Mogo & another v Onchari & another (Suing as Legal Representatives off the Estate of Mellen Bwari Ogweche - Deceased) (Civil Appeal E216 of 2024) [2026] KEHC 9533 (KLR) (18 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO. E216 OF 2024** SAMWEL NJUGUNA MOGO...............................................1ST APPELLANT FAVORITE VENTURE LTD……………………………………2ND APPELLANT VERSUS MARANGETI WYCLIFFE ONCHARI & GEOFFREY SIRO MARANGETI (suing as legal representatives off the estate of MELLEN BWARI OGWECHE (deceased) ………………………………………………………RESPONDENTS ***(Being an appeal from the judgment and decree of the Honourable Stella Abuya, Chief Magistrate, delivered on 14th August, 2024).*** **JUDGMENT** The 1st and 2nd appellants were respectively the 1st and 2nd defendants in Kisii Chief Magistrate’s Court Civil Case No. E024 of 2024. The plaintiffs in the case were Marangeti Wycliffe Onchari and Geoffrey Siro Marangeti suing as the administrators of the estate of Mellen Bwari Ogweche (deceased) who are the respondents in the present appeal. The cause of action between the parties arose because of a road traffic accident that occurred on 22nd August, 2023 involving the deceased who was a pedestrian and motor vehicle Registration Nos. KAY 631 H/ZC6210, which allegedly knocked the deceased who sustained fatal injuries. The vehicle is said to have been under the control of the appellants’ servant or agent. In a judgment delivered on 14th August, 2024 the learned trial magistrate found the appellants vicariously liable for the accident that claimed the life of the deceased who was found to have been knocked while off the road. The trial court awarded the estate of the deceased damages amounting to Kenya shillings 1,566,150:00 (in words Kenya shillings one million, five hundred and sixty-six thousand, one hundred and fifty only) comprising damages for pain and suffering, loss of expectation of life and loss of dependency. In a memorandum of appeal dated 13th December, 2024 the appellants are seeking orders to have the judgment of the trial court and the ensuing decree set aside or quashed with costs to the appellants. Alternatively, the appellants are seeking orders that this appellate court re-assesses the quantum of damages payable under different headings and vary the same in favour of the appellants. The grounds in support of the appeal are as summarized hereunder; 1. That the learned trial magistrate erred in law and fact by failing to carefully evaluate the evidence tendered and the submissions filed by the appellants and applying the multiplier approach in calculating damages to be awarded to the respondents which was not appropriate in the circumstances, and 2. That the learned trial magistrate erred in law and fact by failing to seek guidance from recent precedents in similar cases thereby awarding manifestly excessive damages to the respondent against the appellants, a decision based on irrelevant matters and not on evidence and facts on the record. The parties agreed to address the appeal by way of written submissions with the appellants filing submissions dated 19th February, 2026 and the respondents filing submissions dated 23th February, 2026. The appellants are challenging the trial court’s findings on both liability and assessment of damages. The appellants submit that the police officer called by the respondents was not the investigating officer and that he did not visit the scene of the accident. They fault the officer for his failure to produce the sketch plan of the scene of accident. Though conceding that the accident did occur, the appellants dispute the manner in which the accident occurred as alleged by the respondents. The appellants dispute the allegation that the deceased was hit while walking on the roadside saying he was a pillion passenger aboard a motorcycle. The appellants submit that the respondents failed to discharge their evidentiary burden of proof and have cited the decision in ***Lucy Muthoni v*** ***Kenneth Muchange & Another***, Nairobi HCCC No. 858 of 1988 and s. 107(1) & (2) of the Evidence Act, Cap. 80 Laws of Kenya. It is the submission of the appellants that the accident was caused by a rider of motorcycle Reg. No. KMEB 411 T who suddenly crossed the road and that there was no negligence on the part of the appellants. He faults the deceased for failing to control the manner in which the said motorcycle was moving. They have faulted the respondents for failing to call an eyewitness to the accident. The appellants have cited the case of ***Vitalis Juma Odera v*** ***Sinohydro Co. Ltd*** (2017) eKLR saying the respondents were duty bound to show causal link between the appellants’ negligence and the injury suffered by the deceased. The appellants pointed out that the cause of the accident was pending under police investigations and the appellants’ driver could not be faulted. The appellants are urging the court to apportion liability between the appellants and the respondents at 50:50 % basis. The appellants submit that the deceased died instantly and his estate should be awarded Kshs. 10,000/= for pain and suffering. They have cited the case of ***Moses Koome*** ***Mithika & Another v Doreen Gatwiri & Another*** (2020) eKLR in support of their proposition. The appellants submit that the respondents failed to proof dependency by production of the certificates of birth of the dependents. They are urging this court to adopt a dependency ratio of a third. However, the appellants do not dispute the age of the deceased at the time of his demise, given as 57 years and his monthly earnings of Kshs. 80,000/=. The appellants submit that loss of dependency be calculated using the formula Kshs. 80,000 x3x12x1/3 which translates to Kshs. 960,000/=. The appellants submit that the award for loss of life expectancy be deducted from the award for loss of dependency to arrive at a total of Kshs. 860,000/= under both headings. The appellants submit that there was no proof of funeral expenses and that the respondents only proved Kshs. 100,550/= in special damages that should be awarded. The appellants conclude by urging this court to award the appellants a total of Kshs. 970,000/= in cumulative damages subject to 50:50 % apportionment of liability. The respondents submit that the appellants want the court to adopt the global sum approach for award of damages for loss of dependency as opposed to the multiplier-multiplicand approach used by the trial court. The respondents submit that the trial court was not at fault for using the minimum wage of Kshs. 7241 as the multiplicand, a multiplier of 15 years and a dependency ratio of two thirds. The respondents submit that even if the global sum approach was used, the award of Kshs. 869,920/= for loss of dependency was reasonable. The respondents have cited the case of ***Moses Maina Waweru v Esther Wanjiru Githae*** (suing as the personal representative of the estate of David Githae Kiririo (deceased) (2020) eKLR and the case of ***China Civil Engineering & Construction Co. Ltd v*** ***Mwanyoha Kazungu Mweni & Another*** (suing as representatives of Ndegwa Mzungu Mweni (deceased) (2019) eKLR. In the cited cases sums ranging from Kshs. 700,000/= to Kshs. 800,000/= were awarded using the global sum approach. It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of ***Selle & Another v Associated Motor Boat Co. Ltd*** (1968) EA 123, it was held, and I quote; ***“Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.”*** Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. The above position was reiterated in the case of ***Kemfro Africa Ltd. t/a Meru*** ***Express Services v Lubia & Another*** (1982-88) 1 KLR 727 where it was held; ***“The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.”*** A reading of the appellants’ submissions shows that they are erroneous in most aspects. The appellants talk of the deceased who was aged 57 years at the time of his demise and working as a Bishop for a church. The appellants give his earnings as Kshs. 80,000/= per month. However, the deceased in this case was a woman who died at the age of 60 years while allegedly a businessperson and a farmer. It is apparent that the appellants copy pasted submissions, which are not relevant to this case. A look at the proceedings shows that both parties urged the trial court to use the global sum approach, with the respondents proposing Kshs. 1,000,000/= while the appellants proposed Kshs. 600,000/= for loss of dependency. Two issues present themselves for determination by this court; 1. ***Whether the trial court properly apportioned liability between the appellants and the respondents for the accident that occurred on 22nd August, 2023, and*** 2. ***Whether the trial court properly assessed damages payable to the estate of the deceased following the death of the deceased.*** As regards liability for the accident, the trial court found that the driver of motor vehicle Reg. No. KAY 631 H/ZC 6210 was to blame for the accident that occurred on 22nd August, 2023 involving the deceased who was hit by the said vehicle and suffered very serious injuries that later claimed her life. The appellants are suggesting that liability be apportioned at the ratio of 50:50 percentage between the appellants and the estate of the deceased. The evidence that the trial court relied on in finding the appellants wholly liable are the testimonies of PW2 and PW3. PW2 was an eyewitness who told the court that the appellants’ driver hit a road bump in high speed and veered off the road where his vehicle hit the deceased who was a pedestrian standing off the road. The counsel for the appellants did not challenge the testimony of PW2; PW3 who produced the police abstract on the accident rightly blamed the appellants’ driver for causing the accident. The appellants in their submissions seem to suggest that the appellants called their driver as a witness; however, the record of the lower court shows that the appellants closed their case without calling any single witness. As such, there is no basis for disturbing the finding on liability, which was rightly apportioned wholly on the appellants. The plaint shows that the plaintiff pleaded special damages totaling Kshs. 347,230/= comprising treatment and funeral expenses, legal fees paid to obtain a grant of representation and payment made to obtain motor vehicle records. The record shows that the respondents produced a bundle of receipts totaling Kshs. 347,230/= in special damages, which was found by the trial court as pleaded and proved. The trial court awarded the respondents kshs. 200,000/= and Kshs. 150,000/= for pain and suffering and loss of life expectancy respectively. Death certificate No. 1726086 issued on 2nd October, 2023 shows that the deceased died on 5th September, 2023. This was approximately two (2) weeks after the accident of 22nd August, 2023. The appellants suggest that the deceased died instantly, which is not the case. As per the testimony of PW3, the two weeks were spent at the intensive Care Unit. The conventional awards under both headings of damages is usually Kshs. 100,000/= per heading. I will disturb the awards under both headings to Kshs. 100,000/=. The death certificate shows that the deceased died at the age of 60 years, she had already attained the retirement age. This could explain the unanimous suggestion by the parties that the global sum approach be used in assessing damages for loss of dependency. The trial court was obviously in error in treating the deceased as a casual labourer earning a minimum wage of kshs. 7,241/= per month. The trial court was also in error in adopting a multiplier of 15 years, which would have taken the deceased to the age of 75 years as a casual labourer. In the prevailing circumstances, the global sum approach ought to have been used. For the above reason I do set aside the assessment of damages for loss of dependency and do substitute thereof with a global sum of kshs. 600,000/= for loss of dependency. In summary, I do re-assess damages as follows; 1. Special damages Kshs. 347,230/= 2. Pain and suffering Kshs. 100,000/= 3. Loss of life expectancy Kshs. 100,000/= 4. Loss of dependency Kshs. 600,000/= Total Kshs. 1,147,230/= The awarded damages to be shared equally by the listed dependents to the estate of the deceased. The appeal succeeds to the above extent. Each party shall bear its costs on the appeal. ***IT IS HEREBY ORDERED.*** **Judgment read, dated, signed and delivered virtually this 18th day of June, 2026** **HON. RICHARD K. KOECH** **JUDGE** **In the presence of:** * Ms. Anyango appearing virtually for the Appellants * Mr. Ogweno appearing virtually for the Respondents * Mr. Brian Onkundi, Court Assistant, appearing virtually. Right of appeal within 30 days