https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8459

Obino v Mwita (Suing as the Administrator of the Estate of John Mwita Barisela - Deceased) (Civil Appeal E033 of 2023) [2026] KEHC 8459 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8459 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E033 of 2023 ACA Ong’injo, J June 12, 2026 Between Erick Obino Appellant and Susan Gati Mwita (Suing as the Administrator of the Estate of John Mwita Barisela - Deceased) Respondent (Being an Appeal from the Judgment and Decree of Hon. J. Munguti, Senior Principal Magistrate, delivered on 10th May 2023 in Migori CMCC No. 39 of 2020) Judgment 1.This appeal arises from the judgment of the Chief Magistrate’s Court at Migori in Civil Suit No. 39 of 2020, delivered on 10th May 2023 by Hon. J. Munguti (SPM). 2.The trial court found the Appellant 100% liable for a fatal road traffic accident that occurred on 27th November 2019 along the Ntimaru-Kehancha Road at Igena Area. 3.The accident involved a motorcycle, Registration No. KMEZ 363 B, ridden by the deceased, John Mwita Barisela, and a motor vehicle (lorry), Registration No. KCJ 220 Q, owned or driven by the Appellant. The deceased died on the spot. 4.The trial court awarded the Respondent a net sum of Kshs. 2,199,000/- broken down as follows:1.Pain and Suffering: Kshs. 30,000/-2.Loss of Expectation of Life: Kshs. 100,000/-3.Loss of Dependency (Fatal Accidents Act): Kshs. 2,140,000/- (being Kshs. 2,240,000/- less the Kshs. 100,000/- Law Reform award)4.Special Damages: Kshs. 29,000/- 5.Dissatisfied with the judgment of the trial court the Appellant lodged the appeal herein vide Memorandum of Appeal dated 25th May 2023 on the following grounds:-i.That the Learned Trial Magistrate erred in finding the Appellant 100% liable for the accident contrary to the evidence on recordii.That the Learned Trial Magistrate erred in finding that the deceased earned an average of Kshs. 20,000/= per month which assessment when viewed against the evidence adduced is manifestly excessive and the same was not specifically proved.iii.That the Learned Trial Magistrate erred in adopting a multiplicand of Kshs. 20,000/= with a multiplier of 14 years thereby awarding the Respondent Kshs. 2,240,000/= which was inordinately high in the circumstances.iv.That the Learned Trial Magistrate erred in fact and in law in awarding the Respondent the sum of Kshs. 30,000/= for pain and suffering without any legal or factual explanation or justification as to how the assessment was arrived at. As a consequence, the award was too high to justify a variation by the court.v.That the Learned Trial Magistrate failed to properly evaluate evidence on record thus reaching an erroneous decision as it was against the weight of the evidence. 6.it is proposed to ask the court for orders that:-a.The appeal be allowed and the decision of the Trial Magistrate be set aside.b.This court be pleased to re-evaluate the evidence and make its own finding in regard to both liability and quantum.c.The costs of this appeal be awarded to the Appellant. 7.The appeal herein was canvassed by way of written submissions. The Appellant’s submissions are dated 24th September 2025. 8.The Respondent’s submissions are dated 23rd October 2025 and are to the effect that the evidence that the Respondent’s lorry collided with the deceased motor cycle was not controverted.by the Appellant. 9.It was submitted that the Appellant was only challenging the discretion of the trial Magistrate in apportioning liability and assessing damages and not the evidence on record. It was submitted that the Appellant failed to call any witness to rebut the evidence by the Respondent. Analysis And Determination 10.As a first appellate court, this court is under a legal obligation to re-examine, re-evaluate, and analyze the entire trial record to reach its own independent conclusions. Having considered the appeal and submissions of respect Counsel for the parties and having re-evaluated and reviewed the record of the trial court the issues that falls to be determined are:a.Whether the trial court erred in finding the Appellant 100% liable.b.Whether the award of Kshs. 30,000/- for pain and suffering was sustainable in law where death was instantaneous.c.Whether the trial magistrate erred in law and fact by adopting an unjustified 14-year multiplier. 11.The record shows that the Appellant entered an appearance and filed a formal Statement of Defence dated 6th October 2021. However, the Appellant failed to attend the trial or offer oral testimony to support his pleadings. 12.The Respondent called PW2, an eyewitness who testified that the Appellant's lorry was traveling at high speed, hit the bump and lost control thereby hitting the deceased who was beside the road dropping a passenger. According to PW2 the cyclist was not riding at the time of the accident.and that the lorry which was being driven on the left side veered to the right where the deceased was and hit him. 13.The evidence of PW3 the police officer was that the accident occurred when the deceased was making a U- Turn after dropping a passenger and that it was on the lorry’s lane. PW3 was however not at the scene of the accident and he said he did not visit scene as he was not the Investigating Officer. What the Police Officer said was not supported by any other independent corroborative evidence and is therefore deemed as hearsay. There is nothing in the Police Abstract to indicate that the deceased was to blame for the accident. There is also no sketch plan drawn at the scene to show that the accident occurred on the lorry’s lane and not off the road as per PW2’testimony. In the circumstances this court finds that there is no reason to unsettle the Trial Magistrate’s finding on liability. The same is hereby upheld. 14.Concerning assessment of damages, on pain and suffering the Appellant’s Counsel submitted that the Trial Magistrate did not explain how he arrived at the amount of Kshs. 30,000/=. 15.For this heading the consideration for making the award is whether pain was prolonged before death and conventional awards made range from Kshs. 10,000/= to 100,000/=. 16.According to PW2 the deceased died on the spot and the trial magistrate made explained explicitly in the finding that he had considered inflation in assessing the said award. 17.In Butt vs Khan, the Court stated that an appellate court can only interfere with an award of damages if:“......... it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low." 18.In consideration of the explanation given by the Trial Magistrate this court finds that the award is within the range of awards made for similar cases as per the holding in Muriki Another Vs Samuel Mwangi Nduati & Another {2019} eKLR. 19.For loss of dependency the Trial Court awarded Kshs. 2,240,000 using a multiplier of 12 years and a multiplicand of Kshs 20,000/= to assess general damages due. The Appellant in the submissions in the Trial court agreed with the Respondent’s proposal of the multiplicand of 12 years considering the many vicissitudes and imponderables of life including opportunistic diseases which would have shortened the deceased life. 20.The Appellant however proposed that the dependency ratio be put at 1/3 of the deceased’s income saying that the Respondent did not sufficiently prove the fact of dependency. 21.There was no dispute that the deceased was married to PW1. Determination of dependency depends on the deceased’s marital and family status. Courts assess the ratios assuming a certain portion of the income was spent on the deceased’s personal maintenance while the remainder sustained the family. Conventionally where the deceased is married 2/3 of the income is assumed to maintain his family whereas where unmarried then it is assumed that the deceased spent more of the income on themselves.From the judgment the Trial Magistrate used a multiplicand of Kshs 20,000/= which has not been disputed 22.It follows that that the damages awarded for loss of dependency in this instance should be Kshs. 20,000/= x12 years x12months x2/3=1,920,000/=. 23.In consideration of this finding, this court finds that there is no good reason to change the decision of the Trial Magistrate particularly because the Appellant neglected to avail evidence in support of his complaints against the said judgment. 24.Being guided by comparable authorities from both the Court of Appeal and High Court this court upholds the Trial Courts decision save for the mathematical errors on the face of the record which have duly been corrected. 25.In summary the final judgmenti.Liability -100%ii.Pain and suffering -Kshs. 30,000/=iii.Loss of expectation of life -Kshs. 100,000/=iv.Loss of dependency -Kshs. 1,920,000/=v.Special damages -Kshs. 29,000/=Totals -Kshs. 2,079,000/=Less damages under Law Reform Act Kshs. 100,000/=Net award -Kshs. 1,979,000/=Costs of the appeal to the Respondent.Right of Appeal 30 days.Orders accordingly. DATED, SIGNED, AND DELIVERED AT MIGORI THIS 12TH DAY OF JUNE 2026. ___________________________________ HON. ANNE ADWERA- ONG’INJO JUDGEHIGH COURT OF KENYA AT MIGORI