with a demand letter or notice of intention to sue, admitted that the trial court had jurisdiction to entertain the suit, but denied that any cause of action existed against him.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
23. The Appellant called Police Constable Robert Tomno (PW1) as his first witness. The witness testified that he was attached to Meru Police Station and produced the police abstract (PExh1) relating to a road traffic accident which occurred on 24th January, 2021 at about 7.00p.m. near Walker Garage within Meru Town involving motor vehicle registration number KBQ 707J, an Isuzu lorry, and motorcycle registration number KMES 389H.
24. The witness stated that the accident resulted in the death of one Samwel Muchui and was recorded under Occurrence Book (OB) No. 4 of 24th January, 2021. He further testified that the investigating officer was Sergeant Tinega, who had since been transferred from the station, and that investigations into the accident were still pending.
25. Upon cross-examination, the witness conceded that he was not the investigating officer and had not carried the police investigation file to court. He stated that he was only producing the police abstract, confirmed that the motorcycle did not have an insurance policy and testified that no person had been charged in connection with the accident. He further acknowledged that the police abstract did not attribute blame to any party.
26. In re-examination, the witness reiterated that the motorcycle was uninsured and that investigations into the accident had not been concluded.
27. The Appellant testified before the trial court as PW2 and adopted the contents of his witness statement dated 6th July, 2022 in which he stated that on 24th January, 2021, the deceased, Samwel Muchui, was lawfully riding motorcycle registration number KMES 389H along the Meru–Industrial Road near Walker Garage Junction when motor vehicle registration number KBQ 707J, an Isuzu lorry, was negligently driven, veered from its lane and collided with the motorcycle, thereby inflicting fatal injuries upon the deceased.
28. The Appellant attributed the accident to the negligence of the driver of the said motor vehicle, contending that he drove at an excessive speed, veered off his lane and otherwise drove negligently. He testified that the deceased succumbed to the injuries sustained in the accident on the following day.
29. The Appellant further testified that prior to his death, the deceased was in good health and worked as a driver and businessman earning in excess of Ksh.40,000/- per month. According to the Appellant, the deceased supported his wife, child and the Appellant, and his death occasioned the family substantial loss and damage. He therefore prayed for the reliefs sought in the plaint.
30. Upon cross-examination, the Appellant admitted that he did not witness the accident and that the information regarding the manner in which it occurred, including the allegation that the Respondent’s motor vehicle was being driven at an excessive speed, had been relayed to him by other persons.
31. He testified that the deceased was a taxi driver and also sold cakes, although he conceded that he did not produce the deceased’s driving licence or documentary proof of the alleged cake business. He further acknowledged that the deceased’s death certificate described his occupation as that of a farmer.
32. In re-examination, the Appellant reiterated that he did not witness the accident but arrived at the scene as the deceased was being taken away and observed that he was lying off the road.
33. The Appellant maintained that although he had not produced the deceased’s driving licence, the family did not supply the information appearing in the death certificate regarding the deceased’s occupation.
34. The Appellant produced the following documents in support of his case:
- The deceased’s certificate of death dated 30th July, 2021 – PExh2.
- Post mortem report dated 28th January, 2021 – PExh3.
- Motor vehicle search and its receipt for Ksh.550/- PExh4a and b.
- Post mortem receipt for Ksh.7,000/- PExh5.
- Loyal Funeral Services receipt dated 28th January, 2021 for Ksh.97,300/- – PExh6.
- Mortuary expenses receipt for Ksh.5,700/- – PExh7.
- Demand notice dated 12th April, 2022 addressed to Corporate Insurance – PExh8.
- Receipt for Ksh.5,000/- PExh9.
- G4S receipt for Ksh.380/- dated 13th April, 2021 – PExh10.
- Treatment receipt for Ksh.3,000/- – PExh11.
- Chief’s letter dated 16th June, 2022 – PExh12.
- Limited grant ad litem dated 23rd November, 2021 PExh13.
- Receipt dated 22nd November, 2021 for Ksh.40,000/- obtaining the limited grant ad litem – PExh14.
- Certificate of birth for Tony Mwenda – PExh15.
35. The Appellant called Erick Gitonga Muriungi (PW3), who testified and adopted the contents of his witness statement dated 6th July, 2022. He stated that on 24th January, 2021, while walking along the opposite side of the Meru–Industrial Road near Walker Garage Junction within Meru Town, he saw the deceased riding motorcycle registration number KMES 389H when motor vehicle registration number KBQ 707J, an Isuzu lorry, approached at a high speed, veered off its lane and collided with the motorcycle, causing the deceased to sustain fatal injuries.
36. PW3 testified that he was near GGV Church and heading towards Meru Town when he heard screams and observed the lorry approaching from the opposite direction. According to him, the deceased had slowed down and was no longer on the main carriageway but was on the side of the road when the lorry veered from its lane onto the pedestrian walkway and struck the motorcycle.
37. The witness maintained that the lorry was being driven at an excessive speed and that its driver ought to have slowed down, attributing the accident wholly to the negligence of the driver.
38. Upon cross-examination, PW3 stated that the accident occurred at about 6.30p.m. Although he could not recall the colour of the lorry, he maintained that he saw the deceased slow down before the collision.
39. The witness testified that the deceased was wearing a helmet and reflective gear and was travelling from Meru Town towards Walker Garage. He further conceded that he did not record a witness statement with the police.
40. PW3 acknowledged that he knew both the Appellant and the deceased, having previously conducted business with the Appellant, and stated that the deceased worked both as a driver and as a cake vendor.
41. In re-examination, PW3 reiterated that the deceased earned a living as both a driver and a cake vendor. He stated that the deceased was wearing a helmet and was therefore unlikely to have heard the lorry approaching from behind. He maintained that the lorry was travelling behind the deceased immediately before the collision and reaffirmed his opinion that the lorry driver was solely to blame for the accident.
42. Although afforded an opportunity to do so, the Respondent elected not to adduce any oral or documentary evidence in support of his defence.
E. THE FINDINGS OF THE TRIAL COURT.
43. In its judgment rendered on 31st October, 2023, the trial court identified the issues for determination as being whether the Respondent was liable for the accident, the quantum of damages payable and the issue of costs. The court reviewed the pleadings, the oral and documentary evidence adduced by the Appellant, and the parties’ respective submissions before embarking on its analysis.
44. On the question of liability, the trial court observed that the burden of proving negligence lay upon the Appellant and that the applicable standard of proof was that of a balance of probabilities. In that regard, the court relied on Mount Elgon Hardware v United Millers Limited [1996] KLR, wherein the Court of Appeal held that a party who alleges negligence must prove the particular acts of negligence pleaded and cannot be permitted to prove matters that were not pleaded.
45. The trial court considered the evidence of PW3, the only eyewitness called by the Appellant, and found that his account of the accident was inconsistent and inconclusive. The court observed that PW3 gave conflicting accounts regarding the direction in which the motor vehicle and the motorcycle were travelling and that his testimony did not satisfactorily establish how the collision occurred.
46. The court further noted that PW1 merely produced the police abstract, was not the investigating officer, did not have the police investigation file or a sketch plan, and was therefore unable to shed light on the point of impact or the circumstances surrounding the accident.
47. Having found that the evidence did not conclusively establish which of the two road users was to blame for the collision, the trial court relied on the decision of the Court of Appeal in Hussein Omar Farah v Lento Agencies [2006] eKLR, in which the Court held that where the evidence does not enable the court to determine which of two drivers was responsible for an accident, both should ordinarily be held equally to blame.
48. Applying that principle, the trial court apportioned liability equally between the parties and held the Respondent and the deceased each 50% liable for the occurrence of the accident.
49. Turning to the issue of quantum, the trial court first considered the claim under the Law Reform Act. On damages for pain and suffering, the court observed that the deceased died on the day following the accident and awarded Ksh.100,000/-. In doing so, it relied on Francis Odhiambo Nyunja & 2 Others v Josephine Malala (suing as the legal administrator of the Estate of Kevin Osore Rapando) [2020] eKLR, where an award of Ksh.100,000/- was made in circumstances where the deceased died on the same day as the accident.
50. Under the head of loss of expectation of life, the trial court found that the deceased was a young and healthy man who would, in the ordinary course of events, have been expected to enjoy a long life. The court consequently awarded Ksh.100,000/- and relied on NMT (Suing as Administrator of the Estate of FM & LM) v Acacia Crest Academy [2018] eKLR, in which a similar award was made under that head.
51. With regard to damages under the Fatal Accidents Act, the trial court considered the rival submissions on whether to apply the multiplier approach or the global sum approach. The Appellant had urged the court to adopt the multiplier method based on an alleged monthly income of Ksh.40,000/-, whereas the Respondent contended that the deceased’s income had not been proved and advocated for the global sum approach.
52. In resolving that issue, the trial court found that there was no documentary evidence establishing that the deceased was employed as a driver, operated a business or earned the alleged monthly income of Ksh.40,000/-. The court therefore concluded that the evidence did not justify the application of the multiplier approach.
53. The trial court was guided by the decision in Hassan v Nathan Mwangi Kamau Transporters & 4 Others [2008] 1 KLR (G&F) 90, which sets out the principles governing assessment of damages for loss of dependency. The court further relied on Ainu Shamsi Hauliers Limited v Moses Sakwa & Another (suing as the Administrators of the Estate of Ben Siguda Okach (Deceased)) [2021] eKLR, where it was held that where a deceased’s income is not proved by documentary evidence, the trial court has the discretion to adopt either the multiplier approach or the global sum approach.
54. The trial court also cited Albert Odawa v Gichumu Githenji, HCCA No. 15 of 2003 [2007] eKLR, in which the court observed that the multiplier approach is merely a method of assessing damages and not a rule of law, and that it ought to be abandoned where the relevant factors cannot be established without undue speculation, since justice should not be sacrificed at the altar of methodology.
55. Having considered those authorities, together with the decisions in Mashua Hassan Msuka (suing as the administrator of the Estate of Juma Mohamed Majepo) v John Migwi & Another [2018] eKLR and Moses Koome Mithika & Another v Doreen Gatwiri & Another (suing as the legal representative of the Estate of Phineas Murithi (Deceased)) [2020] eKLR, where global awards were made for deceased persons of comparable ages, the trial court adopted the global sum approach. Taking into account the deceased’s age, the existence of two dependants and the comparable authorities cited, the court awarded Ksh.1,200,000/- for loss of dependency.
56. On special damages, the trial court reiterated the settled principle that such damages must not only be specifically pleaded but must also be strictly proved. Having found that the Appellant had produced documentary evidence in support of the pleaded items, the court awarded special damages in the sum of Ksh.158,380/-. The Appellant was also awarded the costs of the suit and interest on the awards.
F. THE PARTIES’ SUBMISSIONS ON APPEAL.
57. The Appellant submits that the appeal is meritorious and urges this Court, as a first appellate court, to re-evaluate the entire evidence on record and interfere with the findings of the trial court. In support of that proposition, reliance is placed on Municipal Council of Nakuru & Another v David Mburu Gathiaya [1993] eKLR, in which the Court of Appeal held that a first appellate court is under a duty to reconsider and re-evaluate the evidence on record and determine whether the trial court proceeded on wrong principles or misapprehended the evidence.
58. The Appellant further submits that although an appellate court should ordinarily be slow to interfere with an award of damages, it is entitled to do so where the trial court acted on an erroneous principle or arrived at an erroneous estimate of damages.
59. On liability, the Appellant contends that the trial court erred in finding that the evidence of PW3 was unclear and contradictory. It is submitted that PW3 consistently testified that both the lorry and the motorcycle were travelling in the same direction; that the deceased had moved off the main carriageway onto the side of the road; and that the Respondent’s lorry veered off its lane and struck the motorcycle. According to the Appellant, PW3’s account was coherent, consistent and established the Respondent's negligence on a balance of probabilities.
60. The Appellant further submits that the trial court erred in apportioning liability equally between the parties despite the Respondent having failed to adduce any evidence in rebuttal. It is argued that the Respondent neither challenged the eyewitness account nor displaced the Appellant’s evidence, with the result that the Appellant’s evidence remained uncontroverted and ought to have been accepted.
61. In that regard, the Appellant relies on Board of Management St. Paul Thomas Academy & Another v Patrick Muiruri Mwangi (Civil Appeal No. 33 of 2022) [2024] KEHC 3118 (KLR), where the High Court held that where a party adduces evidence which remains uncontroverted because the opposing party elects not to tender evidence, such evidence may be sufficient to discharge the burden of proof on a balance of probabilities. The Appellant accordingly urges the Court to hold the Respondent wholly liable for the accident.
62. On the question of loss of consortium, the Appellant submits that the trial court misdirected itself by relying on Chege Kimotho & Others v Maria Vesters & Another [1988] eKLR in declining to make an award under that head. The Appellant argues that the said decision was subsequently overtaken by the Court of Appeal decision in Salvatore De Luca v Abdullahi Hemed Khalil & Another [1994] eKLR, in which the Court recognized that damages for loss of consortium may be awarded where a spouse is killed in a road traffic accident. The Appellant therefore urges this Court to award Ksh.100,000/- under that head.
63. The Appellant further submits that the trial court erred in adopting the global sum approach in assessing damages for loss of dependency. It is argued that the evidence that the deceased earned Ksh.40,000/- per month as a driver and businessman was not controverted and that the trial court improperly insisted on documentary proof of income.
64. In support of that submission, reliance is placed on Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR, where the Court of Appeal held that insistence on documentary proof of income in every case would occasion injustice to many Kenyans who earn their livelihood in the informal sector and whose earnings are not ordinarily supported by documentary records.
65. The Appellant alternatively submits that even if the Court were to find that the deceased’s actual earnings were not proved with precision, it should nevertheless apply the multiplier approach by adopting the statutory minimum wage applicable to drivers. It is contended that the deceased’s age, occupation and dependency were ascertainable and that the applicable minimum monthly wage under the Regulation of Wages (General) (Amendment) Order, 2018 was Ksh.18,881/-. The Appellant therefore proposes a multiplier of 41 years, a dependency ratio of two-thirds, and urges the Court to award Ksh.6,192,968/- for loss of dependency.
66. On his part, the Respondent submits that the appeal is devoid of merit and urges this Court to uphold the judgement of the trial court in its entirety. According to the Respondent, the issues arising for determination are whether the trial court properly apportioned liability at the ratio of 50:50, whether it correctly adopted the global sum approach in assessing damages for loss of dependency and who should bear the costs of the appeal.
67. On liability, the Respondent submits that the Appellant bore the burden of proving the pleaded particulars of negligence on a balance of probabilities. In support of that proposition, reliance is placed on Mount Elgon Hardware v United Millers Ltd [1996] eKLR, where the Court of Appeal held that a party alleging negligence must prove the particulars pleaded and cannot be permitted to prove matters not pleaded.
68. The Respondent argues that the evidence adduced by PW1 did not assist the Appellant in proving negligence since PW1 was not the investigating officer, merely produced the police abstract, did not know how the accident occurred, had not brought the police investigation file and did not produce a sketch map of the scene. It is submitted that the trial court therefore correctly found that PW1’s evidence did not establish liability.
69. The Respondent further submits that the absence of a sketch map and the police investigation file was fatal to the Appellant’s case. In that regard, reliance is placed on Peter Matara & 2 Others v Alloy Kenyatta Kevogo [2017] eKLR, in which the court, citing Postal Corporation of Kenya & Another v Dickens Munayi [2014] eKLR, observed that a sketch map is a crucial piece of evidence in establishing the point of impact and that its absence may cast doubt on the evidence regarding how an accident occurred.
70. With respect to the evidence of PW3, the Respondent submits that the witness gave inconsistent testimony regarding the circumstances of the accident. It is argued that whereas PW3 initially blamed the Respondent’s driver for veering onto the deceased’s lane, he later gave a different account concerning the direction in which the vehicles were travelling.
71. The Respondent also points out that PW3 admitted he could not recall the colour of the lorry, had not recorded a statement with the police and was well acquainted with both the deceased and the Appellant. It is therefore submitted that the trial court properly found PW3’s evidence to be unreliable and insufficient to establish sole liability against the Respondent.
72. The Respondent accordingly submits that the trial court correctly apportioned liability equally between the parties. Reliance is placed on Tipper Hauliers Limited & Salim Jalala Mwaita v Mercy Chepngeno Towet & Another [2021] eKLR, where the High Court upheld an apportionment of liability at 50:50 after finding that the police abstract indicated that investigations were pending, no police file had been produced and the available evidence did not conclusively establish who was to blame for the accident. Th
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1. This appeal emanates from the judgement and decree of Hon. M.A. Odhiambo, Senior Resident Magistrate delivered on 31st October, 2023 in Meru CMCC No. E205 of 2022, a tortious liability claim arising out of a road traffic accident that is said to have occurred on 24th January, 2021 in which the deceased met his demise. The appeal challenges the findings of the trial court on both liability and quantum.
2. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 27th November, 2023, in seeking to set aside the judgement and decree of the trial court:
i. THAT the learned trial Magistrate erred in law and in facts by failing to consider or take into consideration that the Appellant had on a balance of probabilities established that the Respondent and his authorized agents were wholly liable for the accident thereby arriving at the wrong conclusion on liability.
ii. THAT the learned trial Magistrate erred in law and in facts in apportioning ratio on liability at the ratio of 50:50 between the Appellant and the Respondent whereas the Respondent did not call any evidence during trial and/or successfully challenge the version of the eye witness account thereby fell into error on the apportionment of liability.
iii. THAT the learned trial Magistrate erred in law and in facts by following the Court of Appeal decision in Chege Kimotho & others v Maria Vesters & Anor [1988] eKLR whereas the said decision had been overruled by the decision in Salvatore De Luca v Abdullahi Hemed Khalil & Anor [1994] eKLR, which is a more recent decision on award of loss of consortium thereby fell into error while refusing to award damages under loss of consortium thereby arriving at the wrong conclusion.
iv. THAT the learned trial Magistrate erred in law and in facts in using a global sum approach in complete ignorance of the uncontroverted evidence on income of the deceased person of Kes. 40,000/- adduced by the Appellant thereby fell into error on principle on the amounts of loss of dependency payable to the estate of the deceased.
v. THAT the judgment and decree of the learned trial Magistrate dated 31st October 2023 is against the weight of evidence, submissions and authorities placed before the court therefore erroneous.
vi. THAT the judgment of the learned trial Magistrate dated 31st October, 2023 is bad in law.
3. The Appellant proposes that the appeal be allowed, the judgement of the trial court dated 31st October, 2023 be set aside, this Court be pleased to find the Respondent 100% liable for the accident and proceeds to reassess the damages payable to the Appellant under the head of loss of dependency and that the Appellant be awarded the costs of this appeal as well as the costs of the proceedings before the trial court.
B. DUTY OF THIS COURT.
4. As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
vii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
C. THE PLEADINGS BEFORE THE TRIAL COURT.
7. The suit before the trial court was commenced vide the plaint dated 6th July, 2022 in which the Appellant pleaded that he had obtained a limited grant ad litem in respect of the estate of the late Samwel Muchui and was therefore clothed with the requisite legal capacity to institute the suit on behalf of the deceased’s estate.
8. The Appellant pleaded that at all material times, the Respondent was the beneficial owner of motor vehicle registration number KBQ 707J, an Isuzu lorry.
9. It was averred that on 24th January, 2021, the deceased was lawfully riding motorcycle registration number KMES 389H along the Meru–Industrial Road near Walker Garage Junction within Meru Town when the Respondent, by himself, his driver, agent and/or servant, so negligently, recklessly and carelessly drove, managed and controlled the said motor vehicle that it veered off the road and collided with the motorcycle, thereby fatally injuring the deceased.
10. The Appellant attributed the accident wholly to the negligence of the Respondent and/or his driver, whose particulars included driving at an excessive speed, driving recklessly and on the wrong side of the road, failing to keep any proper lookout, failing to stop, swerve or otherwise control the motor vehicle so as to avoid the collision, driving without due regard to other road users and traffic regulations, driving a defective motor vehicle and thereby causing the accident and the deceased’s death.
11. The Appellant pleaded that as a consequence of the accident, the deceased sustained fatal injuries, occasioning loss and damage to his estate and dependants.
12. It was further pleaded that at the time of his death, the deceased was 19 years old, was in good health and earned approximately Ksh.40,000/- per month as a driver and businessman. The Appellant identified the deceased’s beneficiaries as his wife, Linet Kiende, his son, Tony Mwenda and his uncle, Stanley Murerwa Mugambi.
13. The Appellant claimed special damages amounting to Ksh.158,930/-, comprising hospital expenses, post-mortem expenses, the cost of obtaining the limited grant ad litem, funeral expenses, motor vehicle search fees, the cost of issuing a demand notice and postage charges. He also sought damages under the Fatal Accidents Act and the Law Reform Act, damages for loss of consortium, costs of the suit and interest.
14. The Appellant further pleaded that he would rely on the doctrines of res ipsa loquitur and vicarious liability, averred that the cause of action arose within the jurisdiction of the trial court, and stated that despite issuing the requisite demand and notice of intention to sue, the Respondent and his insurers failed to settle the claim, thereby necessitating the institution of the suit.
15. The Respondent resisted the Appellant’s claim and to that end filed a statement of defence dated 15th March, 2023 in which he generally denied the allegations contained in the plaint and put the Appellant to strict proof thereof.
16. The Respondent admitted the descriptive averments relating to the parties but denied being the beneficial owner of motor vehicle registration number KBQ 707J, thereby putting the Appellant to strict proof of ownership.
17. The Respondent further denied that the Appellant had the requisite legal capacity to institute the suit on behalf of the estate of the deceased and put him to strict proof of the alleged limited grant ad litem.
18. The Respondent denied that the accident pleaded by the Appellant occurred in the manner alleged, or at all, and specifically denied the allegations of negligence attributed to him or to his driver, servant and/or agent.
19. Without prejudice to the foregoing denials, the Respondent pleaded in the alternative that if the accident occurred as alleged, then it was wholly or substantially caused by the negligence of the deceased. In that regard, the Respondent alleged that the deceased rode the motorcycle at an excessive speed, failed to observe traffic rules, rode in a zigzag manner, overtook dangerously, failed to heed the approach of the Respondent’s motor vehicle, failed to take evasive action to avoid the collision and rode into the path of the said motor vehicle.
20. The Respondent further pleaded that he would rely on the doctrine of contributory negligence, the provisions of the Traffic Act and the Highway Code.
21. The Respondent also denied that the deceased sustained the injuries alleged or that his estate suffered the loss and damage pleaded. He similarly denied the claim for special damages, the deceased’s age, occupation and alleged monthly income, as well as the particulars of the alleged dependants, all of which he put the Appellant to strict proof.
22. The Respondent denied the applicability of the doctrines of res ipsa loquitur and vicarious liability, denied having been served with a demand letter or notice of intention to sue, admitted that the trial court had jurisdiction to entertain the suit, but denied that any cause of action existed against him.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
23. The Appellant called Police Constable Robert Tomno (PW1) as his first witness. The witness testified that he was attached to Meru Police Station and produced the police abstract (PExh1) relating to a road traffic accident which occurred on 24th January, 2021 at about 7.00p.m. near Walker Garage within Meru Town involving motor vehicle registration number KBQ 707J, an Isuzu lorry, and motorcycle registration number KMES 389H.
24. The witness stated that the accident resulted in the death of one Samwel Muchui and was recorded under Occurrence Book (OB) No. 4 of 24th January, 2021. He further testified that the investigating officer was Sergeant Tinega, who had since been transferred from the station, and that investigations into the accident were still pending.
25. Upon cross-examination, the witness conceded that he was not the investigating officer and had not carried the police investigation file to court. He stated that he was only producing the police abstract, confirmed that the motorcycle did not have an insurance policy and testified that no person had been charged in connection with the accident. He further acknowledged that the police abstract did not attribute blame to any party.
26. In re-examination, the witness reiterated that the motorcycle was uninsured and that investigations into the accident had not been concluded.
27. The Appellant testified before the trial court as PW2 and adopted the contents of his witness statement dated 6th July, 2022 in which he stated that on 24th January, 2021, the deceased, Samwel Muchui, was lawfully riding motorcycle registration number KMES 389H along the Meru–Industrial Road near Walker Garage Junction when motor vehicle registration number KBQ 707J, an Isuzu lorry, was negligently driven, veered from its lane and collided with the motorcycle, thereby inflicting fatal injuries upon the deceased.
28. The Appellant attributed the accident to the negligence of the driver of the said motor vehicle, contending that he drove at an excessive speed, veered off his lane and otherwise drove negligently. He testified that the deceased succumbed to the injuries sustained in the accident on the following day.
29. The Appellant further testified that prior to his death, the deceased was in good health and worked as a driver and businessman earning in excess of Ksh.40,000/- per month. According to the Appellant, the deceased supported his wife, child and the Appellant, and his death occasioned the family substantial loss and damage. He therefore prayed for the reliefs sought in the plaint.
30. Upon cross-examination, the Appellant admitted that he did not witness the accident and that the information regarding the manner in which it occurred, including the allegation that the Respondent’s motor vehicle was being driven at an excessive speed, had been relayed to him by other persons.
31. He testified that the deceased was a taxi driver and also sold cakes, although he conceded that he did not produce the deceased’s driving licence or documentary proof of the alleged cake business. He further acknowledged that the deceased’s death certificate described his occupation as that of a farmer.
32. In re-examination, the Appellant reiterated that he did not witness the accident but arrived at the scene as the deceased was being taken away and observed that he was lying off the road.
33. The Appellant maintained that although he had not produced the deceased’s driving licence, the family did not supply the information appearing in the death certificate regarding the deceased’s occupation.
34. The Appellant produced the following documents in support of his case:
- The deceased’s certificate of death dated 30th July, 2021 – PExh2.
- Post mortem report dated 28th January, 2021 – PExh3.
- Motor vehicle search and its receipt for Ksh.550/- PExh4a and b.
- Post mortem receipt for Ksh.7,000/- PExh5.
- Loyal Funeral Services receipt dated 28th January, 2021 for Ksh.97,300/- – PExh6.
- Mortuary expenses receipt for Ksh.5,700/- – PExh7.
- Demand notice dated 12th April, 2022 addressed to Corporate Insurance – PExh8.
- Receipt for Ksh.5,000/- PExh9.
- G4S receipt for Ksh.380/- dated 13th April, 2021 – PExh10.
- Treatment receipt for Ksh.3,000/- – PExh11.
- Chief’s letter dated 16th June, 2022 – PExh12.
- Limited grant ad litem dated 23rd November, 2021 PExh13.
- Receipt dated 22nd November, 2021 for Ksh.40,000/- obtaining the limited grant ad litem – PExh14.
- Certificate of birth for Tony Mwenda – PExh15.
35. The Appellant called Erick Gitonga Muriungi (PW3), who testified and adopted the contents of his witness statement dated 6th July, 2022. He stated that on 24th January, 2021, while walking along the opposite side of the Meru–Industrial Road near Walker Garage Junction within Meru Town, he saw the deceased riding motorcycle registration number KMES 389H when motor vehicle registration number KBQ 707J, an Isuzu lorry, approached at a high speed, veered off its lane and collided with the motorcycle, causing the deceased to sustain fatal injuries.
36. PW3 testified that he was near GGV Church and heading towards Meru Town when he heard screams and observed the lorry approaching from the opposite direction. According to him, the deceased had slowed down and was no longer on the main carriageway but was on the side of the road when the lorry veered from its lane onto the pedestrian walkway and struck the motorcycle.
37. The witness maintained that the lorry was being driven at an excessive speed and that its driver ought to have slowed down, attributing the accident wholly to the negligence of the driver.
38. Upon cross-examination, PW3 stated that the accident occurred at about 6.30p.m. Although he could not recall the colour of the lorry, he maintained that he saw the deceased slow down before the collision.
39. The witness testified that the deceased was wearing a helmet and reflective gear and was travelling from Meru Town towards Walker Garage. He further conceded that he did not record a witness statement with the police.
40. PW3 acknowledged that he knew both the Appellant and the deceased, having previously conducted business with the Appellant, and stated that the deceased worked both as a driver and as a cake vendor.
41. In re-examination, PW3 reiterated that the deceased earned a living as both a driver and a cake vendor. He stated that the deceased was wearing a helmet and was therefore unlikely to have heard the lorry approaching from behind. He maintained that the lorry was travelling behind the deceased immediately before the collision and reaffirmed his opinion that the lorry driver was solely to blame for the accident.
42. Although afforded an opportunity to do so, the Respondent elected not to adduce any oral or documentary evidence in support of his defence.
E. THE FINDINGS OF THE TRIAL COURT.
43. In its judgment rendered on 31st October, 2023, the trial court identified the issues for determination as being whether the Respondent was liable for the accident, the quantum of damages payable and the issue of costs. The court reviewed the pleadings, the oral and documentary evidence adduced by the Appellant, and the parties’ respective submissions before embarking on its analysis.
44. On the question of liability, the trial court observed that the burden of proving negligence lay upon the Appellant and that the applicable standard of proof was that of a balance of probabilities. In that regard, the court relied on Mount Elgon Hardware v United Millers Limited [1996] KLR, wherein the Court of Appeal held that a party who alleges negligence must prove the particular acts of negligence pleaded and cannot be permitted to prove matters that were not pleaded.
45. The trial court considered the evidence of PW3, the only eyewitness called by the Appellant, and found that his account of the accident was inconsistent and inconclusive. The court observed that PW3 gave conflicting accounts regarding the direction in which the motor vehicle and the motorcycle were travelling and that his testimony did not satisfactorily establish how the collision occurred.
46. The court further noted that PW1 merely produced the police abstract, was not the investigating officer, did not have the police investigation file or a sketch plan, and was therefore unable to shed light on the point of impact or the circumstances surrounding the accident.
47. Having found that the evidence did not conclusively establish which of the two road users was to blame for the collision, the trial court relied on the decision of the Court of Appeal in Hussein Omar Farah v Lento Agencies [2006] eKLR, in which the Court held that where the evidence does not enable the court to determine which of two drivers was responsible for an accident, both should ordinarily be held equally to blame.
48. Applying that principle, the trial court apportioned liability equally between the parties and held the Respondent and the deceased each 50% liable for the occurrence of the accident.
49. Turning to the issue of quantum, the trial court first considered the claim under the Law Reform Act. On damages for pain and suffering, the court observed that the deceased died on the day following the accident and awarded Ksh.100,000/-. In doing so, it relied on Francis Odhiambo Nyunja & 2 Others v Josephine Malala (suing as the legal administrator of the Estate of Kevin Osore Rapando) [2020] eKLR, where an award of Ksh.100,000/- was made in circumstances where the deceased died on the same day as the accident.
50. Under the head of loss of expectation of life, the trial court found that the deceased was a young and healthy man who would, in the ordinary course of events, have been expected to enjoy a long life. The court consequently awarded Ksh.100,000/- and relied on NMT (Suing as Administrator of the Estate of FM & LM) v Acacia Crest Academy [2018] eKLR, in which a similar award was made under that head.
51. With regard to damages under the Fatal Accidents Act, the trial court considered the rival submissions on whether to apply the multiplier approach or the global sum approach. The Appellant had urged the court to adopt the multiplier method based on an alleged monthly income of Ksh.40,000/-, whereas the Respondent contended that the deceased’s income had not been proved and advocated for the global sum approach.
52. In resolving that issue, the trial court found that there was no documentary evidence establishing that the deceased was employed as a driver, operated a business or earned the alleged monthly income of Ksh.40,000/-. The court therefore concluded that the evidence did not justify the application of the multiplier approach.
53. The trial court was guided by the decision in Hassan v Nathan Mwangi Kamau Transporters & 4 Others [2008] 1 KLR (G&F) 90, which sets out the principles governing assessment of damages for loss of dependency. The court further relied on Ainu Shamsi Hauliers Limited v Moses Sakwa & Another (suing as the Administrators of the Estate of Ben Siguda Okach (Deceased)) [2021] eKLR, where it was held that where a deceased’s income is not proved by documentary evidence, the trial court has the discretion to adopt either the multiplier approach or the global sum approach.
54. The trial court also cited Albert Odawa v Gichumu Githenji, HCCA No. 15 of 2003 [2007] eKLR, in which the court observed that the multiplier approach is merely a method of assessing damages and not a rule of law, and that it ought to be abandoned where the relevant factors cannot be established without undue speculation, since justice should not be sacrificed at the altar of methodology.
55. Having considered those authorities, together with the decisions in Mashua Hassan Msuka (suing as the administrator of the Estate of Juma Mohamed Majepo) v John Migwi & Another [2018] eKLR and Moses Koome Mithika & Another v Doreen Gatwiri & Another (suing as the legal representative of the Estate of Phineas Murithi (Deceased)) [2020] eKLR, where global awards were made for deceased persons of comparable ages, the trial court adopted the global sum approach. Taking into account the deceased’s age, the existence of two dependants and the comparable authorities cited, the court awarded Ksh.1,200,000/- for loss of dependency.
56. On special damages, the trial court reiterated the settled principle that such damages must not only be specifically pleaded but must also be strictly proved. Having found that the Appellant had produced documentary evidence in support of the pleaded items, the court awarded special damages in the sum of Ksh.158,380/-. The Appellant was also awarded the costs of the suit and interest on the awards.
F. THE PARTIES’ SUBMISSIONS ON APPEAL.
57. The Appellant submits that the appeal is meritorious and urges this Court, as a first appellate court, to re-evaluate the entire evidence on record and interfere with the findings of the trial court. In support of that proposition, reliance is placed on Municipal Council of Nakuru & Another v David Mburu Gathiaya [1993] eKLR, in which the Court of Appeal held that a first appellate court is under a duty to reconsider and re-evaluate the evidence on record and determine whether the trial court proceeded on wrong principles or misapprehended the evidence.
58. The Appellant further submits that although an appellate court should ordinarily be slow to interfere with an award of damages, it is entitled to do so where the trial court acted on an erroneous principle or arrived at an erroneous estimate of damages.
59. On liability, the Appellant contends that the trial court erred in finding that the evidence of PW3 was unclear and contradictory. It is submitted that PW3 consistently testified that both the lorry and the motorcycle were travelling in the same direction; that the deceased had moved off the main carriageway onto the side of the road; and that the Respondent’s lorry veered off its lane and struck the motorcycle. According to the Appellant, PW3’s account was coherent, consistent and established the Respondent's negligence on a balance of probabilities.
60. The Appellant further submits that the trial court erred in apportioning liability equally between the parties despite the Respondent having failed to adduce any evidence in rebuttal. It is argued that the Respondent neither challenged the eyewitness account nor displaced the Appellant’s evidence, with the result that the Appellant’s evidence remained uncontroverted and ought to have been accepted.
61. In that regard, the Appellant relies on Board of Management St. Paul Thomas Academy & Another v Patrick Muiruri Mwangi (Civil Appeal No. 33 of 2022) [2024] KEHC 3118 (KLR), where the High Court held that where a party adduces evidence which remains uncontroverted because the opposing party elects not to tender evidence, such evidence may be sufficient to discharge the burden of proof on a balance of probabilities. The Appellant accordingly urges the Court to hold the Respondent wholly liable for the accident.
62. On the question of loss of consortium, the Appellant submits that the trial court misdirected itself by relying on Chege Kimotho & Others v Maria Vesters & Another [1988] eKLR in declining to make an award under that head. The Appellant argues that the said decision was subsequently overtaken by the Court of Appeal decision in Salvatore De Luca v Abdullahi Hemed Khalil & Another [1994] eKLR, in which the Court recognized that damages for loss of consortium may be awarded where a spouse is killed in a road traffic accident. The Appellant therefore urges this Court to award Ksh.100,000/- under that head.
63. The Appellant further submits that the trial court erred in adopting the global sum approach in assessing damages for loss of dependency. It is argued that the evidence that the deceased earned Ksh.40,000/- per month as a driver and businessman was not controverted and that the trial court improperly insisted on documentary proof of income.
64. In support of that submission, reliance is placed on Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR, where the Court of Appeal held that insistence on documentary proof of income in every case would occasion injustice to many Kenyans who earn their livelihood in the informal sector and whose earnings are not ordinarily supported by documentary records.
65. The Appellant alternatively submits that even if the Court were to find that the deceased’s actual earnings were not proved with precision, it should nevertheless apply the multiplier approach by adopting the statutory minimum wage applicable to drivers. It is contended that the deceased’s age, occupation and dependency were ascertainable and that the applicable minimum monthly wage under the Regulation of Wages (General) (Amendment) Order, 2018 was Ksh.18,881/-. The Appellant therefore proposes a multiplier of 41 years, a dependency ratio of two-thirds, and urges the Court to award Ksh.6,192,968/- for loss of dependency.
66. On his part, the Respondent submits that the appeal is devoid of merit and urges this Court to uphold the judgement of the trial court in its entirety. According to the Respondent, the issues arising for determination are whether the trial court properly apportioned liability at the ratio of 50:50, whether it correctly adopted the global sum approach in assessing damages for loss of dependency and who should bear the costs of the appeal.
67. On liability, the Respondent submits that the Appellant bore the burden of proving the pleaded particulars of negligence on a balance of probabilities. In support of that proposition, reliance is placed on Mount Elgon Hardware v United Millers Ltd [1996] eKLR, where the Court of Appeal held that a party alleging negligence must prove the particulars pleaded and cannot be permitted to prove matters not pleaded.
68. The Respondent argues that the evidence adduced by PW1 did not assist the Appellant in proving negligence since PW1 was not the investigating officer, merely produced the police abstract, did not know how the accident occurred, had not brought the police investigation file and did not produce a sketch map of the scene. It is submitted that the trial court therefore correctly found that PW1’s evidence did not establish liability.
69. The Respondent further submits that the absence of a sketch map and the police investigation file was fatal to the Appellant’s case. In that regard, reliance is placed on Peter Matara & 2 Others v Alloy Kenyatta Kevogo [2017] eKLR, in which the court, citing Postal Corporation of Kenya & Another v Dickens Munayi [2014] eKLR, observed that a sketch map is a crucial piece of evidence in establishing the point of impact and that its absence may cast doubt on the evidence regarding how an accident occurred.
70. With respect to the evidence of PW3, the Respondent submits that the witness gave inconsistent testimony regarding the circumstances of the accident. It is argued that whereas PW3 initially blamed the Respondent’s driver for veering onto the deceased’s lane, he later gave a different account concerning the direction in which the vehicles were travelling.
71. The Respondent also points out that PW3 admitted he could not recall the colour of the lorry, had not recorded a statement with the police and was well acquainted with both the deceased and the Appellant. It is therefore submitted that the trial court properly found PW3’s evidence to be unreliable and insufficient to establish sole liability against the Respondent.
72. The Respondent accordingly submits that the trial court correctly apportioned liability equally between the parties. Reliance is placed on Tipper Hauliers Limited & Salim Jalala Mwaita v Mercy Chepngeno Towet & Another [2021] eKLR, where the High Court upheld an apportionment of liability at 50:50 after finding that the police abstract indicated that investigations were pending, no police file had been produced and the available evidence did not conclusively establish who was to blame for the accident. Th
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