https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10062

Karuchi & another v Wanjiru (Suing as legal representative of the Estate of Ismael Kamau Wambui - Deceased) (Civil Appeal E016 of 2024) [2026] KEHC 10062 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10062 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E016 of 2024 MW Mutuku, J July 10, 2026 Between George Waweru Karuchi 1st Appellant George Thaiti Karoche 2nd Appellant and Lucy Wambui Wanjiru (Suing as legal representative of the Estate of Ismael Kamau Wambui - Deceased) Respondent (Being an appeal from the Judgment and Decree of Honourable Lillian Kwamboka delivered on 15th January 2024 in Kikuyu Chief Magistrate’s Court Civil Case No. E 105 of 2023) Judgment 1.Before this Court is the Memorandum of Appeal dated 15th January 2024 by which the Appellants sought the following orders:-(i)That this Appeal be allowed and that the judgment of the Learned Trial Magistrate be set aside with costs. 2.The appeal was canvassed by way of written submissions. The appellant filed the written submissions dated 12th April 2024 whilst the Respondent relied upon their written submissions, which I have considered. Background 3.This appeal arises from a road traffic accident which occurred on 8th February 2023. It is alleged that the deceased was a lawful pedestrian crossing the lame of motor vehicle driven from Kikuyu –Wangige Road when at Kwa Magu area, the 1st defendant who was driving motor vehicle Registration number KDH 852 D, driven towards Kikuyu direction caused the motor vehicle to violently collide into the plaintiff fatally injuring him. 4.Following the accident the mother filed a suit in the Lower Court seeking General and Special damages. The suit was heard and a judgment delivered in favour of the respondent in the following terms:-a)) Liability -70: 30 % in favour of the plaintiffs against the defendant.b)Pain and suffering –kshs 50,000.c)Loss of expectation of Life –Ksh 100,000.d)Loss of Dependency -Ksh 1,683,048.e)Special damages – Ksh 550. 5.The appellant being dissatisfied with the whole of the judgment and decree of the learned magistrate has appealed the whole judgment on the grounds that:-a.That the learned magistrate erred in fact and law in failing to appreciate and consider the pleadings and the evidence adduced in support thereof.b.That the learned magistrate erred in law and fact in admitting the evidence of pw 1, pw 2 and pw 3 which was not supported by any evidence.c.That the learned magistrate erred in fact and law in failing to attach due weight to the appellant’s evidence, submissions and authorities attached thereto.d.That the learned magistrate erred in fact and law in apportioning liability to the 1st appellant and the appellants when in fact the suit ought to have been dismissed.e.That the learned magistrate erred in law and fact in assessing and awarding general damages and special damages wherein the respondent failed to prove its case.f.That the award is in the circumstances so inordinately high that it amounts to a wholly erroneous estimate of the damages suffered by the Respondent.g.That the learned magistrate erred in fact and law in by giving a very high award in quantum contrary to the evidence given in court.h.That the learned magistrate award lacked legal and factual basis and also amounted to an erroneous estimate of damages due in the particular case was manifestly excessive.i.That the learned magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered thereby arrived at a decision unsustainable in law. Analysis and Determination 6.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 7.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557(KLR) in which the Court of Appeal stated as follows:-“This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that 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 allowances in this respect. see Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v Brown [1970] E.A. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” 8.The fact that the respondents have requisite locus standi in this matter is not in any doubt. At Page 12 of the Record of Appeal is a limited Grant of letters of Administration issued in favour of the respondents authorising her to file suit on behalf of the estate of the deceased. 9.Similarly the fact that an accident occurred on 8th February 2023 is also not in doubt. At Page 13 of the record is a copy of police abstract dated 21st February 2023 confirming that an accident had occurred involving the motor vehicle Registration KDH 852 D and a pedestrian. At Page 19 of the record is the Death Certificate confirming that the Deceased Ismael Kamau died at the age of twenty four (24) years as the result of injuries sustained in a road accident. 10.The Appellants are aggrieved by the finding of the trial court that liability had not been proved by the respondents and that the trial magistrate ought to have dismissed the respondent’s case. 11.It is trite law that he who alleges must prove. It is a general proposition of the law that the legal burden of proof lies upon the party who invokes the aid of the law. Section 107(1) of the Evidence Act Chapter 80 Laws of Kenya provides:“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 12.Sections 109 and 112 of the same Act provide as follows:-“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. “112.In Civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him”. 13.The two provisions were considered in the case of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court held as follows:“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Section 109 and 12 of the Act.” 14.This being a civil case the respondents were required to prove on a balance of probability that it was the driver of the appellant’s vehicle who caused the accident, which led to the death of the victim. 15.The respondents called three Witnesses in support of their case. PW 1, Lucy Wambui Wanjiru is the mother to the deceased. She told the court that at the time of the accident, the deceased was aged 24 years. That he was not married and was not survived by any child. That the deceased was a boda boda rider. She did not witness the accident, and she in cross examination told the court that she did not have documents to prove that the deceased wad a motor cycle rider. 16.PW 2, John Muriithi Maina told the court that on the 8th February 2023, at around 3.30 a.m, he was going to the market. He saw a man who wanted to cross the road. The man successfully crossed the lane of motor vehicles driven towards Wangige. However, before he could cross the lane of motor vehicles driven towards Kikuyu, the driver of Motor Vehicle KDH 852D approached at high speed. The witness heard a screeching sound followed by a violent collision, following which the motor vehicle was parked on the side of the road. 17.He rushed to the scene and found that it was the deceased who had been badly injured. The victim was taken to the hospital. In cross examination, he told the court that the accident took place off the road. That the foot bridge was 250 metres away. 18.PW 3, No. 66161 Evelyne Muchera was a police officer based at King’eero police station. She produced a police abstract in respect of the accident dared 21st February 2023. She confirmed that the accident involving KDH 852 D Mitsubishi lorry and a pedestrian was reported at the police station. That the scene was visited by P.C Rono. That according to the Police abstract, the case was still pending under investigations. 19.The appellants called two witnesses in support of their case. 20.George Waweru Karuchi is the driver of the motor vehicle KDH 852 D. He stated that on the 8th February 2023, at around 4.00 a.m, he was driving the accident motor vehicle. While at Kanjeru area, he noticed a man standing in the middle of the dual carriage road. That the pedestrian abruptly dashed in front of the motor vehicle, and collided with his vehicle. 21.That the point at which the accident took place was on a straight stretch, and he was driving at a speed of 65 km/hour. His headlights were also on for visibility. He tried to brake but it was too late as the pedestrian was too close. That the pedestrian smashed the wind screen causing it to shatter. After taking the victim to hospital, he visited the scene in company of the police and the 2nd appellant, and was able to point out to the police officer where the accident took place. He blamed the victim of the accident for failing to use the designated footbridge, which was too close to the point where the accident had occurred. 22.I have duly considered the evidence tendered at the trial court, the decision of the trial magistrate, and the grounds of appeal for both parties and the rival submissions made on behalf of each party. The pertinent issues for determination that arise herein are as follows:a.Whether the trial court erred in apportioning liability on both parties.b.Whether the trial court erred in assessing the quantum of damages. Whether the trial court erred in apportioning equal liability on both parties 23.The Respondents challenged the trial court’s finding on apportionment of liability. According to the 1st Respondent, the deceased was solely responsible for the accident since he abruptly jumped on the path of his motor vehicle, and further that he ought to have used the foot bridge which was approximately 250 metres away. 24.On the other hand, PW 2, the alleged eye witness stated that the driver of the motor vehicle was driving at a high speed and knocked down the deceased after he had crossed the road on the lane of motor vehicle driven towards Kikuyu town direction. Though the appellants faulted the trial magistrate for relying on the evidence of PW 2, the evidence and credibility of the witness was not challenged in cross examination. 25.In Masembe v Sugar Corporation and Another [2002] 2 EA 434, it was held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” 26.On the other hand, pw 2 attributed the accident to the fact that the motor vehicle was driven at high speed, while at the same time admitted that the deceased had ignored the foot bridge which was around 250 metres away. His evidence, to a great extent infers that other was contributory negligence on the part of the pedestrian. 27.Considering the absence of cogent evidence of either party, it is difficult to assess who was to blame for the said accident. When courts are faced with such doubt as to whom to apportion the blame to, it is safer to apportion equal liability to each party. 28.The court of Appeal in Hussein Omar Farah v Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006]eKLR while dealing with a similar issue observed: -“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.” 29.Similarly, the court in Simon & Another Vs Carlo & Others [1970] EA 285 stated as follows: -“In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame...” 30.I am of the opinion that the trial magistrate was right in apportioning liability there was doubt as to who was to blame for the accident. However, no reason was given in her judgment why the trial magistrate apportioned greater liability to the appellants when the evidence points at both parties, that is, the driver and the pedestrian. This court consequently substitutes the trial court’s finding on liability, and finds both parties to blame. Judgment on liability is entered in the ratio of 50: 50. Whether the trial court erred in assessing the quantum of damages. 31.On the issue of quantum, am guided by the case of Kemfro Africa Limited T/A Meru Express Services & Another -vs- Lubia & Another [1987] KLR 30 where the court observed that: -“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held to be that; it must be satisfied that either the Judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage …” On pain and suffering, 32.The generally accepted principle is that very nominal damages will be awarded on this head of pain and suffering if death follow immediately. Higher damages will be awarded if the pain and suffering was prolonged before death. The same sentiments were expressed in the case of Hyder Nthenya Musili & Another Vs China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows:“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/=while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/=with higher damages being awarded if the pain and suffering was prolonged before death.” 33.In this case the deceased died the same day but he had to be rushed to hospital for medical assistance. Chances are that he suffered before he finally succumbed to his injuries, which were quite grievous according to the Post Mortem Report. The Respondents have failed to demonstrate that the trial magistrate, in arriving at the sum of Kshs. 50,000/= took into account irrelevant factors or that the award was inordinately high. I am therefore hesitant to interfere with the trial magistrate’s discretion over the same. I find that a sum of Kshs 50,000/= was rightfully awarded. On the loss of expectation of life. 34.The trial court awarded Kshs. 100, 000/- for loss of expectation of life, and I find no reason to disturb the same. Loss of dependency. 35.The principles which ought to guide a court in awarding damages in fatal accident claims under the head of loss of dependency was dealt with by Ringera, J (as he then was) in Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989 where it was held that:“The court must find out as a fact what the annual loss of dependency is and in doing so, it must bear in mind that the relevant income of the deceased is not the gross earnings but the net earnings. There is no conventional fractions to be applied, as each case must depend on its own facts. When a court adopts any fraction that must be taken as its finding of fact in the particular case and in considering the reasonable figure, commonly known as the multiplier, regard must be considered in the personal circumstances of both the deceased and the defendant such as the deceased’s age, his expectation of working years, the ages of the dependants and the length of the dependant’s expectation of dependency. The chances of life of the deceased and the dependants should also be borne in mind. The capital sum arrived at after applying the annual multiplicand to the multiplier should then be discounted by a reasonable figure to allow for legitimate concerns such as the widow’s probable remarriage and the fact that the award will be received in a lump sum and if otherwise invested, good returns can be expected.” 36.In Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), the court held at page 248 that:“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years’ purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.” 37.It therefore follows that the method followed in awarding loss of dependency is the multiplicand (annual net income) multiplied by a suitable multiplier (expected working life lost by the deceased by the premature death), and further by a dependency ratio (ratio of the deceased’s income utilized on her dependents). 38.However, the above approach works well where the deceased’s earnings can be ascertained. Where there is no proof of earnings, the courts normally adopt the global/lump sum approach. 39.In this case, the trial magistrate opted to adopt the global/ lump sum approach. At paragraph 16 of her judgment, she indicated that she had considered the rival submissions. She did not however disclose the authority she was relied for guidance. 40.Section 4 of the Fatal Accidents Act limits the beneficiaries of a deceased to the wife, husband, parent and child. The deceased died at the age of 24 years as per the death certificate. 41.In Janet Syokau Okoye (The Legal Representative of the Estate of Julius Uvyu Mutune (Deceased) v James Ithau Mathendu [2016] KEHC 6080 (KLR)(Muriithi, J), the deceased was a young man of 21 years, working as a pastor and a businessman managing a posho mill. The trial court calculated the lost years, by taking what he was likely to be spending on himself, and considering that he would have stopped working or retired at age 60. The other cases involved minors, and the courts adopted the global award approach. The court in this case awarded general damages of Ksh 819,000. 42.In the case of Mzee v Muli (Suing as the Legal Representative of Daniel Muli - Deceased) (Civil Appeal E160 of 2023) [2024] KEHC 8581 (KLR) (Neutral citation: [2024] KEHC 8581 (KLR), the court set aside the award of Kshs. 1,900,000/- and in lieu thereof enter judgment for Ksh. 772,920/- as loss of dependency in respect of a 27 year old man who was survived by his elderly father. 43.The court finds that the trial Magistrate did fall into error in this header and I consequently set aside the award of 1,683,048 and in lieu enter judgment for Ksh 900,000 as loss of dependency. 44.The special damages are not challenged. Costs. 45.In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:-“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 46.The success was mixed, therefore, each party shall bear their own costs in the appeal in line with Section 27 of the Civil procedure Act, which, provides as follows: -(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. Determination 47.Consequently, I make the following orders;a.Judgment on liability is set aside. In lieu thereof I substitute with a ratio of 50:50 against the Appellantb.Damages for pain and suffering, loss of expectation of life are maintained.c.Damages for loss of dependency of Kshs. 1,883,048/- is set aside and in lieu thereof judgment is entered for Kshs. 900,000/-.d.Each party to bear own costs of the Appeal and of the suit in the court below.e.This works as follows;i.Liability 50:50 against the Appellant.ii.General damages for loss of dependency Kshs. 900,000-iii.General damages for loss of expectation of life Kshs. 100,000/-.iv.Damages for pain and suffering Kshs. 50,000/-Sub- total: Kshs. 1, 050,000/- less 50% -( 525,000/-) Total Kshs. 525,000/-Add Special damages Kshs. 500/- Sum due Kshs. 525,500/-f.30 days stay of execution.g.Right of appeal . DELIVERED, DATED AND SIGNED ON THIS 10th DAY JULY, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGE.In the presence of:-Miss Kwamboka for the Appellant.N/A for the respondent.Court Assistant – Mr. Ruth.