Background:
1. By a Plaint dated 5th November 2021, the Appellant herein, in Milimani Chief Magistrates Civil Case No.12373 of 2021 [hereinafter referred to as ‘the suit’]. Sued the Respondents. It was his case that the deceased was lawfully riding a motorcycle along Mombasa Road in Nairobi when the Appellant, while driving motor vehicle registration number KBZ 519W, a Mercedes prime mover [hereinafter referred to as ‘the motor vehicle’] caused the said motor vehicle to lose control and cause an accident.
2. The Plaintiff particularized the Respondent’s ’s negligence to include, inter alia, driving at excessive speed, failing to keep a proper lookout or failing to have any sufficient regards for other road users and in particular motor cycle registration No. KMEQ 854V, causing an accident leading to fatal bodily injuries leading to death. She sought general damages, special damages, and costs of the suit and interest from the date of the accident to payment in full.
3. The Respondents entered an appearance in the suit and filed a Statement of Defence dated 5th May 2023 denying the occurrence of the accident as pleaded and, in the alternative, alleged negligence on the part of the Appellant. Specifically, they averred that the Appellant caused the accident by riding at an excessive and dangerous speed on busy road oblivious of the rainy weather conditions among other wrong doings.
4. In its judgment dated 20th September 2024, the trial Court apportioned liability at 50% : 50% leading to an award of Kshs.783,062 to the Appellant.
5. Aggrieved with the rendition, the Appellant preferred this appeal and the Respondents equally preferred a cross appeal which was disposed of by way of written submissions by both parties.
The Appeal and the Cross Appeal
6. Through the Memorandum of Appeal dated 8th November 2024, the Appellant challenged the entire judgment on six grounds and prayed that the damages be reassessed.
7. The Respondents vide their cross appeal dated 20th May 2025 raised four ground and prayed that the Judgement of the Trial Court be aside and this Court do proceeds to enter Judgement in terms of their pleadings and submissions.
The Appellant’s submissions:
8. The Appellant filed written submissions and supplementary submissions dated 8th July 2025 and 15th January 2026 respectively to canvass the appeal and the cross appeal.
9. The Appellant submits that the duty of this Court as the first appellate involves a comprehensive re-evaluation and fresh consideration of all evidence presented before the trial court with a view of arriving at its own independent conclusion. The Appellant relied in the case of Selle & Another v Associated Motor Boat Company Limited [1968] EA 123.
10. The Appellant raised an issue whether the evidence adduced before the trial court established that the Respondent was responsible wholly (100%) for the accident. The Appellant faults the apportionment had no factual or evidentiary foundation and effectively punished the deceased’s estate in absence of contributory negligence.
11. The Appellant prays that this Honourable Court replaces the 50-50 apportionment with finding that the Respondent is 100% liable to the accident that led to the death of Peter Leo Mbithi.
12. In respect to damages under the Law Reform Act the Appellant submits that no amount of money can restore the life or physical integrity of the deceased, the award must reflect fair and reasonable estimation of the loss suffered guided by established judicial precedent and the circumstances of each case.
13. The Appellant therefore invites this Court to freshly evaluate the damages under the following heads: pain and suffering, loss of life expectancy, loss of dependency and special damages.
The Respondent’s submissions:
14. The Respondent in their submissions dated 4th November 2025 like the Appellant urged this Court to re-evaluate and re-analyze the evidence tendered before the lower court and arrive at an independent finding. The Respondent places reliance on their submission at the trial court, their cross appeal herein and the written submissions.
15. As regards issues for determination, the Respondent challenged whether the Appellant had discharged the burden of proof on a balance of probability at the Trial Court.
16. The Respondent faults the deceased as the author of his own misfortunes and faults the Trial Court for failing to consider the testimony and evidence of the driver of the motor vehicle together with the investigator.
17. The Respondent faults the trial Court ignored or failed to properly consider the material evidence therefore misapprehended the evidence and reached a conclusion that was against the weight of evidence.
18. The Respondent prays that the Court allows the cross appeal and set aside the Judgement of the Lower Court and substitute it with a just and fair apportionment of liability based on evidence adduced.
Analysis and findings
19. Having perused the record, the rival submissions and the decisions referred to therein, the following issues emerge for determination:
i. Whether the Learned Trial Magistrate erred in the assessment and apportionment of liability at 50%
ii. Whether the Learned Magistrate erred in Law and fact by applying a dependency ration of one third.
iii. Whether the Learned Magistrate erred in using earing of Kshs.14,879.05 in assessing the deceased income whereas the actual salary of Kshs.86,000/=
iv. Whether the cross appeal was filed within the timelines
v. Whether the Learned Magistrate erred in failing to made explicit order as to costs.
20. Before dealing with the above issues, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.
Whether the Learned Trial Magistrate erred in the assessment and apportionment of liability at 50%
21. The trial Court was presented with two divergent accounts on the manner in which the accident occurred. It was the Appellant’s case that the deceased was riding his motorcycle when the 2nd Defendant negligently drove the motor vehicle as to cause the same to lose control and knock the motorcycle.
22. The Appellant testified that she was informed by the people who called her using her son’s phone after the accident that the lorry swerved to avoid hitting a matatu therefore hit the motorcycle.
23. During the hearing at the Trial Court, a police officer testified that at the time of the hearing the case was pending investigations which meant no party has been blamed for the accident.
24. The 2nd Respondent driver denied causing the accident and claimed that the motorcycle was overlapping and slid and hit the landing jack. That he heard screams and stopped that is when he noticed someone had gone under the trailer. The driver testified that he did not see the motorcycle overlap but was informed by the members of the public.
25. The Respondents further obtained a private investigator who undertook investigations, he confirmed that the accident occurred and upon cross examination he testified that he did not take report of any other person apart from the driver. He confirmed that he did not record the statement of Sergeant Fatuma who was the investigating officer.
26. From the proceedings both parties confirmed that the matter is still pending investigations. On the basis of the two diametrically opposite versions on how the accident occurred, the trial Court had to tread quite carefully in examining the credibility of the witnesses. The Court, relied in a Court of Appeal precedent found that the liability is apportioned at 50%-50%.
27. From the analysis of the proceedings at the trial Court, there is no single independent eye witness to the accident. The driver testified that he was alerted by the members of the public screaming. This Court, therefore, finds no compelling reason to disturb the ratio of 50% : 50%.
28. The principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
Whether the Learned Magistrate erred in Law and fact by applying a dependency ration of one third.
29. The Trial Court in its Judgement evaluated the pleadings and based the dependency ration of 1/3rd since the deceased was unmarried. This Court finds that finding reasonable and upholds the same.
30. This Court having analyzed the facts of the case finds no basis of interfering with the multiplier used and will not vary the same. The multiplier of 20 years and a dependency ration of 1/3rd is hereby affirmed.
Whether the Learned Magistrate erred in using earing of Kshs.14,879.05 in assessing the deceased income whereas the actual salary of Kshs.86,000/=
31. The Appellant faults the Trial Court for using the earning of Kshs.14,879.05 instead of Kshs.86,000.00. This Court will analyze the evidence availed regarding the income of the deceased. It’s not disputed that he worked in the County of Machakos as a Registered Nurse II as per the promotion letter dated 26th October 2020 and the payslip for the Month of June 2021 attached at page 40 of the record of appeal.
32. The Respondent has not disputed the earning nor the authenticity of the payslip. The Trial Court proceeded to use the Net Pay of Kshs,14,879.05 as per the payslip without analysing the nature of the deductions which included deductions to Faulu Kenya Ltd.
33. This Court is of the considered view that the Learned magistrate ought to have factored in the statutory deductions only from the gross pay specifically PAYE, NHIF and the Pension in this case but not the deductions to Faulu Kenya. There is no explanation to justify the inclusion of the deductions which are not statutory in nature.
34. I find no basis why the Trial court considered the voluntary deductions in view of the numerous existing precedents on this issue from the High Court and the Court of Appeal. This Courts therefore find that the gross of Kshs.86,000/= ought to be considered minus the statutory deductions only. This Courts find that the appropriate net pay is to be used is Kshs.63,112.05 being the gross salary less statutory deductions that is pension, PAYE and NHIF. This Court finds that the amount above is arrived at as follows: Kshs.86,000 -4,578.00 -16,809.95-1,500=Kshs.63,112.05
Whether the cross appeal was filed within the timelines
35. The Court notes that the Respondent filed a cross appeal on 20th May 2025 and the Appellant has raised an objection in their submissions to the same having been filed without leave of the Court.
36. This Court in the interest of justice will consider the Cross appeal since it basically raises no new issues from the ones raised by the Appellant. This Court will therefore analyse the whole case in totality.
Whether the Learned Magistrate erred in failing to made explicit order as to costs.
37. The Trial Court in its wisdom opted not to made an order of costs and this Courts does not deem it fit to interfere with the Trial Magistrates discretion.
Disposition:
38. Accordingly, the appeal partially succeeds. The judgment of the trial Court is hereby reviewed as follows: -
(a) The apportionment of liability at 50%- 50% is upheld.
(b) The earnings be and is hereby revised from Kshs.14,879.05 to Kshs.63,112.05/= therefore making the loss of dependency be:63,112.05 x12x20x1/3=5,048,964.00
(c) General Damages for pain, suffering of Kshs.50,000 is retained.
(d) The award of Kshs. 100,000/- for loss of life expectancy is hereby upheld.
(e) Special Damages of Kshs. 225,800/= is hereby upheld.
(f) The awards in [b], [c] [d]and [e] above shall be subject to the contribution in [a].
(g) As the appeal has partly succeeded, parties shall bear their respective costs of the appeal.
39. The Cross Appeal dated 20th May 2025 is dismissed with no order as to costs.
40. Each party to bear its costs of this Appeal.
Orders accordingly.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Munguti Learned Counsel for the Appellant.
Gichimu Learned Counsel for the Respondent/Cross Appellant
Michael – Court Assistant.
1. By a Plaint dated 5th November 2021, the Appellant herein, in Milimani Chief Magistrates Civil Case No.12373 of 2021 [hereinafter referred to as ‘the suit’]. Sued the Respondents. It was his case that the deceased was lawfully riding a motorcycle along Mombasa Road in Nairobi when the Appellant, while driving motor vehicle registration number KBZ 519W, a Mercedes prime mover [hereinafter referred to as ‘the motor vehicle’] caused the said motor vehicle to lose control and cause an accident.
2. The Plaintiff particularized the Respondent’s ’s negligence to include, inter alia, driving at excessive speed, failing to keep a proper lookout or failing to have any sufficient regards for other road users and in particular motor cycle registration No. KMEQ 854V, causing an accident leading to fatal bodily injuries leading to death. She sought general damages, special damages, and costs of the suit and interest from the date of the accident to payment in full.
3. The Respondents entered an appearance in the suit and filed a Statement of Defence dated 5th May 2023 denying the occurrence of the accident as pleaded and, in the alternative, alleged negligence on the part of the Appellant. Specifically, they averred that the Appellant caused the accident by riding at an excessive and dangerous speed on busy road oblivious of the rainy weather conditions among other wrong doings.
4. In its judgment dated 20th September 2024, the trial Court apportioned liability at 50% : 50% leading to an award of Kshs.783,062 to the Appellant.
5. Aggrieved with the rendition, the Appellant preferred this appeal and the Respondents equally preferred a cross appeal which was disposed of by way of written submissions by both parties.
The Appeal and the Cross Appeal
6. Through the Memorandum of Appeal dated 8th November 2024, the Appellant challenged the entire judgment on six grounds and prayed that the damages be reassessed.
7. The Respondents vide their cross appeal dated 20th May 2025 raised four ground and prayed that the Judgement of the Trial Court be aside and this Court do proceeds to enter Judgement in terms of their pleadings and submissions.
The Appellant’s submissions:
8. The Appellant filed written submissions and supplementary submissions dated 8th July 2025 and 15th January 2026 respectively to canvass the appeal and the cross appeal.
9. The Appellant submits that the duty of this Court as the first appellate involves a comprehensive re-evaluation and fresh consideration of all evidence presented before the trial court with a view of arriving at its own independent conclusion. The Appellant relied in the case of Selle & Another v Associated Motor Boat Company Limited [1968] EA 123.
10. The Appellant raised an issue whether the evidence adduced before the trial court established that the Respondent was responsible wholly (100%) for the accident. The Appellant faults the apportionment had no factual or evidentiary foundation and effectively punished the deceased’s estate in absence of contributory negligence.
11. The Appellant prays that this Honourable Court replaces the 50-50 apportionment with finding that the Respondent is 100% liable to the accident that led to the death of Peter Leo Mbithi.
12. In respect to damages under the Law Reform Act the Appellant submits that no amount of money can restore the life or physical integrity of the deceased, the award must reflect fair and reasonable estimation of the loss suffered guided by established judicial precedent and the circumstances of each case.
13. The Appellant therefore invites this Court to freshly evaluate the damages under the following heads: pain and suffering, loss of life expectancy, loss of dependency and special damages.
The Respondent’s submissions:
14. The Respondent in their submissions dated 4th November 2025 like the Appellant urged this Court to re-evaluate and re-analyze the evidence tendered before the lower court and arrive at an independent finding. The Respondent places reliance on their submission at the trial court, their cross appeal herein and the written submissions.
15. As regards issues for determination, the Respondent challenged whether the Appellant had discharged the burden of proof on a balance of probability at the Trial Court.
16. The Respondent faults the deceased as the author of his own misfortunes and faults the Trial Court for failing to consider the testimony and evidence of the driver of the motor vehicle together with the investigator.
17. The Respondent faults the trial Court ignored or failed to properly consider the material evidence therefore misapprehended the evidence and reached a conclusion that was against the weight of evidence.
18. The Respondent prays that the Court allows the cross appeal and set aside the Judgement of the Lower Court and substitute it with a just and fair apportionment of liability based on evidence adduced.
Analysis and findings
19. Having perused the record, the rival submissions and the decisions referred to therein, the following issues emerge for determination:
i. Whether the Learned Trial Magistrate erred in the assessment and apportionment of liability at 50%
ii. Whether the Learned Magistrate erred in Law and fact by applying a dependency ration of one third.
iii. Whether the Learned Magistrate erred in using earing of Kshs.14,879.05 in assessing the deceased income whereas the actual salary of Kshs.86,000/=
iv. Whether the cross appeal was filed within the timelines
v. Whether the Learned Magistrate erred in failing to made explicit order as to costs.
20. Before dealing with the above issues, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.
Whether the Learned Trial Magistrate erred in the assessment and apportionment of liability at 50%
21. The trial Court was presented with two divergent accounts on the manner in which the accident occurred. It was the Appellant’s case that the deceased was riding his motorcycle when the 2nd Defendant negligently drove the motor vehicle as to cause the same to lose control and knock the motorcycle.
22. The Appellant testified that she was informed by the people who called her using her son’s phone after the accident that the lorry swerved to avoid hitting a matatu therefore hit the motorcycle.
23. During the hearing at the Trial Court, a police officer testified that at the time of the hearing the case was pending investigations which meant no party has been blamed for the accident.
24. The 2nd Respondent driver denied causing the accident and claimed that the motorcycle was overlapping and slid and hit the landing jack. That he heard screams and stopped that is when he noticed someone had gone under the trailer. The driver testified that he did not see the motorcycle overlap but was informed by the members of the public.
25. The Respondents further obtained a private investigator who undertook investigations, he confirmed that the accident occurred and upon cross examination he testified that he did not take report of any other person apart from the driver. He confirmed that he did not record the statement of Sergeant Fatuma who was the investigating officer.
26. From the proceedings both parties confirmed that the matter is still pending investigations. On the basis of the two diametrically opposite versions on how the accident occurred, the trial Court had to tread quite carefully in examining the credibility of the witnesses. The Court, relied in a Court of Appeal precedent found that the liability is apportioned at 50%-50%.
27. From the analysis of the proceedings at the trial Court, there is no single independent eye witness to the accident. The driver testified that he was alerted by the members of the public screaming. This Court, therefore, finds no compelling reason to disturb the ratio of 50% : 50%.
28. The principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
Whether the Learned Magistrate erred in Law and fact by applying a dependency ration of one third.
29. The Trial Court in its Judgement evaluated the pleadings and based the dependency ration of 1/3rd since the deceased was unmarried. This Court finds that finding reasonable and upholds the same.
30. This Court having analyzed the facts of the case finds no basis of interfering with the multiplier used and will not vary the same. The multiplier of 20 years and a dependency ration of 1/3rd is hereby affirmed.
Whether the Learned Magistrate erred in using earing of Kshs.14,879.05 in assessing the deceased income whereas the actual salary of Kshs.86,000/=
31. The Appellant faults the Trial Court for using the earning of Kshs.14,879.05 instead of Kshs.86,000.00. This Court will analyze the evidence availed regarding the income of the deceased. It’s not disputed that he worked in the County of Machakos as a Registered Nurse II as per the promotion letter dated 26th October 2020 and the payslip for the Month of June 2021 attached at page 40 of the record of appeal.
32. The Respondent has not disputed the earning nor the authenticity of the payslip. The Trial Court proceeded to use the Net Pay of Kshs,14,879.05 as per the payslip without analysing the nature of the deductions which included deductions to Faulu Kenya Ltd.
33. This Court is of the considered view that the Learned magistrate ought to have factored in the statutory deductions only from the gross pay specifically PAYE, NHIF and the Pension in this case but not the deductions to Faulu Kenya. There is no explanation to justify the inclusion of the deductions which are not statutory in nature.
34. I find no basis why the Trial court considered the voluntary deductions in view of the numerous existing precedents on this issue from the High Court and the Court of Appeal. This Courts therefore find that the gross of Kshs.86,000/= ought to be considered minus the statutory deductions only. This Courts find that the appropriate net pay is to be used is Kshs.63,112.05 being the gross salary less statutory deductions that is pension, PAYE and NHIF. This Court finds that the amount above is arrived at as follows: Kshs.86,000 -4,578.00 -16,809.95-1,500=Kshs.63,112.05
Whether the cross appeal was filed within the timelines
35. The Court notes that the Respondent filed a cross appeal on 20th May 2025 and the Appellant has raised an objection in their submissions to the same having been filed without leave of the Court.
36. This Court in the interest of justice will consider the Cross appeal since it basically raises no new issues from the ones raised by the Appellant. This Court will therefore analyse the whole case in totality.
Whether the Learned Magistrate erred in failing to made explicit order as to costs.
37. The Trial Court in its wisdom opted not to made an order of costs and this Courts does not deem it fit to interfere with the Trial Magistrates discretion.
Disposition:
38. Accordingly, the appeal partially succeeds. The judgment of the trial Court is hereby reviewed as follows: -
(a) The apportionment of liability at 50%- 50% is upheld.
(b) The earnings be and is hereby revised from Kshs.14,879.05 to Kshs.63,112.05/= therefore making the loss of dependency be:63,112.05 x12x20x1/3=5,048,964.00
(c) General Damages for pain, suffering of Kshs.50,000 is retained.
(d) The award of Kshs. 100,000/- for loss of life expectancy is hereby upheld.
(e) Special Damages of Kshs. 225,800/= is hereby upheld.
(f) The awards in [b], [c] [d]and [e] above shall be subject to the contribution in [a].
(g) As the appeal has partly succeeded, parties shall bear their respective costs of the appeal.
39. The Cross Appeal dated 20th May 2025 is dismissed with no order as to costs.
40. Each party to bear its costs of this Appeal.
Orders accordingly.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Munguti Learned Counsel for the Appellant.
Gichimu Learned Counsel for the Respondent/Cross Appellant
Michael – Court Assistant.