https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12508

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL CASE NO. E065 OF 2023** **ELIZAPHAN OGENDI MASIRA &** **YUNUKE NYAMBEKI MOSOTI (Suing as** **the legal representatives of the estate of** **DENNIS MASIRA OGENDI (Deceased) :::::::::::::::::::::::::::: APPELLANT** **VERSUS** **DORCAS MUSANGI DAO :::::::::::::::::::::::::::::::::::::::::: RESPONDENT** **(Being an Appeal from the Judgement by the Honourable Magistrate Hon. Stephen Jalang’o delivered on 16th March 2023 at the Chief Magistrate Court** **at Mavoko).** **JUDGEMENT** 1. This appeal is in respect of Judgement delivered on 16th March 2023 at the Chief Magistrate Court at Mavoko case number E021 OF 2021. The same was commenced by way of Plaint dated 11th January 2021 filed by **ELIZAPHAN OGENDI MASIRA & YUNUKE NYAMBEKI MOSOTI (**Suing as the legalrepresentatives of the estate of **DENNIS MASIRA OGENDI** (Deceased)being the plaintiff in the lower Court (hereafter the appellant) against the defendant in the Lower Court (hereafter the respondent). The reliefs sought therein were in the nature of general and special damages Ksh.124,238/= arising out of a road traffic accident which occurred on 19th July 2020 along Nairobi – Mombasa road at SGR junction. 2. It was alleged that on 19th July 2020, the deceased was lawfully a pedestrian beside the road along Nairobi – Mombasa road at SGR junction when Motor vehicle registration No. KBA 657E Toyota Saloon lost control and knocked Dennis Masira Ogendi (Deceased) occasioning him fatal injuries. The particulars of negligence were equally set out in paragraph 4 of the plaint. 3. The Trial Court then proceeded to dismiss the suit with costs since the Plaintiff (hereafter the appellant) did not discharge their burden of proof on a balance of probabilities against the defendant. (hereafter the respondent). 4. The Appellants being dissatisfied with the trial Courts Judgement, filed a memorandum of Appeal dated 22nd March 2023 on the following grounds: 5. That the Learned Magistrate erred in law and fact in failing to find the respondent liable for causing the accident at all. 6. That the Learned Magistrate erred in law and fact by failing to appreciate and consider the evidence adduced by the Appellant. 7. That the Learned Magistrate erred in law and fact not giving sufficient consideration to the weight of the evidence by the Appellant. 8. That the Learned Magistrate erred in law and fact in dismissing the suit without determining the real issues in dispute. 9. That the Learned Magistrate erred in law and fact in failing to consider the Plaintiff’s submissions and authorities in making a finding on liability and 10. The whole Judgement on liability was against the weight of evidence before the Court. **SUBMISSIONS ON THE APPEAL** 1. The Appeal was canvassed by way of written submissions by both the Appellant and Respondent. **APPELLANS SUBMISSIONS** 1. The Appellant through his Counsel on record opposed the Trial Court’s finding in its totality. Counsel anchored his submissions on the decision in Santosh Hazari – v – Purushottam Tiwari (Deceased) by L. Rs (2001) 3 Section 179 where the Court established critical legal principles regarding the powers and duties of a first Appellate Court, as well as what constitutes a “substantial question of law” for further appeals. Counsel opposed the award of general damages. 1. The Appellant further argued that the defence did not provide any material evidence to prove that the deceased was to be blamed for the accident. They relied on the case of Mary Njeri Murigi – v – Peter Macharia and another (2016) KEHC 3535 (KLR) where the Court held that pleadings, answers in cross examination and or submissions do not amount to evidence or defence. 2. On issues of quantum, The appellant urged the Court to adopt a multiplier of 20 years after considering the deceased was a 40 year old casual labourer who could have worked well beyond the 60 year civil servant retirement age. Counsel relied on the case of Flashmark (K) Limited – v – Mutunga and another (suing as legal representatives to the estate of Gerald Mulwa Masuni alias Jerald Mulwa Masuni (Deceased) (Civil Appeal E973 of 2022) (2025) KEHC 11576 (KLR) (CIV) 131 July 2025) (Judgement) wherein the learned Judge upheld the decision of the Trial Court to adopt a multiplier of 20 years for the deceased who was 40 years old at the time of the accident. 3. The Appellant confirmed to the Court that the deceased used his income to support both of his parents and he didn’t have a wife and children. However, despite not having a family of his own, the deceased used to take care of himself as well as his parents. Counsel cited the case of Mary Kerubo Mabuka – v – Newton Mucheke Mburu and 3 others (2006) KEHC 2252 (KLR) where the Court used a multiplier of 20 years on a 26 year old unmarried lady and a dependency ratio of ½ . 4. On loss of expectation of life, the appellant submitted an award of Kshs.200,000/= would suffice. He relied on the case of Patrick Kariuki Muiruri and 3 others – v – Attorney General (2018) eKLR where Sergon J. made an award of Kshs.200,000/= under the same heading. **RESPONDENT’S SUBMISSIONS** 1. The Respondent through his Counsel on record defended the trial Court’s findings in their totality. He provided that the Appellant adopted his witness statement and produced some of the documents as per the list of documents dated 11th January 2021, and was also supported by testimonies from a police officer. 2. He continued to state that the Appellant failed to produce any evidence that the Respondent’s motor vehicle was to blame for the accident by way of occurrence book extracts (OB) sketch maps/sheets from the scene of the accident or otherwise. Further, Counsel relied on Civil Appeal No. 032 of 2021 Bwire – v - Wayo and Sailoki (2022) KEHC 7 (KLR) to define Direct Evidence as: “Evidence that establishes a particular fact without the need to make an inference in order to connect the evidence to the fact. It supports the truth of an assertion (in Criminal Law, an assertion of guilt or innocence) directly, i.e without the need for an intervening inference. It directly proves or disproves the fact”. 1. Additionally, the Respondent claimed that the testimony provided by the Appellant’s witness amounted to hearsay, since the witness didn’t see or hear of the accident hence had no probative value. He cited Black’s Law Dictionary, 4th Edition at page 852 to define hearsay evidence. 2. The Respondent argued that the evidence adduced by Appellant was not sufficient to apportion blame on the Respondent and that the Appellant hadn’t discharged his evidential burden of proof on a balance of probabilities. He cited the Curt of Appel case Eastern produce (k) Ltd – v – Christopher Atiado (2006) eKLR, where the Court averred that the onus of proof lies upon him who alleges and where negligence is alleged. Some form of negligence must be proved against the Defendant. 3. In summation, the Respondent respectfully submitted that the Learned Trial Magistrate rightly dismissed the suit, having correctly found that no liability was attached to the Respondent. **ANALYSIS AND DETERMINATION** 1. The Court has considered the original trial Court record, the memorandum of appeal and the submissions on record plus the authorities cited in support thereof. As a first appellate Court, the duty of this Court is to re-evaluate the evidence and draw its own conclusions, but always in mind that it did not have the opportunity to see or hear the witnesses testify. This principle was founded in Selle and another – v – Associated Motor Boat Co. Limited and others (1968) EA 123. 2. The Court of Appeal in Ephantus Mwangi and another – v – Duncan Mwangi Wambugu (1982- 88) 1 KAR 278 stated that: “A court of Appeal will not normally interfere with a finding of fact by the trial Court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did”. 1. Upon review of the Memorandum of Appeal and submissions on record, it is apparent that the appeal turns solely on the issue whether the Respondent is wholly liable. 2. The main contention raised by the Appellants is against the award of general damages. 3. In the Court of Appeal in Jogoo Kimakia Bus Services Ltd – v – Electrocom International Ltd (1992) KLR 177 it was stated that: “… General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal light or duty. Damages must be proved but the claimant may not be able to quantify exactly any particulars in it …” Further, in Bonham Carter - v – Hyde Parke Hotel Limited (1948) 64 TLR 177 Lord Goddard stated that: “Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to write down the particulars and so to speak throw them at the head of the Court saying “This is what I have lost,” I ask you to give me these damages.” They have to prove it”. 1. From a glance at the pleadings on record, it is evident that there were no eye witnesses and the only evidence as to the occurrence of the accident was by the police officer who relied on the occurrence book (OB) which blamed the Appellant for the occurrence of the accident. The Plaintiff did also not avail any evidence i.e. sketch maps or sheets from the scene of the accident which blamed the Respondent for the accident. 2. The Appellant must keep in mind S 107 (1) of the Evidence Act Cap 80 which provides that: “Whoever desires any Court to give Judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”. Further in Bwire – v – Wayo and Sailoki (2022) KEHC 7 (KLR), Mativo stated that: “When the Plaintiff fails to discharge the burden of proof, the Defendant is under no obligation to rebut that which is not established.” 1. The conceptual meaning is that if one is approaching the Court asking for a remedy based on certain facts, the law does not assume that those facts are true. The Appellant bears the responsibility of bringing forward sufficient evidence to convince the Court. 2. It is settled law that the mere occurrence of an accident does not give itself give rise to liability. In Amar Ramadrian Yusuf and another – v – Ruth Ochieng Onditi and another High Court Civil Appeal No. 234 of 2005 the Court stated: “It is trite law that the mere fact that an accident occurs does not follow that a particular person has driven negligently and or negligence ispo facto must be inferred, so that it is always absolutely necessary and vital that a party who sues for damages on the basis of negligence must prove such negligence with cogent and credible evidence as he who asserts must prove.” **DISPOSITION** 1. This Appeal is found to be lacking in merits and is hereby dismissed. 2. The Judgement delivered by the Learned Magistrate on 16th March 2023 is hereby upheld. 3. The suit is dismissed with costs. READ AND PUBLISHED THIS 16TH JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY, BEFORE HON JOYCE GANDANI, JUDGE COURT ASSISTANT BEN `