https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12798

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CIVIL APPEAL CASE NO. 59 OF 2019** **MERCY WAKANYI KABUU** **MARTIN NDERI NYUGUTO……………………….APPELLANTS** **VERSUS** **GRACE WANGECI KIBOCHA (Suing as the legal representative of the estate of BURTON WANDIGA KIBOCHA)…..RESPONDENT** **JUDGEMENT** 1. The Appellants **MERCY WAKANYI KABUU** and **MARTIN NDERI** **NYUGUTO** (suing as the Administrators and legal representatives of the late **AMBROSE NYUGUTO**) have filed the Memorandum of appeal dated **18th October 2019** seeking the following orders:- (a**) THAT the decree and judgment of the trial court be reviewed appropriately.** **(b) Costs of the appeal and the subordinate Court.”** 2. The Respondent **GRACE WANGECHI KIBOCHA** (Suing as the legal representative of the estate of **BURTON WANDIGA** **KIBOCHA**) opposed the Appeal. 3. The matter was canvassed by way of written submissions. The appellant filed the written submissions dated **13th May 2026** whilst the Respondents relied on her written submissions dated **20th May** **2026**. **BACKGROUND** 4. This appeal relates to a road traffic accident which occurred on **30th** **December 2014**. The plaintiff in the Lower Court case (the Respondent in this appeal) stated that her late husband **Burton** **Wandiga Kibocha** was on the material day driving a motor vehicle registration number **KAZ 560C** at about 8.00pm along the Kiganjo-Marua Road. 5. That the original defendant **ROSE KIMONDO NYUGUTO** (who unfortunately died during the pendency of the Lower Court case) was driving the motor vehicle registration **KCB 663L** Mazda Station Wagon along the same road coming in the opposite direction. Following the demise of the original defendant the current Appellant **MERCY KANYI KABUU** replaced her in this matter. 6. **PW1 Grace Wangechi Kibicho** told the court that her husband left home on the morning of **30th December 2014** going to work. That he did not return. **PW1** received a call from a family friend informing her that her husband had been involved in an accident. **PW1** rushed to the scene and found the body of deceased lying dead on the road. 7. **PW2 JAMES KAMAU GITHETU** was a witness to the accident. He told the court that on the material day he was driving to Karatina when he saw two vehicles coming from the opposite direction. That the Sedan vehicle Registration **KCB 663L** attempted to overtake the lorry which was in front of it. That in so doing the **KCB** veered into the lane of oncoming traffic and collided head on with the vehicle registration **KAZ 860C Toyota Station** Wagon which was in front of **PW2’s** vehicle. The driver of the **KAZ** died on the spot. 8. **PW3 PC JOSEPH NGERA** produced the police abstract dated **5th December 2015**. 9. The Defendant stated that she was not aware of the accident at all. 10. Following the accident the plaintiff filed in the Magistrates Court Civil Case No. 308 of 2015 in which vide the Plaint dated **21st September** **2015** she sought the following orders:- **“(a) General damages under the Fatal Accidents Act and Law Reform Act.** **(b) Special Damages of Kshs. 91,475.** **(c) Costs and interest on (a) and (b) above at court rates.** **(d) Any other relief this court may deem just to grant.”** 11. On **27th September 2019** **Hon W. KAGENDO Chief Magistrate** (as she then was) delivered her judgment in which she found in favour of the Plaintiff and made the following awards **“Pain and suffering - Kshs. 20,000/=** **Loss of expectation of life - Kshs. 100,000/=** **Loss of Dependancy - Kshs. 1,600,000/=** **Special damages - Kshs. 91,475/=** **TOTAL - Kshs. 1,811,475/=** **Costs and interest to the plaintiff.”** 12. Being aggrieved by this judgment the Appellants filed this Memorandum of Appeal which is premised upon the following grounds:- **“(1) That the learned trial magistrate erred in fact and in** **law in holding that the deceased was to blame while** **there was no direct evidence to link the deceased.** **(2) The learned trial magistrate erred in fact and in law** **in failing to apportion liability when it was apparent that the collision of the motor vehicle could not otherwise be explained.** **(3) The learned trial magistrate erred in fact and in law in awarding Kshs. 1,600,000/- as damages which award was neither supported by the evidence or documents on record.** **(4) That the learned trial magistrate erred in law and in fact in applying the multiplier and the multiplicand which had no basis in law or fact.** **(5) That the learned trial magistrate erred in law and in fact in awarding damages that were so inordinately high as to be excessive and not representing a fair award in the circumstances.”** **ANALYSIS AND DETERMINATION** 13. I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 14. This is a first appeal and in this regard I take cognizance of the holding in **Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)** in which the **Court of Appeal** stated as follows:- ***This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is 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 allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L*** ***As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court*** ***said in Peters -vs- Sunday Post*** ***Ltd [1958] EA 424. In its own words:-*** ***“Whilst an appellate court has jurisdiction to review*** ***the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..”*** 15. The first question to be answered is whether the Respondent had locus standi to bring the suit. ‘**Locus standi’** is a latin term which literally means ‘place of standing’ and refers to the capacity of a party to appear in a suit. 16. The Respondent **Grace Wangechi Kibocha** is the Widow of the Deceased victim of the accident. The Respondent obtained a Grant Ad Litem issued on **10th April 2015** (**Pexb 4**). 17. On the issue of liability the trial court found that Appellant was 100% liable for the accident. In so finding the trial court relied on the evidence of **PW2** who was an eye witness to the accident. 18. **PW3** produced in court the police abstract Serial No. **0193467** dated **5th February 2015 Pexb** **1**. The police abstract is not a pointer to who was to blame for the accident. All that it proves is that the occurrence of an accident was reported to police. 19. In the case of **PETER KANITHI KIMUYU -VS- ADEN GUYO [2014]** **eKLR**, it was held that **“A police abstract is not proof of the occurrence of an accident but of the fact that following the accident, the occurrence thereof was reported at a particular police station.”** 20. In **ZOS and CAO -VS- AMOLLO STEPHEN [2019] eKLR** it was held that **“The police abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of the accident but proof of the fact that following an accident the occurrence thereof was reported to the police who took cognizance of that accident. It is the police, having received information of a report of occurrence of an accident [who] would investigate and establish** **the circumstances under which such an accident occurred….it was incumbent upon the appellant at the time of hearing to either call an eye witness who saw the accident take place to prove the listed particulars of negligence attributed to the Respondent or to call the police who investigated the accident to shed light on the result of the investigations and as to who was to blame for the subject accident wherein the Deceased lost his life.” [Own emphasis]** 21. I also note that no sketch map of the scene was produced in the trial. A sketch plan is an important piece of evidence to enable the court visualize the scene and to pinpoint the point of impact. 22. In **POSTAL CORPORATION OF KENYA & Another -vs- DICKENS** **MUNAYI [2014] eKLR** the Court held that **“In my view it is only a sketch plan of the scene that could clearly map out how the accident occurred and particularly where the point of impact was. Lack of** **this crucial piece of evidence leads me to doubt the entire** **evidence.”** 23. Notwithstanding the lack of evidential value of the police abstract, and the absence of a sketch plan. **PW2** was able to given eye witness testimony of how the accident occurred. The witness explained that the Appellants vehicle was coming in the opposite direction and the driver attempted to overtake a lorry which was in front of him. In so doing the Appellants driver swerved into the lane of the oncoming traffic and collided head on with the Respondents vehicle which was driving in its right lane. It was therefore not difficult to determine who caused the accident. 24. In **Kamau v Kimani & another** the Court of Appeal stated that:- **With respect, we do not agree with the holding of he learned judge that the appellant had failed to discharge the burden of proof. There was overwhelming evidence that the 2nd** **respondent was driving on the wrong side of the road and was overtaking at high speed. The evidence of the appellant was supported by an eye witness. This evidence was not controverted by the respondents,** **and it remains unchallenged. There is nothing on record** **to show that the credibility of that evidence was challenged during cross-examination.** 25. From the evidence adduced in the Lower Court, I am satisfied that it was indeed proved on a balance of probability that the Appellants driver was wholly liable for the accident. Thus the finding of 100% liability against the Appellant was proper and I do uphold the same. **QUANTUM** 26. On the question of quantum this court will be guided by the decision of the Court of Appeal in the case of **BASHIR AHMED BUTT -VS- UWAIS** **AHMED KHAN (1982-88) KAR** where it was held that:- **“An appellate court will not disturb an award for general damage unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low…”** 27.In the case of **SOUTHERN ENGINEERING COL LTD -vs- MUSUNGU** **MUTIA [1985] KLR 730**, it was held that the measure of quantum of damages to be awarded lies at the discretion of the trial court. 28. The evidence of the widow **PW1** was that when she got to the scene she found the body of the Deceased lying on the road covered with a cloth. The Death certificate serial No. **0316061** indicated that the Deceased died on **30th December 2015** which was the day the accident occurred. In this case the Deceased died on the spot. He did not undergo prolonged pain and anguish before he died. 29. In **Mercy Muriuki & Another -vs- Samuel Mwangi Nduati &** **Another (2019) eKLR**, the Court held that: **“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death**.” 30. I find the award of **Kshs. 20,000** for pain and suffering was reasonable as the deceased died at the scene of the accident and did not have a long drawn out death. 31. Under loss of expectation of life the trial court made an award of **Kshs. 100,000**. Guided by the authority of **Hyder Nthenya Musili** **& Another v China Wu Yi Limited** the conventional award is set at Kshs. 100,000/-. I find that the award of **Kshs. 100,000** was within the range of judicial precedent and I find no reason to disturb the same. 32. On loss of Dependancy it is not in dispute that the Deceased was aged **55 years** when he died. **PW1** told the Court that the Deceased was a businessman running a motorcycle spares shop, a wines and spirits shop, a wholesale shop and was an agent for Equity Bank in Chaka Town. She claimed that the Deceased earned a net monthly income of **Kshs. 150,000**. **PW1** further stated that the couple had three (3) children - One in University and another pursuing her Masters and that the Deceased was paying their school fees. That additionally the Deceased was given her **Kshs. 30,000** per month as upkeep money. 33. The trial court decided to apply the sum of **Kshs. 20,000/=** as the basic monthly income of the Deceased and used a dependency ratio of two-thirds (2/3) and used a multiplicand of ten (10) years. Thus the trial court computed damages as follows:- **2/3 x 12 x 20,000/= = 1,600,000.00** 34. In **Mwanzia v Ngalali Mutua Kenya Bus Ltd** cited in **Albert Odawa** **v Gichumu Githenji Nku HCCA No. 15 of 2003 [2007] eKLR**, the court made the following observation; **“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.” [Own emphasis]** 35. This Court faults the trial court for applying a basic income of **Kshs.** **20,000** as there was no evidence to support this finding. **PW1** only produced as evidence a cheque written out to pay the university fees for the Deceased’s children but no evidence was adduce to prove exactly how much the deceased actually earned. This was a figure plucked out of the air. 36. This being an appeal on quantum this court is guided by the principle enunciated in **Butt v Khan (1981) KLR 349**, which was applied in **Kemfro Africa Ltd t/a Meru Express Service & Gathongo Kanini** **v A. M Lubia and Olive Lubia (1982-1988) 1 KAR 727 at page** **730**, wherein Kneller JA stated as follows;- **“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former court of Appeal for East Africa to be that it must be satisfied that either the Judge in assessing damages, took into account an irrelevant factor, 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 the damage.”** 37. The deceased was a 55-year-old man with a wife and three children. No proof of income was tabled and the trial court’s usage of multiplier approach and basing the deceased basic income at **Kshs. 20,000/-** was totally unfounded. That notwithstanding, while there was error in usage, I find that the sum awarded in the multiplier approach is close to what courts have given while utilizing the global sum approach. Persuasively, in **Wilson v Mutegi (Suing as the legal** **representative and Administrator of the Estate of Joseph** **Mutegi Mwenga - Deceased) (Civil Appeal E140 of 2021)** **[2024] KEHC 455 (KLR) (23 January 2024) (Judgment)** the learned Judge stated as follows:- **“It is this court’s finding that the trial court did not err in opting to award a global figure of Kshs. 1,500,000 for loss of dependency for a deceased who, although aged 55 years, had a high school student and 2 wives who depended on him. It does appear to have been a modest award in the circumstances, but there being no cross-appeal by the respondent, the court will leave the matter there.”** 38. Having awarded **Kshs. 1,600,000/-** via the multiplicand approach and the mirroring circumstances herein as was in **Wilson v Muetegi** **(supra)** where the award **was globally approached at Kshs.** **1,500,000** I find no reason to upset the trial court’s award other than to caution that the use of the multiplier approach in the circumstances was not appropriate. 39. For special damages the court awarded an amount of **Kshs. 112,000.** The Court of Appeal, in **Premier Diary Limited vs. Amarjit Singh** **Sagoo & another [2013] eKLR** stated as follows on the issue: “**We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000/= which sum he saw as a reasonable and prudent amount to compensate the family for** **funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”** 40. Similarly in **Capital Fish Kenya limited vs. The Kenya Power &** **Lighting Company Limited [2016] eKLR** the Court of Appeal stated **“We do not discern from our reading of this decision a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved…. We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein** **did not fall in that class.”** 41. The record of appeal presents no receipts but a perusal of the trial court file reveals the following receipts were produced during the trial: Royal media Services Receipt Kshs. 5,700/-, Nation Media Group Services advertising space receipt of kshs. 18,000/-, Jamii Hospital Kshs. 6,100/-, PCEA Tumutumu Hospital Kshs. 3500/-, Mt. Kenya Snowline Photo Studio Kshs. 1450/-, Coffin-Hearse-Flowers-Cross Kshs. 40,000/-, NTSA receipt Kshs 500/-, receipt from Wagiita Theuri Advocate Kshs. 15,000/- TOTAL **Kshs. 90,250**. 42. Finally I uphold all the awards made by the trial court. I find no merit in this appeal. The same is hereby dismissed in its entirety. Costs to be met by the Appellant. **Dated in Nyeri this 11th day of August 2026.** **……………………….…** **MAUREEN A. ODERO** **JUDGE**