(Being an Appeal from the Judgment of Hon. P.K. Rotich (SPM (as he then was)) delivered on 9 th May 2024 in Milimani Commercial Civil Suit No. E11417 of 2021)
Introduction
1. This appeal arises from the judgment of Milimani Commercial Court at Milimani ( P.K. Rotich, SPM (as he then was) ) delivered on 9 th May 2024 in Milimani CMCC No. E11417 of 2024.
2. The claim before the trial court arose from a road traffic accident that occurred along Mathare Road involving Felix Odhiambo Opasi (the deceased), Stephen Kimotho Kamau (the 1 st appellant and driver of motor vehicle registration number KRQ 686), John Kangara Kinyanjui (the 2 nd appellant) and John Kamau Muthoni (the 2 nd respondent), the latter two being associated with the ownership of the said motor vehicle.
3. On 29 th July 2019, the deceased had just alighted a motor vehicle, and while walking, along Mathare Road, the 1 st appellant negligently drove/ controlled motor vehicle KRQ 686, causing it hit the deceased and inflict fatal injuries. The 1 st respondent blamed the appellants and the 2 nd respondent for the accident, on the grounds that the 1 st appellant negligently drove and/or controlled the subject motor vehicle that it fatally hit the deceased. As for the 2 nd appellant and 2 nd respondent, they were blamed on account of being the owners of the subject motor vehicle.
4. By a plaint dated 17 th June 2021, the 1 st respondent sought general damages for pain and suffering, loss of expectation and life, lost years and loss of dependency; special damages of Kshs. 151,530/=; costs and interest thereon.
5. The deceased was identified as a 25-year-old general worker earning Kshs. 800/= daily and was said to have been supporting his parents, the administrators of his estate
6. The appellants, in their defence dated 28 th January 2022, denied liability and contended that the accident occurred when the deceased attempted to unlawfully board the motor vehicle while it was in motion, lost his grip, and fell into Ndingi Mwana Nzeki Road. Accordingly, they attributed negligence to the deceased for attempting to unlawfully and without authority board the motor vehicle and at an undesignated area, failing to keep a proper lookout, and willfully exposing himself to danger.
7. Despite evidence of service, the 2 nd respondent did not participate in the proceedings and judgment was entered against him on 16 th August 2022.
8. PW1, PC Jersey Mwololo 88537 , a police officer at the time attached at Pangani Police Station Traffic Department, testified that the accident involving KRQ 686 (an Isuzu TK lorry) and the deceased occurred on 29 th July 2019 at 6.30 p.m. along Mathare Road. It was his evidence that the deceased died as a result of the accident and produced a police abstract, noting that investigations were still pending.
9. PW2, Clinton Oduor , adopted his witness statement dated 17 th June 2021 as his evidence-in-chief. He added that the deceased was a carpenter who earned Kshs. 800/= daily.
10. PW3, Margaret Atieno Karengo , equally adopted her witness statement dated 17 th June 2021. She also produced exhibits as per the list of documents dated 17 th June 2021.
11. DW1, Stephen Kimotho Kamau , adopted his witness statement dated 5 th April 2023 as his evidence-in-chief. On cross-examination, he averred that he did not see the deceased hanging on the motor vehicle though he was informed. However, he denied that the deceased was a pedestrian. He indicated that he had not seen the postmortem report but according to his view, the deceased was crushed by the motor vehicle when it was moving forward.
12. By a judgment dated 9 th May 2024, the trial court delineated 3 issues for determination: whether the appellants and 2 nd respondent were liable for the accident; if so, quantum payable to the deceased’s estate and costs .
13. On the question of liability, the trial court found that the appellants and 2 nd respondent were liable for the accident. In doing so, the learned Magistrate observed that the testimony of the eye witness and the police abstract corroborated the fact that the deceased was run over by the subject motor vehicle which ran over him resulting in his death. As for the defence’s testimony, the trial court found it not credible since the DW1 testified that he did not see the deceased before the accident and therefore his testimony that the deceased was hanging on the motor vehicle was not reliable.
14. As for quantum, the trial court awarded the deceased’s estate Kshs. 50,000/= for pain and suffering, Kshs. 150,000/= for loss of expectation of life, Kshs. 1,628,748/= for loss of dependency and Kshs. 150,550/= as special damages. In awarding the damages for loss of dependency, the trial court noted that the deceased was 25 years old at the time of his death and even though he had 35 years of working, the trial court used a multiplier of 30 and a dependency ratio of 1/3.
15. In the end, the learned trial Magistrate allowed the claim and awarded costs and interest to the 1 st respondent.
The Appeal
16. Dissatisfied with the trial court’s decision, the appellants filed a Memorandum of Appeal dated 7 th June 2024 raising 3 grounds of appeal, to wit, that the learned trial Magistrate erred:
i. In finding the appellants 100% liable for the accident.
ii. In fact and law by finding the appellants and 2 nd respondent 100% liable for the accident and thus failed to appreciate the principles applicable in the apportionment of liability.
iii. In law and in fact by failing to consider the appellants’ submissions and judicial authorities on liability thereby arriving at an erroneous determination on liability.
17. Consequently, the appellants urge this Court to allow the appeal, set aside the award of the trial court and to apportion liability between the parties.
The Appellants’ Submissions
18. In their submissions dated 11 th November 2025, the appellants only submitted on the issue of liability. They contended that the 1 st respondent failed to establish that they were liable for the accident. It was their case that PW2 informed the trial court that the deceased was bent over picking his phone on the road when the accident happened, a clear admission of the deceased’s negligence, in the appellants’ view. Consequently, they relied on Bwire vs Wayo & Sailoki (Civil Appeal E032 of 2021) [2022] KEHC 7 (KLR) for the proposition that liability ought not to have been apportioned to them since they were not at fault.
19. The appellants therefore urged this Court to interfere with the trial court’s finding on liability as they claim there was a misapprehension of evidence, citing the case of Moit vs Mega Wholesalers Ltd. (Civil Appeal E094 of 2023) [2025] KEHC 13540 KLR .
20. However, taking what appears to be a different tangent, the appellants urged that where fault cannot be clearly attributed to one party but there was evidence of shared blame, liability should be apportioned equally. In this regard, they relied on Hussein Omar Farah vs Lento Agencies [2006] KECA 388 (KLR) .
21. In the end, the appellants urged this Court to allow the appeal, set aside the judgment on liability and dismiss the respondents’ case. In the alternative, they prayed that this Court reapportion liability in line with the evidence and the law.
The Respondents’ Submissions
22. In their submissions dated 13 th August 2025, the respondents posited that the trial court correctly found the appellants guilty in view of the evidence adduced. In disputing the appellants’ version of how the accident took place, the 1 st respondents pointed out that, the appellants did not call any witnesses despite testifying that they had 2 turn boys in the lorry with them on the material day. They also cautioned this Court against relying on the said version terming it contradictory.
23. Accordingly, they urged this Court to dismiss the appeal and uphold the trial court’s judgment.
Analysis and Determination
24. The sole issue arising for determination in this appeal is whether the trial court erred in holding the appellants liable for the accident at 100%.
25. This being a first appeal, I am alive to the principle that the first appellate court is required to re-appraise the evidence, evaluate it and draw its own conclusions making an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126 ).
26. I have carefully re-evaluated the evidence on record with regard to the occurrence of the subject accident. The respondents’ evidence is to the effect that the deceased was knocked down off the motorist’s lane after alighting from another motor vehicle with PW2. The appellants blamed the deceased for the accident claiming that he was hanging onto the rear of the vehicle when he fell down. In its analysis of the evidence, the trial court observed that the driver of the accident motor vehicle, DW1, stated that he did not see the deceased before the accident. This is in fact what DW1 stated in his testimony before the trial court. If in fact the driver did not see the deceased before the accident, how then could he allege that the deceased was hanging onto the rear of the motor vehicle?
27. The police abstract indicates that the deceased was a pedestrian. It does not classify him as either a passenger or an unauthorized rider. The police officer who testified before court asserted that the deceased was indeed a pedestrian. DW1 further stated that the deceased was ran over by the vehicle’s tires as it moved forward. This evidence negates the appellants’ claim that the deceased was hanging onto the rear of the vehicle. That was simply not possible. Although DW1 claimed that he had two turn boys on the vehicle, neither of them was called as a witness in this matter.
28. The defence case was full of contradictions and the appellants were therefore unable to discredit the evidence adduced by the respondents. In my view, the trial court’s finding on liability cannot be faulted. Consequently, I do not find any merit in the appeal and I proceed to dismiss it with costs.
29. It is so ordered.
Dated, signed and delivered virtually this 25 th day of June 2026.
Introduction
1. This appeal arises from the judgment of Milimani Commercial Court at Milimani ( P.K. Rotich, SPM (as he then was) ) delivered on 9 th May 2024 in Milimani CMCC No. E11417 of 2024.
2. The claim before the trial court arose from a road traffic accident that occurred along Mathare Road involving Felix Odhiambo Opasi (the deceased), Stephen Kimotho Kamau (the 1 st appellant and driver of motor vehicle registration number KRQ 686), John Kangara Kinyanjui (the 2 nd appellant) and John Kamau Muthoni (the 2 nd respondent), the latter two being associated with the ownership of the said motor vehicle.
3. On 29 th July 2019, the deceased had just alighted a motor vehicle, and while walking, along Mathare Road, the 1 st appellant negligently drove/ controlled motor vehicle KRQ 686, causing it hit the deceased and inflict fatal injuries. The 1 st respondent blamed the appellants and the 2 nd respondent for the accident, on the grounds that the 1 st appellant negligently drove and/or controlled the subject motor vehicle that it fatally hit the deceased. As for the 2 nd appellant and 2 nd respondent, they were blamed on account of being the owners of the subject motor vehicle.
4. By a plaint dated 17 th June 2021, the 1 st respondent sought general damages for pain and suffering, loss of expectation and life, lost years and loss of dependency; special damages of Kshs. 151,530/=; costs and interest thereon.
5. The deceased was identified as a 25-year-old general worker earning Kshs. 800/= daily and was said to have been supporting his parents, the administrators of his estate
6. The appellants, in their defence dated 28 th January 2022, denied liability and contended that the accident occurred when the deceased attempted to unlawfully board the motor vehicle while it was in motion, lost his grip, and fell into Ndingi Mwana Nzeki Road. Accordingly, they attributed negligence to the deceased for attempting to unlawfully and without authority board the motor vehicle and at an undesignated area, failing to keep a proper lookout, and willfully exposing himself to danger.
7. Despite evidence of service, the 2 nd respondent did not participate in the proceedings and judgment was entered against him on 16 th August 2022.
8. PW1, PC Jersey Mwololo 88537 , a police officer at the time attached at Pangani Police Station Traffic Department, testified that the accident involving KRQ 686 (an Isuzu TK lorry) and the deceased occurred on 29 th July 2019 at 6.30 p.m. along Mathare Road. It was his evidence that the deceased died as a result of the accident and produced a police abstract, noting that investigations were still pending.
9. PW2, Clinton Oduor , adopted his witness statement dated 17 th June 2021 as his evidence-in-chief. He added that the deceased was a carpenter who earned Kshs. 800/= daily.
10. PW3, Margaret Atieno Karengo , equally adopted her witness statement dated 17 th June 2021. She also produced exhibits as per the list of documents dated 17 th June 2021.
11. DW1, Stephen Kimotho Kamau , adopted his witness statement dated 5 th April 2023 as his evidence-in-chief. On cross-examination, he averred that he did not see the deceased hanging on the motor vehicle though he was informed. However, he denied that the deceased was a pedestrian. He indicated that he had not seen the postmortem report but according to his view, the deceased was crushed by the motor vehicle when it was moving forward.
12. By a judgment dated 9 th May 2024, the trial court delineated 3 issues for determination: whether the appellants and 2 nd respondent were liable for the accident; if so, quantum payable to the deceased’s estate and costs .
13. On the question of liability, the trial court found that the appellants and 2 nd respondent were liable for the accident. In doing so, the learned Magistrate observed that the testimony of the eye witness and the police abstract corroborated the fact that the deceased was run over by the subject motor vehicle which ran over him resulting in his death. As for the defence’s testimony, the trial court found it not credible since the DW1 testified that he did not see the deceased before the accident and therefore his testimony that the deceased was hanging on the motor vehicle was not reliable.
14. As for quantum, the trial court awarded the deceased’s estate Kshs. 50,000/= for pain and suffering, Kshs. 150,000/= for loss of expectation of life, Kshs. 1,628,748/= for loss of dependency and Kshs. 150,550/= as special damages. In awarding the damages for loss of dependency, the trial court noted that the deceased was 25 years old at the time of his death and even though he had 35 years of working, the trial court used a multiplier of 30 and a dependency ratio of 1/3.
15. In the end, the learned trial Magistrate allowed the claim and awarded costs and interest to the 1 st respondent.
The Appeal
16. Dissatisfied with the trial court’s decision, the appellants filed a Memorandum of Appeal dated 7 th June 2024 raising 3 grounds of appeal, to wit, that the learned trial Magistrate erred:
i. In finding the appellants 100% liable for the accident.
ii. In fact and law by finding the appellants and 2 nd respondent 100% liable for the accident and thus failed to appreciate the principles applicable in the apportionment of liability.
iii. In law and in fact by failing to consider the appellants’ submissions and judicial authorities on liability thereby arriving at an erroneous determination on liability.
17. Consequently, the appellants urge this Court to allow the appeal, set aside the award of the trial court and to apportion liability between the parties.
The Appellants’ Submissions
18. In their submissions dated 11 th November 2025, the appellants only submitted on the issue of liability. They contended that the 1 st respondent failed to establish that they were liable for the accident. It was their case that PW2 informed the trial court that the deceased was bent over picking his phone on the road when the accident happened, a clear admission of the deceased’s negligence, in the appellants’ view. Consequently, they relied on Bwire vs Wayo & Sailoki (Civil Appeal E032 of 2021) [2022] KEHC 7 (KLR) for the proposition that liability ought not to have been apportioned to them since they were not at fault.
19. The appellants therefore urged this Court to interfere with the trial court’s finding on liability as they claim there was a misapprehension of evidence, citing the case of Moit vs Mega Wholesalers Ltd. (Civil Appeal E094 of 2023) [2025] KEHC 13540 KLR .
20. However, taking what appears to be a different tangent, the appellants urged that where fault cannot be clearly attributed to one party but there was evidence of shared blame, liability should be apportioned equally. In this regard, they relied on Hussein Omar Farah vs Lento Agencies [2006] KECA 388 (KLR) .
21. In the end, the appellants urged this Court to allow the appeal, set aside the judgment on liability and dismiss the respondents’ case. In the alternative, they prayed that this Court reapportion liability in line with the evidence and the law.
The Respondents’ Submissions
22. In their submissions dated 13 th August 2025, the respondents posited that the trial court correctly found the appellants guilty in view of the evidence adduced. In disputing the appellants’ version of how the accident took place, the 1 st respondents pointed out that, the appellants did not call any witnesses despite testifying that they had 2 turn boys in the lorry with them on the material day. They also cautioned this Court against relying on the said version terming it contradictory.
23. Accordingly, they urged this Court to dismiss the appeal and uphold the trial court’s judgment.
Analysis and Determination
24. The sole issue arising for determination in this appeal is whether the trial court erred in holding the appellants liable for the accident at 100%.
25. This being a first appeal, I am alive to the principle that the first appellate court is required to re-appraise the evidence, evaluate it and draw its own conclusions making an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126 ).
26. I have carefully re-evaluated the evidence on record with regard to the occurrence of the subject accident. The respondents’ evidence is to the effect that the deceased was knocked down off the motorist’s lane after alighting from another motor vehicle with PW2. The appellants blamed the deceased for the accident claiming that he was hanging onto the rear of the vehicle when he fell down. In its analysis of the evidence, the trial court observed that the driver of the accident motor vehicle, DW1, stated that he did not see the deceased before the accident. This is in fact what DW1 stated in his testimony before the trial court. If in fact the driver did not see the deceased before the accident, how then could he allege that the deceased was hanging onto the rear of the motor vehicle?
27. The police abstract indicates that the deceased was a pedestrian. It does not classify him as either a passenger or an unauthorized rider. The police officer who testified before court asserted that the deceased was indeed a pedestrian. DW1 further stated that the deceased was ran over by the vehicle’s tires as it moved forward. This evidence negates the appellants’ claim that the deceased was hanging onto the rear of the vehicle. That was simply not possible. Although DW1 claimed that he had two turn boys on the vehicle, neither of them was called as a witness in this matter.
28. The defence case was full of contradictions and the appellants were therefore unable to discredit the evidence adduced by the respondents. In my view, the trial court’s finding on liability cannot be faulted. Consequently, I do not find any merit in the appeal and I proceed to dismiss it with costs.
29. It is so ordered.
Dated, signed and delivered virtually this 25 th day of June 2026.