https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11437

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E317 OF 2023** **MURIITHI FRANCIS ……………………….………….. 1ST APELLANT** **NGIGI NJERI JECINTA ………………...………… 2ND APPELLANT** **SAFERIO WAITITU NGINGI ………………………. 3RD APPELLANT** **VERSUS** **DORCAS NJOKI NJUGUNA AND ANNAH WAITHERA NJUGUNA (Suing as Administratixes of the Estate of PATRICK WAITARA NJUGUNA (DECEASED) ………………………………………………. RESPONDENTS** **{(*Being an Appeal from the decree of the Chief Magistrate’s court at Nakuru (Hon. P. W. Nyotah – SRM) arising from Judgment delivered 18/10/2023 in CMCC NO. E521 of 2021*)}** **JUDGEMENT** **Grounds of Appeal and Reliefs Sought.** 1. The Appeal before me is against the trial court’s Judgement on liability for the claim in which the court apportioned responsibility for the tortious act from which the cause of action arose equally in the ratio of 50% to 50% among the the parties. The trial court is also faulted on the quantum of damages awarded to the Respondents. 2. Aggrieved by the Judgment, the Appellants, the Plaintiffs in the suit, filed a Memorandum of Appeal dated 7.11.2023 upon the grounds, namely, 1. ***THAT the learned trial magistrate erred in law and fact in failing to properly evaluate and comprehend the evidence adduced on liability thereby arriving at a finding on liability and holding the appellants 50% liable in negligence contrary to the evidence on record.*** 2. ***THAT the learned trial magistrate erred in law and fact in disregarding the evidence adduced by the appellants’ witnesses, the documents relied on by the appellant and the appellant’s submissions in so far as the circumstances of the subject accident was concerned.*** 3. ***THAT the learned trial magistrate erred in law and in fact in disregarding the documentary evidence captured in the photographs produced by the appellants regarding the point of impact on the road and on the appellants’ vehicle hence arriving at an unjustified finding.*** 4. ***THAT the learned trial magistrate erred in law and fact in awarding Kshs. 180,000/= for loss of expectation of life which is clearly and manifestly excessive in the circumstances and fact of the case herein and out of league with the conventional awards made in comparative situations.*** 3. It is proposed to ask the court to review the trial court’s Judgment in its entirety and substitute it with its own Judgment dismissing the Respondents’ suit with costs. **Background To The Appeal.** 1. The cause of action in the suit before the lower court is a road traffic accident in which a relative of the Respondents was fatally injured owing to alleged negligent driving of of the Appellants’ motor vehicle registration number KBF 541 D as a result of which it knocked down a motorcycle registaration number KMEV 918 R the deceased was riding. The 1st and 3rd Appellants entered appearance to the suit and traversed the allegation of negligence attributed to them. 2. The matter went to full hearing. PW1 **(** a Police Officer**)** produced an abstract report of the subject accident involving the said motor vehicle registration KBF 541D. He was not the accident's investigating officer, though. According to him, police investigations were ongoing at the time of his testimony and at that point it could not be established who was to blame for the accident. 3. PW2 stated that he witnessed the accident. He told the court that the vehicle driver was overtaking another vehicle when it suddenly veered onto the path of the deceased's motorcycle. The vehicle hit the deceased before returning to its lane. It is his testimony that it was the motor vehicle driver's door that knocked the motorcycle. The vehicle had passed a road junction when the collision occurred. 4. The 2nd Respondent (Annah Waithera Njuguna) also testified. Saying that she was the deceased's wife, she told the court she didn't know his earnings as a motorcycle rider. The deceased would give her Kshs 500/= daily after every two days. The couple have two daughters. 5. DW1 is insurance investigator with Silent Eye Investigators. He produced his report dated 27/10/2023. The report is based on accounts given by witnesses interviewed during the private investigations into the accident. 6. DW2, (Police Officer) produced an abstract report dated 26/9/2020 and an extract of the relevant Police Occurrence Book issued by Nakuru Police Station over the accident. This officer also said he was not the accident’s Investigating Officer and that the accident was still under police investigations. 7. The 3rd Appellant (DW3) also claims to have witnessed the accident as the driver of the accident vehicle. He told the court that as he neared a road junction that was 30 meters away, another vehicle (Wasili cab) emerged from the junction. A motorcycle also approached from the opposite direction at very high speed and lost control because of the presence of the second motor vehicle. His motor vehicle slowed down and swerved but the motorcycle still hit the vehicle's driver's side. The vehicle stopped at the point of impact as per photos exhibited. 8. DW4 said he was another eye witness and confirmed the evidence of DW3. According to him the vehicle was not overtaking and it was the motorcycle the deceased was riding that was over speeding before losing control and knocking the motor vehicle. 9. In determining liability, the trial court observed that it is difficult on the totality of the evidence to determine who among the eye witnesses spoke the truth on blameworthiness for the accident. The court surmised that since the point of impact was the vehicle driver's door, the vehicle driver was either swerving to the left after seeing the motorcycle while overtaking or on seeing the motorcycle approaching his vehicle. The court further noted that the claim of presence of a third vehicle at a road junction at the scene were contested facts. 10. In the circumstances, the learned trial Magistrate reached the conclusion that it was impossible to know who between the accident vehicle driver and the deceased caused the accident. She then decided to apportion liability equally between them. 11. On quantum of damages, the trial court favoured the multiplier method of assessing damages for loss of dependency, adopting 20 years and the minimum wages of an upgraded artisan as the multiplier and multiplicand respectively. Using a dependency ratio of 2/3, the court computed damages for loss of dependency in the sum of Kshs 2,705,264/=. 12. Kshs 60,000/= and Kshs 180,000/= for pain and suffering and loss of expectation of life were further granted to the deceased's estate under the **Law Reform Act.** 13. The above figures were granted subject to the adjudged 50% contribution to occurrence of the accident by the deceased. 14. Learned Counsel for the parties filed written submissions which I have considered against the record. **Guiding Legal Principles.** 1. This being a first appeal I am required to reconsider the evidence adduced, evaluate it and draw my own conclusions bearing in mind that I did not hear and see the witnesses who testified{(see **Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] EA 123** }. The Court of Appeal for East Africa in **Peters vs Sunday Post Limited [1958] EA 424** underscored the same principles delivering itself thus: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 1. ***In re-considering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** 2. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** **DETERMINATION** **Liability.** 1. I have perused the record and considered the parties’ submissions in the lower court and in this Appeal. The Appellants submit that the issue of liability was not determined according to the applicable standard of proof on a balance of probability. 2. In the case of **Kanyangu Njogu vs Daniel Kimani Maingi ( 2000) eKLR and William Kabogo Gitau vs George Thuo & 2 Others (2010) 1 KLR 526** it was opined that where the court is to decide between two probabilities a balance of probability is shown if there is evidence that one probability is more probable than not**.** The same legal position was taken in the case of **Palace Investments Ltd vs Geofffrey Kariuki Mwenda & Another (2007) eKLR** . 3. The judicial determination in **Naftaly Muiruri Macharia vs Samuel Maina & Another (2018) eKLR** and **Janerose Auma Ochumba vs John Nyangi & Another (2021) eKLR** is also relevant and reiterates the same principle. 4. The court is further guided by the case of **Ribiru vs Ndung’u ( suing on behalf of the Estate the Late Joram Ndung’u Mwaniki ) & 2 Others ( Civil Appeal No. 37 of 2023 ) (2024) KEHC 339 (KLR) ( 25 January 2024) (Judgement )** wherein it was observed that interference with a trial court’s Judgement on liability for a claim can only happen in exceptional circumstances, as in instances where wrong principles are invoked or proper legal principles are not taken into account. 5. There is no dispute that the collision occurred on the Appellants'/motor vehicle's lane. Whereas DW3 stated that it was the presence of a second motor vehicle that caused the deceased's motorcycle to lose control and veer onto his lane, DW4 appears to ascribe blame to the deceased alone. PW2, another purported eye witness, had testified to the presence of another motor vehicle and its role in occurrence of the accident. 6. The police would have provided additional evidence but did not conclude investigation. I concur with the trial court in the circumstances that the parties bear equal responsibility for the mishap and I see no misdirection of the part of that court. **Quantum of Damages Under The Fatal Accidents Act** 1. On the claim for damages for loss of dependency, there is no evidence of the deceased's earnings the parties agreed to adopt the multiplier approach of assessment of damages for loss of dependency under the **Fatal Accidents Act.** Of course the lump sum method is also acceptable in the circumstances. 2. The Appellants contest the court's adoption of the minimum wage of Kshs. 16,907. 90 being the minimum pay for an upgraded Artisan, instead of the minimum wage of Kshs. 12,522.70 of a general labourer. The Respondent argue that "boda boda" riders are skilled workers unlike general labourers and so the court did not misdirect itself. 3. I agree with the Respondents. Since there is no specific provision for motorcycle riders in the now repealed **Regulation of Wages Order, 2018** the trial court did not err by adopting the minimum wages of an upgraded artisan since "boda boda" riders may also be categorized as skilled workers. **Damages Under The** **Law Reform Act** 1. **Pain & Suffering** 2. The evidence shows that the deceased succumbed to his injuries on the same date of occurrence of the accident. The Appellants propose a sum Kshs. 10,000/= under this head as reasonable compensation for the deceased’s Estate. Cases cited by the Appellants, however, are old decisions rendered between 2015 and 2017. I think the cases cited by the Respondents handed down between 2015 and 2022 and which show awards of Ksh. 50,000/= for pain and suffering are more relevant owing to the ever present inflation factor. The court finds no basis on which to disturb the lower court’s award of Ksh. 60,000/=. 3. **Loss of Expectation of Life** 4. The trial court’s award of Ksh. 180,000/= under this head is also found reasonable. The conventional awards have been ranging between Kshs. 100,000/= and Kshs. 200,000/=. 5. The Appellants complain of double compensation of the Respondents for benefiting both under the **Law Reform Act** and the **Fatal Accidents Act.** This argument is not valid as it is now trite law that the law allows compensation of the same beneficiaries under the two statutes. The court only needs to take into account the quantum of damages awarded under one statute while assessing damages under the other statute. Although the trial court’s Judgment does not indicate that this factor was taken into account, I find no prejudice occasioned to the Appellants given the reasonable awards of the lower court. 6. With regard to special damages, the learned trial Magistrate’s award does not seem to be contested in this Appeal. 7. In the result, the Appeal is dismissed in its entirety with costs to the Respondents. **J M NANG’EA, JUDGE** **Judgment delivered virtually at Nakuru this 17th day of July, 2026.** **In the presence of:** **Appellants’ Advocate, Mr. Muriithi for Mr. Kisilah.** **Respondents’ Advocate, Ms Njuguna.** **The Court Assistant (Jeniffer).** **J. M. NANG’EA, JUDGE**