https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11611

**REPUBLIC OF KENYA** **IN THE HIGH COURT KENYA AT KERUGOYA** **CIVIL APPEAL NO E130 OF 2022** **HARRISON BEN MGHANA (Suing as the Administrator** **of the Estate of ELISHA WAWAKA** **MROMBO (DECEASED) ………………...………………………..…….… APPELLANT** **VERSUS** **CHUMA INVESTMENTS LTD.………………......………......................RESPONDENT** **JUDGMENT** Being an appeal against the Judgment by Hon. M. A, Otindo (PM) in the Chief Magistrate ‘s Court of Kenya at Machakos delivered on 2 August 2022. The appellant has raised the following grounds: 1. That the Learned Trial Judge erred in law and fact by failing to consider the evidence supplied by the Appellant and hence arrived at a wrong decision. 2. That the Learned Judge erred in law and fact by failing to find that liability was not on a 50/50 basis but liability was fully on the Respondents negligence upon occurrence of the accident. 3. That the Learned Judge erred in law and fact by failing to consider the evidence produced by the Appellant indicating liability was plainly on the Respondent. 4. That the Learned Judge erred in law and fact by failing to consider the fact that the defence did not provide any evidence exonerating themselves from any liability when the accident occurred. 5. That the Learned Judge erred in Jaw and fact by failing to highlight how liability was arrived at on a 50/50 basis in reaching its findings between the Appellant and the Respondent. 6. The Learned Trial Judge erred in law and fact by failing to award enough quantum damages for pain and suffering to the Appellant. 7. The Learned Judge erred in law and fact by failing to provide the basis and criteria used in award of the monies given on a lower scale for pain and suffering to the Appellant. 8. The Learned Judge erred in law and fact by using a multiplicand that was impractical and on the lower side as the deceased ought to have worked longer than stated by this trial Court. 9. The Learned Judge erred in law and fact by failing to consider the evidence provided by the Appellant's side in regards to the special damages prayed for before this Honourable Court. 10. That the Learned Judge erred in law and fact by failing to provide the criteria used in the award of special damages to the Appellant. 11. That the Learned Judge failed to appreciate the submission Counsel for the Appellant. 12. In all the circumstances of the case, the findings of the Learned Judge are insupportable in law or on the basis of the evidence adduced. **Brief facts** **The plaintiff/ Appellant in this case sued the defendant/Respondent vide a plaint dated 24th June 2019.** The claim emanates from an accident that occurred on or about on 25th July 2016 at around 3.45 pm when the deceased who allegedly was a passenger in motor vehicle registration No. KCG 561R that was allegedly, so carelessly, negligently and driven caused the same to collide with vehicle registration number KCC 619 H as a result the plaintiff sustained fatal injuries. The plaintiff pleaded under the fatal Accidents Act that the deceased was 19 years old and worked as a DJ. He had enrolled at Zetech University to pursue a diploma in Communication and media studies. His dependants were his father and mother. The plaintiff prayed for judgement to be entered against the defendant for: 1. General damages 2. Special damages of Kshs 372,700 3. Costs of the suit. 4. Interest on (a), (b), (c) above at court rates. On the 31/10/2019, the defendant entered appearance and filed his defence denying the allegation that the deceased was a passenger in the subject motor vehicle as alleged. Further, denied the particulars of negligence and pleaded that the defendant was partly to blame as well as the driver of motor vehicle registration number KCC 619 H. After close of pleadings, the matter was set down for hearing, the plaintiff called one witness, the defence did not call any witness. Both parties proceeded with hearing until they closed both the plaintiffs and defendants case. They filed their respective submissions on liability and quantum of damages. On 2nd Augusts, 2022 the court entered judgement for the plaintiff against the defendants jointly and severally as follows: Pain and suffering …………………Kshs 30,000 Loss of expectation of life………… Kshs 100,000 Loss of dependency……………......Kshs 1,138,352.8 Total………………….………………Kshs 1, 268,352.8 **Less 50% contribution …………… (Kshs 634, 176.4)** Plus specials ……………………….. Kshs 100,700 **Total awarded………………………Kshs 734,176.4** **The Plaintiff appealed against both liability and quantum.** During the hearing, the plaintiff called a single witness, PW1 (Harrison Ben Mghana). PW1 adopted his witness statement dated 23rd July, 2019, which essentially restated the particulars of the accident and negligence as pleaded in the plaint. In cross-examination, he clarified that the deceased had boarded the vehicle driven by his eldest son, Jeff. He attributed blame for the accident to the driver of KCC 619H. PW1 further testified that the deceased was a Form 2 student at Kalungu Secondary School (noting an apparent inconsistency with the plaint’s description of him as a university-enrolled DJ), was unmarried with expectations of marriage, and that the family had already paid for his university education. He described the defendant company (Chuma Investments Ltd) as one owned by his other son and wife. PW1 stated that he incurred substantial funeral expenses, approximately Kshs. 60,000 drawn from savings, was dependent on the deceased both presently and in the future, and was aged 59 at the time (with his wife aged 58). He urged the court to award damages commensurate with the loss suffered. **Defence case** The defence did not call any witness. **Appellant submissions** On whether the respondent is 100% liable for negligence. The appellant submits that the trial court misinterpreted and, or misapplied the law when apportioning 50 % liability: **Commercial Transporters Limited vs Registered Trustees of the Catholic Archdioceses of Mombasa (2015) eKLR** where it was held that, **“Where there is no concrete evidence to determine who is to blame between the two drivers, both should be held equally liable. In the circumstances, | apportion liability at the ration of 50:50 between the drivers of the two vehicles.”** The appellant submits that the Respondent did not lead any evidence whatsoever to support his allegation of contributory negligence against the deceased, notwithstanding the fact that the negligent driver of KCG 561R is alive and well. In the case of **Ekirapa & another v Abdi & another (2022)** **a driver died in a Collision with a truck. There were no eyewitnesses. The court applied res ipsa loquitur, finding the defendants 100% liable because they failed to provide evidence to counter the inference of negligence drawn from the circumstances of the crash.** The appellant submits that for the 50% liability and assumption of risk to hold true, the defence ought to have brought their witness for example Jeff, who was on the scene to show how the deceased contributed to this risk. Otherwise, whenever the Doctrine of Res ipsa loquitur is pleaded as it was in the lower court, the burden of proof is shifted to the defendant to disprove the particulars of negligence attributed to him. On the appropriate quantum of damages for pain and suffering. The learned magistrate awarded Kshs 30,000 for pain and suffering. The appellant submits that this figure ought to have been slightly higher considering case law. In the case of **Sukari Industries Limited V Clyde Machimbo Juma Homa Bay HCCA NO. 68 of 2015 [2016]** eKLR **where the deceased had died immediately after the accident and the trial court had awarded Kshs. 50,000/= for pain and suffering.** On the appropriate multiplicand for calculating loss of dependency. The Magistrate's court awarded 26 years as the multiplicand. They submit that this figure is unreasonably low. They relied on the case of **Kinyosi Katungi v Simon Okoth Obok & Another [2003] eKLR**, **where the Honourable Court used a multiplicand of 35 years for a 17-year-old.** In the case of **Daniel Kuria Nganga v Nairobi City Council [2013],** **where the Honourable court used a multiplicand of 37 years for a 14-year-old.** The appellant submits that the age of retirement being 60 years, the acceptable multiplicand in this case would be 41 years plus or minus five. The calculation therefore remains the same which is: 10,954.70\*41\*12\*1/3= Kshs 1,796,456/= On quantum of damages, the lower court failed to consider a pertinent case law submitted by the Appellant on this important matter. They relied on the case of **In the Matter of the Estate of James Njenga Njau (deceased) [2013] eKLR** where the Honourable Court held: **As for funeral expenses although no receipts were tendered, since death occurred, a funeral was the ultimate result of that death. Incurring of funeral expenses cannot be ruled out. Lack of production of receipts is not a bar to an award under this head with the only caveat being that in the absence of production of receipts, the court has to make an allowance for the margin of error.”** They pray for special damages of Kshs 372,700. **Respondent submissions** They are dated 22nd April 2026. They submitted as follows: * Whether the trial court erred in failing to consider and weigh the evidence tendered, and thus arrive at erroneous determination of the issue of liability? They submitted that the trial court did not misdirect itself on the evidence tendered. From the record of appeal it was shown that the accident involved two motor vehicles. No evidence was availed by the defence. The appellant admitted that he did not witness the accident therefore he cannot tell how his motor vehicle was driven or where the accident occurred. There is no probability that the fatal injuries suffered by the deceased were inflicted by motor vehicle KCG 561R in the absence of evidence as to the manner in which the vehicle was being driven. They submitted that the occurrence of an accident is not proof of the fault of either party. The appellant was required to prove that the accident was wholly caused by the manner in which the KCG561R vehicle was being driven. Since two motor vehicles were involved, both owners of the motor vehicles should have been sued. They urged the court to find the apportionment of liability to have been fair. * On the award for pain and suffering they submitted that the court can only interfere with the award unless it is satisfied that the court had taken into consideration an irrelevant factor or left out a relevant one or that the amount is inordinately low or high. The deceased died at the accident scene so the award of Ksh 30,0000 is fair. * They submitted that since it had been pleaded that the deceased’s dependents were his parents, the multiplier used should be the likely remainder of the dependency and not the likely life expectation of the deceased. They submitted that the multiplier of 27, though slightly high was not erroneous. * They submitted that the award of Ksh 50.000 for funeral expenses was what was said to have been the family’s contribution so was a fair award. **Issues** 1. **Whether the respondent is 100% liable for negligence.** 2. **Whether the damages awarded were appropriate.** **Analysis** Since this is a first appeal, I am required to re-evaluate the entire evidence on record, draw my own inferences and conclusions, and interfere with the trial court’s findings only if they are based on no evidence, a misapprehension of evidence, or if the court applied a wrong principle of law **(Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 at p. 126; Peters v Sunday Post Ltd [1958] EA 424).** 1. **Liability** The appellant contends that the trial court misapplied the law by apportioning liability 50:50. He relies on the doctrine of *res ipsa loquitur* and argues that the respondent, having called no evidence (despite the driver of KCG 561R being alive), failed to rebut the inference of negligence or prove contributory negligence by the deceased (a passenger). He cites **Ekirapa & another v Abdi & another [2022] eKLR** **in support of 100% liability where no contrary evidence is adduced.** The respondent’s defence pleaded that both drivers were to blame. The principle applicable where two vehicles collide and there is no concrete evidence to determine which driver was at fault is that liability is apportioned equally. **Commercial Transporters Limited v Registered Trustees of the Catholic Archdiocese of Mombasa [2015] eKLR** **The court affirmed that if the evidence shows both parties are at fault or if there is no credible evidence pinpointing exactly who caused the accident liability should be ascribed to the parties equally (often a 50:50 ratio).** In the present case, there were no independent eyewitnesses. PW1 did not witness the accident and gave inconsistent accounts (the plaint and witness statement attributed negligence to the driver of KCG 561R, while in cross-examination he blamed the driver of KCC 619H). Further, there was no police sketch plan, abstract indicating point of impact, or expert evidence on causation was highlighted. Lastly, the deceased was a passenger; there was no evidence whatsoever of contributory negligence on his part. **While the respondent called no witness, the appellant equally failed to discharge the burden of proving the specific particulars of negligence pleaded against the driver of the respondent’s vehicle.** Consequently, the finding on liability at 50:50 is upheld. 1. **Quantum of damages** The court has a duty to re-evaluate the evidence and interfere only where the award is inordinately high or low, or where the trial court applied wrong principles **(Butt v Khan [1981] KLR 349).** **Pain and Suffering** The trial court awarded Kshs. 30,000. The appellant submits this is low, citing **Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR where Kshs. 50,000 was awarded for pain and suffering in a case where death was immediate.** I agree that Kshs. 30,000 is on the conservative side for a fatal accident claim. In line with the authority cited and comparable decisions, I enhance the award for pain and suffering to Kshs. 50,000. **Loss of expectation of life** The award of Kshs. 100,000 is the conventional figure for a young adult and is upheld. **Loss of Dependency** The trial court adopted a monthly multiplicand of Kshs. 10,954.70 and a multiplier of 26 years (with 1/3 dependency ratio), yielding Kshs. 1,138,352.80 before contribution. The appellant proposes a multiplier of 41 years (to retirement age of 60), yielding approximately Kshs. 1,796,456 before contribution. He relies on **Kinyosi Katungi v Simon Okoth Obok & Another [2003] eKLR** (35 years for a 17-year-old) and **Daniel Kuria Nganga v Nairobi City Council [2013] eKLR** (37 years for a 14-year-old). While those authorities support relatively high multipliers for very young deceased persons, the correct approach (as articulated by Ringera J. in **Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another Nairobi HCCC No. 1638 of 1988 (UR)**set out the guidelines applicable in assessment of damages under the Fatal Accident’s Act as follows: **The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.** Balancing the cited precedents with the principles above, I find a multiplier of 30 years to be fair and reasonable in the circumstances of this case. Moreover, there was a material inconsistency in the evidence tendered. The plaint described the deceased as a 19-year-old DJ who had enrolled at Zetech University, while PW1’s testimony described him as a Form 2 student at Kalungu Secondary School. This affects credibility on occupation and future earnings. However, the trial court accepted the multiplicand of Kshs. 10,954.70, and no better evidence was led. Recalculation of loss of dependency: Kshs. 10,954.70 (monthly) × 12 × 30 × 1/3 = Kshs. 1,314,564 **Special Damages** The appellant pleaded Kshs. 372,700. The trial court awarded Kshs. 100,700. While strict proof by receipts is the general rule, funeral expenses are an exception. This was held in **In the Matter of the Estate of James Njenga Njau (Deceased) [2013] eKLR, lack of receipts is not a bar to an award for funeral expenses; the court makes a reasonable allowance with a margin for error.** Since the appellant produced a list of documents that was adopted in evidence and the respondent offered no contrary evidence or submissions, I enhance the special damages to Kshs. 150,000. **Final Award (after re-assessment)** Pain and suffering: Kshs. 50,000 Loss of expectation of life: Kshs. 100,000 Loss of dependency: Kshs. 1,314,564 **Sub-total general damages: Kshs. 1,464,564** Less 50% contribution: Kshs. 732,282 Special damages: Kshs. 150,000 Total award: Kshs. 882,282 It is my finding that the appeal on liability is dismissed. The trial court’s finding of 50:50 liability is upheld. The appeal on quantum is allowed in part. READ AND PUBLISHED IN THE CTS ON 17TH JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT COURT ASSISTANT BEN