https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9541

Mose & another v Nyang’au & another (Civil Appeal E065 of 2024) [2026] KEHC 9541 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 9541 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E065 of 2024 RK Koech, J June 11, 2026 Between Joshua Onsongo Mose 1st Appellant Richard Momanyi 2nd Appellant and Cryspus Momanyi Nyang’Au 1st Respondent Richard Nyariki Nyang’Au 2nd Respondent (Being an appeal from the judgment and decree of the Honourable C. A. Ocharo, Senior Principal Magistrate, delivered on 7th March 2024) Judgment 1.The 1st and 2nd appellants were respectively the 2nd and 3rd defendants in Kisii Chief Magistrate’s Court Civil Case No. 201 of 2018. The plaintiffs in the case were Cryspus Momanyi Nyang’au and James Nyabaro Nyaega suing as the administrators of the estate of Richard Nyariki Nyang’au (deceased) who are respectively the 1st and 2nd respondents in the present appeal. 2.The cause of action between the parties arose because of a road traffic accident that occurred on 27th July, 2017 involving the deceased who was riding motorcycle Registration No. KMDP 316 A and motor vehicles Registration Nos. KZP 418 and KCD 290 D said to be registered in the names of the 1st defendant and 1st appellant respectively with the 2nd appellant said to have been driving the 1st appellant’s motor vehicle at the material time of the accident. 3.In a judgment delivered on 7th March, 2024 the learned trial magistrate found the 1st defendant and 1st appellant vicariously liable for the accident that claimed the life of the deceased who is shown to have died instantly at the scene. The trial court awarded the estate of the deceased damages amounting to Kenya shillings 1,441,680:00 (in words Kenya shillings one million, four hundred and forty one thousand, six hundred and eighty only) comprising damages for pain and suffering, loss of expectation of life, loss of dependency and special damages. The damages were apportioned between the 1st defendant and the 1st appellant at a ratio of 50:50 % in favour of the plaintiffs. The judgment is silent on whether or not the 2nd appellant was to bear any portion of the damages, it is apparent that his principal vicariously shouldered the damages that he would have borne. 4.In a memorandum of appeal dated 5th April, 2024 the appellants are seeking orders to have the judgment of the trial court and the ensuing decree set aside and the plaintiff’s suit dismissed with costs to the appellants both on the appeal and the suit before the subordinate court. Alternatively, the appellants are seeking orders that this appellate court re-evaluates the evidence tendered before the trial court on both liability and quantum of damages and make its own decision on liability of the parties and award on damages. 5.The grounds in support of the appeal are as summarized as hereunder;1.That the trial magistrate erred in law and fact by apportioning 50% liability on the part of the appellants despite evidence showing that the 1st defendant was wholly to blame for the accident that claimed the life of the deceased and that the learned trial magistrate disregarded the evidence adduced for the appellants,2.That the learned trial magistrate erred in law and fact by failing to use the minimum wage in assessing loss of dependency despite lack of evidence showing that the deceased possessed any skills or proof of earnings, and3.That the learned trial magistrate erred in law and fact by failing to consider the authorities cited by the appellants on liability, loss of dependency and award of damages and that the trial court failed to consider the submissions tendered by the appellants on both liability and damages. 6.The parties agreed to address the appeal by way of written submissions with the appellants filing submissions dated 18th December, 2024 and the respondents filing submissions dated 24th March, 2025. The appellants have adopted their submissions before the subordinate court as found at pages 57 to 64 of the record of appeal. The appellants submit that the 1st defendant’s motor vehicle Reg. No. KZP 419 was the first to hit the deceased before hitting the appellants’ motor vehicle Reg. No. KCD 290 D. The appellants assert that KCD 290 D was driving in the same lane with the deceased and the appellants cannot be faulted for causing the accident. 7.Citing the case of Ricarda Njoki Wahome v AG & 2 Others (2015) eKLR, the appellants denied any contribution to the accident as found by the trial court. In the cited case, it was held, “For negligence to arise there must have been a breach of duty and the breach of duty must have been the direct or proximate cause of the loss, injury or damage. By proximate is meant a cause, which is a natural and continuous chain, unbroken by any intervening event, produces injury and without which injury would not have occurred.” 8.The appellants also cited the case of De Frias v Rodney (1998) BDA LR 15 as cited in Mohamed Kassim & 2 Others v Salim Fumo Bwanamkuu (2019) eKLR where it was held;Contributory negligence required the foreseeability of harm to oneself. A person is guilty of contributory negligence if she ought reasonably to have foreseen that if she did not act as a reasonable prudent person she might be hush and in reckoning must take into account the possibility of others being careless. All that is required here is that the plaintiff should have failed to take reasonable care for her own safety.” 9.The appellants submit that the driver of KZP 418 was wholly to blame for causing the accident that claimed the life of the deceased. On quantum of damages, the appellants submit that the trial court acted on the wrong principles while assessing damages for loss of dependency. The appellants faulted the trial court for adopting Ksh. 15,646 as the estimated monthly income of the deceased instead of ksh. 5,436.30 representing the minimum wage at the time of the accident. However, the appellants have not challenged the other headings of damages save for the damages for loss of dependency. 10.The respondents submit that the appellants’ motor vehicle was overtaking when it collided with the 1st defendant’s motor vehicle and that the appellants’ driver failed to observe lane discipline. The respondents further submitted that the damages awarded by the trial court were not disproportionately high to warrant interference by the appellate court. The respondents have cited the case of Mariga v Musila (1984) KLR 251. In the cited case, it was held;The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.” 11.The respondents are therefore urging this court not to disturb the findings of the trial court. Two issues present themselves for determination by this court;1.Whether the trial court properly apportioned liability between the appellants and the 1st defendant for the accident that occurred on 27th July, 2017, and2.Whether the trial court properly assessed damages payable for loss of dependency following the death of the deceased. 12.As regards liability for the accident, the trial court found that both the drivers of motor vehicle Reg. No. KCD 290 D and KZP 418 were to blame for the accident. The relevant paragraph in the impugned judgments reads as follows; 13.The facts as stated by PW2 and DW2 clearly shows that both KCD 290 D and KZP 418 contributed to the accident as there is evidence that the later was driving at an excessive speed in the circumstances while the former was overtaking under circumstances that the driver was not supposed to.” The court found both drivers to blame for the accident that claimed the life of the deceased. 14.The 1st respondent testified during the hearing of the suit, he told the court that he witnessed the accident that claimed the life of the deceased who was his brother. According to the 1st respondent, KCD 290 D was overtaking other vehicles when it encountered an oncoming vehicle from the opposite direction. As it tried to return to its lane, it hit the motorcycle that the deceased was riding. I do note that, on a balance of probabilities, it was proved that the deceased died due to the negligence of the appellants’ driver and the driver who had the control of the 1st defendant’s vehicle. PW2 who is a traffic police officer told the court that the appellants’ driver was charged with a traffic offence even though the outcome of the case was not stated. He produced a police abstract on the accident (see plaintiff exhibit 2). The trial court was therefore not at fault to apportion liability at the ration of 50:50 % as between the 1st appellant and the 1st defendant during the trial. 15.On the issue of quantum of damages, the trial court found that there was no evidence that the deceased was earning Ksh. 40,000/= per month as a motorcycle rider transporting pillion passengers and goods. 16.The court categorized the deceased as a mechanist, which comprise motor vehicle repairers, laundry operators and light tractor drivers as per ministry of labour classifications. The trial court sought guidance from the decision in Petronilla Muli v Richard Muindi Savi & Another (2021) eKLR in which the court observed that motorcycle riders popularly known as Boda Bodas played a crucial roll in the economy but lamented that the ministry of labour was yet to appreciate their contribution and categorize them as labourers in their appropriate class. 17.The record shows that the trial court used the Regulation of Wages (General) (Amendment) Order of 2017 to get a multiplicand of Ksh. 15,646 payable to mechanists. 18.It is trite law, as severally held in many decisions that a first appellate court is like a trail 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.” 19.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. With a bird’s eye view as regards witness testimonies, the trial court is best suited to assess the demeanor of witnesses and what weight to assign to their testimonies. Where the record of proceedings as regards evidence taken, is succinct, the appellate court should re-evaluate the findings of fact and law and draw its own conclusions while warning itself that it was not availed of the benefits enjoyed by the trial court as pointed out above. 20.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.” 21.An evaluation of the evidence shows that the trial court appreciated the entire evidence, the submissions of the parties and the applicable law in determining liability and assessment of damages payable to the estate of the deceased. The death certificate serial No. 0716445 shows that the deceased died at the age of 40 years, by adopting a multiplier of ten (10) years the trial court had taken into account vagaries and uncertainties of life. The decision in Petronilla case (supra) was binding on the court as regards the multiplicand applicable to motorcycle riders during the material time of the accident. 22.None of the grounds advanced by the appellants succeeds in persuading this court to interfere with the findings of the trial court. For the above reasons I do dismiss the appeal by the appellants with costs to the respondents.It is hereby ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026HON. RICHARD K. KOECHJUDGEIn the presence of:Ms. Nyasani appearing virtually for the AppellantsMr. Ombui Mogire appearing virtually for the RespondentsMercy Miyare,Court Assistant, Appearing virtually from Kisii High CourtRight of appeal within 30 days