https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10088

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NO. E293 OF 2023 PIUS KITHUKA MAKAU……………………………………………..…1ST APPELLANT MOSES MUNYAO KYEMWA…………………………………….……2ND APPELLANT VS MARY NDUKU KAVILA ( Suing as the widow and Personal representative of the estate of MARTIN MUTHAMA MATATI ( Deceased)………………………….……RESPONDENT JUDGMENT 1. The Respondent, suing as the widow and personal representative of the estate of Martin Muthama Matati (deceased), vide a plaint dated 6th July 2022, sought the following orders against the Appellants. 2. Special damages of kshs105, 500/= 3. General damages under both the Law Reform and Fatal Accidents Act 4. Costs of the suit 5. Interest 6. The claim arose from a road traffic accident on 15th August 2019. 7. It was alleged that the 1st Appellant abruptly started moving the motor vehicle registration no. KCV 343A, while the Respondent’s deceased husband was alighting from the same vehicle, causing him to fall and be run over by the wheels, thereby sustaining fatal injuries. 8. The Respondent particularised the special damages sought. 1000/- for letters of administration, 103, 950/- for funeral expenses, 550/- for a copy of the records. 9. The Respondent pleaded that the deceased was a businessman earning KShs 25,000/- per month and that he died at the age of 41 years. 10. The Appellants defended the suit. They contended that the 1st Appellant, who was the driver of motor vehicle KCV 343A, an Isuzu FSR, was lawfully driving the said vehicle on the material day, transporting building stones from a quarry in Syanthi to Kalie in Tala. 11. That the 1st Appellant, upon arrival at his destination, was informed that the deceased, who was hanging on the said vehicle without the driver’s knowledge, fell from the moving vehicle and sustained fatal injuries. 12. During the trial, the Respondent called two witnesses in support of her case: herself and Gideon Mateti Nthoki, who witnessed the accident. 13. The 1st Appellant was the sole witness who testified for the Appellants. 14. The trial court, faced with contradictory testimony from the two eyewitnesses, chose to believe the witness of the Respondent and found the Appellants 100% liable for the death of the deceased. 15. The trial court awarded the Respondent 50,000/- for pain and suffering, 100,000/- for loss of expectation of life, 800,000/- as a global sum for loss of dependency, and 105,500/- as special damages. 16. The Appellants, aggrieved by the said decision, preferred the present appeal, in which they seek that the Court. 17. Allows the appeal and sets aside the judgment on liability, and the deceased is held 100% liable for the causation of the accident. 18. The Appellant’s appeal is premised on allegations that the trial court erred in fact and law by failing to properly evaluate the evidence on record, thereby arriving at a wrong decision. 19. The trial court erred by failing to hold that the deceased was fully liable for the accident, and, finally, erred in law and fact by awarding excessive damages to the Respondent. 20. The court directed that the appeal proceed by way of written submissions, and the parties complied. 21. The Appellants challenge the evaluation and findings of the trial court, in their submissions; they submit that the Respondent did not discharge to the requisite standard, the burden of proof on the issue of liability. 22. They point out what they perceive to be some inconsistencies between the testimony of the two witnesses who testified on behalf of the Respondent. 23. They fault the contents of the police abstract, which, based on the decision of the court in the case of Peter Kaniti Kimunya v Aden Guyo Haro (2014), was held not to prove an accident but the reporting of the occurrence of an accident at a particular police station. 24. The Appellants submitted that, in the alternative, the deceased is to be found largely to blame for the accident. 25. The Appellants relied on the decision of the Superior Courts in Mbugu David & another v Joyce Gathoni Wathena & another (2016) eKLR, Patrick Nguthira Gichuki v David Denny (2013) eKLR, Donoghue vs Stevenson (1932) AFR 1, Statpack Industries v James Mbithi Munyao (2005) eKLR, Kirugi & Another -vs-Kabiya and 3 others (1987) KLR 347. 26. On the issue of quantum, placing reliance on the decision of John Mureithi Kariuki vs George Mwangi (2012), the Appellants submitted that the deceased died on the same day as confirmed by the death certificate; therefore, an award of kshs 10,000/= should suffice. 27. On loss of expectation of life, the Appellants submit that an amount of KShs 70,000/- is sufficient and conventional; they rely on the decision of John Mureithi Kariuki (supra) and Caroline Anne Njoki Mwangi-vs-Paul Ndungu Muroki 2004 eKLR. 28. Under the Fatal Accidents Act, the Appellants submit that for loss of dependency, a multiplier of 12 years be applied since the deceased died aged 41 years old. 29. They cited the decisions in Mary Kerubo Mabuka vs Newton Mucheke Mburu & 3 others (2006) eKLR, RKO & another vs Kenya Power & Lightning Company Ltd, Rose Munyasa & another v Daphton Kirombo & another (2014) eKLR. 30. On the dependency ratio, the Appellants submitted that one-third should be applied as the deceased was married and had a child. 31. The Appellants submitted that there was no evidence of the deceased being in employment, there was also no proof that the deceased was earning as pleaded, and there was no proof of the deceased possessing any particular skill or training. 32. The Appellants submitted that, therefore, the Court should use the minimum wage of 2019, which was in force when the deceased died on 15th August 2019. Translating to kshs 6,736.30/= per month (unskilled employee), Legal Notice No.3, Regulation of Wages (Agricultural Industry) (Amendment) Order, 2018, leading to a final award of kshs 646,684.60/= 33. The Appellants submitted that the award under the Law Reform Act should be deducted from the award under the Fatal Accidents Act to avoid a scenario of double benefit, citing the decision of the court in Kiarie Shoe Stores Ltd-vs-Hellen Waruguru Waweru (2013) eKLR 34. On special damages, the Appellants submitted that the Respondent provided receipts for Kshs 550/= and that the award of kshs 105, 500/= was without evidential basis. 35. The Respondent submitted in reply that the trial magistrate did not err in making a finding that the Appellant was liable for occasioning the accident. 36. The Respondent referred to the testimony of her witnesses before the trial court. 37. The Respondent submitted that the award for damages was reasonable and commensurate with current court awards. 38. The Respondent relied on the decisions of the Superior Courts in Lucy Waruguru Gatundu v/s Miriam Nyambura Mwangi Civil Appeal No.6 of 2015 and Stanley Njihia Njenga-vs-Francis Peter Masilu Kamuyua HCCA No. 603 of 2017. 39. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence tendered before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 40. 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 learned justices held 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 demeanour of a witness is inconsistent with the evidence generally.”* 1. The appeal raises the following issues: 2. Whether the trial court erred in finding the Appellants wholly liable for the accident; 3. Whether the award of damages was excessive or based on wrong principles; 4. Whether the award of special damages was proved. 5. 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…”*** 1. The logic of it is simple: the trial court would have heard and seen the witnesses as they testified and formed a clear opinion on their credibility. 2. The Respondent’s Gideon Mateti Nthoki testified as an eyewitness. His evidence was that the deceased was alighting from the vehicle when the driver suddenly moved it, causing the deceased to fall and be run over. 3. The 1st Appellant, on the other hand, testified that the deceased had been hanging on the vehicle without his knowledge and fell from the moving vehicle. 4. The trial court was therefore confronted with two conflicting versions of events. After observing the demeanour of the witnesses and evaluating their testimony, the learned magistrate accepted the evidence of Gideon Mateti Nthoki and rejected the Appellant's account. 5. An appellate court will not lightly interfere with findings of fact by a trial court unless such findings are based on no evidence, are founded on a misapprehension of the evidence, or the court acted on wrong principles. The Court of Appeal reiterated this principle in Peters v Sunday Post Ltd [1958] EA 424. 6. I have carefully re-evaluated the record. 7. The evidence of PW2 directly addressed the manner in which the accident occurred and attributed negligence to the 1st Appellant. 8. At page 4 of the record of proceedings found on page 109 of the supplementary record of appeal, Gideon Muteti Dock is recorded as having testified as follows: “*I was inside the lorry on the material date registration number KCV 343A. The deceased was seated with the driver. The driver braked, and the vehicle moved over the deceased*. …….” 9. On cross-examination, he stated as follows: *“I was inside the lorry. I was working on the lorry…I was seated behind the driver. The deceased was in front. The deceased was selling shoes. I was a casual labourer. It is a one-day job. The motor vehicle ran over the deceased. The motor vehicle did not stop. He was alighting from a moving motor* *vehicle. …. I did not jump from the motor vehicle. The motor vehicle was slowing down when I alighted.”* 10. Just like the trial court, I equally find the evidence of Gideon Muteti Dock more credible than that of the 1st Appellant. 11. I say so because, in explaining how he disembarked from the lorry, Gideon gives insight into how the driver would drop his passengers; he would slow down and expect them to disembark and move on without stopping. 12. Secondly, Gideon’s explanation of why he was in the lorry and why he was seated behind the driver aligns with the driver’s activities for the day. 13. The Driver stated that he was in the business of transporting building stones, which would explain the presence of a casual labourer in the form of a loader seated behind the driver. This would also explain why the deceased, who was not a loader but a shoe seller, was seated in front with the driver and not at the back. 14. Thirdly and more compelling is the nature of injuries suffered by the deceased, the post mortem report at page 15 of the record of appeal indicates that the deceased sustained the following injuries, “bruises on face, left cheek, head, left shoulder, both upper forearms, left hip, both knees, fractured ribs 2,3 and 4 on left side, fractured skull, left pariental and frontal bones, massive haematoma, occipital, left pariental, temporal, frontal (epidural), the pronounced injuries on the left side suffered by deceased are consistent with a fall from the left /passenger side of a moving motor vehicle. 15. In an uncannily similar accident where a passenger fell from a moving motor vehicle and was run over by the rear tyres of the vehicle, the injuries suffered were similarly more pronounced on the left side of the passenger’s body. The court in that case held the driver liable 100% for occasioning the fall and injuries to the passenger; that is the case of Salala Logistics Consultants & another v Titus Kilonzo Masya [2020] KEHC 9462 (KLR) per Odunga J. *35. In this case, the Appellant testified on how the accident took place. According to him, they were travelling in the subject motor vehicle and upon reaching Machakos Primary School, the vehicle stopped, apparently upon sighting traffic police officers, and the conductor ordered those who were going to Machakos to alight there. The conductor then went to talk to the traffic police officers while the 4 passengers were alighting, the Respondent being the last one. However, as he stepped on the last stair, the driver abruptly started the vehicle, and as the vehicle started, the respondent was hit on the left shoulder and thrown outside the vehicle, where the rear tyre ran over his left leg.* *36. The defence case, on the other hand, was that the Respondent was alighting when the vehicle was in motion. However, from the evidence of DW2, he never saw the Respondent alighting, and he only realised that he was alighting when he heard screams from the other passengers. It was his evidence that where he was seated, he could not see the conductor. There was no evidence that he was given the go-ahead by the conductor before he started the vehicle. He ought to have waited for the conductor to signal him that all was okay before he started to drive the vehicle. It was the responsibility of DW2 to ensure that there was no passenger alighting from the vehicle before starting the vehicle. Although DW2 testified that he looked into the mirror before driving off, the fact that he was not able to brake a vehicle which had just started moving is evidence enough that he started the vehicle abruptly; otherwise, he ought to have brought the vehicle to a standstill without causing serious injuries to the Respondent. In my view, it is the responsibility of the conductor to ensure that the motor vehicle door is closed at all times when the vehicle is in motion, and the failure to do so makes the driver and/or the conductor and hence the owner of the vehicle, liable.* *37. I associate myself with the decision of****Wambilyangah, J****, in****Mgao vs. Wokabi & Another Mombasa HCCC No. 165 of 1990 [1993] EA 685****in which he expressed himself as hereunder:* ***“The scenario of getting into a moving bus or matatu by a passenger is very common in this country. A prudent driver of a public vehicle should easily foresee that some passengers may be hampered by all sorts of factors, whether personal or otherwise, from speedily jumping into the vehicle; and so it behoves him to be patient and allow them enough time to safely get into the vehicle. He should ensure that all his passengers are safely aboard or have safely alighted before he drives from that stage…I find as a fact that the driver in the present case failed to observe those fundamental rules. Instead, he hastily and negligently drove off from the stage without checking that more passengers were still struggling to get in, and that is how or why the plaintiff was injured. So the 1st defendant’s liability is assessed at 100%; and the 2nd defendant, as his employer, is vicariously liable.”*** *38. I also agree with the position adopted by****Aburili, J****, in****Mary Njeri Murigi vs. Peter Macharia & Another [2016] KLR****that:* ***“A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon, and due care is expected of the driver who is in control thereof.”*** *39. Based on the evidence on record, the findings of fact by the learned trial magistrate cannot be faulted. It is my finding that he arrived at the correct decision based on both facts and law and that his decision was legally and factually sound and ought not to be disturbed* *.* 1. The Appellants did not call any independent witness to corroborate the assertion that the deceased was unlawfully hanging on the vehicle. 2. The mere existence of inconsistencies that do not go to the root of the claim is not sufficient to discredit otherwise credible testimony. 3. The Appellants also challenged the evidential value of the police abstract. While it is correct that the police abstract merely confirms the reporting of an accident and is not conclusive proof of how an accident occurred, the trial court did not base its findings solely on the abstract. 4. The finding on liability was grounded on the oral evidence presented before the court. Once the driver slowed to allow disembarkation, the passenger was entitled to assume the vehicle would remain stationary long enough to alight safely. 5. The act that directly caused the fall was the driver's premature acceleration, not merely the passenger's decision to get off. 6. Having independently reviewed the evidence, I find no basis upon which to fault the trial court's conclusion that the accident was caused by the negligence of the 1st Appellant. The finding of liability against the Appellants is therefore upheld. 7. In deciding whether to disturb the quantum given by the lower court, the court should be aware of its limits. 8. Being an exercise of discretion, the exercise should be done judiciously in the circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. 9. The Court of Appeal pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Service. A.M Lubia & Another 1957 KLR 27, as follows: *“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.* 1. As the appellate court, my duty is threefold regarding the quantum of damages: 2. *To ascertain whether the Court applied irrelevant factors or left out relevant factors.* 3. *To ascertain whether the award is too high as to amount to an erroneous assessment of damages.* 4. *To ascertain whether the award is simply not justified by evidence.* 5. To be able to do this, I need to consider similar injuries, take into consideration inflation, and other comparable awards. 6. The deceased died on the same day of the accident. The Appellants submit that an award of Kshs.10,000/= would have been appropriate. 7. Awards under this head are discretionary and depend on the duration of suffering before death. Courts have generally awarded sums ranging between Kshs.10,000/= and Kshs.100,000/= depending on the circumstances. 8. In Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased), paragraph 21, Odunga J (as he then was) observed: ***“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view, what determines the award under that head is how long the deceased took before he either passed away or lost consciousness… a distinction ought to be made between a case where the deceased passes away instantly and where the death takes place some time after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident, during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.”*** 1. Considering that the deceased sustained severe injuries and did not die instantly at the scene, I am not persuaded that the award of Kshs. 50,000/= was so inordinately high as to warrant interference. The same is upheld. 2. On loss of expectation of life, the conventional award under this head has generally ranged between Kshs. 100,000/= and Kshs. 150,000/=. 3. The award of Kshs.100,000/= made by the trial court was within the accepted range, and I find no reason to disturb it. 4. Though loss of dependency is a question of fact, there are established conventions on dependency. Ordinarily, for a person with a family, in this case a wife and seven children, the dependency ratio is higher. 5. The deceased was said to have been aged 41 years and engaged in business, earning approximately Kshs.25,000/= per month. 6. No documentary evidence was produced to prove the alleged earnings. 7. In the case of Jacob **Ayiga Maruja & Another v Simeone Obayo CA Civil Appeal No. 167 of 2002 [2005] eKLR,** the Court observed: ***“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things”.*** 1. It is now settled that failure to produce documentary evidence of earnings is not necessarily fatal where the deceased was engaged in informal business. Nonetheless, the court must adopt a reasonable approach based on the evidence available. 2. The learned magistrate opted to award a global sum of Kshs.800,000/= instead of applying the multiplier approach. 3. The choice between the multiplier approach and a global award remains a matter of judicial discretion. The multiplier approach is not mandatory where the evidence regarding income is uncertain. 4. The multiplier approach urged by the Appellants appears unsuited for the case before the court, where there is hardly any material tendered to establish the key elements commonly used in the multiplier approach, and especially the earnings of the deceased. where the multiplier approach is not supported by evidence, the trial court was correct in adopting a global figure in arriving at the loss of dependency. 5. Considering the deceased's age, the absence of documentary proof of earnings, and the uncertainties surrounding future income, I find that the trial court properly exercised its discretion in awarding a global sum. 6. I do not dispute that which Lord Morris said in West (H) & Son Ltd v Shephard [1964] AC 326 at 353, namely: *“…The difficult task of awarding monetary compensation in a case of this kind is essentially a matter of opinion and judgment, and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong, the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present, it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not, however, proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”* 1. The award of Kshs.800,000/= for loss of dependency cannot be said to be inordinately high or founded on wrong principles. The same is therefore upheld. 2. In the case of **Chunibhai J. Patel and Another v P. F. Hayes and Others [1957] EA 748, 749,** the Court of Appeal stated the law on assessment of damages under the Fatal Accidents Act, which in part reads as follows: **“*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 dependants, 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 capitalised by multiplying by a figure representing so many years' purchase.*** 1. The Appellants submitted that the awards under the Law Reform Act ought to have been deducted from the award under the Fatal Accidents Act. 2. The law is now settled that while the court must take into account awards made under the Law Reform Act, there is no requirement for a mathematical deduction. 3. The Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR) clarified as follows; ***20.****This Court has explained the concept of double compensation in several decisions, and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the****Law Reform Act****and dependants under the****Fatal Accidents Act****are the same, and consequently, the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the****Fatal Accidents Act****should be denied damages for pain and suffering and loss of expectation of life, as these are only awarded under the****Law Reform Act,*** *the issue of duplication does not arise.* 21.*The confusion appears to have arisen because of the different reporting of the****Kenfro case****(supra), which was heavily relied on by Mr Kiplagat. The version he relied on is from [****1982-88] 1 KAR 727, which concentrates on the decision of Kneller JA in extracting the***ratio decidendi***.****The same case, however, is more fully reported in****[1987] KLR 30****as****Kenfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2)****, and the*ratio decidendi*is extracted from the unanimous decision of all three Judges. It was held,*inter alia*, that:* “6.An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. 7. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. 8. The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.” 1. There is nothing on record to suggest that the trial court awarded duplicate compensation. This ground, therefore, fails. 2. Special damages must not only be specifically pleaded but must also be strictly proved. 3. The Respondent pleaded special damages amounting to Kshs.105,500/= comprising Kshs.1,000/= for letters of administration, Kshs.550/= for a copy of the records, and Kshs.103,950/= for funeral expenses. 4. The record shows that receipts were produced in support of the pleaded expenses. 5. The Appellants have not demonstrated that the receipts were challenged or rejected during trial. 6. In the circumstances, I find no basis for interfering with the award of Kshs.105,500/= as special damages. 7. The upshot, I find the appeal lacking in merit and order as follows; The Appeal is hereby dismissed with costs to the Respondent. Delivered virtually via Microsoft Teams, dated and signed at Mombasa, this 25th day of June 2026 **Emmanuel Bitta** **Judge** In the presence of; C/A Nechesa Omari for the Respondent.