https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10253

**REPUBLIC OF KENYA** **JURISDICTION:** IN THE HIGH COURT, BUNGOMA. **FILE NUMBER:** HC CIVIL APPEAL No. E085/2023 **BETWEEN:** ELISHA LUSIMBO & ANO VS NZOIA SUGAR COM. **CORAM:** R.K. ONDIEKI- JUDGE **DELIVERED:** 2nd JULY, 2026. **JUDGEMENT OF THE COURT:** (*Being an Appeal against the Judgment by Hon. Mildred Munyekenye (SPM) in Principal Magistrate’s Court at Webuye PMCC No. 28 of 2020, Delivered on 12th July, 2023).* 1. The jurisdiction of the appellate court is to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence, should stand. However, this jurisdiction has to be exercised with caution. If the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a trial magistrate who saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial magistrate as to where credibility lies, is entitled to great weight**.** This is not to say that the trial magistrate can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. He may go wrong on a question of fact, but it is a cogent circumstance that a trial magistrate, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. This, should always be kept in mind by an appellate court in re-evaluating the evidence as a whole. 2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. 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 hearing the witnesses. An appellate court has, indeed, 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. 3. In *Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123*it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 4. In respect to liability, the court in *Davies versus Powell Duffryn Associated Collieries Ltd*referred to these principles where it stated that, in effect the court, before it interferes with an award of damages should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere on the ground of excess or insufficiency. (Per 5. **Rajah JA**in***Britestone Pte Ltd Vs Smith & Associates Far East Ltd*** {*2007} 4 SLR (R} 855* succinctly states **that, t**he court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. 6. **Lord Brandon** inRhesa Shipping Co SA Vs Edmunds remarked that no Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take. Simply put, proof of a legal burden is a principle which applies in all cases without exception. 7. In ***Siraj Din Vs Ali Mohamed Khan (1957) EA 25*,** it was held that *t*he quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other as cited in BWK Vs EK & Ano. (2017) eKLR. 8. In the case of ***Susan Kanini Mwangangi & Another Vs Patrick Mbithi Kavita (2019) eKLR*** where there were no eye witnesses to the accident that resulted to the deceased therein sustaining fatal injuries, the court on the issue of lack of eye witnesses said t**hat is not necessarily fatal as long as there is credible evidence on which negligence can be inferred. Such inference may be made where the Plaintiff was a passenger in the vehicle that got involved in an accident in which event *res ipsa loquitor* may be successfully involved**. 9. In the case of ***P.A Okello & M.M Nsereko T/A Kaburu Okello & Partners Vs Stella Karimi Kobia & 2 Others (2012) eKLR***, the Court of Appeal held that **vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority. Put differently,** vicarious liability mostly comes into play when an employee has acted in a negligent manner for which the employer will be held responsible. 10. On assessment of quantum, **many are the decisions which speak and sets the law in personal injury claims and whereas I may not set them here, I shall for purposes of having handle of the matter, sample a few.** 11. In Lord Morris’ speech in *H West & Son Vs Shephard, [1964] AC 326*, said that the difficult task of awarding money compensation is a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. It is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere, there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment. 12. Lord Morris said in Jag Singh Vs Toong Fong Omnibus Co Ltd *[1964] 1 WLR 1382*, that, it need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion. 13. **In the primary suit, the Respondent, *Zachariah Keli Mukonosi* (PW1) adopted his witness statement as his testimony and said that deceased were his relatives. Whereas *Yona Shivina Elisha* was his brother *Elisha Lusimbo* Yonah was his father. On the 28th July, 2019 he received a call that his brother had been involved in an accident and died. He produced the following documents as exhibits; his national Identity Card as Exhibit 1, death certificate as Exhibit 2, Grant of letters of administration as exhibit 3, legal fees receipt of Kshs20,000/ to Advocate as Exhibit 4, police abstract as Exhibit 5, copy of record as exhibit 6(a) and Invoice of Kshs550/ as exhibit 6(b), post mortem report as Exhibit 7, receipt of Kshs8700/ for the coffin as exhibit 8, demand letter, registered post receipt to the Appellant and Insurance company as Exhibits 9, a receipt of Kshs3,300/ for post mortem as Exhibit 10 and a letter from the area chief as exhibit 11.** 14. **Further, the witness said that the deceased was aged 25 years and a *boda* *boda* rider earning about Kshs20,000/ per month. He had dependants who have suffered, as a result.** 15. ***Duncan Situma Makhanu* (PW2) told court that he adopted his witness statement on 18th January, 2023 as his testimony. The statement relates to an accident which occurred on the 18th July, 2019.** 16. **In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;** 1. **That the learned Trial Magistrate erred in law and fact by failing to take into totality the evidence and facts presented before her in arriving at the said decision.** 2. **That the learned Trial Magistrate erred in law and fact by failing to acknowledge that the Respondent failed to rebut the appellant’s evidence.** 3. **That the learned Trial Magistrate erred in law and fact by failing to hold the Respondent 100% liable for the accident and went ahead to hold the Respondent 50% liable for the accident.** 4. **That the learned Trial Magistrate erred in law and fact by treating the appellants submissions superficially in arriving at a wrong quantum.** 5. **That the learned Trial Magistrate erred in law and fact by not awarding the appellant loss of dependency.** 6. **That the learned Trial Magistrate erred in law and fact by applying wrong principles in assessment of quantum payable.** 17. **The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. I have in this judgement, considered the submissions, in context.** Analysis and Determination: 1. I have with singleness of my mind collapsed the grounds and settled on two issues for determination on whether or not the appellant proved his case on a balance of probability and whether or not quantum can be disturbed. The [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46) is clear enough upon whom the burden of proof lies. Section 107 provides that 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. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities. 2. Cursory perusal of the primary court file, I note that interlocutory judgement was entered. Additionally, I note that PW2 was the only eye witness who testified and said that the accident motor vehicle made U-turn to the feeder road and knocked the deceased and consequently, fatally injured the him. 3. On liability, the law is clear. When interlocutory judgement is entered, it was the holding in *Clearer-Humus v British Tutorial College, (1975) E.A. 323,* that the failure to file a defence operates as an admission of all allegations of fact in the Plaint except as to damages. This holding is echoed in the judgment of Nyarangi, J.A in *Mahala Mailu Mwende v Nyali Golf & Country, Civil appeal No.16 of 1969* where he said that where a judgment which is entered in default of appearance the issue of liability becomes already settled in favour of the Plaintiff and what is left for the court to do is only to assess damages which should be paid to that Plaintiff. Therefore, in respect to liability, the Respondent in law is held 100% liable. 4. In respect to damages under *Law Reform Act and* under *Fatal Accidents Act,* the law is distilled and need not be re-emphasized, even though sometimes, it behooves the court to restate it depending on the circumstances of each case. 5. In *Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman*spoke of the assessment of damages in such circumstances; he said: - **The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it. (see page 593).** 6. In*MwanziaVs Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another* which was quoted with approval in *Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR*Justice Ringera was of the following view: - “**The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”** 7. The same reasoning was adopted in the earlier decision in*Mary Khayesi Awalo & Another v Mwilu Malungu & Another ELD HCCC No. 19 of 1997 [1999] eKLR*where Nambuye J., stated that: - **“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”** 8. Back to the case at hand, there is enough evidence that the deceased was a *boda boda* rider earning a sum of Kshs20,000 per month. However, there was no evidence of the earnings that will assist assessment using the multiplicand theory. 9. There is no evidence that the deceased was married but that notwithstanding, there are dependants listed in the plaint. Being a young man eking an income from a *boda boda* business, it is possible in African setting, children take care of their siblings and parents. This a societal fabric which run across and cannot be denied in any African setting. Iam not alone, inSheikh Mushtaq Hassan Vs Nathan Mwangi Kamau Transporters & 4 Others***[1986] KLR 457,***the Court of Appeal acknowledged that in Kenya, children, regardless of their age, are expected to provide and indeed do provide for their parents whenever they are in a position to do so to the extent of their abilities. 10. In disposal, the court makes a finding; 1. The finding on liability apportioning 50% to each party is hereby set aside. Instead, the Respondent is held 100% liable for the accident. b. General Damages under the Law Reform Act: i) Pain and Suffering………………………Kshs50,000.00 ii) Special damages…………………………Kshs29,450.00 iii) Loss of expectation of life………………Kshs100,000.00 c. General Damages under the Fatal Accidents Act: Damages for loss of dependency……. Kshs1,500,000.00 Total: Kshs1,679,450.00 Delivered virtually this 2nd July, 2026 in the presence of the Appellant, the Respondent and Ivy Court Assistant. Hon. R.K. Ondieki Judge.