https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12373

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT BUNGOMA** **CIVIL APPEAL NO. E063 OF 2024** **ABDI MOHAMMED HAJI HASSAN BARTE** **T/A TRINITY TRANSPORTERS)…………………………....................... 1st APPELLANT** **MOHAMED ALI NOOR)…………………………………………………..………2ND APPELLANT** **VERSUS** **NANCY WAMBUI MWAI (suing as the legal representative** **of the** **estate of the late CHARLES MWAI MURIITHI)……………..…………1ST RESPONDENT** **RENTCO AFRICA LIMITED…………………………...………………………2ND RESPONDENT** **BRAMWEL SARAI…………………………………………………..…………..3RD RESPONDENT** *(Being an appeal from the judgment and decree of Hon. P. Kulecho, Resident Magistrate, delivered on 12th April, 2024 in Webuye PMCC No. E002 of 2020)* **JUDGMENT** **A. Introduction** 1. This is an appeal against the judgment of the Resident Magistrate's Court at Webuye (Hon. P. Kulecho) delivered on 12th April 2024 in Webuye PMCC No. E002 of 2020. In the impugned Judgment, the trial court apportioned liability for a fatal road traffic accident equally 50:50 between the 1st and 2nd Appellants on the one hand, and the 2nd and 3rd Respondents on the other. The court further awarded the estate of the deceased a total of Kshs. 2,526,332/=, of which each side was ordered to bear Kshs. 1,263,166/=, together with costs and interest. 2. The Appellants filed their Memorandum of Appeal on 25th April, 2024, raising seven grounds, principally raising three composite issues: ***(a) Who is to blame for the accident, and*** ***(b) Whether the damages awarded were excessive and*** ***c) Whether the trial court adequately considered the Appellants' case***. 3. The 1st Respondent and the 2nd and 3rd Respondents (the latter jointly) filed separate written submissions opposing the appeal. 1. By direction of this Court, the appeal was canvassed by way of written submissions, which all parties filed and on which each relied in its entirety. **B. Background** 1. The 1st Respondent, suing as legal representative of the estate of her late husband/relative Charles Mwai Muriithi, instituted the suit before the subordinate court by a plaint dated 23rd September 2020, premised on tortious negligence and claimed for damages under the Law Reform Act and Fatal Accidents Act following the demise of her husband in a road traffic accident. 2. It was the 1st Respondent's case that on or about 22nd April 2019, the deceased was travelling as a passenger aboard motor vehicle registration No. GKB 354T along the Eldoret–Webuye road near the Mabanga area, when motor vehicle registration No. KCH 264N/ZE 3223 (a trailer/tanker unit registered to the 1st Appellant, trading as Trinity Transporters, and driven at the material time by the 2nd Appellant was so negligently, recklessly and carelessly driven that it negotiated a bend and crossed into the lane of motor vehicle GKB 354T, hitting it and flinging it off the road, as a result of which the deceased sustained fatal injuries. 3. The 1st and 2nd Defendants (now 1st and 2nd Appellants) filed a defence dated 30th October 2020 denying liability and pleading, in the alternative, that if the accident occurred as claimed, it was contributed to by the negligence of the owner and/or driver of motor vehicle GKB 354T. That is the 2nd and 3rd Respondents, Rentco Africa Limited, the registered owner, and Bramwel Sarai, the driver). 4. The trial court heard the witnesses of both sides and, on assessing the rival accounts, found that "***the evidence on record was insufficient for purposes of apportioning liability"*** *and that* ***"both parties must have contributed to the suit accident," and accordingly apportioned liability equally, 50:50,*** ***between the two sets of defendants***. The Court went on to assess and award damages under the Law Reform Act and the Fatal Accidents Act, together with special damages, arriving at a total award of Kshs. 2,526,332/=, apportioned equally between the two set of defendants at Kshs. 1,263,166/= each. 5. Aggrieved by the lower court findings, the 1st and 2nd Appellants (owner and driver of the trailer/tanker unit) filed the present appeal, essentially on two fronts: that liability was wrongly apportioned against them, and that the damages awarded were excessive, wrongly computed, and arrived at without due regard to their submissions. 6. From the record, the following facts are not seriously in dispute: 7. A road traffic accident occurred on or about 22nd April 2019 along the Eldoret–Webuye road, near the Mabanga area, involving motor vehicle registration No. GKB 354T, in which the deceased, Charles Mwai Muriithi, was travelling as a passenger, and motor vehicle registration No. KCH 264N/ZE 3223, a trailer/tanker unit. 8. The two vehicles were travelling in opposite directions, GKB 354T from Eldoret towards Webuye, and KCH 264N/ZE 3223 from the Webuye/Malaba direction towards Eldoret. 9. A collision occurred between the two vehicles at or near a bend/bridge on that road, following which GKB 354T left the road, and the deceased sustained fatal injuries from which he died. 10. Neither the 1st Respondent (the widow/administrator) nor PW1 (the investigating police officer) witnessed the accident as it occurred; both gave evidence based on matters other than direct, contemporaneous observation of the moment of impact. 11. The two drivers involved, the 2nd Appellant (driver of KCH 264N/ZE 3223) and the 3rd Respondent (driver of GKB 354T), each blamed the other for the accident. 12. The trial court found the evidence insufficient to isolate a single party as solely responsible, and apportioned liability 50:50. 13. A payslip produced as an exhibit before the trial court (Pexh. No. 10) showed the deceased's net pay as Kshs. 33,891/=. 14. Having considered the record, the grounds of appeal and the rival submissions, the following issues arise for determination: * 1. ***Whether the trial court erred in apportioning liability equally (50:50) between the parties, rather than finding one side, or the other, more culpable.*** 2. ***Whether the damages awarded, and in particular the components under the Fatal Accidents Act (multiplicand and dependency ratio), the Law Reform Act (pain and suffering, loss of expectation of life), and the alleged overlap between the two Acts, were correctly assessed.*** 3. ***What order should issue as to costs?*** 15. The mandate of this court sitting as a first appellate court has been well settled. This being a first appeal, this Court's task is not confined to auditing the trial court's reasoning for error, it is to reconsider the evidence afresh and reach its own conclusions, and while giving due allowance to the fact that it neither saw nor heard the witnesses testify. 16. In the case of ***Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 it was held:*** ***“...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 allowance in this respect.”*** 1. This court is additionally guided by ***Peters v Sunday Post Ltd [1958] EA 424***, in which it was held that an appellate court will not ordinarily interfere with findings of fact based on the credibility of witnesses seen and heard by the trial court, unless it is demonstrated that the trial court failed to take advantage of having seen and heard the witnesses, or that the findings are not supported by the evidence on record. 2. The court is further guided by ***Kenya Ports Authority v Kuston (Kenya) Limited [2009] eKLR,*** which restates the first appellate court's duty to reconsider the evidence, evaluate it afresh, and reach its own independent findings while remaining alive to the fact that it did not have the advantage of observing the demeanor of witnesses. 3. It is against that standard that this court has approached the two substantive issues below. 4. ***Whether the Appellants were liable for the accident and to what extent?*** 5. Two drivers, travelling in opposite directions, each blame the other for a collision that occurred at or near a bend on a narrow stretch of road. The material evidence comprised PW2, a police officer who attended the scene and recorded the OB, whose account is that KCH 264N/ZE 3223 (the trailer/tanker), descending at high speed, occupied the wrong lane, and that upon realising an imminent head-on collision the driver swerved left but that while the cab of the vehicle swerved back into its lane, the trailing tanker portion remained on the wrong lane and struck GKB 354T. 6. DW1, the 2nd Appellant and driver of KCH 264N/ZE 3223, whose account is that he was driving slowly and in his own lane, and that it was GKB 354T that, travelling at high speed, overtook the cab of his vehicle and swerved into the tanker. 7. DW2, the driver of GKB 354T (3rd Respondent), whose account materially corroborates PW2's evidence, is that he was driving lawfully in his lane when he observed the oncoming trailer encroaching on his lane. He attempted to signal the other driver, and was nonetheless struck. 8. On a re-evaluation of this evidence, this court observes that the accounts of PW2 and DW2 are mutually corroborative on materially, namely, that the trailer/tanker unit initially occupied the wrong lane and, even after a corrective swerve, left its trailing section obstructing the lane in which GKB 354T was travelling. Whereas DW1's account, that he remained wholly within his lane throughout, stands uncorroborated by any other witness or by independent evidence such as a sketch plan. The photographic evidence relied upon by the Appellants (DEXH 1a–d), showing the point of impact on the rear/side of the tanker unit, is, if anything, at least as consistent with a glancing strike sustained while the tail of the trailer unit was still encroaching into the opposite lane as it is with the Appellants' theory that GKB 354T swerved across a clear lane to strike a vehicle travelling entirely within its own lane. In the absence of an accident reconstruction expert or an agreed sketch plan, this court is not persuaded that the photographic evidence, standing alone, resolves the conflict in the Appellants' favour. 9. The Appellants make much of the fact that neither the 1st Respondent nor the investigating police officer was an eyewitness to the collision, invoking the principle in cases such as ***Mary Wambui Kabugo v Kenya Service Ltd [1997] eKLR*** that a claimant in a fatal accident matter must ordinarily call an eyewitness. 10. That principle, however, addresses a situation where a claimant has no other evidence, direct or circumstantial capable of establishing negligence. It has no comparable force here, where the court has before it the converging accounts of three witnesses (PW2, DW1 and DW2) describing a coherent and mutually consistent mechanism of the accident, together with photographic evidence of the point of impact. The absence of a witness who saw the collision "with their own eyes" is not fatal where, as here, the totality of the evidence, testimonial and physical permits a court properly to reconstruct, on a balance of probabilities, how the accident is more likely than not to have occurred. 11. The Appellants also place reliance on the fact that the 2nd Appellant was, they say, acquitted in Webuye Traffic Case No. 313 of 2019 under Section 215 of the Criminal Procedure Code, submitting that this ***"clearly proves that the said driver did not cause the accident."*** This court rejects that submission. An acquittal in criminal proceedings, whether on a finding of no case to answer or otherwise establishes only that the prosecution failed to prove guilt to the standard of beyond reasonable doubt. It says nothing, and cannot say anything, about whether the same conduct amounted to negligence on the civil standard of a balance of probabilities, which is a materially lower threshold. 12. This distinction has long been recognised and settled by the Supreme court in ***Munya v Kithinji & 2 others [2014] KESC 38 (KLR***) where the court held that criminal proceedings and civil liability are distinct, an acquittal does not bar civil claims. 13. In ***Karanja v Taphe Guest House (Civil Appeal 196 of 2019) [2026] KECA 372*** the Court of Appeal expressly recognized the independence of civil liability from criminal acquittals by stating: ***“…a disciplinary process and a criminal process are different and independent of each other, and that a conviction or acquittal in the criminal process did not bind the employer in a disciplinary process.”*** 1. I am equally persuaded by the holding of the Learned Judge In ***Akhekabala v Attorney General & Equity Bank (Civil Appeal E416 of 2024) [2026] KEHC 652,*** the Court held: ***“An acquittal, per se, on a criminal case charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecutor.”*** 1. The jurisprudence is clear: an acquittal in criminal or traffic proceedings does not bar civil liability in negligence claims. Civil courts assess liability independently, applying the standard of proof on a balance of probabilities. Compliance with traffic laws or acquittal in traffic offences may shield against criminal sanction but does not automatically exonerate a defendant from civil culpability in running down cases. This court accordingly attaches no weight to the fact, even if established, that the 2nd Appellant was acquitted of a traffic offence, in determining civil liability for negligence. 2. Having re-evaluated the evidence, this court considers that a reasoned case could indeed have been made, on the corroborated weight of the evidence, for apportioning a greater share of blame to the 1st and 2nd Appellants. However, the assessment and apportionment of comparative fault between two drivers, each blaming the other, in a collision where the precise dynamics were not captured by an independent eyewitness, sketch plan, or accident reconstruction report, is quintessentially a discretionary, fact-intensive exercise for the trial court, which had the advantage of hearing all four witnesses testify and assessing their credibility and demeanour. 3. The trial court's conclusion that the evidence, taken as a whole, left genuine ambiguity as to the precise share of fault, warranting an equal apportionment was neither founded on no evidence, nor demonstrably the product of a misapprehension of the evidence, nor the application of a wrong principle of law. This court's own view that the balance may have tilted somewhat against the Appellants does not, without more, meet the high threshold required to disturb a trial court's discretionary apportionment of liability. Grounds 1, 2, 3 and 4 of the Memorandum of Appeal, insofar as they attack the finding on liability, therefore fail, and the 50:50 apportionment is upheld. 4. ***Whether the Quantum of damages were excessive*** 5. It is well settled that an appellate court will not interfere with an award of damages merely because, sitting as a trial court, it might have arrived at a different figure. Interference is warranted only where it is shown that the trial court took into account an irrelevant factor, omitted to take into account a relevant one, applied a wrong principle of law, or arrived at a figure so inordinately high or so inordinately low as to represent a wholly erroneous estimate ***(Kemfro Africa Ltd t/a Meru Express Services v A.M. Lubia and Olive Lubia [1985] eKLR; Mbogo & Another v Shah [1968] EA 93, both cited by counsel)***. 6. This court also takes guidance from ***Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR,*** in which the Court of Appeal reaffirmed that an appellate court will only disturb a trial court's assessment of damages where the award is shown to be manifestly excessive or manifestly inadequate in light of the evidence and comparable awards, and cautioned against treating a mere difference of opinion on quantum as a ground for interference. 7. It is trite, and both counsel are agreed, that this court will not disturb an award of damages merely because it might, sitting at first instance, have arrived at a different figure. Interference is warranted only where the trial court proceeded on a wrong principle, took into account an irrelevant matter, omitted a relevant one, or arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. 8. Turning on the award under Pain and suffering. The trial court awarded Kshs. 50,000/=. The Appellants submit that this was inordinately high because the deceased ***"died on the spot,"*** relying on ***Elizabeth Chelagat Tanui & Another v Arthur Mwangi Kanyua (2013) eKLR***. This court notes, however, that the Appellants' own written submissions do not point to any part of the record such as a post-mortem report or witness testimony establishing that death was in fact instantaneous; the assertion appears to rest on submission alone. A bare assertion in written submissions, unanchored to the evidential record, cannot found interference with a trial court's assessment. This court therefore declines to disturb the award of Kshs. 50,000/=, which in any event falls within the range recognized in Kenyan practice for this head of damage. 9. Turning on the award under Loss of expectation of life. The trial court awarded the conventional sum of Kshs. 100,000/=. The Appellants argue that, the deceased having been 54 years old, the award should be reduced to Kshs. 30,000/= to reflect the "vagaries of life," relying on ***Leonard O. Ekisa & Another v Major K. Birech (2002) eKLR.*** This court rejects that argument as resting on a misconception of the nature of this head of damage. 10. On the award for loss of expectation of life, the guiding principle in Kenya is that the sum awarded should be modest and conventional, not dependent on the age, prospects, or happiness of the deceased. This position has been consistently upheld by Kenyan courts. ***In Kenya Breweries Limited v Saro [1991] KLR 408,*** the Court of Appeal stated: ***“The award for loss of expectation of life is a conventional sum. It is not dependent on the age of the deceased or the length of time he was expected to live. The purpose is to compensate the estate for the loss of life itself.”*** 1. Similarly, in ***Otieno v Ougo [1986] KLR 403***, the court emphasized that the award is not individualized but fixed to avoid speculative valuation of life. The principle was reaffirmed in ***Benedict Ayieko v Kenya Bus Services Ltd [2000] eKLR,*** where the Court held: ***“The conventional award for loss of expectation of life is not to be varied depending on the age or circumstances of the deceased. It is a fixed sum meant to recognize the value of life lost.”*** 1. Guided by these authorities, this court finds that the award for loss of expectation of life should remain at the conventional figure recognized in Kenyan jurisprudence. To reduce the award because the deceased was 54 rather than, say, 24, would be to reintroduce precisely the individualized inquiry that the conventional-sum approach was designed to avoid. The award of Kshs. 100,000/= is upheld. 2. Turning on the Multiplicand. The trial court is recorded as having applied a multiplicand of Kshs. 62,827/= in computing loss of dependency. The Appellants point out, and this court's own review of the figures confirms, that this figure appears nowhere supported by the documentary evidence. Rather, the payslip produced as Pexh. No. 10, evidence not shown to have been challenged or disputed by any Respondent, and not addressed at all in either the 1st Respondent's or the 2nd and 3rd Respondents' written submissions records the deceased's net pay as Kshs. 33,891/=. 3. It is a well-established principle in the assessment of dependency claims that the multiplicand should ordinarily reflect the deceased's proven net earnings, since it is net, disposable income, not gross or unexplained figures unconnected to the evidence that in the ordinary course sustains dependants. No explanation appears on the record, nor was one advanced in submissions by any Respondent, for the trial court's departure from the only earnings evidence before it. 4. This court finds that the use of Kshs. 62,827/= as the multiplicand was not grounded in the evidence and was, to that extent, an error correctly identified by the Appellants. This ground of appeal succeeds, and the multiplicand is corrected to Kshs. 33,891/=, being the deceased's proven net monthly pay. 5. The Appellants further urge that the dependency ratio of 1/2 applied by the trial court should be reduced to 1/3, on the basis that all the deceased's surviving dependants were adults and, in their submission, "none was still dependent on the deceased." This court is not persuaded. The record does not disclose who the identified dependants were (for instance, whether a surviving spouse is among them), and adulthood alone is not a legal bar to dependency. A surviving adult spouse, for example, remains a paradigm dependant for purposes of the Fatal Accidents Act regardless of age. 6. In the absence of any evidence identifying the dependants as persons who did not, in fact, rely on the deceased's income, this court declines to disturb the dependency ratio of 1/2, which was a matter squarely within the trial court's discretion on the evidence before it. Unlike the multiplicand, which was contradicted by an uncontested documentary exhibit, the dependency ratio challenge is not grounded in any specific evidential deficiency demonstrated on this record. 7. The Appellants submit, relying on Hellen Waruguru Waweru v Kiarie Shoe Store Limited (2015) eKLR, that because the beneficiaries under both the Law Reform Act and the Fatal Accidents Act awards are ultimately the same family, the Law Reform Act award ought to have been deducted from, rather than added to, the Fatal Accidents Act award. Counsel argued that the same was a double compensation under the Law Reform Act and Fatal Accidents Act. 8. This court declines to adopt that approach here. The two awards compensate analytically distinct losses, the Law Reform Act preserves a cause of action that vested in the deceased himself immediately before death (his own pain, suffering, and lost expectation of life) for the benefit of his estate, while the Fatal Accidents Act creates an independent statutory cause of action in favour of dependants for the prospective loss of financial support they would otherwise have continued to receive. 9. The Law Reform Act itself contemplates that the estate's cause of action subsists in addition to, and not in derogation of, any claim available to dependants under the Fatal Accidents Act. That the same individuals may ultimately benefit under both heads, because they are both the deceased's estate beneficiaries and his dependants, does not, without more, transform two conceptually distinct awards into impermissible double compensation. This court does not find the aggregate award, once corrected as set out below, to be so disproportionate as to warrant any further deduction on this account. This ground fails. 10. The award of Kshs. 114,560/= as special damages was not specifically challenged in the Appellants' submissions beyond the general assertion that the total award was "not consistent with the injuries sustained." No particular item of special damages was shown to be unproved or improperly pleaded. This court upholds the award of Kshs. 114,560/=. 11. In conclusion and having found the multiplicand used by the trail court as erroneous. I proceed to recalculate and apply the corrected multiplicand of Kshs. 33,891/= whilst maintaining the dependency ratio of 1/2 and the multiplier applied by the trial court (which, on this court's own computation, was 6 years, and which was not itself challenged by either party), loss of dependency is recalculated as follows: Kshs. 33,891 × 12 × 6 × ½ = Kshs. 1,220,076/= 12. The revised award accordingly stands as follows: Pain and suffering - Kshs. 50,000/= Loss of expectation of life Kshs. 100,000/= Loss of dependency Kshs. 1,220,076/= Special damages Kshs. 114,560/= **Total Kshs. 1,484,636/=** 1. The revised total award is Kshs. 1,484,636/=, apportioned equally in line with the upheld 50:50 liability finding, such that each side bears Kshs. 742,318/=, together with costs of the suit and interest at court rates as ordered by the trial court. 2. The appeal has succeeded only in part. The Appellants have failed on the substantially more significant issue of liability and on most heads of quantum, but have succeeded on the discrete and evidentially well-founded point concerning the multiplicand. In these circumstances of divided success, this court considers it fair that each party bear its own costs of this appeal. DISPOSITION 1. For the reasons set out above, the court makes the following orders: * + - 1. **The appeal is allowed in part.** 2. **The finding of the trial court apportioning liability 50:50 between the 1st and 2nd Appellants on the one hand and the 2nd and 3rd Respondents on the other is upheld.** 3. **The award for loss of dependency is set aside and substituted with an award of Kshs. 1,220,076/=, computed on a corrected multiplicand of Kshs. 33,891/=, the dependency ratio of ½ and the multiplier of 6 years being undisturbed.** 4. **The awards for pain and suffering (Kshs. 50,000/=), loss of expectation of life (Kshs. 100,000/=), and special damages (Kshs. 114,560/=) are upheld.** 5. **The total award is accordingly reduced to Kshs. 1,484,636/=, to be borne equally, at Kshs. 742,318/= each, by (i) the 1st and 2nd Appellants jointly, and (ii) the 2nd and 3rd Respondents jointly, together with costs of the suit and interest at court rates as ordered by the trial court.** 6. **Each party shall bear its own costs of this appeal.** It is so ordered. **DATED, SIGNED AND DELIVERED AT BUNGOMA** **THIS 30th DAY OF July 2026.** **M. SHARIIF** **JUDGE**