https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11406

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E208 OF 2024** **JOSEPH MWANGI GITHUKA ..........................................1ST APPELLANT** **CATHERINE NYACHIRA KINUTHIA ………………... 2ND APPELLANT** **VERSUS** **NICHOLAS ITIBI NDUNGU** **& EDWARD NDUNGU MUTHEU** **(Suing as the Administrators of the Estate of** **GEORGE KARANJA NDUNGU (Deceased) …...………… RESPONDENT** *(Being an appeal from the judgment of the Honourable L.L Gicheha Chief Magistrate, delivered on 30th October 2024 in Kikuyu CMCC no. E336 of 2022 NICHOLAS ITIBI NDUNGU & EDWARD NDUNGU MUTHEU (suing as the administrators of the estate of George Karanja Ndungu-Deceased) –versus- JOSEPH MWANGI GITHUKA & CATHERINE NYACHIRA KINUTHIA)* **JUDGMENT** **INTRODUCTION** 1. This is a first appeal arising from the judgement of the trial court delivered on 30th October 2024 by Hon L.L Gicheha (CM) in **Kikuyu CMCC no. E336 of 2022.** The trial court found the Appellant 100% liable for a road traffic accident that occurred on 8th March 2022 and awarded the Respondents damages as: - -Loss of dependency 1,482,624/- -Loss of expectation of life 150,000/- -Pain and suffering 20,000/- -Special damages 550/- **Total 1,653,174/-** 1. The Appellant, being dissatisfied with the decision lodged this appeal by way of a Memorandum of Appeal dated 29th November 2024, contending, in summary, that liability was never proved against it and that the resultant award was, in any event, excessive. **BACKGROUND AND PLEADINGS BEFORE THE TRIAL COURT** **3.** By a Plaint dated 18th October 2022, the Respondent sued the Appellants as the Administrator ad litem of the estate of **GEORGE KARANJA NDUNGU** (deceased). It was pleaded that on 8th March 2022, the deceased was a lawful pedestrian standing on the footpath when the 1st Appellant so negligently and recklessly drove, managed and/or controlled motor vehicle registration number KCR586H, driven along the Kikuyu – Wangige road when at Kwa Mbao area, he caused the same to unlawfully over speed, when it was unsafe to do so, veer off its lane and to violently collide into the Respondent on the footpath, fatally injuring the deceased **4.** The particulars of negligence pleaded against the 1st Appellant included driving at excessive speed, careless driving, failure to keep a proper lookout or sufficient regard for the deceased's safety and causing the accident. The Respondent further pleaded that the 2nd Appellant was vicariously liable for the negligent acts of the 1st Appellant, and set out particulars of special damages totalling Kshs 550/= being a motor vehicle search fee and also prayed for damages under the Law Reform Act and Fatal Accident Act plus costs and interest of the suit. **5.** By a Statement of Defence dated 11th November 2022, the Appellants admitted only the descriptive averments in paragraphs 1 and 2 of the Plaint. They denied that the 1st Appellant was driving the said motor vehicle nor was the 2nd Appellant the owner of the said motor vehicle and put the Respondent to strict proof thereof, and denied the occurrence of the accident in the manner pleaded, the alleged negligence, and the alleged loss and damage. 6. In the further alternative, and without prejudice to the foregoing, the Appellants pleaded that the accident was caused or substantially contributed to by the negligence of the deceased himself, particularised as walking on the road in a zig zag manner, failing to take sufficient precaution for his own safety, failing to have regard for other road users and for the said motor vehicle, and engaging in an animated conversation while walking on the road. **THE EVIDENCE AT TRIAL** **7. PW1, PC ERICK MTAWA**, testified that a fatal accident occurred on 8/3/2022 of motor vehicle KCR568H and a pedestrian. **JOSEPH MWANGI GITHAKA** was the driver of the accident vehicle. The driver hit a male pedestrian crossing the road from right to left. He was rushed to PCEA Kikuyu Hospital. **8.** In cross examination **PW1** stated that the pedestrian was crossing from left to right and the point of impact was on the left front side of the vehicle. He said that he never visited the scene and did not have the police file with him. He told the court that there is no zebra crossing on the road but the pedestrian had a right to cross the road hence he blamed the motor vehicle as the driver was able to see the pedestrian. **9. PW2 CHRISTIAN EDWARD NDUGU MUTHEE** the father to the deceased adopted his witness statement and produced among other documents the police abstract, the death certificate, the limited grant of letters of administration ad litem, invoices and receipts relating to funeral expenses and the deceased's letter of employment dated 24/5/2021. **10.** He testified that he did not witness the accident and learnt of it from his other son. The deceased was aged 31 years at death, worked as a casual labourer at Kiambu County earning a monthly salary of Ksh. 13,780/- which he used to support **PW2**. He said that the deceased was not blessed with a child. **11.** **PW3 DAVID GACHIRIMA** testified that she witnessed the accident as the deceased was ahead of her walking but not crossing the road. She adopted her witness statement and said that the deceased was on the left side of the road while facing Wangige from Kikuyu direction and the right side of the road was under construction thus the left side of the road was being used by vehicle from both directions. She said that the accident vehicle was being driven at a high speed. **12. DW1, JOSEPH GATHUIKE**, told the court that he worked as a cyber-deliverer. He adopted his statement dated 30/5/2024. He testified that the point of impact in the road was on the left side of the road. He said that the accident occurred at 7.40pm it was dark and he was using his lights. He told the court that he did not see the deceased before he hit him as he was driving at 50km/hr. There were street lights. **13. DW2 SGT BARASA** testified that they did not charge the driver. The accident happened at night. He said he was not working at Kingeero traffic base. He confirmed that the road and the footbridge were both still under construction during the accident. He said that he could not state the point of impact because he did not visit the scene. He said that there were people who witnessed the accident but did not come to the police station. **THE JUDGMENT OF THE TRIAL COURT** **14.** On the question of liability the trial court reasoned that the road was under construction and one side of the road was blocked thus the pedestrians and vehicles from both directions were using one lane. The 1st Appellant was under a duty to drive at a slow speed due to the narrowness of the road. For this reason, the court found that the Appellant having been in control of the motor vehicle and having been in a position to see what was in front of him, should have driven at a slow speed and carefully. **15.** On that basis, the trial court apportioned liability at 100% against the Appellants. **16.** On quantum, the trial court awarded Kshs 20,000/= for pain and suffering, Kshs 150,000/= for loss of expectation of life, and, for loss of dependency, adopted an average monthly income of Kshs 13,788/=, a multiplier of 27 years, and a dependency ratio of 1/3, yielding Kshs 1,482,624/=. Special damages were assessed at Kshs 550/=, with costs and interest awarded to the Respondent. **THE APPEAL** **17.** By its Memorandum of Appeal, the Appellant raises five grounds, which may fairly be summarised as follows: (a) That the learned magistrate erred in law and in fact in finding the Appellant herein 100% liable. (b) That the Honorable learned magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum. (c)That the Learned magistrate erred in law and fact in awarding costs the suit to the respondent. **18.** The Appellant prays that the appeal be allowed, that the judgment of the trial court be set aside, and that the costs of the appeal be awarded to them. **APPELLANTS’ SUBMISSIONS** **19. On liability,** counsel for the Appellant submits that the Respondent was also to blame for the accident and that the trial court relied on factors that were not raised or proven by the Respondent to arrive at its judgement. Reliance was placed on the case **Domitila Wangui Karugu & Another –vs- Dagu Hidris Haide (2020) eKLR**. **20. On quantum,** under loss of expectation of life the Appellants submitted that Ksh. 150,000/- is excessive award under this head. A reasonable amount of Ksh. 100,000/- is sufficient because it is the conventional figure and the Respondents had prayed for Ksh. 100,000/-. They relied on the case of **Awale Transporters Ltd Mombasa vs Wakhungu & Another (suing as Legal Representatives of the Estate of Alfred Sabwami Namasambu-deceased) (civil appeal E103 of 2022) [2024] KEHC 2680 (KLR).** **21.** The Appellants submit that the was no evidence showing the deceased earned a monthly salary of Ksh. 13,788/-. The Appellants prayed that the Regulation of Wages (General) (Amendment) Order 2018 be adopted and the deceased be categorized as a general worker earning Ksh. 7,240/- hence the multiplicand of the lower court under this heading be varied by this Honourable Court. **22.** The Appellants prayed that the multiplier used by the lower court be varied as the Respondents in their submissions had urged the court to adopt a multiplier of 24 years. The Appellants submitted that a multiplier of 20 years is sufficient under this head. They relied on the case of **Bash Hauliers vs Dama Kalume Karisa & Another [2020] eKLR** where the appellate court upheld a multiplier of 20 years where the deceased 30 years of age. **RESPONDENT'S SUBMISSIONS** **23.** Counsel for the Respondent, in opposing the appeal, submits that the point of impact was on the left side of the vehicle. This was consistent throughout the testimony of Plaintiff’s witness and Defendants’ witnesses hence the Respondent concurs with the trial court’s judgement. They relied on the case of **Mwangi & Another vs Kimani & 5 others (Civil Appeal 200 of 2020) [2022] KEHC 14905 (KLR) (Civ) (28 October 2022) (judgement) and Mary Njeri Murigi vs Peter Macharia & Another [2016] KLR.** **24. On quantum,** under loss of expectation of life they submit that the award of Ksh. 150,000/- should be upheld as the deceased had a long life ahead of him. They relied on the case of **Majani & Another (suing as the legal representatives/administrators of the late Antony Liphede) vs Godfrey (Civil Appeal E030 of 2022) [2023] KEHC 18048 (KLR) (26 may 2023)** judgment where the appellate court upheld an award of Ksh. 200,000/- for loss of expectation of life for a 31 years old. 25. The Respondent submitted that the multiplicand used by the trial court should not be interfered with by this Honorable Court as the Respondent produced a copy of the letter from Kiambu County Government which confirmed that the deceased was a casual labourer employed by the Kiambu County Government. He also confirmed that the deceased was earning Ksh. 13,728/- They relied on the case of **JACOB AVIGA MARUJA & ANOTHER VS SIMEONE OBAYO (2005) eKLR** which provided production of certificates is not the only way to prove the profession of a person as this will do an injustice to many Kenyans who are illiterate and do not keep records. The Respondent submits that the multiplier of 27 years is sufficient and the same should not be disturbed. They prayed that the appeal be dismissed. **ISSUES FOR DETERMINATION** **26.** Having carefully considered the Memorandum of appeal, the lower court record and the parties’ submissions, this Court has framed two (2) issues for determination which are; (i) **LIABILITY** – Whether the learned magistrate erred in law and in fact in finding the Appellants herein 100% liable. (b) **QUANTUM** – Whether the learned magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum. © Costs **ANALYSIS** **27.** This being a first appeal, this Court is under a duty to re-evaluate and re-consider the evidence adduced before the trial court and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and making due allowance in that regard **(SELLE vs ASSOCIATED MOTOR BOAT CO LTD [1968] EA 123**. On matters of fact, this Court will not lightly interfere with the findings of the trial court unless satisfied that those findings were not based on the evidence on record, proceeded from a misapprehension of the evidence, or were plainly wrong. ***A) LIABILITY- Whether the learned magistrate erred in law and in fact in finding the Appellants herein 100% liable.*** **28.** The burden of proving negligence in a civil claim rests on the party who asserts it, and does not shift merely because the Defendant has pleaded a denial or an alternative case of contributory negligence **(Sections 107 and 108, Evidence Act, Cap 80)**. The standard to be met is proof on a balance of probabilities — that is, that the occurrence of the fact alleged is more probable than not — and nothing less will suffice, but equally nothing more is required **(Miller v Minister of Pensions [1947] 2 All ER 372**) **29.** It is trite that the mere occurrence of an accident, or the mere fact that a claimant's decendent died in consequence of contact with a Defendant's motor vehicle, does not, *ipso facto*, establish negligence on the part of the Defendant or its driver. A claimant must go further and adduce evidence, whether direct or circumstantial, from which negligence — and specifically the particulars of negligence pleaded — may properly be inferred. **30.** In this case, **PW3 (DAVID GACHIRIMA**) who witnessed the accident told the court that the deceased was on the left side of the road when he was hit and that the motor vehicle and the deceased were heading towards the same direction. The accident motor vehicle was being driven at a high speed. The left side of the road was being used by vehicles from both sides because the right side was under construction. **31.** **PW3’s** evidence is corroborated by the testimony of **DW1 (JOSEPH GATHUIKE)** who said that the point of impact in the road was on the left side of the road. He told the court that he hit the deceased by the front left side of the car. The accident happened at 7.40pm, it was dark, he was using his lights and there were street lights also. He said that he was driving at 50km/hr. **32.** **DW2 SGT BARASA** said in defense that the road and the foot bridge were under construction when the accident occurred. He said that he did not witness the accident but there were people who witnessed the accident but did not go to the police station. **33.** Considering the testimony of **PW3** (eye witness), **DW1** (1st Appellant) and **DW2** this Court is satisfied that the trial court’s finding on liability was anchored in the evidence before it. Therefore, the Appellants are 100% liable for the accident. **34.** This ground of appeal is found to be devoid of merit and it is hereby disallowed. ***B) QUANTUM OF DAMAGES - Whether the learned magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum.*** 35. Liability having been established, it is necessary to assess the quantum of damages payable herein. 36. As far as the question of quantum is concerned, an appellate court will not ordinarily disturb an award of damages unless it is shown that the trial court proceeded on a wrong principle, took into account irrelevant matters, omitted relevant matters from consideration, or arrived at a figure so inordinately high or so inordinately low as to constitute an entirely erroneous estimate **(PETERS V SUNDAY POST LTD [1958] EA 424)**. **37.** The Court of Appeal in **MZAME VS LALU (SUING AS THE ADMINISTRATOR OF THE Estate of the Late Allen Warito Lalu) & Another (Civil Appeal E077 of 2022) [2025] KECA 1742 (KLR) (24 October 2025) (judgment)** persuasively cited the case of Hyder Nthenya Musili & Another vs China Wu Yi Limited & another (2017) eKLR where the court held: **“The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the award ranges from Ksh. 10,000/- to Ksh. 100,000/- with higher damages being awarded if the pain and suffering was prolonged before death”**. This Court finds no reason to interfere with the trial courts finding and will therefore uphold the award of Ksh. 20,000/- by the trial court under Pain and suffering. Subsequently, this court substitutes the award of Ksh. 150,000/- and awards Ksh. 100,000/- under loss of expectation of life. **37**. On loss of dependency, in the case **CHUNIBHAI J.PATEL AND ANOTHER VS P.F HAYES AND OTHERS [1957] EA 748,749**, the Court of Appeal stated the law on assessment of damages under the Fatal Accidents Act which is cited in parts as follows: **“*The Court should find the age and expectation of the working life of the deceased and*** ***consider the ages and expectations of life of his dependants, the net earning power of*** ***the deceased (i.e his income less tax) and the proportion of his net income which he*** ***would have made available for his dependants. From this it should be possible to arrive*** ***at the annual value of the dependency, which must then be capitalized by multiplying*** ***by a figure representing so many years' purchase.*** *(Emphasis added)* **38.** As to income, the only direct documentary evidence of the deceased's earnings was his letter of renewal of engagement as a casual worker from County Government of Kiambu dated 24th May 2021. The letter was produced as documentary evidence and the Appellants objected to its production. The letter shows that the deceased was earning Ksh. 572/- per day. **39.** At page 54 line 10 of the Record of Appeal indicates that the Plaintiff’s attempt to produce the employment letter was objected to by the defence and it was marked for identification. There being no documentary evidence to prove the deceased’s earnings this court will use The Regulation of Wages (General) (Amendment) Order 2018 issued under Legal Notice no.2. which provides the wages for a general worker as Ksh. 7,240.95/- as the deceased was a resident of Wangige area. **40.** Income for the purpose of computing dependency must be derived from the evidence actually on record, not from an arithmetic compromise between the litigating positions of the parties. The trial court indicated that the income is Ksh. 13,728/- but did not disclose how it arrived at this figure. The same is set aside and substituted with Ksh. 7,240.95/- **41.** The deceased was not married but he left behind his parents and siblings as per the evidence on record. Hence this Court concurs with the trial court’s dependency ratio of 1/3 as sufficient in this case. **42.** As to the multiplier, the deceased was aged 31 years old at death, with an ordinary legal retirement age of 60, representing a mathematical balance of 29 years. Our courts have consistently tempered such mathematical balances to allow for the vicissitudes and imponderables of life. Therefore this Court will not disturb the trial court’s multiplier of 27 years. **43.** On this footing, loss of dependency is properly computed as Ksh. 7240.95 x 12 x 27 x 1/3 = 782,023/-. **44. Special damages:** it is trite law that special damages must be specifically pleaded and strictly proved. The Respondent pleaded Ksh. 550/- as special damages and the same was strictly proved. **45.** This Court is satisfied that this ground of appeal is partially meritorious as the learned magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum. **C) COSTS** **46**. The Respondent will have costs in the lower court and each party shall bear their respective costs of the appeal. **FINDINGS AND DETERMINATION** **47.** For the reasons set out above, this Court finds the appeal to be partially with merit and the same is hereby allowed as follows; **(a)** This Court finds thatthe trial court's judgment on apportionment of 100% liability against the Appellants was supported by the evidence on record and it is hereby upheld; (b) The Judgment on quantum is hereby set aside and substituted with a judgment in favour of the Respondent against the Appellants as follows; (i) Pain and suffering, Kshs 20,000/=; (ii) Loss of expectation of life, Kshs 100,000/=; (iii) Loss of dependency, Kshs 782,023/=; (iv) Special Damages Kshs.550/= (v) Interest at court rates shall accrue on the special damages component from the date of filing suit, and on the general damages component from the date of the judgment in the lower court, in each case until payment in full. (vi) Parties shall bear their respective costs of the appeal but the Respondent shall have costs in the lower court. **DATED, SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 27TH DAY OF JULY, 2026** **A.MSHILA** **JUDGE** **In the presence of;** Millicent – Court Assistant N/A for the Appellants Kamau for the Respondents