https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10715

Anwarali & Brothers Company Ltd v Otieno (Suing as the Administrator of the Estate of Geofrey Zebedi (Deceased)) (Civil Appeal E381 of 2024) [2026] KEHC 10715 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10715 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E381 of 2024 J Ngaah, J July 17, 2026 Between Anwarali & Brothers Company Ltd Appellant and David Masinde Otieno (Suing as the Administrator of the Estate of Geofrey Zebedi (Deceased)) Respondent (Being an appeal from the judgment and decree of Hon. M. L. Nabibya, Senior Principal Magistrate, delivered on 17th October 2024 in Mombasa CMCC No. E310 of 2022) Judgment Introduction 1.This appeal is brought against the judgment of the Chief Magistrate's Court at Mombasa (Hon. M. L. Nabibya, Senior Principal Magistrate) delivered on 17th October 2024 in Mombasa CMCC No. E310 of 2022, David Masinde Otieno (suing as the Administrator of the Estate of Geofrey Zebedi, Deceased) v Anwarali & Brothers Co. Ltd. The suit before the trial court arose from a fatal road traffic accident which occurred on 17th May 2021 along the Mombasa–Malindi Road, in which the Respondent's son, Geofrey Zebedi, a pedal cyclist, died at the scene after coming into contact with motor vehicle registration number KAV 214N/ZD0177, a truck and trailer belonging to the Appellant. 2.The trial court apportioned liability at 30:70 as between the Respondent and the Appellant, and awarded the Respondent general damages under the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26), together with special damages, costs and interest. The Appellant, dissatisfied, lodged this appeal by way of a Memorandum of Appeal dated 6th November 2024, contending, in summary, that liability was never proved against it and that the resultant award was, in any event, excessive. Background and pleadings before the trial court 3.By a Plaint dated 28th February 2022, the Respondent sued the Appellant as the Administrator ad litem of the estate of Geofrey Zebedi (deceased). It was pleaded that on or about 17th May 2021, the deceased was cycling along the Mombasa–Malindi Road when, upon reaching Kengeleni area, the Appellant's authorised driver, servant and/or agent so negligently drove, managed and/or controlled motor vehicle registration number KAV 214N/ZD0177 as to lose control of it, veer off its proper lane and hit the deceased, occasioning fatal injuries from which he died. 4.The particulars of negligence pleaded against the Appellant's driver, servant and/or agent included driving at excessive speed, careless driving, failure to keep a proper lookout or sufficient regard for the deceased's safety, driving a defective motor vehicle, driving on the wrong side of the road, and failing to keep the vehicle in a serviceable condition. The Respondent further pleaded that the Appellant was vicariously liable, and set out particulars of special damages totalling Kshs 340,200/=, comprising, among other items, funeral expenses, postmortem and admission fees, transport of the body from Mombasa to Chekalini, and legal costs for obtaining the limited grant. 5.By a Statement of Defence dated 20th April 2022, the Appellant admitted only the descriptive averments in paragraphs 1 and 2 of the Plaint, denied that it was the registered, insured or beneficial owner of the said motor vehicle and put the Respondent to strict proof thereof, and denied the occurrence of the accident in the manner pleaded, the alleged negligence, and the alleged loss and damage. In the further alternative, and without prejudice to the foregoing, the Appellant pleaded that the accident was caused or substantially contributed to by the negligence of the deceased himself, particularised as cycling in the middle of the road, failing to take sufficient precaution for his own safety, allowing the accident to occur, failing to have regard for other road users and for the said motor vehicle, not adhering to traffic rules and safety precautions, and cycling on the main road when it was unsafe to do so. The evidence at trial 6.PW1, David Masinde Otieno, the Respondent and father of the deceased, adopted his witness statement and produced, among other documents, the police abstract, the death certificate, the limited grant of letters of administration ad litem, invoices and receipts relating to funeral expenses, bus tickets, and the deceased's payslip for March 2021. He testified that he did not witness the accident and learnt of it from the deceased's colleague; that the deceased, aged 25 years at death, worked as a cleaner earning a net monthly salary of Kshs 16,323/= (gross Kshs 17,122.84/=); that the deceased paid school fees of Kshs 3,000/= per month for a sibling, of which he (the witness) received Kshs 1,500/= and the deceased's mother received Kshs 1,500/=; and that funeral expenses totalled Kshs 340,200/=. 7.On cross-examination, PW1 candidly conceded that he did not witness the accident and did not know who was to blame, though he stated there had been an eyewitness. He further conceded that the deceased's surviving siblings were all adults, aged 35, 29, 22 and 20 years respectively, and that he himself was 59 years old. 8.PW2, No. 82xx0 PC David Mutisya, based at Nyali Police Station, testified that he was standing in for the substantive investigating officer, who was on maternity leave. He confirmed the occurrence of the accident on 17th May 2021 and produced the police abstract. He was not present at the scene when the accident occurred and visited only afterwards. On cross-examination he conceded that he did not have the police file, did not know the deceased's family, and was "not sure of the circumstances of the case," further confirming that the matter remained under investigation and that no person had been charged with any offence in connection with the accident. In re-examination he ventured the view that the motor vehicle was "likely to be blamed." 9.The Respondent's intended third witness, said to be an eyewitness to the accident, could not be traced, having reportedly relocated to Dubai. After more than one adjournment granted for this purpose, and upon objection by the Appellant, the trial court declined a further adjournment and the Respondent's case was closed without that witness testifying. 10.DW1, Hemstone Tuti, a driver employed by the Appellant, adopted his written statement as his evidence-in-chief. He testified that on the material morning he was driving the Appellant's truck and trailer, registration KAV 214N/ZD0177, from Bamburi, Mombasa, transporting clinker to a cement factory in Athi River, Machakos County; that the weather was dry and visibility clear; that upon reaching Kengeleni lights, where a police officer was controlling traffic, he was permitted to proceed and drove along the inner right-hand lane, leading a queue of heavy traffic at a speed of between 15 and 25 kilometres per hour (stated at trial as approximately 20 km/h); that on nearing the Kengeleni matatu stage he heard members of the public shouting for him to stop; that he stopped and, on walking back to the trailer, found a middle-aged man — the deceased — lying between the first and second axle tyres of the trailer, with his head crushed and life extinct, his bicycle lying beside him without any sign of accident damage; and that bystanders who had witnessed the occurrence informed him that the deceased, in attempting to avoid a matatu entering the stage, had lost control of his bicycle and slid towards the passing trailer, being run over by its rear left axle tyres. He further testified that traffic police attending the scene took down details and directed him to take the vehicle to Nyali Police Station, where he recorded a statement, the vehicle was inspected, and it was released to him upon payment of a cash bail of Kshs 20,000/=, and that he has never been charged with any offence arising from the accident. 11.On cross-examination, DW1 gave a detailed account of his training and licensing — a full driving licence obtained in 2009, Class BCE training between 2010 and 2012, Class 1/semi-trailer training completed in 2013, and experience driving Class 1 vehicles since 2015, including long-distance regional routes. He maintained that the vehicle had been serviced shortly before the journey, that he did not see the deceased ahead of him on the road, and that he only became aware of his presence when bystanders raised the alarm. 12.The Appellant produced, in addition to DW1's statement, the police abstract and DW1's driving licence, a Certificate of Examination and Test of Vehicle issued by the National Transport and Safety Authority's Vehicle Inspection Unit following an inspection of motor vehicle KAV 214N/ZD0177 conducted on 17th May 2021, the very day of the accident. That certificate recorded no visible damage to the steering mechanism or electrical system, an intact chassis and frame, an effective braking system with recorded brake-efficiency test results, and, materially, bore the remark:“No pre-accident defects noted." The judgment of the trial court 13.The trial court found that the deceased died on the spot, having been found in the middle of the truck's tyres, and that the vehicle belonged to the Appellant, as confirmed by DW1's evidence together with the police abstract. On the question of how the accident occurred, the trial court reasoned as follows:“My drawing of the scenario is that which the rider must have been right in the middle of the other cars, because, if the truck was in the middle lane, the rider was either on the left or right but too close. He was not hit from behind, there must have been a miscalculation on his end that he rammed into the rear tyres." 14.On that basis, the trial court apportioned liability at 30:70 against the Appellant. 15.On quantum, the trial court awarded Kshs 30,000/= for pain and suffering, Kshs 100,000/= for loss of expectation of life, and, for loss of dependency, adopted an average monthly income of Kshs 17,000/= (being a mean of the Kshs 17,122.84/= referenced in the record and the Kshs 20,000/= urged by the Respondent), a multiplier of 24 years, and a dependency ratio of 2/3, yielding Kshs 3,264,000/=. Special damages were assessed at Kshs 320,000/=, with costs and interest awarded to the Respondent. 16.It is to be noted that the formal decree extracted for purposes of this appeal records the 30:70 apportionment of liability as decretal order (1), but the sums thereafter decreed in orders (2) to (5) are the full, undiscounted figures arrived at by the trial court, with no percentage thereof deducted to reflect the apportionment of liability recorded in order (1). The appeal 17.By its Memorandum of Appeal, the Appellant raises five grounds, which may fairly be summarised as follows:(a)that the trial court erred in law and in fact in apportioning liability against the Appellant when liability had not been proved;(b)that the Respondent called no eyewitness to the accident, yet the trial court proceeded to find that the Respondent had proved liability;(c)that the trial court erred in law and in fact in awarding an exorbitant sum on quantum;(d)that the trial court erred in law and in fact in apportioning too large a dependency ratio for loss of dependency, where no direct dependency on the deceased had been proved; and(e)that the trial court erred in law and in fact in finding the Appellant liable for the deceased's fatal injuries when the Respondent had not proved his case against the Appellant on a balance of probabilities. 18.The Appellant prays that the appeal be allowed with costs, that the judgment of the trial court be set aside, and that the costs of the appeal be awarded to it. Submissions on appeal (a) Appellant's submissions 19.Counsel for the Appellant submits that the burden of proving negligence rested, throughout, on the Respondent, in accordance with sections 107 to 109 of the Evidence Act, and that the Respondent failed to discharge that burden. It is submitted that neither PW1 nor PW2 witnessed the accident or could speak to how the accident occurred; that PW2 was not even the investigating officer and candidly admitted he was "not sure of the circumstances of the case"; and that his opinion that the vehicle was "likely to be blamed" was neither expert nor admissible evidence capable of establishing negligence, but an impermissible intrusion into the very question the court was required to determine. 20.It is further submitted that the only account of how the accident occurred was that of DW1, which was neither contradicted nor seriously challenged in cross-examination, and which was corroborated by the physical evidence — an undamaged bicycle found beside the body — and by the NTSA inspection certificate confirming the absence of any pre-accident mechanical defect. Counsel submits that the trial court's finding on liability was the product of speculation rather than an evaluation of evidence, and that this Court, sitting as a first appellate court, is entitled and obliged to interfere with a finding of fact that has no evidential foundation. 21.On quantum, the Appellant submits that the dependency ratio of 2/3 adopted by the trial court was unsupported by the evidence, given that all the deceased's dependants were adults and the only proved financial contribution was Kshs 3,000/= per month toward his parents, and urges a ratio of 1/3 in line with the authority of Ishmael Nyasimi & another v David Onchangu Orioki suing as personal representative of Antony Nyabando Onchango (Deceased) [2018] eKLR, cited before the trial court. (b) Respondent's submissions 22.Counsel for the Respondent, in resisting the appeal, submits that a fatal collision in which a cyclist is found lodged between the rear axles of a heavy commercial trailer is not an occurrence that ordinarily happens in the absence of some fault on the part of the person controlling that vehicle, particularly at a busy junction and matatu stage, and that the trial court was entitled to draw an adverse inference against the Appellant in the circumstances. It is submitted that DW1, being the Appellant's own employee with an obvious interest in the outcome, gave an account that was self-serving and uncorroborated by any independent witness, and that the trial court, having had the advantage of observing him testify, was entitled to assess his credibility and to draw the inferences it did. 23.It is further submitted that the police abstract confirms the occurrence of the accident and the involvement of the Appellant's vehicle, and that PW2's evidence, though not that of an eyewitness, corroborated these facts. On quantum, the Respondent submits that the deceased was a young man in productive employment who supported his elderly parents and contributed to the welfare of his siblings, and that the trial court properly exercised its discretion, informed by the evidence of dependency, the documentary proof of expenses, the distance between Mombasa and Kakamega County, and prevailing economic conditions, and that the award should accordingly be upheld in its entirety. The duty of the first appellate court 24.This being a first appeal, this Court is under a duty to re-evaluate and re-consider the evidence adduced before the trial court and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and making due allowance in that regard (Selle v Associated Motor Boat Co Ltd [1968] EA 123. On matters of fact, this Court will not lightly interfere with the findings of the trial court unless satisfied that those findings were not based on the evidence on record, proceeded from a misapprehension of the evidence, or were plainly wrong. 25.As far as the question of quantum is concerned, an appellate court will not ordinarily disturb an award of damages unless it is shown that the trial court proceeded on a wrong principle, took into account irrelevant matters, omitted relevant matters from consideration, or arrived at a figure so inordinately high or so inordinately low as to constitute an entirely erroneous estimate (Peters v Sunday Post Ltd [1958] EA 424). Analysis and Determination Liability, and the law applicable where no witness testifies to the manner of an accident 26.The burden of proving negligence in a civil claim rests on the party who asserts it, and does not shift merely because the defendant has pleaded a denial or an alternative case of contributory negligence (sections 107 and 108, Evidence Act, Cap 80). The standard to be met is proof on a balance of probabilities — that is, that the occurrence of the fact alleged is more probable than not — and nothing less will suffice, but equally nothing more is required (Miller v Minister of Pensions [1947] 2 All ER 372). 27.It is trite that the mere occurrence of an accident, or the mere fact that a claimant's decedent died in consequence of contact with a defendant's motor vehicle, does not, ipso facto, establish negligence on the part of the defendant or its driver. A claimant must go further and adduce evidence, whether direct or circumstantial, from which negligence — and specifically the particulars of negligence pleaded — may properly be inferred. 28.Where, as here, no eyewitness is called to testify to the actual mechanics of an accident, a claimant is not thereby automatically without a remedy. Proof of negligence in such circumstances is not confined to direct eyewitness testimony; it may, in an appropriate case, be established by circumstantial evidence, including by invocation of the maxim res ipsa loquitur, where the occurrence is of a kind that would not ordinarily happen in the absence of negligence and the instrumentality causing the harm was under the management and control of the defendant. The maxim, properly understood, is not a distinct cause of action but a rule of evidence: it permits, but does not compel, an inference of negligence to be drawn from the bare facts of the occurrence, in the absence of any explanation from the defendant. Where, however, the defendant furnishes a reasonable and credible explanation of the accident consistent with the exercise of due care, the permissive inference is displaced, and the claimant, upon whom the legal burden remains throughout, must still establish negligence on the whole of the evidence. 29.The pleaded case advanced by the Respondent was that the Appellant's motor vehicle "veered off its lane" and struck the deceased. That was the factual foundation for the particulars of negligence relating to excessive speed, careless driving, failure to keep a proper lookout, and driving on the wrong side of the road. No witness — not the Respondent, not the police officer called as PW2, nor any independent bystander — gave direct evidence to establish that version of events. The only account of the mechanics of the accident placed before the trial court was that of DW1, the Appellant's driver, whose evidence was that the deceased, while attempting to avoid a matatu entering the Kengeleni stage, lost control of his bicycle and slid into the rear axle of the Appellant's trailer, which was at the material time travelling within its own lane, at a moderate speed, in heavy traffic that had just been released by a police officer controlling the junction. 30.On the face of it, the evidence stood entirely unchallenged. It is a well-settled evidential principle that where a party has had a full opportunity, through cross-examination, to test and impeach the evidence of an opposing witness on a material issue, and fails to do so, the unchallenged testimony is ordinarily to be accepted as correct (see Kirugi & another v Kabiya & 3 others [1987] KLR 347). The record discloses that DW1's cross-examination was confined to matters of his training, licensing and driving experience — none of which cast doubt upon his account of how the collision came about — and did not put to him, still less discredit, the version that the vehicle had veered off its lane. 31.Moreover, the documentary and physical evidence on record was consistent with, rather than contradictory of, DW1's account. The deceased's bicycle was recovered lying beside him without accident damage, a detail more readily consistent with the bicycle having slid or fallen out of the rider's control than with its having been struck from the side or front by a vehicle veering off its lane, in which event some damage to the bicycle would ordinarily be expected. The Certificate of Examination and Test of Vehicle, issued by the NTSA on the very day of the accident, recorded no pre-accident defects and an effective braking system, undermining the pleaded particulars that the vehicle was defective, unserviceable, or driven on the wrong side of the road. 32.As for PW2, his evidence was, with respect, of limited probative value on the question of liability. He was not the investigating officer, did not witness the accident, arrived at the scene only after the event, and candidly conceded that he did not have the police file and was "not sure of the circumstances of the case." His view, volunteered in re-examination, that the motor vehicle was "likely to be blamed," was not the evidence of a qualified accident-reconstruction expert, nor was any foundation laid for him to give opinion evidence at all. A witness's bare opinion on the ultimate question the court itself is called upon to decide is not a substitute for proof of the primary facts constituting negligence, and the trial court could not properly treat it as such. 33.It follows, respectfully, that the trial court's finding on liability was not anchored in the evidence before it. The court's own description of its reasoning — "my drawing of the scenario is that..." — reveals an exercise in conjecture as to how the accident "must have" occurred, rather than an evaluation of facts actually proved. A trial court is not entitled to fill an evidential gap left by a party who has failed to discharge the burden the law places upon that party by constructing its own hypothesis of events; to do so is, in substance, to shift the burden of proof from the claimant, where it properly lies, onto the defendant, contrary to sections 107 to 109 of the Evidence Act. The apportionment of 70% liability against the Appellant, and the specific mechanism by which the trial court arrived at it, cannot stand. 34.That, however, is not the end of the inquiry. The absence of any first-hand, tested account from the Respondent's side does not, of itself, entitle the Appellant to succeed outright, for this Court must still consider what significance is properly to be attached to the account tendered by DW1, and whether the resulting evidentiary position calls for a finding that no liability at all attaches to the Appellant, or for some other disposition. 35.On examination, DW1's account, though unchallenged in cross-examination, is not itself first-hand testimony of the collision. DW1's own evidence was that he did not see the deceased ahead of him, was not aware that anything had happened until bystanders raised the alarm, and only learned — from unnamed members of the public who were not called to testify and whose account is accordingly hearsay, untested by cross-examination — that the deceased had lost control of his bicycle while avoiding a matatu. DW1 is, moreover, the Appellant's own employee, with an evident interest in an account that exculpates both himself and his employer. The investigation into the accident was, on PW2's evidence, still open as at the date of trial, with no person charged and no conclusion reached by the police as to fault on either side. 36.The true position, therefore, is that neither party was able to place before the trial court first-hand, tested evidence of what occurred in the moments immediately preceding the collision. It is not disputed, and could not seriously be disputed, that a fatal collision occurred between the Appellant's trailer and the deceased's bicycle at the Kengeleni matatu stage on the morning in question. Nor could it seriously be suggested that such a collision — between a heavy commercial vehicle and a cyclist, at a location the Appellant's own driver knew to be a busy matatu stage frequented by pedestrians and other road users — occurs, as a matter of ordinary experience, otherwise than through some element of fault: whether that of the cyclist in misjudging his approach to a moving heavy vehicle, that of the driver in failing to maintain the heightened vigilance demanded when negotiating a known pedestrian and public-transport hotspot, or an admixture of both. What the evidence does not permit is a confident finding, on a balance of probabilities, as to where between the two the greater share of that fault lies. 37.This is precisely the species of case addressed by Denning LJ in Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 (CA), where two vehicles collided head-on on a wide road and both drivers were killed, leaving no witness on either side to explain how the collision occurred. It was held that, since such a collision could not have happened without negligence on the part of at least one driver, and the court had no means of determining upon whom, or in what proportion, the fault lay, liability would be apportioned equally between the two estates. That principle has been applied in comparable cases of collision between vehicles, and between vehicles and cyclists or pedestrians, where the details of the accident cannot be established with confidence from any source. It is not, I should emphasise, a rule triggered merely by a claimant's failure to call an eyewitness; it applies only where the evidential vacuum is genuine and effectively symmetrical — where, notwithstanding whatever material each side has placed before the court, the court is left unable to say, on the balance of probabilities, that one party's account of fault should be preferred over the other's, or in what proportion each contributed to the collision. It is a principle according to which probable inferences are drawn from evidence rather than a rule of law; to be precise, it is not a rule mandating equal liability in all cases where fault is unclear. Although the principle was not expressly canvassed in the submissions of either party before the trial court, nor in the Memorandum of Appeal, it bears directly on the correct disposition of Grounds 1, 2 and 5 of the appeal, and this Court, being obliged to apply the correct legal principle to the facts as found, is entitled to invoke it. 38.For the reasons given above, I am satisfied that this is such a case. It follows that the trial court's apportionment of 70% liability against the Appellant cannot stand, being unsupported by evidence; but it does not follow that the Respondent's claim fails in its entirety, for it is not in dispute that the collision occurred, that it resulted in the deceased's death, and that fault of some description — on one side, the other, or both — must be taken to have contributed to it, without the evidence permitting this Court to say in what proportion. Applying Baker v Market Harborough Industrial Co-operative Society Ltd (supra), I hold that liability for the accident that caused the death of Geofrey Zebedi is to be apportioned equally between the Respondent's estate and the Appellant, that is, at fifty per centum (50%) each. 39.Ground 1 of the Memorandum of Appeal accordingly succeeds in part: the trial court's apportionment of 70% against the Appellant is set aside, and substituted with an apportionment of 50%. Ground 2 fails to the extent that it suggests the mere absence of an eyewitness defeats the Respondent's claim altogether; on the contrary, in a case of genuine evidential impasse as to an undisputed collision, the law calls for equal apportionment rather than dismissal. Ground 5 succeeds only in part: the Respondent did not prove that the Appellant bore the whole or the greater share of fault, but his claim was not, for that reason, wholly unproved. 40.I would add that the decree as extracted discloses a further, independent error which reinforces the need for this Court's intervention: having apportioned liability at 30:70 against the Appellant, the trial court proceeded to decree the full, undiscounted quantum figures without applying that apportionment to the computation at all — an internal inconsistency illustrative of the unprincipled approach taken below, and one which, in any event, could not have been permitted to stand. (b) Quantum of damages 41.Liability having been established, albeit only as to one-half, it is necessary to assess the quantum of damages payable, before applying the 50% apportionment found above. 42.Pain and suffering: the parties respectively urged sums between Kshs 10,000/= and Kshs 100,000/= before the trial court, citing, among other authorities, Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative of the estate of Phineas Murithi, deceased) [2020] eKLR (Kshs 10,000/=) and General Motors East Africa Limited v Eunice Alila Ndeswa & Another [2015] eKLR (Kshs 150,000/=), in each case involving instant death. On the evidence, including the death certificate, the deceased herein succumbed at or near the scene. An award of Kshs 30,000/= is not, in my assessment, so inordinately high as to constitute an entirely erroneous estimate, and I would not have disturbed it. 43.Loss of expectation of life: the conventional award in this jurisdiction, reflected in the authority relied upon before the trial court (Caleb Juma Nyabuto v Evance Otieno Magaka & Charles Oyugi Amuomo, HCCA No. 16 of 2020), is Kshs 100,000/=. I find no basis to interfere with the award of Kshs 100,000/= under this head. 44.Loss of dependency: it is here that the trial court's assessment, quite apart from the question of liability, cannot be sustained. 45.As to income, the only direct documentary evidence of the deceased's earnings was his payslip for March 2021 (Plaintiff's Exhibit 16), showing a net monthly pay of Kshs 16,323/=. The trial court's adoption of an unexplained "average" of Kshs 17,000/=, arrived at by splitting the difference between the parties' rival figures of Kshs 17,122.84/= and Kshs 20,000/=, was not a principled basis for assessment. Income for the purpose of computing dependency must be derived from the evidence actually on record, not from an arithmetic compromise between the litigating positions of the parties. I would adopt the documented net monthly income of Kshs 16,323/=. 46.As to the dependency ratio, the deceased's survivors, as pleaded and as testified to by PW1, comprised his parents and adult siblings, all conceded by PW1 in cross-examination to be aged between 20 and 35 years and, prima facie, capable of providing for themselves. The only concrete evidence of actual financial dependency was PW1's testimony that the deceased contributed Kshs 1,500/= per month to himself and a further Kshs 1,500/= to the deceased's mother — a total of Kshs 3,000/=, representing under one-fifth of the deceased's net monthly earnings. No evidence was led to establish that any of the deceased's adult siblings were, in fact, dependent on him. Against that evidentiary background, the ratio of 2/3 adopted by the trial court — ordinarily reserved for cases of substantial or near-total dependency, such as that of a spouse or young children — was not supported by the evidence and was excessive. I consider a dependency ratio of one-third (1/3), as urged by the Appellant and consistent with the authority of Ishmael Nyasimi & another v David Onchangu Orioki [2018] eKLR relied upon before the trial court, to be fair and proportionate to the proved facts. 47.As to the multiplier, the deceased was 25 years old at death, with an ordinary legal retirement age of 60, representing a mathematical balance of 35 years. Our courts have consistently tempered such mathematical balances to allow for the vicissitudes and imponderables of life. Neither party seriously contested the multiplier of 24 years applied by the trial court, both having proposed multipliers in a comparable range, and I do not disturb it. 48.On this footing, loss of dependency, had liability been established in full, would properly be computed as Kshs 16,323 x 12 x 24 x 1/3, that is, Kshs 1,567,008/=. Ground 4 of the Memorandum of Appeal is, to this extent, well founded. 49.Special damages: the Appellant's objection before the trial court, that the receipts produced were inadmissible for want of stamping under sections 19 and 20 of the Stamp Duty Act, is, with respect, misconceived. The stamping requirement under that Act attaches to "instruments" of the kind enumerated in the Schedule thereto — principally conveyances, transfers, leases, mortgages, bonds and analogous instruments effecting or evidencing a disposition of, or a chargeable transaction in, property. Ordinary cash-sale receipts and invoices issued in the ordinary course of trade for goods or services — such as the funeral home invoices, the fuel receipt, and the bus tickets produced in this matter — do not fall within that class of instrument and require no stamping to found their admissibility in evidence. The authority relied upon by the Appellant on this point is accordingly distinguishable. 50.It nonetheless remains trite that special damages must be specifically pleaded and strictly, though not extravagantly, proved. Of the Kshs 340,200/= particularised in the Plaint, the Respondent's documentary proof — comprising receipted funeral home invoices, transport and fuel receipts, and the "Funeral Expenditure" schedule produced in evidence — substantially supports the sum of Kshs 320,000/= assessed by the trial court. I find no basis to interfere with the award of Kshs 320,000/= for special damages, that figure being adequately anchored in the documentary record and having regard to the notorious costs attendant upon transporting mortal remains and conducting a funeral over the considerable distance between Mombasa and Chekalini, Kakamega County. 51.The damages assessed in full — that is, before application of the apportionment of liability found in part (a) above — accordingly stand as follows: pain and suffering, Kshs 30,000/=; loss of expectation of life, Kshs 100,000/=; loss of dependency, Kshs 1,567,008/=; and special damages, Kshs 320,000/=, together amounting to Kshs 2,017,008/=. Applying the apportionment of 50% found above, the Respondent is entitled to recover one-half of that sum, namely Kshs 1,008,504/=, from the Appellant. Determination 52.For the reasons set out above, I find that the trial court's apportionment of 70% liability against the Appellant was not supported by the evidence and cannot stand; that, in the circumstances of a fatal collision that is not in dispute, but as to whose precise mechanics neither party was able to place first-hand, tested evidence before the trial court, the correct approach in law is to apportion liability equally between the Respondent and the Appellant; and that the quantum assessed by the trial court requires correction in the respects set out in part (b) above. The appeal accordingly succeeds in part. 53.Accordingly, I make the following orders:(a)The appeal be and is hereby allowed in part.(b)The judgment and decree of the Chief Magistrate's Court at Mombasa in CMCC No. E310 of 2022, delivered on 17th October 2024, be and is hereby set aside.(c)In substitution therefor, it is hereby ordered that liability for the accident of 17th May 2021 be and is hereby apportioned equally between the Respondent and the Appellant, at 50% each.(d)Damages are assessed in full at Kshs 2,017,008/= (comprising pain and suffering, Kshs 30,000/=; loss of expectation of life, Kshs 100,000/=; loss of dependency, Kshs 1,567,008/=; and special damages, Kshs 320,000/=), of which 50%, being Kshs 1,008,504/=, is hereby decreed in favour of the Respondent against the Appellant.(e)Parties shall bear their respective costs of the appeal but the respondent will have costs in the lower court.(f)Interest shall run on the special damages component from the date of filing suit, and on the general damages component from the date of the judgment in the lower court, in each case at court rates until payment in full.(g)Interest on costs in the lower court shall be at court rates and shall accrue from the date of judgment in the lower court. SIGNED, DATED AND DELIVERED ON 17 JULY 2026NGAAH JAIRUSJUDGE