https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9953

Hassan & another (Suing as the Legal Representatives of the Estate of Abdulghan Yussfu Kibwana (Deceased)) v Kamau (Civil Appeal E1419 of 2024) [2026] KEHC 9953 (KLR) (Civ) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9953 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1419 of 2024 AC Mrima, J July 9, 2026 Between Zainabu Kagure Hassan 1st Appellant Yussuff Kibwana Abdulghan 2nd Appellant Suing as the Legal Representatives of the Estate of Abdulghan Yussfu Kibwana (Deceased) and Anthony Maina Kamau Respondent (Being an appeal against the Judgment and Decree of Hon. Z. Rashid Resident Magistrate in Chief Magistrates Court Civil Case No. E8759 of 2021 delivered on 6 th November 2024) Judgment Introduction: 1.The dispute before this Court arose from a road traffic accident that occurred on the 24th November 2020 along Lamu Road, within Nairobi County. The accident involved a motor vehicle registration number KCZ 370Z, driven by the Respondent, Anthony Maina Kamau and AYK, [hereinafter referred to as ‘the deceased’), a pedestrian minor who sustained fatal injuries. 2.The Appellants, Zainabu Kagure Hassan and Yusuf Kibwana Abdulghan, suing as the personal representatives of the deceased’s estate, instituted Nairobi [Milimani] Chief Magistrates Civil Suit No. E8759 of 2021 (hereinafter referred to as ‘the suit’) seeking general and special damages. 3.In a judgment delivered on the 6th November 2024, the trial Court found the Respondent liable but apportioned liability at 70%: 30% in favour of the deceased. It held that the Appellant contributed to the accident by allowing the minor onto the road alone. The trial Court awarded a total of Kshs. 167,400.00 in damages comprising Kshs. 50,000/- for pain and suffering and Kshs. 100,000/- for loss of expectation of life. However, the trial Court did not make an award for loss of dependency thereby precipitating the instant appeal which was heard by way of written submissions. The Appeal: 4.Dissatisfied with the trial Court’s decision, the Appellants filed a Memorandum of Appeal dated the 5th December 2024 and proposed the following grounds of appeal: -1.The Learned trial Magistrate erred in law and fact and failed to give any due and proper consideration to the pleadings and evidence on record and submissions and thereby made an erroneous judgment on liability.2.The learned magistrate erred in law and fact by wrongly finding that the deceased contributed to the occurrence of the accident thereby erroneously apportioning liability at 30% to the deceased.3.The Learned Magistrate erred in law and in fact in failing to appreciate the relevant Principles, case law and the submissions on record in assessing quantum and thereby failing to award on the loss of dependency.4.The Learned Magistrate erred in Law and in Fact in failing to appreciate the relevant Principles, case law and the submissions on record in assessing quantum and thereby arrived at a very low award on damages. The Appellant’s Submissions: 5.The Appellants filed written submissions dated the 6th September 2025. On the issue of liability, they argued, based on the decision in Bundi Murube -vs- Joseph Omkuba Nyamuro [1982-88] 1 KAR 108 that the trial Court should evaluate the evidence and make its own determination. it was their case that the Respondent offered mere denials in his defence, failed to attend Court, and called no witnesses to controvert their evidence. 6.To fortify the above position, they relied on the case of JRS Group Limited -vs- Kennedy Odhiambo Andwak (2016) eKLR and Linus Nganga Kiongo & 3 Others -vs- Town Council of Kikuyu [2012] eKLR to assert that a party’s failure to call evidence renders their pleadings mere statements of fact, leaving the plaintiff’s evidence unchallenged. They argued that a three-year-old child could not be blamed for contributory negligence. To that end, they found support in the case of Abdi Kadir Mohammed & Another -vs- John Wakaba Mwangi [2009] eKLR, which held that a child of tender years cannot be found contributorily negligent unless it is proven they knew they should take precautions for their safety. The Appellants urged the Court to hold the Respondent 100% liable. 7.Regarding quantum, the Appellants urged the Court to disturb the trial Magistrate’s discretion. They cited the guiding principles in Said Sweilem Gheithan Saanum -vs- Commissioner of Lands (being sued through Attorney General) & 5 others [2015] eKLR to front the position that the trial Court erred in failing to award damages for loss of dependency simply because the minor’s future was difficult to determine. Drawing from P. I. -vs- Zena Roses Ltd & Another [2015] eKLR, the Appellants argued that the life of a healthy child was prematurely terminated, and a global award of Kshs. 2,000,000/- should be granted for loss of dependency. 8.The Appellants prayed that the appeal be allowed and this Court awards damages on loss of dependency. The Respondent’s case: 9.Anthony Maina Kamau challenged the appeal through submissions dated the 16th September 2025. In challenging the Appellant’s claim on liability, he claimed that they failed to prove their claim of negligence because their sole witness, Zainab Kagure Hassan, admitted to not witnessing the accident. He drew support from the decision in Samuel Kimani & another v Mary Wanjiku Kamau & another [2019] eKLR, which cited Kiema Muthungu -vs- Kenya Cargo Handling Service Ltd (1991) 2, where it was observed that there can be no liability without fault and the burden of proving negligence lies on the plaintiff. 10.The Respondent also relied on Statpack Industries -vs- James Mbithi Munyao Nairobi [2005] eKLR to emphasize that an injury per se is not sufficient to hold someone liable. Further, he cited the authority in Alfred Kioko Muteti -vs- Timothy Miheso and another [2015] eKLR to argue that pleadings do not constitute evidence. The Respondent maintained that the trial magistrate ought to have dismissed the suit. 11.On the issue of quantum, the Respondent argued that the trial Court did not err in failing to award damages for loss of dependency. It was his case that the deceased was a child of three years who had not yet started school, making it impossible to determine if he would have performed well or helped his family. Drawing on the case of John Okumu Juma & another v Godfrey Orono Wesonga [2021] eKLR, it was his submission that an award under the Fatal Accidents Act for children of tender years should utilize a global approach based on future economic prospects, which in this case were uncertain. Analysis and Determination: 12.Having considered the grounds of appeal and the rival submissions, the following two issues arise for determination: -i.Whether the trial Court erred in apportioning liability at 70%: 30% between the Respondent and the deceased.ii.Whether the trial Court erred in its assessment of quantum, in failing to make an award for loss of dependency. 13.This being a first appeal, this Court’s duty is to re-evaluate the evidence tendered before the trial Court and arrive at its own independent conclusion. In the longstanding case of Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123) the Court discussed the said role thus;….. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally 14.In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate court in the following terms;"This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212." 15.Recently, the Court of Appeal in Lumunge -vs- China City Construction Limited China City Construction Limited & 2 others (Civil Appeal E007 of 2023) [2026] KECA 330 (KLR) referred to its earlier decision on its role as an appellate Court. It observed thus;… This Court in Geoffrey Muthinja & another -vs- Samuel Muguna Henry & 1756 others (2015) KECA304(KLR) elaborated on this mandate as follows:As this is a first appeal, our mandate is a broad one and involves….a fresh and exhaustive examination, re evaluation and re-analysis of the entire record with a view to drawing our own inferences and making our own independent conclusion, on all the material before us. We pay a measure of deference to the findings of the first instance Court but are free to depart from them in appropriate cases, where they are founded on no evidence, constitute a misapprehension of the law or are plainly wrong. The latitude to depart is wider where, as in this case, there was no trial involving the taking of viva voce evidence in which case the first instance Judge would have had the added advantage of hearing and seeing the witnesses and so would have been better placed to judge their credibility and make a more informed judgment on the veracity of the opposing cases. 16.Having set out the guiding principles of this Court’s jurisdiction, this Court shall now address the issues. (a) Whether the trial court erred in apportioning liability at 70%: 30% between the Respondent and the deceased: 17.From the evidence of the 1st Appellant, the deceased minor left home and was knocked down by the Respondent’s vehicle. While the Respondent argued that the Appellants failed to prove negligence because they lacked an eyewitness, the Respondent himself failed to attend Court to tender evidence. In his written statement of defence, the Respondent blamed the parents for leaving the three-year-old minor unattended. 18.It is a well-settled principle, as correctly cited by the Appellants, that a child of tender years cannot be held contributorily negligent. In Butt -vs- Khan (1982-88)1 KAR Madan JA discussed the subject as follows:…. Indeed, I am of the opinion that practice of civil Courts to be that normally, a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, in so far as a young person is concerned, only upon clear proof that at the time of doing the act or making the omission, he had the capacity to know that he ought not to do the act or make the opinion. 19.The Court of Appeal in Edward Mariga through Stanley Mobisa Mariga -vs- Nathaniel David Schulter & another [1997] KECA 336 (KLR) faulted the Judge when he (Hon. Mwera J.) held that the accident was substantially caused by the minor’s negligence and held him 90% to blame. In reversing the finding, the learned Judges of Appeal observed thus;…. At the date of the accident the appellant was 8 years old and therefore a child of tender age. As a matter of law, a child of tender age cannot be held guilty of contributory negligence - see Bashir Butt v Uwais Ahmed Khan (1988) 1 KAR 1. So both on the evidence and as a matter of law, the Judge's finding as regards contributory negligence is unsustainable. We allow this ground of appeal. 20.Coming back to the issue at hand, it is common ground that the deceased was a minor of three years. Undoubtedly, he lacked the mental capacity to know he was on a road, let alone appreciate the hazards and danger he exposed himself to. If children were to be contributorily held negligent, it would essentially mean adults’ sense and duty of responsibility was effectively thrown out of the window. To this Court, if the Appellants desired to pursue the issue of contribution, then they ought to have instead taken out third party proceedings against the person who had the custody of the deceased child. Attaching contributory negligence on a child of three years old runs contrary to the binding decisions by superior Courts. 21.Therefore, the trial Magistrate fell into error by attaching 30% contributory negligence to the deceased. Consequently, this Court finds and hold that the Respondent be and is hereby held 100% liable for the accident. (b) Whether the trial Court erred in its assessment of quantum, in failing to make an award for loss of dependency: 22.Turning to quantum, the guiding principle was set by the Court of Appeal in Catholic Diocese Kisumu -vs- Sophia Achieng Tete [2004] 2 KLR 55, in the following terms;"…. It is trite law that the assessment of general damages is at the discretion of the trial Court and an appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial Court only if it is satisfied that the trial Court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate." 23.The trial Court awarded Kshs. 50,000/- for pain and suffering and Kshs. 100,000/- for loss of expectation of life. These sums are reasonable and conform to conventional awards for a deceased who died on the spot, and they shall remain undisturbed. 24.The core dispute on quantum is the trial Court’s failure to award damages for loss of dependency. The trial Magistrate stated she could not make any award because it was difficult to determine the future of the child. 25.This Court is persuaded by the decision in John Okumu Juma & another -vs- Godfrey Orono Wesonga [2021] KEHC 6244 (KLR) where the following was stated:(21)When it comes to children of tender years and the concept of dependency, varied views are abound. What is certain is that such children are invariably dependant on their parents for their welfare, well-being, lifestyle, education, future economic prospects etc. without parents, children of tender years are completely helpless and that is why society always comes to their aid as an obligation through relatives, family friends and of course, the state and its agencies.(22)Being the actual and true dependants of their parents and/or guardians, the award of damage, under the Fatal Accidents Act for children of tender year would be more appropriate and proper only if the global rather than the multiplier approach is applied. Even then, there are certain parameters based on the future economic prospects of a child which are wholly dependent on his education and educational performance. A child’s education coupled with his/her education performances is the key to future economic and social success. 26.A more pointed position regarding assessment of damages in respect of minors was made by the Court of Appeal in Kenya Breweries Limited -vs- Saro, [1991] KLR 408 when it observed thus;“…. We would respectfully agree with Mr. Pandya that in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken in to account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four year old one who has not been to school and whose abilities are yet not ascertained. That, we think, is a question of common sense rather than law. But the issue of some damages being payable in both cases is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards African and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parent are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and do invariably take care of their aged parents.” 27.The foregoing is unequivocal since children are also human beings and their dignity must be protected. Children must, therefore, be awarded under the head loss of dependency. Without going any further, the trial Court’s failure to make any award was a misdirection in law. The Court in John Okumu Juma -vs- Godfrey Orono Wesonga (supra) substituted the trial Court’s award with a sum of Kshs. 400,000/- in 2021. Accordingly, in this Court’s assessment, taking into consideration the age of the minor and the passage of time, a global sum of Kshs. 500,000/- is a fair and reasonable global sum for loss of dependency. The sum is hereby allowed. 28.With the foregoing, the appeal is wholly successful. Disposition: 29.Drawing from the above, the following final orders do hereby issue: -(a)The appeal is hereby allowed.(b)The trial Court’s apportionment on liability is set aside and substituted with an order holding the Respondent 100% liable for the accident.(c)The award of damages on Pain and Suffering at Kshs. 50,000/- and Loss of Expectation of Life at Kshs. 100,000/- are hereby upheld.(d)An award of damages of Kshs. 500,000/- [Kenya Shillings Five Hundred Thousand Only] is hereby made for Loss of Dependency.(e)The Respondent shall bear the costs of the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY, 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss Alodo, Learned Counsel for the Appellants.Miss Koderi, Learned Counsel for the Respondent.Amina – Court Assistant.