https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12286

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT BUNGOMA** **CIVIL APPEAL NO. E053 OF 2023** **JAMES RONOH ………………………............................................... APPELLANT** **VERSUS** **MARTIN MUTIOS MTAI (suing as the legal representative** **of the estate of the late AMON CHERUO CHEMASWET)………..RESPONDENT** *(Being an appeal from the judgment and decree of Hon. G. Adhiambo, Senior Principal Magistrate, delivered on 16th May 2023 in Kimilili SPMCC No. 25 of 2022)* **JUDGMENT** **A. Introduction** 1. This is an appeal against the judgment of the Senior Principal Magistrate's Court at Kimilili (Hon. G. Adhiambo, SPM) delivered on 16th May 2023 in Kimilili SPMCC No. 25 of 2022. The trial court found the Appellant 100% vicariously liable for a fatal road traffic accident and awarded the Respondent's estate a total of Kshs. 2,321,077/=, together with costs and interest. 2. The Appellant filed his Memorandum of Appeal on 6th June 2023, raising five grounds directed principally at the quantum of damages. By direction of this Court, the appeal was canvassed by way of written submissions, which both sides filed and on which each relied in its entirety. 3. In their written submissions the Appellant substantially reframed his case around two issues: ***a) whether he was the person properly liable for the accident given an alleged prior sale of the motor vehicle, and b) Whether the damages awarded were inordinately high.*** 4. This court has treated the appeal as raising two central controversies fairly falling within the grounds pleaded, namely: liability, and quantum of damages. Despite the Respondent correctly pointing out Appellant's written submissions as introducing a wholly new cause outside the Memorandum of Appeal, the court has not treated the said submissions as introducing a wholly new cause outside the Memorandum of Appeal, since both issues are reasonably comprised within Grounds 1, 2, 3 and 5, and the Respondent has not been shown to have suffered any prejudice in responding to them. **B. Background** 1. The Respondent, suing as the legal representative and administrator ad litem of the estate of Amon Cheruo Chemaswet (deceased), instituted the suit before the subordinate court by way of plaint filed on 3rd February 2022. The Plaint was seeking general damages under the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26), special damages of Kshs. 117,445/=, costs and interest of the suit. 2. The Respondent's case was that on or about 26th July 2021, at about 1700hrs, the deceased was lawfully walking along the left edge of the Kaptama–Kapsokwony road when, at the "Kona Tatu" area, motor vehicle registration No. KCT 135T (Mitsubishi Lorry/Truck) was so negligently driven that it left its lane, crossed to the opposite lane and knocked him down, together with several other pedestrians, occasioning him fatal injuries from which he succumbed in hospital. 3. The Appellant filed a statement of defence on 9th March 2022 through the firm of Nyachiro Nyagaka & Co. Advocates, denying the averments in the plaint and pleading, in the alternative, contributory negligence on the part of the deceased. At the hearing, however, the Appellant who testified as DW1 disowned that defence, asserting that he had never instructed that firm, and adopted a separate witness statement dated 17th May 2022 in which he claimed to be a stranger to the suit, having sold the subject motor vehicle to one Adlight Chebet Chengoni vide a Memorandum of Understanding dated 4th December 2019. 4. The trial court heard three witnesses for the Respondent, the investigating police officer (PW1), an eyewitness (PW2), and the administrator (PW3). The Appellant testified as DW1 in defence. In its judgment, the trial court found the driver of the subject motor vehicle 100% liable for the accident, found the Appellant vicariously liable as the registered owner, and awarded damages of Ksh.2,321,077/= as particularized in its judgment. 5. Aggrieved, the Appellant filed the present appeal. 6. From the record, the following facts are not seriously in dispute: 7. A road traffic accident occurred on 26th July 2021 at about 5.00 p.m. along the Kaptama–Kapsokwony road, at the "Kona Tatu" area, involving motor vehicle registration No. KCT 135T, Mitsubishi Lorry/Truck. 8. The deceased, Amon Cheruo Chemaswet, then aged 19 years, was a pedestrian who sustained fatal injuries in that accident and later died while undergoing treatment. His death is confirmed by the Certificate of Death (Exhibit 3) and the Post-Mortem Report (Exhibit 2). 9. At the material time, the Appellant was, together with Magari Hire Purchase Limited, registered as an owner of the subject motor vehicle, as shown in the copy of records produced as Exhibit 6(a). 10. The Appellant did not personally witness the accident and gave no account, from personal knowledge, of how it occurred. 11. No eyewitness was called by the defence to controvert the account given by PW2. 12. The Respondent is the duly appointed legal representative of the deceased's estate, holding a limited grant of letters of administration ad litem for purposes of the suit. 13. The deceased was unmarried and had no children; he was survived by his parents and siblings. 14. Having considered the record, the grounds of appeal and the rival submissions, the following issues arise for determination: * 1. ***Whether the trial court erred in finding the Appellant liable for the accident, having regard to his claim that he had, prior to the accident, sold his interest in the motor vehicle to a third party.*** 2. ***Whether the damages awarded by the trial court were inordinately high, wrongly pleaded, or based on a misapplication of legal principle.*** 3. ***What order should issue as to costs?*** 15. The mandate of this court sitting as a first appellate court has been well settled. This being a first appeal, this Court's task is not confined to auditing the trial court's reasoning for error, it is to reconsider the evidence afresh and reach its own conclusions, and while giving due allowance to the fact that it neither saw nor heard the witnesses testify. 16. In the case of ***Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 it was held:*** ***“...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.”*** 1. This court is additionally guided by ***Peters v Sunday Post Ltd [1958] EA 424***, in which it was held that an appellate court will not ordinarily interfere with findings of fact based on the credibility of witnesses seen and heard by the trial court, unless it is demonstrated that the trial court failed to take advantage of having seen and heard the witnesses, or that the findings are not supported by the evidence on record. 2. The court is further guided by ***Kenya Ports Authority v Kuston (Kenya) Limited [2009] eKLR,*** which restates the first appellate court's duty to reconsider the evidence, evaluate it afresh, and reach its own independent findings while remaining alive to the fact that it did not have the advantage of observing the demeanor of witnesses. 3. It is against that standard that this court has approached the two substantive issues below. 4. ***Whether the Appellant was liable for the accident*** 5. The trial court founded the Appellant's liability on two related bases. First, the statutory presumption that the registered owner of a motor vehicle is the owner thereof unless the contrary is proved, and second, its finding that the Appellant's claim to have sold the vehicle before the accident was an afterthought, not properly pleaded and not otherwise established. 6. Turning on the the statutory presumption of ownership. Section 8 of the Traffic Act (Cap. 403, Laws of Kenya) provides that the person in whose name a motor vehicle is registered is, unless the contrary is proved, deemed to be the owner. It is common ground that at the material time, the Appellant was registered jointly with Magari Hire Purchase Limited, as an owner of the subject vehicle. That registration, coupled with the unchallenged Police Abstract (Exhibit 1) naming the Appellant as owner, raised a rebuttable presumption of ownership. In the absence of evidence to the contrary, of vicarious responsibility for the negligence of whoever was driving the vehicle in the ordinary course of its use, that burden accordingly shifted to the Appellant to displace that presumption. 7. The Appellant sought to rebut the presumption by asserting that he had, by a Memorandum of Understanding dated 4th December 2019, disposed of his interest in the vehicle to one Adlight Chebet Chengoni, who was said to have taken immediate possession and to have assumed responsibility for continuing loan repayments to Magari Hire Purchase Limited. This defence suffers from at least three difficulties, each independently fatal to it. 8. First, **i*t was not properly before the trial court on the Appellant's own account.*** The only pleading in which the alleged sale was raised was the statement of defence filed on 9th March 2022 by Nyachiro Nyagaka & Co. Advocates. At trial, the Appellant disowned that pleading in its entirety, asserting he had never instructed that firm. He did not, however, apply to have the pleading struck out, nor did he seek leave to file an amended defence properly pleading the sale in a document he acknowledged as his own. 9. A litigant cannot simultaneously repudiate a pleading and rely upon the very fact pleaded in it. The trial court cannot be faulted for treating the sale as not properly and consistently pleaded. It is trite that parties are bound by their pleadings and cannot be permitted to set up, or be allowed the benefit of, a case not pleaded ***(see Odd Jobs v Mubia [1970] EA 476).*** If the defence filed by Nyachiro Nyagaka & Co. Advocates is disregarded as unauthorised as the Appellant himself invited the court to do then no defence pleading the sale remains on record at all, and the Appellant is left without any properly pleaded basis on which to resist the statutory presumption. 10. Second, ***No third-party notice was issued.*** If, as the Appellant maintains, Adlight Chebet Chengoni was the true owner and person properly liable, Order 1 Rule 15 of the Civil Procedure Rules provided the appropriate mechanism by which he could have brought her into the suit and sought indemnity or contribution. He did not do so at any stage of the proceedings before the trial court, despite having ample opportunity. 11. Third ***The hire-purchase status of the vehicle undermines any transfer in any event****.* It was the Appellant's own evidence that the vehicle had been acquired on hire-purchase terms from Magari Hire Purchase Limited and had not been fully paid for as at the date of the alleged sale, or indeed as at the date of the accident. 12. Under the general law applicable to hire-purchase transactions, ownership in goods let on hire-purchase remains with the owner (the financier) until the hirer exercises the option to purchase by completing all instalments. Until then the hirer holds mere possession as bailee and has no title capable of being passed to a sub-purchaser ***(nemo dat quod non habet rule.*** 13. Even taking the Memorandum of Understanding at its highest, the Appellant as a hirer under an uncompleted hire-purchase agreement had no proprietary interest capable of transfer to Ms Chengoni at the material time. This point, though also argued by counsel for the Respondent, is one on which the court arrives at its own independent conclusion applying ordinary principles of the law of sale and hire-purchase, rather than upon the authority cited by counsel. 14. Fourth, ***The eyewitness evidence.*** Independently of the ownership question, PW2 gave a clear and detailed account of the manner in which the accident occurred. He stated that the subject lorry, travelling at speed, lost control while negotiating a bend, crossed onto the wrong side of the road and struck several pedestrians, including the deceased, who were lawfully walking on the left edge of the road. That evidence was not shaken in cross-examination in any material particular, and no eyewitness was called to controvert it. 15. Applying the principle in ***Peters v Sunday Post Ltd (above),*** this court sees no basis to disturb the trial court's acceptance of that unchallenged evidence, nor any misapprehension of the facts by the trial court in relying on it. 16. For the foregoing reasons, this court finds no merit in the Appellant's challenge to the finding of liability. Grounds 1 and 4 of the Memorandum of Appeal, and the corresponding arguments in the Appellant's submissions, accordingly fail. The finding that the driver of motor vehicle registration No. KCT 135T was 100% liable for the accident, and that the Appellant, as registered owner, is vicariously liable, is upheld. 17. ***Whether the damages awarded were excessive*** 18. It is well settled that an appellate court will not interfere with an award of damages merely because, sitting as a trial court, it might have arrived at a different figure. Interference is warranted only where it is shown that the trial court took into account an irrelevant factor, omitted to take into account a relevant one, applied a wrong principle of law, or arrived at a figure so inordinately high or so inordinately low as to represent a wholly erroneous estimate ***(Kemfro Africa Ltd t/a Meru Express Services v A.M. Lubia and Olive Lubia [1985] eKLR; Mbogo & Another v Shah [1968] EA 93, both cited by counsel)***. 19. Independently, this court also takes guidance from ***Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR,*** in which the Court of Appeal reaffirmed that an appellate court will only disturb a trial court's assessment of damages where the award is shown to be manifestly excessive or manifestly inadequate in light of the evidence and comparable awards, and cautioned against treating a mere difference of opinion on quantum as a ground for interference. 20. Under the heading Pain and suffering (Law Reform Act), the trial court awarded Kshs. 100,000/=, relying on the range of Kshs. 10,000/= to Kshs. 100,000/= identified in ***Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR,*** and on the fact that the deceased survived for approximately 40–48 hours after the accident before succumbing to his injuries. The Appellant urges a reduction to Kshs. 50,000/=. 21. This court has independently considered that a period of survival approaching two days, during which the deceased sustained a subdural haematoma and underwent treatment before succumbing, properly falls at the higher end rather than the midpoint of the established range for prolonged pain and suffering prior to death. The trial court's award, being within the recognised range and rationally connected to the evidence of the interval between injury and death, cannot be said to be a wholly erroneous estimate. This court declines to interfere with the award of Kshs. 100,000/= under this head. 22. The trial court awarded the conventional sum of Kshs. 100,000/= under the heading Loss of expectation of life (Law Reform Act). Both parties' submissions, in substance, accept Kshs. 100,000/= as an appropriate conventional award in the current range for loss of expectation of life. This court finds no basis to disturb this award. 23. Loss of dependency (Fatal Accidents Act). Dependency ratio. The trial court applied a dependency ratio of one-third (1/3), reflecting dependency by the deceased's parents alone. There being no evidence that the siblings were themselves dependent’s, this is consistent with the ordinary practice in comparable cases involving a young, unmarried deceased survived by parents. The court finds no error of principle in this ratio and upholds it. 24. The trial court applied a multiplier of 40 years, derived from a statutory retirement age of 60 years less the deceased's age at death (19 years), with only a marginal one-year deduction to account for the ordinary vicissitudes of life. The Appellant urges a multiplier of 32 years. 25. This court is independently guided by the reasoning of the Court of Appeal in ***Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR***, to the effect that where a deceased was young and had not yet established a settled earning pattern, some real (rather than nominal) discount from the arithmetical difference between age at death and retirement age is ordinarily warranted, to reflect the multiple contingencies, ill-health, unemployment, changes in circumstance that could have interrupted a working life of that length. 26. Applying that principle, a deduction of only one year from the arithmetical maximum of 41 years does not, in this court's assessment, adequately reflect those contingencies. At the same time, this court is not persuaded that the Appellant's proposed multiplier of 32 years which would represent a deduction of nine years, with no evidential basis offered for that particular figure beyond assertion is any more principled. 27. Doing the best it can on the material before it, and mindful that appellate interference with a discretionary figure of this kind is only warranted where the trial court's figure is shown to be wholly erroneous rather than merely open to a different view, this court is not satisfied that a multiplier of 40 years, as opposed to some marginally lower figure, amounts to so inordinate a departure as to constitute a wholly erroneous estimate. The award is accordingly upheld, though not without observing that a somewhat more conservative multiplier would equally have been justifiable on this record. 28. The trial court adopted the 2018 minimum wage for a general worker in former municipalities, Ksh. 12,522.70/= there being no evidence of the deceased's actual earnings. This approach accords with the established practice, applied for instance in ***Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR***, that in the absence of proof of a deceased's or claimant's actual income, the applicable minimum wage guidelines issued under the Regulation of Wages (General) (Amendment) Order provide a reasonable, evidence-based basis for the multiplicand, rather than an arbitrary or speculative figure. 29. I find that the trial court's approach was correct in principle, and there being no evidence of the deceased's actual earnings from his farming activities, this court declines to disturb the multiplicand of Ksh. 12,522.70. Consequently, applying the ratio, multiplier and multiplicand upheld above, the award of Kshs. 2,003,632/= under this head (Kshs. 12,522.70 × 12 × 40 × 1/3) is confirmed. 30. Turning on the issue of Special damages, the trial court awarded Kshs. 117,445/=, comprising Kshs. 30,000/= for costs of processing the grant of letters of administration, Kshs. 78,000/= for coffin, dressing and hearse expenses, Kshs. 8,895/= for mortuary charges, and Kshs. 550/= for the cost of obtaining a copy of records of the motor vehicle. All these were supported by receipts produced and admitted as exhibits. 31. It is well settled that special damages must be specifically pleaded and strictly proved, and this court is satisfied, on its own review of the exhibits, that each item was so proved. 32. The Appellant argues that because a harambee (fundraiser) was held to meet funeral expenses, the estate should not "benefit twice" and that special damages should accordingly be reduced to Kshs. 50,000/=. 33. This court rejects that argument. It is a well-established principle, sometimes described as the ***collateral source rule***, that voluntary contributions made by family, friends or well-wishers towards expenses occasioned by a wrongdoer's negligence do not operate to reduce the wrongdoer's liability to reimburse those same expenses. The benefit conferred by third parties is ‘***res inter alios acta***’ as between the claimant and the tort-feasor and does not accrue to the wrongdoer's advantage. The fact that the community rallied to assist the family with funeral costs is no reason in law to relieve the Appellant of liability for expenses he caused to be incurred and which were strictly proved by receipts. The award of Kshs. 117,445/= as special damages is accordingly upheld in full. 34. Having reviewed the plaint, this court finds that all heads of damage awarded were expressly pleaded in paragraph 8 and the prayers of the plaint, and were each supported by evidence and exhibits produced at trial without objection. Consequently Ground 3 (amounts not pleaded and proved), it is this court’s finding that the same is not merited. 35. Costs follow the event. The Respondent having substantially succeeded in defending the judgment appealed from, there is no reason to depart from the ordinary rule. DISPOSITION 1. For the reasons set out above, the court makes the following orders: 2. ***The appeal is dismissed in its entirety.*** 3. ***The judgment and decree of the Senior Principal Magistrate's Court at Kimilili in SPMCC No. 25 of 2022, delivered on 16th May 2023, are hereby upheld, including the award of Kshs. 2,321,077/= together with costs of the suit and interest at court rates as ordered by the trial court.*** 4. ***The Appellant shall bear the costs of this appeal.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT BUNGOMA** **THIS 30Th DAY OF July 2026.** **M. SHARIIF** **JUDGE**