https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13126

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E062 OF 2025** **DK RONO, J** **23 JUNE 2026** **BETWEEN** **JACOB NGUTIKU M’MKIRA………………………………………….1st APPELLANT** **DENNIS MUKIIRA KABURIA…………………………………………2nd APPELLANT** **AND** **GITOBU MÁRITHI *(Suing as Father and Next friend of SAMSON* MUTHIORA-DECEASED) ……………………………………………………………RESPONDENT** *(Being an appeal from the judgement and decree of Magistrate’s Court at Nkubu (Hon. E.O Wambo, SPM) delivered on 29 February 2024 in MCC No. E006 of 2020)* **JUDGEMENT** **Background** 1. The genesis of this Appeal is a decision rendered by the lower court in MCC No. E006 of 2020 delivered on 29 February 2024 in favour of the Respondent Gitobu Márithi *(Suing as father and next friend of Samson* Muthiora-Deceased) against Jacob Ngutiku M’mkira and Dennis Mukiira Kaburia (1st and 2nd Appellant) respectively. 2. The dispute between the parties in the lower court arose from a road traffic accident where the Respondent herein sued the 1st and 2nd Appellant’s where it was stated that the 1st Appellant was the owner of motor vehicle registration number KBB 543 M lorry which caused the accident while the 2nd Appellant was the driver of the said lorry under the instructions of the 1st Appellant, the respondent pleaded that the 1st Appellant was vicariously liable for the torts committed by his agent the 2nd Appellant. 3. The Respondent blamed the 2nd Appellant that he drove the motor vehicle registration number KBB 543M on 16September 2017 so carelessly and negligently and that the said lorry hit a motor cycle where the deceased was a pillion passenger who died instantly. 4. The Respondent set out the particulars of negligence attributed to the appellant’s and also stated that the deceased was a young man in his prime at 20 years of age, a graduate teacher earning about Kshs 40 000 per month and was married with one child. 5. The Respondent set out a list of dependants who depended on the deceased stating that the deceased engaged in other income generating activities such as farming that earned the deceased about Kshs 35 000 per month. 6. The Respondent prayed for judgement against the 1st and 2nd Appellant’s for damages under Law Reform Act and Fatal Accidents Act, special damages, costs and interest of the suit. 7. The 1st and 2nd Appellants on the other hand filed a joint statement of defence on 24 February 2022 and denied all the assertions made by the Respondent in his plant and attributed the occurrence of the accident to the contribution by the deceased and set out the particulars of the negligence on the part of the deceased. 8. The Appellants further vehemently denied the assertion that the deceased was 20 years old and that he was a graduate teacher earning about Kshs 40 000 and was married, they further denied the particulars of dependants listed in the plaint. 9. The dispute proceeded before the trial court with the court rendering a judgement in favour of the Respondent against the 1st and 2nd Appellants. Liability at the ratio of 95:5 percent in favour of the plaintiff, general damages for pain and suffering at Kshs 100 000, Loss of expectation of life at Kshs 200 000, loss of dependency at Kshs 3 000 000, special damages at Kshs 40 000 plus costs and interest of the suit. 10. The Appellants were aggrieved by the judgement rendered by the trial court filed a memorandum of appeal dated 3 March 2025. 11. In its memorandum of appeal, the Appellants stated that: 12. The learned magistrate erred in law and in fact in finding the Appellants 95 percent liable which finding is against the weight of the evidence on record; 13. The learned magistrate erred in law and in fact in failing to pay regard to the Appellants submissions and authorities that were guiding on liability in this case; 14. The learned magistrate erred in law and fact by awarding Kshs 100 000 for pain and suffering contrary to the evidence on record; 15. That the learned magistrate erred in fact and law by awarding Kshs 200 000 for loss of expectation of life that was inordinately high in the circumstances; 16. That the learned magistrate erred in fact and law by awarding Kshs 40 550 as special damages which were not specifically proved as required by law.; 17. The learned trial magistrate erred in fact and law in assessing and awarding Kshs 3 000 000 for loss of dependency which was inordinately too high hence an erroneous estimate of damages for loss of dependency; 18. That the learned trial magistrate erred in law and in fact in finding that the respondent had produced limited letters of administration despite there being no limited letters of administration on record. 19. The Appellant prayed that: 20. The appeal be allowed and the judgement of the trial court dated 29/02/2024 be set aside; 21. The court to re-evaluate the evidence and makes its own findings with regard to both liability and quantum; 22. The Appellants be awarded costs of the appeal. 23. Before delving into the merits of the appeal, it is necessary to restate the mandate of this court as a first appellate court. In the celebrated case of *Selle v Associated Motor Boat Co. Ltd* **[**1968] E.A. 123 the Court of Appeal held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 24. This principle was reiterated in *Peters v Sunday Post Ltd* [1958] E.A. 424 and more recently in *William Diamonds Ltd v Brown* [1970] E.A. 1 where the Court of Appeal emphasized that an appellate court is not bound by the trial court's findings if they are unsupported by the evidence or based on a misapprehension thereof. The court must therefore independently interrogate the evidence on liability, dependency, earnings, and the quantum awarded. 25. Having considered the memorandum of appeal, the record and the submissions, the following issues arise: 26. Whether letters of administration ad-litem were produced by the Respondent 27. Whether the Respondent proved its case to the required standard 28. Whether the award of damages made by the trial court were excessive **Whether letters of administration ad-litem were produced by the Respondent** 1. The Appellant in its grounds of appeal advert that the Appellant did not produce grant of letters of administration ad litem and that in the alternative the same are not on record. The Court of Appeal has consistently held that a suit brought on behalf of a deceased's estate without a grant is incompetent. As was discussed in *Trouistik Union International & another v Mbeyu & another* (Civil Appeal 145 of 1990) [1993] KECA 89 (KLR) (19 October 1993). 2. This court has perused the lower court record and has indeed satisfied itself that Limited grant of letters of administration ad litem were granted to the respondent herein in Misc. Succ. Cause No. E5 of 2020 which letters were issued to Gitobu Márithi limited to filing suit which letters were issued on 15 September 2020. The trial court in its judgement also alluded to the fact that the same were produced in evidence by the Respondent, to this end I find and hold that the Respondent had locus standi to bring the claim for and behalf of the estate of Samson Muthiora. **Whether the Respondent proved its case to the required standard** 1. The evidence on record establishes that the deceased was a pillion passenger aboard a motorcycle travelling along the Meru–Chuka Road when it was struck by motor vehicle KBB 543M. PW2 and PW3 were eyewitnesses. Their testimony was materially consistent. Both witnesses stated that the lorry was travelling at a high speed, failed to hoot, failed to brake and veered towards the extreme left side of the road where it struck the motorcycle. Their evidence was not shaken in cross-examination. 2. PW5 produced evidence showing that the 2nd Appellant had been charged and convicted in Traffic Case No. 148 of 2017 for causing death by dangerous driving. The evidentiary value of such a conviction cannot be understated. Section 47A of the Evidence Act provides that a final judgment of a competent criminal court declaring a person guilty of an offence shall be taken as conclusive evidence that the person committed the offence. 3. The Court of Appeal in *Robinson v Oluoch*[1971] EA 376. held that a criminal conviction may properly be relied upon in subsequent civil proceedings as evidence of negligence. Similarly, in *Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited*[2015] KECA 318 (KLR), the Court of Appeal observed that a conviction arising from a traffic offence constitutes powerful evidence of negligence unless rebutted. 4. The Appellants called no evidence capable of displacing either the eyewitness testimony or the legal effect of the conviction. The finding that the 2nd Appellant was substantially responsible for the accident was therefore well grounded in the evidence. 5. To this end this courts based on the evidence tendered and re-evaluated finds and holds that the trial court did not fall into error in holding that the Appellants were liable for the occurrence of the accident based on the evidence tendered, this court will therefore not interfere with the finding of the trial court. 6. The next question that this court having found that the appellants were liable is whether the deceased person contributed to the occurrence of the accident and if he did to what extent did he contribute to the same the trial court having attributed only 5 percent liability to the deceased on account of failure to wear protective gear. 7. Having reviewed the evidence and re-evaluated the finding by the trial court it is apparent that the evidence disclosed that the motorcycle was allegedly unregistered and that the deceased was not wearing a helmet or reflective jacket. 8. The law is settled that a passenger is not ordinarily responsible for the manner in which a vehicle is driven. In *Hussein Omar Farah v Lento Agencies* [2006] KECA 388 (KLR)the Court of Appeal stated that where negligence is established against two drivers and it is impossible to determine their respective degrees of blameworthiness, liability should be apportioned equally. The decision also recognized that innocent passengers generally bear no responsibility for the collision itself. 9. Likewise, in *Timsales v Wilson Libuyua* [2008] eKLR the Court of Appeal observed that a passenger cannot ordinarily be blamed for the negligent acts of a driver over whom he has no control. 10. The present case, however, is distinguishable. The issue is not that the deceased caused the collision; rather, the issue is whether his failure to wear protective gear materially contributed to the severity of the injuries sustained. 11. Even so, the court must distinguish between contributing to the occurrence of an accident and contributing to the extent of injuries suffered. There was no evidence that the absence of a helmet caused the collision. The omission merely increased vulnerability to injury. 12. Having looked at the evidence in totality this court is of the view that the trial court's apportionment of 10 percent contributory negligence was erroneous this court is not persuaded that the attribution of negligence to the deceased was justified in law and fact the trial court acted on wrong principles in fixing contribution at 10 percent. 13. The Respondent did not cross appeal the finding on contribution of 10 percent as apportioned by the trial court. Despite the fact there was no basis for such apportionment this court will not disturb the apportionment on liability the respondent having not appealed against the finding. 14. In the final analysis this court shall not disturb the finding on liability as reached by the trial being 90:10 percent in favour of the Respondent. **Whether the award of damages made by the trial court were excessive** 1. In*Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2)*[1985] KECA 137 (KLR) it was stated that 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 of Eastern Africa to be that it must be satisfied that either that the Judge, *in assessing the 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. (emphasis mine)* **Pain and suffering** 1. The Appellants in the memorandum of appeal particularly in ground 3 were of the view that the trial courts award of Kshs 100 000 for pain and suffering was contrary to the evidence on record. The respondent’s witness before trial court on PW-3 Faith Makena stated ‘*the pillion passenger Samson Mathiora was badly injured and was taken to hospital where he succumbed’*, her statement is in consonance with the evidence tendered by PW2 Joses Mbae. The is no evidence on record as to the period between the deceased sustaining the accident and when he succumbed. The death certificate is faint and the court cannot discern from it the time that the deceased passed away, the police abstract is also not clear. 2. The trial court in the judgement indicated that the deceased died after 4 hours of the accident, this finding is not supported by evidence. 3. In regard to damages for pain and suffering and loss of expectation of life, the court in *Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (suing as the legal administrators of the estate of the late Robert Mwangi)* [2019] KEHC 9014 (KLR) stated as follows: *‘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. 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.’* 1. Due to the fact that there was no direct evidence of the fact that the deceased suffered a prolonged period of pain for four hours before he passed away, I find that the trial court fell into error in awarding a sum of Kshs 100 000 for pain and suffering which amount in my view is inordinately high based on the circumstances. I therefore set aside the award of Kshs 100 000 for pain and suffering and substitute with an award of Kshs 50 000. **Loss of expectation of life** 1. With respect to the award for loss of expectation of life the trial court awarded a sum of Kshs 200 000 which the Appellants view to have been inordinately very high. In the case of *Moses Akumba & Another –Vs- Hellen Karisa Thoya*(2017) Eklr, Chitembwe J held that an award of Ksh 200 000 for loss of expectation of life for a deceased who was a fisherman was not inordinately high. 2. Further, In the cases of *Patrick Kariuki Muiruri & 3 Others V Attorney General*[2018] eKLR**,** Sergon J made an award of Ksh 200 000 under this heading. In *Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samwel Kiprotich Tanui (Deceased) –V- Mogogosiek Tea Factory Co. Ltd & Another* [2018] eKLR an award of Ksh 200 000 was made. There are therefore some High Court authorities to support the award made by the learned trial magistrate. It has not been shown that the trial court used the wrong principles in making the award for loss of expectation of life. That this court may have made a different award if it had tried the matter itself is not a ground for setting aside the award. It is therefore my considered view that the award of Ksh 200 000 for loss of expectation of life was not excessive. **Lost Years** 1. The evidence of PW1 established that the deceased was a final-year student at the University of Nairobi and that he was survived by a young daughter who depended on him. PW1 further testified that the deceased also assisted his parents. The Appellants challenged the finding on dependency; however, dependency is a question of fact to be determined from the evidence placed before the court. In*Benedeta Wanjiku Kimani v Changwon Cheboi*[2013] KEHC 1103 (KLR), the High Court held that dependency need not be proved by documentary evidence alone and may be established through oral testimony. Similarly, in *Board of Governors of Kangubiri Girls High School v Jane Wanjiku Muriithi & another*[2014] KEELC 377 (KLR**)**, the court recognized that parents and children may qualify as dependants notwithstanding the absence of documentary proof of financial remittances. The evidence tendered by PW1 regarding the deceased’s support of his daughter and assistance to his parents was not seriously controverted. I am therefore satisfied that dependency was sufficiently proved. 2. The principal complaint by the Appellants relates to the trial court’s award of Kshs 3 000 000 under the head of loss of dependency. They contend that the award was excessive and unsupported by evidence. It is therefore necessary to consider whether the learned trial magistrate adopted the proper approach in assessing damages. 3. The law is now settled that the multiplier approach is merely a method of assessment and not a rule of law. In *Mwanzia VS Ngalali Mutua & Kenya Bus Services (Msa) Ltd & Another* as quoted in *Albert Odowa V Gichuru Gicheny* Nakuru HCCA No. 15/2003 (2007) eKLR**,** Ringera J observed that: *‘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. In the present case, the deceased was not in permanent employment. He was a university student in his final semester and therefore on the threshold of entering the labour market. Although there was evidence that he undertook part-time teaching and other income-generating activities and earned approximately Kshs 20 000 per month, no documentary evidence was produced to establish his actual earnings. In those circumstances, the learned trial magistrate correctly appreciated that any attempt to apply the multiplier approach would inevitably involve a substantial degree of speculation. 2. The trial court therefore adopted the global approach and awarded Kshs 3 000 000 for loss of dependency. The issue is whether that award was so inordinately high as to warrant interference by this court. An appellate court will only interfere with an award of damages where it is shown that the trial court took into account an irrelevant factor, failed to consider a relevant factor, or that the award is so excessive or so low as to represent an entirely erroneous estimate of the loss suffered. 3. I have considered the circumstances of the deceased. He was a young man pursuing university education, was in his final year of study, had demonstrable prospects of joining the labour market in the near future, and had a young child who depended upon him. These factors distinguish his case from those involving younger students whose future prospects remain largely uncertain. While future earning capacity can never be assessed with mathematical precision, the court is entitled to take into account the deceased’s educational attainment, prospects in life, and the existence of actual dependants. 4. Having re-evaluated the evidence and the applicable principles of law, I am not persuaded that the learned trial magistrate misdirected himself in adopting the global approach. Neither am I satisfied that the award of Kshs 3 000 000 was so inordinately high as to represent an erroneous estimate of the loss suffered by the dependants. On the contrary, the award was reasonably grounded on the evidence and the circumstances of the case. I therefore find no basis upon which this court can interfere with the award, and the sum of Kshs 3 000 000 for loss of dependency is hereby upheld. **Special damages** 1. The Appellants in paragraph 5 of the memorandum of appeal challenged the award of Kshs 40 550 as special damages by the trial court. I have perused the pleadings in the lower court and I am satisfied that special damages were specifically pleaded to wit; burial expenses at Kshs 40 000 and search certificate at Kshs 500. I have been able to confirm from the record of appeal at page 50 that Kshs 40 000 was paid to Genesis funeral services. I therefore find that the special damages were specifically pleaded and proven and therefore the award by the trial court was proper and the same will not be disturbed. **DISPOSITION** 1. The upshot is that the appeal partially succeeds. The trial court’s judgment on liability is upheld in the ratio of 90 percent:10 percent in favour of the Respondent. In the end, the final award shall be as follows: - **Liability** Liability is apportioned in the ratio of 90 percent:10 percent in favour of the Respondent **Damages** 1. Pain and Suffering Kshs 50 000; 2. Loss of Expectation of life Kshs 200 000; 3. Lost years Kshs. 3 000 000. 4. **Total Kshs 3 250 000** Less 10 percent Kshs 325 000 Kshs 2 925 000 Add Special Damages Kshs 40 550 **Total Award - Kshs 2 965 550** 1. For avoidance of doubt, the special damages shall attract interest from the date of filing the suit. General damages shall attract interest at court rates from the date of Judgment in the lower court. Costs of the lower court shall be borne by the Appellant. There shall be no order as to costs in respect to the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS 23rd DAY OF JUNE 2026. DK RONO JUDGE