https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11749

**REPUBLIC OF KENYA** **IN THE HIGH COURT KENYA AT KERUGOYA** **CIVIL APPEAL NO 254 OF 2025** **JANE NTHAMBI KAVEMBA………………...…………….…………….… APPELLANT** **VERSUS** **JOYCE KAVINDU KITHUKA & JOSEPH MUTHINI KITHUKA** **(Suing as the mother, brother KITHUKA** **representatives of the estate of PAUL MANTHI KITHUKA -deceased………………......……….......................................................RESPONDENT** **JUDGMENT** The Appellant herein being aggrieved by the Decree emanating from the Judgment of Hon. P. Wechuli which was delivered on 25th September, 2025 appeal to this Honourable Court on the following grounds: - 1. That the Learned Trial Magistrate erred in law and in fact by holding the Appellant 100% liable for the accident in the absence of sufficient and cogent evidence to justify such a finding and by disregarding the Appellant's evidence, particularly the testimony of the driver. 2. That the Learned Trial Magistrate erred in law and in fact by shifting the burden of proof to the Appellant, contrary to the legal principle that he who alleges must prove, by requiring the Appellant to provide corroborative evidence to rebut the Respondents’ case. 3. That the Learned Trial Magistrate erred in fact and law in adopting a dependency ratio of 2/3 despite the fact that the Respondent did not establish that the deceased was married. 4. That the Learned Trial Magistrate erred in law and in fact by awarding special damages of Kshs. 115,550/=, part of which was not strictly proved. 5. That the Learned Trial Magistrate erred in law and fact by awarding a grossly excessive sum of Kshs. 9,495,176/= under the head of loss of dependency which was unsupported by the evidence led and the applicable law. 6. That the judgment of the Learned Trial Magistrate erred in law and fact by failing to consider the weight of the evidence on record. Reasons Wherefore the Appellant prays that: - 1. That the appeal be allowed. 2. The finding on liability be set aside and the Court does reassess the evidence on liability and come up with its own independent finding. 3. The award under loss of dependency be set aside and the Court to reassess the same. 4. The award of special damages be reduced to reflect only amounts that were strictly proven. 5. Costs of this appeal be awarded to the Appellant. **Brief facts** The plaintiff filed a Plaint dated the 26.7.24 seeking judgement against the defendant for general and special damages as a result of a fatal accident. The plaintiff’s case is that on or about 2.10.2023 at around 8.30pm along Matuu - Thika road at Mukalala area, the defendant's driver and/or agent so negligently and/or carelessly parked motor vehicle registration number KBZ 726Y Isuzu Lorry in the middle of the road without putting any road traffic warning signs causing motor cycle registration number KMFJ 725G Skygo which was passing on the road to ram into its rear as a consequence of which the deceased who was lawfully riding motor cycle KMFJ 725G Skygo sustained fatal injuries. The deceased was 34 years of age, a secondary school teacher and married with 2 children. He was earning Kshs 74, 540. The defendant filed a statement of defence dated 24th September, 2024 in which he denied the allegations in the plaint. The case proceeded for hearing, parties testified and they filed submissions. On 25th September, 2025, the court entered judgment for the Plaintiff against the defendant as follows: 1. Liability 100% 2. Loss of dependency kshs 9,495,176 3. Pain and suffering kshs 20,000 4. Loss of expectation of life kshs 100,000 5. Special damages kshs 115, 550 Total sum Kshs 9, 730, 726 The Plaintiffs’ witnesses testified as follows: **PW1 (Joyce Kavindu Kithuka, mother and legal representative**): She did not witness the accident. She relied on information from her son and police. She produced police abstract, Chief’s letter (showing deceased as married with minor children), payslip, and funeral expenses. On cross-examination, admitted she did not witness the accident and could not confirm how it occurred. The deceased was separated from his wife. **PW2 (Boniface Mutuku, eyewitness**): He testified that motor vehicle registration number KBZ 726Y Isuzu lorry was parked/stationary in the middle of the road without warning signs or lights at night. The motorcycle KMFJ 725G Skygo was ahead of him suddenly rammed into its rear. He was about 10 metres behind, saw everything clearly, and blamed the lorry driver. He called the police. **PW3 (Inspector Masafu, Matuu Police Station):** He confirmed a fatal accident occurred. The motor vehicle registration number KBZ 726Y Isuzu lorry had developed a mechanical problem and was stalled on the left side of the road facing Matuu. The rider (coming from the Matuu direction) rammed into the rear and died on the spot. No one had been blamed; the matter was still pending investigation. He was not the investigating officer and did not visit the scene. No sketch map or photographs were produced. Defendant case proceeded as follows: **DW1 (Peter Kilonzi, driver):** he testified he was driving motor vehicle registration number KBZ 726Y Isuzu lorry towards Mwingi, slowed down due to traffic ahead on a sharp descent, heard a loud bang, and found the motorcycle had hit the rear right side of his vehicle at high speed. The motorcycle KMFJ 725G Skygo went underneath. He blamed the deceased for speeding and reckless riding. On cross-examination, there were inconsistencies. For instance, whether lorry had fully stopped or was still moving when the bang occurred; who called the police to the scene. **Appellant submissions** On liability, it is the Appellant’s submissions that the Learned Trial Magistrate fell into a fundamental error by failing to properly evaluate and give due weight to the testimony of the Appellant’s driver (DW4), whose account of the accident was. consistent, plausible, and unshaken on material particulars. The driver clearly testified that he was in motion, albeit slowing down due to traffic ahead, when the deceased, riding at a high speed and without due care, rammed into the rear of the vehicle. Moreover, the trial court failed to appreciate that the evidence of PW2, the purported eyewitness, was not free from doubt. His assertion that the vehicle was parked' without warning signs was not corroborated by any independent evidence such as photographs, a sketch maps, or expert testimony. In contrast, the police officer (PW3) testified that no party had been blamed for the accident, thereby reinforcing the existence of doubt as to liability. In such circumstances, it was erroneous. for the trial court to make a definitive finding of 100% liability against the Appellant. The Court in **Mwangi & another v Oginga [2025] KEHC 7976 (KLR)** **emphasized that where evidence is conflicting and it is not possible to determine fault with precision, liability should be apportioned.** The appellant submits that the driver’s testimony that the deceased was riding at high speed and collided with the rear of the vehicle was not rebutted. PW2 admitted that the motorcycle was ahead of him and that the collision occurred suddenly, which is consistent with a scenario of loss. of control of or inattention. It is a well-established principle that a motorist must maintain a safe stopping distance and keep a proper lookout. The failure to do so constitutes negligence. In **Njoroge & another v Wanjugu & another (Suing as the Legal Representatives of the Estate of Charles Nganga Gitome 2024 KEHC 14957 KLR the court held that every road user owes a duty to exercise reasonable care, and failure to keep a proper lookout amounts to negligence.** On excessive award of loss of dependency and special damages, the Learned Trial Magistrate further erred in adopting a dependency ratio of 2/3 without strict proof of dependency. The evidence showed that the deceased was separated from his spouse, and no credible evidence was tendered to demonstrate actual dependency by the alleged dependants. The appellant submits that the blanket adoption of a 2/3 ratio in the absence of such proof was therefore erroneous. The court assumed the deceased was married with children, yet there was no proof of marriage, no birth certificates for the children, and the alleged wife did not testify. Additionally, the Chief’s letter did not list the wife as a beneficiary. Similarly, the award of special damages was made without strict proof, contrary to the well-known principle articulated in **Hahn v Singh 1985 KLR 716** that special damages must not only be specifically pleaded but also strictly proved. Specifically, the Plaintiff failed to produce a receipt for the sum of Kshs 40,000/= for letter of administration and thus the same ought not to have been awarded. **Respondent submissions** On liability the respondent submits that the court relied on the evidence tabled before him in arriving at his decision of finding the Appellant 100% liable. PW2 the eye witness and PW3 Inspector Masafu of Matuu Police Station clearly stated that the defendant's lorry had stalled on the road with no warning signs. It was at night (8.30pm). Had the defendant's driver put warning signs on the road the accident would not have occurred. Had he also not parked motor vehicle registration number KBZ 726Y Isuzu Lorry in the middle of the road the accident would not have occurred. On loss of dependency, the Respondent states that the Chief’s letter clearly shows the deceased was married with children who were minors. He had just separated with the wife. A separation is not a divorce and does not make one cease from being a wife. In reply to ground 4 of the memorandum of appeal the Respondent states that special damages where pleaded and proved as awarded by the trial magistrate. Lastly, on awarding of damages, the Respondent states that the deceased was a civil servant working as a secondary school teacher. A payslip was attached and listed as document number 12 in the Respondent's list of documents showing his salary, the retirement age for civil servants is 60 years. The trial court used the payslip plus the age of the deceased at the time of death and the retirement age in arriving at its decision oy awarding Kshs. 9,495,176/= for loss of dependency. **Issues** 1. Whether the trial court erred in its findings on liability. 2. Whether the trial court erred in its assessment of general damages **Analysis** This Court has a duty to re-evaluate and re-appraise the entire evidence on record and draw its own conclusions, while giving due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses **(see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123).** **Liability** The main issue is whether the trial court erred in finding the Appellant 100% liable. The evidence is conflicting. PW2 (an eyewitness) supports the Respondents’ version that the lorry was stationary/parked without warning sign at night. DW1 supports the Appellant’s version that the vehicle was in motion (or just stopping) and was hit from behind by a speeding, reckless motorcyclist. PW3’s evidence is neutral: the lorry was stalled due to mechanical failure on the left side; the rider hit the rear; no blame assigned; matter still pending under investigation. In road traffic cases involving conflicting accounts where it is not possible to determine fault with precision, the proper approach is to apportion liability rather than impose 100% on one party. In **Mwangi & another v Oginga [2025] KEHC 7976 (KLR),** **the High Court held that where evidence is conflicting and exclusive fault cannot be conclusively established on either side, liability should be shared on the balance of probabilities (apportioning 50:50 in that case).** Moreover, a driver who stalls or parks a large vehicle on the road at night without adequate warning signs or lights creates a foreseeable hazard and breaches the duty of care owed to other road users. **In Jackson Mutyethumo vs Mary Menze Muthuku [2009] eKLR, where a lorry parked as an obstruction without warnings attracted substantial liability.** On the other hand, every road user, including a motorcyclist, owes a duty to exercise reasonable care, maintain a proper lookout, and keep a safe distance and speed, particularly at night. **See Njoroge & another v Wanjugu & another [2024] KEHC 14957 (KLR.** Thus, I set aside the trial court’s finding of 100% liability against the Appellant and substitute it with liability apportioned at 65% against the Appellant and 35% against the deceased. **Assessment of Damages (Quantum)** The principles governing assessment of damages in fatal accident claims are well settled. Under the Fatal Accidents Act damages are for loss of dependency. Under the Law Reform Act awards are made for pain and suffering and loss of expectation of life (for the benefit of the estate). Special damages must be specifically pleaded and strictly proved. See **Hahn v Singh [1985] KLR 716** **Pain and suffering: Kshs. 20,000** This is a conventional award for instantaneous death. It is reasonable and is upheld. **Loss of expectation of life: Kshs. 100,000** This is within the conventional range for a person of the deceased’s age. It is upheld. **Special damages: Kshs. 115,550** The Appellant correctly argues that special damages must be strictly proved. The Respondents pleaded and claimed various funeral and incidental expenses, including Kshs. 40,000 for letters of administration. No receipt or strict proof was produced for at least this item. I reduce the special damages award to Kshs. 75,550 **Loss of dependency** The deceased was 34 years old, a secondary school teacher (civil servant) with a payslip showing earnings of Kshs. 74,540 per month. In Kenya today taxes account for about a third of one’s salary. This gross salary after tax would amount to about Ksh 49,690, being the net salary. It was claimed he had been married (though separated) with two minor children. The Chief’s letter listed dependants. PW1 testified to dependency. However, given the separation of the deceased and his wife, the absence of testimony from the wife, lack of marriage/birth certificates, and the Chief’s letter’s limitations (as argued by the Appellant), the trial court’s adoption of a 2/3 dependency ratio was on the higher side. A ratio of 1/2 is more appropriate and just in the circumstances. Multiplicand: Kshs. 49,690 per month (as per the evidence and payslip). Annual dependency (at 1/2 ratio): Kshs. 49690 × 12 × ½ = Kshs. 298,140. Multiplier: The deceased was 34 years old with a retirement age of 60 for civil servants/teachers. A multiplier of 20 years is reasonable, taking into account the expectation of earning life. **Loss of dependency = Kshs. 298,140 × 20 = Kshs. 5,962,800.** **Damages before apportionment of liability**: Pain and suffering: Kshs. 20,000 Loss of expectation of life: Kshs. 100,000 Special damages: Kshs. 75,550 Loss of dependency: Kshs. 6,158,350 **Sub-total: Kshs. 6,158,350** Applying the 65:35 liability apportionment, the Respondents are entitled to recover 65% of the above sum from the Appellant: Kshs. 6,158,350 × 65% = **Kshs. 4,002,927.50** The appeal partly succeeds on both liability and quantum. READ AND PUBLISHED IN THE CTS THIS 24TH JULY 2026 IN THE PRESENCE OF: NO PARTY PRESENT BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT