https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10259

Mbaisi v Sino Hydro Corporation Ltd (Civil Appeal E226 of 2024) [2026] KEHC 10259 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10259 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E226 of 2024 LM Wachira, J July 10, 2026 Between Evaline Mbaisi Appellant and Sino Hydro Corporation Limited Respondent (Being an Appeal from the Judgment and Decree of Honourable D. Ogoti C.M. delivered on 30th September,2024 In Kisumu Cmcc No. 306 Of 2015) Judgment Introduction 1.This is an Appeal from the Judgment of Hon. Ogoti delivered on the 30th September, 2024 in Kisumu CMCC 306 of 2025. The subject of the Appeal is a road traffic accident that occurred on the 19th January, 2015 at Kasagwan, along the Southern Bypass Road in Kisumu. The deceased was knocked down by motor cycle registration number KMDA 474P which was registered in the joint names of the 2nd and 3rd Defendants in the primary suit. 2.After hearing the matter, the trial Magistrate dismissed the suit against the Defendants on the reason that the Plaintiff, who is the Appellant on this Appeal had no locus to institute the suit in the lower court. 3.The Appellant dissatisfied by this finding, have filed the instant Appeal and set down the grounds listed on the Memorandum of Appeal to wit : -i.That the learned trial magistrate erred in law and in fact in finding that the Appellant herein lacked locus standi to institute the suit and further failed to appreciate that the suit was filed under Fatal Accidents Act and indicated that it was filed under Law Reform Act.ii.That the learned trial magistrate erred in law and in fact in failing to appreciate that claims under the Fatal Accidents Act can be maintained and did not require letters of Administration Ad litem.iii.That the learned trial magistrate erred in law and in fact in failing to appreciate that the claim was brought by the widow on behalf of herself and children who would benefit directly if damages were awarded.iv.That the learned trial magistrate’s decision was plainly wrong in law and in fact by ruling in favor of the Respodents.v.That the learned trial magistrate erred in law and in fact by apportioning liability at the ratio of 30:40:40 against the Defendant, 1st Interested party and 2nd interested party respectively, which is not enforceable. 4.The Appellant therefore prayed that the court sets aside the Judgment of the trial court and allows the Appeal and reinstates the suit and enter judgment in favor of the Appellant in the sum of Kshs.2,016,000/- that could have been entered in the lower court. Trial Court Evidence 5.The Evidence from the trial court is that the deceased was walking along the road and was knocked by a motor cycle registration number KMDA 474P. It is also the Appellants case that at the time of the accident the deceased was on duty with the 1st Respondent. The Appellant told court that as a result of the said accident the deceased died and the claim herein has been brought under the Fatal Accidents Act and the Traffic Act for negligence against the employer for exposing the Plaintiff to the risk of being knocked down. 6.The widow of the deceased testified in court and told court that the deceased had been employed by the Respondent as a mason and was earning Kshs.21,440/- at the time he met his death. That he was aged 45 years and left behind the witness and seven children. She stated that the claim herein was brought on her behalf and on behalf of the children of the deceased as dependents. 7.The 1st Respondent on the other hand told court that the deceased was not injured in the course of duty. That he was involved in a road accident with a motor cycle. The 1st Respondent sought to have the suit dismissed against them, blaming the rider of the motor cycle for the accident. 8.The 1st Respondent stated that had the injury been in the course of duty, then the claim would have been brought through Work Injury benefits Act (WIBA). 9.The 2nd Respondent did not participate in the proceedings in the Lower court. 10.The 3rd Respondent told court that they were only involved as having sold the motor cycle to Nakuru Equipment Supplies Ltd. That according to their record, Nakuru Equipment Supplies Ltd sold the motor cycle to Naomi Ochieng Owour. The 3rd Respodents Case was that they were not in possession and control of the motor cycle and therefore they should not be held liable. Submissions by the Appellant 11.The Appellant submitted that the trial Magistrate erred in dismissing the case on the ground that the Appellant lacked locus. Counsel submitted that a claim under the Fatal Accidents Act does not require any letters of Administration Ad litem. He submitted that the claim herein was not on behalf of the estate of the deceased but was brought by the widow of the deceased on her behalf and behalf of her children as dependents.Counsel asked the Court to set aside the dismissal by the trial court and reinstate the Appellants case. He also submitted that the trial court had assessed damages and the court should go ahead and award the same as assessed. Respondents Submissions 12.The 1st Respondent submitted that they were not to blame for the accident. That the deceased had not yet reached his station of duty as was walking to work. The 1st Respondent blamed the motor cycle for the accident. They urged the court to dismiss the claim against them. 13.The 3rd Respondent similarly denied liability and submitted that they were not in control of the motor cycle having sold it and are therefore not liable. Analysis and Determination 14.This being the first Appellate court, its duty is as summarized by the Court of Appeal in Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123: which is "… to 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…’’ 15.Having considered the Appeal, the submissions in support and the opposing submissions, I frame the following issues for determination:-a.Whether the trial magistrate erred in finding that the Appellant had no locus standi to institute the suit.b.Whether the court should award damages as assessed by the trial court. Whether the trial Magistrate erred in finding that the Appellant had no locus standi to institute the suit. 16.The Trial court found the Appellant had no locus standi because she had filed the suit under the Fatal Accidents Act. The Appellant herein indicated in the plaint that she was suing as a dependent and on behalf of other dependents of the estate of Samuel Kipkemboi, the deceased. It is not disputed that she was the widow of the deceased and the other named dependents are the children of the deceased. 17.The prayers sought by the Appellant through the plaint were general damages under the Fatal Accidents Act, special damages as pleaded, interest on the general damages and special damages and the costs of the suit. 18.Section 7 of the Fatal accident act states as follows: -If at any time, in any case intended and provoked for by this act, there is no executor or administrator of the person deceased, or if no action is brought by the executor or administrator within six months after the death of the deceased person, then and in every such case an action may be brought by and in the name or names of all or any of the persons for whose benefit the action would have been brought if it had been brought by and in the name of the executor or administrator and every action so brought shall be for the benefit of the same person or persons as if it were brought by and in the name of the executor or administrator. 19.In view of the provisions of Section 7 the Appellant herein as a widow and dependent of the deceased can file a suit for her own benefit and that of the other dependents. And Section 4 of the same Act continues to enlist the persons for whose benefit the action could be brought. It states that: -Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased ; and in every such action, the court may award such damages as it may think proportional to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deduction of the costs not recovered from the defendant, shall be divided amounts to those persons in such shares as the court, by its judgement, shall find and direct:-Provided that not more than one action shall lie and in respect of the same subject-matter of complaint and that every such action shall be commenced within three years after the death of the deceased person" 20.The Appellant herein was the widow of the deceased and in my view, it was perfectly in order for her to file the suit for her benefit and the benefit of the other dependents, more so because she has indicated the capacity in which she has filed the suit as is required under order 7 Rule 4 of the Civil Procedure Rules. 21.In the case of Waceke Wahinya [Suing as a Dependant of the Estate of Peter Gathii Wahinya VS Kenya Tea Development Authority [Makomboki Tea Factory] [2026] eKLR Justice Njuguna while dealing with a similar scenario found that the learned Magistrate misapprehended the law in dismissing the Appellants suit and held that the Plaintiff’s suit was still maintainable for the benefit of the Appellant under the Fatal Accident Act. 22.I do agree, that for claims brought under the Fatal Accidents Act, there is no requirement for the Plaintiff to obtain letters of administration ad litem, because the claim is brought on behalf of the Plaintiff as a dependent either alone and/or also on behalf of other dependents, and not on behalf of the estate of the deceased. 23.My finding is that the Appellant had not made any prayer under the Law Reform Act and the trial Magistrate erred in finding that the claim herein was also under the Law Reform Act, and erred in finding that the Appellant had no locus standi to bring the suit. 24.In making this finding, I am alive to the incidences where interference with a trial courts discretion is permitted. In Govani v shah & Another, Jaff (Third Party) Civil Appeal 185 of 2019, the learned Judges of Appeal reiterated the finding in Mbogo v Shah (1968) EA the court stated follows:-“I think it is well settled that this court will not interfere with the exercise of discretion of the inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or because it has acted on matters of which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so it arrived at a wrong conclusion. It would be wrong for this court to interfere with the exercise of trial Judges decision merely because this court’s decision would have been different”. 25.The trial court herein misdirected itself in finding that the suit had been filed under the Law Reform Act when the pleadings were clear that the suit was purely under the Fatal Accidents Act. 26.And based on the finding that indeed under Section 4 and 7 of the Fatal Accidents Act that the Appellant indeed had the locus standi to file the suit, I will set aside the order of trial court dismissing the suit and, in its place, reinstate the suit and evaluate the evidence afresh as set out in Selle (Supra). Liability 27.The trial court evidence is that the deceased was knocked by a motor registration number KMDA 474P that was registered in the name of the 3rd Respondent - Auto Industries Ltd, and was under the control of the 2nd Respondent Daniel Kibuku. 28.Although the Appellant blamed the 1st Respondent herein for exposing the deceased to the risk of being knocked down, there was no evidence adduced in court to demonstrate how the accident occurred. In law, he who alleges, must prove. In Evans Nyakwana vs.Cleophas Bwana Ongaro (2015) eKLR the court summarized the burden of proof in the following terms:-“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden...is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. ……the appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side." 29.It is the Appellant who alleged that the 1st Respondent was negligent but did not call any evidence to demonstrate how the 1st Respondent was negligent. 30.A look at the Judgment of the trial Magistrate indicated that the 1st Respondent was liable because the deceased was walking to work. I have considered this argument and my view is that the deceased was walking to work to earn his daily bread. The 1st Respondent was not responsible for how the deceased got to work. The duty of care by the 1st Respondent only kicked in when the employees got into the premises of the 1st Respondent. It would be an absurdity to hold the 1st Respondent liable for incidents that occur to employees while outside the course of duty, even if they are on their way to work. 31.I have seen an argument that this was a matter that was brought under the Work Injury Benefits Act. I have considered this argument. At the final prayers sought by the Plaintiff, the Plaintiff sought damages under the Fatal Accidents Act. I have also found that this was not an employer – employee incident but purely a road accident. I find that liability has not been established against the 1st Respondent and the Appeal against the 1st Respondent is dismissed with costs. 32.For the Appeal against the 2nd and 3rd Respodents, the 2nd Respondent did not participate in the proceedings in both the lower court and at the Appellate stage. Evidence on record is that it is the 2nd Respondent who was in possession and control of the motor cycle that knocked the deceased. The 2nd Respondent was also charged and convicted of the offence of riding a motor cycle that was not insured and without a licence and he was convicted and fined Kshs.5,000/-. This evidence has not been controverted as the 2nd Respondent never appeared in court. 33.The offending motor cycle was registered in the name of the 3rd Respondent and that is why the 3rd and 2nd Respodents were enjoined to these proceedings. Although the 3rd Respondent claimed that they had already sold the motor cycle to Nakuru Equipment Limited, the copy of record availed to court was still in the name of the 3rd Respondent. Ownership of a motor cycle is proved by way of a search from the Registrar of Motor Vehicles, which is now under NTSA. The copy of records shows the 3rd Respondent as the owner of the motor cycle. 34.The argument that the motor cycle had been sold would have necessitated the 3rd Respondent to enjoin the 3rd Party who had purchased the motor cycle to theses proceedings. Although an application to join the 3rd Party was filed, the same was dismissed for non-attendance. It was also upon the 3rd Respondent to explain to court why the transfer of the motor cycle had not been done. No explanation was offered for the inactivity and in the circumstances my finding is that the 3rd Respondent cannot escape liability and it is upon them to follow up with the alleged supposed 3rd Party to indemnify them for the loss they may suffer in meeting the claim herein. 35.My finding is that the motor cycle herein was registered in the name of the 3rd Respondent who therefore is the legal owner while the 2nd Respondent was in actual possession and control. I will find them liable. 36.The trial court had apportioned liability at 30:40:40, of course which is erroneous because this would total to 110%. In the instant Appeal, I have already found that liability has not been established against the 1st Respondent because there is no evidence that the accident occurred in the course of the deceased’s duty with the 1st Respondent. I also find no justification in apportioning liability between the 2nd and 3rd Respondents because one was the rider and the other the registered owner. I will find the 2nd Respondent 100% liable for the accident and the 3rd Respondent vicariously liable for the actions of the 2nd Respondent. Quantum 37.I have considered the evidence on record and the submissions by the parties. I have also considered the award the lower court would have made had it not dismissed the suit. It is trite law that this court may not interfere with an award on damages unless a certain criterion is met. In the case of Elizabeth Mumbi Kinyua vs. Samuel Wanjohi Murage [2024] eKLR the court held that for it to interfere with the award it must ascertain that trial court applied irrelevant factors or omitted relevant factors; that the award is so high as to amount to an erroneous assessment of damages and finally that the award is simply not justified from the evidence. 38.This court having found that there was no claim under the Law Reform Act, would not award any damages under the heads of pain and suffering, loss of expectation of life and special damages. 39.The award that would remain would be the loss of dependency for the dependents which the trial court assessed at Kshs.2,016,000/- after applying a multiplier of the monthly earnings of the deceased at Kshs.16,800/-, a multiplicand of 15 years since the deceased died at the age of 45 years and the retirement age of 60 years as stipulated under the Laws of Kenya and a dependency ratio of 2/3 because the deceased had dependents. 40.Considering the above, I find no reason of interfering with the award given by the trial court and my finding is that the trial court did not err in the assessment of general damages for Dependency. 41.The upshot of the matter is that the Appeal herein is allowed in the following terms: -i.The order for dismissal is set aside.ii.The case against the 1st Respondent is dismissed.iii.Judgment is entered for the Appellant against the 2nd Respondent at 100%. The 3rd Respodents is found vicariously liable.iv.General Damages for dependency are assessed at Kshs.2,016,000/-v.The Appellant is awarded the costs of the suit both at the lower court and on this Appeal. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys – Court AssistantN/A for the Appellant.Rono for the Respondent.