(Being an appeal from the Judgment and Decree of Hon. P. Wechuli (PM) delivered on 16th May 2024 at the Principal Magistrate’s court at Kithimani in Case No. 195 of 2021)
1. This is an appeal against both liability and quantum. In the trial court, the Respondents sued the Appellants sued the Respondents for damages in the sum of Kshs. 90, 700/=, general damages, pain and suffering under Fatal Accidents Act and the Law Reform Act, costs of the suit and interest on the foregoing.
2. The claim arose from a road traffic accident that occurred on 27th November 2020. The deceased was a pillion passenger on Motor Cycle Registration Number KMFE 654L along the Mwingi–Matuu Road at Kitui Junction when Motor Vehicle Registration Number KCT 476W, allegedly driven carelessly and negligently by the Appellants or their authorized agent, collided with the motor cycle, causing fatal injuries to the deceased.
3. In their defence, the Appellants herein denied liability and instead blamed the deceased and the rider of Motorcycle Registration Number KMFE 654L for negligence. The Third Party filed a statement of defence denying the allegations and attributing blamed the Appellants.
4. Upon hearing the parties, the trial court delivered judgment, apportioning liability at 50:50 between the Appellants and the Respondents. The trial court awarded the Respondents herein loss of dependency at Kshs 4, 800, 000/=, pain and suffering of Kshs 10, 000/=, loss of expectation of life of Kshs 100, 000/= and special damages of Kshs. 90, 700/=, subject to a 50per cent contribution, resulting in a net award of Kshs. 2, 500, 350/=.
5. Aggrieved by the Judgment, the Appellants filed this appeal contending that the Learned Magistrate erred in law and fact by upholding the Respondents version of events despite the absences of independent witness; apportioning liability at 50:50 contrary to the evidence and submissions; failing to find the enjoined third party (Joshua Musembi Muthengi) the motor cycle rider, liable for contributing to the accident applying the wrong principles andprecedents in determining the average wage, and multiplicand for computing quantum, resulting in an inordinately high, oppressive and punitive award; disregarding the Appellant’s submissions on quantum and conventional awards of similar nature.
6. The Appeal was canvassed by written submissions.
Appellant’s submissions
7. The Appellants set out a brief background of the appeal, by summarizing the trial court proceedings and expressing dissatisfaction with the judgment delivered on 16th May 2024 in Kithimani CMCC No. 195 of 2021. They argued that the trial magistrate erred both in law and fact in the findings on liability and in the assessment of quantum, particularly regarding the fatal injuries sustained by the deceased, Josephat Muthengi Musembi, who was a pillion passenger on motorcycle registration number KMFE 654L when it collided with motor vehicle registration number KCT 476W.
8. On liability, the Appellants submitted that the trial court failed to properly analyse the evidence and wrongly attributed a high degree of liability to them. Relying on the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, they urged this court to re-evaluate the evidence afresh. They argued that the trial court misapplied the principles of negligence as articulated in Caparo Industries PLC v Dickman and Chun Pui v Lee Chuen Tal [1988] RTR 298 emphasizing that for liability in negligence to attach, there must be proof of a duty of care, breach, causation and foreseeability.
9. They contended that the Respondents failed to discharge the burden of proof on a balance of probabilities. That PW1’s testimony was hearsay, based on what she had allegedly from PW2 and therefore inadmissible under section 63 of the Evidence Act. In support, they cited Kinyatti v Republic Criminal Appeal No. 60 of 1983 (CA), where hearsay evidence was held to be inadmissible. They also faulted the production of the police abstract by an officer who was not the investigating officer, arguing that this contravened section 33 of the Evidence Act and rendered the evidence of little probative value.
10. The Appellants submitted that the police abstract did not apportion blame and could not in itself prove negligence. They relied on Techard Steam & Power Ltd v Mutio Muli & Mutua Ngao [2019] eKLR and Peter Kanithi Kimunyu v Aden Guyo Haro [2014] eKLR, which held that police abstract only proves that an accident was reported, and not who was negligent. They further invoked Kiema Muthungu v Kenya Cargo Handling Services Ltd [1991]eKLR to emphasize that there can be no liability without fault and that negligence must be proved. Additionally, they relied on Mercy Ben & Another v Mt Kenya Distributors & Another [2022] eKLR, which affirmed the holding in Benter Atieno Obonyo v Anne Nganga & Another [2021] EKLR, where claims were dismissed for failure to prove negligence in the absence of credible evidence from an investigating officer.
11. On the burden of proof, they relied on Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 to reiterate that the legal burden lies on the party asserting a fact. They argued that the Respondents failed to call independent eyewitnesses and relied on Simba Commodities Ltd v Citibank N.A [2013] eKLR, which held that failure to call material witnesses gives rise to an adverse inference. They urged the court to re-apportion liability at 30:70 in their favour.
12. On contributory negligence, the Appellants acknowledged the principle in Khambi & Another v Mahithi & Another [1968] EA 70 that an appellate court should not interfere with apportionment unless there is an error in principle. They argued that such an error existed. They relied on Kiema Muthungu v Kenya Cargo Handling Services Ltd [1991] eKLR and Brian Muchiri Waihenya v Jubilee Hauliers & 2 Others [2017] eKLR to underscore the necessity of proving fault. They maintained that the trial court disregarded the evidence of DW2, who was the first responder and erred in dismissing the third party claim for lack of proof of ownership. They cited Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 to submit that in collision cases, one or both drivers must ordinarily be found to blame. They also relied on Joseph Kahiga v Joseph Muriuki [2018] eKLR to argue that contributory negligence must be proved by evidence and not assumption. They contended that the motorcycle rider was inexperienced, intoxicated, carrying excess passengers contrary to the Traffic Act and the Highway Code, and failed to give way while joining the main highway. They referred to Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87 eKLR and Rentco East Africa Ltd v Dominic Mutua Ngonzi [2021] eKLR, the latter having apportioned liability at 70:30 against a rider who exposed himself to danger by riding unlawfully.
13. On quantum, the Appellants challenged both special and general damages. Regarding special damages, they relied on David Bagine v Martin Bundi [1997] eKLR, which reiterated the principle in Mariam Maghema Ali v Jackson M Nyambu t/a Sisera Store Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Shabani v City Council of Nairobi (1982-88) citing the English authority Bonham Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177. These authorities stress that special damages must be specifically pleaded and strictly proved. The appellant argued that, save for Kshs. 100/= postage fees, the receipts were not proven.
14. On loss of dependency, they submitted that the trial court erred in adopting a multiplicand of Kshs. 30,000/= and a multiplier of 20 years. They relied on Silverstone Quarry Ltd & Another v Beatrice Mukulu Kang'uta & Another [2020] KECA 867 (KLR) for the position that where income is unproven the court should apply the applicable minimum wage. They proposed a multiplicand based on the statutory minimum wage and a reduced multiplier of 7 years (up to age 55) yielding Kshs. 782,630.08/=.
15. On pain and suffering, they argued that since the deceased died instantly, no award should have been made. They again cited Silverstone Quarry Ltd & Another v Beatrice Mukulu Kang'uta & Another [2020] KECA 867 (KLR), where Kshs. 50,000/= was awarded for five hours of suffering and relied on James Mukolo Elisha & Another v Thomas Martin Kibisu [2014] KECA 736 (KLR), where the Court of Appeal set aside an award for pain and suffering where death was instantaneous. They proposed Kshs. 100,000/= for loss of expectation of life.
16. In conclusion, the Appellants urged the court to re-apportion liability at 30:70 in their favour, reduce the quantum in line with their proposed computations and award them the costs of the appeal. On costs, they relied on Morgan Air Cargo Ltd v Everest Enterprises Ltd [2014] eKLR which affirmed the principle that costs follow the event.
Respondents’ submissions
17. The Respondent opposed the appeal in its entirety and urged this Court to uphold the judgment of the trial court delivered on 6th May 2024. On the duty of a first appellate court, the Respondent acknowledged that this court is obligated to re-evaluate the evidence and arrive at its own independent conclusion while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. Reliance was placed on Selle & Another v Associated Motor Boat Co. Ltd & Others, which sets out the duty of a first appellate court. It was further submitted that under section 78 of the Civil Procedure Act, a first appellate court has power to reappraise the entire evidence and reach its own findings, and that parties are entitled to a full, fair, and independent reconsideration of both fact and law at the appellate stage.
18. However, the Respondent raised a preliminary objection to the competence of the appeal. It was submitted that the Appellants failed to extract and attach the decree or order appealed against in the Record of Appeal or in a Supplementary Record of Appeal, contrary to section 66 of the Civil Procedure Act, which provides that an appeal lies from a decree or order. The Respondent argued that in the absence of a formally extracted decree or order, the appeal is fatally defective. In support of this position, they relied on the case of Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR, where the court held that failure to include a decree renders an appeal incompetent. The Respondent further relied on the decision of the Supreme Court in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR which held that an appeal lacking the requisite record is incompetent and defective, and that a court cannot exercise its adjudicatory powers where an appeal is incompetent. Additionally, the Respondents cited Chege v Suleiman [1988] eKLR where the Court of Appeal held that failure to attach a decree is not a mere procedural lapse but a jurisdictional issue, since an appeal lies only against a decree or order formally extracted.
19. On the merits of the appeal, the Respondent submitted that during trial, both parties called witnesses, and upon evaluating the evidence and submissions, the trial court found both parties equally liable and apportioned liability at 50:50 before assessing damages at Kshs. 2,500,350/= after contribution. It was contended that the trial court was properly guided by the decision in Hussein Omar Farah v Lento Agencies [2006] eKLR, where the Court of Appeal held that where neither side is able to establish fault against the other, liability may be apportioned equally. The Respondent maintained that the evidence adduced before the trial court supported the finding on liability. They argued that the Respondent proved negligence on a balance of probabilities, while the Appellants failed to adduce sufficient evidence against the third party whom they alleged was to blame. In any event, it was submitted that even if the Appellants’ version were to be believed, they could not wholly escape liability as drivers of a motor vehicle, which is a potentially dangerous machine. In this regard, reliance was placed on Masembe v Sugar Corporation & Another [2002] 2EA 434, where the court held that a driver must anticipate the presence of other road users and take reasonable steps to avoid collisions, even where those other users may be negligent.
20. The Respondent further submitted that the Appellants’ witnesses (DW1 and DW2) did not witness the accident first-hand but only heard a bang and later discovered that a motorcycle had been hit. By contrast, PW2 and PW3 personally witnessed the accident and narrated how it occurred. The Respondent contended that the trial court exercised its discretion judiciously in apportioning liability equally and that there is no basis for disturbing that finding.
21. Regarding the admissibility of the testimony of the police officer who was not the investigating officer, the Respondent submitted that this issue was neither raised as a ground of appeal nor objected to during trial. It was argued that the matter therefore does not arise for determination before this court. The Respondent maintained that the police abstract was properly admitted and explained that the investigating officer had been transferred and the file forwarded to the Office of the Director of Public Prosecutions.
22. On quantum, the Respondent submitted that the award of Kshs. 2,500,350/= was neither excessive nor based on wrong principles. It was contended that an appellate court will only interfere with an award where it is inordinately high or low, or where the trial court acted on a wrong principle or misapprehended the evidence. In this regard, reliance was placed on Paul Kipsang Koech & Another v Titus Osule Osore [2013] eKLR and Kiwanjani Hardware Ltd & Another v Nicholas Mule Mutinda [2008] eKLR.
23. On pain and suffering, the Respondent submitted that the deceased died while being rushed to Matuu Level 4 Hospital and therefore endured pain before death. It was argued that the award of Kshs. 10,000/= under this head was fair and reasonable in the circumstances and ought not to be interfered with. With regard to loss of dependency, the Respondent submitted that the deceased was 48 years old and worked as a mason earning approximately Kshs. 2,000/= per day, translating to Kshs. 60,000/= per month, and was the sole breadwinner for his wife and children. Although no documentary proof of income was produced, the Respondent submitted that the trial court correctly took judicial notice of the realities of the informal sector and relied on the authority of Jacob Ayiga Maruja & Another v Simeone Obayo CA Civil Appeal No. 167 of 2002 [2005] eKLR where the Court of Appeal held that lack of documentary evidence of earnings is not fatal, particularly where a deceased worked in the informal sector.
24. The Respondent submitted that the trial court was justified in accepting the Respondent’s testimony that the deceased earned Kshs. 60,000/= per month but prudently adopted an average income of Kshs. 30,000/= per month in view of the vagaries of life. The Respondent therefore argued that there is no legal basis for disturbing the award under the Fatal Accidents Act.
25. In conclusion, the Respondent maintained that the learned trial magistrate properly evaluated both the law and the evidence in reaching findings on liability and quantum. The Court was urged to dismiss the appeal with costs, uphold the judgment of the subordinate court, and order the Appellants to settle the decretal amount forthwith. In support of this position, reliance was placed on George Raini Atungu v Jared Ogwoka Ondari [2021] eKLR.
Analysis and Determination
26. This court has considered the grounds of appeal, the proceedings of the lower court and the rival submissions by both the Appellants and the Respondents.
27. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, bear in mind that the trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424). In Summary, this court ought not to interfere with the exercise of the discretion by an inferior court unless satisfied that its decision is clearly wrong because it misdirected itself, acted on matters it should not have or failed to consider matters it ought to have considered thereby arriving at a wrong conclusion.
28. I am guided by the Court of appeal decision in Ephantus Mwangi and another v Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988} 1KAR 278 where the court stated that;
“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
29. I therefore have a duty to delve into factual details and revisit the evidence as presented in the trial court, analyze the same, evaluate it and arrive at my own independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
30. Having considered and analyzed the pleadings, the evidence adduced before the trial court by the parties to this appeal and the submissions in this appeal, it is my view that the following issues arise for determination;
a. Whether the appeal is competent for want of a decree
b. Whether the trial court erred in its finding and apportionment of liability.
c. Whether the trial court erred in its assessment of quantum of damages.
Whether the appeal is competent for want of a decree or order.
31. In the course of perusing the submissions by counsels, I have noted that counsel for the Respondent has raised an issue that I consider germane to the just determination of this Appeal. The Respondent Counsel dedicated considerable time to addressing whether the appeal before me is competent. The gravamen of his arguments is that the Appellants did not include the Decree or order appealed from, rendering the appeal incompetent. He further posits that the failure to include a decree in the record of appeal makes the appeal fatally defective.
32. From the above, this court is minded to ask if the failure by a party to annex a copy of the decree a jurisdictional question? This court finds that in indeed it is a jurisdictional question that must be determined in limine, in consideration of the authorities cited by the Respondent’s counsel.
33. Before interrogating the Order 42 of the Civil Procedure Rules, I note that the Civil Procedure Act in section 2 defines a decree as:
"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—
(a)any adjudication from which an appeal lies as an appeal from an order; or
(b)any order of dismissal for default:
Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;
Explanation. — A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”
34. Order 42 Rule 2 allows an appellant to file a decree where they have not done so. It provides:
“Filing of decree or order [Order 42, rule 2]
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed”
35. In addition, Order 42 Rule 13 (4) of the Civil Procedure Rules that;
Before allowing an appeal to go for hearing the judge shall be satisfied that the following documents are on the court record and that such of them as are not in the possession of either party have been served on that party that is to say:
…f.the judgment, order or decree appealed from, and where appropriate the order (if any) giving leave to appeal.
Provided that-
(i)translation into English shall be provided of any document not in that language;
(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).
36. It is evident therefore from Order 42 Rule 13 (f), that an appellant is required to include in the record of appeal, the judgment, order or decree appealed from. The use of the word “or” is indicative of a disjunctive intent of the requirement. Thus, for purposes of an appeal, the filing of the judgment or order or decree is sufficient.
37. It must also be noted that the proviso in the definition of decree includes a judgment. The proviso goes on to provide that a judgment shall be appealable regardless of whether a decree has been drawn up, or is capable of being drawn up or not. This appeal is therefore competent because the certified judgment has been included in the record of appeal.
Whether the trial court erred in its finding and apportionment of liability.
38. The accident involved a motor vehicle and a motorcycle on which the deceased was a pillion passenger. The trial court apportioned liability at 50:50.
39. The evidence on record discloses two competing versions. On one hand, PW2 (the rider) testified that the motor vehicle veered off its lane and encroached onto the motorcycle’s path. On the other hand, DW1 (the driver) stated that she heard a bang on her left side and only veered off the lane after impact, attributing blame to the rider for failing to give way. DW2 supported the driver’s version but conceded he had no documentary or investigative backing for his assertions.
40. The investigating officer did not testify. PW1, who produced the police abstract, was not the investigating officer and could not comment on the point of impact or attribute fault. The matter had been referred to the ODPP and investigations were pending. Thus, no independent investigative findings were placed before the court.
41. The burden of proof lay with the plaintiffs under Section 107 of the Evidence Act. In civil cases, proof is on a balance of probabilities. Where two versions of events are presented and neither is supported by independent evidence, the court must weigh the probabilities.
42. The trial court found that there were two conflicting accounts and relied on Hussein Omar Farah v Lento Agencies [2006] eKLR, where the Court of Appeal held that where two drivers blame each other and neither establishes fault against the other, liability may properly be apportioned equally.
43. Upon re-evaluating the record, I note the following that first, the deceased was a pillion passenger. Second, neither party produced a sketch plan, inspection report or testimony from the investigating officer to establish the point of impact. The absence of such evidence left the court with oral testimony only. Third, DW2 admitted he had no independent evidence to back his version and was not listed in the police abstract. His testimony did not materially strengthen the defence case. Fourth, the driver admitted that after the impact she veered into the opposite lane. Even accepting her version, the occurrence of an impact on her left side while she was on her correct lane required clearer explanation supported by objective evidence, which was lacking.
44. In circumstances where evidence is evenly balanced and the probabilities are equal, the court cannot assign blame wholly to one party. As Lord Denning stated in Miller v Minister of Pensions (as cited by the trial court), if probabilities are equal, the burden is not discharged. In such a scenario, equal apportionment is a legally permissible outcome.
45. This court finds that the trial magistrate properly appreciated the evidential impasse and applied the correct principle in apportioning liability at 50:50. There is no demonstration that the trial court acted on wrong principles, misapprehended the evidence, or reached a plainly erroneous conclusion. Interference with apportionment is only warranted where it is shown to be manifestly unjust or based on no evidence.
46. Accordingly, the finding on liability is upheld.
Whether the trial court erred in its assessment of quantum of damages
47. An appellate court will only interfere with an award of damages where it is shown that the trial court acted on wrong principles, misapprehended the evidence, or made an award so inordinately high or low as to represent an entirely erroneous estimate.
48. Regarding pain and suffering, the post-mortem indicated that the deceased died at the scene. The conventional award where death is instantaneous is modest, though courts increasingly consider inflationary trends. The trial court awarded Kshs 10,000. While some recent decisions have awarded slightly higher sums (between Kshs 20,000/=–100,000/= depending on circumstances) as was held in the case of Hyder Nthenya Musili & Another versus China Wu Yi Limited & Another [2017] eKLR, an award of Kshs 10,000 cannot be said to be inordinately low given that death occurred at the scene. No misdirection is demonstrated. The award is upheld.
49. Regarding Loss of expectation of life, this is not disputed by the Appellant and therefore the award of Kshs 100, 000/= is upheld.
50. Regarding loss of dependency, this is the most contested component. The deceased was said to be a mason earning Kshs 60,000 per month. No documentary proof was produced. The trial court correctly relied on Jacob Ayiga Maruja & Another v Simeon Obayo Civil Appeal No. 167 of 2002 [2005] eKLR, where the Court of Appeal rejected the rigid requirement of documentary proof of income. The magistrate, however, reduced the proposed income from Kshs 60,000/= to Kshs 30,000/= per month to account for uncertainties and vagaries of life. That was an exercise of discretion grounded in reason and cannot be termed arbitrary.
51. On multiplier, the deceased was aged 48 years. A multiplier of 20 years was adopted. Considering the retirement age and contingencies of life, a multiplier between 12–17 years is more commonly applied for persons in their late forties. A multiplier of 20 years may be viewed as on the higher side. However, multiplier is not a mathematical science but a matter of judicial discretion. The trial court noted absence of illness and applied a working-life projection. While this court might have considered a slightly lower multiplier, the chosen figure does not rise to the level of an error of principle. The dependency ratio of 2/3 for a married man with children is standard and justified.
52. The computation of Kshs 4,800,000/= was mathematically correct based on the adopted parameters.
53. Regarding special damages, special damages of Kshs 90,700/= were specifically pleaded and strictly proved. The award was proper.
54. Based on the above, the appeal on both liability and quantum fails, and the judgment of the trial court is upheld.
Orders accordingly
Delivered, Dated and Signed this 6th day of March 2026
1. This is an appeal against both liability and quantum. In the trial court, the Respondents sued the Appellants sued the Respondents for damages in the sum of Kshs. 90, 700/=, general damages, pain and suffering under Fatal Accidents Act and the Law Reform Act, costs of the suit and interest on the foregoing.
2. The claim arose from a road traffic accident that occurred on 27th November 2020. The deceased was a pillion passenger on Motor Cycle Registration Number KMFE 654L along the Mwingi–Matuu Road at Kitui Junction when Motor Vehicle Registration Number KCT 476W, allegedly driven carelessly and negligently by the Appellants or their authorized agent, collided with the motor cycle, causing fatal injuries to the deceased.
3. In their defence, the Appellants herein denied liability and instead blamed the deceased and the rider of Motorcycle Registration Number KMFE 654L for negligence. The Third Party filed a statement of defence denying the allegations and attributing blamed the Appellants.
4. Upon hearing the parties, the trial court delivered judgment, apportioning liability at 50:50 between the Appellants and the Respondents. The trial court awarded the Respondents herein loss of dependency at Kshs 4, 800, 000/=, pain and suffering of Kshs 10, 000/=, loss of expectation of life of Kshs 100, 000/= and special damages of Kshs. 90, 700/=, subject to a 50per cent contribution, resulting in a net award of Kshs. 2, 500, 350/=.
5. Aggrieved by the Judgment, the Appellants filed this appeal contending that the Learned Magistrate erred in law and fact by upholding the Respondents version of events despite the absences of independent witness; apportioning liability at 50:50 contrary to the evidence and submissions; failing to find the enjoined third party (Joshua Musembi Muthengi) the motor cycle rider, liable for contributing to the accident applying the wrong principles andprecedents in determining the average wage, and multiplicand for computing quantum, resulting in an inordinately high, oppressive and punitive award; disregarding the Appellant’s submissions on quantum and conventional awards of similar nature.
6. The Appeal was canvassed by written submissions.
Appellant’s submissions
7. The Appellants set out a brief background of the appeal, by summarizing the trial court proceedings and expressing dissatisfaction with the judgment delivered on 16th May 2024 in Kithimani CMCC No. 195 of 2021. They argued that the trial magistrate erred both in law and fact in the findings on liability and in the assessment of quantum, particularly regarding the fatal injuries sustained by the deceased, Josephat Muthengi Musembi, who was a pillion passenger on motorcycle registration number KMFE 654L when it collided with motor vehicle registration number KCT 476W.
8. On liability, the Appellants submitted that the trial court failed to properly analyse the evidence and wrongly attributed a high degree of liability to them. Relying on the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, they urged this court to re-evaluate the evidence afresh. They argued that the trial court misapplied the principles of negligence as articulated in Caparo Industries PLC v Dickman and Chun Pui v Lee Chuen Tal [1988] RTR 298 emphasizing that for liability in negligence to attach, there must be proof of a duty of care, breach, causation and foreseeability.
9. They contended that the Respondents failed to discharge the burden of proof on a balance of probabilities. That PW1’s testimony was hearsay, based on what she had allegedly from PW2 and therefore inadmissible under section 63 of the Evidence Act. In support, they cited Kinyatti v Republic Criminal Appeal No. 60 of 1983 (CA), where hearsay evidence was held to be inadmissible. They also faulted the production of the police abstract by an officer who was not the investigating officer, arguing that this contravened section 33 of the Evidence Act and rendered the evidence of little probative value.
10. The Appellants submitted that the police abstract did not apportion blame and could not in itself prove negligence. They relied on Techard Steam & Power Ltd v Mutio Muli & Mutua Ngao [2019] eKLR and Peter Kanithi Kimunyu v Aden Guyo Haro [2014] eKLR, which held that police abstract only proves that an accident was reported, and not who was negligent. They further invoked Kiema Muthungu v Kenya Cargo Handling Services Ltd [1991]eKLR to emphasize that there can be no liability without fault and that negligence must be proved. Additionally, they relied on Mercy Ben & Another v Mt Kenya Distributors & Another [2022] eKLR, which affirmed the holding in Benter Atieno Obonyo v Anne Nganga & Another [2021] EKLR, where claims were dismissed for failure to prove negligence in the absence of credible evidence from an investigating officer.
11. On the burden of proof, they relied on Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 to reiterate that the legal burden lies on the party asserting a fact. They argued that the Respondents failed to call independent eyewitnesses and relied on Simba Commodities Ltd v Citibank N.A [2013] eKLR, which held that failure to call material witnesses gives rise to an adverse inference. They urged the court to re-apportion liability at 30:70 in their favour.
12. On contributory negligence, the Appellants acknowledged the principle in Khambi & Another v Mahithi & Another [1968] EA 70 that an appellate court should not interfere with apportionment unless there is an error in principle. They argued that such an error existed. They relied on Kiema Muthungu v Kenya Cargo Handling Services Ltd [1991] eKLR and Brian Muchiri Waihenya v Jubilee Hauliers & 2 Others [2017] eKLR to underscore the necessity of proving fault. They maintained that the trial court disregarded the evidence of DW2, who was the first responder and erred in dismissing the third party claim for lack of proof of ownership. They cited Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 to submit that in collision cases, one or both drivers must ordinarily be found to blame. They also relied on Joseph Kahiga v Joseph Muriuki [2018] eKLR to argue that contributory negligence must be proved by evidence and not assumption. They contended that the motorcycle rider was inexperienced, intoxicated, carrying excess passengers contrary to the Traffic Act and the Highway Code, and failed to give way while joining the main highway. They referred to Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87 eKLR and Rentco East Africa Ltd v Dominic Mutua Ngonzi [2021] eKLR, the latter having apportioned liability at 70:30 against a rider who exposed himself to danger by riding unlawfully.
13. On quantum, the Appellants challenged both special and general damages. Regarding special damages, they relied on David Bagine v Martin Bundi [1997] eKLR, which reiterated the principle in Mariam Maghema Ali v Jackson M Nyambu t/a Sisera Store Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Shabani v City Council of Nairobi (1982-88) citing the English authority Bonham Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177. These authorities stress that special damages must be specifically pleaded and strictly proved. The appellant argued that, save for Kshs. 100/= postage fees, the receipts were not proven.
14. On loss of dependency, they submitted that the trial court erred in adopting a multiplicand of Kshs. 30,000/= and a multiplier of 20 years. They relied on Silverstone Quarry Ltd & Another v Beatrice Mukulu Kang'uta & Another [2020] KECA 867 (KLR) for the position that where income is unproven the court should apply the applicable minimum wage. They proposed a multiplicand based on the statutory minimum wage and a reduced multiplier of 7 years (up to age 55) yielding Kshs. 782,630.08/=.
15. On pain and suffering, they argued that since the deceased died instantly, no award should have been made. They again cited Silverstone Quarry Ltd & Another v Beatrice Mukulu Kang'uta & Another [2020] KECA 867 (KLR), where Kshs. 50,000/= was awarded for five hours of suffering and relied on James Mukolo Elisha & Another v Thomas Martin Kibisu [2014] KECA 736 (KLR), where the Court of Appeal set aside an award for pain and suffering where death was instantaneous. They proposed Kshs. 100,000/= for loss of expectation of life.
16. In conclusion, the Appellants urged the court to re-apportion liability at 30:70 in their favour, reduce the quantum in line with their proposed computations and award them the costs of the appeal. On costs, they relied on Morgan Air Cargo Ltd v Everest Enterprises Ltd [2014] eKLR which affirmed the principle that costs follow the event.
Respondents’ submissions
17. The Respondent opposed the appeal in its entirety and urged this Court to uphold the judgment of the trial court delivered on 6th May 2024. On the duty of a first appellate court, the Respondent acknowledged that this court is obligated to re-evaluate the evidence and arrive at its own independent conclusion while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. Reliance was placed on Selle & Another v Associated Motor Boat Co. Ltd & Others, which sets out the duty of a first appellate court. It was further submitted that under section 78 of the Civil Procedure Act, a first appellate court has power to reappraise the entire evidence and reach its own findings, and that parties are entitled to a full, fair, and independent reconsideration of both fact and law at the appellate stage.
18. However, the Respondent raised a preliminary objection to the competence of the appeal. It was submitted that the Appellants failed to extract and attach the decree or order appealed against in the Record of Appeal or in a Supplementary Record of Appeal, contrary to section 66 of the Civil Procedure Act, which provides that an appeal lies from a decree or order. The Respondent argued that in the absence of a formally extracted decree or order, the appeal is fatally defective. In support of this position, they relied on the case of Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR, where the court held that failure to include a decree renders an appeal incompetent. The Respondent further relied on the decision of the Supreme Court in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR which held that an appeal lacking the requisite record is incompetent and defective, and that a court cannot exercise its adjudicatory powers where an appeal is incompetent. Additionally, the Respondents cited Chege v Suleiman [1988] eKLR where the Court of Appeal held that failure to attach a decree is not a mere procedural lapse but a jurisdictional issue, since an appeal lies only against a decree or order formally extracted.
19. On the merits of the appeal, the Respondent submitted that during trial, both parties called witnesses, and upon evaluating the evidence and submissions, the trial court found both parties equally liable and apportioned liability at 50:50 before assessing damages at Kshs. 2,500,350/= after contribution. It was contended that the trial court was properly guided by the decision in Hussein Omar Farah v Lento Agencies [2006] eKLR, where the Court of Appeal held that where neither side is able to establish fault against the other, liability may be apportioned equally. The Respondent maintained that the evidence adduced before the trial court supported the finding on liability. They argued that the Respondent proved negligence on a balance of probabilities, while the Appellants failed to adduce sufficient evidence against the third party whom they alleged was to blame. In any event, it was submitted that even if the Appellants’ version were to be believed, they could not wholly escape liability as drivers of a motor vehicle, which is a potentially dangerous machine. In this regard, reliance was placed on Masembe v Sugar Corporation & Another [2002] 2EA 434, where the court held that a driver must anticipate the presence of other road users and take reasonable steps to avoid collisions, even where those other users may be negligent.
20. The Respondent further submitted that the Appellants’ witnesses (DW1 and DW2) did not witness the accident first-hand but only heard a bang and later discovered that a motorcycle had been hit. By contrast, PW2 and PW3 personally witnessed the accident and narrated how it occurred. The Respondent contended that the trial court exercised its discretion judiciously in apportioning liability equally and that there is no basis for disturbing that finding.
21. Regarding the admissibility of the testimony of the police officer who was not the investigating officer, the Respondent submitted that this issue was neither raised as a ground of appeal nor objected to during trial. It was argued that the matter therefore does not arise for determination before this court. The Respondent maintained that the police abstract was properly admitted and explained that the investigating officer had been transferred and the file forwarded to the Office of the Director of Public Prosecutions.
22. On quantum, the Respondent submitted that the award of Kshs. 2,500,350/= was neither excessive nor based on wrong principles. It was contended that an appellate court will only interfere with an award where it is inordinately high or low, or where the trial court acted on a wrong principle or misapprehended the evidence. In this regard, reliance was placed on Paul Kipsang Koech & Another v Titus Osule Osore [2013] eKLR and Kiwanjani Hardware Ltd & Another v Nicholas Mule Mutinda [2008] eKLR.
23. On pain and suffering, the Respondent submitted that the deceased died while being rushed to Matuu Level 4 Hospital and therefore endured pain before death. It was argued that the award of Kshs. 10,000/= under this head was fair and reasonable in the circumstances and ought not to be interfered with. With regard to loss of dependency, the Respondent submitted that the deceased was 48 years old and worked as a mason earning approximately Kshs. 2,000/= per day, translating to Kshs. 60,000/= per month, and was the sole breadwinner for his wife and children. Although no documentary proof of income was produced, the Respondent submitted that the trial court correctly took judicial notice of the realities of the informal sector and relied on the authority of Jacob Ayiga Maruja & Another v Simeone Obayo CA Civil Appeal No. 167 of 2002 [2005] eKLR where the Court of Appeal held that lack of documentary evidence of earnings is not fatal, particularly where a deceased worked in the informal sector.
24. The Respondent submitted that the trial court was justified in accepting the Respondent’s testimony that the deceased earned Kshs. 60,000/= per month but prudently adopted an average income of Kshs. 30,000/= per month in view of the vagaries of life. The Respondent therefore argued that there is no legal basis for disturbing the award under the Fatal Accidents Act.
25. In conclusion, the Respondent maintained that the learned trial magistrate properly evaluated both the law and the evidence in reaching findings on liability and quantum. The Court was urged to dismiss the appeal with costs, uphold the judgment of the subordinate court, and order the Appellants to settle the decretal amount forthwith. In support of this position, reliance was placed on George Raini Atungu v Jared Ogwoka Ondari [2021] eKLR.
Analysis and Determination
26. This court has considered the grounds of appeal, the proceedings of the lower court and the rival submissions by both the Appellants and the Respondents.
27. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, bear in mind that the trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424). In Summary, this court ought not to interfere with the exercise of the discretion by an inferior court unless satisfied that its decision is clearly wrong because it misdirected itself, acted on matters it should not have or failed to consider matters it ought to have considered thereby arriving at a wrong conclusion.
28. I am guided by the Court of appeal decision in Ephantus Mwangi and another v Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988} 1KAR 278 where the court stated that;
“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
29. I therefore have a duty to delve into factual details and revisit the evidence as presented in the trial court, analyze the same, evaluate it and arrive at my own independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
30. Having considered and analyzed the pleadings, the evidence adduced before the trial court by the parties to this appeal and the submissions in this appeal, it is my view that the following issues arise for determination;
a. Whether the appeal is competent for want of a decree
b. Whether the trial court erred in its finding and apportionment of liability.
c. Whether the trial court erred in its assessment of quantum of damages.
Whether the appeal is competent for want of a decree or order.
31. In the course of perusing the submissions by counsels, I have noted that counsel for the Respondent has raised an issue that I consider germane to the just determination of this Appeal. The Respondent Counsel dedicated considerable time to addressing whether the appeal before me is competent. The gravamen of his arguments is that the Appellants did not include the Decree or order appealed from, rendering the appeal incompetent. He further posits that the failure to include a decree in the record of appeal makes the appeal fatally defective.
32. From the above, this court is minded to ask if the failure by a party to annex a copy of the decree a jurisdictional question? This court finds that in indeed it is a jurisdictional question that must be determined in limine, in consideration of the authorities cited by the Respondent’s counsel.
33. Before interrogating the Order 42 of the Civil Procedure Rules, I note that the Civil Procedure Act in section 2 defines a decree as:
"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—
(a)any adjudication from which an appeal lies as an appeal from an order; or
(b)any order of dismissal for default:
Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;
Explanation. — A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”
34. Order 42 Rule 2 allows an appellant to file a decree where they have not done so. It provides:
“Filing of decree or order [Order 42, rule 2]
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed”
35. In addition, Order 42 Rule 13 (4) of the Civil Procedure Rules that;
Before allowing an appeal to go for hearing the judge shall be satisfied that the following documents are on the court record and that such of them as are not in the possession of either party have been served on that party that is to say:
…f.the judgment, order or decree appealed from, and where appropriate the order (if any) giving leave to appeal.
Provided that-
(i)translation into English shall be provided of any document not in that language;
(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).
36. It is evident therefore from Order 42 Rule 13 (f), that an appellant is required to include in the record of appeal, the judgment, order or decree appealed from. The use of the word “or” is indicative of a disjunctive intent of the requirement. Thus, for purposes of an appeal, the filing of the judgment or order or decree is sufficient.
37. It must also be noted that the proviso in the definition of decree includes a judgment. The proviso goes on to provide that a judgment shall be appealable regardless of whether a decree has been drawn up, or is capable of being drawn up or not. This appeal is therefore competent because the certified judgment has been included in the record of appeal.
Whether the trial court erred in its finding and apportionment of liability.
38. The accident involved a motor vehicle and a motorcycle on which the deceased was a pillion passenger. The trial court apportioned liability at 50:50.
39. The evidence on record discloses two competing versions. On one hand, PW2 (the rider) testified that the motor vehicle veered off its lane and encroached onto the motorcycle’s path. On the other hand, DW1 (the driver) stated that she heard a bang on her left side and only veered off the lane after impact, attributing blame to the rider for failing to give way. DW2 supported the driver’s version but conceded he had no documentary or investigative backing for his assertions.
40. The investigating officer did not testify. PW1, who produced the police abstract, was not the investigating officer and could not comment on the point of impact or attribute fault. The matter had been referred to the ODPP and investigations were pending. Thus, no independent investigative findings were placed before the court.
41. The burden of proof lay with the plaintiffs under Section 107 of the Evidence Act. In civil cases, proof is on a balance of probabilities. Where two versions of events are presented and neither is supported by independent evidence, the court must weigh the probabilities.
42. The trial court found that there were two conflicting accounts and relied on Hussein Omar Farah v Lento Agencies [2006] eKLR, where the Court of Appeal held that where two drivers blame each other and neither establishes fault against the other, liability may properly be apportioned equally.
43. Upon re-evaluating the record, I note the following that first, the deceased was a pillion passenger. Second, neither party produced a sketch plan, inspection report or testimony from the investigating officer to establish the point of impact. The absence of such evidence left the court with oral testimony only. Third, DW2 admitted he had no independent evidence to back his version and was not listed in the police abstract. His testimony did not materially strengthen the defence case. Fourth, the driver admitted that after the impact she veered into the opposite lane. Even accepting her version, the occurrence of an impact on her left side while she was on her correct lane required clearer explanation supported by objective evidence, which was lacking.
44. In circumstances where evidence is evenly balanced and the probabilities are equal, the court cannot assign blame wholly to one party. As Lord Denning stated in Miller v Minister of Pensions (as cited by the trial court), if probabilities are equal, the burden is not discharged. In such a scenario, equal apportionment is a legally permissible outcome.
45. This court finds that the trial magistrate properly appreciated the evidential impasse and applied the correct principle in apportioning liability at 50:50. There is no demonstration that the trial court acted on wrong principles, misapprehended the evidence, or reached a plainly erroneous conclusion. Interference with apportionment is only warranted where it is shown to be manifestly unjust or based on no evidence.
46. Accordingly, the finding on liability is upheld.
Whether the trial court erred in its assessment of quantum of damages
47. An appellate court will only interfere with an award of damages where it is shown that the trial court acted on wrong principles, misapprehended the evidence, or made an award so inordinately high or low as to represent an entirely erroneous estimate.
48. Regarding pain and suffering, the post-mortem indicated that the deceased died at the scene. The conventional award where death is instantaneous is modest, though courts increasingly consider inflationary trends. The trial court awarded Kshs 10,000. While some recent decisions have awarded slightly higher sums (between Kshs 20,000/=–100,000/= depending on circumstances) as was held in the case of Hyder Nthenya Musili & Another versus China Wu Yi Limited & Another [2017] eKLR, an award of Kshs 10,000 cannot be said to be inordinately low given that death occurred at the scene. No misdirection is demonstrated. The award is upheld.
49. Regarding Loss of expectation of life, this is not disputed by the Appellant and therefore the award of Kshs 100, 000/= is upheld.
50. Regarding loss of dependency, this is the most contested component. The deceased was said to be a mason earning Kshs 60,000 per month. No documentary proof was produced. The trial court correctly relied on Jacob Ayiga Maruja & Another v Simeon Obayo Civil Appeal No. 167 of 2002 [2005] eKLR, where the Court of Appeal rejected the rigid requirement of documentary proof of income. The magistrate, however, reduced the proposed income from Kshs 60,000/= to Kshs 30,000/= per month to account for uncertainties and vagaries of life. That was an exercise of discretion grounded in reason and cannot be termed arbitrary.
51. On multiplier, the deceased was aged 48 years. A multiplier of 20 years was adopted. Considering the retirement age and contingencies of life, a multiplier between 12–17 years is more commonly applied for persons in their late forties. A multiplier of 20 years may be viewed as on the higher side. However, multiplier is not a mathematical science but a matter of judicial discretion. The trial court noted absence of illness and applied a working-life projection. While this court might have considered a slightly lower multiplier, the chosen figure does not rise to the level of an error of principle. The dependency ratio of 2/3 for a married man with children is standard and justified.
52. The computation of Kshs 4,800,000/= was mathematically correct based on the adopted parameters.
53. Regarding special damages, special damages of Kshs 90,700/= were specifically pleaded and strictly proved. The award was proper.
54. Based on the above, the appeal on both liability and quantum fails, and the judgment of the trial court is upheld.
Orders accordingly
Delivered, Dated and Signed this 6th day of March 2026