https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9466

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E098 OF 2023** **BENSON KIMATHI........................................1ST APPELLANT** **MESHACK KIMATHI ……………..………...…….2ND APPELLANT** **-VERSUS-** **ELIJAH KIMONYE MBOGORI (Sued as the personal of the estate of Beatrice Mwenda Mbogori). ............RESPONDENT** **JUDGEMENT** 1. The claim emanated from a road traffic accident that occurred on 26th May,2018 along the Kenol- Sagana road at the Kakuzi area involving motor vehicle registration number KBP 910N and motor vehicle registration number KBT 458T.The deceased subsequently lost her life on 29th May 2018. 2. The Respondent who was the Plaintiff in the lower court, filed the suit, CMCC E109 of 2021 against the Appellants claiming general damages under the Law Reform Act and Fatal Accidents Act, Special Damages in the sum of Kshs. 1,496,391/= as well as interests and costs of the suit. 3. After the hearing was completed, the court delivered a judgment on 12th October 2023 after which The appellant who was not satisfied with the outcome of the case lodged the appeal that forms the subject of this judgment. 4. In their Memorandum of Appeal dated 29.11.23 the Appellants pray that the judgement of the lower court on both liability and quantum be overturned. 5. **The appellants’ case;** On the issue of liability, it is the appellants' case that the driver of vehicle KBT 458T caused the accident by driving recklessly. 1. It is their case that Motor vehicle registration No. KBT 458T suddenly emerged ahead of vehicle KBP 910N heading the opposite direction at a high speed. 2. They argue that the driver of vehicle KBT 458T negligently continued on the wrong lane disregarding the appellants' car thus resulting in the vehicles colliding despite the driver's effort to swerve. 3. There is no sufficient evidence on record to show the appellants' negligence as alleged in the particulars of the plaint according to them. 4. Reliance is placed in the case of **Paul Njagi Kamau -1vs- Stanley Gachomo Kariuki another [2020] eKLR** where it was held: "Whether the Defendants called any witnesses or not, it was the Appellant’s burden to prove his case on a balance of probabilities... The Appellant's evidence does not blame the Defendants for the accident. The particulars of negligence stated in the plaint against the Defendants, that is driving too fast, losing control of the motor vehicle; failing to slow down or swerve and failing to exercise due care and control are not supported by any evidence. In the circumstances, I am in agreement with the finding by the trial magistrate that the Appellant failed to prove his case on a balance of probabilities against the 1st and 2nd Defendants. " It is their case that the driver of vehicle KBP 910N, did everything in his power to swerve and avoid impact thus discharging his duty as a reasonable driver to avoid the accident. He was not blamed in the abstract and neither was he charged with any traffic offence. 1. PWI Cpl. Kasim did not visit the scene of the accident. He could not tell the intricate details of the investigations other than producing a police abstract. 2. He did not produce the sketch map, the police file or the OB extract to show how the accident occurred in detail. 3. He also could not tell the point of impact or whether the vehicles were inspected. 4. Further, regardless of the abstract blaming the driver of vehicle KBP 910N they contend that in any event a police abstract does not establish negligence. It merely indicates the occurrence of an accident. The driver of vehicle KBP 910N was not charged with a traffic offence. 5. The appellant places reliance in the case of **Wangongu v Kithinji 2 others (Civil Appeal 293 of 2023) [2024] eKLR** where it was stated: "**A police abstract is not proof of occurrence of an accident but of the fact chat following an accident, the occurrence thereof was reported at a particular police station. It therefore follows that the appellant ought, to prove negligence as against the respondent independently of what the police abstract may have indicated for the reason that proof of negligence and the police abstract are not dependent on each other. In the absence of the appellant proving negligence as against the 1strespondent, the police abstract could not be said to determine that the 1st respondent was to blame for the causation of the accident because it indicated so. As such, it is my considered view that the appellant failed to discharge the required burden of proof. "** 1. The appellants argues that no sufficient evidence on liability has been availed to blame the appellants for causing the accident. 2. On the issue of pain and suffering they submit that The deceased died three (3) days after the accident. They proposes a sum of Kshs.100,000 under this head guided by the following case law: **Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu 2021 Eklr.** 1. The deceased after three (3) days and an award of Kshs. 70,000 was made for pain and suffering.On the loss of expectation of life it is their case that PW2 confirmed that the deceased was aged 62 years. He propose an award of Kshs.70,000. 2. Under this head guided by the case of **Hudson Dumisi Mungafu v Kenya Builders and Concrete Limited & another [2012/ eKLR** where the estate of the deceased aged 63 years was awarded Kshs. for loss of expectation of life.​ 3. On the heading of loss of dependency ,the respondent alleges that she was earning Kshs. 52,000 monthly pension. The account statement submitted in evidence indicates Kshs. 40,982/= as the monthly pension. These are conflicting figures that are likely to mislead the court thus making the use of a global sum approach as the more appropriate method as opposed to multiplier. 4. They submit that a global sum award of Kshs.400,000 would suffice. **They place reliance in the case of JOhn Wamae & 2 Others v Kne Kituku Nziva & Others [2017 eKLR.** 1. The High Court while sitting on appeal awarded a global sum of Kshs. 400,000 for a 61-year-old deceased, as the court found that there was conflicting evidence about his income. 2. They submit that in the alternative should the court be inclined to use the multiplier approach, the only veritable monthly pension is Kshs. 40,982/= which he proposes should be the multiplier. 3. As for the multiplicand, he contends that at the retired age of 62 years, and considering the vagaries of life, the deceased did not have a lot of active years remaining. 4. They propose a multiplicand of five (5) years using comparison to the case of **Hardev Kaur Dhanoa —v- Multi le Hauliers EA** Limited EKLR where the court used a 7-year multiplicand for a deceased aged 62 years. 5. He proposes loss of dependency under multiplier be calculated as follows: - Kshs.40,982 x 12 x 7 x 2/3 = Kshs.1,639,280. 1. **The Respondent’s case;** The deceased was travelling as a passenger aboard motor vehicle registration number KBT 458T when she suffered fatal injuries leading to her death three (3) days later. (PW1), Sergeant Kassim (PW2) and the driver of motor vehicle KBT 458T(PW3) testified. PW3 while narrating the circumstances surrounding the accident stated that on the material date, he was driving motor vehicle registration Number KBT 458 T towards Meru along the Sagana- Makutano road when while at the Makuyu/Kakuzi area, his motor vehicle aforesaid was hit by motor vehicle registration Number KBP 910N which was being driven recklessly and while overtaking at a very high speed, lost control, causing his motor vehicle to ram into the rear of his motor vehicle (KBT 458T). 1. As a result, Beatrice Mwenda Mboghori (hereinafter referred to as 'the deceased') who was a passenger in the said motor vehicle, that is, KBT 458T sustained serious injuries that led to her death days thereafter. 2. PW2 produced the police abstract confirming the occurrence of the accident. He confirmed that the accident involved motor vehicle registration KBP 910N and motor vehicle registration number KBT 458T wherein the deceased was a passenger. 3. He also confirmed that as per police investigations as recorded in the occurrence book, the driver of motor vehicle KBP 910N was blamed for causing the accident by driving negligently and failing to keep to his rightful lane. 4. The Defence did not call the driver of motor vehicle registration KBP 910N or any other eye witness to negate the evidence availed by the Plaintiff's eye witness, or the police officer. 5. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows:- 6. whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts Illust prove that those facts exist. 7. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. " 8. It is settled law that in civil matters, the law requires that a plaintiff prove their claim on a balance of probabilities. The question as to what amounts to a balance of probabilities was discussed in the case of William Kabogo **Gitau -vs- George Thuo** **& 2 Others [20101, KLR 526**, where Hon. Justice Luka Kimaru (as he then was), stated as follows:- "In ordinary civil cases a case may be determined infavour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred." 1. While it is the Appellant's claim that the Plaintiff did not prove its case on liability, and in fact submits that the evidence adduced is inconclusive, the evidence on the record speaks for itself. 1. From the witness testimonies as supported by the police abstract, the 2nd Appellant is squarely to blame for the accident. 2. The evidence remains uncontroverted by either a witness or documentary evidence showing otherwise. 37.The Appellants submit that the award on quantum was excessive. **In Njoroge v Gakere & another (Civil Appeal E028 of 2024)** **[20251 KEHC 4048 (KLR)t Justice Maureen Odero** in reiterating the role of an appellate court in a first appeal by referring to the case of SELLE and **Another -vs- Associated** **Motor Boat Company Ltd & Others [19681 1. E.A 123 it was** **stated as follows: -"** "This court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] 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 judge's findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.' 1. In the above matter, Justice Maureen Odero notes one of the principles of an appellant court is that it is not open to the first appellate court to review the findings of a trial court simply on the basis that it would first have reached a different conclusion had it been hearing the matter for the time. 1. He argues that the Appellants ought to demonstrate in this appeal that the trial judge's findings have clearly failed on some point to take into account particular circumstances. 2. In this appeal, the Appellant's propose an award of Kshs. 100,000/= for Pain and Suffering. No grounds whatsoever have been tendered to this Honourable Court demonstrating any error on the part of the trial court in making the award of Kshs. 200,000/= or any failure to take account of any particular circumstances. 3. For the Loss of Expectation of Life, The lower court awarded Kshs. 100,000/=.The Appellant proposes an award of Kshs. 70,000/=. 4. It is the Appellant's submission that the Respondent submitted conflicting figures on the earnings of the Respondent. On his part, the Appellants make reference to the Respondent's statement of accounts showing that the deceased monthly pension was Kshs. 40,892/= an amount that is ascertainable and admitted. The statement of account was produced as exhibit 9. The Respondent's testimony was that the deceased was earning an average of Kshs. 52,000/= per month which earnings constituted her pension of Kshs. 40,892/= together with other income generated from other activities she was engaged in upon retirement. On this basis, the trial court awarded a multiplicand of Kshs.52, 000/=. 5. The Respondent's submission thus the figures are conflicting is baseless and he urges this Honourable Court to dismiss the same. 6. Further and contrary to the Appellants allegations that the deceased died at the age of 62, the death certificate produced shows that the deceased died at the age of 61 years. The deceased had no underlying health problems recorded as per the post-mortem report produced as evidence. She was full of life and had no known illness. 7. Once again, the Appellant's have submitted no reason demonstrating how the lower court erred in using a multiplier of 10 years and why the same should be disturbed. 8. Reliance is placed on the following authority: Sokoro **Plywood Limited and Another vs Njenga Wainaina [20071 eKLR, the** High Court while sitting on appeal upheld the decision of the lower court in adopting a multiplier of 10 years where the deceased was 60 years old. 1. The dependency ratio of 2/3 is not disputed. 1. On the Special Damages,The Respondent proved by way of receipts evidence that they had spent Kshs. 1,496,391/= on medical expenses at the Nairobi Hospital as well as burial expenses. 2. The Appellants do not dispute the same. He prays that the same be upheld. **Analysis;** 1. The following are the issues for determination; 2. Who should shoulder liability. 3. What is the appropriate quantum of general damages. 4. What is the appropriate quantum of special damages. 5. Who shall bear the costs. 6. **In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA** The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 7. This principle was enunciated thus: **"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."** 1. **On the issue of liability:** It is not in dispute that an accident involving the Deceased occurred on the material day involving the subject motor vehicles registration KBP 910N and motor vehicle registration number KBT 458T. 1. In determining this issue, the court guided by the case of William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that: "In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred." 2. From the proceedings the court notes that PW2 produced the police abstract confirming the occurrence of the accident. The Defence did not call the driver of motor vehicle registration KBP 910N to give his side of the story. 1. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. The court is satisfied that the Respondent caused the accident. The trial court did not fall into error in arriving at the finding on liability. The court finds no justification has been placed before it by the appellant to set aside the trial magistrates finding on the issue of liability. 2. **On the issues of damages;** Under The Law Reform Act the family is compensated for:- 1. The pain and suffering of the deceased 2. The loss of expectation of life of the deceased. 3. The generally accepted principle is that very nominal damages will be awarded under these heads 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. 4. The lower court awarded Kshs. 200,000/=. The Appellant proposes an award of Kshs. 100,000/= without demonstrating how the trial Court fell into error in making the award of Kshs. 200,000/= or any failure to take account of any particular circumstances. 5. The court finds no reason as to why it should interfere with the finding of the trial court and I so hold. 6. **On the loss of expectation**; In **Benham vs Gambling, (1941) AC 157** it was held that only moderate awards should be granted for loss of expectation of life for the following reasons:- ***“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.”*** 1. For the Loss of Expectation of Life, The lower court awarded Kshs. 100,000/=.The Appellant did not satisfy the court that the appropriate damages should be Kshs. 70,000/=. 2. This ground fails and the same is dismissed. 3. **Compensation under the Fatal Accidents Act** To assess damages under this head, it is necessary to determine the deceased’s income, the dependency ratio of his dependants and the multiplier to be used. The deceased’s income is calculated per year as is called the multiplicand. The multiplier are the number of years the deceased was expected to work until retirement. 1. In **Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported)** Ringera J. as he then was, held at page 248 as follows***:-“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.”*** 2. The Court of Appeal for Eastern Africa in **Chunibhai J. Patel and Another v P. F. Hayes and Others [1957] EA 748, 749** stated the following succinct statement of law; “***The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependents, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so may years purchase. The multiplier will bear a relation to the expectation of the earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the re-marriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her, as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum that the court should apportion among the various dependants”. [Emphasis mine*** On the issue of the multiplier; In **Mwanzia v Ngalali Mutua Kenya Bus Ltd** and quoted in **Albert Odawa -Vs- Gichumu Githenji NKU HCCA NO.15 OF 2003 (2007), KLR**, Justice Ringera was of the following view; ***“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”*** 1. The death certificate produced shows that the deceased died at the age of 61 years. The deceased had no underlying health problems recorded as per the post-mortem report produced as evidence. She was full of life and had no known illness. 2. It is this court’s finding and I so hold that the trial court did not err in using a multiplier of 10 years. The Appellant has not advanced any tangible reasons as to why the same should be disturbed. The dependency ratio of 2/3 is not disputed. ***Are award of damages under the Law Reform Act deducted from the award under the Fatal Accidents Act?*** The answer to the above question is “No”. 1. Some people have been arguing in court that the deduction is necessary since beneficiaries under the fatal accidents act and Law Reform Act would ordinarily be the same. In Kemfro **Africa Ltd T/A Meru Express Services Gathogo Kanini v A.M. Lubia C.A. 21 OF 1984 (1882-1988)1 KAR 727**where the court stated as follows: ***“…the net benefit will be inherited by the same dependants under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss under the latter Act must be offset by the gain from the estate under the former Act…*** ***This is so despite the provisions of Section 15(5) of the Law Reform (Miscellaneous Provisions) 1934 Act which declares that-‘the right conferred by this Act for the benefit of the estate of deceased persons shall be in addition to and not in delegation of any rights conferred on dependants of the deceased by the Fatal Accidents Act’…anyway, the principle that if a pecuniary gain which accrues to him or her from the same death of a person is logical and appropriate anywhere and in my judgment should be applied in Kenya.”*** 1. Despite the above case law, the proper position held by the courts today is that no deductions required. 1. In **John Wamae & 2 others v Jane Kituku Nziva & another [2017] eKLR** it was held:- ***“In my view, the requirement in the Law Reform Act is to “take into account” and does not make it mandatory to deduct any sums awarded to the estate of a deceased from damages awarded for lost dependency.”*** Justice Mabeya in **Peres Wambui Kinuthia And Another v S.S. Mehta & Sons Limited, Nairobi Civil Appeal NO. 568 OF 2010 (UR)** held that:- ***"In the case of Kemfro Africa t/a Meru Express Services (1976) & Anor –vs- Lubia & Anor (No 2) (1987) KLR 30 the Court of Appeal was categorical that the words “to be taken into account” and “to be deducted” are two different things. That the words used in Section 4(2) of the Fatal Accidents Act are “taken into account.” That the Section says what should be taken into account and not necessarily deducted. That it is sufficient if the judgment of the trial court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial court bears in mind or considers what has been awarded under the Law Reform Act for the non-pecuniary loss. There is absolutely no requirement in law or otherwise for the court to engage in a mathematical deduction”.*** 1. The trial court awarded a multiplicand of Kshs.52, 000/= The Respondent's testimony was that the deceased was earning an average of Kshs. 52,000/= per month which earnings constituted her pension of Kshs. 40,892/= together with other income generated from other activities she was engaged in upon retirement. This was fortified by the statement of account produced as exhibit 9. 1. This court is of the view that the appellant has not demonstrated how the court fell into error while determining this issue. The court will not disturb the trial court’s finding on this header. 2. In determining the issue of **Special Damages this court is guided by the case of Maritim & Another –v- Anjere (1990-1994) EA 312 at 316** where it was held in this regard:- ***“It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.”*** 1. The Respondent pleaded and proved that the respondent spent Kshs. 1,496,391/= on medical expenses at the Nairobi Hospital as well as burial expenses. 2. **Costs**; The Supreme Court in the case of **Jashir Singh Rai & Others vs. Tarlochan Rai & Others** observed that,” In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” 1. The appellant shall bear the costs. **Determination**: 1. The Appeal lacks merit. **Order**: The Appeal is dismissed with costs to the Respondent. **Delivered, Dated and Signed on this 23rd Day of June 2026 at Eldoret High Court virtually.** **………………………………** **J. M. CHIGITI (SC)** **JUDGE**