REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
<>><>><>-><><>><>><>><>><>><>>>><><>>>><>>>><>(<>>> >>)<>><><>><>><>><>><> ><>><>><>><>><>><>><><>><>><><>><><>><>> >> (><>>>, ><><>><><> href="http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3" target="_blank">Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion
I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; I will proceed to consider whether the trial court’s findings on liability and quantum should be disturbed on this appeal.
Liability
The Appellant contends that its motor vehicle is blameless. To clearly understand the facts well, I will first place each of the subject motor vehicles herein to the respective alleged owners and parties herein as follows: -
KBU 710H belonged to TAHMEED TRANSPORTERS LTD, the Appellant;
KAY 016J belonged to IRUNGU EDWARD KARANJA & EDWARD KARANJA, the 2nd and 3rd Respondents; and
KCF 213D belonged to DOMINIC MUTINDA KALOVOTO, the deceased;
A scrutiny of the proceedings on the 1 st Respondent's evidence on the issue of liability reveals that PW2 -Police Officer and PW3-eye witness testified on liability.
PW2 testified that at the time of the accident two motor vehicles were in motion. Motor vehicle KAY was in front followed by KCR leading towards Nairobi direction. The road is dual and the vehicles used the same road. KBU was pushed on the right side facing Nairobi off the road. The accident started when motor vehicle KCF 213D hit motor vehicle KAY from the back. KCF was being driven by Dominic, the deceased. The accident happened at 10.00 a.m. The police arrived later at 1.00p.m after 3 hours later. The driver of motor vehicle KCF was not at the scene. A notice of intended prosecution was issued to the Appellant’s driver who was never charged and prosecuted. No one had been charged yet. All the 3 motor vehicles were towed to Kyumbi police station. Motor vehicle KBU was self-driven to the said police station. Motor vehicles KAY and KBU were hit on the rear.
PW3- an eye witness one Alex Muia from Makutano testified that he left home at around 10.00 a.m when he saw a lorry partly parked off the road and a saloon car registration No. KAY 016J that tried to overtake but returned to its lane but motor vehicle KCF 213 hit motor vehicle KAY from the rear and then hit the parked lorry. He testified that the driver parked off the road KBU 710H was to blame since there were no signs that the motor vehicle was stationary. KAY did not indicate a sign that he was overtaking. PW3 did not know how many people were injured and taken to hospital. By the time he left the scene of the accident, the police had not arrived. He sought to adopt his witness statement dated 5/5/2020. He stated that both motor vehicles KAY and KCF were heading the same direction.
On cross examination, PW3 stated that he was walking on the side of the road from Nairobi direction. He could see the motor vehicle approaching him. Motor vehicle KCF hit motor vehicle KCF then hit motor vehicle KBU which was stationery. The weather was sunny. Visibility was clear. The traffic was light and only the three vehicles were on the road.
From the testimony of the police officer, he did not clarify whether he was among the police officers who went at the scene of the accident after 3 hours following the occurrence of the accident or whether he was involved in the investigations thereafter. PW2 did not state with certainty who amongst the three drivers herein was negligent and caused the accident. He even mentioned motor vehicle registration No. KCR which was nowhere in the accident herein. He confirmed that the file was still pending investigation on 7/7/2021 as at the time he was testifying in court, the accident having occurred on 22/11/2015, almost six (6) years down the line.
On the other hand, the eye witnesses PW3 stated that on the alleged date of accident, he left home at 10.00 a.m when he saw a lorry partly parked off the road and a saloon car registration No. KAY 016J that tried to overtake but returned to its lane but motor vehicle KCF 213 hit motor vehicle KAY from the rear and then hit the parked lorry. In his witness statement dated 8 th May 2020, he states that on the said date he was on his way to work but does not give the time. This witness’s testimony is not clear because first, he does not say whether at around 10.00 a.m is when he left home, whether he was on his way to work or whether it’s when the accident occurred considering that he testified that the accident occurred as he was walking beside the road and not when he was at his home.
Second, PW3 testified that KAY 016J that tried to overtake but returned to its lane but motor vehicle KCF 213D hit motor vehicle KAY from the rear and then hit the parked lorry. He did not state which motor vehicle was being overtaken by KAY 016J.
Third, PW3 testified that the driver parked off the road KBU 710H was to blame since there were no signs that the motor vehicle was stationary. He however did not prove that indeed, the Appellant’s driver did not place any signs of his stationed vehicle. PW2 did not also state whether there was or there was no sign in place when the police officer went to the scene.
Lastly, PW3 testified that KAY did not indicate a sign that he was overtaking. PW3 having testified that he could see the vehicles approaching him, he cannot confidentially tell whether the driver of KAY indicated or not. PW3 could only have been alerted by the impact following the accident and cannot be believed to say that he kept his eyes throughout on the movement of the three vehicles.
Further, PW3 did not know how many people were injured and taken to hospital. If indeed he was a truthful eye witness, he would be in a position to tell the approximate number of persons who were injured including the deceased herein. In his witness statement dated 8 th May 2020, PW2 does not mention the deceased herein for whose Estate he was called as a witness.
By the time he left the scene of the accident, the police had not arrived. It is not clear whether PW3 ever recorded his statement with the police either at Kyumbi police station or any other police station.
On the analysis of the evidence by PW2 and PW3, this court finds that the two witnesses did not categorically prove that the Appellant’s driver was to blame for the occurrence of the accident herein.
PW3 testified that the weather was sunny. Visibility was clear. The traffic was light and only the three vehicles were on the road. If indeed that was the condition of the weather and traffic at that time, the deceased would have been able to see the Appellant’s motor vehicle and avoided the accident thus whether the Appellant’s driver failed to place a warning sign would have been immaterial. In my view, the Appellant’s driver was wrongly held to be at fault.
In order for a driver to hit another vehicle from the rear it would obviously mean that the distance between the vehicles was safe enough to allow application of emergency brakes to avoid the accident. The law requires that drivers be mindful of other road users thus the need to keep distance and regulate speed.
In the case of Khambi & Another vs Mahithi and Another [1968] EA 70 , it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
I find that the deceased failed to keep a safe distance between his motor vehicle KCF 213D and the 2nd and 3rd Respondent’s vehicle KAY 016J and also drove, managed and controlled his vehicle KCF 213D recklessly such that he was unable to see in time and void ramming into the Appellant’s motor vehicle KBU 170H. See Masembe ys. Sugar Corporation and Another (2002) 2 EA. 434 as was quoted with approval by Justice Chemitei in Civil Appeal No.54 of 2018 Alex Kipruto Malel & Anor (supra) where it was held that:
“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid anything he sees after he has seen it...There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct...Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly, entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently."(Emphasis mine)."
Accordingly, I am of the opinion that the interlocutory judgment having been entered against the 2nd and 3rd Respondents, the trial court errered in proceeding to apportion liability only as against the deceased and the Appellant and saying nothing about the 2nd and 3rd Respondents in his judgment. It is my view that following the interlocutory judgment, the trial court ought to have proceeded to determine the awardable damages in the matter.
In the circumstances I am persuaded that the Appellant’s driver is not at all liable in negligence on the occurrence of the accident herein. I therefore find the decease 60% liable and the 2nd and 3rd Respondents 40% liable for the occurrence of the accident.
Quantum
Regarding quantum, the Court of Appeal stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”.
35. In Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30 , it was held that:
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that , short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”
36. See also Butt v Khan (1981) KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001 (2004) eKLR.”
37. In the latter case, the Court of Appeal asserted the discretionary nature of general damages awards and observed that:
“An appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance”.
38. There is no dispute that the 1st Respondent sustained severe injuries as a result of the accident and later died a month after. The deceased is said to have died at the age of 35 years.
39. On quantum, the trial court as earlier stated awarded damages as follows:
Pain and suffering Kshs. 200,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency Kshs. 1,500,000.00
Special damages Kshs. 1,964,770.00
LESS 50% Kshs. 982,385.00
TOTAL AMOUNT AWARDED Kshs. 982,385.00
Proportionate costs of the suit plus interest.
40. In my considered view, this award cannot be said to be excessive or erroneous and I find no reason to disturb the same save that I will interfere with the apportionment of liability as against the Appellant.
41. Accordingly, the appeal succeeds and the trial court’s apportionment of liability at 50% against the Appellant is set aside and the suit as against the Appellant is dismissed with costs. I will substitute the apportionment of liability with 60% as against the deceased and 40% as against the 2nd and 3rd Respondents. Special damages will not be subjected to apportionment of liability (See Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] eKLR where the court stated that special damages should not be subjected to the apportionment.
42. The final orders are as follows:
Liability 60% against deceased; 40% against 2nd and 3rd Respondents
Pain and suffering Kshs. 200,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency Kshs. 1,500,000.00
Kshs. 1,800,000.00
LESS 60% Kshs. 1,080,000.00
Kshs. 720,000.00
Special damages Kshs. 164,770.00
TOTAL AMOUNT AWARDED Kshs. 884,770.00
Proportionate costs of the suit plus interest.
The Appellant shall have costs of the appeal.
A thirty (30) days stay of execution is granted
43o. It is so ordered. File closed
JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH JULY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2025
In the presence of :
Mr. Kioko h/b for Mr. Jengo................ for Appellant
Mr. Wambua.............................. for Respondent
.Milly............................. Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
<>><>><>-><><>><>><>><>><>><>>>><><>>>><>>>><>(<>>> >>)<>><><>><>><>><>><> ><>><>><>><>><>><>><><>><>><><>><><>><>> >> (><>>>, ><><>><><> href="http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3" target="_blank">Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion
I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; I will proceed to consider whether the trial court’s findings on liability and quantum should be disturbed on this appeal.
Liability
The Appellant contends that its motor vehicle is blameless. To clearly understand the facts well, I will first place each of the subject motor vehicles herein to the respective alleged owners and parties herein as follows: -
KBU 710H belonged to TAHMEED TRANSPORTERS LTD, the Appellant;
KAY 016J belonged to IRUNGU EDWARD KARANJA & EDWARD KARANJA, the 2nd and 3rd Respondents; and
KCF 213D belonged to DOMINIC MUTINDA KALOVOTO, the deceased;
A scrutiny of the proceedings on the 1 st Respondent's evidence on the issue of liability reveals that PW2 -Police Officer and PW3-eye witness testified on liability.
PW2 testified that at the time of the accident two motor vehicles were in motion. Motor vehicle KAY was in front followed by KCR leading towards Nairobi direction. The road is dual and the vehicles used the same road. KBU was pushed on the right side facing Nairobi off the road. The accident started when motor vehicle KCF 213D hit motor vehicle KAY from the back. KCF was being driven by Dominic, the deceased. The accident happened at 10.00 a.m. The police arrived later at 1.00p.m after 3 hours later. The driver of motor vehicle KCF was not at the scene. A notice of intended prosecution was issued to the Appellant’s driver who was never charged and prosecuted. No one had been charged yet. All the 3 motor vehicles were towed to Kyumbi police station. Motor vehicle KBU was self-driven to the said police station. Motor vehicles KAY and KBU were hit on the rear.
PW3- an eye witness one Alex Muia from Makutano testified that he left home at around 10.00 a.m when he saw a lorry partly parked off the road and a saloon car registration No. KAY 016J that tried to overtake but returned to its lane but motor vehicle KCF 213 hit motor vehicle KAY from the rear and then hit the parked lorry. He testified that the driver parked off the road KBU 710H was to blame since there were no signs that the motor vehicle was stationary. KAY did not indicate a sign that he was overtaking. PW3 did not know how many people were injured and taken to hospital. By the time he left the scene of the accident, the police had not arrived. He sought to adopt his witness statement dated 5/5/2020. He stated that both motor vehicles KAY and KCF were heading the same direction.
On cross examination, PW3 stated that he was walking on the side of the road from Nairobi direction. He could see the motor vehicle approaching him. Motor vehicle KCF hit motor vehicle KCF then hit motor vehicle KBU which was stationery. The weather was sunny. Visibility was clear. The traffic was light and only the three vehicles were on the road.
From the testimony of the police officer, he did not clarify whether he was among the police officers who went at the scene of the accident after 3 hours following the occurrence of the accident or whether he was involved in the investigations thereafter. PW2 did not state with certainty who amongst the three drivers herein was negligent and caused the accident. He even mentioned motor vehicle registration No. KCR which was nowhere in the accident herein. He confirmed that the file was still pending investigation on 7/7/2021 as at the time he was testifying in court, the accident having occurred on 22/11/2015, almost six (6) years down the line.
On the other hand, the eye witnesses PW3 stated that on the alleged date of accident, he left home at 10.00 a.m when he saw a lorry partly parked off the road and a saloon car registration No. KAY 016J that tried to overtake but returned to its lane but motor vehicle KCF 213 hit motor vehicle KAY from the rear and then hit the parked lorry. In his witness statement dated 8 th May 2020, he states that on the said date he was on his way to work but does not give the time. This witness’s testimony is not clear because first, he does not say whether at around 10.00 a.m is when he left home, whether he was on his way to work or whether it’s when the accident occurred considering that he testified that the accident occurred as he was walking beside the road and not when he was at his home.
Second, PW3 testified that KAY 016J that tried to overtake but returned to its lane but motor vehicle KCF 213D hit motor vehicle KAY from the rear and then hit the parked lorry. He did not state which motor vehicle was being overtaken by KAY 016J.
Third, PW3 testified that the driver parked off the road KBU 710H was to blame since there were no signs that the motor vehicle was stationary. He however did not prove that indeed, the Appellant’s driver did not place any signs of his stationed vehicle. PW2 did not also state whether there was or there was no sign in place when the police officer went to the scene.
Lastly, PW3 testified that KAY did not indicate a sign that he was overtaking. PW3 having testified that he could see the vehicles approaching him, he cannot confidentially tell whether the driver of KAY indicated or not. PW3 could only have been alerted by the impact following the accident and cannot be believed to say that he kept his eyes throughout on the movement of the three vehicles.
Further, PW3 did not know how many people were injured and taken to hospital. If indeed he was a truthful eye witness, he would be in a position to tell the approximate number of persons who were injured including the deceased herein. In his witness statement dated 8 th May 2020, PW2 does not mention the deceased herein for whose Estate he was called as a witness.
By the time he left the scene of the accident, the police had not arrived. It is not clear whether PW3 ever recorded his statement with the police either at Kyumbi police station or any other police station.
On the analysis of the evidence by PW2 and PW3, this court finds that the two witnesses did not categorically prove that the Appellant’s driver was to blame for the occurrence of the accident herein.
PW3 testified that the weather was sunny. Visibility was clear. The traffic was light and only the three vehicles were on the road. If indeed that was the condition of the weather and traffic at that time, the deceased would have been able to see the Appellant’s motor vehicle and avoided the accident thus whether the Appellant’s driver failed to place a warning sign would have been immaterial. In my view, the Appellant’s driver was wrongly held to be at fault.
In order for a driver to hit another vehicle from the rear it would obviously mean that the distance between the vehicles was safe enough to allow application of emergency brakes to avoid the accident. The law requires that drivers be mindful of other road users thus the need to keep distance and regulate speed.
In the case of Khambi & Another vs Mahithi and Another [1968] EA 70 , it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
I find that the deceased failed to keep a safe distance between his motor vehicle KCF 213D and the 2nd and 3rd Respondent’s vehicle KAY 016J and also drove, managed and controlled his vehicle KCF 213D recklessly such that he was unable to see in time and void ramming into the Appellant’s motor vehicle KBU 170H. See Masembe ys. Sugar Corporation and Another (2002) 2 EA. 434 as was quoted with approval by Justice Chemitei in Civil Appeal No.54 of 2018 Alex Kipruto Malel & Anor (supra) where it was held that:
“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid anything he sees after he has seen it...There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct...Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly, entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently."(Emphasis mine)."
Accordingly, I am of the opinion that the interlocutory judgment having been entered against the 2nd and 3rd Respondents, the trial court errered in proceeding to apportion liability only as against the deceased and the Appellant and saying nothing about the 2nd and 3rd Respondents in his judgment. It is my view that following the interlocutory judgment, the trial court ought to have proceeded to determine the awardable damages in the matter.
In the circumstances I am persuaded that the Appellant’s driver is not at all liable in negligence on the occurrence of the accident herein. I therefore find the decease 60% liable and the 2nd and 3rd Respondents 40% liable for the occurrence of the accident.
Quantum
Regarding quantum, the Court of Appeal stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”.
35. In Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30 , it was held that:
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that , short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”
36. See also Butt v Khan (1981) KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001 (2004) eKLR.”
37. In the latter case, the Court of Appeal asserted the discretionary nature of general damages awards and observed that:
“An appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance”.
38. There is no dispute that the 1st Respondent sustained severe injuries as a result of the accident and later died a month after. The deceased is said to have died at the age of 35 years.
39. On quantum, the trial court as earlier stated awarded damages as follows:
Pain and suffering Kshs. 200,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency Kshs. 1,500,000.00
Special damages Kshs. 1,964,770.00
LESS 50% Kshs. 982,385.00
TOTAL AMOUNT AWARDED Kshs. 982,385.00
Proportionate costs of the suit plus interest.
40. In my considered view, this award cannot be said to be excessive or erroneous and I find no reason to disturb the same save that I will interfere with the apportionment of liability as against the Appellant.
41. Accordingly, the appeal succeeds and the trial court’s apportionment of liability at 50% against the Appellant is set aside and the suit as against the Appellant is dismissed with costs. I will substitute the apportionment of liability with 60% as against the deceased and 40% as against the 2nd and 3rd Respondents. Special damages will not be subjected to apportionment of liability (See Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] eKLR where the court stated that special damages should not be subjected to the apportionment.
42. The final orders are as follows:
Liability 60% against deceased; 40% against 2nd and 3rd Respondents
Pain and suffering Kshs. 200,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency Kshs. 1,500,000.00
Kshs. 1,800,000.00
LESS 60% Kshs. 1,080,000.00
Kshs. 720,000.00
Special damages Kshs. 164,770.00
TOTAL AMOUNT AWARDED Kshs. 884,770.00
Proportionate costs of the suit plus interest.
The Appellant shall have costs of the appeal.
A thirty (30) days stay of execution is granted
43o. It is so ordered. File closed
JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH JULY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2025
In the presence of :
Mr. Kioko h/b for Mr. Jengo................ for Appellant
Mr. Wambua.............................. for Respondent
.Milly............................. Court Assistant