https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6594

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VOI** **CIVIL APPEAL NO. E048 OF 2025** **HERIMA MALEMBA & STANLEY MWAKICHI** **(**Suing as the Legal Representatives of the Estate of **PATRICK MWAVUA** **MWAKICHI (Deceased)…………………………………..APPELLANTS** **VERSUS** **DANIEL CHOMBA MUNGAI…………………………..RESPONDENT** (Being an Appeal from the Judgment and Decree of Hon. A.M. Obura – CM Voi Chief Magistrate’s Court, delivered on 18th July 2025 in Voi CMCC No. E188 of 2023) **JUDGMENT** 1. This appeal arose out of a claim for compensation following a fatal road traffic accident that occurred on August 6, 2023, along the Voi-Caltex Road. 2. The suit was brought by the legal representatives of the estate of the deceased, Mwavua Mwakichi, against the defendant under the Law Reform Act and the Fatal Accidents Act. 3. The appellants alleged that the defendant’s driver or agent negligently controlled a motor vehicle, causing it to collide with the deceased’s motorcycle (registration no. KMFZ 555L) near the Voi-Sisal factory area, resulting in fatal injuries. 4. In response, the respondent admitted ownership of the vehicle (registration no. KBS 727C) but denied liability, contending that the accident was caused solely by the deceased’s own negligence. 5. To support their case, the appellants called three witnesses, including the deceased's wife and a police officer, while the defendant relied on the testimony of Paul Kariuki Mwangi. 6. Upon analyzing the evidence, the trial court noted that the issue of liability had been extensively determined in a related suit, Voi CMCC No. 229 of 2023. 7. Adopting the findings from that case, the court concluded that the deceased rider was responsible for the accident due to careless overtaking, over-speeding, and riding at night without a helmet. 8. Consequently, the court found that the appellants failed to prove their case against the defendant on a balance of probabilities. 9. Despite finding the respondent not liable, the trial court assessed "quantum"—the damages that would have been awarded had the suit succeeded. 10. The trialcourt noted that the deceased died at approximately 4:45 am on August 7, 2023, while undergoing treatment. For pain and suffering, the court proposed a nominal award of Kshs. 100,000. 11. Under the Law Reform Act, a conventional sum of Kshs. 100,000 was suggested for the loss of expectation of life for the 26-year-old deceased. 12. Regarding the loss of dependency, the trial court noted that the deceased was a boda boda rider and, in the absence of documentary proof of earnings, applied a minimum wage of Kshs. 8,109.90. 13. Using a dependency ratio of 2/3 and a 34-year multiplier, the court calculated potential dependency damages at Kshs. 2,205,892.80. Special damages were strictly proved at Kshs. 93,320. 14. However, because liability was not established, the Judge dismissed the plaintiffs' suit in its entirety on July 18, 2025. 15. The court ordered that each party meet its own costs of the suit. 16. The appellants have appealed against the judgment on the following grounds; 17. That the trial magistrate made significant legal and factual errors during the original proceedings. 18. That the trial court's decisive reliance on a police officer's testimony, which the appellants argue was inadmissible hearsay. 19. Furthermore, that this testimony was relied upon despite a lack of supporting physical evidence, such as sketch maps or photographs, to verify the circumstances of the accident or the specific point of impact. 20. The parties filed written submissions as follows; The appellants submitted that their appeal challenges the trial court judgment delivered on July 18, 2025, which dismissed a suit arising from a fatal road traffic accident involving the deceased’s motorcycle and the respondent’s motor vehicle. 21. The appellants contend that the trial magistrate erred by failing to find the respondent liable despite evidence presented during the hearing. 22. They argue that the first appellate court has a duty to independently re-evaluate the evidence to reach its own conclusion. 23. The appellants highlight material inconsistencies in the respondent’s evidence, noting that the respondent’s driver provided contradictory testimony regarding when he first saw the deceased. 24. They further assert that the respondent breached a statutory duty of care to other road users. 25. Conversely, the appellants submitted that their own evidence was credible, supported by an eyewitness who testified that the respondent’s vehicle veered into the deceased's lane while overtaking at high speed. 26. They also challenge the trial court’s heavy reliance on a police officer’s testimony, characterizing it as hearsay because the officer did not witness the accident, provide a sketch map, or offer conclusive findings on fault. 27. Regarding the assessment of damages, the appellants urge the High Court to adopt the alternative quantum determined by the trial magistrate. 28. This assessment includes awards for pain and suffering, loss of expectation of life, loss of dependency for the deceased’s widow and children, loss of consortium, and special damages. 29. The appellants maintain these figures are consistent with established legal principles and prevailing jurisprudence. 30. In conclusion, they seek to have the trial court’s dismissal set aside, judgment entered against the respondent at 100% liability, and the proposed damages awarded along with the costs of the appeal. 31. The respondent submitted that the appellate court should uphold the trial court’s decision, arguing that the appellants failed to prove their case on a balance of probabilities. 32. The respondent contends that the accident was caused solely by the deceased's negligence. 33. That the evidence presented in the trial court established that the deceased was riding without a driving license, had never attended driving school, and was not wearing a reflective jacket or a crash helmet at the time of the night time collision. 34. Testimonies from a police officer and the defence witness indicated that the deceased attempted to overtake another motorcycle when it was unsafe to do so, subsequently veering into the oncoming lane and colliding head-on with the respondent’s vehicle. 35. The police investigation corroborated this version of events, placing the point of impact within the motor vehicle's lawful lane and leading to the opening of an inquest file rather than charges against the driver. 36. The respondent further asserts that the trial magistrate’s findings were legally sound and consistent with established judicial precedents, which dictate that liability cannot be found without proof of fault. 37. The respondent further submitted that the appellants cannot now dismiss the police officer’s testimony as hearsay, as he was their own witness and provided evidence based on official records. 38. The respondent maintains that the deceased was the author of his own misfortune by breaching the Highway Code and lacking the necessary skill to operate a motorcycle on a public highway. 39. In line with the well-established duty of a first appellate court as articulated in **Selle & Another v Associated Motor Boat Company Ltd & Others EA 123,** this court has re-evaluated the evidence on record to arrive at its own independent conclusions. 40. **From the analysis of the Memorandum of Appeal, the Record of Appeal, and the parties’ submissions, the following issues arise for determination’** 41. **Whether the trial court erred in its finding on liability.** 42. **Whether the trial court was wrong to rely on the police officer’s testimony and the finding in the related suit (Voi CMCC No. 229 of 2023).** 43. **Whether the trial court should have apportioned liability, and if so, in what ratio?.** 44. **What is the appropriate quantum of damages that would be payable?** 45. This is a first appeal against the entire judgment of the trial court delivered on July 18, 2025, which dismissed the appellants’ suit for compensation following a fatal road traffic accident. 46. The appellants submitted that the trial magistrate made legal and factual errors, particularly by relying on what they contend was inadmissible hearsay testimony from a police officer and by failing to find the respondent liable. 47. After a thorough re-evaluation of the evidence on record, this court finds that the appeal has merit. The trial court’s finding that the respondent was not liable at all is a misdirection. The proper conclusion, based on the conflicting and inconclusive evidence, is that both parties were equally to blame for the accident. 48. The duty of this court as the first appellate court is to reconsider the evidence, re-evaluate the facts, and draw its own independent conclusions, a principle established in Selle & Another vs. Associated Motor Boat Company Ltd & Others (supra) and consistently followed in several cases. 49. The trial court had the advantage of observing the witnesses, but this court is obligated to intervene where the evidence has been misapprehended or wrong legal principles have been applied. 50. On the critical issue of liability, the evidence from both sides is conflicting and, crucially, inconclusive as to who was the sole author of the accident. 51. The appellants’ eyewitness testified that the respondent’s vehicle veered into the deceased’s lane while overtaking at high speed. 52. In contrast, the respondent’s driver and the police officer’s testimony suggested that the deceased was overtaking carelessly at night without a helmet. 53. The trial court appears to have heavily relied on the police officer’s testimony, which the appellants correctly argue was partly hearsay as the officer did not witness the accident. 54. However, such evidence from an investigating officer is not automatically inadmissible hearsay, especially where it is based on official records and the officer is subjected to cross-examination. 55. Nevertheless, it is also trite law that a police officer’s opinion on who caused an accident is not binding on the court. 56. The trial court fell into error by treating the police officer’s account as conclusive proof of the deceased’s sole negligence, especially in the absence of corroborating physical evidence like a sketch map or photographs, which the appellants rightly point out were missing. 57. Where the evidence on record is insufficient to pinpoint the exact cause of an accident or to attribute sole blame to one party, the courts have developed a clear and equitable principle. 58. In the absence of clear and cogent evidence fixing a higher degree of fault on one party, liability should be shared equally. 59. Where there is a lack of evidence to establish the negligence of any party, the court must find the parties equally to blame. 60. In the present case, there are allegations of negligence against both the respondent’s driver (overtaking dangerously) and the deceased rider (riding at night without a helmet and attempting an unsafe overtaking maneuver). 61. The evidence is a clear conflict, and no single version can be preferred over the other on a balance of probabilities. 62. Therefore, the trial court’s finding that the respondent bore no liability is unsustainable in law. 63. The correct finding is that liability should be apportioned at 50% on the respondent and 50% on the deceased’s estate. 64. Having found that the respondent is 50% liable, this court must now consider the quantum of damages that the appellants would have been entitled to, subject to that apportionment. 65. The trial court, despite dismissing the suit, assessed the quantum. 66. The court proposed Kshs. 100,000 for pain and suffering, Kshs. 100,000 for loss of expectation of life under the Law Reform Act, and Kshs. 93,320 for special damages, which were strictly proved. 67. None of the parties have seriously challenged these figures on appeal, and this court finds them to be reasonable and in line with established principles. 68. The award for loss of expectation of life is a conventional sum, and the award for pain and suffering is reasonable given that the deceased died while undergoing treatment after the accident. 69. The special damages are also properly proved. 70. On loss of dependency, the trial court found that the deceased was a 26-year-old boda boda rider. In the absence of documentary proof of his earnings, the trial court applied a minimum wage of Kshs. 8,109.90. 71. This approach is sound and consistent with established jurisprudence, where courts apply the minimum wage where a deceased’s earnings could not be strictly proved. 72. The trial court used a dependency ratio of 2/3, which is standard for a married man with a family, 73. The multiplier of 34 years for a 26-year-old is also reasonable. 74. Consequently, the trial court’s calculation of Kshs. 2,205,892.80 for loss of dependency is adopted by this court. The total quantum of damages awarded, therefore, are as follows; 75. Kshs. 100,000 (for pain and suffering) 76. Kshs. 100,000 (for loss of expectation of life) 77. Kshs. 2,205,892.80 (for loss of dependency) 78. Kshs. 93,320 (special damages) 79. Total Kshs. 2,499,212.80. 80. In conclusion, the appeal is allowed in part. The judgment of the trial court dismissing the appellants’ suit is set aside. 81. Instead, this court enters judgment for the appellants against the respondent the liability is apportioned at 50:50%. 82. The final award to the appellants shall be the sum of Kshs. 1,249,606.40, which is exactly 50% of the total assessed quantum of Kshs. 2,499,212.80, reflecting the 50% liability apportioned to the respondent. 83. Each party to bear their own costs of this appeal. 84. This judgment to abide in **VOI HIGH COURT CIVIL APPEAL NO. E047 OF 2025 (TITO KIZONGONA MWANYUMBA Vs DANIEL CHOMBA MUNGAI**) which arose from the same accident. 85. Orders to issue accordingly. **Dated, signed and delivered this 12th day of May 2026 virtually at Voi High Court.** **ASENATH ONGERI** **JUDGE** **In the presence of:-** Ms Vanani for the Respondent.