[2025] KEMC 145 (KLR)

Kenya Red Cross Headquarters v Lomukereng (Suing as the Administrator of the Estate of Robinson Plimo Lomukereng) (Civil Suit E001 of 2024) [2025] KEMC 145 (KLR) (26 June 2025) (Judgment)

Neutral citation: [2025] KEMC 145 (KLR)

Republic of Kenya

In the Kapenguria Law Courts

Civil Suit E001 of 2024

RPV Wendoh, J

June 26, 2025

Between

Kenya Red Cross Headquarters

Appellant

and

Pauline Chepotunyang Lomukereng

Respondent

Suing as the Administrator of the Estate of Robinson Plimo Lomukereng

Judgment

1. Kenya Red Cross Headquarters, the appellant, has filed this appeal against the Judgment of S.N. Telewa P.M. dated 29/4/2024 in Kapenguria Magistrates Court Civil Case No. 30/2021 Pauline Chepotunyang Lomukereng (suing as the Administrator of the Estate of Robinson Lumukereng (deceased) versus Kenya Read Cross headquarters. The appellant was the defendant in the subordinate court while the Respondent was the plaintiff.

2. The subordinate court entered Judgment on liability in the ratio of 50:50 in favour of the Respondent and a total award in damages of Ksh.5,278,080/= less 50% contribution (Ksh.2,749,790/=)

3. The respondent, by a plaint dated 12/7/2021, sued the appellant for damages following a road accident that occurred on 18/11/2019 along Ortum-Marich road, at Satiya. The accident involved motor cycle registration Number KMEM 639D which the deceased was riding and motor vehicle KCM 250Y which was driven by the appellant’s driver.

4. The respondent alleged that the said vehicle was driven managed/controlled, negligently, that it lost control and rammed into the deceased’s motor cycle, thereby causing fatal injuries to the deceased.

5. The appellant filed a defence dated 7th August,2021 in which the particulars of negligence attributed to the appellant were denied. In the alternative the appellant pleaded that if at all an accident occurred as alleged, then it was solely caused by the deceased’s negligence and set out the particulars of negligence attributed to the rider of the motor cycle.

6. The case proceeded to full hearing after which judgment was entered for the Respondent as indicated above. As a result, the appellant is aggrieved by the whole Judgment and filed this appeal citing six (6) grounds of appeal as follows:1. That the trial magistrate erred in holding the appellant 50% liable contrary to the evidence;2. That the trial magistrate erred in finding that the respondent had proved her case on a balance of probability contrary to the evidence on record;3. That the magistrate erred by failing to dismiss the respondent’s case;4 .That the magistrate erred by awarding damages that are excessive;5. That the court erred by using the wrong principles in assessing general damages.

7. The appellant therefore prays that the judgment of the lower court be set aside; an order be made dismissing the Respondent’s case; Costs of the appeal and lower court be awarded to the appellant.

8. This being a first appeal, this court has the duty to examine all the evidence tendered in the lower court afresh, analyse it and arrive at its own independent findings but making allowance for the fact that this court neither saw nor heard the witnesses testify. This proposition is supported by the decision in Selle & Another -V- Associated Motors Boat Co, Limited (1968) EA 123, where the court said as follows; - “This court is not bound necessarily to accept the findings of fact by the court below. 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 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 bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judges’ findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstance or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally”.

9. The Respondent called two witnesses in support of her case. PW1 Pauline Chepotunyang testified that she is the mother of the deceased Robinson Plimo Lomukereng, who was employed by the Teacher’s Service Commission as a teacher at Naroman Secondary School; that he was involved in a road traffic accident at Ortum and died on 23/10/2019 at Moi Teaching and Referral Hospital, Eldoret. PW1 produced in evidence the death certificate, grant of letters ad litem, police abstract; treatment notes; postmortem report, demand letter, notice to Insurance Company, a search and employment letter P.Exh.1 to 9.

10. PW1 further stated that the deceased was not married but had a child out of wedlock and that he paid school fees for his siblings, and supported her.

11. PW2 PC JAMES Ngugi of Marich Police station produced the police abstract (P.Exh.3) in respect of an accident that occurred on 21/10/2019 along Kitale-Lodwar Road at Sayaa Area involving motor vehicle KCM 205Y Toyota Hilux and Motor cycle KMEM 639D make Hague and that the cyclist was Robinson Plimo Lomukereng who died on the spot. He said that the Investigating Officer was on leave and did not indicate who was to blame for the accident.

12. The appellant called two witnesses. DW1 Oscar Isige an employee of Red Cross, was a passenger in motor vehicle KCM 205Y which was driven by DW2 Christopher Ngetich along Ortum Marich Road; that while ascending a hill, there was an oncoming trailer and suddenly, a motor cycle KMEM 639D overtook the trailer at a very high speed; that the driver applied brakes and swerved to avoid a collision but unfortunately, the motor cycle rammed into the front right side of their vehicle.

13. DW2 Christopher Ngetich testified that he was the driver of motor vehicle KCM 205Y; that on 21/10/2019, about 1. 30 p.m., he was driving along Ortum – Marich road on the left side of the road at an average speed of 60 KPH and while ascending a hill at a sharp bend, he saw an oncoming trailer and suddenly a motor cyclist overtook the trailer at very high speed; that he applied brakes and swerved to the extreme left to avoid hitting the motor cycle but unfortunately the motor cycle hit the front right side of the vehicle. He denied causing the accident but that the rider was to blame.

Appellants Submissions: 14. Kitiwa Advocate, Counsel for the appellant, submitted that the Respondent had a duty to prove its case on a balance of probabilities in terms of Section 107 of the Evidence Act; that PW2 confirmed that the Investigating officer did not know who was to blame for the accident and did not produce a sketch plan to show the point of impact of the accident; that the trial court should have found that the case against the appellant was not proved; that having failed to prove the point of impact, the court should have accepted the appellant’s explanation that it is the rider who encroached onto the lane of the motor vehicle. Counsel relied on the case of Postal Corporation of Kenya and Another -V- Dickens Munayi (2014) eKLR.

15. It was also submitted that the Respondent did not call any eye witnesses and hence the appellants fault was not proved. Counsel relied on the decision of Douglas Odhiambo & Another -V- Telcom Kenya Ltd. CA. 115/2016.

16. The appellant also faulted the trial court’s decision because it relied on the Ruling in the inquest that was conducted yet it was not produced as an exhibit in court and the appellant had no opportunity to cross examine and test the veracity of the testimonies of witnesses that testified therein.

17. The appellant submitted that there was no evidence proving negligence on the part of the appellant and no evidence to contradict that of DW1 and 2 and therefore the trial court should have found the deceased 100% liable.

18. Whether the damages were inordinately high; relying on the case of Jane Chelagat Bor -V- Andrew Atieno Onduu (1988-92) and Kemfro t/a Meru Express Services and another -V- A.M. Lubia and another (1982-88) 1 KAR it was submitted that the court can interfere with an award of damages if the award is inordinately high or too low that it is a wholly erroneous estimate of the damage.The award on pain and suffering was not disputed.

19. As for Loss of expectation to life - it was submitted that this award should not be made because the beneficiaries under the Law Reform Act are same as under Fatal Accidents Act. For this proposition, reliance was made on the Kemfro t/a Meru Express Services Ltd -V- Lubia & Another (1987) eKLR and section 2(5) of the Law Reform Act.

20. On Loss of dependency; it was submitted that the deceased was said to be 28 years, a teacher and had a child out of wedlock but there was no proof that he paid fees for siblings or that he had a child; that being a question of fact, it should have been proved by evidence like receipts. Counsel relied on several cases;1. Abdalla Rubeya Hemed -V- Kanyuma Mvurya & Another (2017) eKLR2. Gerald Mbale Mwea -V- Kariko Kihara (1997) eKLR.3. James Mukholo Elisha & Another -V- Throne Martin Kibisu (2014) eKLR and4. Philip (suing as legal Representative of the estate of Alfred Khoki, Muthoka – V- Philip and 2 others (2023) eKLR5. New Kenya Co-operative Creameries Ltd -V- Chebusit Arap Lagat (2013) eKLR.From the above decisions Counsel suggested 1/3 dependency ratio.

21. On the multiplicand, Counsel submitted that what was produced was a mere letter of offer and no evidence that the deceased accepted the job offer because the letter was not a binding agreement. Counsel therefore suggested that the ratio be based on minimum wage as there was no proof of income. He suggested a multiplicand of Kshs.13,572. 90, being the maximum wage in line with Regularities of wages (General Amendment) Order. Counsel relied on the case of Gachoki Gichuki (legal) Representative of estate of James Kinyua (deceased) -V- John Ndiga Nyagi Timothy and 2 others (2015) e KLR.

22. On the Multiplier, it was submitted that the deceased died aged 28 years and that the court should adopt a multiplier of 15 years because the mother who is the only beneficiary is expected to live for less years. As for special damages it was submitted that the medical expenses of Kshs.54,420. 50 were not proved save for 19,500/= and 500/= which were proved.

Respondents Submissions. 23. Onyango Otunge Advocate, filed submissions on behalf of the Respondent. Counsel urged that indeed the burden of proof lies on the party who invokes the jurisdiction of the court and relied on the case of Evans Nyakwara -V- Cleophas Bwana Ongaro (2015) e KLR and section 107 (1) of the Evidence Act; that the Respondent proved Liability; that DW1 and 2 alleged that the deceased was over speeding but failed to corroborate their evidence by production of sketch plan of the scene. that the appellant has not proved any negligence on the part of the Respondent; that sketch plans were not produced and therefore the court could not ascertain the point of impact and the lower court was correct in apportioning liability; that the appellant failed to apply brakes, therefore caused the accident.

24. On whether the damages were inordinately high and whether the court can interfere with the award, Counsel relied on Mbogo -V- Shah (1968) EA and Kemfro t/a Meru Ltd. (Supra) which held that courts are always slow in interfering in award of damages because it is an exercise of discretion.

25. On pain and suffering, Counsel argued that an award of Kshs.50,000/= was made yet the accident occurred on 21/10/2019 and the deceased died on 23/10/2019. He relied on the decision of Munuhe and Another (suing as legal representative of the estate of Peter Maina Ndege -V- Mutau CA 78/2022 where an award of Kshs.70,000/= was made for pain and suffering yet the deceased died on the same day.

26. In regard to loss of expectation of life, Counsel urged that the deceased was aged 28 years and that an award of Kshs.200,000/= was reasonable. Reliance was made on the case of Mzee -V- Muli (suing as legal representative of Estate of Daniel Muli ECA E160/2023 where the deceased was 27 years and an award of Kshs.200,000/= was made.

27. On loss of dependency, Counsel submitted that though the appellants contend that dependency was not proved, yet Grant of Letters ad litem is proof and a dependency ratio of 2/3 was reasonable and should be upheld. Counsel cited the case of Nation Media Group Limited -V- Thuo & Another (suing as legal representative of Josephat Nduati Kungu 157 /2019 where the court held that paternity of a one-year-old child was not necessarily through a birth certificate. On earnings, Counsel submitted that a salary of Kshs.395,856/= per year was proved through the letter of appointment.

28. As regards the multiplier, it was submitted that the Respondent proved that the deceased was a teacher and would have worked till the age of sixty (60) and that using a multiplier of 28 years was reasonable. Counsel also relied on the decisions of Mwangi -V- Kamanda & 3 others CA 170, 171 & 172/2020 and Muhoro & Sons -V- Kimathi & 4 others CA E070/2021.

29. As for the special damages, Counsel urged that they were pleaded and proved. He urged the court to be slow to interfere with the trial courts award as held in Saw Mills Limited -V- George Mwale Mudomo (2005) EHC 377. The Respondent urged the court to dismiss the appeal.

30. I have now considered the pleadings, the grounds of appeal and the rival submissions. This being the first appeal, this court has the duty to subject all the evidence and material placed before the trial court for a fresh and exhaustive examination and evaluation and draw its own independent conclusions as guided by the decision of Selle & Another –(Supra)

31. The two issues that arise and are for consideration are;1. Whether the trial magistrate erred in apportioning liability in the ratio of 50:50 in favour of the Respondent;2. Whether the award of damages was inordinately high.

32. Liability. In a civil case, the standard of proof is on a balance of probability. The burden lies on the party alleging the existence of a fact which he wants the court to believe. Section 107 (1) & (2) of the Evidence Act provides as follows-Part 1, Burden of Proof 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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

33. In Miller -V- Minister of Pensions (1974) ALL ER 372, Lord Denning put the Standard of proof in the following terms,“that degree is well settled. It must carry a reasonable degree of probability, but not as high as required in criminal cases. If the evidence is such that the tribunal can say; “we think it more probable than not; the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance of preponderance of probabilities means a win, however, narrow. A draw is not enough. So, in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained”.

34. Both PW1 and 2 did not witness the accident and therefore their testimonies could not assist the court in finding out how the accident occurred. All that PW2 could tell the court is that the Investigating Officer who handled the case was on leave and did not blame either of the parties for the occurrence of the accident.

35. In the witness statements filed in court, both DW1 and 2 told the court that DW2 was driving on the left side of the road when the deceased overtook the trailer coming from the opposite side in high speed and rammed into DW2’s vehicle. In court however in cross examination, DW1 told the court that the accident occurred on the right side of the road which contradicts his statement.

36. Though the appellant dwelt at length on the failure to produce the sketch plan of the scene, the Investigating Officer did not testify but PW2 produced the abstract on his behalf. PW2 was not cross examined on whether or not a sketch plan was drawn by the Investigating Officer at all. What is known is that the Investigating Officer did not blame either of the parties involved in the accident. Further, if DW2 swerved to the extreme left as he claims he did, then the motor cyclist could not have rammed into their vehicle but would have had ample space to pass. Just as the Investigating Officer was unable to blame either party for the occurrence of the accident, I tend to be in agreement with the trial magistrate that on the evidence on record, it is not possible to tell who actually caused the accident. This court is guided by the decision of Michael Hubert Kloss & Another -V- David Seroney & 5 others (2009) eKLR where the Court of Appeal said“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows “To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it……………………“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not.Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

37. In the above case, the court held that in determining who caused the accident, the court will determine it by applying common sense to the facts of each case.

38. Courts have held that where the court is not clear on who is to blame, the court will apportion liability equally between the parties. There is a host of authorities by Kenyan courts on how the court should proceed where it is not clear who caused the accident. In Kibimba Rice Company Ltd -V- Umar Salim, Supreme Court (Uganda) Civil appeal No.7 of 1988 (1988) the court said “where there is little to choose between the evidence of two parties, the blame is equally divided between them i.e. 50% liability on each side. From the observations made by the Honourable judge, in this case, and the evidence and testimony provided in the hearing of the suit, we hold a humble view that the learned magistrate, lawfully and rightly exercised his judicial powers, in applying the proper legal principles, and coming up with the equal apportionment of liability.

39. In Hussein Omar Farah -V- Lento Agencies CA 34/2005, the Court of Appeal stated as follows “The trial court as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”

40. Again, in Isaac Onyango Okumu -v- James Ayere & Another (2019 eKLR J. Musyoka stated as follows;-“It is an established principle of law that where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally liable. That position was stated in Hussein Omar Farah vs. Lento Agencies [2006] eKLR, Matunda Fruits Bus Services Ltd vs. Moses Wangila & another [2018] eKLR and Eliud Papoi Papa vs. Jigneshkumar Rameshbai Patel & another [2017] eKLR. It was pointed out that the existence of conflicting versions does not mean that nobody was to blame as a collision almost always involves fault on the part of both sides.”

41. In this case, the evidence on record leaves this court in a dilemma as to who is to blame for the accident and to what extent. For the above reason I will agree with the trial magistrate and apportion liability at 50:50.

42. Quantum, the appellant has complained that the award of Kshs.2,749,790 is too high. It is trite law that an appellate court will not interfere in the award of damages by a trial court because it’s an exercise of the court’s discretion. The appellate court can only interfere if the court erred in some material aspect and arrived at a figure that was too high or too low as to be a wrong estimate.

43. In Ahmed Butt -V- Uwais Ahmed Khan (1982 -88) KAR, the Court of Appeal said “An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low….”

44. In Catholic Diocese of Kisumu -V- Tete (2004) eKLR the court said “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 or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate”. Also see Kemfro case (Supra)

45. Some of the principles that courts take into account when assessing damages are;1. That assessment of damages is a matter of exercise of discretion and it depends on facts and circumstances of each other.2. Money as an award cannot renew a physical frame that has been battered and shattered or a lost life. The award is only meant to give a party reasonable compensation.3. It is desireable that so far as possible, comparable injuries should be compensated by comparable awards.

46. On pain and Suffering: The court made an award of Kshs.50,000/= and the appellant did not have a dispute with that award.

Loss of Expectations of life; 47. These damages are awarded under the Law Reform Act. It is the appellant’s contention is that though the deceased was said to be twenty-eight (28) years old, he did not provide any evidence that he was in good health. An award of Kshs.100,000/= was made by the trial court. It is true that the deceased’s beneficiaries under the Law Reform Act and Fatal Accidents Act are similar and courts have held that awarding damages under both Acts would amount to duplication or double compensation. In Eliphas Mutegi Njeri & another –v- Stanley M. Mwari M’atiri Civil Appeal no. 237 of 2004;“As regards the failure of the Superior Court to take into consideration the award under the Fatal Accidents Act when arriving at the award under the Law Reform Act, the principle is that the award under the Fatal Accidents Act has to be taken into account when considering awards under the Law Reform Act, for the simple reason that the dependents under the Law

48. Reform Act are the same beneficiaries of the estate of the deceased in the latter Act. Although section 2(5) of the Law Reform Act states that the damages under this Act are in addition to those made under the Fatal Accidents Act, the fact that the same parties benefit from awards under both Acts cannot be ignored. If this is not done then there is a danger of duplication of awards….. Accordingly, the award of Kshs.890,000/= be reduced by Kshs.100,000/= to Kshs.790,000/=”.

49. In Transpares Kenya Ltd & Another -V- SMM (suing as legal Representative of Estate of EMM (deceased) (2015) eKLR, quoting the Court of Appeal in Kemfro t/a Meru Express Services Ltd & Another -V- Lubia and Another (1987) eKLR where the Court of Appeal said “The net benefit will be inherited by the same dependents under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss suffered under the later Act must be off set by the gain from the estate under the former Act.”See also Benedetta Wanjiku -V- Changwon Cheboi and Another HCC 373/2008.

50. Guided by the above decisions, the award under Law Reform Act must be deducted from the total award, otherwise it would amount to double compensation.

Loss of Dependency; 51. The formula for calculating dependency is the multiplicand which is the annual income, multiplied by a multiplier, that is the expected working life lost by the deceased due to premature death and lastly by the factor of dependency ratio this is the deceased’s income which is utilized by his/her dependents. As held- Gerald Mbale Mwea -V- Kariko Kihara & Another (1997) eKLR. The issue of dependency is always a question of fact to be proved by he who asserts.

52. Dependency ratio; the trial court applied a dependency ratio of 2/3 which the appellants contend was too high. PW1 claimed that the deceased though unmarried, had a child born out of wedlock. However, no evidence was produced in support thereof.

53. PW2 also alleged that the deceased paid school fees for his siblings but again, there was no proof of that. In the case of Abdalla Rubeya Hemed -V- Kayuma Mvurya & Another (2017) eKLR the court said “Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependent’s. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent”.

54. PW1 however told the court that she too depended on the deceased for support. Being a young man, unmarried and had just started working I would not agree with a dependency ration of 2/3 but 1/3.

Multiplicand. 55. The deceased was said to be a secondary school teacher and a letter of appointment by TSC dated 18/4/2019 was produced in evidence. I agree with the appellants submissions that the said letter is not evidence that the deceased was employed by Teachers Service Commission as a teacher. It was a letter of offer and there is no evidence that he accepted the offer and took up the job. A letter from the school or payslip would have supported that assertion. For that reason, there being no proof of income, the court will adopt the minimum wage as per the Regulations of Wages (General Amendment) Order. This position is supported by the case of Gachoki Gathuri (suing as legal representative of the estate of Kinyua Gachoki (deceased) -V- John Njagi Timothy and 2 others (2015) eKLR.

Multiplier, 56. According to the death certificate, the deceased was aged 28 years. That is not in dispute. The trial court adopted a multiplier of 28 years as the possible years that deceased may have worked. The appellant urges the court to adopt fifteen (15) years as the multiplier urging the Court to take into account the age of deceased’s mother. The deceased is taken to have been a casual labourer who could have worked for over sixty years of age. Taking a multiplier of twenty-eight (28) years in my view is reasonable and this court will not interfere.

57. The loss of dependency will therefore work out as follows 13,573 X 28 X 1/3 X 12= 1,520,176.

Special Damages 58. According to the appellant, the claim for special damages was not proved. It is trite law that special damages must be pleaded and specifically proved. I have had a look at the documents produced as proof of the expenses incurred. I note that the claim for Kshs.54,420. 50 was not supported by any evidence. What was produced in court was an invoice P.Ex.4(a). There was no evidence that the same was paid. It follows that only Kshs.19,500/= was proved as special damages.

59. In the end, I find that the appeal partially succeeds. The Respondent will have Judgment as followsLiability apportioned at 50:50 in favour of the Respondent.1. Loss of expectation of life; Kshs. 100,000. 002. Pain and Suffering Kshs. 50,000. 003. Loss of dependency Kshs. 1,520,176. 004. Special damages Kshs. 19,500,001,689,676. 00Less damages under Law Reform Kshs. 100,000. 00Kshs. 1,589,676. 00Less 50% contribution 794,838. 00The appellant will have ½ costs of the appeal.

DATED, SIGNED AND DELIVERED ON 26TH DAY OF JUNE, 2025HON. R. WENDOHJUDGE.Judgement read in open court in the presence ofAppellant- Ms. SatiaRespondent- Ms. OtungaJuma/Hellen-Court Assistants