Aldonai Enterprises Limited v Maina & another (Suing as Legal Administrators of the estate of the late James Ndirangu Wangondu (Deceased)) (Civil Appeal E059 of 2024) [2026] KEHC 10358 (KLR) (24 June 2026) (Judgment)

Aldonai Enterprises Limited v Maina & another (Suing as Legal Administrators of the estate of the late James Ndirangu Wangondu (Deceased)) (Civil Appeal E059 of 2024) [2026] KEHC 10358 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 10358 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E059 of 2024 MW Mutuku, J June 24, 2026 Between Aldonai Enterprises Limited Appellant and Rose Wambui Maina 1st Respondent Faith Wangeci Murage 2nd Respondent Suing as Legal Administrators of the estate of the late James Ndirangu Wangondu (Deceased) (Being an appeal from the judgment and decree of Hon. Brenda Ofisi – (R.M) delivered on 22nd March, 2024 in Limuru Chief Magistrate’s Court Civil Case No. 335 of 2018) Judgment 1.Before this Court is the Memorandum of Appeal dated 17th April 2024 by which the Appellants sought the following orders:-(a)a) That the honourable court do set aside the lower court’s judgment on liability and dismiss the suit with costs.(b)That in the alternative to prayer one above, the honourable court do assess the award on pain and suffering and loss of dependency payable to the respondent.(c)That the costs of this appeal and those in the Lower Court suit be awarded to the appellants with interest.d)That there be such other or further orders as the Honourable Court shall deem just, fair and expedient. 2.The appeal was canvassed by way of written submissions. The appellant filed the written submissions dated 25th February 2026 whilst the Respondent relied upon their written submissions dated 6th February 2026. Background 3.This appeal arises from a road traffic accident which occurred on 10th November 2017. It is alleged that the deceased, James Ndirangu Wangondu was riding his motor cycle Registration Number KMDA 174T along Kikuyu- Wangige Road when motor Vehicle Registration Number KCJ 709 AZF4780 was driven so carelessly and negligently, and caused crush onto the plaintiff. That the decease later passed on as a result of the injuries sustained as a result of the injuries. 4.Following the accident the mother of the Deceased filed a suit in the Lower Court seeking General and Special damages. The suit was heard and a judgment delivered on 22nd March 2024 in favour of the respondent. 5.The appellant being dissatisfied with the whole of the judgment and decree of the learned magistrate has appealed the whole judgment on the grounds that:-i).That the learned magistrate erred in fact and law in finding the Appellant 50% liable instead of dismissing the respondent’s suit against the Appellantii).That the learned magistrate erred in law and fact in failing to consider that the occurrence of the accident was solely caused by the deceased.iii).That the learned magistrate erred in fact and law in failing to consider the evidence adduced by the Appellant.iv).That the learned magistrate erred in fact and law in failing to consider the appellant’s submissions attached thereto while assessing liability.v).That the learned magistrate erred in fact and law in awarding an amount for pain and suffering that was manifestly excessive.vi).That the learned magistrate erred in law and fact in awarding an amount on Loss of Dependency that was manifestly excessive.vii).That the learned magistrate erred in fact and law in failing to consider the appellants submissions and authorities attached thereto while assessing loss of dependency. Analysis and Determination 6.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 7.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557(KLR) in which the Court of Appeal stated as follows:-“This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. see Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” 8.The fact that an accident occurred on 10th November 2017 is also not in doubt. At Page 11 of the record is a copy of police abstract dated 30th December 2017 confirming that an accident had occurred involving the motor vehicle Registration KCJ 709A/ZF4780 and a Motor cycle registration KMDA 174T. At Page 12 of the record is the Death Certificate confirming that the Deceased James Ndirangu Wangondu died at the age of thirty four (34) years as the result of injuries sustained in a road accident. 9.The Appellants are aggrieved by the finding of the trial court that liability had not been proved by the respondents. 10.It is trite law that he who alleges must prove. It is a general proposition of the law that the legal burden of proof lies upon the party who invokes the aid of the law. Section 107(1) of the Evidence Act Chapter 80 Laws of Kenya provides:“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 11.Sections 109 and 112 of the same Act provide as follows:-“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. “112. 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”. 12.The two provisions were considered in the case of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court held as follows:“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Section 109 and 12 of the Act.” 13.This being a civil case the respondents were required to prove on a balance of probability that it was the driver of the appellant’s vehicle who caused the accident, which led to the death of the victim. 14.The respondents called a total of three in support of their case. PW 1, No. 2113 P.C Godfrey Kinoti, a police officer based at Tigoni police station produced a police abstract dated 30th December 2017. The police abstract confirmed the occurrence of the accident which took place on 15th December 2017, and that it involved motor vehicle KCJ 709A/2F4780 and motor cycle registration number KMDA 174T. It was his evidence that the case was still pending under investigations at the time the police abstract was issued. He confirmed that he was not the investigating officer, and further that he could not tell under what circumstances the accident occurred. 15.PW 2, David Ngaruiya told the court that he witnessed the accident, and that the deceased was knocked down by the trailer. That the rear tyres of the trailer crushed him to death. 16.PW 3, Rose Wambui Maina is the wife to the deceased. She told the court that the deceased was a motor cycle rider, and as the sole bread winner of the family, he earned Ksh 1,000 per day. That the deceased was survived by two daughters aged 13 and 11 years, 17.The appellant on the other hand called the evidence of three witnesses. DW 1, No. 84324 P.C Iddi Ndiege confirmed that the accident was reported at Tigoni police station. He produced the Occurrence Book Entry, which indicated that the scene of accident was attended to by P.C Kinoti. According to the entry recorded, the motor vehicle was driven from Nairobi towards Maai Mahiu direction. The rider who was riding from Limuru direction towards Mutarakwa, upon reaching Mutarakwa junction decided to join the road towards Maai Mahiu. That the rider failed to give way and that is when he was knocked down by the trailer, and as a result of the injuries suffered, the rider passed on at the hospital while undergoing treatment. 18.In cross examination, he stated that he did not visit the scene, and that he could not tell the name of the officer who issued the police abstract issued on 16th January 2018. 19.Alex Nzambi told the court that he was tasked by the insurance company to conduct investigations on the circumstances surrounding the occurrence of the accident. He told the court that he interviewed the driver of the motor vehicle and the investigating officer. He did not interview any other witnesses. He went on in his report to blame the rider, notwithstanding the fact that the police abstract annexed to his report indicated that the matter was still pending under investigations. 18.The appellants sought to rely on the Occurrence Book booking in respect of the accident as proof that the accident was caused by the negligence of the deceased cyclist. The maker of the document was not called to testify. No evidence was called from the police officer who visited the scene. No sketch map was produced as an exhibit. In short no evidence was called to prove the contents of that sketch plan. 19.On the other hand, the respondent sought to rely on the evidence contained in the police abstract. Equally, the maker of the abstract was not called to give evidence, nor was the police officer who visited the scene and conducted investigations. The police officer who produced the Occurrence Book is not the one who booked the accident. He did not investigate the case nor did he visit the scene. 20.A police abstract does not provide proof of how the accident occurred and cannot be deemed to be proof of liability. In the case of Peter Kanithi Kimuyu -vs- Aden Guyo [2014] eKLR it was held that:-“A police abstract is not proof of the occurrence of an accident but of the fact that following an accident, the occurrence thereof was reported at a particular police station.” 21.Therefore the production of the police abstract did not absolve the respondents of their legal obligation to prove liability as against the appellant. A police abstract is merely proof that a report was made to a particular police station. In the absence of evidence from an officer who visited the scene and/or a sketch map the police abstract is of little value to the court. This by extension would apply to the Occurrence Book report. 22.In the case of ZOS and CAO -vs- Amollo Stephen [2019]eKLR, Hon. Lady Justice Aburili observed as follows:-“The police abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of the accident but proof of the fact that following an accident the occurrence thereof was reported to the police who took cognizance of that accident. It is the police, having received information of a report of occurrence of an accident [who] would investigate and establish the circumstances under which such an accident occurred……….” 22.In the same case the Court went on to state that:-“…………..it was incumbent upon the appellant at the time of hearing to either call an eyewitness who saw the accident take place to prove the listed particulars of negligence attributed to the Respondent or to call the police from Bondo Police Station who investigated the accident to shed light on the result of the investigations and as to who was to blame for the subject accident wherein the Deceased lost his life.” 23.Faced with a similar situation, the court in the case of Enock Sinde Obegi v Benard Sumo [2020] KEHC 6558 (KLR), the court held as follows;“However, I agree with Counsel for the appellant that this being a case where the accident is not disputed but all we have is one driver’s word against the other, it would be a good case to apportion liability in the ratio 50:50%. This is as was held by the Court of Appeal in the case of Farah v Lento Agencies [2006] 1 KLR 124, 125 where the Court of Appeal held: -“ ………… 4.The trial court had two conflicting versions of how the accident occurred. It was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. 5.Where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. As no side could establish the fault of the opposite party, liability for the accident could be equally on both the drivers. Therefore, each driver was equally to blame.” 24.Similarly in the case of Oduor v Njagi (Civil Appeal 100 of 2020) [2024] KEHC 12437 (KLR) (26 September 2024) (Judgment), Hon. Justice Ado Moses upheld a finding on 50: 50, and observed thus,“ 25.It is trite that in an action for negligence as a result of road traffic accident, the burden of proof rests upon the plaintiff alleging it. However, under the doctrine of res ipsa loquitor, negligence can be inferred in the absence of any either plausible explanation on how the accident occurred. In the case of Sally Kibii and Another versus Francis Ogaro [2012] eKLR, the court, stated the following in relation to the doctrine; - ‘‘The Plaintiff in the trial only produced two witnesses who admitted that they did not witness the accident and could not tell how it happened. The police abstract showed that the accident was caused by collusion of two vehicles and investigation were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to blame and the absence of an eye witness diminishes the appellant’s chance to prove a case of negligence against the defendant….to successfully apply this doctrine (res ipsa loquitor) there must be proof of facts that are consistent with negligence on the part of the defendant as against any other cause…….can safely presume that the mere fact that two cars being KAK 746J and KAG 331K collided, negligence was on the part of the defendant’s cause and not the other. The plaintiff must prove fact which give rise to what may be called res-ipsa loquitor situation.’’25. Guided by the above cited authorities, and after considering the evidence before this court, I find that none of the parties called conclusive evidence to prove fault on either the driver of the lorry or the deceased cyclist. The learned trial magistrate properly applied the law and facts in arriving on her decision on liability. The court finds that the trial Magistrate did not fall into error in and I find no reason to disturb the finding on liability. On quantum. 26.It is trite that this Court will only interfere with the judgment of the lower Court if the same is founded on wrong principles of law and/or misapprehension of the evidence. That was the holding by the Court of Appeal in in Butt v Khan [1977] 1 KLR, where it was stated that:-“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”. Pain and suffering 27.In order to ascertain whether the amount awarded by the trial Magistrate was within the principles that guide the award of damages under this header, the court has to look at how long the deceased remained alive after the accident. 28.In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] eKLR, the Court made the following observation in regard to awards under the Law Reform Act, Cap 26 Laws of Kenya-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is ksh 100,000/= while for pain and suffering the awards range from ksh 10,000/= to ksh 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” 29.In the case of Mercy Muriuki & another V Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the Late Robert Mwangi) [2019]eKLR the court observed that higher damages are awarded if the pain and suffering was prolonged before death. 30.The learned trial magistrate observed that the deceased succumbed to the injuries on the same date of the accident and awarded a sum of Ksh 100,000. I have looked at the death Certificate and the post mortem report, and the two documents confirm that the deceased passed on the same date and a few hours after the accident. I find no reason to disturb this award. Loss of expectation of life. 31.The deceased enjoyed good health, and no evidence was adduced to the contrary. Under this head, an award of Ksh 100,000 was awarded and I find no reason to disturb the same. Loss of dependency. 32.Section 4 of the Fatal Accidents Act limits the beneficiaries of a deceased to the wife, husband, parent and child. The deceased died at the age of 34 years as per the death certificate. The deceased had two children who solely depended on him. The trial magistrate awarded a global sum of Ksh 3,000,000. 33.In Nyamu & Another vs. Aloo & Another (Civil Appeal No. E050 of 2022) [2025] KEHC 15185 (KLR) (27 October 2025) the multiplier approach was rejected as speculative and a global award of Kshs 2,500,000 adopted for a 34-year-old casual earner who had dependants. In Kidiga & Another vs. Onguna & Another [2025] eKLR the deceased was a 29-year-old, alleged to be a graduate/part-time teacher earning a monthly income of Kshs 40,000. Income was however not proved and dependants were stated to be parents, a fiancée and one child. The court upheld a global sum award of Kshs. 3,000,000 for loss of dependency. 34.The court finds that the trial Magistrate did not fall into error in this header and I find no reason to disturb the finding. 35.The special damages are not challenged. Costs. 36.In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:-“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 36.The appellant shall bear their own costs of the appeal.Determinationi)The appeal is without merit and is dismissed.ii)The appellant shall the costs of this appeal.iii)30 days stay of execution granted. DELIVERED, DATED AND SIGNED ON THIS 24TH DAY JUNE, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGE.In the presence of:-N/A for the Appellant.Mr. Mutunga for the Respondent.Court Assistant – Mr. Kibet.