https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9095

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NOs. E211, E212 & E214 OF 2024 (CONSOLIDATED)** **BETWEEN** **DAVID MWONGERA MUKARI................................................................................APPELLANT** **AND** **REBECCA MUKONJIRA & ISAIAH LUBETA (Suing as the legal representatives of the estate of ZAKAYO MUTHINE) .......................................................................................1st RESPONDENT** **BEATRICE KATHURE & ISAACK MURUNGI M’IMPWI (Suing as the legal representatives of the estate of JOSEPH NTONJIRA) .................................................................2nd RESPONDENT** **STANLEY MIAKA MURATANYA & JOSEPH MURATANYA (Suing as the legal representatives of the estate of NICHOLAS MWITI MIAKA) …………….3rd RESPONDENT** ***(Being an appeal from the Judgments and Decrees*** ***of the Chief Magistrate’s Court at Maua (******Hon. Elizabeth K. Chesoni, RM)*** ***delivered on 4th October 2024 in CMCC Nos. E098, E099, and E100 of 2023 respectively)*** **JUDGMENT** **I. INTRODUCTION** 1. This consolidated appeal arises from a decision made by Hon. Elizabeth K. Chesoni, RM of the Chief Magistrate’s Court at Maua delivered on 4th October 2024 in CMCC Nos. E098, E099, and E100 of 2023 respectively in fatal road traffic accident that occurred on 10th April 2023 at approximately 17:30 hrs. along the Laare-Antubetwe Road at the Kariungu area. The accident involved motor vehicle Registration No. KBJ 758P (a Mitsubishi Canter) owned by the Appellant and a motorcycle, Registration No. KMF 257G, which was carrying the three deceased individuals: Nicholas Mwiti Miaka, Joseph Ntonjira, and Zakayo Muthine. 2. Following a full trial, the learned Trial Magistrate found the Appellant to be 100% vicariously liable for the accident and awarded substantial damages to the respective estates. Aggrieved by both the finding on liability and the methodology used to assess quantum, the Appellant moved this Court by way of three separate appeals which have since been consolidated for ease of determination. **II. GROUNDS OF APPEAL** 1. The Appellant’s challenge is premised on the following grounds: 2. That the Learned Trial Magistrate erred in fact and in law by assessing liability at 100% in favour of the Respondent as against the Appellant contrary to the evidence tendered in court. 3. That the Learned Trial Magistrate erred in fact and in law by awarding an inordinately high amount for loss of dependency to the Respondent, for reasons that the trial court used a dependency ratio of 2/3 without proof. 4. That the Learned Trial Magistrate erred in fact and in law by awarding an inordinately high sum for pain and suffering of Kshs. 50,000/=, given the precedence for a deceased who died on the same day of the accident. 5. That the Learned Magistrate erred in fact and in law by awarding special damages that were not entirely proved by way of receipts as is the required standard of strict proof. **III. ISSUES FOR DETERMINATION** 1. Having carefully considered the Record of Appeal and the rival submissions filed by both the Appellant and the Respondents, this Court has identified and framed the following core issues for determination: 2. Whether the Trial Magistrate erred in apportioning 100% liability to the Appellant despite evidence of motorcycle overloading. 3. Whether the multiplicand (income) adopted was speculative and whether a Global Sum approach should have been applied for loss of dependency. 4. Whether the awards for Pain and Suffering and Loss of Expectation of Life were reasonable given the specific circumstances of the victims' deaths. 5. Whether the requirement of strict proof for special damages (funeral expenses) was satisfied. **IV. THE STANDARD OF REVIEW** 1. As the first appellate court, this Court is guided by the principle in *1968 EA Selle & Anor v. Associated Motor Boat Co. Ltd*, which mandates a fresh re-examination and re-evaluation of the evidence on record to reach independent conclusions. In discharging this duty, I have carefully and critically considered the evidence alongside the submissions filed by both parties. My determination is guided by contemporary judicial decisions that reflect current legal trends and economic realities, serving as a procedural safeguard to ensure no argument has been disregarded. **V. ANALYSIS AND DETERMINATION** 1. **i.) Whether the Trial Magistrate erred in apportioning 100% liability to the Appellant despite evidence of motorcycle overloading** The Trial Magistrate rejected the Appellant’s defense that a second motorcycle caused the collision, finding the lorry’s driver’s (DW1) account "untrustworthy". The court relied on eyewitness PW2 and the police abstract, which indicated the lorry was overtaking at high speed in a sharp corner. The trial court record confirms that the motorcycle was overloaded with four occupants the rider and three pillion passengers. 1. PW2 (Isaac Ntomwambia), an eyewitness, testified that "the motorcycle ahead of the lorry was carrying four (4) people, that is the motorcycle rider driver and three other people". This was corroborated by PW1 (P.C. Samuel Lemaiyan), who confirmed the victims were four in number, and DW1 (Richard Koome), who found the rider and three pillion passengers on the tarmac. 2. The motorcycle was overloaded with four occupants. Under Section 60(1) of the Traffic Act, motorcycles are restricted to one pillion passenger. I am guided by *Karoli v. Sang (2025) (eKLR)*, where this Court held that boarding an overloaded motorcycle is a breach of law that "exposed the rider and passengers to danger," justifying contributory negligence. 3. While the lorry driver was primarily negligent for dangerous overtaking, the motorcycle occupants showed a "want of care" for their own safety. Consequently, I set aside the 100% liability finding and substitute it with an apportionment of 80% against the Appellant and 20% contributory negligence against the Respondents. 4. **Ii.) Whether the awards for Pain and Suffering and Loss of Expectation of Life were reasonable?** The trial court calculated dependency using a mathematical multiplier based on the statutory minimum wage of Kshs. 14,025.40. The Appellant argues this was speculative as the deceased were informal miraa traders and no documentary proof of income was tendered. 1. I am guided by the persuasive reasoning in, and recently reaffirmed in *KEHC Wambua v. Kyeno* (*2026) e(KLR*) that the multiplier approach is "not a dogma" and must be abandoned where facts do not facilitate its application without "undue speculation". 2. To insist on arithmetic formulas in the absence of salary proof would be to "sacrifice justice on the altar of methodology”. In such cases, the court has the discretion to award a Global Sum as a "suitable replacement that correctly fits the gap" left by the lack of formal records. 3. In *KEMC Joan & another v. Goldman Logistics Limited (2025) (eKLR)*, the court awarded a global sum of Kshs. 2,500,000/- for a 30-year-old breadwinner whose exact income was unproven but who supported a young family. Balancing these judicial benchmarks against the evidentiary gaps, I find that a Global Award of Kshs. 2,500,000/- per estate for loss of dependency is a fair and reasonable estimate that avoids mere conjecture while acknowledging the victims' future potential and inflation costs. 4. **iii.) Whether the awards for Pain and Suffering and Loss of Expectation of Life were reasonable?** The Appellant argued that the award of Kshs. 50,000/- for pain and suffering was inordinate for same-day deaths. While *Hyder Nthenya Musili v. China Wu Yi Limited (2017) (eKLR)* provides for nominal damages for instantaneous death, the record shows the victims survived for several hours, experiencing conscious suffering. 1. I have considered the guidance in *Hyder Nthenya Musili v. China Wu Yi Limited (2017) (eKLR),* which establishes that very nominal damages (typically around Kshs. 10,000/-) apply where death follows immediately. 2. However, the record indicates that these victims were not found dead at the scene; they were "wriggling in pain" and survived for several hours before succumbing. 3. While 50,000/- is indeed on the higher side for same-day deaths, the victims did suffer conscious pain for a duration that warrants more than a bare nominal award. 4. Guided by the circumstances of their survival, I substitute the uniform award with the following tiered sums: 5. Kshs. 15,000/- each for the estates of Zakayo Muthine and Joseph Ntonjira, who experienced conscious pain while being "ferried to the hospital" but succumbed en route. 6. Kshs. 20,000/- for the estate of Nicholas Miaka, who survived the journey and was admitted to the hospital, succumbing the following day while undergoing treatment in the hands of doctors. 7. The award for Loss of Expectation of Life is upheld at the conventional sum of Kshs. 120,000/- per estate. 8. **iv.) Whether the requirement of strict proof for special damages (funeral expenses) was satisfied?** Regarding special damages, while the general rule requires strict proof, contemporary jurisprudence in *Wambua v. Kyeno (2026) KEHC (eKLR)* confirms that this requirement is significantly "loosened" for funeral expenses. This approach follows the Court of Appeal's reasoning in *Capital Fish Kenya Limited v. KPLC (2016) (eKLR)*, which classifies burial costs as "matters of common notoriety" where families cannot realistically be expected to maintain meticulous receipts for every expense, such as transport and food. As observed in *Premier Diary Limited v. Amarjit Singh Sagoo (2013) eKLR*, it would be "wrong and unfair" to expect bereaved families to focus on record-keeping while the body of a close relative needs to be interred. The sums awarded by the Trial Magistrate were based on evidence she evaluated firsthand and they are hereby upheld. **VI. DISPOSITION** 1. In view of the foregoing, the consolidated appeals succeed in part. The judgment and decree of the subordinate court is hereby set aside and substituted with the following orders: 2. Loss of Dependency: A uniform Global Sum of Kshs. 2,500,000/- is awarded to each of the three estates. 3. Loss of Expectation of Life: A uniform sum of Kshs. 120,000/- to each of the three estates. 4. General Damages for Pain and Suffering: 5. To the estates of Zakayo Muthine and Joseph Ntonjira: Kshs. 15,000/- each. 6. To the estate of Nicholas Miaka: Kshs. 20,000/-. 7. Special Damages (Funeral Expenses): Upheld as awarded by the trial court in each of the three estates, specifically Kshs.313,300/- for Zakayo Muthine’s estate; Kshs. 288,460/- for Joseph Ntojira’s estate and Kshs.360,000/- for Nicholas Mwiti Miaka’s estate respectively. 8. The total for each estate, being the sum totals of (1), (2), (3) a.) and b.) and (4) above, shall be subject to a 20% deduction for contributory negligence. 9. Costs: As the appeal has succeeded partially, each party shall bear its own costs of the appeal. The Respondents shall have the costs of the lower court. Interest at court rates shall apply on general damages from the date of the trial court’s judgment. Orders accordingly. Right of appeal 30 days. Dated, signed and delivered virtually on TEAMS on this 26th day of June, 2026. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.** In the Presence of; - Court Assistant…E, Sana Counsel for the Appellant…Miss Oteko Counsel for the Respondent…Miss Asuma Miss Oteko-We seek 30 days stay of execution Miss Asuma-No objection **Order** There be a stay of execution for 30 days. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.**