https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12603

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E735 OF 2025** **JOEL MWANGI………………………...........……………………APPELLANT** **=VERSUS=** **ALICE WAIRIMU GITHINJI & ANTHONY LEAKENYA** **NDIRIMA (Suing as the administrator of the Estate** **of the late LEAH MUGURE GITHINJI)……...........1ST & 2ND RESPONDENTS** **DAVID NJOROGE NJENGA……..........…………………3RD RESPONDENT** **(*Being an appeal from the Judgement and decree of Hon.Rawlings Liluma Musiega(SRM) delivered on 27th June,2005 in Milimani CMCC No.3168 of 2015*)** **JUDGEMENT** 1. In their amended plaint dated 10.8.2024, the 1st and 2nd respondents averred that on or about 4th June 2012 along Nairobi-Naivasha Highway, the deceased was a passenger in 1st defendant’s motor vehicle registration number KAS 886X, when the driver of motor vehicle registration number KAS 886X, negligently drove the said motor vehicle causing to collide with motor vehicle registration number KYG 404 and consequently occasioning it enormous damage and as a result, the deceased sustained severe injuries and later lost her life. 2. The 1st and 2nd respondents, further, averred that on or about 4th June 2012 along Nairobi-Naivasha Highway, the deceased was a passenger in the 1st defendant’s motor vehicle registration number KAS 886X when the driver of motor vehicle registration number KYG 404 negligently drove the said motor vehicle causing it to collide with motor vehicle registration number KAS 886X causing it enormous damage and as a result which the deceased suffered severe injuries and lost her life. 3. The 1st and 2nd respondents also averred that the deceased before meeting her death was in good health, married with children and earned daily income of Ksh.5500 a day amounting to Kshs.165,500 a month and was 31 years at the time of her death. Further the 1st and 2nd respondents averred that the estate of the deceased suffered special damages particularized as follows; - 1. **Police abstract Kshs.100** 2. **Funeral expenses Kshs.75,000** 3. **Letters of Administration Kshs.15,000** **Total Kshs.90,100** 1. The 1st and 2nd respondents being the legal representative of the estate of the deceased sought judgment for general damages under the Fatal Accidents Act for the benefit of the widower and children of the deceased and damages under the Law Reform Act, special damages, costs and interest against the 3rd respondent and the appellant. 2. In response, the 3rd respondent(1st Defendant) filed a statement of defence dated 24.5.2016 denying the plaintiff claims. The 3rd respondent also averred that if an accident occurred, the same was caused by the negligence of the driver of the motor vehicle registration number KYG 404 who encroached on the lane of motor vehicle registration number KAS 886 X. 3. On his part, the appellant (2nd defendant) filed amended statement of defence dated 1.2.2024. In his defence the appellant averred that the accident in question herein involved motor vehicle registration No. KAS 886X, KYG 404 and a Matunda Bus KXY 662P. The appellant also admitted that he was the driver of KYG 404 which vehicle but averred he was not the registered or beneficial owner of the vehicle and it all. 4. In his judgment, the trial magistrate found both defendants 100% jointly and severally and awarded the 1st and 2nd respondents: 5. **Damages for pain and suffering Kshs. 50,000** 6. **Loss of expectation of life Kshs.3,000,000** 7. **Special damages Kshs. 75,000** 8. **Total Kshs. 3,225,000** 9. The court also awards the 1st and 2nd respondent costs and interest. 10. Being dissatisfied with the judgment and decree of trial court, the appellant preferred this appeal. The appeal is based on 7 grounds of appeal. The said grounds are as follows: 11. That the learned magistrate erred in law and fact by not finding the suit against the appellant could not stand as the appellant was not the owner of motor vehicle registration No. KYG 404. 12. That learned trial magistrate erred in law and fact in holding that the appellant and 2nd respondent were 100% jointly and severally liable when there was no evidence to that effect against the appellant 13. That the learned magistrate erred in law and in fact by failing to find liability at 100% on the part of the 3rd respondent who was blamed by the eye witness. 14. That the learned magistrate erred in law and fact by failing to appreciate that there was no liability attributed to the appellant in the 1st and 2nd respondents amended plaint. 15. That the trial magistrate erred in law and fact by failing to appreciate that the amended plaint herein was at variance with the 1st and 2nd respondents witness testimony. 16. That the trial magistrate erred in law and fact by awarding an extreme global sum of Kshs.3,000,000. 17. That the trial magistrate erred in law and fact by not considering that the deceased at the time of leaving had three grown up children who were over 18 years and not in school and dependent on the deceased. 18. The key issues for determination by the court in this appeal 19. Whether the appellant is the owner of motor vehicle registration number KYG 404 20. Who is liable for the subject accident herein? 21. Whether the global Kshs.3,000,000 by trial magistrate for loss of dependency was excessive. 22. In paragraph 2 of their amended plaint dated 10th August, 2024 the 1st and 2nd respondent as follows: - “**At all material times the 1st defendant was the registered owner of motor vehicle registration number KAS 886X while the 2nd defendant was the registered owner of motor vehicle registration number KYG 404**. 1. In **Independent Electoral and Boundaries Commission & Another -vs- Stephen Mutinda Mule & 3 Others** (**2014) eKLR** the Court of Appeal stated: “**It is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings or put in another way which is at variance with the averments of the pleadings goes to no issue and must be disregarded”** 1. In his evidence the appellant admitted that he collided with the driver of motor vehicle Registration No. KAS 886X (deceased) but stated he was only a driver for motor vehicle registration number KYG 404 and not the owner. The 1st and 2nd respondent did not prove owner of motor vehicle registration number KYG 404 and the owner was not sued. It is also noted that the trial court did not address itself to ownership of the said motor vehicle but found the driver personally. 2. It is this court’s finding that the appellant is not be personally for the subject accident herein. On this finding alone this appeal succeeds. 3. The upshot of my findings above is that trial court’s judgement is set aside as against the appellant. As question of liability was between the appellant and 3rd respondent who did not participate in the appeal, this court make no order as to costs. Dated, signed and delivered online via Ms. Teams this 31st day of July 2026. **Hon. P. K. Rotich** **JUDGE** In the presence of: Ms. Ngala for the appellant Kisiangani for the 1st and 2nd respondent Kabita for the 3rd respondent C/A Kipchirchir Mr Kabita: I pray for 30 days stay of execution. Ms. Kisiangani: I do not understand the basis of the application for stay of execution. Counsel for 3rd respondent did not participate in the appeal. Court: In the wider interest of justice, stay of execution for 30 days granted. **Hon. P. K. Rotich** **JUDGE**