https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13103

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL No. E091 of 2025** **DK RONO, J** **23 JUNE 2026** **BETWEEN** **CHRIS MUNYWOKI MUTUA.........................................APPELLANT** **AND** **JUDITH MWIKALI PETER......................................1st RESPONDENT** **STEPHEN KYALO MUTUA.....................................2nd RESPONDENT** *(Being an appeal from judgement of the Jepkoskei Elizabeth Kemei Resident Magistrate in Makueni Cmcc No. E116 of 2023 delivered on 8 October 2024)* **JUDGMENT** **Background** 1. This appeal arises from the judgment and decree of the Chief Magistrate’s Court at Makueni in CMCC No. E116 of 2023 delivered on 8 October 2024 wherein the learned trial magistrate entered judgment in favour of the Respondents in a fatal accident claim brought under the provisions of the Fatal Accidents Act, Cap 32 Laws of Kenya and the Law Reform Act, Cap 26 Laws of Kenya. 2. The Respondents, suing as the legal administrators of the estate of the deceased, Nicodemus Mutyota Francis, sought damages arising from a road traffic accident that occurred on 17th April 2022 involving motor vehicle registration number KCR 855F allegedly owned and/or driven by the Appellant, his servant and/or agent. 3. The Respondents case was that that the deceased was a lawful rider riding Motor Cycle Registration No. KMCX 296 B along Makueni-Makindu road when while at Mbuvo area motor vehicle registration number KCR 855F was negligently driven that it knocked motor cycle registration number KMCX 296 B and as a result the deceased sustained fatal injuries. 4. Upon hearing the matter, the learned trial magistrate found the Appellant substantially liable for the occurrence of the accident and apportioned liability at 80:20 in favour of the Respondents as against the Appellant. The court thereafter awarded damages under various heads including pain and suffering, loss of expectation of life, loss of dependency and special damages. 5. Dissatisfied with the entirety of the said judgment, the Appellant preferred the present appeal challenging both the finding on liability and the quantum of damages awarded. 6. The Appellants in the memorandum of appeal dated 28 February 2025 appealed against the whole judgement delivered on 8October 2024 rendered in Makueni Cmcc No. E116 of 2023 on the following grounds: 7. That the learned trial magistrate gravely erred in law by apportioning liability in the ratio of 80:20 in favour of the plaintiff ad against the Defendant; 8. That the learned trial magistrate erred in law in awarding General damages that were inordinately very high; 9. That the learned trial magistrate gravely erred in law in finding that the plaintiff was entitled to damages of Kshs 4 302 900; 10. That the learned trial magistrate gravely erred in law by finding that the plaintiff is entitled to general damages for loss of dependency of Kshs. 4 101 900; 11. That the learned trial magistrate gravely misdirected himself in law in failing to consider and analyze the Appellants submissions. 12. Arising from the grounds of appeal set out above the Appellants prayed that the appeal be allowed in its entirety. 13. Before delving into the merits of the appeal, it is necessary to restate the mandate of this Court as a first appellate court. In the celebrated case of *Selle v Associated Motor Boat Co. Ltd,*[1968] E.A. 123the Court of Appeal held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 14. This principle was reiterated in *Peters v Sunday Post Ltd*[1958] E.A. 424 and more recently in *William Diamonds Ltd v Brown*[1970] E.A. 1 where the Court of Appeal emphasized that an appellate court is not bound by the trial court's findings if they are unsupported by the evidence or based on a misapprehension thereof. The court must therefore independently interrogate the evidence on liability, dependency, earnings, and the quantum awarded. **Issues for Determination** 1. Having carefully considered the Memorandum of Appeal, the Record of Appeal, the rival written submissions and the applicable law, the following issues arise for determination: 2. Whether the learned trial magistrate erred in apportioning liability at 80:20 against the Appellant. 3. Whether the learned trial magistrate erred in the assessment of damages, particularly under the head of loss of dependency. 4. Whether the trial court failed to consider the Appellant’s submissions and authorities. 5. I will now proceed to make determination with respect to the issues identified above **Whether the learned trial magistrate erred in apportioning liability at 80:20 against the Appellant.** 1. The 1st Respondent, **Judith Mwikali Peter** testified as PW3 and adopted her witness statement dated 2 November 2023. She testified that the deceased was her husband, aged 38 years, and that they had three children two of whom were school-going who depended entirely on him for upkeep and maintenance. She further testified that the deceased worked as a salesman earning approximately Kshs 31 075 monthly which income he utilized in maintaining his family. 2. From the evidence its evident that the 1st Respondent did not witness the occurrence of the accident she stated: *‘That fateful day, I received a call from a stranger who informed me that my husband had been involved in a road traffic accident …I proceeded to Makueni funeral home where his body had been taken for preservation.’* 1. The Respondents further called an eyewitness witnessone **Justin Matata Kitonga** who stated in his evidence that: *‘On the material day I was riding a motor cycle from Mbuvo heading to Wote general direction. It was when while along Makueni-Makindu road and keeping to my extreme left side of the lane when motor vehicle registration number KCR 855F overtook at such a high speed that it knocked down a rider who had a pillion passenger occasioning them severe bodily injury.’* 1. A police officer one **Elkanah Angwenyi** from Makueni Police station testified regarding the occurrence of the accident and produced a police abstract in support of the Respondents’ claim. 2. The Appellant contended that the Respondents failed to discharge the burden of proof required under s 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya. 3. Section 107(1) of the Evidence Act provides: *‘Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’* 1. The Appellant submitted that the evidence tendered before the trial court did not conclusively establish negligence on his part and that the police evidence was inconclusive. It was further argued that in the absence of clear evidence demonstrating how the accident occurred, liability ought to have been apportioned equally. 2. The Appellant relied on the decision in *Omar Farah v Lento Agencies*[2006] KECA 388 (KLR)where the Court of Appeal held that where evidence leaves the court in doubt as to who between two drivers was to blame, liability may be apportioned equally in its rebuttal the Respondent was of the view that their evidence remained uncontroverted because the Appellant failed to call any witness or tender any evidence in support of the defence. 3. I have reviewed and re-evaluated the evidence on record in totality especially the evidence of **Justin Matata Kitonga** who was an eye witness and I’m of the considered view that his evidence as to the occurrence of the accident was not controverted in cross examination nor by providing an alternative version of events as to how the accident occurred, the Learned magistrate was therefore correct in finding that the Appellant was substantially responsible for the occurrence of the accident. 4. The legal consequence of failure by a party to adduce evidence was considered in *Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu*[2012] KEHC 3881 (KLR)where Odunga J observed that where a party fails to call evidence in support of its pleadings, such pleadings remain mere allegations. A similar position was adopted in *Janet Kaphiphe Ouma & Another v. Marie Stopes International (Kenya)* HCCC No. 68 of 2007where the court held that where the defendant fails to adduce evidence, the plaintiff’s evidence remains uncontroverted. 5. Having perused and re-evaluated the evidence in totality this court has not found any evidence on record to suggest the contribution by the deceased to the occurrence of the accident and in the absence of such evidence. I find and hold that the learned trial magistrate erred in arriving at a decision that is not supported by facts and evidence, but since the respondents did not cross – appeal on liability I shall not disturb the finding of the trial court on liability. Consequently, the apportionment of liability in the ratio 80:20 in favour of the Respondents is upheld. **Whether the learned trial magistrate erred in the assessment of damages, particularly under the head of loss of dependency.** 1. The law regarding interference with awards of damages by an appellate court is well settled. In *Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another*(No 2) [1985] KECA 137 (KLR)the Court of Appeal held that interference is only justified where the trial court took into account irrelevant factors, failed to consider relevant factors, or where the award is so inordinately high or low as to amount to an erroneous estimate. 2. Similarly, in *Butt v Khan*[1978] KECA 24 (KLR)the court held that an appellate court should not disturb an award of damages unless it is based on entirely wrong principles. **Loss of dependency** 1. The principal challenge by the Appellant related to the award under loss of dependency. The learned trial magistrate noted that although the Respondents alleged that the deceased was earning Kshs 31 075 per month and was running a business on the side making about Kshs 150 000 per month the Respondents produced a pay slip from Afro Drip Limited indicating net pay to be Kshs 31 075, the Respondents were unable to proof earning from the on the side business venture. The court in the absence of proof of earning from the other ventures proceeded to base the deceased’s earning on the pay slip produced and therefore adopted a multiplicand of Kshs 31 075 and dependency ratio of ½ and multiplier of 22 years. 2. This court has re-evaluated the evidence on record and has confirmed that indeed the deceased was earning a salary of Kshs 31 075 per month as indicated in the paslips produced, he was 38 years of age as indicated in the death certicate and in the witness statement filed by Judith Mwikali Peter;the deceased had three children, two of whom were school going . I do not find any reason to upset the decision reached by the trial magistrate with respect to this head noting that the multiplicand was based on the earnings of the deceased. 3. Taking into account that the deceased was aged 38 years old, this Court finds that a multiplier of 22 years adopted by the trial court to be reasonable and shall not disturb the finding. The dependency ratio of 1/2 was proper given that the deceased was married with children. 4. Consequently, the award under loss of dependency is affirmed at Kshs. 4 101 900. **Pain and Suffering and Loss of Expectation of Life** 1. The trial court awarded Kshs 100 000 for pain and suffering and Kshs 100 000 for loss of expectation of life. These awards fall within the range ordinarily awarded by courts in comparable fatal accident claims and cannot be said to be excessive or founded on wrong principles. This Court therefore finds no basis for interfering with the same. **Special damages** 1. The Appellant further challenged the award of special damages contending that the same were not strictly proved. The law on special damages is settled. In *Hahn v Singh* [1985] KECA 129 (KLR) the court held that special damages must not only be specifically pleaded but must also be strictly proved. 2. Upon reviewing the record, this court is satisfied that the Respondents produced receipts and documentary evidence in support of the pleaded special damages. The Appellant did not sufficiently demonstrate that the trial court admitted inadmissible receipts or awarded amounts not supported by evidence. Consequently, this court finds no justification for interfering with the award on special damages. **Whether the trial court failed to consider the Appellant’s submissions** 1. The Appellant further contended that the learned trial magistrate failed to adequately consider the Appellant’s written submissions and authorities. While courts are under a duty to consider parties’ submissions, a court is not obligated to reproduce every argument advanced before it. 1. What is required is that the judgment demonstrates that the court considered the evidence, identified the issues and reached a reasoned determination. Having perused the impugned judgment, this court is satisfied that the learned trial magistrate properly analyzed the issues before the court and rendered a reasoned judgment. The mere fact that the trial court did not specifically mention every authority cited by the Appellant does not necessarily imply that the same were ignored. **DISPOSITION** 1. The trial court’s Judgment on liability in the ratio of 80 percent:20 percent in favour of the Respondent is upheld, the Appeal is therefore dismissed with costs to the Respondents In the end, the final award shall be as follows: - **Liability** 80:20 percent in favour of the Respondent **Damages** 1. Pain and Suffering Kshs 100 000 2. Loss of Expectation of life Kshs 100 000 3. Lost Dependency Kshs 4 101 900 **Less 20 percent** 1. Special Damages Kshs 86 150 **Total Award - Kshs. Kshs 3 527 670** 1. For avoidance of doubt, the special damages shall attract interest from the date of filing the suit. General damages shall attract interest at court rates from the date of Judgment in the lower court. Costs of the lower court shall be borne by the Appellant. The Respondents shall have the costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT MAKUENI THIS 29th DAY OF JUNE 2026. D K Rono Judge