https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11985

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E009 OF 2025** PETER SIMIYU MUNG’AU (Suing on behalf Of the Estraste of Moses Nyongesa Simiyu (DCD)…………………..APPELLANT VERSUS JULIUS KINYAMASYO MWENDWA………………………….RESPONDENT **(Being an appeal from the judgement and decree of the Honourable H.Getenga, (R.M) delivered on the 17th December, 2024 in Bungoma CMCC.E361 of 2023)** **BETWEEN** PETER SIMIYU MUNG’AU (Suing on behalf Of the Estate of Moses Nyongesa Simiyu (DCD)…………………….PLAINTIFF VERSUS JULIUS KINYAMASYO MWENDWA…………………………DEFENDANT **JUDGEMENT** 1. The brief background of this appeal is that Julius Kinyamaswo Mwendwa was sued vide a plaint dated 24th July 2023. The facts before the trial court were that on or about **18th February 2020** the deceased was lawfully riding his bicycle along Bungoma-Malaba road when at Koteko area motor vehicle registration number **KCU 534Q** being negligently driven and or managed veered of the road and hit the deceased occasioning him fatal injuries. 2. The Appellant (then plaintiff) claimed that at the material time the Respondent (then defendant) was the registered owner of Motor-vehicle Registration number **KCU 534Q** and was in physical possession and control of the vehicle at the time of the accident. 3. The particulars of the negligence were as particularized under Paragraph 5 of the plaint broadly that the vehicle was maintained in a state of disrepair, was unroadworthy and with defective breaks, that a reckless driver was employed who drove at an excessive speed, recklessly and who failed to slow down, brake, stop, hoot, steer or in any manner maneuver the said motor vehicle to avoid the accident. 4. The particulars of the injuries as pleaded were that the deceased suffered fatal injuries and that the estate of the deceased had suffered great loss and damage as a result of the Respondent’s negligence. The claim was for both general and special damages under the both the **Fatal Accidents Act** and the **Law Reform Act.** There were listed 4 dependents to the estate and special damages claimed at **Ksh.245, 000/=**. 5. The Respondent filed a notice of preliminary objection dated 4th October 2023 on the ground that the suit was statutory barred by **Section 4(2) of the Limitation of Actions Act, Cap 22 of the Laws of Kenya,** as the suit being based on a tortuous action was brought after the expiry of 3 years from the date which the cause of action accrued on 18th February 2020. 6. The Preliminary Objection was however abandoned on 6th February 2024 whereupon counsel informed the trial court that they had since learnt that a miscellaneous application had been filed and leave granted to file suit out of time. 7. Subsequently, the Respondent filed a statement of Defence dated **26th February, 2024** where he admitted being the registered owner of the Motor vehicle registration No. **KCU 534Q,** he however denied the occurrence of any accident involving the said motor vehicle and the deceased Moses Simiyu Nyongesa on **18-02-2020** at Koteko area along Bungoma Malaba road or that the accident took place in the fashion and manner described in the plaint. 8. The Respondent also maintained that if any accident took place or at all then the same was due to the negligence of Moses Nyongesa Simiyu or any other party other than the defendant or its agents. 9. The trial court delivered its judgement on 17th December 2024andupheld the Respondent’s preliminary objection dated 4th October 2023 dismissing the Appellant’s suit with costs to the Respondent for being barred under **Section 4(2) of the Limitation of Actions Act.** 10. The trial court addressing itself to quantum had liability been proved determined that it would have awarded Ksh. 100, 000/=for loss of life expectancy, Ksh. 50, 000/= for pain and suffering under the **Law Reform Act**. Under the **Fatal Accidents Act** the court assessed damages under loss of dependency whose applicable formula is a multiplicand, which is the annual net income, multiplied by a suitable multiplier of expected working life lost by the deceased to premature death. 11. The Appellant had submitted for an award for Ksh. 1, 360, 000/= being Ksh. 10, 000/= (multiplicand) x 12 months’ x 17 years (multiplier) x 2/3 (dependency ratio). The appellant claimed the deceased was a boda boda rider but with no proof of earning. However, the court found the proposed multiplicand of Ksh. 10, 000/= to be reasonable and therefore applied the same as above. 12. The court, however, in the judgement, declined to make any award under that head for the reason that dependency was not sufficiently proved for reasons that the letter by the chief that the deceased had three children would not suffice in the absence of birth certificates being produced. The court however found that it would have awarded special damages at **Ksh. 245, 000/=** the same having been proved by way of receipts. **Appellant’s Submissions** 1. Counsel for the Appellant submits that the Respondent entered appearance in the trial suit and filed a Preliminary Objection dated 4-10-2023, on the ground that the Appellant’s suit was time-barred. The Appellant posits, however, that prior to instituting the suit, leave had been obtained to file the same out of time. 2. Counsel further submits that the said Order from the application to file suit out of time, dated **26-06-2023**, was subsequently filed and served upon the Respondent vide a Further List of Documents dated **12-01-2024**. That on **6-02-2024**, counsel for the Respondent acknowledged being aware of the Order dated **26-06-2023**, issued in **Bungoma Misc. Civil Application No. 346 of 2023**, which granted the Appellant leave to file the suit out of time. 3. Counsel submits that as a result of this the Preliminary Objection by the Respondent was marked as withdrawn by the Honourable Court and that the matter proceeded to hearing on **24-09-2024**, where both parties were heard. 4. It was counsel’s submission that during the proceedings, counsel for the Appellant reiterated that leave had been obtained prior to filing the suit out of time and made reference to the Further List of Documents dated **12-02-2024**. 5. Counsel submits that in its judgement, however, the trial court revisited the Preliminary Objection dated 4-10-2023 which had already been withdrawn. Upon which the trial court then held that the Order granting leave to file the suit out of time had neither been formally produced nor marked for identification, and therefore would not be considered as evidence. 6. On the issue of whether the learned trial magistrate erred in requiring proof of leave despite admission of counsel. It was submitted that Section 61 of The Evidence Act provided that no fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Reliance was placed on **Synergy Industrial Credit Limited v Oxyph)‘s International | Limited & 2 others (2021) KEHC 13344 (KLR)** where it was held that a clear and unequivocable admission of fact is conclusive, rendering it unnecessary for the one party (in whose favour the admission was made) to adduce evidence to prove the admitted fact, and incompetent for the other party, making the admission to adduce evidence to contradict it. 7. It was submitted that the Record of Appeal which references the proceedings on **6-02-2024**, Ms. Kariithi who was holding brief for Tole for the Respondent stated that, “We have learned misc. Application was filed and leave granted to file the suit out of time.” 8. It is submitted that the existence of the order granting leave was not only placed on record but was expressly acknowledged by the Respondent’s counsel in open court. That in the absence of any challenge to the validity of the said order, the same constituted an admitted fact within the meaning of Section 61 of the Evidence Act, and no further proof was required. 9. It was submitted that the provisions of the Evidence Act, Section 61 allows a court, in its discretion, to require proof of admitted facts. However, such discretion must be exercised judiciously. That the trial court having neither directed the Appellant to formally produce the order nor indicated that it required further proof. It was therefore erroneous for the court to later rely on the absence of formal production to dismiss the suit. Counsel urged this court to find that the Appellant was not required to furnish further proof that leave had been granted. 10. On liability, Counsel for Appellant submits that PW 2 testified that the accident occurred on 18th February, 2020 and that at Kohekohe he saw the deceased a few meters ahead of him cycling. That he then saw motor vehicle registration number **KCU 534Q** which was heading in the same direction as he was overtake him and ram into the deceased. That after the accident he moved closer to where the deceased was and confirmed that he had already lost his life. That he later rushed to inform the family of the deceased of the accident. 11. It was submitted that the owner of the vehicle DW1 testified to not having witnessed the accident. It is also submitted that DW2 who testified to having prepared the investigation report dated 21st March, 2024 testified that report did not contain the OB extract. That a copy of the inspection report is also annexed to the report. That there was also no indication that any eye witness had been interviewed concerning the accident. 12. It is submitted that the evidence on record pointed to negligence on the part of the driver of motor vehicle registration number KCU 534Q. That PW2 gave a clear, consistent, and uncontroverted eyewitnesss account. 13. It was submitted that the evidence places the motor vehicle squarely at fault and demonstrates a failure by its driver to exercise due care while overtaking and that this evidence was not rebutted by the respondent. In the absence of any credible evidence to displace PW2’s testimony, counsel urged that liability rests wholly with the driver of motor vehicle registration number **KCU 534Q**. 14. On quantum for loss of expectation of life it was submitted the deceased was aged 43 years when his life was tragically cut short by the accident. He had many productive years ahead and was deprived of the ordinary enjoyment and satisfaction of life. An award of **Kshs. 300,000/=** was proposed. Reliance was placed on **Nairobi HCC No 132 Of 2001 Daniel Kfmu vs. Nairobi City Council (2013) eKLR.** 15. On pain and suffering it was submitted that as a result of the severe injuries as a result of the accident the deceased died shortly thereafter. Although the death was instantaneous, it was submitted that an award is still due under this head to compensate for the pain and suffering endured between the time of injury and death. An award of **Ksh. 100, 000/=** is proposed under this head. Reliance was placed **Petronila Muli v Richard Muindi Sawi & Catherine Muwende Mwindu(Suing as the Legal Reppresentative of the Estate of the Late Augistus Muindi (Deceased) [2021] KEHC 6932 (KLR).** 16. On loss of dependency it was submitted that, PW1 testified that the deceased worked as a bodaboda , earning approximately (Kshs. 10,000 per month. That as per the Chief’s letter produced as PExhibit-5, the deceased had dependents. His 3 children namely, Anne Nyongesa, Susan Nyongesa and Joseph Nyongesa all of whom relied on him for their upkeep. PW1 further testified that he also personally depended on the deceased for everything and was left helpless after his demise. It was submitted that in the circumstances the deceased ‘would reasonably have devoted two-thirds (2/3) of his income to the support of his young children and father. 17. It was submitted that the deceased was aged 43 years, and that given that he worked in the informal sector, it is reasonable to assume that he would have continued working until about 60 years of age. A multiplier of 17 years is therefore fair and just. Applying a multiplicand of Kshs. 10,000, the dependency loss is computed as follows: 10,000 x 12 x 17 x 2/3 = **Kshs. 1,360,000/=** . Reliance was placed on **Kunigu v Mangura [2022] KE\*IC 12989 (KLR).** 18. Counsel submitted that special damages should be awarded at **Kshs 245, 000/=**. **RESPONDENT’S SUBMISSIONS** 1. Counsel for the Respondent submits that the suit was time barred under the Limitation of Actions Act, Section 4(2) and that at the that at the time of making her decision there was no material placed before the learned Magistrate by the Appellant to indicate that the Appellant had sought leave of the court to bring the action out of time. 2. It is also submitted that the Appellant has attempted to sneak in new material before the High Court and that the material did not form part of the court record against the Respondent in the proceedings herein. It was also submitted that the Appellant’s Counsel during the Mention of the Appeal on **11/03/2026** took issue with the content of the Record of Appeal dated **17/01/2025** for the reason that it contained extraneous material which was foreign to the lower court process. Specifically, a purported Court Order dated **26/06/2023** from Miscellaneous Civil Application No. 346 of 2023 introduced at Pg. 29 of the Record. 3. It was submitted that the Appellant at the trial stage had filed a Plaintiff’s List of Documents dated **24/07/2023** which contained only 10 documents which were produced sequentially at trial as PEXH-1 to 10 and that the Appellant has attempted to sneak in new material without leave of the court as required by law contrary to Order 42 Rule 27(1) of the Civil Procedure Rules. 4. It is submitted that under Order 42, Rule 27 of the Civil Procedure Rules, additional evidence can be allowed if the lower court refused admissible evidence, or if the appellate court requires it to pass Judgment but that this is solely at the discretion of the court. Reliance was placed on **Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) cited with approval in Gachuki & Another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR), Mzee Wanje & 93 Others V A.K Saikwa (1952-88) 1IKAR 462 cited with approval in Gachuki & Another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR), Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohammad & 3 Others [2018] eKLR and Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR** 5. Counsel further submitted that the Trial court correctly relied on evidence that had been given by the Appellant Peter Simiyu Munga’u, PW1 at pg. 160 of the Record when he confirmed that he had filed the suit 3 years after the date of the accident and that even the Grant Ad Litem had been obtained 3 years after the accident occurred. 6. Counsel submits that the Trial court identified that the Appellant's Counsel on 24/09/2024 indicated to the court that they had filed a Further List of Documents containing the Court Order allowing the Appellant leave to institute the claim out of time. It is submitted, however, that the Further List of Documents, had never been filed by the Appellant and the document alluded to was not placed before the court at any time. 7. It is also submitted that the Respondent had filed a Notice of Preliminary Objection dated 04/10/2023 in which it raised the objection of the suit being time barred but elected to deal with the issue inside the main suit. That the Trial court was then justified in its reliance upon the case of **Finmax Community Group vs Kericho Technical Institute (2021) e KLR** where the Court of Appeal held that without producing exhibits formally on the record a Plaintiff would have failed in discharging his burden of proof. There was no material for the court to rely on apart from what was before the court. Reliance was placed on Rawa vs. Rawa (1990) KLR, 275, Elizabeth Akinyi Ounda v Abubakar Wilberforce [2021] KEHC 4637 (KLR) 8. It was submitted that the trial court did not have jurisdiction to deal with the main suit. Reliance was placed on the case of **Bosire Ogero v. Royal Media Services [2015] eKLR.** 9. On quantum it was submitted that the Trial Court made a wrong evaluation on damages and that the applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. That the duty of proving averments contained in the plaint on a balance of probabilities lay squarely on the Respondent. Reliance was placed on **Karugi & Another V. Kabiya & 3 Others [1987] KLR 347** the Court of Appeal cited in **Midans Services Limited & another v Ronald Kapute [2022] eKLR.** 10. Therefore, it was submitted that hat the Appellant at trial failed to prove his case relating to any connection of the alleged accident to the Respondent’s **MV Reg. No. KCU 534Q** and any such liability falling on the Respondent. That there can be no liability without fault as was the principle in **Kiema Mutuku vs Kenya Cargo Hauling Services Ltd. (1991) 2ZKAR 258**. **ISSUES FOR DETERMINATION** 1. Having considered the record, the grounds of appeal, and the rival submissions, this court identifies the following issues for determination: 2. **Whether the suit was properly held to be statute-barred;** 3. **Liability;** 4. **Quantum of damages.** **ANALYSIS & DETERMINATION** 1. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of **Selle –vs- Associated Motor Boat Co. [1968] EA 123:** **“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”** 1. Similarly, in **Peter v Sunday Post Ltd (1958) EA 424**. The court stated that; “**Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.**” 2. **Whether the suit was properly held to be statute-barred** 3. From the record it is indeed apparent that the Respondent entered appearance in the trial suit and filed a Preliminary Objection dated **4-10-2023**, on the ground that the Appellant’s suit was time-barred by the Limitation of Actions Act, Section 4 (2) for having being filed 3 years after the claim from the tort accrued. 4. The preliminary objection was, however, withdrawn on **6-02-2024**, when counsel for the Respondent acknowledged being aware of the Order dated **26-06-2023**, issued in **Bungoma Misc. Civil Application No. 346 of 2023**, which granted the Appellant leave to file the suit out of time. Under section 27(1) of the Limitation of Actions Act, such leave extends the period within which the suit may be commenced. Consequently, the limitation period prescribed under section 4(2) of the Act cannot be relied upon as a defence, provided that leave was obtained before the action was instituted. 5. It is the finding of this court that Counsel for the Respondent’s statement made in the proceedings before the trial court on **6-02-2024** constituted an admission of the existence of the Order in **Bungoma Misc. Civil Application No. 346 of 2023** granting the Appellant leave to file the suit out of time within the meaning of Section 61 of the Evidence Act. 6. **The Evidence Act, Section 61** provides that; **No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:Provided that the court may in its discretion require the facts admitted to be proved otherwise than by such admissions.** 1. Having so found this court is guided by the finding of the court in [**Awuor v Simbi [2025] KEHC 5830 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/5830/eng%402025-03-21) where the court held that: **In respect of admitted facts, such as the ones aforementioned, Section 24 of the**[**Evidence Act**](https://new.kenyalaw.org/akn/ke/act/1963/46)**is explicit that they give rise to an estoppel, and therefore it is not open for the appellant to assert otherwise. In this regard, I agree with the position taken in Jennifer Nduku Lazarus Masau & Cyrus Mutisya Lazarus [suing as the administrators of the estate of the late Mary Mukulu Lazarus (Deceased) v Transfleet Limited & another [2019] KEHC 2539 (KLR) in which the following excerpt from Kyalo Mbobu’s The Law and Practice of Evidence in Kenya LawAfrica Publishing (K) ltd pg. 64,“According to section 24 of the**[**Evidence Act**](https://new.kenyalaw.org/akn/ke/act/1963/46)**, admissions are not conclusive proof of matters that they admit but they could operate as estoppels. Critics wonder why parliament enacted that provisions knowing that under the common law, admissions constitute conclusive proof of the admitted facts. But essentially, even though they are not conclusive they amount to estoppel. The idea of estoppel in admission is to prevent a person to assert things that are at variance with things they admitted before.”** 1. Essentially, the Respondent having made an admission as to the existence of the order granting leave to file suit out of time was estopped by the Evidence Act, Section 24 which provides that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels. This is to mean that the Respondent having made such admission could not later take the position that the Appellant had not sought leave and require proof of the existence of the order. 2. In any case, this court notes from the record that on the hearing on **24-9-2024** while closing its case before the trial court, Counsel for the Appellant once again referenced filing a further list of documents with the order that allowed them to institute the suit out of time. At that point the Respondent did not raise any issue regarding production of that further list of documents. Now before this Appellate court, the Respondent, has taken the position that the further list of documents containing the order is extraneous material to the Record of Appeal. 3. There are two distinct stages involved in the use of documents in court proceedings. The first stage is the administrative process of lodging or filing documents with the court registry. This process is regulated by the Civil Procedure Rules and, more recently, the Electronic Case Management Practice Directions, 2020. Its purpose is to ensure that court records are properly maintained, to notify the opposing party of the documents to be relied upon, and to facilitate compliance with the requirements on pre-trial disclosure. 4. The second stage concerns the evidentiary process of formally introducing those documents during the hearing. This stage is governed by the Evidence Act and is subject to the trial court's discretion. It is only when a party tenders a document for admission as an exhibit that the court considers whether it satisfies the legal requirements of admissibility, authenticity, and relevance. The authority to determine whether a document forms part of the evidence rests exclusively with the trial court, rather than the court registry or the electronic filing system. Consequently, any challenge to the admissibility of a document should properly be raised and argued orally before the trial court at the time the document is offered in evidence. 5. The Respondent having made admission of the existence of the said order had led the Appellant to believe that no further proof of the order was required. This court finds guidance in the case of [**Mburu & 5 others v Mburu & 3 others [2025] KEHC 12576 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12576/eng%402025-09-16) where the court held that: **The doctrine of estoppel by conduct prevents a party from taking a position inconsistent with their previous conduct where another party has relied on that conduct to their detriment. By failing to object to the admission of the documents, the Applicants implicitly represented to the Respondents and to the trial court that they had no issue with their admissibility. The Respondents relied on this representation and built their defence around these exhibits. Similarly, the trial court relied on this acquiescence and admitted them into the record. To allow the Applicants to now turn around and challenge the very foundation of that evidence on appeal would be to sanction a grave injustice and an abuse of the court’s process.** 1. This court is careful to keep this finding within its proper bounds. Estoppel is not being invoked here to confer jurisdiction on the trial court by consent, a course foreclosed by the settled principle that jurisdiction cannot be conferred by consent, waiver, or estoppel, and that a nullity for want of jurisdiction cannot be cured by any of those doctrines. See the cases of **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR** and **In re Estate of Col. Meshack Kiptoo Birgen (Deceased) [2021] KEHC 2269 (KLR)**. 2. Estoppel operates on the Respondent's ability to deny a fact he has already conceded being that leave was sought and granted and not on the court's jurisdiction as such. The court's jurisdiction rests on the underlying fact of the leave order having been granted, the estoppel simply forecloses the Respondent from being heard to deny that fact, or to reopen the provenance of the document evidencing it, at this late stage. 3. This court further notes that the Respondent's characterisation of the document as an attempt to introduce new material on appeal as contrary to Order 42 Rule 27(1) of the Civil Procedure Rules misconceives its nature. Order 42 Rule 27 governs the introduction of additional evidence not adduced before the trial court. The document was before the trial court at the trial stage, filed on 2nd February 2024 and referred to at the hearing of 24th September 2024, its absence from the physical file is a matter going to the completeness of the record under Order 42 Rules 13 and 14, not the introduction of fresh evidence. 4. In the result, this court finds that the trial court had jurisdiction to entertain and determine the suit. The admission of 6th February 2024 was legally sufficient, standing alone, to dispose of the limitation objection; the Respondent is, in addition, estopped by conduct from denying that admission or the document evidencing it; and the trial court erred in reviving the objection in its judgment on an evidentiary basis inconsistent with the unqualified admission that had already disposed of it, without affording the Appellant notice or opportunity to address the specific gap it perceived. The finding that the suit was statute-barred, and the consequent dismissal, cannot stand. 5. **Whether the Respondent is liable in negligence** 6. Having found that the trial court had jurisdiction over the suit, this court proceeds to determine liability, an issue the trial court itself never reached, having disposed of the suit at the threshold on limitation. The determination of liability on this record falls to be made afresh. 7. The claim is founded on negligence. It is not in dispute that motor vehicle registration number **KCU 534Q** is registered in the Respondent's name; the Respondent admitted this in his statement of defence. What the Respondent denies is that any accident involving the deceased and that motor vehicle occurred at all, or that it occurred in the manner pleaded. In the alternative, the Respondent pleaded that if an accident did occur, it was occasioned by the negligence of the deceased or of some other party, not the Respondent or his agents. 8. As was held in the case of **Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991]2 KAR 258**, “There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.” The burden accordingly lay on the Appellant to prove, on a balance of probabilities, both the occurrence of the accident and negligence on the part of the person driving the offending vehicle. 9. On the record, PW2 gave direct eyewitness evidence that he was cycling in the same direction as the deceased on **18-02-2020** at Kohekohe, that he observed motor vehicle registration number **KCU 534Q** overtake him travelling in the same direction, and ram into the deceased, and that he thereafter went to the deceased and confirmed he had died. This evidence directly identifies the offending vehicle by its registration number and describes the manner of the collision. 10. The Respondent called two witnesses. DW1, the registered owner, testified that he did not witness the accident. DW2 testified to having prepared an investigation report dated **21-03-2024**, over four years after the accident which report did not include an OB extract, and which did not reflect that any eyewitness had been interviewed. Neither witness controverted PW2's account of how the collision occurred, and the record does not indicate that PW2 was discredited in cross-examination. 11. In the case of [**Mutai & another v Mburugu [2025] KEHC 3750 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/3750/eng%402025-03-26) it was held that: **Section 107 of the**[**Evidence Act**](https://new.kenyalaw.org/akn/ke/act/1963/46)**provides that the burden rests on the party who alleges. The Respondent, as Plaintiff, discharged that burden through his sworn testimony and corroborating documents. Once this was done, the evidentiary burden shifted to the Appellants to rebut that evidence. They failed to do so. The trial court did not err in this regard** 1. PW2's account here is clear as to the vehicle involved, the manner of the collision, and un-rebutted by any competing eyewitness account. A court is entitled to rely on un-controverted evidence. 2. The pleadings assert that the Respondent was, at the material time, in physical possession and control of the vehicle, and that a driver was employed who drove recklessly. In **Kansa vs. Solanki [1969] EA 318** it was held that; “**Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver**.” 3. The Respondent's alternative plea, that any accident was occasioned by the negligence of the deceased or another party, was not supported by any evidence: DW1 did not witness the accident, and DW2's report did not reflect any eyewitness account. An unparticularised plea of contributory or third-party negligence, unsupported by evidence, cannot found an apportionment of fault. 4. This court accordingly finds the Respondent liable in negligence for the accident of 18-02-2020, on the strength of PW2's un-controverted eyewitness account and the un-rebutted presumption that the vehicle was, at the material time, being driven by a person for whose negligence the Respondent, as registered owner, is responsible. 5. **Quantum of damages** 6. Having found the Respondent liable, this court proceeds to assess damages. The trial court's contingent quantification provides a useful starting point but is disturbed on one head. The Court of Appeal in [**Bashir Ahmed Butt v Uwais Ahmed Khan**](https://new.kenyalaw.org/akn/ke/judgment/keca/1978/24)**[1982-88] KAR 5** held that an appellate Court will not disturb an award of damages 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. 7. Loss of expectation of life. The trial court proposed a conventional award of Kshs 100,000/=; the Appellant urges Kshs 300,000/=. This court finds the trial court's figure the correct one. Kshs 100,000/= is the conventional award consistently applied by this court in comparable cases, and has been upheld as such notwithstanding subsequent challenge. See **Stanley Muiru Njuguna & another v SK [2019] KEHC 9011 (KLR)** and **Chege & another v Jeremy & another (Civil Appeal E340 of 2023) [2025] KEHC 4055 (KLR)**. 8. Pain and suffering. The trial court proposed **Kshs 50,000/=** the Appellant urges **Kshs 100,000/=**. The generally accepted principle is that only nominal damages are awarded under this head where death follows immediately or rapidly upon the accident, with higher awards reserved for cases of prolonged suffering before death. The established range runs from approximately Kshs 10,000/= to Kshs 100,000/= accordingly. See **Stanley Muiru Njuguna & another v SK [2019] KEHC 9011 (KLR)** and **Chege & another v Jeremy & another [2025] KEHC 4055 (KLR**). 9. On this record, PW2's account indicates the deceased had already died by the time PW2 reached him after the collision, consistent with a rapid death rather than prolonged suffering. Nothing on the record supports an award at the upper end of the range. The award of **Kshs 50,000/=** is upheld. 10. Loss of dependency. This is the one head on which this court departs from the trial court. The trial court declined to make any award, holding that dependency had not been sufficiently proved, the Chief's letter produced as PExhibit-5 being insufficient in the absence of birth certificates for the three named children. That approach cannot stand. It is established that a party may prove dependency, in the absence of birth certificates or similar documents, by a letter from the area Chief confirming the relationship. In [**Rahab Wanjiru Nderitu v Daniel Muteti & 4 others [2016] KEHC 3643 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/3643/eng%402016-07-14) it was held that: **In Stating in evidence that one is a wife or husband of a deceased person without proof is not enough. If the plaintiff was indeed the widow of the deceased as she stated, it would have been very easy for her to produce the marriage certificate she alluded to, or event the chief's letter to confirm customary marriage and the children's documents, say Baptismal certificates or school certificates.** 1. A Chief's letter identifying the dependants of a deceased person is prima facie evidence of dependency, particularly where its authenticity or contents are not challenged and there is no allegation, still less proof, of forgery: 2. Similarly in [**Muthiga v Jerop (Suing as the Legal Representative and Administrator fo the Estate of Leonard Kipchirchir Mwangong (DCD)) & another [2026] KEHC 5596 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5596/eng%402026-04-28) it was held that **The Respondents in this instance case produced a Chief’s letter identifying the dependants of the deceased, including his spouse and child. The Chief’s letter is a crucial document in both succession and fatal accident claims, as it serves as prima facie evidence of dependency and beneficiaries of the estate. Notably, the Appellant did not produce any evidence to challenge the authenticity or contents of the Chief’s letter. There was no allegation, let alone proof, that the document was forged.** 1. Nothing on this record indicates that the Respondent challenged the authenticity of the Chief's letter naming Anne Nyongesa, Susan Nyongesa, and Joseph Nyongesa as the deceased's children and dependants, or alleged that it was forged. The trial court accordingly erred in requiring birth certificates as a precondition to any award, rather than treating the unchallenged Chief's letter as sufficient proof of dependency on a balance of probabilities. 2. This court accordingly proceeds to compute loss of dependency on the multiplicand-multiplier approach. The multiplicand of Kshs 10,000/= per month was itself found reasonable by the trial court and is not contested on appeal. The multiplier of 17 years, reflecting the deceased's age of 43 at death and an expected productive working life to about age 60, is likewise unchallenged. Adopting the two-thirds ratio as proposed, and reasonable for three surviving minor children, the computation is **Kshs 10,000/= x 12 x 17 x 2/3 = Kshs 1,360,000/=**, which this court awards under this head 3. Special damages. The trial court found special damages of **Kshs 245,000/=** proved by way of receipts. Neither party disputes this finding on appeal, and this court sees no basis to disturb it. 4. In the result, the Appeal is merited and is allowed. This court makes the following awards: 5. Kshs 100,000/= for loss of expectation of life; 6. Kshs 50,000/= for pain and suffering; 7. Kshs 1,360,000/= for loss of dependency; 8. Kshs 245,000/= as special damages. 9. Costs. **Read Dated and Signed at BUNGOMA on 30th July 2026** 1. **Ominde** **JUDGE**