https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12233

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **CIVIL APPEAL NO. E073 OF 2024** **ALLEX NYAMAI KITILI………………………………………………….APPELLANT** **VERSUS** **LINET NEKESA NYONGESA and ERIC MUSEE KATEE** **(Suing as administrators of the estate of the late** **JOSEPH NGUI MUNYITHYA (Deceased)………………………….……RESPONDENT** **JUDGMENT** 1. This is an appeal from the judgment of Hon. C.N.Ondieki (PM) in Machakos CMCC No. E695 of 2021 delivered on 21st December 2023. 2. The Respondent had instituted suit No. CMCC No. 697 of 2021 vide plaint dated 19th November 2021. 3. The Respondent alleged that on 21st October 2021 their kin was lawfully crossing the road at Kingatuni along Machakos-Kitui road when the Appellant’s authorized driver, servant and/or agent negligently drove motor vehicle registration number KBR 814D so negligently causing it to knock and fatally injure the deceased. 4. The Respondent blamed the Appellant’s driver for occasioning the accident and the loss. 5. The deceased was aged 33 years at the time of his death and was survived by his wife and son. 6. The Respondent sought general damages under the Fatal Accidents Act and under the Law Reform Act, special damages of Kshs 155,850 and costs of the suit and interest thereon. 7. The Appellant defended the suit, denying the occurrence of the accident and pleaded in the alternative that the accident was occasioned by the negligence of the deceased. 8. The Court held the Appellant 100% liable for the accident and entered judgment in favour of the Respondent as against the Appellant 9. The court awarded the Respondent Kshs 3,681,380.00, made up as follows: Pain and suffering kshs 50,000 Loss of expectation of life kshs 100,000 Loss of dependency kshs 3,381,580 Special damages kshs 149,800 1. The Appellant, being aggrieved by the decision of the trial court, instituted the present appeal, raising various grounds of appeal, *inter alia*: 2. The trial court erred in law and fact by misapprehending and misunderstanding the applicable principles and the law in assessing quantum, thereby arriving at an award that is manifestly and inordinately high as to constitute an entirely erroneous estimate of damages in the circumstances of the case. 3. The trial court erred in law and fact by arriving at a finding on liability which went against the weight of evidence. 4. The trial court erred in law and fact by making a finding in favour of the Respondents when they had not proved their case on the balance of probabilities 5. The trial court erred in fact and in law in awarding the Respondents a global sum of Kshs 3,381,580/- damages under the Fatal Accidents Act, which award was too excessive in the circumstances. 6. The trial court erred in fact and in law in relying on the maximum number of productive working years, which was 25 years in the circumstances, and failing to consider the vicissitudes of life when awarding damages under the Fatal Accidents Act. 7. The trial court erred in law by failing to deduct the damages awarded under the Law Reform Act from the total award. 8. The trial court erred in law and in fact in failing to accord due regard to the Appellant’s submissions and authorities on the quantum and applicable principles for the assessment of damages. 9. The trial court erred in law and fact by arriving at a decision not based on the evidence of record, descending into the arena of litigation, and thus erroneously apportioning liability against the Appellant. 10. The Appellant submitted that the burden of proof remains with the party asserting a fact even where the opponent offers little or no rebuttal. 11. The Appellant referred to the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka and another (2016) KEHC 1362 (KLR) where the court held that uncontroverted evidence must bring out the fault and negligence of a defendant and that a court should not take it as truthful without interrogation for the reason only that it is uncontroverted. 12. The Appellant, citing the provisions of section 109 and 112 of the Evidence Act and calling to his aid two paragraphs found in Halsbury’s Laws of England, 4th Edition Volume 17, paragraphs 13 and 14 which expound on legal burden and evidential burden of proof, submitted that the Respondent did not discharge the burden of proof as she did not prove the particulars of negligence outlined in the plaint other than stating them in the pleadings as filed. 13. The Appellant submitted that PW2, who testified as an eyewitness, did not prove that the motor vehicle was speeding or being driven negligently to have caused the accident. 14. The Appellant submitted that the police abstract produced did not blame the Appellant for causing the accident; the Appellant was not charged; and there was no pedestrian crossing on the highway where the deceased was crossing. 15. The Appellant cited the case of Kirugi and another vs Kabiya and 3 others (1987) KLR 347 where the Court of Appeal held that the burden of proof on a balance of probabilities is on the Plaintiff even if the case was heard on formal proof. 16. The Appellant submitted that the deceased died on the same day of the accident; therefore, an award of 20,000/- would have sufficed, not the 50,000/- awarded by the trial court. 17. The Appellant indicated that she has no issue with the award for loss of expectation of life. 18. On loss of dependency, the Appellant submitted that she has no issue with the multiplicand of kshs 16,907/- that was used by the court. 19. The Appellant submitted that the deceased having died aged 33 years, the court ought not to have applied a multiplier of 25 years, but the Appellant fell short of suggesting one. 20. The Appellant cited the decision of the court in David Kajogi M’Mugaa vs Francis Muthomi Civil Appeal 118 of 2010 (2012) eKLR, where a multiplier of 25 years was adopted for a 23-year-old to provide for the vicissitudes of life. 21. The Respondent opposed the appeal and submitted that they discharged the burden of proof by particularizing the negligence in the plaint and tendering sufficient evidence to prove it. 22. The Respondent submitted that PW2 Brian Musembi, an eyewitness to the accident, testified in court and adduced sufficient evidence to prove that the Appellant, who was the owner and driver of the suit motor vehicle, was to blame for the accident. 23. The Respondent submitted that apart from filing their statement of defence, the Appellants did not adduce any evidence in rebuttal. Therefore, the evidence of the Respondent's witnesses remained uncontroverted. 24. The Respondent relied on the decision of the court in Peter Ngigi Kuria and another (suing as the legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondili Oduol and another (2019) eKLR where it was stated thus: *‘There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements”* 1. The Respondent further relied in the case of Shaneebal Limited v County Government of Machakos (2018) eKLR where Odunga J relied on the decision of the court in Trust Bank Limited vs Paramount Universal Bank Limited and 2 others Nairobi (Milimani) HCCS No. 1243 of 2001: *‘it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of facts since in so doing the party fails to substantiate its pleadings. In the same vein, the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged”.* 1. The Respondent cited additional court decisions to reiterate that point, namely Interchemie E.A. Limited vs Nakuru Veterinary Centre Limited (2001) eKLR and the Court of Appeal at Mombasa in Civil Appeal No. 87 of 2016. 2. In Mursal and another v Manese (suing as the legal administrator of Dalphine Kanini Manesa), Civil Appeal No. E20 of 2021 (2022) KEHC 282 (KLR) (6 April 2022) (Judgment), where it was stated as follows; *21. The appellant’s counsel did not adduce evidence in the lower court, but cross-examined the Respondent. The purpose of cross-examination is threefold. First, to elicit evidence in support of the party conducting the cross-examination. Second, to cast doubts on, or undermine the witness’s evidence to weaken the opponent’s case. Third, to undermine the witness’s credibility. Fourth, to put the party’s case and challenge disputed evidence. However, once a party cross-examines an opponent’s witness, he can only rebut the issues raised during cross-examination by calling witnesses. Accordingly, the assault on the argument casting doubts on the findings on liability fails.* 1. The Respondent submitted that, in light of the above, the trial court did not err in law and/or in fact by holding the Appellant 100% liable. 2. The Respondent submitted that the award of kshs 50,000/- for pain and suffering was realistic and within the bounds of decided cases; they cited the decision in Sukari Industries Limited vs Clyde Machimbo Juma Homa Bay (2016) eKLR where the deceased died immediately after the accident and the trial court had awarded him 50,000/- for pain and suffering; Majanja J held as follows; *“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting, but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from kshs 10,000 to kshs 100,000 over the last 20 years; hence, I cannot say that the sum of kshs 50,000 awarded under this head is unreasonable.”* 1. The Respondent cited two more cases where court awarded kshs 50,000/- and 60,000/- for the benefit of deceased’s estate where the deceased died on the spot after a traffic road accident, that is Alice O. Alukwa vs Akamba Public Road Services Limited and 3 others (2013) eKLR and Joseph King’ori Wandurwa and China Overseas Engineering vs Loise Karimi Nyaga (suing as the Legal Administrator of the Estate of Morris Ndwiga Njiru (deceased) (2021) eKLR. 2. On the issue of multiplier, the Respondent submitted that the deceased died at age 33, and before his death he worked as a mason; the evidence tendered before court was that he was of good health and would have worked gainfully past the age of 60 years. 3. The Respondent submitted that the deceased would not have been restricted to working up to age 60 because he was not in formal employment. 4. The Respondent submitted that the court considered all reasonable factors in arriving at the multiplier of 25 years and that the evidence is in the discretion of the trial court. 5. The Respondent quotes a portion of the judgment where the trial court stated as follows; *‘In this regard, the assertion that the fact that the deceased was of good health is not controverted. Taking into account the variability and vicissitudes of life like premature death from diseases in the context of good health aforesaid, I find a multiplier of 25 years reasonable.”* 1. The Respondents buttressed their position by citing the decisions of the court in Esther Njeri Njoroge suing as an administrator on behalf of the estate of the late Michael Njoroge Kimani vs Angela Karori Mamwaro and another (2018), Orion Investments vs Stephen Njoroge Kungu (suing for and on behalf of the Estate of Jane Gathoni Kungu deceased) (2023), Muthuri v Njagi and another (Suing as legal representatives of the Estate of Michael Waiganjo Ngare-Deceased) (2023) eKLR 2. On the issue of double compensation, the Respondent cited the leading authority on the same, that is the Court of Appeal decision in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (deceased) vs Kiarie Shoe Stores Limited (2015) eKLR. 3. The Respondent cited an excerpt of the trial court’s judgment where the trial court had considered the issue of double compensation. 4. The Respondents submitted that the trial court exercised its discretion and explained why it did so on the award of general damages under both the Law Reform Act and the Fatal Accidents Act. 5. The Respondent submitted that the Appellants have not established any basis to warrant interference with the award of the trial court. 6. The Respondent submitted that the court should act in keeping with the principle that comparable injuries should as far as possible attract comparable awards. And further that the court should not disturb an award of damages unless it is shown that it is inordinately so high or low as to represent an erroneous estimate, or where the judge proceeded on wrong principles or that he misapprehended the evidence in some material facts as to arrive at a wrong figure. 7. The Respondent urged for dismissal of the appeal with costs. 8. I have reviewed the memorandum of appeal, the record of appeal and the parties' respective submissions on the appeal from whence I gather that the following issues fall for determination: 1. Whether the Respondent proved negligence on the part of the Appellant on a balance of probabilities, justifying a 100% liability finding by the trial court. 2. Whether the trial court applied the correct principles in awarding damages. 3. Whether the Appellant has demonstrated a sufficient basis for interference with the decision of the trial court. 9. I have independently reviewed the oral testimony and documents adduced by the witnesses before the trial court and the trial court’s analysis of the same, which was premised on the guidance provided by a cornucopia of decided cases on the effect of a defendant not calling witnesses, the place of written submissions and cross-examination in the absence of evidence in rebuttal. 10. I entertain no doubt on the correctness of the trial court’s finding of 100% liability against the Appellant. 11. The Respondent called an eyewitness to the accident who testified to the Appellant’s culpability for the accident that occasioned the deceased’s demise. 12. That evidence was never rebutted as the Appellant elected not to call evidence in rebuttal. 13. Authorities surfeit on the consequences of such action; the decision of the trial court on negligence is unassailable in the circumstances and, in my view, borrowing the phraseology of the trial magistrate, must stand like the pyramids of Giza. 14. On the award of damages, the Appellant has conceded to the award of Kshs 100,000/- for loss of expectation of life, so that is to be left undisturbed. 15. On pain and suffering, the trial court appreciated that in awarding damages for pain and suffering, there is a presumption that the aggregate of pain and suffering is directly proportional to the span of period before one succumbs to his/her own injuries. 16. The period taken is the determinative variable. It is presumed that the longer the period, the more the pain and suffering, and the converse is true. 17. The general principle is that very nominal damages will be awarded if death followed immediately after the accident. 18. In the instant case, the death certificate stated that the deceased died on the same day; there was no evidence of the exact time of death. 19. The trial court considered several decisions where the court awarded between khs 10,000/- and 100,000/- to people who died on the same day, depending on the duration between the accident and death. 20. The trial court exercised discretion and awarded kshs 50,000/- which amount I find falls within the range of awards upheld by appellate courts; the amount is certainly not an outlier as to constitute a misdirection in principle. 21. I therefore see no reason to disturb the award of kshs 50,000/- for pain and suffering. 22. On the award for loss of expectation of life, the Appellant conceded that he had no problem with the multiplicand of 16,907/- but took issue with the multiplier of 25 years, which he submitted did not take into account the vicissitudes of life. 23. The deceased died at the age of 33 years; he was a mason whose working life would ordinarily not be restricted to age 60. 24. The choice of multiplier is a matter of the Court’s discretion, which discretion has to be exercised judiciously and with reason. 25. In fixing the multiplier and reckoning the difference in time to retirement, a court may also consider, *inter alia*, the variability and vicissitudes of life, such as premature death from disease. 26. The court should bear in mind the expectancy of earning life of the deceased, the expectation of life and dependency of the dependants, and the chances of life of the deceased and the dependants. 27. The sum arrived at must then be discounted to allow for legitimate considerations such as the fact that the award is being received in a lump sum and would, if wisely invested, yield returns of an income. 28. The trial court at paragraph 123 of its judgment set out its rationale for adopting a multiplier of 25 years: that the deceased was not in public employment where he would have been restricted to retire at the age of 60 years, the fact that no law fixes the retirement age of general labourers meant that the deceased had the possibility of working past the age of 60 years, the fact that the allegation of the deceased having been in good health was not controverted and the fact that the deceased died at age 33 years. 29. The trial court also expressly stated in its judgment that it took into account the variability and vicissitudes of life, like premature death from disease, in the context of good health to arrive at the multiplier of 25 years. 30. I perceive no error in principle in how the trial court arrived at a multiplier of 25 years: it took into account relevant factors and did not consider any irrelevant factors; consequently, I uphold the multiplier of 25 years adopted by the trial court. 31. The Appellant’s other ground of appeal was that the trial court erred in law by failing to deduct the damages awarded under the Law Reform Act from the total award. 32. This is a ground that I will readily dismiss because the Court of Appeal in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited (2015) eKLR and also in Kemfro vs A. M. Lubia and Olive Lubia (1982-88) KAR 727 clarified the position, which is that what a court is expected to do in assessing damages for loss of dependency is to take into account the benefits granted under the Law Reform Act especially where the beneficiaries under both Acts, that is the Fatal Accidents Act and the Law Reform Act are the same. 33. The award under the Law Reform Act doesn't need to be deducted from the total award of damages under both Acts as a matter of course. 34. The decision whether to grant general damages for loss of expectation of life, pain and suffering and also for loss of dependency falls within the discretionary power of the court. 35. In the instant case, the trial court expressly stated at paragraph 139 of its judgment that it addressed its mind to the modest award for loss of dependency, which in my perception is the correct application of the law on the issue. 36. I therefore see no basis for sustaining the Appellant’s challenge to that aspect of the decision of the trial court. 37. Having considered the totality of the Appellant’s challenge to the decision of the trial court, I have not perceived any error in law or fact by the trial court: 38. I have equally not seen where the trial court misapprehended or misunderstood the applicable principles and the law in assessing quantum. 39. Having considered the Appeal based on the grounds set out in the Appellant’s memorandum of appeal, I am satisfied that the Appeal is without merit. I therefore order as follows: 1. That the Appeal be and is hereby dismissed with costs to the Respondents. **Emmanuel Bitta** **Judge of the High Court** Dated, signed and delivered via Microsoft Teams, at the High Court Mombasa this 30th day of July 2026 In the presence of: Nechesah C/A Mwangangi for the Appellant N/A for the Respondent