https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10122

Mumbua & another (Suing as the administratix of the Estate of Justus Muasya - Deceased) v Mutunga & another (Civil Appeal E093 of 2025) [2026] KEHC 10122 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10122 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E093 of 2025 RA Oganyo, J July 10, 2026 Between Consolata Mumbua & Cecilia Mutheu Muasya (Suing as the administratix of the Estate of Justus Muasya - Deceased) Appellant and Boniface Musembi Mutunga 1st Respondent Peter Musila 2nd Respondent Judgment 1.This appeal arises out of the judgement of the court in Makindu Senior Principal Magistrate Court Civil Suit No. E233 of 2023 delivered on 6th October, 2025 in which the trial magistrate found the Appellant and Respondents 50:50 liable for a road traffic accident and awarded Kshs. 50,000/= for pain and suffering; Kshs. 100,000/= for loss of expectation of life; Kshs. 1,300,000/= for loss of dependency; and Kshs. 78,782/= as special damages. 2.The Appellant was the Plaintiff in the suit and had sued the Respondent’s for compensation following a fatal road traffic accident that occurred on 25th August, 2021, along Nairobi- Mombasa highway, between the deceased’s motor vehicle registration No. KCK 451P and motor vehicle registration No. KCJ 083V driven by the 1st Respondent and owned by the 2nd Respondent. 3.Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 26th October, 2025 with the following listed grounds;a.That the learned trial Magistrate erred in law and in facts, and misdirected herself when she failed to consider the Plaintiff's submissions on both points of law and facts.b.That the learned trial Magistrate's judgement was unjust against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.c.That the learned trial Magistrate erred in law, fact and misdirected herself when she failed to find the 1st Defendant (100%) liable in view of evidence produced before the trial Court and in particular the following:i.The 1st Defendant had been found guilty of causing death by dangerous driving via Makindu Traffic Case Number E393 of 2021 and fined. (Republic- Vs- Boniface Musembi)ii.The Plaintiff vide evidence presented proved that not only did a fatal accident occur but the same was as a result of negligence on the part of the 1st Defendant.iii.The 2nd Defendant should be vicariously liable as the owner of the motor- vehicle and with the 1st Defendant being his agent, servant and/or employee at the time of the fatal accident.d.That the learned trial Magistrate erred in law, fact and misdirected herself in her assessment of the award on quantum, as hereunder, which was inordinately low and wholly and/or partly erroneous estimate of the loss and damages suffered by the Estate of the deceased.i.Pain and Suffering KShs. 50,000.00ii.Loss of Expectation of life KShs. 100,000.00iii.Loss of Dependency KShs. 1,300,000.00iv.Special Damages KShs. 78,782.00 Net Award KShs.1,528,782.00e.That the learned trial Magistrate erred in law, fact and misdirected herself and applied the wrong principle of law when she awarded under Loss of Expectation of Life without consideration of the submissions made by the Plaintiff's counsel on quantum and evidence adduced before the trial court and in particular the following:i.That the Deceased was a healthy middle-aged man who was a breadwinner to his wife and children aged 30, 11 and 6 respectively.ii.The 1st Defendant had plead and been found guilty of causing death by dangerous driving via Makindu Traffic Case Number E393 of 2021.iii.The Plaintiff vide evidence presented proved that not only did a fatal accident occur but the same was as a result of negligence on the part of the 1st Defendant.f.That the learned trial Magistrate erred in law, fact and misdirected herself for failing to consider the authorities cited by the Plaintiff in their submissions. 4.The Appellant asked the court to find the Respondents 100% liable for the accident, the appeal be allowed and the lower court’s judgement be set aside, the quantum be enhanced and costs be provided for. Appellant’s submissions 5.The Appellants in their written submissions dated 26th May 2026, claim that the trial court's Judgment delivered on 6th October 2025 by Hon. M. W. Kibe in Makindu Civil Suit No. E233 of 2023 was erroneous and against the weight of evidence. They contend that the Learned Magistrate erred in apportioning liability at 50:50 between the deceased and the Defendants despite overwhelming evidence of the 1st Defendant's negligence, failed to properly evaluate the evidence adduced, and awarded quantum that was inordinately low and a wholly erroneous estimate of the loss and damages suffered by the Estate of the deceased. 6.On whether the trial court erred in law and fact in failing to consider the evidence adduced by the Appellants, the Appellants submitted that the Plaintiffs and the Police Officer were unanimous that the accident was caused by the negligence of the 1st Defendant, who had been charged and found guilty of causing death by dangerous driving in Makindu Traffic Case Number E393 of 2021 and fined. They argued that the standard of proof in criminal proceedings is beyond reasonable doubt, and the conviction by the Traffic Court must have been based on evidence that convinced the court of the 1st Defendant's guilt. They contended that the trial court erred in finding that the Plaintiffs had not discharged the burden of proof simply because they were not eye witnesses, yet courts can consider circumstantial evidence where there are no eye witnesses. They further submitted that the Defendants did not call any witness to testify, and the 2nd Defendant's Statement of Defence contained mere denials. To support their position, they relied on various judicial decisions including; Selle v Associated Motor Boat Co. Ltd [1968] EA 123, Janet Kaphiphe Ouma & Another v Maries Stopes International (Kenya) , and Sylvester Ratemo Mochama v Evans Nyakeyo Ogoti and EWO v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR. 7.On whether the damages awarded by the lower court should be enhanced, the Appellants submitted that the trial court erred in the assessment of quantum, noting that the court had stated in paragraph 1 of her judgment that the Appellants were seeking special damages of Kshs. 78,232.00 yet the Plaint showed they had sought Kshs. 109,082.00, and the court did not express itself as to why it rejected costs for the post mortem report. They argued that the damages awarded under Loss of Dependency, Loss of Expectation of Life, and Pain and Suffering were inordinately low given that the deceased was a healthy middle-aged man who was a breadwinner to his wife and young children aged 30, 11 and 6 respectively. They relied on Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another [1957] KLR 27. Respondent’s submissions 8.The 2nd Respondent in his written submissions dated 23rd May 2026, opposes the Appeal and contends that the trial court's Judgment delivered on 6th October 2025 by Hon. M.W. Kibe (SRM) properly evaluated the evidence on record, correctly applied the law, and arrived at a sound and balanced determination which ought not to be disturbed. 9.On whether the learned trial Magistrate erred in apportioning liability at 50:50, the 2nd Respondent submitted that the burden of proving negligence rested upon the Appellants under Sections 107, 108 and 109 of the Evidence Act. He argued that none of the witnesses called by the Appellants witnessed the accident, with PW1 and PW2 merely testifying on the death and dependency and expressly admitting they did not witness the accident. PW3 admitted he was not the Investigating Officer, did not visit the scene, did not prepare the Police Abstract, did not produce sketch maps, scene photographs, motor vehicle inspection reports, or any investigation report, and confirmed the accident was a head-on collision. He submitted that a head-on collision, without more details, does not automatically infer sole negligence on one party, and the Appellants failed to demonstrate the lane each vehicle occupied, speed, evasive action, point of impact, road conditions, or mechanical condition of the vehicles. He further argued that the charge sheet and judgment from the Traffic Case were never formally produced, marked for identification, or admitted as exhibits, and remained mere documents on record with no evidentiary value. To buttress his position, he relied on Farida Kimotho v Ernest Maina [2002] eKLR, Charles Kavai v Bonface Mutunga & Another (2020) eKLR, James Gikonyo Mwangi v D M [2016] eKLR and Karugi & Another v Kabiya & 3 Others [1987] KLR 347. 10.On whether the Honourable Court should interfere with the awards on quantum, the 2nd Respondent submitted that the principles for appellate interference with damages are settled in Arrow Car Ltd v Elijah Shamalla Bimomo (2004) eKLR and Kemfro Africa Ltd v A.M Lubia (1982-88), which require the appellate court to be satisfied that the trial judge took into account irrelevant factors, left out relevant ones, or the award is so inordinately low or high as to be a wholly erroneous estimate. He argued that the Appellants have failed to demonstrate any of these grounds. On Pain and Suffering, he submitted that since the deceased died on the same date of the accident, the award was reasonable and consistent with prevailing jurisprudence. On Loss of Expectation of Life, he submitted the award was fair and in line with conventional awards under the Law Reform Act. On Loss of Dependency, he argued that the Appellants alleged the deceased earned Kshs. 1,000/- daily but produced no documentary proof, and the trial court correctly adopted the global sum approach, which was reasonable. On Special Damages, he submitted that the trial court correctly awarded only items strictly proved by receipts, and the introductory discrepancy regarding the amount did not constitute a substantive error warranting interference, as the court subsequently revisited and analyzed each pleaded item and correctly applied the principle that special damages must be specifically pleaded and strictly proved, relying on Luo Jiyao & Another v Sun Africa Hotels Limited [2019] eKLR. Analysis and determination 11.This is the first appeal. My duty as the 1st appellate court is to re-evaluate and re- examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 12.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that 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.” 13.In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the following issues arising for determination:a.Whether the trial court erred in finding the Respondents and the Deceased 50:50% liable for the accident;b.Whether the award of compensation was correct Whether the trial court erred in finding the Respondents and the Deceased 50:50% liable for the accident 14.It is common ground that the burden of proving negligence lay upon the Appellants, in accordance with sections 107, 108 and 109 of the Evidence Act. The standard of proof in civil cases is on a balance of probabilities. 15.The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 16.The question of liability for the road traffic accident has been and was contested by both parties on appeal and at the trial court. Therefore, I will start by summarizing the witness testimonies before the trial court below as contained in the record of appeal. 17.The record shows that PW1 and PW2 did not witness the accident, and testified only as to the death of the deceased and the dependants he left behind. PW3, No. 112590 PC Edwin Cheruiyot, testified that although he was not the investigating officer and did not visit the scene, he was aware, from the police file, that the 1st Respondent had been charged in Makindu Traffic Case No. E393 of 2021 with causing death by dangerous driving, that he was tried, and that he was convicted and fined Kshs. 20,000/= on each of the two counts. This evidence was not challenged by the 2nd Respondent. During cross-examination by the 2nd Respondent’s Counsel, the only matters put to PW3 were that he was not the investigating officer and had no personal knowledge of the scene or the mechanical inspection of the vehicles. The fact of the conviction itself was never disputed. 18.It is also on record that the police abstract produced before the trial court identifies the insurer of motor vehicle registration number KCJ 083V, Kenya Alliance Insurance Limited, the 2nd Respondent's vehicle, as the party to blame for the accident. This distinguishes the present case from decisions such as Charles Kavai (suing as the Administrator of the Estate of the Late Kevin Kioko Charles) v Bonface Mutunga & Another (2020) eKLR and Farida Kimotho v Ernest Maina [2002] eKLR, cited by the 2nd Respondent, where the abstracts before the court disclosed nothing about the outcome of investigations and could not, without more, found a finding of negligence. 19.I am alive to the fact that the chargesheet and judgment in the traffic case, though listed in the Plaintiffs' further list of documents dated 4th November 2024, were not formally produced, marked for identification or admitted as an exhibit during the hearing. However, I note that the 1st Respondent's conviction and the circumstances of the accident were independently placed before the trial court through the sworn of PW3, a conviction that was not challenged by the Respondents. 20.The 2nd Respondent has also argued that the Appellant did not discharge their burden due to the absence of eye witness testimonies. 21.On the same issue, this court in Mochama v Ogoti (Civil Appeal E083 of 2023) [2025] KEHC 1468 (KLR) (26 February 2025) (Judgment) held that:“Whereas it was submitted for the Appellant that the police officer who testified in court was not an eye witness as to find negligence, I do not think the lower court’s reasoning was based solely on the absence of the eye witness. Even where there is no eyewitness, there must be evidence that will fill the gaps that an eyewitness would have filled. The evidence of the Respondent on what occurred was plausible and not controverted. And again, the court may find the evidence of an eyewitness quite incredible and invaluable. Therefore, even without an eyewitness, negligence could be inferred from the general factors surrounding the case."[Emphasis added] 22.Therefore, I find that the totality of the evidence adduced before the trial court including, the 1st Respondent’s conviction, the testimony of PW3, the abstract which indicates the 2nd Respondent’s motor vehicle as the one to be blamed sufficient to prove liability. In the circumstances, I do not agree with the trial court's finding that it was not possible to determine who was to blame for the accident. 23.I note that the 2nd Respondent raised the absence of the deceased's driving licence as a factor going to contributory negligence. While PW1 stated that the licence was at home but was not produced, I agree with the position, correctly conceded even by the 2nd Respondent in his own submissions, that the absence of a driving licence does not by itself amount to proof of negligence. 24.I accordingly find that the Appellants discharged their burden of proving, on a balance of probabilities, that the accident and the resulting death of Justus Muasya were caused solely by the negligence of the 1st Respondent in the course of his driving of motor vehicle registration number KCJ 083V. I therefore set aside the finding on liability and hold the 1st Respondent 100% liable for the accident. The 2nd Respondent, as the registered owner of the motor vehicle KCJ 083V, is vicariously liable. Whether the award of compensation was correct 25.On quantum, the Court of Appeal pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows:“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.” 26.For the appellate court to interfere with the award, it is not enough to show that the award is high, or had I handled the case in the subordinate court, I would have awarded a different figure. Therefore, where damages are proved to be at large, they must be commensurate with similar injuries. 27.On pain and suffering, the trial court awarded Kshs. 50,000/=, noting that the deceased died on the same day as the accident. This falls within the range of conventional awards for pain and suffering where death is instant or occurs shortly after the accident. I find no basis to disturb this award. 28.On loss of expectation of life, the trial court awarded Kshs. 100,000/=. This is the conventional award recognised in West Kenya Sugar Co. Limited v Philip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR. I find no misdirection warranting interference with this award. 29.On loss of dependency, the Appellants had pleaded that the deceased earned Kshs. 1,000/= per day as a driver, but produced no receipts, bank statements, business permit or pay slip to support this claim. In these circumstances, the trial court was correct to adopt the global sum approach rather than the multiplier approach, in line with Frankline Kimathi Baariu & Another v Philip Akungu Mitu Mborothi (suing as the administrator and personal representative of Antony Mwiti Gakungu, deceased) [2020] Eklr. The deceased was a 37-year-old breadwinner survived by his widow and two minor children aged 11 and 6 years. Taking these circumstances into account, I do not find the sum of Kshs. 1,300,000/= to be inordinately low. 30.On special damages, the trial court awarded Kshs. 78,782 based on specifically pleaded and strictly proved receipts. This award is upheld. Disposition 31.The appeal is allowed. The trial court’s judgment delivered on 6th October 2025 is hereby set aside and substituted with the following orders:a.Liability is apportioned at 100% against the Respondents jointly and severally.b.The appeal on quantum is dismissed. The award of the trial court in the total sum of Kshs. 1,528,782/= is upheld.c.The Appellants are awarded the costs of this appeal and the costs in the trial court.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED THIS 10TH DAY OF JULY, 2026………………….….ROSELINE A. OGANYOJUDGEIn the presence of; -Court Assistant…E, Sana.Counsel for the Appellant…. Mr. MulandiCounsel for the Respondent……N/A