https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12679

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL APPEAL NO. E037 OF 2024** **ADELITE ASHAMA (suing as the legal representative and administrator of the estate of the late** **JOHNSTONE TAIFA ANDALO) APPELLANT** **VERSUS** **WILSON OTIENO OMWOMA RESPONDENT** *(Being an appeal from the judgment and decree of Hon. Melanie Ochieng, Senior Principal Magistrate, delivered on 26th July 2024 in Hamisi Chief Magistrate's Court Civil Case No. E056 of 2023)* **CORAM:** **In the presence of Justice R. Nyakundi** **M/S Shibanda & Co. Advocates** **M/S Ngaywa & Kibet Partners LLP Advocates** **JUDGEMENT** # **INTRODUCTION** 1. This is a first appeal from the judgment of the Senior Principal Magistrate's Court at Hamisi in Civil Case No. E056 of 2023, by which the learned trial magistrate dismissed the Appellant's claim for damages arising out of a fatal road traffic accident, with costs to the Respondent. 2. The deceased, Johnstone Taifa Andalo, died on 2nd July 2023 at Vihiga County Referral Hospital, a day after being injured in a collision between motor vehicle registration number KDB 117J Toyota Hilux, in which he was travelling as a passenger, and motor vehicle registration number KBT 305K Coaster bus, along the Kilingili road within Vihiga County. The Respondent was sued as the registered owner of the Toyota Hilux and as the person vicariously liable for the acts and omissions of its driver. 3. The Appellant is the widow of the deceased and one of two administrators ad litem of his estate. # **THE CASE BEFORE THE TRIAL COURT** 1. By a plaint dated 30th August 2023, Adelite Ashama and Levic Enos Opati, suing as the legal representatives and administrators of the estate of the deceased, claimed general damages under the Fatal Accidents Act, Chapter 32, and the Law Reform Act, Chapter 26 of the Laws of Kenya, special damages, costs and interest. They pleaded that on 1st July 2023 the deceased was a lawful passenger aboard motor vehicle registration number KDB 117J along the Kilingili–Luanda road when the Respondent's driver, servant or agent so carelessly, negligently or recklessly drove, managed or controlled that vehicle that he caused it to collide with motor vehicle registration number KBT 305K, thereby occasioning the deceased fatal injuries. Eleven particulars of negligence were pleaded, and the plaintiffs additionally invoked the doctrine of res ipsa loquitur. 2. The plaint pleaded that the deceased was aged 45 years, was in good health, was a mason earning about Kshs. 1,000 per day, and was the main breadwinner of his dependants, who were listed as the widow and six children, four of them minors. Funeral expenses of about Kshs. 100,000 were pleaded, together with particulars of special damages totalling Kshs. 55,000. 3. By his statement of defence dated 4th October 2023 the Respondent denied the claim in its entirety. He denied ownership of motor vehicle registration number KDB 117J. He denied that the deceased was a passenger in it, denied that any accident occurred as alleged, and denied every particular of negligence. In the alternative he pleaded contributory negligence, giving seven particulars: that the deceased failed to fasten his safety belt; engaged the driver in animated conversation; failed to adhere to the Traffic Act and the Highway Code; distracted the driver's attention; urged the driver to drive at very high speed; wilfully boarded a vehicle not authorised to carry passengers; and contributed to the occurrence of the accident. He further pleaded the doctrine of volenti non fit injuria, and at paragraph 14 raised an objection to the jurisdiction of the trial court. # **THE EVIDENCE AT THE TRIAL** 1. The Appellant called two witnesses. The Respondent called none. 2. PW1, Adelite Ashama, adopted her witness statement dated 30th August 2023 as her evidence in chief. She testified that she went to hospital and found her husband in a critical condition and on oxygen, and that he later died. She produced her documents, which were admitted as Prosecution, properly, Plaintiff's Exhibits 1 to 7 and 9 to 11, comprising among other things the grant of letters of administration ad litem, the chief's letter, advocates' receipts for Kshs. 15,000 and Kshs. 50,000, the death certificate, the post-mortem report, a bundle of payment receipts, birth certificates and identity cards of the dependants. In cross-examination she said that the deceased was her husband of over fifteen years, that he died on 2nd July 2023, that he was a passenger in the motor vehicle, that he worked as a contractor and was self-employed, and that she has seven children who are still in school, the youngest aged four. There was no re-examination. 3. PW2, Police Constable Damaris Mutunga, attached to Vihiga Police Station on traffic duties, testified that she had the police abstract issued at that station in 2023 in respect of a road traffic accident which occurred on 1st July 2023 involving the deceased. She said the accident occurred at Kilingili along the Kilingili–Stendikisa road, and involved motor vehicles registration numbers KDB 117J and KBT 305K; that due to the impact the deceased was rushed to hospital and succumbed while receiving treatment; and that the driver was charged before the Hamisi Law Courts with causing death by dangerous driving. She stated that she was referring to the police file, and that the driver was liable. She produced the police abstract as Plaintiff's Exhibit 8. 4. In cross-examination PW2 said that she did not visit the scene on the day the accident occurred; that the abstract was issued on 5th July 2023; that the traffic case, being No. E066 of 2023, was still ongoing; and that she did not know the number of passengers who were in motor vehicle registration number KDB 117J. In re-examination she stated that the deceased was one of the passengers in motor vehicle registration number KDB 117J; that she confirmed that motor vehicle KDB 117J was the one that rammed into the other motor vehicle and caused the accident; that its driver was charged with causing death by dangerous driving; and that the traffic case had not been concluded. 5. The post-mortem report produced in evidence records the apparent age of the deceased as 45 years and gives the cause of death as severe head injury. The death certificate records that he died on 2nd July 2023 at Vihiga County Referral Hospital. 6. Upon the close of the Appellant's case, counsel for the Respondent closed the defence case without calling any witness. The parties filed written submissions and judgment was reserved. # **THE JUDGMENT APPEALED AGAINST** 1. The learned trial magistrate identified the twin issues as liability and quantum. On liability she held that the burden lay on the plaintiffs under Sections 107 and 112 of the Evidence Act; that although it may well be true that the deceased was a passenger in the subject motor vehicle, the aspect of who bore the blame had to be proved; that for that question to be sufficiently answered it was incumbent upon the plaintiffs to avail an eyewitness to explain how the accident occurred; that PW2 was not the investigating officer, did not go to the scene, availed no sketch maps and did not produce the motor vehicle inspection reports; that the police abstract alone established only that the accident occurred; that PW1 was not an eyewitness; and that the existence of a pending traffic case was not enough to prove liability since the court was not privy to the facts leading to the driver's arrest and charge. 2. On res ipsa loquitur she adopted the reasoning in Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR to the effect that the doctrine does not determine liability and does not shift the burden, and held that the failure of the driver to testify did not shift the burden at all. 3. She accordingly found that the plaintiffs had failed to prove the negligent acts pleaded in paragraph 4 of the plaint, dismissed the suit and awarded costs to the Respondent. She made no assessment of damages. **THE APPEAL** 1. The memorandum of appeal dated 15th August 2024 raises ten grounds, lettered (a) to (j). Reduced to their essentials, they are that the learned magistrate erred: in failing to assess damages in the event that the suit had succeeded; in rejecting the evidence of PW2 on the ground that she was not the investigating officer, when she testified from the police file and stated that the subject motor vehicle lost control and rammed into the Coaster bus and was therefore to blame; in finding that the plaintiffs had not proved their case; in absolving the driver of the subject motor vehicle and failing to appreciate that the deceased was a passenger with no control over it; in holding that the suit failed because no eyewitness testified; in failing to consider that the Appellant's evidence on the occurrence of the accident was unchallenged; in concluding that the Appellant had not proved her claim when the Respondent had not proved that he was not to blame; and in failing properly to scrutinise and evaluate the pleadings, evidence and submissions. 2. The Appellant prays that the judgment of 26th July 2024 and all consequential orders be set aside and that this court proceed to deliver judgment on liability and quantum, together with costs. 3. The appeal was canvassed by way of written submissions. The Appellant's submissions are dated 17th April 2026 and the Respondent's are dated 2nd May 2026. I have read both, together with the record of appeal, the supplementary record of appeal and the further supplementary record of appeal, and I am grateful to both counsel for their industry. # **PRELIMINARY MATTERS ARISING FROM THE RECORD** 1. Three matters of form require disposal before I turn to the merits. 2. First, the suit in the court below was brought by two plaintiffs, Adelite Ashama and Levic Enos Opati, jointly as administrators ad litem, and the decree is drawn in favour of both. The memorandum of appeal, however, names Adelite Ashama alone as appellant, while the Respondent's submissions treat both as appellants. Nothing turns on the discrepancy. The two are joint administrators of a single estate, the appeal is brought for the benefit of that estate, the Respondent has suffered no prejudice and has taken no objection, and Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities. I shall treat the appeal as having been competently brought on behalf of the estate, and any award made will enure to the estate and be administered by both administrators. 3. Secondly, the memorandum of appeal is headed "In the Chief Magistrates Court at Vihiga" and states that the judgment appealed from was delivered on 29th 1July 2024. Both are plainly slips. The appeal was filed in and has at all times been prosecuted before this court as High Court Civil Appeal No. E037 of 2024, and the certified judgment and the decree both show that judgment was dated, signed and delivered in open court at Hamisi on 26th July 2024, the electronic signature stamp of 29th July 2024 being the date of authentication. Computing time from 26th July 2024, the memorandum of appeal filed on 15th August 2024 was filed within time. The appeal is competent. 4. Thirdly, the objection to jurisdiction pleaded at paragraph 14 of the statement of defence was never argued in the court below, was not the subject of any ruling, and has not been renewed on appeal. The value of the subject matter fell within the pecuniary jurisdiction of the trial court and the cause of action arose within its territorial jurisdiction. The point does not arise. # **THE DUTY OF THIS COURT ON A FIRST APPEAL** 1. The duty of a first appellate court is settled. It is to reconsider the evidence tendered before the trial court, to evaluate it afresh and to draw its own conclusions, while bearing constantly in mind that it neither saw nor heard the witnesses and must make due allowance in that respect. The classic statement is that of the Court of Appeal for Eastern Africa in Selle and Another v Associated Motor Boat Company Limited [1968] EA 123, and in Peters v Sunday Post Limited [1958] EA 424. 2. In Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982–88) 1 KAR 278 the Court of Appeal explained that a first appellate court will hesitate before reversing a trial court on findings of fact, and will do so only where it appears that the trial court failed to take account of particular circumstances or probabilities, or where the impression based on the demeanour of a witness is inconsistent with the evidence generally. In Abok James Odera t/a A. J. Odera and Associates v John Patrick Machira t/a Machira and Company Advocates [2013] eKLR the Court of Appeal restated the obligation of the first appellate court to subject the whole of the evidence to a fresh and exhaustive scrutiny. 3. That caution as to demeanour has limited application to this appeal. The determination under challenge did not turn on the credibility or demeanour of any witness. The learned magistrate did not disbelieve PW1 or PW2; she held that their evidence, accepted at face value, was insufficient in law to establish negligence. That is a conclusion of law drawn from undisputed primary facts, and this court is in as good a position as the trial court to reach its own view upon it. 4. I would add this. The power conferred on this court by Section 78 of the Civil Procedure Act includes the power to determine a case finally and, where necessary, to take additional evidence or to remit issues for trial. Where, as here, the evidence is complete, the parties have fully submitted on quantum both below and on appeal, and the accident occurred over three years ago, it would compound rather than cure the injustice to remit this matter for a further hearing. If the appeal succeeds on liability, this court should determine the whole matter. # **ISSUES FOR DETERMINATION** 1. The issues which fall for determination are: 2. whether the Appellant proved, on a balance of probabilities, that the accident of 1st July 2023 was caused by the negligence of the Respondent's driver, servant or agent, and if so in what proportion; 3. whether the learned trial magistrate erred in failing to assess damages notwithstanding her dismissal of the suit; 4. if liability is established, what damages ought to be awarded; and 5. what orders ought to be made as to interest and costs. # **LIABILITY** # ***(i)The burden and standard of proof*** 1. There is no dispute as to the governing principles, and both counsel set them out fully. He who alleges must prove. Section 107(1) of the Evidence Act, Chapter 80 of the Laws of Kenya, provides that 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. Section 109 places the burden of proof as to any particular fact on the person who wishes the court to believe in its existence. Section 112 provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. 2. The standard is proof on a balance of probabilities. As Denning J. put it in *Miller v Minister of Pensions [1947] 2 All ER 372*, cited with approval in Palace Investment Limited v Geoffrey Kariuki Mwendwa and Another [2015] eKLR, the degree of probability required is not so high as in a criminal case; if the tribunal can say that it thinks it more probable than not, the burden is discharged, but if the probabilities are equal it is not. In *William Kabogo Gitau v George Thuo and 2 Others [2010] 1 KLR 526* Kimaru J. expressed the same idea in percentage terms. 3. It is equally settled, as the Court of Appeal held in *Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Another [2014] eKLR*, that the standard of proof in a civil case does not change merely because there has been no rebuttal by the other side. The absence of a defence case does not relieve a plaintiff of the obligation to prove his claim. The learned magistrate was right so to direct herself. 4. But it is one thing to say that the burden never shifts; it is quite another to say that the evidential position is unaffected by a defendant's silence. Those are distinct propositions, and it is in conflating them that, with respect, the judgment below fell into error. 5. In so far as our jurisdiction is concerned and as alluded to elsewhere in this judgment, the admissibility and probative value of evidence is now well settled as demonstrated by the following case law: * **James Muniu Mucheru v. National Bank of Kenya Limited*[2019] KECA 1058 (KLR):****Reaffirms that courts make factual determinations based on which party's version of the story is more believable.* * **Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others*[2015] eKLR:****Sets out the explicit threshold of facts required to prove a bona fide purchaser status in property disputes.* * **Kimani & another v. Mungai & another*[2023] eKLR:****Highlights that negligence cannot be assumed from the mere occurrence of an accident; specific particulars of fault or application of*res ipsa loquitur*must be proven.* 1. An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an "accident". But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident. 2. Accidental means' and 'Accidental death' are to be read as similar or whether in order for an accidental insurance claim to succeed, the means causing the injury or death also have to be accidental in nature. For the purposes of this case, it is not necessary to conclusively decide this question. In order to sustain a claim under the accident benefit cover, it must be established that the assured has sustained a bodily injury which resulted solely and directly from the accident. There must, in other words exist a proximate causal relationship between the accident and the bodily injury. Moreover, the accident must be caused by outward violent and visible means. 3. In this appeal the impugned judgement would be tested and interpreted within the following components: 4. The claimant must prove that the bodily injury either physical or fatal was caused as a result of negligence on the part of the Defendant/Respondent. 5. That the injury of fatal injuries complained of must have been caused by outward, violent and visible means 6. That the injury must primarily, directly and independently of all other causes resulted in the death of the claimant 7. That the death or injury proximate cause is at attributable to the negligence of the Respondent/Defendant ## ***(ii) The position of the deceased as a passenger*** 1. The starting point, and in my view the point which the judgment below did not give its proper weight, is that the deceased was a passenger. 2. That the deceased was a lawful passenger aboard motor vehicle registration number KDB 117J was pleaded, was testified to by PW1 in cross-examination, was confirmed by PW2 in re-examination, and appears from the police abstract. It was not shaken in cross-examination. Indeed, the Respondent's own pleading assumes it: the particulars of contributory negligence at paragraph 7 of the defence allege that the deceased failed to fasten his safety belt, engaged the driver in animated conversation, distracted the driver's attention and urged him to drive at very high speed. Those allegations are unintelligible except upon the footing that the deceased was in the vehicle, seated in a position to converse with its driver. A party is bound by his pleadings, and the Respondent cannot in the same breath deny that the deceased was a passenger and complain of what he did as one. 3. The legal consequence of that status is well established. A passenger has no control whatever over the manner in which a vehicle is driven and cannot be visited with the consequences of the driver's want of skill or care. In Boniface Waiti and Another v Michael Kairuki Kamau [2007] eKLR Nambuye J. (as she then was) observed that passengers have no control over the manner of driving of a vehicle in which they are conveyed and cannot be penalised for the poor workmanship of the control of the vehicle, and that the explanation on causation in such circumstances lies with the driver. The same reasoning underpins Tijan Kisilu v Bonfide Clearing and Forwarding Company Limited and 2 Others [2018] eKLR, where the court held that allowing oneself to be driven in a vehicle which is struck by another places no liability on the passenger merely by virtue of his presence in it. 4. It follows that no question of contributory negligence could arise in this case unless it were affirmatively proved. It was not. The Respondent led no evidence at all. His pleaded particulars of contributory negligence remained bare allegations from the day the defence was filed to the day judgment was delivered. So too his plea of volenti non fit injuria, a defence which requires proof that the deceased, with full knowledge of the nature and extent of the risk, freely and voluntarily agreed to incur it. Nothing of the kind was even attempted. A passenger who accepts a ride does not thereby consent to being driven negligently: ***Dann v Hamilton [1939] 1 KB 509***. 5. In ***Janet Kaphiphe Ouma and Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007***, the court, citing ***Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997***, held that where a defendant does no more than file a statement of defence and adduces no evidence in support of the assertions made in it, the plaintiff's evidence remains uncontroverted and the statements in the defence remain mere allegations. That is precisely the position here, and Sections 107 and 109 of the Evidence Act, on which the Respondent so heavily relied, bear as much upon him as upon the Appellant. ## ***(iii) The treatment of the evidence of PW2*** 1. The learned magistrate discounted the evidence of PW2 on four grounds: that she was not the investigating officer; that she did not visit the scene; that she availed no sketch maps; and that she did not produce the motor vehicle inspection reports. With respect, each of those grounds requires examination. 2. As to the first, the police abstract and the occurrence book are public documents within the meaning of Sections 79 and 80 of the Evidence Act. They may be produced by any officer serving at the station which holds them, whether or not he investigated the matter. That was the holding in John Kibicho Thirima v Emanuel Parsmei Mkoitiko [2017] eKLR, where the court observed that such documents are producible by any police officer serving at a police station, whether or not he was the investigating officer, because it is a matter of public knowledge that public officers are transferred from their stations from time to time while the public records remain. There was accordingly no legal impediment to PW2 producing the abstract, and none was taken at the trial. 3. As to the absence of a sketch plan, in ***Equator Distributors v Joel Muriu [2018] eKLR*** the Court of Appeal held that a police sketch map is prepared after the event, is not an eyewitness account, carries some probative value but is not binding on the trial court, and is but one item of evidence to be considered. Its absence is a matter going to weight; it is not fatal. 4. As to the motor vehicle inspection reports, no case of mechanical defect was ultimately pursued, and their absence is immaterial to the question whether the driver drove carelessly. 5. But there is a more fundamental difficulty with the way PW2's evidence was treated. The learned magistrate approached it as though the Appellant's case rested on the abstract alone. It did not. PW2 gave oral evidence, on oath, that she was referring to the police file and that from it the driver of KDB 117J was liable; and in re-examination she stated in terms that KDB 117J was the vehicle that rammed into the other motor vehicle and caused the accident. That is evidence of the mechanism of the collision. Whatever weight it might ultimately bear, it was more than proof that a report had been made at a police station. 6. I recognize the force of the objection that PW2 was speaking from a file she did not compile, and that her attribution of blame was in a sense an opinion formed by another. Had that objection been taken at the trial, it would have called for a ruling. It was not taken. The evidence went in without objection. More significantly, the single assertion on which the Appellant's case on mechanism depended — that KDB 117J rammed into KBT 305K — was never challenged in cross-examination. Cross-examination was directed to four matters only: that PW2 had not visited the scene; the date the abstract was issued; that the traffic case was ongoing; and that she did not know how many passengers were in the Hilux. Not one question was put suggesting that the Hilux did not ram the Coaster, or that some other vehicle or agency was responsible, or that the driver of the Hilux was blameless. 7. A party who allows evidence to be given without objection, and who then declines to challenge its central assertion in cross-examination, cannot afterwards be heard to say that the assertion was worthless. In Nandwa v Kenya Kazi Limited [1988] KLR 488 the Court of Appeal held that where in the course of a trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence of the defendant, the issue will be decided in the plaintiff's favour unless the defendant provides an answer adequate to displace that inference. No answer of any kind was provided here. 8. As to the pending traffic case, I agree entirely with the learned magistrate that it proves nothing. A charge is an accusation, not a finding. The driver is presumed innocent until the traffic court says otherwise, and this court is not privy to the evidence in that case. I place no reliance whatever upon it, and I have reached the conclusions which follow leaving it wholly out of account. ## ***(iv) The requirement of an eyewitness*** 1. The learned magistrate held that "for this question to be answered sufficiently, then it was incumbent for the Plaintiff to avail an eye witness to explain how the accident occurred". She founded that proposition on ***Z O S and C A O (suing as the legal representatives in the estate of S A O (deceased)) v Amollo Stephen [2019] eKLR***, cited in ***Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR***. 2. With respect, that authority does not bear the weight placed upon it. What the court there said was that it was incumbent upon the appellant either to call an eyewitness who saw the accident take place, or to call the police from Bondo Police Station who investigated the accident to shed light on the results of the investigations and as to who was to blame. The formulation is disjunctive. It identifies two alternative routes by which a plaintiff who did not himself witness the accident may prove how it happened. It does not lay down that an eyewitness is indispensable, nor could it. For Section 143 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. A rule that a fatal accident claim must fail unless an eyewitness is produced would put compensation beyond the reach of every dependant whose breadwinner was killed on a lonely road, and would reward the very drivers who leave no witness behind. That is not and has never been the law. 3. In this case the Appellant took the second of the two routes. She called a police officer, who produced the official abstract and spoke to the contents of the official file. The learned magistrate then held that this route was closed because PW2 was not the investigating officer. In doing so she required, in substance, that the plaintiff satisfy both alternatives — an eyewitness and the investigating officer personally — and having found neither, dismissed the claim. That was, in my respectful view, to set the bar higher than the law sets it, and it was an error of principle. ## ***(v) Res ipsa loquitur and the inference of negligence*** 1. The learned magistrate held, correctly, that the doctrine of res ipsa loquitur does not determine liability and does not relieve a plaintiff of the burden of proving the facts which give rise to it: ***Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR; Susan Kanini Mwangangi and Another v Patrick Mbithi Kavita [2019] Eklr.*** 1. But the doctrine is a rule of evidence, and where the facts which attract it are established it has real work to do. Its essence, as the Court of Appeal put it in Florence Mutheu Musembi, is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence. Its classic requirements are that the thing which caused the damage was under the management or control of the defendant or his servants, and that the occurrence is such as would not, in the ordinary course of things, happen if those having such control used proper care. 2. Both requirements are satisfied here. The vehicle in which the deceased was travelling was, upon the evidence, the Respondent's, driven by his driver or agent. And motor vehicles being driven with reasonable care upon a public highway do not, in the ordinary course of things, collide with other motor vehicles. Something went wrong. The Appellant, having proved that the deceased boarded the Respondent's vehicle alive and was carried out of it dying, had gone as far as the nature of the case permitted her to go. 3. At that point Section 112 of the Evidence Act came into play, and it did so against the Respondent, not for him. How the Respondent's vehicle came to collide with a Coaster bus is a fact especially within the knowledge of the Respondent and his driver. The Respondent knew the identity of his driver; he could have called him; he could have called the driver of the Coaster; he could have called any of the other passengers whose existence he asserted in cross-examination. He called nobody. He offered this court no explanation at all — neither that his driver was blameless, nor that the Coaster was to blame, nor that a third vehicle intervened, nor that the vehicle failed mechanically without fault, nor even that he was not the owner, notwithstanding his pleaded denial of ownership. 4. On that last point, the police abstract named the Respondent as the owner of KDB 117J. It was produced without objection. In ***Joel Muga Opija v East African Sea Foods Limited [2013] eKLR*** the Court of Appeal held that where an abstract recording ownership is produced in court without objection its contents cannot later be denied, and that although the best proof of ownership is a search from the Registrar of Motor Vehicles, an unchallenged abstract stands. In ***Wellington Nganga Muthiora v Akamba Public Road Services Limited*** ***and Another [2010] 2 KLR 39*** the court held that where the contents of an abstract as to ownership are not challenged, the abstract remains prima facie evidence, and where the defendant offers no evidence in his defence such prima facie evidence remains unrebutted and valid. The Respondent's denial of ownership was pleaded and then abandoned. I find that he was at all material times the owner of motor vehicle registration number KDB 117J and is vicariously liable for the acts and omissions of its driver. 5. The English courts have long accepted that the court is not disabled from finding negligence merely because no one survives to describe the collision. In ***Baker v Market Harborough Industrial Co-operative Society Limited [1953] 1 WLR 1472*** both drivers were killed in a head-on collision and there was no eyewitness, yet the Court of Appeal held that an inference of negligence could and should be drawn. The like approach was taken in ***France v Parkinson [1954] 1 WLR 581***. The principle is not that negligence is presumed, but that a court must apply common sense to the proved facts and may draw the inference which those facts reasonably yield. As Lord Reid observed in ***Stapley v Gypsum Mines Limited [1953] AC 663,*** cited in ***Michael Hubert Kloss and Another v David Seroney and 5 Others [2009] eKLR***, the determination of what caused an accident from the point of view of legal liability is not a scientific affair but must be decided by applying common sense to the facts of each particular case. ## ***(vi) Conclusion on liability*** 1. Drawing these threads together, the proved and unchallenged facts are these. The deceased was a lawful passenger in motor vehicle registration number KDB 117J. That vehicle was owned by the Respondent and driven by his driver or agent. On 1st July 2023 it collided with motor vehicle registration number KBT 305K. The evidence of PW2, unchallenged in cross-examination, was that KDB 117J rammed into KBT 305K. The deceased sustained severe head injury, was taken to Vihiga County Referral Hospital, and died there the following day. The Respondent, who alone was in a position to explain how his vehicle came to strike another, offered no explanation, called no witness, and abandoned every affirmative plea in his defence. 2. I have reminded myself, as the Respondent urges, that the standard of proof does not lower merely because the defence is silent, and that a plaintiff must prove her case even in a formal proof. But proof on a balance of probabilities does not require certainty, and it certainly does not require the impossible. Weighing the whole of the evidence, I am satisfied that the Appellant established, more probably than not, that the collision was occasioned by the negligent driving of the Respondent's driver. The learned magistrate's contrary conclusion proceeded from an error of principle, namely the requirement of an eyewitness as an indispensable condition, and from a failure to give effect to the position of the deceased as a passenger and to the evidential consequences of the Respondent's total silence. This court is therefore entitled and bound to interfere. 3. As to apportionment, the Appellant seeks a finding of 100 per cent. No evidence of contributory negligence was led, and none could properly be attributed to a passenger in any event. The driver of the Coaster bus is not a party to these proceedings, and on the evidence before the court it was the Respondent's vehicle that rammed into the Coaster. Where a plaintiff sues one of several possible tortfeasors and establishes his liability, that tortfeasor is liable in full, his remedy being a claim for contribution against any other party at fault. 4. Contributory negligence applies when an injured claimant/plaintiff fails to exercise reasonable care sharing fault for their own harm. This ground if proved by way of evidence reduces compensation based on that share of fault. The court in *Pawan Kumar & Anr vs M/s Har Harkishan Dass Mohan Lal & Ors* held as follows: *7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted herein below:* *“6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each* *wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore, where the injured is himself partly liable, the principle of “composite negligence” will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error* 1. Similarly, the Court in *the First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016* which has held as under*:* *“16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed. 17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently. 18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause- 6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection. 19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all. 20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies. 21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per threeJudge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840). 22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side*. 1. Similarly, the facts of this case fall within the guidelines in the case of *Baker vs Market Harbourough Industrial Cooperative Society Ltd (1953) WLR page 1472 at 1476* in which Lord Denning observed as follows: *“... On proof of the collision in the centre of the road, the natural inference would be that one or other or both were to blame. If there was on other evidence given in the case, because both drivers were killed, would the court, simply because both drivers were killed, would the court, simply because it could not say whether it was only one vehicle that was to blame or both of them, refuse to give the passenger compensation? The practice of the courts is to the contrary. Every day, proof of the collision is held to be sufficient to call on the two defendants 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 aliveand neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence, the result must be the same. In the absence of any evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame"* 1. These principles in the above case resonate well with the factual matrix of this appeal and in consonant with the guidelines in *Ephantus Murungi & Another vs Duncan Mwangi Wambugu (1982-88) JKAR 278 and Selle vs Associates Motor Boat Co. (1968) EA 123.* The conclusions I draw from the logic and analogy by Learned Trial Magistrate in so far as liability was concerned she was wrong and did exercise judicial discretion in dismissing the claim by technically emphasizing the referenced dicta in *Daniel Torotich Arap Moi(supra)*. This is a kind of dry bone in the interpretation of the law. It is trite law that all road users hold a mutual of care to behave reasonably and avoid collision. Failing to keep a proper lookout or driving on the wrong side of the road or colliding with another motor vehicle from the rear side of his motor vehicle constitutes prima facie case of negligence. In the provisions of the Kenya Traffic Act improper overtaking an intersection or failing to yield right of way serves as evidence lending to establish or negate civil liability. 2. It is within this threshold and measure of evidence by the Claimant/Plaintiff the case is won or lost within the parameters of the standard and burden of proof which would give rise ultimately to the award of damages as pleaded within the various applicable limbs. 3. In my assemnet in the totality of the evidence in this case I bear in mind that is the responsibility of the claimant to prove the issue arising in this case of negligence against the Defendant/Respondent on a balance of probabilities. There is no dispute on the evidence that the deceased Johnstone Taifa Andalo was a passenger in KDB 117J and the Defendant/Respondent himself or by his agent or driver was also a road user by virtue of driving motor vehicle KBT 350K. essentially they were both road users. It is settled law that therefore they owe a duty of acer to each other and in the case of the deceased it is the driver of the passenger motor vehicle who hold a duty of care for his own safety. He did not contribute to the accident. The defendant/respondent did not file a counter-claim against the owner of driver of motor vehicle KBT 305K. In absence of a counter-claim on liability by the Defendant/Respondent he shoulders 100% of the acts of tort negligence in the accident which occurred on 1st day of July 2023 in which Johnstone Taifa Andalo suffered fatal injuries and in such scenarios his estate has a locus standi to claim damages under the Law Reform Act and the Fatal Accidents Act. As a consequence of this finding the decision on liability by the learned trial magistrate be and is hereby set aside with a substitution order of liability finding of 100% against the respondent. # **THE FAILURE TO ASSESS DAMAGES** 1. Ground (a) complains that the learned magistrate failed to assess damages in the event that the suit had succeeded. That ground is well taken. 2. It has been said time and again that a trial court which dismisses a claim should nonetheless proceed to assess the damages it would have awarded had the claim succeeded. The reason is practical and important: a trial court is not a court of last resort, its decisions are appealable, and an appellate court which reverses on liability needs the benefit of the trial court's assessment, made with the advantage of having seen and heard the witnesses. In ***Lei Masaku v Kaplana Builders Limited [2014] eKLR*** the court observed that it has been held time and again by the Court of Appeal that a court of first instance should assess damages even if it finds that liability has not been established, and that a failure to do so is a serious indictment on the trial court. To like effect is ***Frida Agwanda and Ezekiel Onduru Okech v Titus Kagichu Mbugua [2015] eKLR***. 3. The omission is the more regrettable in this case because both parties had filed detailed submissions on quantum, complete with authorities and computations, which were before the learned magistrate and which she did not address. Had she assessed damages, this court would have had a figure to review under the familiar principles in ***Kemfro Africa Limited t/a Meru Express Services (1976) and Another v Lubia and Another (No. 2) [1985] eKLR***. As it is, this court must assess damages at large and for the first time. 4. I do so with the express caution that the exercise is undertaken on a paper record. Both parties invited this court to determine quantum, neither sought a remittal, and it is in the interest of both that this litigation, now approaching its fourth year, be brought to an end. 5. For the above reasons, I am therefore an unable to concur with the Learned Trial Magistrate that *res ipsa loquitor* meaing the things speaks for itself did not find its place within the ternary of the canon of judicial discretion to find favour that either the two vehicles were equally to blame or on the other hand the defendant/respondent vehicle was the proximate cause of the accident. It is an evidentially rule allowing a court to infer negligence from the very nurture of an accident shifting the evidential burden to the defendant to provide a plausible non-negligent explanation. The core elements of the doctrine in our jurisdiction revolves around the following: * ***Exclusive Control:****The instrumentality or object causing the damage must be under the clear management and control of the defendant or their agents* * ***Unusual Occurrence:****The accident must be of a type that does not ordinarily occur if proper care and caution are used.* * ***Absence of Direct Explanation:****Direct evidence of precise operational fault is missing, but the sheer circumstances point towards the defendant's failure of care* * ***Duty of Care:****All road users owe a mutual duty of care to avoid a collision, regardless of who has the right of way.* * ***Rule of the Road:****Approaching vehicles must keep to the left/near side; driving on the incorrect side is*prima facie*evidence of negligence.* * ***Overtaking and Turns:****Attempting to overtake or turn across oncoming traffic when unsafe places primary liability on the maneuvering driver.* 1. It should be remembered that the maxim does not remove the ultimate burden of proof from the Claimant/Plaintiff to establish a case on balance of probabilities, but it creates a strong prima facie inference that forces the Defendant/Respondent to offer an adequate explanation to escape liability. This accident is not disputed by the respondents. This accident was investigated by the National Police Service. These two vehicles on record with their respective identity of registration collided against each other along Kilingili-Luanda road. So is the Court being asked not to construe the collision was not a breach of duty of care. 2. This is what the Court stated in the case of *Lloyde v West Midlands Gas Board [1971] 2 All ER 1246:* *Lloyde v West Midlands Gas Board [1971] 2 All ER 1246: "I doubt whether it is right to describe res ipsa loquitur as a 'doctrine'. I think it is no more than an exotic, though convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or ommission constitutes a failure to take proper care for the plaintiff's safety. I have used the words 'evidence as it stands at the relevant time'. I think this can most conveniently be taken as being at the close of the plaintiff's case. On the assumption that a submission of no case is then made, would the evidence, as it then stands, enable the plaintiff to succeed because, although the precise cause of the accident cannot be established the proper inference on a balance of probability is that that cause, whatever it may have been, involved a failure by the defendant to take due care for the plaintiff's safety. If so, res ipsa loquitur. If not, the plaintiff fails. Of course, if the defendant does not make a submission of no case, the question still falls to be tested by the same criterion, but evidence for the defendant, given thereafter, may rebut the inference. The res, which previously spoke for itself, may be silenced, or its voice may, on the whole of the evidence, become too weak or muted."* **QUANTUM** 1. The specifics on this limb being complained of are as founded by the Learned Trial Magistrate in her judgment in which she was convinced that liability was not proved and in her decision making she stated as follows: *Having taken the foregoing into consideration, I agree with the Defendant's Counsel that it is now trite law that 'he who asserts must prove', this is supported by the provisions of sections 107 and112 of the Evidence Act (supra). The Plaintiff's Counsel urged the Court to consider the Police Abstract as proof that the deceased person died as result of this accident. It may well be true, that he was a passenger in 'the suit Motor Vehicle', however, the aspect of who bore the blame for the accident must be proved. Who was liable for the negligence that led to this accident? Was it the driver of 'the suit Motor Vehicle', or was it the driver of Motor Vehicle Registration No. KBT 305KCOASTER BUS?* *For this question to be answered sufficiently, then it was incumbent for the Plaintiff to avail an eyewitness to explain how the accident occurred. Bearing in mind the case of Z.O. & C.A.O (Suing as the Legal Representatives in the Estate of S A O (Deceased) v Amollo Stephen [2019] eKLR cited in Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020[eKLR (supra) the Police Abstract alone is simply not sufficient evidence to prove liability in the present case. I must reiterate that, PW2 was not the investigating officer. She did not go to the scene. She did not avail any sketch maps. She also did not produce the Motor Vehicle Inspection Reports. The Police Abstract only established that thus accident occurred. It is not in dispute, the PW1, who is the wife of the deceased person was not an eye witness. No one was availed in Court to explain how the accident occurred. The fact that the Defendant may have an ongoing traffic case arising from this incident is similarly not enough to prove liability on his part, since this Court is not privy to the facts that led to his arrest and charge of causing death by dangerous driving.* 1. This extract of the judgement has been reproduced here notwithstanding that this Court has dealt with comprehensively elsewhere in the body of this judgment with regard to the issue of liability. First and foremost, I intend to agree to some extent with the Learned Trial Magistrate that the pending criminal process on causing death by dangerous driving contrary to Section 46 of the Traffic Act might not be conclusively on blameworthiness of the offending motor vehicle of the Defendant Wilson Otieno. However, it cannot also be ruled out that it signals the existence of some facts with regard to the accident which occurred on 1st of July 2023 in which the deceased Johnstone Taifa Ndalo was a lawful passenger aboard motor vehicle KDB 117J Toyota Hilux. This subject matter vehicle while being driven along Kilingili-Luanda Road collided with motor vehicle KBT 305K Coaster Bus. Without laboring the point from the evidence on record it is clear to the appeal court that the accident occurred on the major road between Kilingili and Luanda and is all tarmac and motorable. The accident was as a result of a collision between the vehicle in which the deceased was a passenger and the other motor vehicle owned by the respondent/defendant to this case. The deceased could not have contributed to the accident being a passenger in motor vehicle KDB 117J Toyota Hilux. To the best of my appreciation of this evidence liability shall be shared equally between the owner of motor vehicle KDB 117J and owner of motor vehicle KBT 305K. 2. The claim is brought under two statutes which serve distinct purposes. The Law Reform Act preserves for the benefit of the estate the causes of action which survive the deceased, under which damages are recoverable for pain and suffering between injury and death and for loss of expectation of life. The Fatal Accidents Act, by Section 4(1), confers upon the specified dependants a claim for the pecuniary loss occasioned to them by the death. In Nyanza Sugar Company Limited v James Martin Matoke, Kisumu Civil Appeal No. 91 of 1997, the Court of Appeal held that a trial court should assess and make an award under both sets of law, each being intended for a distinct head, while taking the one into account in the other to avoid over-compensation. ## ***(i) Pain and suffering*** 1. The governing consideration under this head is the length of time for which the deceased suffered before death. The accident occurred on 1st July 2023 and the deceased died on 2nd July 2023 at Vihiga County Referral Hospital while undergoing treatment. PW1 found him alive, in a critical condition and on oxygen. He therefore survived for approximately a day. 2. The Appellant proposed Kshs. 100,000, relying on ***Ndungu Wambui Christine and 2 Others v Muusi Nzivo Maingi alias Muusi Uzivo and Another [2020] eKLR,*** where the High Court substituted an award of Kshs. 100,000 for a deceased who died a day after the accident. The Respondent proposed Kshs. 30,000. In ***Sukari Industries Limited v Clyde Machimbo Juma, Homa Bay HCCA No. 68 of 2015 [2016] eKLR***, Majanja J. observed that any person who suffers injury in an accident will suffer some form of pain, that the pain may be brief and fleeting but is nevertheless pain for which the estate is entitled to compensation, and that nominal damages are generally awarded where death occurs immediately. 3. This was not a case of instantaneous death. The deceased lived for about twenty-four hours with a severe head injury. The comparator relied upon by the Appellant is directly in point on the facts and is a decision of this court. I award Kshs. 100,000 under this head. ## ***(ii) Loss of expectation of life*** 1. The award under this head is conventional and modest. It is not compensation for the years of life lost but a conventional sum in recognition of the deprivation of the prospect of a predominantly happy life. The Appellant proposed Kshs. 200,000, relying on a line of High Court decisions; the Respondent proposed Kshs. 100,000, relying on ***Caleb Juma Nyabuto v Evance Otieno Magaka and Another [2021] eKLR*** and the observation there adopted that the sum is awarded at Kshs. 100,000 across the board. 2. The conventional figure of Kshs. 100,000 has held firm in this jurisdiction for many years and is applied irrespective of the age or station of the deceased, precisely because the award is conventional. I see no reason to depart from it, and the more so as the substantial compensation in a fatal claim of this kind falls to be made under the head of dependency. I award Kshs. 100,000. ## ***(iii) Loss of dependency*** 1. This is the substantial head, and it requires the determination of a multiplicand, a multiplier and a dependency ratio. 2. The multiplicand. The plaint pleaded, PW1 testified, and the Respondent did not rebut, that the deceased was a mason and self-employed contractor earning about Kshs. 1,000 per day. No payslip, contract or trade test certificate was produced. The Respondent submits that in the absence of documentary proof the court should apply the minimum wage prescribed for a general labourer under the Regulation of Wages (General) (Amendment) Order for 2022, which he puts at Kshs. 8,109.90. 3. I am unable to accept that submission in its entirety. In ***Jacob Ayiga Maruja and Another v Simeon Obayo [2005] eKLR the Court of Appeal*** deprecated the insistence upon documentary proof of income, and in ***Mary Wanjiru Mugwe v Peter Gatoto Ng'ang'a and Another [2019] eKLR*** the court held that it does not subscribe to the view that the only way of proving a person's profession is by production of certificates or that the only way of proving earnings is by production of documents, since such a stand would do great injustice to very many Kenyans who are illiterate, keep no records, and yet earn their livelihoods in various ways. The evidence of a mason's occupation and daily rate, given by his widow of fifteen years and never challenged as untrue, is evidence upon which a court may act. 4. Equally, I am unable simply to multiply Kshs. 1,000 by thirty days and arrive at Kshs. 30,000 per month, as the Appellant invites. That computation assumes that a casual mason is engaged on every day of every month, including Sundays, throughout the year. Nothing in ordinary experience supports that assumption, and the deceased's own trade is one notoriously subject to seasonal and weather-related interruption. Some discount for days not worked is essential if the multiplicand is to reflect reality rather than aspiration. 5. Doing the best I can on the material available, and treating the deceased as a skilled artisan earning appreciably more than the minimum wage of an unskilled general labourer but not working every day of the month, I adopt a multiplicand of Kshs. 20,000 per month. 6. The multiplier. The deceased was aged 45 years at his death, that age being pleaded and confirmed by the apparent age recorded in the post-mortem report. The Appellant proposed 20 years, on the footing that he would have worked to 65. The Respondent proposed 12 years. The selection of a multiplier is an exercise of judicial discretion which must account for the vicissitudes of life, the uncertainty of continued employment, the possibility of ill health, and the fact that the dependants receive a capital sum at once rather than income over time. 7. A self-employed Artisan is not bound by any retirement age and may work as long as his health permits, which supports a longer multiplier than would be appropriate for an employee. Against that, twenty uninterrupted further working years for a man of 45 in physically demanding work is an optimistic assumption. 8. For a 45 years victim under the Kenya Fatal Accidents Act, courts typically use multiplier of 12 to 16 years reflecting remaining working life, if he is a public servant or state officer the capping of the standard retirement age of 60 years. Fortunately, this is not the case for self employed citizens who can work beyond the age of 60 years. The average life expectancy at birth for a man in Kenya is approximately 64 years. From the data sourced from World Health Organization life expectancy at birth in Kenya has improved by 12.7 years from 54.1 to 55.5 years in the year 2000 to 66.8 years to 67.4 years in the year 2021. In *W.N. -V- Kassam Hauliers Ltd (2020) eKLR* the court held that: *“conventionally courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ration of 2/3 on the other hand, they have taken unmarried people to spend more on themselves more than their dependents more so parents hence have apportioned a dependency ration of 1/3 which has over time been enhanced to 1/2.* 1. The Kenyan Fatal Accidents Act on assessment of damages on loss of dependency follows the common law Multiplier/Multiplicand approach. 2. The dependency ratio. The deceased left a widow and six children, four of them minors and school-going. Both parties proposed a ratio of two thirds, which is the conventional ratio where a deceased leaves a spouse and children. I adopt it. What are the key calculation steps for damages under the Fatal Accidents Act. The multiplicand represents the annual net financial dependency being the deceased net income minus personal living expenses while the multiplier reflects the estimated duration of that dependency adjusted for contingencies and split into pretrial and future periods. The computation is accordingly: Kshs. 20,000 x 12 months x 15 years x 2/3 = Kshs. 2,400,000. 3. From that sum there falls to be deducted the award made under the Law Reform Act for the benefit of the estate, since the beneficiaries of the estate and the dependants are the same persons and the law does not permit them to be compensated twice over for the same loss: Hellen Waruguru Waweru (suing as the legal representative of *Peter Waweru Mwenja) v Kiarie Shoe Stores Limited [2015] eKLR.* Deducting Kshs. 200,000, the net award for loss of dependency is Kshs. 2,200,000. ## ***(iv) Funeral expenses*** 1. Paragraph 7 of the plaint pleaded funeral expenses of about Kshs. 100,000, and a bundle of payment receipts was produced in evidence. The Respondent, while conceding that funeral expenses were incurred, proposed Kshs. 60,000, relying on ***Jacob Ayiga Maruja and Another v Simeon Obayo [2005] eKLR***, where the Court of Appeal recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. 2. Funeral expenses were pleaded, were spoken to in evidence, were supported by receipts, and were not disputed in principle. Having regard to the ordinary and well-known costs of a rural burial in this part of the country — mortuary charges, a coffin, transportation of the body, and the feeding of mourners — and to the passage of time since the 2005 decision relied upon, I consider Kshs. 100,000 to be reasonable and I award that sum. ## ***(v) Special damages*** 1. Special damages must be specifically pleaded and strictly proved. The particulars pleaded were Kshs. 50,000 for obtaining letters of administration and Kshs. 15,000 for demand notices, with a pleaded total of Kshs. 55,000. I note in passing that the itemised figures sum to Kshs. 65,000, but the Appellant is bound by the total she pleaded and can recover no more. 2. Advocates' receipts for both sums were produced. The Respondent objects to the Kshs. 15,000 claimed for demand notices on the ground that it duplicates costs, relying on authority to the effect that awarding a sum for a demand letter in addition to the costs of the suit is tantamount to double compensation, since costs ordinarily include such expenses. That objection is sound in principle and I uphold it. The expense of a demand letter is properly a matter for the taxing officer and is not recoverable as a separate head of special damages where costs are also awarded. 3. I therefore award Kshs. 50,000 as special damages, being the proved cost of obtaining the grant of letters of administration ad litem. ## ***(vi) Summary of the award*** 1. The damages payable by the Respondent to the Appellant, for the benefit of the estate and the dependants of the late Johnstone Taifa Andalo, are assessed as follows: 2. Pain and suffering — Kshs. 100,000 3. Loss of expectation of life — Kshs. 100,000 4. Loss of dependency (Kshs. 2,400,000 less Kshs. 200,000) — Kshs. 2,200,000 5. Funeral expenses — Kshs. 100,000 6. Special damages — Kshs. 50,000 TOTAL — Kshs. 2,550,000 **INTEREST AND COSTS** 1. Interest on general damages runs from the date of judgment, since it is only upon judgment that the sum is ascertained. Interest on special damages runs from the date of filing suit, those sums having been expended before the suit was brought. 2. Costs follow the event under Section 27 of the Civil Procedure Act. The Appellant has succeeded both in the appeal and, upon the substitution of this court's judgment, in the suit. She is entitled to the costs of the appeal and to the costs of the suit in the court below. The order for costs made against her by the trial court cannot stand and is set aside. 3. As the award is made for the benefit of an estate of which four of the dependants were minors at the date of the plaint, the parties are at liberty to apply for directions as to the manner in which the shares of any dependants who are still minors are to be held and administered. **DISPOSITION** 1. For the reasons given, the appeal succeeds. I make the following orders: 2. *The appeal is allowed.* 3. *The judgment and decree of the Senior Principal Magistrate's Court at Hamisi in Civil Case No. E056 of 2023, delivered on 26th July 2024, dismissing the Appellant's suit with costs, is hereby set aside in its entirety.* 4. *In substitution therefor, judgment is entered for the Appellant against the Respondent on liability at 50 per cent being motor vehicle KBY 350K whereas the owner of motor vehicle KDB 117J shoulders a further 50 per cent on contributory of negligence.* 5. *The Respondent shall pay to the Appellant, for the benefit of the estate and the dependants of the late Johnstone Taifa Andalo, general and special damages in the total sum of Kshs. 1,275,000, made up as set out at paragraph 83 above.* 6. *The said sum shall carry interest at court rates, on the general damages from the date of this judgment until payment in full, and on the special damages from 30th August 2023, being the date of filing of the suit, until payment in full.* 7. *The Respondent shall bear the costs of this appeal and the costs of the suit in the court below, to be taxed if not agreed.* 8. *The file in Hamisi Chief Magistrate's Court Civil Case No. E056 of 2023 shall be remitted to that court for execution.* 9. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**