https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13090

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **CIVIL APPEAL NO. E195 OF 2025** **BETWEEN** **JANE KERUBO SIOCHA……………………………………….………..APPELLANTS** **VERSUS** **PLACIDE HASHIMWEYEZU (**Legal representative of The Estate of **JOHN MBUMBA (Deceased)……………………..…………RESPONDENT** **JUDGMENT** 1. The Respondent filed the suit on behalf of the estate of the late John Mbumba vide a Plaint dated 16th May 2024. 2. The Respondent alleged that the deceased was involved in a fatal road traffic accident along Nairobi-Mombasa Road at Sabaki area, where the deceased was a pedestrian walking along the road when he was hit by the Appellant’s driver. 3. The accident involved motor vehicle registration number KCM 438E. 4. It was alleged that the deceased was walking across the road before he finished crossing the road when the Appellant’s driver, employee, servant and/or authorized agent so negligently, recklessly and carelessly drove the said vehicle at a very high speed, lost control and knocked the deceased. 5. The Appellant’s agent was alleged to have been solely to blame for the accident; hence, the Defendant was said to be vicariously liable under the Law Reform Act and the Fatal Accidents Act. 6. The Appellant did not call any witnesses during the trial. 7. The trial court apportioned liability at 50%:50% against the Appellant. 8. The trial court held that it was aware that, in the Sabaki area, the road is a dual carriageway and that there is no designated crossing area on the highway, given the topography of the area. 9. The trial court further held that the deceased voluntarily assumed the risk by crossing at an undesignated area on a highway: the designated crossing area is at the Mlolongo footbridge. 10. On quantum, the trial court held that the deceased was aged 30 years and survived by a sister. 11. The Respondent did not supply the Court with any document to prove his earnings. 12. The trial court relied on the case of Vincent Sululu and another v Rose Wanjiru (2016) eKLR and the case of Ainu Shamsi Hauliers Limited v Moses Sakwa and another (suing as the administrators of the estate of Ben Siguda Okach) (2012) eKLR, where a 40-year-old was awarded a global sum of Kshs. 2,000,000/-, and awarded the Respondent Kshs. 2,000,000/-. 13. The trial court held that the deceased died after one week in hospital and awarded Kshs. 100,000/- for loss of life and expectation. 14. The trial court awarded Kshs. 50,550/-, being the bare minimum for funeral expenses which must have been undertaken, plus motor vehicle search. 15. The trial court ultimately gave a net award of Kshs. 1,125,250/-. 16. The Appellant, being aggrieved by the judgment and decree of the trial court, preferred the present appeal on the following grounds: 17. The Honourable Magistrate’s apportionment of liability was unsupported byevidence, given that no eyewitness or police report stated that the deceased was “crossing the road,” and the Respondent only testified to post-accident events and did not witness the accident itself. 18. The Honourable Magistrate failed to consider that the death certificate and post-mortem report attributed the deceased’s death to sepsis, pneumonia and bedsores, and not to the accident. 19. The Honourable Magistrate erred in failing to find that there was no medical evidence linking the aforesaid conditions to the accident, and consequently failed to find that the chain of causation had been broken. 20. The Honourable Magistrate erred in finding that the deceased died one week after the accident, whereas the record proves that the accident occurred on 17 August 2022 and that the deceased died on 25 December 2022. 21. The Honourable Magistrate erred in awarding damages for loss of dependency to a brother of the deceased, contrary to section 4(1) of the Fatal Accidents Act (Cap 32), which limits dependants to spouses, parents and children. 22. The Honourable Magistrate erred in making awards for pain and suffering, loss of expectation of life and special damages in the absence of evidence on the nature of the deceased’s injuries, and in the absence of evidence that the accident caused the deceased’s death. 23. The Honourable Magistrate erred in awarding Kshs. 50,000/- for funeralexpenses, whereas the Respondent neither pleaded nor testified in support of any funeral expenses. 24. The trial Court erred in descending into the arena of conflict. 25. The Appellant prayed that the Court: Allow this appeal and set aside the Judgment of the Subordinate Court; Substitute the said Judgment with an Order dismissing the Respondent’s suit with costs; and award the costs of this Appeal to the Appellant. 26. The Appellant requests the Court to set aside the finding on liability because the trial Court’s decision thereon was not based on evidence. The Appellant relies on the decision in Karanja & another (Suing as the Administrators of the Estate of Eliud Gakera Karanja - Deceased) v Gikomba Upendo Fish Traders Limited[2023]KEHC 25380 (KLR**)**, where the Court held: *“A prima facie case can only be established by admissible facts. As I have stated, there are no facts which could call upon the Respondent to respond. In the absence of basic facts, the doctrine of res ipsa loquitur does not apply.”* 1. Only the Respondent and a police officer testified at trial. The Appellant submitted that neither witness observed the alleged accident. 2. The Appellant submitted that there was no testimony that the deceased was crossing the road, as held by the trial Court, and that the Respondent’s pleadings remained mere allegations; the trial Court had no grounds to find the Appellant negligent. 3. The Appellant submitted that the deceased died from sepsis, pneumonia and grade IV bed sores, according to the death certificate and post-mortem report. 4. The Appellant submitted that the Oxford Concise Colour Medical Dictionary defines “sepsis” as: *“the putrefactive destruction of tissues by disease-causing bacteria or their toxins.”* 1. According to the same dictionary, “pneumonia” is: *“inflammation of the lung caused by bacteria, in which the air sacs (\*alveoli) become filled with inflammatory cells and the lung becomes solid.”* 1. The Appellant submitted that according to Zaidi SRH and Sharma S. in their publication, ‘Pressure Ulcer’, *“bedsores, decubitus ulcers, or pressure ulcers, are localized skin and soft tissue injuries that form as a result of prolonged pressure and shear, usually exerted over bony prominences.”* 2. The Appellant submitted that the deceased was in hospital for long periods, according to the Respondent, which may explain the bed sores. From the foregoing definitions, the deceased died from infections and a condition that were not brought about by a road traffic accident. 3. The Appellant, therefore, calls upon the Court to resolve the issue of the cause of death, which the trial Court did not consider. 4. The Appellant submitted that the Respondent did not plead particulars of the injuries sustained from the alleged accident. 5. There was no P3 form or medical report to shed light on the injuries. The only medical evidence was the death certificate and post-mortem report, which attributed death to sepsis,pneumonia and bed sores, which infections, the Appellant submitted, were not from a road accident. 6. The Appellant submitted that the Court should find that the chain of causation was broken and that the alleged accident did not cause the deceased’s death. 7. The Appellant submitted that the Respondent is a brother of the deceased. The Appellant submitted that a brother is not a dependant under section 4(1) of the Fatal Accidents Act. 8. In Mugweru (As the administrator of the Estate of the Late James Mugweru Mwangi) v Attorney General [2024] KEHC 1500 (KLR), the Court held: *“It is clear from the provisions of the above section that brothers and sisters are not recognized as beneficiaries of a deceased.”* 1. It was the Appellant’s submission that the trial Court therefore erred in disregarding the law and awarding damages for loss of dependency to a brother of the deceased. 2. The Appellant relied on the decision in Salim S Zein t/a Eastern Bus Service & another v Rose Mulee Mutua [1997] KECA 94 (KLR), where the Court held: *“The plaintiff did not give evidence in support of her claim for these expenses. So the awards were based on no evidence. That is a serious transgression of principle on the part of the Judge which this Court has a duty to correct. Accordingly, these awards are set aside in their entirety.”* 1. The Appellant submitted that the Respondent stated that he did not have admission forms. There was no evidence that the deceased was admitted to hospital due to injuries arising from the alleged accident. 2. Without a nexus between the deceased’s long hospitalization and the alleged accident, the trial Court erred in condemning the Appellant to pay damages for pain and suffering. 3. Further, when the deceased died from infections and not injuries arising from a road accident, the trial Court erred in condemning the Appellant to pay damages for loss of expectation of life. 4. The Appellant submitted that there was no pleading for funeral expenses; therefore, the trial Court erred in condemning the Appellant to pay funeral expenses, which the Respondent neither pleaded nor testified that he incurred. 5. The Appellant submitted that the Court should allow this appeal because the trial Court’s decisions were contrary to law and were not supported by evidence. The Respondent, in response, submitted that **PW2, PC Ibrahim Ali Yaqub,** a police officer attached to Athi River Police Station, produced the police abstract, which indicated that the accident took place on **12th August 2022.** 6. He stated that the deceased was hit by a motor vehicle registration number **KCM 438E,** a Toyota station wagon, at Sabaki area and succumbed to his injuries. 7. PC Ibrahim, on cross-examination, stated that he did not visit the scene of the accident. 8. The Respondent submitted that where a police abstract is produced in Court without objection, its contents cannot be denied. 9. The Respondent, being a brother to the deceased, equally testified and, on cross-examination, stated that the deceased was admitted at **Machakos Level 5 Hospital,** then transferred to **Kenyatta National Hospital,** before he succumbed to his injuries on **25th December 2022.** 10. The Respondent submitted that the Appellant did not deny that the accident happened and that her duly authorized driver caused the accident. 11. The Respondent further submitted that the Appellant did not provide any reasons or circumstances for the occurrence of the accident. Further, the Appellant did not lead any evidence or call any witness to account for how the accident occurred or to controvert the Respondent’s and the police officer’s testimonies. 12. The Respondent relied on the case of **North End Trading Company Ltd (Carrying on the Business under the registered name of Kenya Handlers Limited) v City Council of Nairobi (2019) eKLR** and **Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997.** 13. The Respondent also relied on the case of **Matrex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCC No. 834 of 2002,** where Lesiit J. held: *“Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st Plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence are unsubstantiated. In the circumstances, the counterclaim must fail.”* 1. The Respondent submitted that the Appellant cannot shift the blame to the deceased, as he was a lawful pedestrian on the road when the Appellant’s driver, who was in control of motor vehicle registration number **KCM 438E Toyota S Wagon,** knocked him down. 2. The Respondent submitted that the Appellant did not call any witness or lead evidence to prove that the deceased was at fault and/or that no accident occurred. As such, the Respondent’s evidence remains unchallenged. 3. The Respondent submitted that he pleaded ***res ipsa loquitur,*** which cast upon the Appellant a burden to show absence of negligence on her part or that of her driver and that, in the absence of any such explanation, the Appellant must be held fully liable. 4. The Respondent relied on the case of **Mary Ambera Kadiri suing as the administrator of the Estate of Saleh Juma Kadiri (Deceased) v Country Motor Limited (2017) eKLR.** 5. On quantum, the Respondent submitted that under the Law Reform Act, for loss of expectation of life, the deceased was deprived of the normal expectation of life due to the wrongful act of the Appellant’s driver. 6. The deceased was 30 years old at the time of death, and the Respondent urged the Court to award Kshs. 200,000/-, relying on the case of Violet Jeptum Rahedi v Albert Kubai Mbogori(2013)eKLR, where the deceased died at the age of 44 years and was awarded Kshs. 150,000/- 7. On pain and suffering, the Respondent submitted that the deceased died four months after theaccident, and therefore an award of Kshs. 200,000/- would be appropriate. 8. Under the Fatal Accidents Act, the Respondent submitted that the deceased was a self-employed businessman and, since it was not clear how much he earned, an award of Kshs.2,000,000/- as a global sum would suffice. 9. On special damages, it was the Respondent’s submission that the same were both pleaded andproved. 10. The Respondent therefore urged the Court to dismiss the appeal. 11. I have considered the memorandum of appeal, the record of appeal and the rival submissions by the parties herein, from which I have identified the following issues for determination. 12. Whether the Respondent established on a balance of probabilities that the accident was caused by the negligence of the Appellant or his agent, whether the Respondent proved on a balance of probabilities that the deceased’s death was caused by the accident, whether the Respondent was entitled to be awarded damages for loss of dependency and whether the Appellant has made out a case for interference with the trial court’s findings on liability and award of damages. 13. This being a first Appeal, this Court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court in order to arrive at its own independent conclusion, taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. [Selle vs. Associated Motor Boat Company Ltd [1968] EA 123.] 14. It follows that the general rule is that the initial burden of proof lies on the plaintiff, the Respondent in this appeal, but the same may shift to the Appellant in this appeal depending on the circumstances of the case. 15. The burden of proof was on the Respondent, who sought the relief of the Trial Court; he tendered his evidence and blamed the Appellant for the accident. 16. From the evidence adduced before the trial court, it is apparent that neither of the witnesses (PW1 and PW2) witnessed the accident. 17. PW2 admitted that he only came to court to produce the police abstract and that he was not the investigating officer, as the investigating officer was Sergeant Mwikali. 18. PW2 testified that at the time of issuance of the abstract, the investigations had not been concluded. 19. PW2 did not produce the police file as he did not have it. I have noticed that the police abstract that was adduced has visible alteration including a superscription “FATAL INJURY” under the part describing the nature of injuries. 20. From my independent analysis of the foregoing, the evidence adduced by PW1 and PW2 neither explained how the accident occurred nor did it prove negligence on the part of the Appellant. 21. The evidence also failed to establish some primary facts upon which *res ipsa loquitor* would be inferred. 22. The finding by the trial court that the deceased was crossing the road at an undesignated area of the road did not come from the testimony of either witness but appears to have been a creation of the trial court borne out of the trial magistrate’s familiarity with the topography of the Sabaki area. 23. The fact that the evidence adduced was insufficient to prove how the accident occurred did not justify a 50: 50 apportionment of liability, as the Respondent bore a legal and evidential burden of proof to demonstrate that the accident was occasioned by the negligent act of the Appellant or her agent, which, from the evidence on record, the Respondent did not discharge. 24. The Appellant’s failure to call a witness was not consequential in the absence of the Respondent discharging the initial evidential burden of proof. 25. The Court of Appeal’s position in Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR espouses the correct legal position that: *“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”* 1. The second issue is whether the Respondent proved that the accident was the proximate cause of the deceased’s death. On the issue of evidence on “causation”, it was held in **South Nyanza Sugar Co. Ltd Vs. Wilson Ongumo Nyakwemba [2008] eKLR**D. Musinga J. (as he then was) approving the holding in **Statpack Industries Limited Vs. James Mbithi Munyao HCCA No. 152 of 2003 (Ur)** for the holding that: “It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence and his injury. The plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence.” 1. Proving negligence alone is insufficient; a claimant must establish a causal link between the Appellant’s negligent act or omission and the damage caused. 2. The mere fact that the deceased was involved in an accident and subsequently died does not, without more, establish legal causation. 3. The evidence on record is that the deceased was involved in an accident on 17th August 2022; PW1 testified that the deceased was discharged on 21st September 2022. 4. PW1 then testified that the deceased was later admitted at Machakos County Hospital for 2 days, then later referred to Kenyatta National Hospital, where he was admitted for 4 days before he died on 25th December 2022. 5. PW1 produced a death certificate and post-mortem examination report, which demonstrated that the deceased died on 25th December 2022; the cause of death is stated as sepsis, pneumonia and grade IV bed sores. 6. The Respondents did not produce any treatment notes, P3 form, medical report, or call a medical professional to explain the causal relationship between the injuries and the subsequent hospitalisation and the conditions identified at post-mortem. 7. I find that the evidence adduced was insufficient to establish causation of death consequent upon the accident as to merit an award of damages for loss of dependency, loss of life and expectation. 8. The Appellant argued that the Respondent, being the brother of the deceased, did not qualify as a dependant under the Fatal Accidents Act. 9. The Court of Appeal in Mwangi & another (Suing as the Legal Representatives of the Estate of the Late Richard Mwangi Gathoni (Deceased)) v Ngure & another*,* Civil Appeal No. 57 of 2020, [2023] KECA 448 (KLR), where the deceased's **mother and brother** were the Appellants. The Court of Appeal considered section 4(1) of the Fatal Accidents Act and held that the brother was **not a dependant** for purposes of a claim under the Act. The Court stated: *“Loss of dependency falls under the Fatal Accidents Act. Accordingly, the 2nd Appellant could not make a claim under the said Act for loss of dependency as he was not a dependant.”* 1. The Court of Appeal in Easy Coach Limited v John Thomas Akalongo & another***,* Civil Appeal No. 301 of 2012, [2014] KECA 177 (KLR)**, held expressly: *“As is clear from Section 4 of the Fatal Accidents Act, legal dependants of deceased persons are their spouses, children and parents. Deceased persons’ siblings are not their legal dependants.”* 1. The trial court misdirected itself in awarding damages for loss of dependency under the Fatal Accidents Act to the brother of the deceased. 2. On the issue of quantum of damages, in the event I am wrong on all the foregoing. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages 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.”* 1. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that: *“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on a wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”* 1. I have considered the quantum awarded as general damages, and I don’t perceive any error in principle that would merit interference. 2. On special damages, the trial court awarded the sum based on receipts produced. 3. The upshot is that I find the appeal merited: I find that the trial court reached findings that were unsupported by evidence on record and that the award of damages for loss of dependency under the Fatal Accidents Act to a brother of the deceased was contra-statute, therefore illegal. 4. I have considered the circumstances of the deceased’s death, and I believe that this is a case where an award of costs against the deceased’s estate would occasion disproportionate hardship on his estate. I will therefore exercise my discretion under section 27(1) of the Civil Procedure Act to order that each party bears their own costs. I therefore order as follows: 1. The Appeal succeeds 2. The judgment of the Court in Mavoko CMCC No. E347 of 2024 (Hon. M. Nanzushi, S.P.M) is hereby set aside and substituted with an order dismissing the suit. 3. Each party to bear their own costs. Dated, signed and delivered via Microsoft Teams at Mombasa this 20th day of August 2026. Emmanuel Bitta Judge of the High Court In the presence of: C/A Francis Mia h/b for Obwoge for the Respondent N/A for the Appellant