Ngunga v Wanjala & another (Suing as the Legal Representatives of the Estate of Brivern Sichangi Makanga - Deceased) (Civil Appeal E261 of 2025) [2026] KEHC 9933 (KLR) (17 June 2026) (Judgment)

Ngunga v Wanjala & another (Suing as the Legal Representatives of the Estate of Brivern Sichangi Makanga - Deceased) (Civil Appeal E261 of 2025) [2026] KEHC 9933 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 9933 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E261 of 2025 WM Kagendo., J June 17, 2026 Between Daniel Nzina Ngunga Appellant and Elizabeth Nekesa Wanjala 1st Respondent Peter Simiyu Makanga 2nd Respondent Suing as the Legal Representatives of the Estate of Brivern Sichangi Makanga - Deceased (Being an Appeal from the Judgment and Decree of Hon. Lewis K. Gatheru (PM), Mombasa Chief Magistrate's Court, Civil Case No. E461 of 2024, delivered on 11th August 2025) Judgment A. Introduction 1.This is a first appeal by Daniel Nzina Ngunga (the Appellant) arising from the judgment of the Chief Magistrate's Court at Mombasa (Hon. Lewis K. Gatheru, PM) in Civil Case No. E461 of 2024, delivered on 11th August 2025. The trial court found the Appellant 100% liable for a road traffic accident that occurred on 23rd December 2023 along Nyali Links Road, Mombasa, in which Brivern Sichangi Makanga (the Deceased) sustained fatal injuries. The court awarded the Respondents - who sue as the legal representatives of the Deceased's estate - a total sum of Kshs. 1,823,255/= in damages under the Law Reform Act (Cap. 26, Laws of Kenya) and the Fatal Accidents Act (Cap. 32, Laws of Kenya). 2.The Appellant is aggrieved by both the finding on liability and the quantum of damages awarded. He has filed this appeal raising nine grounds, which the Court has consolidated into two broad issues: first, whether the trial court erred in holding him liable; and second, whether the quantum of damages awarded was excessive and not in accordance with established legal principles. 3.The Respondents, represented by Shariff Ramadhan & Company Advocates, oppose the appeal in its entirety and urge this Court to affirm the judgment of the trial court. B. Background 4.On 23rd December 2023, the Deceased, Brivern Sichangi Makanga, was riding his motorcycle (Registration No. KMFP 149Q) along Nyali Links Road, Mombasa, travelling from Premier towards Shauri Moyo. Upon reaching an area near Wild Waters, motor vehicle registration number. KCB 727A - driven by one Ian Nzisa, an authorised agent or servant of the Appellant - allegedly overtook negligently, lost control, veered off the road, and violently struck the Deceased's motorcycle. The Deceased sustained fatal injuries and died while receiving treatment at Coast General Hospital. 5.The Respondents - the widow and father of the Deceased, respectively - were issued a Limited Grant of Administration ad Litem and thereafter filed suit in the Chief Magistrate's Court at Mombasa. The Appellant, through his advocates, Jengo Associates, denied liability and required the Respondents to prove the same strictly. 6.At the trial, the Respondents called three witnesses. PW1 (Elizabeth Nekesa Wanjala, the widow) and PW2 (Peter Simiyu Makanga, the father of the Deceased) gave evidence on the Deceased's background, family circumstances, and dependency. Neither witnessed the accident. PW3 (Corporal Richard Cheruyiot of the Kenya Police) testified as the investigating officer. He arrived at the scene after the accident, recorded statements, and noted that the driver of KCB 727A had fled. He produced the Police Abstract. The Appellant called no witnesses. 7.The trial court found that the Respondents' evidence was unrebutted, held the Appellant 100% liable, and awarded damages as follows: special damages of Kshs. 552,455/=; pain and suffering of Kshs. 70,000/=; loss of expectation of life of Kshs. 200,000/=; and loss of dependency of Kshs. 2,754,858/=. C. Issues For Determination 8.Having considered the grounds of appeal and the submissions of both parties, the Court identifies the following issues for determination:a.Whether the trial court erred in finding the Appellant liable for the accident on a balance of probabilities; andb.Whether the quantum of damages awarded - specifically for pain and suffering, loss of expectation of life, loss of dependency, and special damages - was justified by the evidence and consistent with applicable legal principles. D. Analysis And Determination The Duty of This Court on First Appeal 9.Being a first appellate court, this Court is duty-bound to re-examine and re-evaluate the evidence before the trial court and arrive at its own independent conclusions, while bearing in mind that, unlike the trial court, it did not have the benefit of seeing and hearing the witnesses testify. This principle is firmly established in the celebrated decision of the former Court of Appeal for East Africa in Mbogo & Another v Shah [1968] EA 93, which has been consistently applied in this jurisdiction. In that case, the Court held that an appellate court, while obliged to re-evaluate evidence, should not interfere with the findings of fact of the trial court unless it is satisfied that the trial court either misdirected itself in some material respect, or arrived at a plainly wrong decision, or unless it is manifest from the record as a whole that the decision was the result of a misapprehension of evidence leading to injustice. This Court proceeds on those principles. Issue One: Liability 10.The Appellant's case on liability rests on three principal complaints: first, that none of the Respondents' witnesses was an eyewitness to the accident; second, that there were material contradictions between the pleadings and the testimony of PW3; and third, that the investigating officer's failure to produce a sketch map, police file, or vehicle inspection report rendered the evidence insufficient to sustain a finding of negligence. 11.In advancing these arguments, the Appellant places heavy reliance on the decision in Wayo & another v Bwire (Civil Appeal E033 of 2022) [2025] KECA 866 (KLR) (Murgor, Laibuta & Ngenye-Macharia JJA, 7 March 2025), a judgment of the Court of Appeal at Mombasa. In that case, the Court of Appeal upheld the judgment of the High Court at Voi (Mativo, J.) in Civil Appeal 032 of 2021 [2022] KEHC 7 (KLR) (24 January 2022), which had reversed a magistrate's finding of liability on the basis that the plaintiffs' case rested entirely on the testimony of a police officer who arrived at the scene after the accident and did not produce a sketch map, and on a family member who did not know how the accident occurred. The Court of Appeal affirmed that this evidence was insufficient to establish negligence on a balance of probabilities. The Appellant contends that the present case is materially identical and ought to yield the same outcome. 12.This Court has carefully studied Wayo v Bwire and notes its direct factual parallels with the present matter. It is a binding precedent of the Court of Appeal which this Court must respect. However, the applicability of a precedent turns on the specific facts of each case. The question is whether, on the evidence before the trial court in the present matter, the same conclusion of insufficiency must be reached. 13.In Wayo v Bwire, the evidence presented by the plaintiffs consisted of: a police officer who was not an eyewitness, who had investigated the scene after the event, and who did not produce a sketch map; and a son of the deceased who had no firsthand account of the accident. In the present case, PW3 testified specifically that:(a)KCB 727A was on Nyali Links Road at the material time;(b)the driver of that vehicle attempted to overtake in circumstances where it was unsafe to do so;(c)as a result, the motorcycle bearing the Deceased was struck; and (d) the driver of KCB 727A thereafter fled the scene without stopping to render assistance. These particulars are more specific than the evidence in Wayo v Bwire. Critically, they were not challenged by the Appellant, who elected to call no witnesses and to offer no competing account of the accident. 14.The Court turns to the alleged contradiction between the pleadings and PW3's evidence. The plaint averred that the Appellant's vehicle lost control and veered off the road while overtaking, whereas PW3 testified that the vehicle hit the motorcycle from behind while both were travelling in the same direction. The Appellant argues this is a fatal discrepancy that undermines the entire case for the Respondents. 15.The Court is not persuaded that this variation is fatal. Both accounts converge on the same operative allegation: the driver of KCB 727A overtook in circumstances that were unsafe, failed to maintain a proper lookout, and thereby caused a collision with the Deceased's motorcycle. Whether the impact was the result of loss of control followed by veering, or of a rear-end collision during an unsafe overtaking manoeuvre, the core negligence alleged is common to both versions. The inconsistency goes, at most, to the weight of the evidence and may properly be attributed to the imprecision of observation common to post-accident police reporting. It does not destroy the Respondents' case. 16.The Court next addresses the absence of a sketch map and police file. It is trite that a police abstract is not proof of negligence; it is evidence only that an accident was reported. See: Wangongu v Kithinji & 2 others (Civil Appeal 293 of 2023) [2024] KEHC 6272 (KLR) (6 June 2024), citing Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] eKLR. Negligence must be independently established through evidence demonstrating:(a)a duty of care;(b)breach of that duty;(c)causation; and(d)resulting damage. 17.In the present case, each of these elements is addressed by the Respondents' evidence:(a)Every driver on a public road owes a duty of care to other road users - this is not disputed.(b)Breach is established by PW3's testimony that the driver of KCB 727A overtook in circumstances that were unsafe and caused a collision with the Deceased's motorcycle; the driver's subsequent flight from the scene reinforces this.(c)Causation is demonstrated by the Death Certificate and Post Mortem Report, both produced and admitted in evidence, confirming that the Deceased died from injuries sustained in the accident.(d)The damage - the death of the Deceased and the losses consequent thereon - is manifest. 18.The Court also takes note of the Appellant's complete failure to call any witnesses, and in particular his failure to call the driver of KCB 727A. The driver was the one person who possessed direct personal knowledge of the circumstances of the accident. In civil proceedings, where a party fails to call a material witness who could have addressed a contested issue, and no explanation is offered for that omission, the court is entitled to draw an adverse inference that the missing evidence would not have assisted that party's case: see Bukenya v Uganda [1972] EA 549; Motex Knitwear Mills Limited v Gopitex Knitwear Mills Limited [2009] eKLR. This principle does not shift the legal burden of proof, which remains with the Respondents throughout, but it is a legitimate consideration in the overall evaluation of the evidence. The Appellant's failure to produce the driver, without explanation, lends further weight to the Respondents' account. 19.Having re-evaluated the evidence as a whole, this Court is satisfied that the Respondents established the Appellant's negligence on a balance of probabilities.The trial court's finding of liability at 100% is upheld. The first issue is determined against the Appellant. Issue Two: Quantum of Damages 20.The Court will now consider the award under each head of damage. An appellate court will not disturb an award of damages unless it is satisfied that the trial court applied wrong principles of law, took into account irrelevant considerations, failed to take into account relevant ones, or arrived at an award so inordinately high or low as to be plainly wrong: Mbogo & Another v Shah [1968] EA 93; Butt v Khan [1977] 1 KAR 1. Pain and Suffering (Law Reform Act, Cap. 26) 21.The trial court awarded Kshs. 70,000/= for pain and suffering. The undisputed evidence was that the Deceased survived for approximately one hour and ten minutes after the accident before succumbing to his injuries. The Respondents urge that the award should be higher. The Appellant does not meaningfully address this head in his submissions. This Court is satisfied that Kshs. 70,000/= for the pain and suffering endured in approximately seventy minutes before death is a proportionate and reasonable award. It is upheld. Loss of Expectation of Life (Law Reform Act, Cap. 26) 22.The trial court awarded Kshs. 200,000/= for loss of expectation of life, apparently having regard to the fact that the Deceased was 35 years old with a young family. The Appellant submits that the conventional award is Kshs. 100,000/=. 23.The Court is guided by well-settled Kenyan jurisprudence that the award for loss of expectation of life is a conventional, nominal sum and is not assessed by reference to the individual circumstances of the deceased. The conventional sum in Kenya is Kshs. 100,000/=. This was affirmed in Ngania & 2 others v Adulu (Civil Appeal E005 of 2023) [2024] KEHC 4005 (KLR) (25 April 2024), where the High Court at Kitale confirmed the conventional award at Kshs. 100,000/= as the accepted benchmark for this head of damages. The same conventional level was applied in Wayo & another v Bwire [2025] KECA 866 (KLR). The trial court's award of Kshs. 200,000/= under this head is excessive and inconsistent with settled authority. It is accordingly set aside and substituted with the conventional award of Kshs. 100,000/=. Loss of Dependency (Fatal Accidents Act, Cap. 32) 24.The trial court applied a multiplicand of Kshs. 5,000/= per month, a multiplier of 25 years, and a dependency ratio of 2/3, arriving at a total of Kshs. 1,000,000/=. The Appellant urges a global award of Kshs. 1,000,000/= or an alternative computation of Kshs. 600,000/=. The Respondents urge an award of Kshs. 6,000,000/=, based on a multiplicand of Kshs. 30,000/= per month derived from the Deceased's boda-boda membership card. 25.The applicable principles are authoritatively stated by the Court of Appeal in Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another (Civil Appeal No. 21 of 1984) [1987] KLR 30, which remains the leading Kenyan authority on the assessment of loss of dependency under the Fatal Accidents Act. Those principles, adopted from the High Court judgment of Ringera, J. (as he then was) in Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another (Nairobi HCCC No. 1638 of 1988, unreported), are that the court must first ascertain the net annual earnings of the deceased (the multiplicand), then multiply that figure by a number of years purchase (the multiplier), having regard to the expectation of earning life of the deceased, the vicissitudes of life, and the extent and duration of dependency. 26.On the multiplicand, the evidence is unsatisfactory. The Respondents tendered a boda-boda membership card but produced no salary records, earnings slips, tax documents, or any other documentary proof of the Deceased's monthly earnings. The card does not, by itself, establish monthly earnings of Kshs. 30,000/=. The trial court's selection of Kshs. 5,000/= per month was conservative but appropriately cautious in the circumstances. The Court finds no basis to increase this figure. 27.On the multiplier, the Deceased was 35 years old at the time of his death. A multiplier of 25 years reflects the working life remaining to him on the assumption of retirement at 60 years and is reasonable. It is upheld. 28.On the dependency ratio, the Respondents identified the widow and minor children as dependants. A dependency of 2/3 is consistent with standard judicial practice where the dependents are a spouse and young children. It is upheld. 29.Applying the formula: Kshs. 5,000/= x 12 months x 25 years x 2/3 = Kshs. 1,000,000/=. The trial court's award of Kshs. 2,754,858/=.is set aside and instead Kshs 1,000,000 is the new quantum for loss of dependency. Special Damages 30.The trial court awarded special damages of Kshs. 553,255/=. The Appellant challenges:(i)the cost of obtaining the Grant ad Litem (approximately Kshs. 40,000/=) on the ground that this expense was incurred to establish locus standi and is not recoverable; and(ii)the funeral expenses on the ground that the receipts were not in the Respondents' names and that PW1 admitted money was raised through a harambee. 31On the cost of the Grant ad Litem: this is a necessary disbursement without which the legal representatives could not have maintained the claim on behalf of the estate and dependants. It is properly treated as a recoverable expense in a fatal accident claim, distinct from ordinary legal costs. It is upheld. See by analogy: Wayo & another v Bwire [2025] KECA 866 (KLR), where the cost of obtaining a Grant ad Litem of Kshs. 30,000/= was treated as a recoverable special damage. 32On the funeral expenses: the principle is that special damages must be specifically pleaded and strictly proved. However, strict proof does not invariably demand that each receipt bear the claimant's name. Where documents are admitted in evidence without objection by the opposing party, it is not open to that party to contest their authenticity or sufficiency at appeal without having raised these objections at trial. The Appellant did not object to the admission of the documents at trial. The trial court was satisfied on the evidence. This Court finds no basis to disturb that finding. 33.The award of special damages of Kshs. 553,255/= is upheld. Summary of Revised Awards 34.The revised awards are as follows:a.Special Damages: Kshs. 553,255/=b.Pain and Suffering: Kshs. 70,000/=c.Loss of Expectation of Life: Kshs. 100,000/= (reduced)d.Loss of Dependency: Kshs. 1,000,000/=(reduced)TOTAL: Kshs. 1,723,255/= E. DISPOSITION 35.In the final result, this appeal is partially allowed on the issue of the award for loss of expectation of life and loss of dependency, which is reduced from Kshs. 200,000/= to the conventional sum of Kshs. 100,000/= and Kshs. 1,000,000 respectively. In all other respects, the appeal is dismissed. The judgment of the Chief Magistrate's Court at Mombasa in Civil Case No. E461 of 2024 is affirmed and varied as follows:a.Liability: upheld at 100% against the Appellantb.The total decretal sum is revised from Kshs. 3,577,313/= to Kshs. 1,723,255/=.c.Interest on the general damages shall accrue at court rates from the date of the trial court's judgment until payment in full.d.Interest on special damages shall accrue at court rates from the date of filing of the suit until payment in full.e.Given that the appeal has only partially succeeded on a single minor point, the Appellant shall bear the costs of this appeal. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 17TH…… DAY OF JUNE 2026.HON. LADY JUSTICE W. K. MICHENI JUDGEMombasa High CourtHigh Court Civil Date: 2026-06-21 10:21:12