https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9441

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCA NO. E060 OF 2021** **JOHN GITONGA WANGARI & JOHN GITONGA KARIUKI (Suing as the legal representative of the estate of MARY WANJIKU WANJIRU………………………………………………………APPELLANT** **VERSUS** **EQUATORIAL NUT PROCESSORS LTD…….………RESPONDENT** ***(Being an appeal from the judgment of Murang’a Chief Magistrate’s court civil case no. 124 of 2021 delivered on 28th September 2021 by Hon Edwin Nyaga Muriuki, SPM)*** **JUDGEMENT** 1. The Appellant’s moved the court vide a Plaint dated 2nd June 2017, seeking compensation for an accident founded on the tort of negligence. It was the Appellant’s case that on or about 26th August 2015, along Kenol Murang’a road, while the deceased was travelling as a passenger and in the course of employment aboard motor vehicle registration No. KBU 263W Toyota, the defendant by itself servant, driver and agent drove motor vehicle registration No. KBU 263W Toyota in a careless manner in that it lost control veered off the road and threw the deceased thus inflicting fatal injuries on the deceased. The Respondent was faulted for driving at an excessive speed without due care and attention and while under the influence of alcohol. 2. The deceased was thus survived by two sons aged 13 and 5 years, an uncle aged 64 years and a husband aged 35 years. She was 29 years at the time of her death and worked as a casual labourer at Farm Nut earning Kshs. 1,000.00 per day totalling Kshs. 30,000.00 per month. The Appellant also pleaded special damages at Ksh. 130,550.00. 3. The Respondent denied the claim and claimed contributory negligence as the deceased failed to take adequate safety precautions for herself in the circumstances as she failed to remain seated in a moving vehicle and standing while the subject motor vehicle registration number KBU 263W was in motion. 4. The matter proceeded to trial where PW1 John Gitonga testified that the deceased was his wife. he adopted his witness statement in evidence. PW2 John Gitonga Kariuki testified that he was the uncle to PW1. PW3 testified that the motor vehicle veered off the road and on return the deceased, who had been standing fell. He witnessed the accident. 5. DW1 on the other hand testified that there were about seven passengers in the motor vehicle. They were all seated but there were no seat belts. He confirmed that the deceased was an employee at Equatorial Nut. DW3 testified that she was in the motor vehicle with the deceased, the motor vehicle was traveling fast and the deceased’s money was blown off. The deceased jumped off the motor vehicle to reach her money. 6. The trial court found the deceased 100% liable for the accident for disembarking from the moving motor vehicle. 7. On quantum, the court adopted a multiplier approach considering the deceased’s age as 30 years and a dependency ratio of 2/3. Reliance was placed on **Mwita Nyamohanga & another vs. Mary Roi Moherai (Suing on behalf of the estate of Joseph Tagare Mwita (deceased) & another [2015] eKLR**. The court thus awarded Kshs. 5,760,000 for loss of dependency under the Fatal Accident’s Act, Ksh. 50,000.00 for pain and suffering, Kshs. 100,000 for loss of expectation of life and special damages of Kshs. 80,550. 8. Aggrieved and dissatisfied with the decision of the trial court, the Appellant lodged the instant appeal on grounds that: 9. *The honourable learned trial magistrate erred in law and fact for considering irrelevant matters and against the weight of the evidence on record in arriving at the said decision in favour of the Respondent as against the Appellants.* 10. *The honourable learned trial magistrate erred in law and in fact in dismissing the Appellant’s suit against the weight of the evidence.* 11. *The honourable trial magistrate erred in law and fact in dismissing the evidence by the Appellant witnesses as against the Respondent’s witness who were contradictory and unreliable.* 12. *The honourable learned trial magistrate erred both in law and fact in failing to consider or even adequately adopt and appreciate the written submissions of the Appellant on record and the authorities annexed there in support of the Appellant’s case.* 13. Reasons wherefore the Appellant prayed that the appeal be allowed. 14. The court directed that the appeal be canvassed through written submissions. 15. The Appellant submitted that the trial magistrate erred in law and fact to considering irrelevant matters and against the weight of the evidence. It was submitted that DW1 could not tell how the accident occurred same as DW2. The Appellant faulted the trial court for relying on the evidence of DW3 but rejecting that of PW3. Had the court done so, it would have arrived at a different finding. 16. The Appellant submitted further that the court properly directed itself on quantum and therefore the same should be upheld. 17. The Respondent on the other hand submitted that the learned trial magistrate properly assessed the issue of liability by finding that the deceased was to blame for the accident for disembarking from the motor vehicle while it was still in motion. This was based on the uncontroverted testimony of PW3 who sat beside the deceased at the time of the accident. It was submitted PW3’s testimony that while the vehicle was in motion, the deceased suddenly and without provocation stood up and jumped off the vehicle in an apparent attempt to retrieve some of her belongings that she believed had been blown away despite being dissuaded from jumping. 18. The Respondent faulted PW1’s testimony for being hearsay. Similarly, the assertion by PW3 that the motor vehicle hit a pothole and then ejected the deceased was not based on any evidence. In fact, no other passenger suffered any injury or disturbance during the incident other than the deceased. Further, there was no evidence of malfunction or mechanical defect on the motor vehicle to fault the driver for being responsible for the accident. reliance was placed on the case of **Rabbi Kiogora Angaine v Jane Karimi Duati [2020] KEHC 6101(KLR)** to advance the principle of *volenti non fit injuria*. Hence, the trial court’s finding on liability was based on cogent factual basis. 19. On the issue of liability, it was submitted that the Appellant had not established sufficient circumstances to justify the disturbance of the discretion of the court in awarding damages. Since the deceased died on the same day of the accident, it was submitted that an award of Ksh. 50,000.00 was sufficient as damages for pain and suffering. Reliance was placed on **Florence Awuor Owuoth v Paul Jackton Ombayo [2020] KEHC 4574 (KLR).** 20. On the issue of loss of dependency, the Respondent submitted that the deceased left behind two children aged 13 years and 5 years. However, the birth certificate of the 13-year-old child indicated the deceased’s uncle as his biological father. This therefore cast doubt on the dependency claim. Therefore, only one child had been proved as the legitimate dependant of the deceased. Ultimately, an award of Kshs. 1,000,000.00 would be fair, reasonable and consistent with legal precedent. 21. Ultimately, the Respondent submitted that the appeal be dismissed with costs and liability be recalibrated as per the award proposed in the submissions. 22. I have perused the Memorandum of Appeal and the entire record of the Trial Court and noted that the Appeal is hinged on the issue liability. I am alive to the fact that my task as the first appellate court is to reconsider and re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. I am also aware that in reassessing the evidence independently, I must allow the trial court advantage of seeing the witnesses as was expressed in **Selle v Associated Motor Boat Co. Ltd [1968] EA 123**. 23. It is trite that he who alleges must prove and in the instant case, the Appellant alleged negligence on the part of the Respondent. It is therefore his duty to prove negligence on a balance of probabilities and failure to discharge this burden is fatal unless the evidential burden shifts. Under the Evidence Act Cap 80 Laws of Kenya under Sections 107, 109 and 112, the legal burden rests upon the party who asserts the existence of a fact. 24. In **Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR**, the Court held that: “The legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue… the burden lies on that person who would fail if no evidence at all were given on either side.” 1. From the proceedings, the prosecution adduced evidence of three witnesses the first one being her husband who did not witness the accident. The second (PW2) did not also witness the accident while (PW3) James Ndung’u Mbau stated that he saw the accident, the vehicle was a pick-up, the deceased was standing when the vehicle veered off the road and on return the deceased fell. Upon re-examination, he stated that there were no other passengers standing. This evidence is however countered by the defence evidence. 2. The Defence called three witnesses. DW1 Dancun Mbuthia Mwangi who resorted to relying on his statement dated 21st August, 2020. The import of the statement was to blame the deceased for the accident on the basis that she jumped out of the moving vehicle while it was in motion allegedly to pick her belongings which had been blown by the wind thereby sustaining injuries leading to her death. The police abstract report dated 28th August 2017 was not helpful in that it only indicates that the matter is pending under investigation. The evidence of Dw3 Catherine Wachera Ndwiga was that she was seated with the deceased with others at the back while two others sat with the driver at the front cabin. She sated that the deceased jumped off the moving vehicle as she trying to reach out for her money which had been blown off by the wind. She also stated that the vehicle was not travelling fast and that there were no bumps thereby absolving the driver from blame. I find the defence theory and version plausible to the extent the deceased was the only passenger standing in the process of pursuing her money which had been blown away by the wind without the knowledge of the driver. It would have been safer to alert the driver to stop for her safety before disembarking. 3. Eventually, the totality of the evidence absolves the driver from blame while pointing fingers at the deceased for attempting to reach for her belongings/money which was blown by the wind thereby falling off as to how the accident took place. The only constant facts are that the deceased fell from the back of the moving vehicle and suffered fatal injuries. The central issue in this appeal is whether or not the Appellant proved negligence against the Respondent’s driver. concerns the conflicting positions by both parties as to the cause of the accident with one side blaming the deceased for jumping from a vehicle in motion while the other blames the driver for veering off and back to the road thereby causing the deceased to fall to her death. 4. In the circumstances, I find that the Appellants failed to discharge the burden of proving negligence to the required standard. Consequently, the evidential burden did not shift to the Respondent to adduce rebuttal or countervailing evidence. 5. The evidence on record shows that the deceased disembarked from a moving vehicle in an attempt to retrieve money that had fallen. In those circumstances, no reasonable degree of care on the part of the driver or the Respondent could have prevented the accident or its consequences. 6. It is trite that it is not enough for a party to merely plead particulars of negligence; the same must be strictly proved by evidence. In **Tonui v Kuber Agency [2024] KEHC 11084 (KLR)**, the court held that a plaintiff who alleges negligence bears the burden of proving the pleaded particulars, and liability cannot be inferred merely from the occurrence of an accident. Similarly, in **Wangongu v Kithinji & 2 Others [2024] KEHC 6272 (KLR)**, the court emphasized that pleaded particulars of negligence must be supported by evidence demonstrating the negligent acts or omissions complained of. The Court of appeal authority of Kiema **Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258** remains the leading precedent on the requirement to prove negligence. 7. The Appellants failed to establish any negligence on the part of the Respondent that would warrant a finding of 100% liability. The mere occurrence of an accident, particularly one that was self-involving, is not sufficient to prove negligence. A party alleging negligence must adduce evidence demonstrating the negligent act or omission complained of. In this case, no such evidence was presented. 8. I am therefore satisfied that the trial court's finding on liability was supported by the evidence and the law. Accordingly, I find no basis for interfering with that finding, and I uphold the trial court's determination on liability. Equally, I uphold the finding on quantum as it was not contested. 9. ***The upshot of the matter is that this Appeal lacks merit and is hereby dismissed with costs to the Respondent.*** **Dated, Signed and Delivered Virtually on this 14th day of May, 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Ms. Wariwa for Respondent Ms. Muthoni for Appellant Nyabuto/Hamza – Court Assistants