https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7515

Jepkorir (Suing on their own behalf and of the Estate of the Late Josephat Kiplimo Rotich - Deceased) v Palm Oil Ltd (Civil Appeal E008 of 2024) [2026] KEHC 7515 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7515 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E008 of 2024 RN Nyakundi, J June 2, 2026 Between Grace Jepkorir (Suing On Their Own Behalf And Of The Estate Of The Late Josephat Kiplimo Rotich - Deceased) Appellant and Palm Oil Limited Respondent Judgment 1.This is an appeal filed on 7th October 2024 based on the following memorandum of appeal as against the judgment of the trial Court dated 2nd October 2024:a.That the learned Magistrate erred in law and fact in apportioning liability at 60% to 40%for the Appellant as against the Respondent instead of holding the Respondent 100% liable in line with the evidence on recordb.Thatthe learned Magistrate erred in law and fact using dependency ratio of 1/3 instead of 2/3.c.Thatthe learned Magistrate erred in law and fact in ignoring the evidence of PW-1, Grace Jepkorir hence arriving at an erroneous conclusion.d.Thatthe learned trial Magistrate erred in law and I in fact in failing to evaluate, consider and determine all the issues raised in the pleadings and evidence especially as to how the accident occurred hence an erroneous judgment.e.Thatthe learned trial Magistrate erred in law and in fact in failing to hold the Respondent wholly liable for the accident.f.Thatthe learned trial Magistrate failed to consider the Submissions and authorities filed by the Appellant hence an erroneous Judgment. 2.Before the trial Court was a claimed from damages based on a road traffic evidence involving motor vehicle KWA 127R/ZC 9731 Marcedez Benz Trailer which is alleged to have collided on 24th February 2018 with the Plaintiff and Appellant to this appeal who was exercising his right as a pedestrian along Eldoret Webuye road. 3.The alleged particulars of negligence on the part of the Respondent to this appeal as pleaded by the Appellant/Plaintiff then include the following:a.Driving motor vehicle registration number KAW 127R/ZC 9731 Marcedez Benz Trailer without due care and attention.b.Driving motor vehicle registration number KAW 127R/ZC 9731 Marcedez Benz Trailer at an excessive speed without due regard to the safety of other road users.c.Failing to slow down, stop, swerve and/or in any other way control motor vehicle registration, Number KAW 127R/ZC 9731 Marcedez Benz Trailer to avoid knocking down the deceased.d.Failing to manage control and/or steer the motor vehicle with care to other road users.e.Driving under the influence of alcohol.f.Driving motor vehicle registration number KAW 127R/ZC 9731 Marcedez Benz Trailer at an excessive speed in the circumstances.g.Driving a defective motor vehicle.h.Veering of the road causing the motor vehicle to hit the deceased. The Plaintiff will rely on the doctrine of res ipsa loquitur 4.It is against this background the learned trial Magistrate upon hearing evidence from both side ruled as follows:a.It is clear from the evidence that the occurrence of the accident and the fact that the deceased here died as a result is confirmed. The motor vehicle involved and the ownership thereto is not in issue. The question for determination lies in the circumstances of occurrence of the accident, who to blame and to what extentb.This Court is satisfied that the Plaintiff has demonstrated that the deceased is her son and that he died out of a road traffic accident involving motor vehicle registration No. KAW 127R/ZC 9731. The Plaintiff has equally demonstrated and is not disputed that the deceased was a pedestrian and that he was hit as he was crossing the road.c.PW2 told the Court that she saw her son being crushed as he attempted to cross the road. PW2 was not able to tell if the deceased had seen the motor vehicle prior to the accident. DW1 on the other hand simply states that the deceased threw himself under the trailer of the motor vehicle and that he did not see the deceased before the accident until when he heard some sound the he was prompted to stop.d.PW1 a police officer indicates that no one was out rightly blamed for causing the accident, not the Plaintiff or the defendant as per Pexhibit 1. Did the deceased throw himself under the trailer? DW1 goes ahead to state that onlookers informed him so and further that the deceased was a madman a fact that is disputed by the Plaintiff. None of the onlookers that saw the deceased throwing himself under the trailer is a witness in this case. There is no further documentation as to the mental health of the deceased hence on these two grounds this Court dismisses the defence claime.The deceased and the driver of the trailer were under obligation to ensure safety on the road. Both were in a position to avert the accident had they been careful. The deceased who was crossing the road ought to have exercised caution and to only cross when it was safe to do so. The fact that the driver failed to see the deceased before the accident is a pointer that he was not keen as a driver. The Consequently, the driver of motor vehicle is largely to blame for causing the accident. This Court finds and holds that the apportionment of liability in the ratio of 60%:40% in favour of the Plaintiff as against the defendant is reasonable and which is hereby apportioned.Quantum:f.The Court has considered submissions made by parties under this head and finds as follows;Pain and sufferingg.According to PW2 the deceased died on the spot Kshs. 10,000/- is awarded under this head. The Court is guided by the case of Antony Njoroge Ng'ang'a (Legal representative of the Estate of the Late Fred Ng'ang'a Nioroge aka Fred Nganga Njoroge) v James Kinyanjui Mwangi & 2 Others [2022] eKLRLoss of expectation of lifeh.The Plaintiff pleaded that the deceased was 40 years and was leading a healthy vigorous life. An award of 100,000/- is hereby awarded based on the above cited case.Loss of dependencyi.The deceased is said to have died at the age of 40 years and that he was employed in a petrol station earning 20,000/-monthly as at the time of his demise. He was not married and that he left behind his mother and father as the only dependants. The certificate of death indicates that the deceased's occupation as at the time of death is businessman. The particulars and further details of his business is neither pleaded nor provided in evidence.j.Although it is pleaded that the deceased was employed at a petrol station, the details of his employer were neither stated nor furnished in evidence.k.Being single the Court will use dependency ration of 1/3. On the income the deceased was an adult who was in good health he must have worked to earn for his own upkeep if not for his parents. There is no evidence that he was equipped with any skills or offering particular service. The Court shall thus apply minimum wage of a general labourer at the time of his demise which is 6,896.15 as correctly submitted by defence. The deceased had 20 more years to the official retirement age if he were a civil servant and in any event casual work beyond that age is not guaranteed. For the vagaries of life and other risks I shall further discount that period up to a period of 15 years.l.The award under this head is thus; 15x1/3x6,896.15x12= 413,769/=Special damagesm.The cardinal principle is that special damages have to be specifically pleaded and proved by way of receipts. No figures were specified apart from simply itemizing the elements under the special damages. For that reason, the Plaintiff is not entitled to any award under this head.n.In summary; the Plaintiff is awarded as follows;a.Pain and suffering 10,000/=b.Loss of expectation of life 100,000/=c.Loss of dependency 413,769/=d.Special damages NILe.Gross total 523,769f.Less 40% contribution 209,507.6g.Net Payable 314,261.4/=o.The Plaintiff is further awarded costs and interest 5.The Appellant’s case at the retrial Court was based of two witnesses one was a Police Officer who testified as PW1 and produced in Court the Police abstract and postmortem report as documentary evidence but incidentally she was not the Investigating Officer nor the Officer who visited the scene. The other star witness was Grace Jepkorir who testified as the mother to the fatal accident victim which happened on 24th February 2018 while walking in accompany with the deceased along the Eldoret Webuye road. She was able to witness the accident in which the offending motor vehicle KAW 127R/ZC 9731 steered off its lane and knocked the deceased who died on the spot. It was the evidence by PW2 that the deceased at the time of the accident was not married therefore he had no family but she looked up to him to support her at inopportune time. According to PW2 this loss of her son occasioned high impact in terms of income generating activities they were undertaking together of selling groceries. She therefore asked the Court to assess damages under the Fatal Accident Act and Road Reform Act. She was able to present before this Court special grant of letters of administration dated 13th July 2019 to bring this suit on behalf of the estate of the deceased. 6.The defence on the other hand adduced evidence of the driver one William Makau who told the Court in rebuttal of the evidence adduced by the Plaintiff/Claimant that on 24th February 2018 he was driving the motor vehicle. He acknowledged and affirmed that from Malaba road to Turbo he never experienced any challenges, however at 6pm as he was entering the town and crossing the first bump he heard a loud bang at the back of the trailer. That is when he yelled and on checking by the side mirror he saw something lied on the road side next to his trailer. That is when on stepping out of the driver sit he saw a person who was lying having been trapped inside the trailer. He therefore denied that he was negligent in any way to occasion the death of the deceased. This is in so far as the record shows on the evidence adduced for consideration by the trial Court. 7.On appeal both learned Counsel Mr. Reece Mwani for the Appellant and the M/s Kigen canvased the respective grounds of appeal by way of written submissions dated 12th March 2026 and 24th March 2026 respectively. 8.In the first instance learned Counsel Mr. Reece Mwani reiterated the facts of the case as prosecuted before the Court below by revisiting the issue of liability and urged this Court to review the findings of the Court on contributory negligence on the accident. As a matter of emphasis learned Counsel invited the Court to pitch legal tent on the following statements made by the defence witness who is also a driver who alleged as follows: I witnessed the accident. I did not see the deceased before the accident. I fled from the scene as I feared being mob justiced. The accident happened as I entered town. I was called to Webuye at an inquest case. In the submissions of learned Counsel evaluating the evidence she submitted that the deceased did not contribute to the cause of the accident as founded by the learned trial Magistrate. It was from this perspective of the learned Counsel who urged this Court to review and set aside the contributory ratio of 60:40% and have it substituted with 100% on the part of the Respondent. 9.On the second limb dealing with quantum learned Counsel submitted that the multiplier and multiplicand applied by the trial Court was both an error of fact and law rendering a wrong decision in so far as awards of damages are concerned. It was learned Counsel’s proposal that appropriate formula for computing damages under the fatal act could have followed the following scenario: 12,522.70/= x 12x29x2/3=2,905,266.40/= added to the amount under Law Reform Act which should be Kshs. 200, 000/= arrived as at follows; Pain and suffering Kshs. 50,000/= and loss of expectation of life Kshs. 150, 000/=. The total award in general damages thus should be Kshs. 3, 105,266.40/=. The Appellant specifically proved special damages of Kshs 52,000/=. In this respect she placed reliance on the following authorities to support her proposal for the Court to allow the appeal: Jacob Ayiga Maruja & Another vs Simeone Obayo CA Civil Appeal No. 167 of 2002 [2005] eKLR, Chunibhai J Patel & Another vs P.F Hayers & Others [1957] EA 748, 749 and Crown Bus Services Ltd & 2 Others vs Jamilla Nyongesa & Amida Nyongesa (legal rep of Alvin Nanjala Deceased [2020] eKLR and Ndanu vs Peter & Another CA No. E60 of 2021 [2024] March, KEHC 294 KLR. As a consequence, Learned Counsel prayed for the appeal to be allowed with costs. 10.In a rejoinder to the submissions by the Appellant learned Counsel Ms. Kigen submitted that liability as founded by the learned trial Magistrate was supported by the evidence adduced from both parties and therefore no new evidence has been adduced to persuade this Court to vary the contributory negligence of 60:40% to 100% as submitted by the Appellant. It was learned Counsel’s contention that the Court be guided by the Highway Code for all road users and the principles in the cases of Patrick Mutie Kimau & Another Judy Wambui Ndurumo [1997] KECA 60 KLR, Mashru v Odhiambo [2023] KEHC 25389 KLR.In so far as quantum is concerned learned Counsel submitted and contended that the facts in the trial Court judgment speak for themselves and the reasoning was in tandem with the following principles as decided by various Courts in the case of Rodgers Kinoti v Linus Bundi Murithi & Another [2022] KEHC 1784 KLR. It is within this background of submissions, learned Counsel for the Respondent held the view that there is no evidence to interfere with the decisions of the trial Court on both liability and quantum. 11.This forms the substratum of the appeal challenging the impugned judgment of the Court below on both liability and quantum which now must be resolved for or against the Appellant. That duty is bestowed upon this Court by the Constitution and other enabling Statutes. Analysis and resolution 12.First and foremost, the jurisdiction of this Court is well settled as deduced from the following extracts as underpinned in the various case laws:a.A Court on appeal will not normally interfere with a finding of fact by the trial Court unless it is based on no evidence, or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.b.The Court on first appeal has jurisdiction to review the evidence in order to determine whether the conclusion originally reached on that evidence should stand. It is a strong thing for an appellate Court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing the witness. But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate Court might itself have come to a different conclusion. See Peters v Sunday Post Ltd [1958] EA 429; Shah v Aguto [1970] EA 265c.Where a trial Judge finds that one of the parties to an accident has not been guilty of any negligence, the Court, even if it is doubtful that it would have arrived at the same decision, should not interfere with that finding unless it is satisfied that the trial Judge was wrong. See Karisa v Solanki [1969] EA 320.-d.It may be uncertain whether the appellate Court could have reached the same conclusion on the evidence, but it is important that, sitting in the appellate Court, they should be mindful of the advantages enjoyed of a trial Judge who saw and heard the witnesses and were in an incomparably better position than the Court of Appeal to assess the significance of what was said, and, equally important, what was not said. See Sotiros Shipping Inc v Shmeiet Solholt [1983]1 Lloyd's ReP 605. 13.This is an appeal on two prong-test contestation. First, the question to be answered by the appeal’s Court is whether before that trial Court liability was proven on a balance of probabilities while factoring in the congruence or in consonance with Sections 107, 108, 109 & 112 of the Evidence Act. 14.In civil cases the standard of proof is on a balance of probabilities. The party vested with the burden must prove that his/her version of the facts is more likely to be truthful or not. This in unlike criminal law in which the burden is absolute certainty. The key features on the balance of probabilities are inter alia:a.The 51% Rule: A Court will find in favour of a Plaintiff if they can establish their case to a 51% likelihood as opposed to the defendant’s 49%b.No room for a tie: If the evidence is perfectly balanced a 50/50 probability or the Court cannot decide which side is more believable, the party bearing the burden loses.c.He who alleges must prove: Codified in Section 107 of the evidence ActCap 80 the legal burden lies on the person assessing the affirmative of an issue. 15.In so far as the key characteristic of the standard and burden of proof in civil cases are concerned, a summary of it can be appreciated as herein under stated; Thus in: Miller v Minister of Pensions [1947]: The locus classicus (foundational) case defining the standard. Lord Denning famously stated that the evidence must carry a reasonable degree of probability, but not as high as the criminal standard. If the tribunal thinks "we think it more probable than not," the burden is discharged. Japheth M Wepukhulu v Fred Simiyu [2020] eKLR: A Kenyan Court reaffirmed this standard, noting that Courts will make findings based on which party's version is more believable, and a draw is not enough to win. William Kabogo Gitau v George Thuo & 2 Others [2010]: Clarified that a party establishes their case on a balance of probabilities if they persuade the Court that their allegations are "more likely than not" to have taken place. R.G Patel v Lalji Makanji [1957]: Established an important exception. While the standard remains civil, allegations of a criminal nature within a civil case (such as fraud or forgery) require "something more than a mere balance of probabilities,” though not quite reaching the criminal standard of "beyond a reasonable doubt!” 16.This is an accident involving a motor vehicle and a pedestrian which occurred along Eldoret-Webuye road. The Respondent herein was the owner of the motor vehicle registration KWA 127R/ZC 9731. The Kenyan Courts defines negligence between a pedestrian and a motor vehicle collision through three core elements: The driver’s duty of care, breach of that duty through speedy driving and consequently occasioning injury or death. In resolving these issues, the Court evaluates police records, witness accounts and the concept of contributory negligence. On this nexus between a pedestrian and motor vehicle being on the same highway or scene of the accident the Court in Koosappa Poojary vs K. Sadabba & Others ILR 2003 KAR 1104 held as follows:“All the more so the driver of the vehicle ought to have been more prudent and circumspect while driving. But, it cannot be lost sight of the fact that a duty is also cast on a pedestrian and he should use due care and caution in going upon and crossing the road and it is his duty to look out for oncoming traffic. Insofar as the another duty cast on the pedestrian is concerned, it is needless to say that he has to give the driver a plenty of time to see him and slow down and start before he attempts to cross or put one foot on the crossing, It is not always necessary that the vehicular traffic will have to stop for a pedestrian to cross, for the vehicle needs more time to stop in view of the speed a motor generates. Moreover, whenever a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, they cannot claim any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver. In view of this, it cannot be said that it was only the driver of the vehicle in question was solely responsible for the accident. It has also to be noted that there is no evidence forthcoming to show that it was the pedestrian crossing or whether there were any zebra- crossing. In view of the fact that the claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed to him." 17.It is thus settled by now that the legal representative of the deceased’s estate has a right to apply for compensation. The evidence on record as to the present case shows that the Appellant was issued with limited grant of representation to sue on behalf of the estate of the deceased. From the evidence adduced by PW2 both on the material day as pedestrians and in the cause of them being on the same highway like the offending motor vehicle it veered off the road and hit the deceased who died on the spot. There was no other eyewitness as it looks like having gone over the record save the testimony of the Police Officer who produced the police abstract indicative of the facts that the matter was pending investigations. Therefore, no finding had been made as at the time of the pendency of the civil case, on the blameworthiness of the driver in the traffic investigation as to who was wholly to blame for the cause of the accident. There are two different versions given by both the Plaintiff/Appellant and Respondent/defendant to this appeal. In addressing some of the pertinent issues pertaining to this accident I find the following statements to be the at the core of the issues in which are of essence to determine liability:"The burden to prove contributory negligence lies with the defendant and as in all civil claims this has to be done on a balance of probabilities (exceptions such as fraud are not relevant to this case). There is evidence on cross-examination that the Plaintiff's driver was convicted in a traffic Court of driving a vehicle, which was in dangerous mechanical condition in that one of the tyres was not in good condition. But there is nothing more to show that the Plaintiff's driver was negligent in controlling the vehicle. Whether a bad tyre leads to an accident or not depends on many factors such as the speed at which the vehicle is driven, the manner in which other road users are managing or driving their vehicles. Bad tyre per se does not constitute some negligence on the part of the Plaintiff’s driver and therefore the defendants have not established any negligence on the part of the Plaintiff's driver. Evidence of negligence such as skid marks especially of the tyres said to have been in poor condition, is wholly lacking since the police officer did not at all allude to anything suggestive of negligence on the part of the Plaintiff's driver." 18.The accident involving the vehicle, though denied by the driver in his evidence was held by the trial Court to be involved in the accident and the findings of it being that the accident indeed did occur on 24th of February 2018 involving the pedestrian now deceased and the offending motor vehicle. Secondly, the deceased Josephat Kiplimo was crashed and died on the spot. As at the time of his death he was not married and had no children but had his parents who included PW1. The twin questions raised from my consideration for which this Court is called upon to decide, are findings of the trial Court as to whether the deceased the pedestrian contributed to the accident that had taken place or on the other hand it was the Defendant/Respondent driver to be blamed wholly for the accident. 19.There is no dispute that the deceased when he was hit he was crossing the road that is in so far as the evidence of his mother who happened to be at the scene is concerned. There is no other evidence to controvert it in this appeal. The Court in Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Renu Singh and Others Order No. 1818 of 2012 held that:“16.Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.17.It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.18.10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.19.In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all. 20. These provisions (section 110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.21.In the light of the above discussion, we are of the view that even if Courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, Court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew vs. State of Punjab, 2005 0 ACJ(SC) 1840).22.By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side." 20.This Court reviewing this evidence by the Appellant and the Respondent specifically on liability there is no newly discovered evidence which has been presented before this Court that would persuade the Court to interfere with the findings of this Court. It is also trite that a trial Court has the advantage of listening, conceiving, appreciating, and internalizing the scene of the crime as evidentially being re-arraigning by the witnesses at the scene of the accident. This appeal Court does not have that advantage. The Appellant is not telling this Court the ration on contributory negligence as founded by the learned trial Magistrate was based on subjective evaluation of the chain of events which led to the occurrence of the road traffic accident on the material day. 21.This impugned judgment pronounced by the Lower Court and now on appeal also hinges on the doctrine of vicarious liability which is known to constitute two key characteristics. First, the relations for master and servant must exist between the Defendant and the person committing the wrong complained of. Second, the servant must in committing the wrong have been acting in the course of his employment. So, what is vicarious liability?“Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming observed that this formula represented "a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other, a hesitation to foist any undue burden on business enterprise": The Law of Torts, 9th ed (1998), pp 409-410. (per Lord Steyn, Lister v Hesley v Hall [2002] 1 A.C. 215 at paragraph 14.”)“The expression vicarious liability signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. It is not necessary that A shall have participated in any way in the commission of the tort nor that a duty owed in law by A to C shall have been broken. What is required is that A should stand in a particular relationship to B and that B’s tort should be referable in a certain manner to that relationship. The commonest instance of this in modern law is that liability of a master for the torts of his servants done in the course of their employment. The relationship required is the specific one of master and servant and the tort must be referable to that relationship in the sense that it must have been committed by the servant in the course of his employment.” 22.The elements of vicarious liability which incorporate features of master-servant as assigned at the moment of the accident brings into perspective whether or not an employee’s wrongful acts were done in the course of his/her employment and the surrounding circumstances should be taken by the Court as a whole and not restricted to the particular act which causes the damage. 23.In terms of the doctrine of contributory negligence as settled in the legal system of India in Kenya likewise the principles remain the same. Why do I say so? In this legal system Courts determine negligence in pedestrian road traffic accident by examining three foundational elements: a duty of care owed by the motorist, a breach of that of duty of care, speeding, failing to keep a proper lookout, or ignoring pedestrians’ crossings and causation. The High Courts have consistently held that a motorist driving on a highway holds a duty of care to all other road users including pedestrian because a motor vehicle is dangerous instrumentality, therefore, the driver must exercise due care and attention and maintain a proper lookout. See the principles in Nairobi United Services & Another vs Nyathuo Kabuba 2020 eKLR and Eastern Produce K Ltd v Christopher Atiado Osiro [2006] eKLR, M’mbula Charles Mwalimu v Coast Broadway Co. Ltd [2012] eKLR and Grace Kanini Muthini v Kenya Bus Service Ltd & Another HCC 4708 of 1989. 24.The deceased was hit by the offending motor vehicle on this very same highway. It is outlined that applying the reasonable man standard for pedestrian, it is noted that they must account from stepping between stationary vehicles moving and ensure that they must be seen by the driver of the impugned motor vehicle. However, it is also true that in personal injuries claims there is a higher expectation of the law on the duty of care upon motorists. The basis being that the Court emphasizes that both common law and the Statute requires motorists to take all necessary precaution to prevent accidents involving pedestrians. There is also a legitimate expectation of the law that motorists while on a public road must adjust speed and scan for pedestrians emerging suddenly within the same vicinity, while pedestrians are also not left behind they must exercise high degree of alertness in busy traffic environments. 25.This a trial conducted before the Chief Magistrate’s Court in which the learned Trial Magistrate made a finding on contributory negligence as between the driver of the offending vehicle and the deceased pedestrian. In law contributory negligence is defined as the failure to use ordinary care to avoid the consequences of another party’s negligence reducing compensation proportionality to the claimant’s fault. This is a legal distinction between composite negligence and contributory negligence. In contributory negligence then victims like in our case the deceased own act materially contributed to his fatal injuries 26.As I see it, no credible, material has been placed before this appeal’s Court to review the decision of the trial Court on liability. On the above reasoning I find that trial Court did not error in finding contributory negligence as between the deceased and the driver of the offending motor vehicle. That ground by the Appellant fails. 27.Now I come to the question of the compensation payable which was claimed under different heads before the trial Court: general damages under law reform act and the fatal accident, special damages, costs of future expectations, interest on a, b and c above till payments and any other or further relief that this honorable Court deems fit. It is from these prayers the trial Court admitted evidence from the parties and finally assessed damages as follows: Pain and suffering 10,000/= Loss of expectation of life 100,000/= Loss of dependency 413,769/= Special damages NIL Gross total 523,769/= Less 40% contribution 209,507.6/= Net Payable 314,261.4/= 28.In this appeal, the Appellant’s Counsel submitted and argued that the apportionment of liability and assessment of damages were erroneous and therefore invited this appeal’s Court to interfere with the wrong appreciation of the evidence as given on oath by one Grace apparently who was at the scene of the accident. That evidence has been reviewed once more by this Court and their remains some questions which at the end of it all were not completely answered. In this case, there was no such evidence as to why the deceased was not able to take evasive measures to escape the collision. It is clear that this traffic accident was reported to the police and as at the time of the trial the matter was still under investigations and therefore there was no material evidence to corroborate this other evidence of Grace Jepkorir so that liability scale can be tilted more in favour of the Respondent. As an appeal’s Court also I am bound to factor in the impression which the learned trial Magistrate must have made on the demeanor of a witness at the time of the trial. All those are pertinent points which cannot be wished away. Notwithstanding that position it has been proved that the deceased died on the spot immediately after the collision and from the perspective of the trial Court to the best of his ability and knowledge it was apportioned at 60:40% as between the deceased and the Defendant’s driver in which the doctrine of vicarious liability was set in motion. 29.With the issue of liability having been settled and dismissed by this Court the necessity arises to examine the exercise of judicial discretion on assessment of damages. 30.The calculation of compensation falls under the Fatal Accident Act and the Law Reform Act. The assessment of damages is calculated under what was referred to as lost years using a standard multiplier-multiplicand approach. The multiplicand is the deceased’s net annual income minus living expenses, while the multiplier is an age- related figure representing the expected length of dependency, adjusted for vicissitudes. The methodology of interpretation and construction of the multiplicand and multiplier formula in calculation damages for the lost years involves the following guidelines:a.The Multiplicand: Defined as the gross income minus statutory deductions and taxation. For minors or the unemployed, Courts often base this on the prevailing statutory minimum wage.b.The Multiplier: Usually calculated by taking the statutory retirement age (~60-65) minus the deceased’s age at the time of death, subject to discounting for the uncertainties and vicissitudes of life.c.Dependency Ratio: Typically apportioned at 2/3 for married individuals with children, and 1/3 to ½ for unmarried individuals 31.The rationale of the application of the multiplier and the multiplicand has been revisited by the various Courts as demonstrated in brief in the following authorities: Abraham v Kuira CA 49 of 2022 [2023] KEHC 1740: The High Court reiterated that the multiplier-multiplicand approach is not a rigid dogma and must be abandoned when the facts of dependency or net income are purely speculative or unknown. Onyango & Another v AG [2024] KEHC 15838: The Court highlighted the dependency formula parameters for a 24-year-old student, noting that where earnings cannot be ascertained, a global sum approach is more legally sound than undue mathematical speculation. Hardev Kaur Dhanoa v Multiple Hauliers (EA) Ltd [2017] KEHC 5749: Provided an extensive computation of damages under the Fatal Accidents Act and Law Reform Act, considering net income, a reasonable multiplier, and deductions for contributory negligence. Civil Appeal E69 of 2024 [2024] KEHC 8107: The High Court analyzed the multiplier for a security guard, reducing a trial Court's multiplier from 30 to 22 years to appropriately factor in the high risks and hazards of the occupation. Mugambi & Another v MG [2023] KEHC 18272: The Court ruled that if a deceased individual's earning capacity cannot be ascertained due to their young age, the multiplicand/multiplier approach is unsuitable, and a global sum is appropriately awarded. 32.In referring this appeal, the Appellant informed the Court that the deceased died at the age of 40 years and going by the retirement age of public service which is capped at 60 years, the Court could have been persuaded to apply the multiplicand and multiplier within that guidelines of retirement in the Public Sector. However, the Appellant acknowledged that this was a person who was working at the private sector he had the possibility and capacity to work beyond the age of 70 years. The Appellant relied on that typology and faulted the trial Court for adopting a lower multiplier instead of the appropriate multiplier of 29 years. In terms of monthly income due to the deceased during his lifetime it was suggested by the Appellant that a minimum wage of 12,522/= would be an appropriate amount to be applied to the multiplier of 29 years. This submission by the Appellant contrast the computation by the learned trial Magistrate under this head which was provided as follows: 15x1/3x6,896.15x12= 413,769/=. 33.The law is kind of settled in this area on assessment of damages for lost years. This is how the Court expressed itself in the case of Hassan v Nathan Mwangi Kamau Transporters & 4 Others [1986] KLR 457. Thus:“It is now an established principle that the estate of the deceased is entitled to lost years, for the income that would have been earned by the deceased, less the living expenses, assuming that one lived and worked up to the age of retirement. It has been suggested that a salary of Kshs. 123,750 per month be used with multiplicand of 30 years less living expenses of 1/3. The Plaintiff did not tender any documentary evidence to established this point. However, the Plaintiff has presented documents showing that the deceased undertook studies leaning towards the study of accountancy or finance. I think the appropriate salary to use is that of an accountant or finance officer from the extract of the salary survey of Kenya presented by the Plaintiff where such employees earn an appropriate monthly salary of Kshs. 118,546/=. The deceased was aged 19 at the time of her death. I will presume that had she begun to work at the age of 25 years she would have retired at the age of 55 years. I think in the circumstances a reasonable multiplicand to apply is 30 years. Both the Plaintiff’s and the deceased and the defendant agree that the dependency ratio should be 1/3. On the head of lost years I make the award as follows: 118,564X30X1/3X12=14,227,680.” 34.On the impugned judgment the learned trial Magistrate ordained herself as follows:a.Although it is pleaded that the deceased was employed at a petrol station, the details of his employer were neither stated nor furnished in evidence.b.Being single the Court will use dependency ration of 1/3. On the income the deceased was an adult who was in good health he must have worked to earn for his own upkeep if not for his parents. There is no evidence that he was equipped with any skills or offering particular service. The Court shall thus apply minimum wage of a general labourer at the time of his demise which is 6,896.15 as correctly submitted by defence. The deceased had 20 more years to the official retirement age if he were a civil servant and in any event casual work beyond that age is not guaranteed. For the vagaries of life and other risks I shall further discount that period up to a period of 15 years.c.The award under this head is thus; 15x1/3x6,896.15x12= 413,769/= 35.The Court had this to say with regard to this matter of on assessment of damages in the case of Johnson Evan Gicheru vs Andrew Morton & Another (2005) eKLR. Thus: -“In order to justify reversing the trial Judge on the question of the amount of damages it was generally necessary that the Court of appeal should be convinced that either the Judge acted upon some wrong principle of law or, that the amount awarded was so extremely high or so very small as to make it, in the Judgement of the Court, an entirely erroneous estimate of the damage to which the Appellant was entitled”. 36.I am further guided by the principles on assessment of damages by the Court of appeal decision in the case of Tayab vs Kinanu (1983) eKLR, as follows:“I would commend to trial Judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345: “But money cannot renew a physical frame that has been battered and shattered. All that Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.” 37.In furtherance of this matter the persuasive case of Moeliker v A Reyrollw and Co. Ltd (1977) 1 ALL E.R observed as follows:"Where a Plaintiff is in work at the date of trial, the first question on this this head of damage is: what is the risk that he will, at some time risk that he will at some time before the end of his working life, lose that job and be thrown on the labour market?..........But if the Court decides that there is a risk which is 'substantial' or 'real', the Court has somehow to assess this risk and quantify it in damages. The Court must start somewhere, and I think the starting point should be the amount which a Plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This state of the assessment will not have been reached unless the Court has already decided that there is a 'substantial' or 'real' risk that the Plaintiff will lose his present job at some time before the end of his working life, but it will now be necessary to go on and consider co (a) how great this risk is and (b) when it may materialize, remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job and then finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market, that is what would be his chances of getting g a job, and an equally well paid job." 38.These cases cited above show that the starting point is the claimant’s earnings at the time of his death which evidence must be represented at the trial. The evidence before the trial Court is that the deceased worked as a petrol attendant in which the trial Court assessed the income as 6,896/=. There is no evidence that he earned more even on appeal no such evidence was produced and admitted by the Appellant. To my mind anyone who works conscientiously should be able to retire within the age of 60 and 70 years be either the public or private sector. The Appellant who is the administrator of the estate of the deceased was able show that as result of the fatal injuries there was substantial loss of income expected to be generated by the deceased in the future. While the authorities show that in the assessment of damages under this head there must be some speculation, they also show that there must be some evidential support for the excursion into the realms of conjecture. 39.In the instant case, the learned trial Magistrate used the pre-accident earnings as a base figure but in computing damages for lost years she applied a factorial of 15 years for the deceased who was actually in the private sector. What this means that there is misapprehension of this facts and the law with regard to this multiplier multiplicand formula. This is a person taking into account all factors cumulatively including viscidities of life, there is no compelling circumstantial evidence of exceptional nature that the deceased could not make it beyond 60 years. It has also to be borne in mind that by 2026 the life expectancy of males in Kenya is approximated to be actually 62.4 years at birth. This represents as a steady ongoing improvement in healthcare and living conditions of the male population. Whereas Kenya life expectancy between 1990-2024 increased from 55.5 to 64.7 years. 40.I have therefore reviewed the evidence on this limb on lost years and I am persuaded to interfere with the multiplier of 15 years as a potential loss of earnings of the deceased and of the benefits of his dependents and have it substituted with 20 lost years but retain the earnings at Kshs 6,896.15/=. The formula of dependency also remains at 1/3 as established by the learned trial Magistrate. 41.In answer to this question on appeal, the assemnet of damages of lost years having be reviewed would stand at the following quantum 20 x 6,896.15 x 1/3 x 12= 551,692/=. As for the rest of assessment of damages as elaborated by the formula adopted by the trial Magistrate I find nothing useful to add for example when it comes to the damages under the Law Reform Act, the words are within the spectrum of conventional awards for loss of expectation of life. 42.The calculation of the annual loss was settled in Pickett v British Rail Engineering Ltd (1979) 1ALL.ER 774. Lord Scarman had this to say in Gammell v Wilson at page 593;“The loss to the estate is what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve. Subtle mathematical calculations, based as they must be on events or contingencies of a life that he will not live, are out of place; the judge must make the best estimate based on the known facts and his prospects at the time of death. The principle was stated by Lord Wilberforce in Pickett's case ...."The judgment, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of earnings in the lost years should be after deduction of an estimated sum to represent the victim's probable living expenses during those years. I Think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependents and others, and this he would do out of his surplus. There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts." 43.For those reasons the appeal on assessment of damages partially succeeds and is binding as follows as against the Respondent: Pain and suffering Kshs. 10,000/= Loss of expectation of life Kshs.100,000/= Loss of dependency Kshs. 551,692/= Special damages NIL Gross total Kshs. 661,692/= Less 40% contribution Kshs. 264,676.80/= Net Payable Kshs. 397,015.20/= 44.I must reiterate in closing the dictum by Lord Scarman in the case of Gammell v Wilson (1981) 1 ALL E.R 578 on this conceptual framework on lost years in which he remarked as follows:“There is no room for a 'conventional' award in a case of alleged loss of earnings of the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities that matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a 'conventional' award, should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime at the age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell's case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment..., one would expect to lead evidence on which a fair estimate of loss can be made. A man well established in life, ...will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it." 45.In a nutshell, the appeal partially succeeds on assessment of damages, whereas on liability I concur with the decision of the trial Court. As a consequence of which costs shall follow the event on this appeal and interest shall be chargeable at 14% until payment in full. DATED AND DELIVERED AT ELDORET VIA CTS AND EMAIL THIS 2ND DAY OF JUNE 2026........................................R. NYAKUNDIJUDGE