https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6995

Kinyua & another (Suing as the Legal Representatives of the Estate of the Late Andrew Muigai Mwangi (Deceased)) v Githua & another (Civil Appeal E142 of 2024) [2026] KEHC 6995 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6995 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E142 of 2024 DKN Magare, J May 20, 2026 Between Francis Mwangi Kinyua 1st Appellant Agatha Muthoni Ngang'a 2nd Appellant Suing as the Legal Representatives of the Estate of the Late Andrew Muigai Mwangi (Deceased) and Julius Githua 1st Respondent Milele Feeds Limited 2nd Respondent (An appeal from the Judgment and decree of Hon. Teresia Marienga (RM) at Kenol delivered on 19.12.2024 in Kenol MCCC No. E160 of 2024.) Judgment 1.This is an appeal from the Judgment and decree of Hon. Teresia Marienga (RM) at Kenol delivered on 19.12.2024 in Kenol MCCC No. E160 of 2024. The appeal is on liability. The appellant was the plaintiff in the court below. The appellant’s case was dismissed with costs in the court below. The respondent filed defence dated 6.12.2023. They set out particulars of negligence. 2.The appeal is essentially on liability. The appellants filed a suit vide a plaint dated 24.02.2023 claiming for damages arising from an accident that occurred on 18.08.2022 along Kenol-Sagana road involving motor cycle registration number KMEQ 611 V and the respondent’s motor vehicle registration number KBT 176A. The appellant set forth particulars of negligence for the accident motor vehicle and pleaded general damages under the Law Reform Act and Fatal Accidents Act. 3.The appellants are mother and father of the deceased. Special damages of Ksh. 76,540/= were pleaded inclusive of Ksh 74,990/= being funeral expenses. The appellants obtained letters of administration intestate on 20.12.2022 before filing of the suit herein. The deceased died on 23.08.2022 at Kenyatta National Hospital, 4 days after the accident, and was aged 26 years with no occupation indicated. 4.Agatha Muthoni was PW1, who adopted her list of documents. He was said to be working at Kefa Gardens House and used to give her money for upkeep. On cross examination, she stated that she was not there when the accident occurred. 5.PW2 was Julius Maina, a businessman at Kenol. He testified that the deceased was riding motor cycle registration number KMEQ 611 V. He set out particulars of negligence in the statement. On cross examination he stated that the accident occurred and he witnessed the accident. The driver was behind a cart and overtook them and joined a feeder road without indicating. The driver was knocked on the right side. The rider did not cause the accident. He was shocked that anyone blamed the rider. On re-examination, the witness stated that the driver of KBT did not indicate. A copy of record was produced as an exhibit and the plaintiff’s exhibit. 6.DW1 was PC Ongiri of Makuyu Traffic Base. He produced an abstract, that occurred on 18.08.2022 at 1940 hours at Bombay, along Kenol-Sagana road. Motor cycle registration number KMEQ 611 V was driven by the deceased while motor vehicle registration number KBT 176A was driven by the first Respondent. He stated that he received information that he indicated to turn right to the feeder road and the rider hit on the right side of the lorry. The deceased was treated at Kenol and later at Kenyatta National Hospital. The abstract blamed the rider of motor cycle registration number KMEQ 611 V. On cross examination he stated that he did not investigate or witness the accident. The witness was reading a document that was not produced as evidence. 7.The first respondent testified that he was a driver. He indicated that he was joining a feeder road. He was not taken to court over the accident. He stated that he recorded a statement but did not know anyone else who recorded her statement. He was given cash bail but did not know the offence. He stated that he did not indicate the speed while driving and did not apply brakes. He stated that the rider was knocked on the right side. He only saw the rider was behind and only saw him after the accident. On re-examination he stated that the rider was to blame for not keeping distance and for failing to look at the indicator. Submissions 8.The Appellants filed submissions dated 26.1.2026. They submitted that the court misdirected itself by holding the appellant 100%liable. They relied on the case of Mahendra M Malde Vs George M Angira Civil Appeal No 12 of 1981. They stated that the court below applied the wrong principles by failing to apportion liability to the Respondents. They stated that PW2 was an eye witness and gave evidence on what happened. The respondent did not indicate the speed he was diving at. They submitted that the evidence of DW1 was that he did not witness the accident. Reliance was placed on the case of Mwema Musyoka V Paulstone Shamwamam Sheli [2020] EKLR. 9.They stated that the respondents admitted for failing to swerve or brake. The court was also indicated to have disregarded the evidence of PW2. They submitted that a police abstract is not conclusive evidence of occurrence of the accident. The respondent did not know even the point of impact and neither was there a sketch map to show the circumstances. 10.The reference to an OB that was not produced was said to be hearsay. Reliance was made on the case of case of Dikir & another vs Kimary (Civil Appeal 316 of 2013) [2022] KEHC 12733 (KLR), where the court, Majanja J posted as follows:Since the Investigating Officer was not called to testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called as a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts. 11.They submitted that the evidence of DW1 had no probative value. The court was invited to set aside the finding on liability and allow the appeal. 12.The Respondent filed submissions dated 28.01.2026. It was submitted that it was the appellant’s sole duty to prove negligence. It was their case that the evidence of PW2 was not recorded with the police. The appellants failed to discharge the burden of proof. Reliance was placed on the case of Cheptum v Cupstone Travel Limited & another [2024] KEHC 16787 (KLR), where the court, Noel I. Adagi J, stated as follows:“In the circumstances, the Appellant did not prove his case on a balance of probabilities. Guided by the decisions in Kanyungu Njogu Vs Daniel Kimani Mwangi [2000] eKLR, this court finds no reason at all to disturb the trial court’s finding on the issue of liability." 13.They averred that the respondents had an obligation to render support to their case. (It is an oxymoron since they are the respondents). Reliance was placed on the case of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] KECA 336 (KLR). 14.They submitted that the respondents called the first respondent and a police constable. The constable is said to have testified as per the OB, which was not challenged. Reliance was placed on the case of Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] KECA 612 (KLR):So recently, this Court in the case of Joel Muga Opinja v. East Africa Sea Food Ltd [2013] eKLR restated this position as follows:-“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of Motor Vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied” 15.They submitted that the police abstract blamed the deceased. Reliance was placed on the case of Cadama Builders Limited v Mutamba ((Suing as the administrators of the Estate of Philip Musei Ndolo) (Deceased)) [2022] KEHC 11029 (KLR). 16.On quantum, they submitted that the court should not disturb award of damages unless it is inordinately low or it is entirely erroneous. Reliance was placed on the case of Paul Kipsang Koech & Another V Titus Osule Osore [2013] KEHC 3561 (KLR), where the court, F. Gikonyo, J, held as follows:(13)It is a well-established law that, assessment of quantum of damages in a claim for general damages, is a discretionary exercise. The law has, however, set the dimensions for the exercise of discretion; must be exercised judicially, with wise circumspect and upon some defined legal principles. Invariably, when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court. The discretion, in assessing the amount of general damages payable will be disturbed if the trial court:i.Took into account an irrelevant factor orii.Left out of account a relevant factor or,iii.The award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. 17.They placed further reliance on the case of Loice Wanjiku Kagunda -vs- Julius Gachau Mwangi C A No. 142 of 2003 (UR) where the Court held:“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence, an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those or other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (See Mariga –vs- Musila (1984) KLR 257.)" Analysis 18.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. 19.The duty of the first appellate court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held by as follows;-“.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanor of a witness is inconsistent with the evidence generally.” 20.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 21.This is not a criminal trial. It is a civil trial in which the court must find for one party or the other on the balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“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.” 22.This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR), where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows:The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. 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 or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the 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.” 23.The burden of proof is on whoever alleges. This is as per section 107-109 of the Evidence Act, which provides as follows: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.108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.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.” 24.In the matter, there were two eye witneses, that is PW2 and DW2. The evidence of DW1 was hearsay evidence. The document they were referring to was not part of the record. The witness could only produce a police abstract but could not explain how the accident occurred. In any case, the evidence was based on a report by DW2. The other protagonist in the accident was already deceased. The other evidence from PW2 was that he was an eye witness. He stated that the matatu overtook a cart and turned right. This evidence was not controverted. DW2 confirmed that he only saw the motor cycle behind him but did not see him until after the accident. This was ipso facto evidence that he turned right without ensuring that there was no vehicle overtaking. 25.It is instructive that the vehicle hit the motor cycle on the right. A careful driver could have seen the motor cycle and given way before turning right. This was reckless. There is a principle that a police abstract is evidence that an accident was reported, though not conclusive proof as held in the case of Peter Kanithi Kimunya v Aden Guyo Haro [2014] KEHC 1547 (KLR), where R.E. ABURILI, J held as follows:It was therefore incumbent upon the appellant to prove the occurrence of the accident which he stated took place when he was alone. He did not produce a police abstract. In my view, a police abstract form or Form P10A is a critical document that would prove that the occurrence of the accident was reported to the police, although it does not prove the occurrence of an accident itself. 26.PW2 was categorical that the vehicle turned right after overtaking a cart. It collided with a motor cycle. The impact was high. The motor cycle must also have been in very high speed. The respondents already admitted that they did not see the motor cycle before. This is not a case where a vehicle rams behind another. It is on the right. It means that the motorcycle was already overtaking the lorry when it turned right. The motor vehicle was thus more to blame. 27.In the circumstances I find that the court was wrong on liability. The appellant was 40% to blame. The respondent is 60% liable. The court indicated that it could have awarded the following, had it found in favour of the appellants:a.Ksh 100,000/= on loss of expectation of lifeb.Ksh 100,000/= on pain and sufferingc.Ksh 2,880,000/= on loss of dependencyd.KSh 34,350/= as special damages 28.There is no appeal on damages. The court will thus adopt the award on loss of expectation of life and pain and suffering. However, the court was plainly wrong on loss of dependency. The deceased was single with only the parents. The court cannot adopt a dependency ration of 2/3 for a single 26-year-old. It will not be responsible to adopt such out of this award. The court did not address its mind on this award and the question of funeral expenses. Court cannot adopt the proposal for the court. The award of Ksh. 76,540/= is reasonable in the circumstances. There is no need to strictly insist on receipts. 29.The deceased earned a gross wage of 15,000/= though proved as 16,000/=. The age of the parents is not given but the deceased was 26. A Multiplier of 24 years was applied. There is no appeal on this. However, he was also single therefore the dependence ratio of 1/3 suffices. This works out as follows:15,000/= x 1/3 x 24 x 12 = Ksh. 1,440,000/= 30.This works out as follows:a.Liability 40:60b.KSh 100,000/= on loss of expectation of lifec.Ksh 100,000/= on pain and sufferingd.Ksh. 1,440,000/= on loss of dependencye.Ksh. 76,540/= as special damages and funeral expenses 31.This leaves the issue of costs, which is governed by 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. 32.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:“It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 33.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 34.The appellant shall have costs of the appeal of Ksh. 85,000/= to the Appellant for the appeal. Determination 35.In the upshot, I make the following orders: -a.The appeal is allowed. The finding on liability is set aside. The court finds the respondent 60% liable and the appellant 40% liable.b.Damages are awarded as follows:i.KSh 100,000/= on loss of expectation of lifeii.Ksh 100,000/= on pain and sufferingiii.Ksh. 1,440,000/= on loss of dependencyiv.Ksh. 76,540/= as special damages and funeral expensesc.Costs of appeal of Ksh. 85,000/= to the Appellant.d.The costs of the lower court be awarded to the appellant.e.14 days right of appeal.f.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF MAY, 2026.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Mr. Waiganjo for the AppellantNo appearance for the RespondentCourt Assistant – MartinM. D. KIZITO, J.