(Being an Appeal from the judgment and decree of Hon. Hosea M. Ng’ang’a (PM) in Milimani CMCC No. 12528 of 2021 delivered on 28th February 2024).
JUDGMENT
1. This appeal was filed through a memorandum dated 25th March 2024. The record of appeal is dated 13th June 2024 followed by a supplementary record of appeal dated 10th July 2024 and a further supplementary record of appeal dated 12th July 2024.
2. This appeal seeks to challenge the judgment of the learned trial magistrate delivered on 27th February 2024 on both liability and assessment of damages. The respondents suing as the Legal Representatives of the Estate of John Kuria Kibe (deceased) filed suit for compensation against the appellants in a plaint dated 29th September 2021 in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents of the deceased.
3. It was the respondents’ case before the trial court that the deceased met his death as a result of negligence on the part of 2nd appellant who was the driver of the 1st appellant’s motor vehicle registration number KCN 195Q on 24th June 2019 at around 3.00 p.m. along Outering road in Nairobi. The deceased was at the time riding motor cycle registration number KMCQ 662Z along the said road when the respondent’s motor vehicle also driven on the said road hit the deceased thereby causing him fatal injuries from which he succumbed. The respondents pleaded the doctrine of Res ipsa loquitor.
4. As a result of the accident, the respondents lost the family support of the deceased who was aged 36 years, enjoying a robust and satisfactory life and engaged in the business of installing, repairing and servicing DSTV satellite dishes in homes and institutions within Nairobi and its environs from which he earned a minimum of KShs 30,000/= per month. He had left behind a widow and three sons and his mother all who were depending on him. Following the death of the deceased, the family had incurred special damages of KShs 252,775/= made up of KShs 251,300/= as funeral expenses, KShs 550/= fees for copy of records and KShs 925/= for letters of administration.
5. The case was defended by the appellants through a statement of defence dated 31st January 2022. They denied the respondents’ claim in toto and put them to strict proof. They further pleaded negligence and contribution on the part of the deceased.
6. The respondents Mary Waithira Ngugi and Christine Mutethya Mweu, testified in the case as PW 1 and PW 2 respectively. They adopted their respective witness statements dated 29th September 2021 which basically rehashed the pleadings in the plaint. Neither of them witnessed the accident. PW 1 produced as exhibits the various documents shown in their list filed in court alongside the plaint.
7. No other witness was called in the case.
8. The appellants opted not to offer any evidence at the trial.
9. After trial the learned trial magistrate found on the issue of liability that the 2nd appellant, the driver of the accident vehicle was wholly to blame for the accident and the 1st appellant was vicariously liable for the same.
10. He assessed the quantum of damages as follows:
a. Pain and suffering KShs 100,000/=
b. Loss of expectation of life KShs 220,000/=
c. Loss of dependency KShs 3,504,192/=
d. Special damages KShs 96,550/=
Total KShs 3,920,742.00
11. The appellants were dissatisfied with that decision and now appeal to this court on the following grounds:
a. The learned trial magistrate erred in law in failing to appreciate the evidence on liability and thereby reaching a wrong finding thereon.
b. The learned trial magistrate erred in law and in fact in making a finding on liability that was not supported by the evidence on record.
c. The learned trial magistrate erred in law and in fact in reaching a finding that the appellants were liable 100%.
d. The learned trial magistrate erred in law and in fact in in making an award on general damages that was inordinately high.
e. The learned trial magistrate erred in law and in fact in failing to consider and/or appreciate the appellants’ submissions.
12. The appellants therefore pray that this court allows the appeal, sets aside the judgment of the trial court and substitutes it with an order dismissing the respondents’ case before the trial court against the appellants or in the alternative, the trial court’s finding on liability be set aside and substituted with such finding as this court may deem proper. Further that the trial court’s findings on general damages be set aside and be substituted with such an award as this court may deem proper. Further that this court makes any other order as the justice of the case may demand and that the costs of the appeal and the lower court be awarded to the appellants.
13. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The appellants’ submissions are dated 10th April 2025 while the respondents’ submissions are dated 2nd April 2025.
14. Learned counsel for the appellants submits that there was no evidence at all on how the accident occurred and therefore why the appellants should bear liability or bear liability at 100%.
15. He submits that not even the police abstract produced in evidence by the respondents indicated who was to blame for the accident as it was only marked as “PUI” or pending under investigations. The respondents failed to call the police officer who investigated the case to offer evidence on the findings.
16. Learned counsel submits that under the circumstances, the respondents failed to prove their case on a balance of probability as required under sections 107 and 109 of the Evidence Act (Cap. 80) Laws of Kenya. The said sections provide as follows:
S. 107(1). Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2). When a person is bound to prove the existence of any
facts, it is said that the burden of proof lies on that person.
S. 109. The burden of proof as to any particular fact lies on the
person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact lie on any particular person.
17. In support of the appellants’ case, learned counsel cited the case of CMC Aviation Ltd v. Crusair Ltd (No1) (1987) KLR 103, where the Court of Appeal held:
“The pleadings contain the averments of the (three) parties concerned. Until they are proved or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded on them. Proof is the foundation of evidence.
As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven... The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.”
18. Learned counsel submits that under the circumstances, this court should apportion liability equally between the parties in the ratio of 50:50.
19. Learned counsel for the respondents on his part submits that the evidence on record supported the respondents case because the police abstract confirmed the occurrence of the accident.
20. That is correct but the occurrence of the accident was not in contention, the appellants having pleaded in the alternative that in fact, the deceased was also negligent in his manner of riding the motor cycle. The issue was, who between the driver of the vehicle, the 2nd appellant, and the deceased rider of the motor cycle was to blame.
21. I have considered the record of appeal, the grounds of appeal and the submissions by learned counsels for the parties.
22. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
23. On the evidence on record there is no dispute that the accident occurred as supported by the police abstract produced by PW 1. There is also no dipsute that the 1st respondent was the owner of the accident vehicle as per the copy of records produced as exhibit and the police abstract.
24. The appellants never offered evidence to discount the evidence of the police abstract that indeed the accident did occur and was reported at the police station or even that as issued, the police abstract was correct in the information captured.
25. Besides the police abstract, there are medical documents which show that the deceased was taken to hospital having been involved in a road traffic accident and that he later died from the injuries sustained.
26. On a balance of probability, on the basis of that uncontroverted evidence, I find that indeed the accident occurred and the 2nd appellant and the deceased were involved.
27. The next issue for determination is who was to blame for the accident between the deceased and the 2nd appellant. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
28. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
29. In the present case the fact of the accident occurring between the deceased’s motorcycle and the appellants’ vehicle was not challenged and so it cannot be that neither the driver nor the rider was to blame.
30. The accident occurred between the deceased as a motor-cyclist and the 2nd appellant as the driver of the vehicle. There was no evidence at all of how the accident occurred. The appellants pleaded in their defence that the deceased was either wholly or partially to blame for the accident. The appellants did not tender evidence to show to what extent the deceased could have been to blame for the accident. The appellants then submit that it is only fair that the parties share liability in the circumstances. That pleading considered together with the submission is an admission of fact, that the driver of the vehicle was, to a certain extent, to blame for the accident so the same needed no proof by the respondents.
31. Under those circumstances, I must go by the Court of Appeal’s holding in Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon reviewing several decisions, the Court of Appeal held that:
“It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”
32. In that case, the Court of Appeal referred to the English case of Baker v. Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 at 1476, where Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them ... “
33. Following the reason in the above cases, I come to the conclusion that both the deceased motor cyclist and the 2nd appellant as the driver of the vehicle who were involved in the accident on the road must be held equally to blame for the accident. I therefore set aside the learned trial magistrate’s finding that negligence had been proved 100% against the appellants and apportion liability in the ratio of 50:50 between the deceased motorcyclist and the driver of the vehicle, the 2nd appellant. The 1st appellant being the owner of the accident vehicle is held vicariously liable in negligence for the acts of the 2nd appellant.
34. On the issue of assessment of damages, there is no appeal on the award of special damages and so the award of the trial court of KShs 96,550/= remains.
35. The next issue is the assessment of general damages. This court is guided by the decision of the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) which set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
36. The same principles are also stated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, by Kneller J.A. thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be 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 damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
37. Similarly, in the case of Butt v Khan [1978] KECA 24 (KLR) the court pronounced itself as follows:
“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.”
38. Learned counsel for the appellant submits on the award of pain and suffering that the trial court ought to have awarded was KShs 50,000/= and not 100,000/= because the evidence on record showed that the deceased died on the same day. He relies on the case of Samuel Mutitu Nderitu (Suing on his own Behalf and as Legal Representative of the Estate of Gladys Muringi Nderitu- Deceased) v Erastus Mutahi Mugambi [2021] KEHC 6445 (KLR) where the High Court on appeal set aside an award of KShs 10,000/= and substituted it with an award of KShs 50,000/= where the deceased died on the spot.
39. Learned counsel for the respondent submitted that the sum awarded by the trial court was reasonable and that the trial court had correctly applied the principles outlined in the case of Hyder Nthenya Musili & another (Suing as the Legal Representatives of the Estate of Collins Mumo Mbindyo) v China Wu Yi Ltd & another [2019] KEHC 7851 (KLR).
40. Evidence from the post mortem report showed that after the accident the deceased was rushed to Kenyatta National Hospital where he was pronounced dead on arrival. The certificate of death showed the place of death to be Buru Buru, most probably on the way to the hospital. These two documents show that the deceased died most likely shortly after the accident. The learned trial magistrate awarded KShs 100,000/= for pain and suffering.
41. In the case of Joseph Kivati Wambua v SMM & another (Suing as the Legal Representatives of the Estate of EMM-Deceased) [2021] KEHC 9632 (KLR) the High Court observed regarding the award of pain and suffering that:
“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness. In the instant case, there was no cross-examination of the witnesses in order to bring out this evidence. A distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed sometime after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.”
42. Then in the case cited by learned counsel for the respondent of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) the High Court, Odunga, J. (as he then was) held as follows:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
43. In the two cited case, where both the deceased died on the spot, one court awarded KShs 10,000/= while another awarded KShs 50,000/=. Both cases are recent. None of them reached the award made by the trial court of KShs 100,000/= under similar circumstances. It follows that even though the trial court had been provided with an authority to follow, it failed to do so or offer an explanation why. The appellants had at the trial proposed KShs 30,000/= but now proposes an ward of KShs 50,000/= which is in line with the authorities cited while learned counsel for the respondent has not offered any authority to counter the same. In the circumstances, I find that the trial court failed to take into account a relevant issue, of similar awards. That was an error and this court is therefore bound to interfere with the lower court’s award. It is subject to be corrected. I therefore substitute the award for pain and suffering of KShs 100,000/= with KShs 50,000/=.
44. On loss of expectation of life, the trial court awarded a sum of KShs 220,000/=. Learned counsel for the appellants had proposed a sum of KShs 100,000/= based on the case of Mercy Muriuki & Another v Samuel Mwangu Nduati & another (Suing as the Legal administrator of the Estate of the Late Robert Mwangi [2019] eKLR. He has maintained that proposal in the present appeal. Learned counsel for the respondent on his part before the trial court proposed an award of KShs 300,000/= and cited the case of Douglas Ooga Nyansimora v. Sammy Mutunga Makau & another [2016] eKLR where the award under that head was KShs 150,000/= in 2014.
45. Many decisions, including that of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR)(supra) have held that an award under the head of loss of expectation of life is a conventional award and in recent times, the figure has been KShs 100,000/=. The learned trial magistrate in departing from the authorities which had held that the conventional award under this head is usually KShs 100,000/= did not offer any reason for the same but interestingly termed it as conventional. In the circumstances, I find that his assessment was not based on sound principle and the same is subject to be upset by this court. I find that the award of KShs 220,000/= was inordinately high in the circumstances. I therefore set aside the same and substitute it with an award of KShs 100,000/=.
46. On loss of dependency, the appellants proposed before the trial court that the court adopts the global sum approach. However, in this court they now propose that the court adopts the multiplier/multiplicand approach. The respondent also proposed the same before the trial court. Both parties further propose that the court adopts the Minimum Wage Guidelines for the relevant year. The trial court adopted the multiplier/multiplicand approach and applied the Minimum Wage Guidelines for 2022 as proposed by the counsel for the respondents in determining the deceased’s income. That was not correct because the deceased died on 24th June 2019, yet the trial court took the proposal line, hook and sinker and applied it in arriving at the award. That multiplicand must therefore be set aside.
47. The dependency ratio of 2/3 is not disputed and the same is adopted by this court. The deceased had a wife, three children all schooling, and also supported his mother aged 74 years. In that case, the conventional approach would be to apply a dependency ratio of 2/3 as adopted by the trial court.
48. The appellant proposes that the court adopts the earning of a general worker under the Regulation of Wages (General) (Amendment) Order, 2018 which was in force at the time where the minimum monthly wage for a general laborer in Nairobi was KShs 13,572.90.
49. I will proceed by way of the multiplier/multiplicand approach. This court’s approach is that in order to arrive at a justifiable figure of income for the deceased, following the Minimum Wage Guidelines would be the correct way to pursue. However, I do not think that the scale of a general worker is appropriate for the deceased given evidence of the work he was doing and there being evidence that on the material day, he was indeed going about his work and he was carrying materials for his said work. That evidence was not challenged. In the circumstances I would place him in the income bracket of an ungraded artisan. This is a category of workers who possess basic technical skills for carrying out these jobs but probably not on a highly specialized basis. I am inclined to find that in that category, the skills required are beyond those of a general worker. In the circumstances, the basic income for the deceased would be KShs 18,319.50 based on the Regulation of Wages (General) (Amendment) Order, 2018.
50. The age of the deceased is stated as 38 years in the certificate of death but 36 years in the post mortem form. The trial court adopted a multiplier of 24 years probably based on the age indicated in the post mortem form. Learned counsel for the appellants proposes a multiplier of 22 years which I find to be reasonable and correct considering that the official government retirement age is 60 years and this is many times adopted even in the private sector. Learned counsel for the respondent submitted before the trial court that the retirement age was 65 years but without any legal backing. That was what the trial court seems to have followed and I find that it was erroneous. I will go by the age indicated in the certificate of death which I believe was determined from the deceased’s date of birth which must have been indicated in his national identification card.
51. In summary therefore, the loss of dependency would work out to be:
KShs 18,319.50 x 22 x 12 x 2/3 = 3,224,232/=
52. I therefore find that there are sufficient reasons as stated in the analyses above for this Court to interfere with the discretion of the trial court in assessment of general damages for pain and suffering, loss of expectation of life and loss of dependency for the reasons that the decision was arrived at without taking into account the applicable principles in assessment of damages in like cases, thus making them erroneous estimates, even as the final award is almost similar to what this court has arrived at. The same is a mere coincidence.
53. The trial court’s award on general damages is therefore set aside and substituted with the awards above. However, the assessment of special damages will remain as awarded by the trial court.
54. Consequently, the trial court’s judgment is set aside and substituted with a judgment in the following terms:
a. Pain and suffering KShs 50,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 3,224,232/=
d. Special damages KShs 96,550/=
Total Kshs 3,470,782/=.
Less 50% contributory negligence KShs 1,735,391/=.
55. Judgment shall be entered for the respondents against the appellants, jointly and severally in the lower court in the sum of KShs 1,735,391/=.
56. The costs of this appeal and the lower court shall be borne by each party on its own.
57. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 18th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
Mwende (Ms) for the Respondent.
Ummu h/b for Amina: Court Assistant.
JUDGMENT
1. This appeal was filed through a memorandum dated 25th March 2024. The record of appeal is dated 13th June 2024 followed by a supplementary record of appeal dated 10th July 2024 and a further supplementary record of appeal dated 12th July 2024.
2. This appeal seeks to challenge the judgment of the learned trial magistrate delivered on 27th February 2024 on both liability and assessment of damages. The respondents suing as the Legal Representatives of the Estate of John Kuria Kibe (deceased) filed suit for compensation against the appellants in a plaint dated 29th September 2021 in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents of the deceased.
3. It was the respondents’ case before the trial court that the deceased met his death as a result of negligence on the part of 2nd appellant who was the driver of the 1st appellant’s motor vehicle registration number KCN 195Q on 24th June 2019 at around 3.00 p.m. along Outering road in Nairobi. The deceased was at the time riding motor cycle registration number KMCQ 662Z along the said road when the respondent’s motor vehicle also driven on the said road hit the deceased thereby causing him fatal injuries from which he succumbed. The respondents pleaded the doctrine of Res ipsa loquitor.
4. As a result of the accident, the respondents lost the family support of the deceased who was aged 36 years, enjoying a robust and satisfactory life and engaged in the business of installing, repairing and servicing DSTV satellite dishes in homes and institutions within Nairobi and its environs from which he earned a minimum of KShs 30,000/= per month. He had left behind a widow and three sons and his mother all who were depending on him. Following the death of the deceased, the family had incurred special damages of KShs 252,775/= made up of KShs 251,300/= as funeral expenses, KShs 550/= fees for copy of records and KShs 925/= for letters of administration.
5. The case was defended by the appellants through a statement of defence dated 31st January 2022. They denied the respondents’ claim in toto and put them to strict proof. They further pleaded negligence and contribution on the part of the deceased.
6. The respondents Mary Waithira Ngugi and Christine Mutethya Mweu, testified in the case as PW 1 and PW 2 respectively. They adopted their respective witness statements dated 29th September 2021 which basically rehashed the pleadings in the plaint. Neither of them witnessed the accident. PW 1 produced as exhibits the various documents shown in their list filed in court alongside the plaint.
7. No other witness was called in the case.
8. The appellants opted not to offer any evidence at the trial.
9. After trial the learned trial magistrate found on the issue of liability that the 2nd appellant, the driver of the accident vehicle was wholly to blame for the accident and the 1st appellant was vicariously liable for the same.
10. He assessed the quantum of damages as follows:
a. Pain and suffering KShs 100,000/=
b. Loss of expectation of life KShs 220,000/=
c. Loss of dependency KShs 3,504,192/=
d. Special damages KShs 96,550/=
Total KShs 3,920,742.00
11. The appellants were dissatisfied with that decision and now appeal to this court on the following grounds:
a. The learned trial magistrate erred in law in failing to appreciate the evidence on liability and thereby reaching a wrong finding thereon.
b. The learned trial magistrate erred in law and in fact in making a finding on liability that was not supported by the evidence on record.
c. The learned trial magistrate erred in law and in fact in reaching a finding that the appellants were liable 100%.
d. The learned trial magistrate erred in law and in fact in in making an award on general damages that was inordinately high.
e. The learned trial magistrate erred in law and in fact in failing to consider and/or appreciate the appellants’ submissions.
12. The appellants therefore pray that this court allows the appeal, sets aside the judgment of the trial court and substitutes it with an order dismissing the respondents’ case before the trial court against the appellants or in the alternative, the trial court’s finding on liability be set aside and substituted with such finding as this court may deem proper. Further that the trial court’s findings on general damages be set aside and be substituted with such an award as this court may deem proper. Further that this court makes any other order as the justice of the case may demand and that the costs of the appeal and the lower court be awarded to the appellants.
13. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The appellants’ submissions are dated 10th April 2025 while the respondents’ submissions are dated 2nd April 2025.
14. Learned counsel for the appellants submits that there was no evidence at all on how the accident occurred and therefore why the appellants should bear liability or bear liability at 100%.
15. He submits that not even the police abstract produced in evidence by the respondents indicated who was to blame for the accident as it was only marked as “PUI” or pending under investigations. The respondents failed to call the police officer who investigated the case to offer evidence on the findings.
16. Learned counsel submits that under the circumstances, the respondents failed to prove their case on a balance of probability as required under sections 107 and 109 of the Evidence Act (Cap. 80) Laws of Kenya. The said sections provide as follows:
S. 107(1). Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2). When a person is bound to prove the existence of any
facts, it is said that the burden of proof lies on that person.
S. 109. The burden of proof as to any particular fact lies on the
person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact lie on any particular person.
17. In support of the appellants’ case, learned counsel cited the case of CMC Aviation Ltd v. Crusair Ltd (No1) (1987) KLR 103, where the Court of Appeal held:
“The pleadings contain the averments of the (three) parties concerned. Until they are proved or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded on them. Proof is the foundation of evidence.
As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven... The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.”
18. Learned counsel submits that under the circumstances, this court should apportion liability equally between the parties in the ratio of 50:50.
19. Learned counsel for the respondents on his part submits that the evidence on record supported the respondents case because the police abstract confirmed the occurrence of the accident.
20. That is correct but the occurrence of the accident was not in contention, the appellants having pleaded in the alternative that in fact, the deceased was also negligent in his manner of riding the motor cycle. The issue was, who between the driver of the vehicle, the 2nd appellant, and the deceased rider of the motor cycle was to blame.
21. I have considered the record of appeal, the grounds of appeal and the submissions by learned counsels for the parties.
22. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
23. On the evidence on record there is no dispute that the accident occurred as supported by the police abstract produced by PW 1. There is also no dipsute that the 1st respondent was the owner of the accident vehicle as per the copy of records produced as exhibit and the police abstract.
24. The appellants never offered evidence to discount the evidence of the police abstract that indeed the accident did occur and was reported at the police station or even that as issued, the police abstract was correct in the information captured.
25. Besides the police abstract, there are medical documents which show that the deceased was taken to hospital having been involved in a road traffic accident and that he later died from the injuries sustained.
26. On a balance of probability, on the basis of that uncontroverted evidence, I find that indeed the accident occurred and the 2nd appellant and the deceased were involved.
27. The next issue for determination is who was to blame for the accident between the deceased and the 2nd appellant. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
28. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
29. In the present case the fact of the accident occurring between the deceased’s motorcycle and the appellants’ vehicle was not challenged and so it cannot be that neither the driver nor the rider was to blame.
30. The accident occurred between the deceased as a motor-cyclist and the 2nd appellant as the driver of the vehicle. There was no evidence at all of how the accident occurred. The appellants pleaded in their defence that the deceased was either wholly or partially to blame for the accident. The appellants did not tender evidence to show to what extent the deceased could have been to blame for the accident. The appellants then submit that it is only fair that the parties share liability in the circumstances. That pleading considered together with the submission is an admission of fact, that the driver of the vehicle was, to a certain extent, to blame for the accident so the same needed no proof by the respondents.
31. Under those circumstances, I must go by the Court of Appeal’s holding in Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon reviewing several decisions, the Court of Appeal held that:
“It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”
32. In that case, the Court of Appeal referred to the English case of Baker v. Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 at 1476, where Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them ... “
33. Following the reason in the above cases, I come to the conclusion that both the deceased motor cyclist and the 2nd appellant as the driver of the vehicle who were involved in the accident on the road must be held equally to blame for the accident. I therefore set aside the learned trial magistrate’s finding that negligence had been proved 100% against the appellants and apportion liability in the ratio of 50:50 between the deceased motorcyclist and the driver of the vehicle, the 2nd appellant. The 1st appellant being the owner of the accident vehicle is held vicariously liable in negligence for the acts of the 2nd appellant.
34. On the issue of assessment of damages, there is no appeal on the award of special damages and so the award of the trial court of KShs 96,550/= remains.
35. The next issue is the assessment of general damages. This court is guided by the decision of the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) which set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
36. The same principles are also stated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, by Kneller J.A. thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be 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 damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
37. Similarly, in the case of Butt v Khan [1978] KECA 24 (KLR) the court pronounced itself as follows:
“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.”
38. Learned counsel for the appellant submits on the award of pain and suffering that the trial court ought to have awarded was KShs 50,000/= and not 100,000/= because the evidence on record showed that the deceased died on the same day. He relies on the case of Samuel Mutitu Nderitu (Suing on his own Behalf and as Legal Representative of the Estate of Gladys Muringi Nderitu- Deceased) v Erastus Mutahi Mugambi [2021] KEHC 6445 (KLR) where the High Court on appeal set aside an award of KShs 10,000/= and substituted it with an award of KShs 50,000/= where the deceased died on the spot.
39. Learned counsel for the respondent submitted that the sum awarded by the trial court was reasonable and that the trial court had correctly applied the principles outlined in the case of Hyder Nthenya Musili & another (Suing as the Legal Representatives of the Estate of Collins Mumo Mbindyo) v China Wu Yi Ltd & another [2019] KEHC 7851 (KLR).
40. Evidence from the post mortem report showed that after the accident the deceased was rushed to Kenyatta National Hospital where he was pronounced dead on arrival. The certificate of death showed the place of death to be Buru Buru, most probably on the way to the hospital. These two documents show that the deceased died most likely shortly after the accident. The learned trial magistrate awarded KShs 100,000/= for pain and suffering.
41. In the case of Joseph Kivati Wambua v SMM & another (Suing as the Legal Representatives of the Estate of EMM-Deceased) [2021] KEHC 9632 (KLR) the High Court observed regarding the award of pain and suffering that:
“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness. In the instant case, there was no cross-examination of the witnesses in order to bring out this evidence. A distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed sometime after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.”
42. Then in the case cited by learned counsel for the respondent of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) the High Court, Odunga, J. (as he then was) held as follows:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
43. In the two cited case, where both the deceased died on the spot, one court awarded KShs 10,000/= while another awarded KShs 50,000/=. Both cases are recent. None of them reached the award made by the trial court of KShs 100,000/= under similar circumstances. It follows that even though the trial court had been provided with an authority to follow, it failed to do so or offer an explanation why. The appellants had at the trial proposed KShs 30,000/= but now proposes an ward of KShs 50,000/= which is in line with the authorities cited while learned counsel for the respondent has not offered any authority to counter the same. In the circumstances, I find that the trial court failed to take into account a relevant issue, of similar awards. That was an error and this court is therefore bound to interfere with the lower court’s award. It is subject to be corrected. I therefore substitute the award for pain and suffering of KShs 100,000/= with KShs 50,000/=.
44. On loss of expectation of life, the trial court awarded a sum of KShs 220,000/=. Learned counsel for the appellants had proposed a sum of KShs 100,000/= based on the case of Mercy Muriuki & Another v Samuel Mwangu Nduati & another (Suing as the Legal administrator of the Estate of the Late Robert Mwangi [2019] eKLR. He has maintained that proposal in the present appeal. Learned counsel for the respondent on his part before the trial court proposed an award of KShs 300,000/= and cited the case of Douglas Ooga Nyansimora v. Sammy Mutunga Makau & another [2016] eKLR where the award under that head was KShs 150,000/= in 2014.
45. Many decisions, including that of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR)(supra) have held that an award under the head of loss of expectation of life is a conventional award and in recent times, the figure has been KShs 100,000/=. The learned trial magistrate in departing from the authorities which had held that the conventional award under this head is usually KShs 100,000/= did not offer any reason for the same but interestingly termed it as conventional. In the circumstances, I find that his assessment was not based on sound principle and the same is subject to be upset by this court. I find that the award of KShs 220,000/= was inordinately high in the circumstances. I therefore set aside the same and substitute it with an award of KShs 100,000/=.
46. On loss of dependency, the appellants proposed before the trial court that the court adopts the global sum approach. However, in this court they now propose that the court adopts the multiplier/multiplicand approach. The respondent also proposed the same before the trial court. Both parties further propose that the court adopts the Minimum Wage Guidelines for the relevant year. The trial court adopted the multiplier/multiplicand approach and applied the Minimum Wage Guidelines for 2022 as proposed by the counsel for the respondents in determining the deceased’s income. That was not correct because the deceased died on 24th June 2019, yet the trial court took the proposal line, hook and sinker and applied it in arriving at the award. That multiplicand must therefore be set aside.
47. The dependency ratio of 2/3 is not disputed and the same is adopted by this court. The deceased had a wife, three children all schooling, and also supported his mother aged 74 years. In that case, the conventional approach would be to apply a dependency ratio of 2/3 as adopted by the trial court.
48. The appellant proposes that the court adopts the earning of a general worker under the Regulation of Wages (General) (Amendment) Order, 2018 which was in force at the time where the minimum monthly wage for a general laborer in Nairobi was KShs 13,572.90.
49. I will proceed by way of the multiplier/multiplicand approach. This court’s approach is that in order to arrive at a justifiable figure of income for the deceased, following the Minimum Wage Guidelines would be the correct way to pursue. However, I do not think that the scale of a general worker is appropriate for the deceased given evidence of the work he was doing and there being evidence that on the material day, he was indeed going about his work and he was carrying materials for his said work. That evidence was not challenged. In the circumstances I would place him in the income bracket of an ungraded artisan. This is a category of workers who possess basic technical skills for carrying out these jobs but probably not on a highly specialized basis. I am inclined to find that in that category, the skills required are beyond those of a general worker. In the circumstances, the basic income for the deceased would be KShs 18,319.50 based on the Regulation of Wages (General) (Amendment) Order, 2018.
50. The age of the deceased is stated as 38 years in the certificate of death but 36 years in the post mortem form. The trial court adopted a multiplier of 24 years probably based on the age indicated in the post mortem form. Learned counsel for the appellants proposes a multiplier of 22 years which I find to be reasonable and correct considering that the official government retirement age is 60 years and this is many times adopted even in the private sector. Learned counsel for the respondent submitted before the trial court that the retirement age was 65 years but without any legal backing. That was what the trial court seems to have followed and I find that it was erroneous. I will go by the age indicated in the certificate of death which I believe was determined from the deceased’s date of birth which must have been indicated in his national identification card.
51. In summary therefore, the loss of dependency would work out to be:
KShs 18,319.50 x 22 x 12 x 2/3 = 3,224,232/=
52. I therefore find that there are sufficient reasons as stated in the analyses above for this Court to interfere with the discretion of the trial court in assessment of general damages for pain and suffering, loss of expectation of life and loss of dependency for the reasons that the decision was arrived at without taking into account the applicable principles in assessment of damages in like cases, thus making them erroneous estimates, even as the final award is almost similar to what this court has arrived at. The same is a mere coincidence.
53. The trial court’s award on general damages is therefore set aside and substituted with the awards above. However, the assessment of special damages will remain as awarded by the trial court.
54. Consequently, the trial court’s judgment is set aside and substituted with a judgment in the following terms:
a. Pain and suffering KShs 50,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 3,224,232/=
d. Special damages KShs 96,550/=
Total Kshs 3,470,782/=.
Less 50% contributory negligence KShs 1,735,391/=.
55. Judgment shall be entered for the respondents against the appellants, jointly and severally in the lower court in the sum of KShs 1,735,391/=.
56. The costs of this appeal and the lower court shall be borne by each party on its own.
57. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 18th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
Mwende (Ms) for the Respondent.
Ummu h/b for Amina: Court Assistant.