https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13082

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E153 OF 2025** **BETWEEN** **BENSON MWANGI MACHARIA………………………………………..APPELLANT** **VERSUS** **STEPHEN MATOLO KALOKI &** **ANNA SYOMBUA MUTUKU** **(**Suing as the legal representatives of the **ESTATE of SAMMY KALOKI MATOLO(**Deceased**)………………….RESPONDENT** **JUDGMENT** 1. Vide a Memorandum of Appeal dated 3rd July 2025, the Appellant sought that the Appeal be allowed and that the judgment and decree of the Chief Magistrate’s Court, Hon. P. Wechuli (PM), delivered on 12th June 2025, concerning the findings on liability and quantum, particularly loss of dependency, be set aside in its entirety. 2. The Appellant further prayed that this Court be pleased to dismiss the Respondent’s suit with costs to the Appellant. 3. The Appellant also sought that the Respondent bear the costs of the Appeal. 4. The Appeal is premised principally on the ground that the trial court erred by failing to find that the Respondent had not discharged the evidential burden of proof. 5. The suit before the trial court was commenced by way of a Plaint dated 16th August 2024, through which the Respondent sought judgment against the Appellant for: 1. Special damages in the sum of KShs. 183,790/-; 2. General damages for pain and suffering, loss of dependency, and loss of expectation of life under the Fatal Accidents Act and the Law Reform Act; 3. Costs of the suit; 4. Interest on the foregoing at court rates; and 5. Any other relief that the court may deem fit to grant. 6. It was alleged that the Appellant was the registered owner and was in actual possession and control of motor vehicle registration number KCN 389G, an Isuzu Canter. 7. The Respondent alleged that on 3rd November 2023, the deceased was lawfully riding motor vehicle registration number KMFF 352T, a Honda motorcycle, along the Kithimani-Machakos Road at the Crusher area, when the Appellant and/or his authorised driver and/or authorised agent so carelessly and negligently drove motor vehicle registration number KCN 389G, an Isuzu Canter, that it rammed into the rear of the said motorcycle, thereby occasioning the Respondent fatal injuries. 8. The Appellant denied liability in his Statement of Defence and pleaded contributory negligence in the alternative. 9. PW1, a police officer based at Matuu Police Station, testified that the accident occurred on 3rd November 2023 along the Kithimani-Machakos Road at the Crusher area and involved motor vehicle registration number KCN 389G, an Isuzu Canter, and motorcycle registration number KMFF 352T. 10. PW1 testified that the accident was a head-on collision. 11. The police abstract showed that the matter was still under investigation. 12. On cross-examination, PW1 stated that he had the relevant Occurrence Book extract, but that the relevant page had been torn. The abstract did not show the circumstances of the accident. 13. PW2 stated that he received information that his son had been involved in a road traffic accident. The deceased was rescued and taken to Matuu Level 4 Hospital and later to Machakos Level 5 Hospital, where he succumbed. 14. PW2 testified that the deceased was a boda boda operator who earned KShs. 90,000/- per month or KShs. 3,000/- per day. 15. On cross-examination, PW2 stated that the deceased had carried three people on the motorcycle; he found the motorcycle and the vehicle at the scene. 16. He further stated that the road was a two-way carriageway. 17. PW2 stated that the deceased was not married and had no children. 18. He testified that the deceased used to deposit money into his M-Pesa account, although he did not have an M-Pesa statement to demonstrate the alleged deposits. 19. The Appellant’s driver testified as DW1. He adopted his witness statement as his evidence, wherein he stated that on the material day he was carefully driving motor vehicle registration number KCN 389G along the Kithimani-Machakos Road, heading towards Nairobi. 20. He was accompanied by the owner. DW1 stated that as he ascended a hill at approximately 10 km/h and approached a sharp corner, he encountered a motorcycle ferrying two passengers. 21. According to DW1, the rider was travelling at an extreme speed, lost control because he was unable to navigate the corner, and veered into his lane. 22. DW1 testified that the two passengers fell onto the road and sustained injuries. 23. The police arrived approximately 30 minutes later, found the vehicle and motorcycle at the scene, and assessed the scene. 24. He stated that the rider of the motorcycle was drunk, speeding, overloaded, and riding carelessly. 25. He further stated that the police abstract showed that the motorcycle was on the wrong side. 26. DW1 admitted that he was the person who took the photographs of the scene using his phone. 27. He further admitted that the photographs were not similar since he had taken them from different positions. 28. In determining the issue of liability, the trial court considered, *inter alia,* the authorities of *Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another* (2005) IEA 334 and *Stanley Maira Kagongo v Isaac Kibiru Kahuthia* (2022) eKLR, which expounded the provisions of section 107 of the Evidence Act. 29. The trial court also considered *Hellen Wangari Wangechi v Carumera Muthini Gatwa* (2005) eKLR on the standard of proof in civil cases, where Justice Mativo cited with approval the dictum of Lord Denning in *Miller v Minister of Pensions* (1942) 2 ALL ER 372, as follows: *“The …(standard of proof) …is well settled; it must carry a reasonable degree of probability…if the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not.”* 1. The trial court had before it two police abstracts issued on different dates, one of which indicated that the deceased motorcyclist was to blame for the accident. 2. The two abstracts were issued on different dates. In addition to the police abstract, the Appellant produced photographs of the scene. 3. The trial court found that it was clear from the evidence of PW1 that the vehicle collided with the motorcycle and that PW1 never stated that the motorcycle was to blame. 4. The trial court consequently held that the abstract produced by the Appellant lacked corroboration and validation from the officer who drew it. 5. Concerning the photographs, the trial court held that although they were admissible, they did not indicate the time they were taken. 6. The trial court found that they did not establish whether they had been taken immediately after impact or later, after the scene had been tampered with. 7. The trial court further held that the photographs themselves, without additional evidence, sketch maps or legends, did not explain how the accident occurred. 8. The trial court held that the Respondents had corroborative evidence as to how the accident occurred, whereas the Appellant had adduced evidence that required further corroboration for it to be credible. 9. The trial court consequently found that the Respondent had proved his case on a balance of probabilities. 10. The trial court nevertheless found that there was evidence that the deceased had carried more than one pillion passenger, which fact had been admitted by the Respondent’s own witness, and that the same might have contributed to the accident. 11. The court therefore held the deceased partially liable to the extent of 30% for the accident. 12. On quantum, the trial court awarded KShs. 50,000/- for pain and suffering on the basis that the death certificate showed that the deceased died on the following day. 13. On loss of expectation of life, the court awarded KShs. 100,000/-, being the conventional figure. 14. On loss of dependency, the trial court approximated the deceased’s earnings at KShs. 10,000/- per month as a boda boda rider, applied a multiplier of 38 years since the deceased died at the age of 22 years, and, because he had no wife or children, applied a dependency ratio of 1/3. 15. The trial court awarded special damages of KShs. 183,790/-. 16. The trial court consequently entered judgment in favour of the Respondent for a total sum of KShs. 3,373,790/-, less 30%, resulting in a net total of KShs. 2,361,653/-. 17. The Appellant began his submissions by addressing the preliminary issue concerning the non-inclusion of the decree in the Record of Appeal. 18. The Appellant submitted that failure to attach the decree to the Record of Appeal did not render the Appeal defective or incompetent. 19. It was submitted that the framing of Order 42 Rule 13(4)(f) does not make it mandatory to attach the judgment and decree to the Record of Appeal. 20. On the meaning of a decree in relation to an appeal, the Appellant relied on section 2 of the Civil Procedure Code, which defines a decree as follows: *“decree”..* *provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable, notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.* 1. The Appellant submitted that, in view of the foregoing provision, having attached a certified copy of the impugned judgment, the substance of the findings being appealed was well captured, and failure to attach the decree was neither fatal nor prejudicial to the Respondent. 2. The Appellant further submitted that striking out the Appeal would be draconian in light of the said provision and Article 159 of the Constitution. 3. In support of that position, the Appellant relied on *Quick Shuttle Sacco v Joel & Another* (2026) KEHC 1573 (KLR), which cited, *inter alia*, *Nyota Tissue Products v Charles Wanga & 4 Others* (2020) eKLR and *Dragon Fire Protection Limited v African Highlands Produce Co Ltd* (2023) KEHC 1735 (KLR). 4. The Appellant submitted that in those decisions the courts upheld the position that it would be draconian to strike out a Record of Appeal for failure to include a decree, and that a judgment would serve as a decree by dint of section 2 of the Civil Procedure Act, as well as in light of the Appellant’s right to be heard under Article 50 of the Constitution. 5. The Appellant submitted that the non-inclusion of a decree was therefore not fatal to the Appeal. 6. The Appellant further submitted that the Court should decline to strike out the Appeal. 7. About the documents appearing at pages 29–45 of the Record of Appeal, the Appellant conceded that they had been inadvertently included while compiling the Record of Appeal and stated that they could be expunged. 8. On negligence, the Appellant relied on *China Henan International Co-operation v Brian & 2 Others*, Civil Appeal E099 of 2023, (2025) KEHC 1753 (KLR) (25 February 2025) (Judgment), where, while citing *Nadwa v Kenya Kazi Ltd* (1988) eKLR, the court stated: *“In an action for negligence, the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant.”* 1. The Appellant submitted that the key elements necessary to establish the tort of negligence had not been proved. 2. The Appellant submitted that PW1, PC Ndamberi, confirmed on cross-examination that he was not the investigating officer and that he had not availed or produced the Occurrence Book extract, police file or sketch maps. 3. According to the Appellant, PW1 was in court simply to produce the police abstract, which showed the matter as pending under investigation (PUI). 4. The Appellant submitted that PW1 conceded that his averments that the vehicle collided with the motorcycle were not captured in the abstract produced in court. Further, the OB could not be read because the relevant page had been torn. 5. The Appellant submitted that the Investigating Officer, PC Njoki, in the Appellant’s abstract, had indicated that the “motorcycle was to blame”. 6. The Appellant submitted that Stephen Matolo Kaloki, who testified as PW2, stated on cross-examination that neither he nor his co-plaintiff witnessed the accident. Therefore, PW2 did not see the vehicle being driven carelessly or negligently and did not call any eyewitness to testify in support of the Respondent’s case. 7. The Appellant therefore submitted that PW2 could not substantiate the particulars of negligence levelled against the Appellant’s driver. 8. The Appellant further submitted that PW2 confirmed that there were three people on board the motorcycle, contrary to Rule 25A (2) of the Traffic Rules. 9. DW1, James Mwangi Njoroge, adopted his statement and produced his licence, police abstract and scene photographs. 10. His evidence was that he was travelling uphill at approximately 10 km/h when, upon reaching the scene of the accident, the deceased rider came speeding downhill. 11. The rider was unable to navigate the sharp corner owing to his speed and, as a result, lost control and veered into the vehicle’s lane, where the collision occurred. 12. DW1 testified that he took photographs of the scene immediately and that the police actually blamed the rider for the accident, as indicated in the police abstract dated 6th November 2023. 13. The Appellant relied on *Bwire v Wayo & Sarloki*, Civil Appeal 032 of 2021, (2022) KEHC 7 (KLR), where Mativo J., in allowing the appeal and dismissing the plaintiff’s suit, held: *“31. The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value, and in the absence of further evidence connecting it with what happened at the scene, the court would not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the magistrate could reasonably make a finding that liability had been established on a 100% basis as against the Appellant.”* 1. The Appellant also called to his aid the decision in *Anwaralli and Brothers Ltd. v Joseph Mutura Kamau & Another* (2025) eKLR. 2. The Appellant submitted that, given that the evidence tendered by the Respondent’s witnesses was not direct evidence, it had no probative value insofar as proving the alleged negligence was concerned. 3. The Appellant submitted that the Respondent’s witnesses did not see the Appellant’s driver speeding, driving carelessly, losing control, failing to apply the brakes or otherwise failing to take reasonable care. 4. There was, further, no proof that the vehicle rammed the motorcycle from the rear. 5. The Appellant submitted that the trial court erred in holding that the Appellant ought to have called a police officer to corroborate the findings in his abstract. 6. PW1 had confirmed that the abstract emanated from Matuu Police Station and had been issued by an Investigating Officer, PC Njoki. 7. The Appellant further referred to the photographs produced in evidence and submitted that they demonstrated that the deceased’s motorcycle veered into the Appellant’s lane, while the Appellant had attempted to veer off the road in an effort to avoid the accident. 8. On the award under loss of dependency, the Appellant submitted that the trial court erred in adopting a multiplicand of KShs. 20,000/- without proof of the same. 9. It was submitted that there was no proof of the deceased’s earnings and, consequently, the holding that the deceased was earning KShs. 1,000/- per day was unsubstantiated. 10. The Appellant argued that the trial court ought to have adopted the minimum wage of KShs. 8,109.90 or applied the global sum approach, given the absence of proof of the alleged earnings. 11. In support of that submission, the Appellant relied on *Otieno & Another v Mukanda & Another*, suing as legal representatives of the Estate of Francis Ikeepu (Deceased), (2024) KEHC 5138 (KLR), where the High Court set aside the trial court’s award based on the multiplier approach and substituted it with a global sum of KShs. 1,000,000/- for a deceased boda boda operator who was 23 years old. 12. Ultimately, the Appellant urged this Court to interfere with the trial court’s decision and dismiss the Respondent’s case. 13. In the alternative, and if the Appellant is found liable, the Appellant urged the Court to reduce the quantum to KShs 1,000,000/-. 14. The Respondent, on the other hand, urged the Court not to interfere with the trial court’s findings on either liability or quantum and to dismiss the Appeal. 15. In opposition to the Appeal, the Respondent cited the case of *Selle and Another v Associated Motor Boat Co. Ltd and Others*, where the court held: *“... it is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and having the witnesses. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion”.* 1. The Respondent submitted that the Appellant did not extract and/or attach copies of the decree or order being appealed from as required under section 66 of the Civil Procedure Code. 2. It was submitted that, as provided under the Civil Procedure Act, an appeal to the court can only be against a decree or order, and that no competent appeal can be brought unless such decree or order is formally extracted as the basis of the appeal. 3. The Respondent contended that the Appeal was therefore fatally defective, as was held in *Lucas Olewe Kidi* (2022) eKLR. 4. The Respondent further cited *Bwana Mohammed v Silvano Buko Bonayo & Others* (2021) eKLR, where the court held that if requisite documents are omitted, the appeal is incompetent and that an incompetent appeal divests a court of jurisdiction to consider factual or legal controversies embodied in the relevant issues. 5. The Respondent also objected to the Appellant’s attempt to introduce new evidence at the appellate stage, particularly the documents appearing at pages 29–45 of the Record of Appeal. 6. The Respondent prayed that the said documents be struck out and/or expunged from the record and relied on *Joseph Sumbo & 4 Others v Nyari Investments & 5 Others* (2010) eKLR. 7. On liability, the Respondent submitted that the findings of the trial court were well reasoned and justified. 8. It was submitted that the finding on liability was based on the evidence and ought not to be interfered with. 9. The Respondent further submitted that the trial court’s finding and award on quantum were justified and that there was no cause for this Court to interfere with the same. 10. On the dependency ratio, the Respondent relied on *Jane Chelagat Bor v Andrew Otieno Onduu* (1988–92) 2 KAR 288; (1990–1994) EA 47. 11. The Respondent submitted that the award of KShs. 3,040,000/- under loss of dependency was not excessive, as it was based solely on the evidence on record and decided case law. 12. The Respondent therefore urged the Court not to disturb the award. 13. The Respondent relied on the decision of the Court of Appeal in *Catholic Diocese of Kisumu v Sophia Achieng Tete*, Civil Appeal No. 284 of 2001 (2004) eKLR, which set out the circumstances under which an appellate court may interfere with an award of damages. 14. The Respondent submitted that the trial court correctly considered the circumstances of the case, the evidence on record, the authorities cited, the passage of time and inflation, and that there was no reason to disturb the award. 15. The Respondent consequently urged the Court not to interfere with the decision of the trial court and to dismiss the Appeal. 16. The foregoing constitutes the respective cases advanced by the parties on the issues arising from the judgment of the trial court delivered on 12th June 2025, including the question of the competence of the Appeal, the evidential burden and standard of proof, liability for the accident, the effect of the police abstracts and scene photographs, the issue of contributory negligence, and the assessment of damages under the Fatal Accidents Act and the Law Reform Act. 17. I have considered the record of appeal, the memorandum of appeal, the parties' respective written submissions from which I gleaned the following issues for determination: 18. whether the appeal is incompetent for failure to include the decree in the record of appeal, whether the Respondent discharged the burden of proving negligence against the Appellant to the required standard, whether the trial court erred in assessing and awarding damages for loss of dependency, and whether the quantum of damages should be disturbed. 19. Before delving into the issues, there is the preliminary issue of documents that were included in the record of appeal that ought not to have been. 20. Since the Appellant has conceded to the Respondents objection on the same, and seeing that the documents were not part of the record before the trial court, the same will be expunged and will not be taken into account in determining the present appeal: these are documents found at pages 29-45 of the Record of Appeal. 21. The next issue is the non-inclusion of the decree in the record of appeal. 22. Section 2 of most Acts of Parliament contains an interpretation clause defining how specific words and phrases are to be construed within the Act. Thus, although a word may have a certain ordinary meaning, it may be assigned a particular meaning for that Act. Interpretation clauses therefore serve as an internal aid to statutory interpretation. 23. Section 2 of the Civil Procedure Act, which is one such provision, specifically provides that: *“provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable, notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.”* 1. The Civil Procedure Rules are subsidiary legislation made pursuant to the Civil Procedure Act and are therefore subject to the Act. 2. It therefore follows that, for purposes of an appeal under the Civil Procedure Act, a judgment constitutes a decree. Therefore, where the Appellant has included the judgment in the Record of Appeal, the requirement for inclusion of a decree has, for purposes of the Civil Procedure Act, been satisfied. The issue of non-inclusion of a decree therefore does not arise. 3. In any event, the Court of Appeal in Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata [2017] KECA 353 (KLR) held that omission of a decree from the record was not fatal; the court stated as follows: *…According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court. Consequently, he reasoned, the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record.* *We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon courts to go for substantive justice as opposed to technicalities. Further, holding otherwise would have run counter to the overriding objective as captured in****sections 1A****and****1B****of the Civil Procedure Act. Finally, one would ask what prejudice did the appellant suffer with the omission of the certified copy of the decree in the record of appeal. We do not discern any.* 1. On the issue of negligence, neither Pw1 nor Pw2 witnessed the accident and could therefore not provide direct evidence on how it occurred. 2. PW1 was not the investigating officer; he did not produce the sketch maps, he did not have the police file, and he did not produce the extract of the Occurrence Book. 3. PW1 produced a police abstract that showed the matter was pending investigation. 4. That is the entire evidence upon which the trial court found the Appellant 70% liable for the accident. 5. On the other hand, the Appellant’s driver DW1, who witnessed the accident, testified that the deceased was entirely to blame for causing the accident. His was an eyewitness account and constituted direct evidence. 6. DW1 took photos of the accident, which were duly admitted into evidence as exhibits and corroborated his testimony. 7. DW1, in his testimony, stated that the police arrived at the scene within twenty minutes and assessed the scene. 8. DW1 produced a police abstract that PW1 conceded was issued at his police station. In that police abstract, the witness is listed as PC Njoki, who PW1 confirmed was the investigating officer. In the said police abstract, it is indicated that the deceased was to be blamed for the accident. 9. DW1 testified that he was driving the Canter uphill at approximately 10 km/h when, upon negotiating a bend, the deceased’s motorcycle, which was travelling downhill, collided with his vehicle as he attempted to veer off the road to avoid the collision. 10. It is not in dispute that the deceased had overloaded his motorcycle by carrying excess pillion passengers. 11. On the balance of probabilities, it is more likely that a motorcycle being ridden downhill, carrying an additional passenger, would lose control while negotiating a bend and cross into the wrong lane than that a canter being driven uphill would leave its designated lane. This lends further credence to the Appellant’s testimony. 12. In light of the foregoing, I am persuaded that the trial court made a finding on liability that was against the weight of the evidence and that the Respondents did not prove their case on a balance of probabilities. 13. On the assessment of damages, It is settled law that an appellate court will not interfere with an award of general damages by a trial Court unless:- (a) the trial court acted under a mistake of law; or (b) where the trial court acted in disregard of principles; or (c) where the trial court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial court acted under a misapprehension of facts; or (e) where injustice would result if the appellate court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage 14. There was no evidence establishing the deceased’s actual earnings. Therefore, the trial court estimated his income and proceeded to apply the multiplier approach. 1. The Appellant contends that, in doing so, the trial court fell into an error of principle. 2. I am inclined to agree. In the absence of evidence from which the deceased’s earnings can reasonably and objectively be ascertained, the multiplier approach is inappropriate, as it requires the court to establish the multiplicand on an objective basis. 3. Where, as in the present case, the deceased’s income cannot be reliably determined, the court ought instead to adopt the global sum approach. 4. I would therefore award KShs. 2,000,000 for loss of dependency under the global sum approach. In arriving at that figure, I have had regard to awards made by this Court in comparable cases involving deceased persons of a similar age who were engaged as boda boda operators. In light of all the foregoing, I find that the appeal is merited, and I order as follows; 1. That the appeal succeeds; 2. The judgment and decree of the Chief Magistrate’s Court, Hon. P. Wechuli (PM), delivered on 12th June 2025, in Kithimani PMCC No. E182 of 2024, be and is hereby set aside in its entirety 3. That I substitute it with an order dismissing the suit with costs to the Appellant 4. The Appellant shall have costs of the Appeal. Dated, signed and delivered via Microsoft Teams at Mombasa this 20th day of August 2026 Emmanuel Bitta Judge of the High Court In the Presence of Francis C/A Bore for the Appellant Mwihia for the Respondent