https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7817

# **REPUBLIC OF KENYA** ## **IN THE HIGH COURT OF KENYA AT MURANG’A** ### **CIVIL APPEAL NO. 25 OF 2023** **JAMES NG’ANG’A GITAU** ……………………………….. 1ST APPELLANT **OHAMI MILLERS LIMITED** ……………………………. 2ND APPELLANT VERSUS **CHARLES MUCHOKI MBUGUA** (Suing as the personal representative of the estate of Peris Wambui (deceased))………………………………………………………………. 1ST RESPONDENT **TERESIA NJERI** …………………………………………………. 2ND RESPONDENT *(Being an appeal from the judgment of Hon. E. Muriuki Nyaga (SPM) delivered in Murang’a CMCC No. 175 of 2012 on 13th April 2023)* # JUDGMENT 1. This appeal arises from the judgment of the Senior Principal Magistrate delivered on 13th April 2023 in Murang’a CMCC No. 175 of 2012. The suit arose from a fatal road traffic accident that occurred on 10th March 2010 along the Murang’a–Kangema road involving motor vehicle registration number KAP 269M . The Respondents instituted the suit seeking damages under the Law Reform Act and the Fatal Accidents Act following the death of Peris Wambui, a minor aged three (3) years, who was allegedly ran over and killed by the aforementioned Motor Vehicle. 2. Upon conclusion of the trial , the court apportioned liability in the ratio of 50:50 and awarded damages as follows: 1. Pain and suffering – Kshs 100,000/= 2. Loss of expectation of life – Kshs 100,000/= 3. Loss of dependency – Kshs 1,000,000/= 4. Special damages – Nil 3. The Appellants were aggrieved by the outcome and lodged the present appeal. # **Grounds of Appeal** 1. The Appellants faulted the trial court on the grounds that: 1. *The Learned Magistrate wrongly apportioned liability against the 1st appellant despite there being no evidence of fault on his part.* 2. *The Learned Resident Magistrate apportioned blame at 50/50 without stating whether it was between the appellants and the defendants and the third party or the 3 sides and why.* 3. *The Learned Magistrate found the defendants liable despite clear evidence that the third party negligently failed to protect the 3-year-old child whom she left in the care of other young children who obviously were incapable of taking care of the 3-year-old.* 4. *The Learned Magistrate erred in fact and in law in awarding Kshs 100,000 for pain and suffering and Kshs 100,000 for loss of expectation of life.* 5. *The Learned Magistrate erred in fact and in law in making an award of Kshs 1,000,000 for loss of dependency after applying irrelevant authorities that dealt with 13 and 16-year-old children while the late Peris Wambui was aged 3 years. The court made an excessive and unjustified award for loss of dependency.* 2. The Appeal proceeded by way of written submissions. **The Appellants’ submissions** 1. The Appellants’ first submission touches on a procedural issue. They have stated, the suit had been dismissed on 27.5.2016 under **Order 17 Rule 2 of the Civil Procedure Rules**; that the dismissal order was never lifted. It is therefore argued that the subsequent judgment was a nullity as the subject matter was non-existent. 2. The Appellants further submit that the Respondents failed to prove any negligence on the part of the 1st Appellant; that the trial magistrate provided no analysis of the evidence to justify the 50% apportionment on liability and that, aside a contested criminal inquest, there was no proof that the driver of the subject vehicle caused the accident. They have relied on ***Abbay Abubakar Haji Patuma Ali Abdulla Vs Freight Agencies Ltd (1984)KECA 14 (KLR****)* to argue that where evidence is insufficient to establish negligence, a party cannot be found guilty . 3. It is further submitted that the awards were excessive. For pain and suffering, it is contended a nominal award of Kshs 10,000, ought to have been made as the child died on the day of the accident. On loss of dependency, they argue that Kshs 1,000,000 for a 3-year-old was unjustified and suggested Kshs 300,000 as a more appropriate global sum. **Respondent submissions.** 1. It is the respondent’s submission that the appeal is an abuse of the court process. He argues that the 50:50 apportionment was between the mother of the child and the Appellants as a 3- year old could not be held liable. That in any event the Appellant had a higher duty of care especially around children as per the finding of the court in the case of ***Patrick Muli vs EM [ 2021]KEHC 9034( KLR) .*** The Respondent has further cited ***James Theuri Wangare vs Board of Trustees Archdiocese of Nyeri & Another (2005) eKLR*** to emphasize that a 3-year-old has completely no road -sense. 2. On damages, it is submitted that the award for pain and suffering was fair as the child did not die instantly but was taken to the hospital. For general damages(sic), he has relied on ***Mutunga Vs Nyamasyo (2022)eKLR,*** where Kshs 700,000 was awarded for a minor below one year, to justify the lower court’s award. The award on loss of expectation of life was defended on the basis of a similar award which was awarded in the case of ***Ruth Achieng vs Kenyatta National hospital.( 2021) e KLR*** **Summary of the Evidence** 1. **PW1 was** the mother of the deceased. She testified that her daughter followed her without her knowledge while she was going to work. She was trying to settle down when she heard screeching breaks followed by a bang. From where she was, she could see that it was her child who had been hit. She rushed the child to muranga District hospital but she was pronounced dead on arrival. On cross- examination, she admitted that she did not see how the accident happened. She further stated that she had left the child with her 6-year-old brother and a neighbor and had not noticed that the child had followed her. 2. **DW1**, was the driver of the vehicle. He stated that he was driving at an approximately 50 kph ,when the child suddenly emerged from tall Napier grass onto the road. He testified that the grass was taller than the child, making her invisible until she entered the road. He applied emergency brakes but the ground was wet and the vehicle skidded. 3. On cross- examination he stated that the accident occurred on the middle of the road, and the child had emerged from the left and was attempting to cross to the right. On cross- examination, he insisted that the child suddenly emerged from the side of the road and she was unaccompanied. **Analysis and determination** 1. This being a first appeal, this court is obligated to re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. ( see : ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123*.** 2. The issues arising for determination are: a).Whether the Judgment was a nullity. b).Whether the trial court properly apportioned liability. c).Whether the award of damages was excessive. # *Whether the Judgment was a Nullity* 1. The Appellants submitted that the suit had been dismissed for want of prosecution on 27th May 2016 under Order 17 Rule 2 of the Civil Procedure Rules, and that the dismissal order was never formally set aside. 2. I have perused the lower court record and I find this submission to be factually wrong. The correct position is that a *Notice to show cause dated* *14/4/2016* was issued to the parties to appear in court and show cause why the suit should not be dismissed for want of prosecution. On 27/5/2026 counsels for both parties appeared and informed the court that “there was a moratorium” . Subsequent proceedings show that the moratorium in question was issued was against all claims which were insured by **concord insurance**. Nevertheless, the counsels having shown sufficient cause on 27/5/2016, the suit was not dismissed and was instead scheduled for a mention on a further date. 3. Admittedly, the typed proceedings do not give an accurate representation of what transpired in court on the 27th May 2016. The correct representation is reflected on the Magistrate’s handwritten notes, which I have had to refer to. A keen scrutiny of the Magistrate’s notes indicates that there was no signature against the dismissal order that had been appended on the proceedings. The suit was therefore live at the time of the judgment, and therefore the judgment was valid. # *Whether Liability Was Properly Apportioned* 1. From the evidence of PW2 and PW1 there is no contest on how the accident occurred. The deceased was crossing the road to follow the mother (pw2) . PW2 was not aware that the child had followed her. On the other hand, it was the testimony of pw1 that the child emerged on to the road suddenly. The Appellants took out a 3rd party Notice against PW2as the caregiver of the child . They sought indemnity or contribution by PW2’s for any liability , that may be entered against them for leaving the deceased to wander onto the road ,unattended. The court apportioned liability in the ratio of 50/50. 2. The Appellants have taken issue with this apportionment. Firstly, they have argued that it is not clear from the judgment whether the apportionment was between the deceased and Appellants or between the Appellants and the 3rd party. 3. I have perused the judgment, and while I agree that the judgment is tainted with some vagueness, am not convinced the parties who found to be liable were unclear. The relevant portions of the judgment read: *“ He ( referring to the 1st Appellant) blames the guardian of the child for letting her run off to the road unattended….. From the evidence adduced I will apportion 50: 50”* . **(page 132 of the Record of Appeal).** Am satisfied that the judgment in this regard adequately captures the decision of the court. The apportionment was between the appellants and the 3rd party , the child’s minder. 4. The court has observed that no third-party directions was taken on this matter, raising the question as to whether the judgment against the third party was validly entered. However there was no cross- appeal on this issue and therefore this court has no jurisdiction to entertain it . 5. The Appellants have further faulted the trial court for apportioning liability to the 1st Appellant yet there was no evidence to support such a finding. I have considered the testimony of the 1st Appellant . He stated that he was driving at 50km per hour, which evidence I find implausible if the impact considering the fatal impact on the child. He further stated that the child emerged from the left, but the impact was on the middle of the road. Unless the child was running, and there was no evidence to suggest that she was, then he could have safely swerved to the right . The only plausible conclusion was that he was driving at a much higher speed than he admitted , in the circumstances. The circumstances in question were that it was misty and the ground was wet. 6. Whereas Pw2’s testimony was that she did not see how the accident happened, DW1’s own testimony revealed negligence on his part. It is trite that Motorists bear a higher responsibility on the roads as they are in charge of potentially killer machine. The 50/50 sharing ratio was reasonable. I find no reason to interfere with it. # Whether the award of Damages was Excessive 1. The principles upon which an Appellate court can disturb the findings of a trial court were set out by the court of Appeal in the case of ***Kemfro Africa Ltd T/A Meru Express Services, Gathogo Kanini v A M Lubia & Olive Lubia***, the Court held as follows*: “The principles to be observed by this appellate court, in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are, that it must be satisfied that either, the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that short of this, the amount is so inordinately high that it must be wholly erroneous estimate of the damages.”* 2. On pain and suffering the deceased was pronounced dead upon arrival at the hospital. The trial court awarded Kshs 100,000/= for pain and suffering. Awards under this head are ordinarily modest where death occurs instantly or within a short period after the accident. Comparable authorities generally range between Kshs 10,000/= and Kshs 50,000= depending on the period of suffering. The trial court has not given a justification for the unusually high award under this sub- head. I find the award to be too excessive and not supported by past decisions with similar period of suffering. The award was therefore not justifiable. I consider an award of ksh. 35,000 to have been reasonable and hereby award the same. I have considered the following decisions which compare well with the present case on the aspect of pain and suffering: * 1. ***Ngulu vs Kyulu[2025] KEHC 14747(KLR)*** 2. ***Titus Zebedee Omondi & Ano vs GPOO&A no [2021] KEHC 2643(KLR)*** 3. The conventional award under the head of loss of expectation of life generally range between Kshs 100,000/= and Kshs 200,000/=. The award of Kshs 100,000/= by the trial court was reasonable and I decline to interfere with it. 4. Finally, on the loss of dependency, the Appellant has argued that the award was arrived at on the basis of irrelevant Authorities. The deceased was aged three years at the time of death. I have looked at the Authorities relied on by the trial court and I agree with the Appellant that the said decisions were in respect of children who much older than the deceased herein. I therefore consider the award to have been excessive and this court has a basis to interfere with it. 5. In the case of [***Ng’ang’a v Oketch & another (Suing as the legal representative of the Estate EOO) [2023] KEHC 20058 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/20058/eng%402023-07-06), the high court made an award of ksh. 800,000 in respect of a child who died at the age of 6 years. Whereas the child in the cited decision was older, inflation for the past 3 years must be taken into consideration. Therefore, I consider an award of ksh. 800,000 for loss of dependency to be reasonable. 6. In the end, the Appeal partially succeeds, and the following are the final orders: a). The Appeal against the lower court’s finding on liability is hereby dismissed. b). The award of ksh. 100,000 for pain and suffering is hereby set aside and substituted with ksh. 35,000. c) The award of ksh. 100,000 for loss of expectation of life is upheld d). the award on loss of dependency is set aside and substituted with ksh. 800,000. **Total – Kshs 935,000/=** e). After contribution at 50%, the net award payable to the Respondents is Kshs 415,000/= together with interest from the date of judgment at the lower court. f) Each party to meet their own costs Dated, signed and delivered virtually, at Isiolo this 28th day of May 2026. S. Chirchir Judge. In the presence of : Roba Katelo- court Assistant.