Muriuki & another (Suing as the Administrators of the Estate of John Muriuki Mweri - Deceased) v Kimwaki (Civil Appeal E947 of 2022) [2026] KEHC 8246 (KLR) (11 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI LAW COURTS** **CIVIL APPEAL NO. E947 OF 2022** **CATHERINE WANGARI MURIUKI** and **LEAH KAGENDO MURIUKI** (Suing as the administrators of the Estate of **JOHN MURIUKI MWERI**(Deceased)).............................................................................................APPELLANT -VERSUS- **BENEDICT MUTINDA KIMWAKI**…………………............................................................................RESPONDENT *(Being an Appeal from the Judgment of the Chief Magistrates Court of Kenya at Nairobi, Milimani Commercial Court by Hon. E.M. Kagoni (PM) delivered on 17th November, 2021 in Civil Case No. 632 of 2020)* **JUDGMENT** **Background** 1. This appeal arises from the judgment of the Chief Magistrates Court at Nairobi (Milimani Commercial Courts) delivered on 17th November 2021 by Hon. E.M. Kagoni (PM) in Civil Case No. 632 of 2020. 2. The suit was instituted by Catherine Wangari Muriuki and Leah Kagendo Muriuki, suing as administrators of the estate of John Muriuki Mweri (the deceased), against Benedict Mutinda Kimwaki (the Respondent), seeking general damages under the Law Reform Act, Cap 26 and the Fatal Accidents Act, Cap 32, special damages amounting to Kshs. 853,193.00, interest, and costs of the suit. 3. The claim arose from a road traffic accident that occurred on 25th May, 2017 along Outering Road near Mutindwa, Nairobi, in which the deceased, a pedestrian, was struck by Motor Vehicle Registration No. KBL 726L, a Toyota Saloon, owned and driven by the Respondent. The deceased sustained severe injuries and died while undergoing treatment at Metropolitan Hospital, Buruburu. 4. The trial Court dismissed the Plaintiffs’ suit in its entirety with costs, finding that negligence had not been proved on a balance of probabilities. The Appellants were dissatisfied with that determination and filed a Memorandum of Appeal dated 15th November, 2022 raising twelve (12) grounds of appeal. 5. At the trial, the Appellants had called two witnesses: PW1, Catherine Wangari Muriuki, the wife of the deceased, who testified by adopting her witness statement and produced exhibits including a police abstract, grant of letters of administration, a death certificate, an autopsy report, business permits, a liquor licence, and M-Pesa statements for the deceased’s business; and PW2, PC Fairfax Masinde of Buruburu Police Station, who confirmed the occurrence of the accident under OB No. 9/25/5/2017 but admitted he was not the investigating officer and did not visit the scene. 6. The Respondent called one witness, DW1, who was the Respondent himself. DW1 testified that while travelling along Outering Road, a male pedestrian appeared from the left side and landed on the bonnet of his vehicle, damaging the windscreen and side mirror. He denied that his vehicle veered off the road and maintained that no traffic charges had been preferred against him. 7. The trial Court, upon considering the evidence and written submissions of both parties, held that since neither PW1 nor PW2 was an eyewitness to the accident, and since no charges had been preferred against the Respondent despite the police having investigated the matter, the Appellants had failed to discharge the burden of proof. It accordingly dismissed the suit. **Appellants’ Submissions** 1. The Appellants, through the firm of Laichena Mugambi & Ayieko Advocates LLP, filed written submissions dated 21st July, 2025. They contend that the trial magistrate fundamentally erred by treating the absence of the investigating officer as determinative of the case. 2. They submit that in civil proceedings, negligence is assessed on a balance of probabilities, a standard that does not require the production of the investigating officer’s report. 3. The Appellants rely on the principle that civil and criminal proceedings are distinct, and that proof of negligence in a civil suit does not depend on whether criminal charges were filed or an inquest opened. They invoke Sections 107 and 109 of the Evidence Act (Cap 80) and argue that they discharged their burden through credible, unchallenged testimony from PW1 and PW2, as well as documentary exhibits including the police abstract and the autopsy report. 4. The Appellants further submit that the trial court gave undue weight to the police abstract and the absence of criminal charges, elevating them into determinative factors on the question of civil liability. They contend that Sections 56 and 73 of the Traffic Act, Cap 403 impose a statutory duty of care on all drivers to exercise due care and attention to other road users, including pedestrians. 5. They argue that the Respondent’s own admission that the deceased appeared from the left and damaged his windscreen and side mirror, combined with the evidence of PW2 as to the circumstances of the accident, was sufficient to establish negligence on a balance of probabilities. 6. They submit that the Respondent’s failure to call his wife, who was a passenger in the vehicle and therefore an eyewitness, raises an adverse inference against the Respondent’s account. They rely on the Court of Appeal’s dictum in Selle v Associated Motor Boat Co. [1968] EA 123 as the proper framework for appellate interference. 7. On quantum, the Appellants pray that the appeal be allowed in its entirety; that liability be apportioned at 100% against the Respondent; that special damages of Kshs. 853,193.00 be awarded; and that general damages be assessed in accordance with the heads of claim under the Law Reform Act and the Fatal Accidents Act. They urge this Court to set aside the trial court’s judgment and enter judgment in favour of the estate with costs in both courts. **Respondent’s Submissions** 1. The Respondent, through Archer & Wilcock Advocates, filed written submissions dated 27th November, 2025. The Respondent opposes the appeal in its entirety and submits that the trial court properly evaluated all the evidence before it and reached a well-reasoned conclusion both in law and in fact. 2. The Respondent invokes Section 78 of the Civil Procedure Act (Cap 21) and the Court of Appeal’s guidance in Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, urging this Court to re-evaluate the evidence on record but to uphold the conclusions of the trial court where they are well-supported. 3. The Respondent places reliance on Halsbury’s Laws of England (4th Ed, Para 662, p.476) for the proposition that the burden of proof in an action for negligence rests on the plaintiff to show that injury was caused by a negligent act or omission, proof of a duty owed, breach of that duty, and a causal connection between the breach and the injury. 4. The Respondent submits that the Appellants fundamentally failed to substantiate the particulars of negligence pleaded in their plaint. It is the Respondent’s case that PW1 did not witness the accident, having learnt of it through a friend, and that PW2 also did not visit the scene, did not possess the police file, and could not testify on the circumstances of the accident. 5. The Respondent further highlights that PW2 confirmed that the Outering Road was under construction at the time, that there was no zebra crossing or footbridge at the scene, and that no charges had been preferred against the Respondent five years after the accident. 6. The Respondent relies on Bwire v Wayo & Soiloki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) for the proposition that where the evidence tendered is not direct evidence and has no probative value in the absence of further evidence connecting it to the scene, there is no proper basis for a finding of liability. The Respondent also invokes Kimuli v Iregi (Civil Appeal 614 of 2019) [2025] KECA 1480 (KLR), where the Court of Appeal dismissed an appeal on similar grounds, holding that inconsistencies in police records and failure to call crucial witnesses rendered the evidence insufficient. 7. The Respondent urges this Court to find that the trial magistrate committed no error, either in law or in fact, and to dismiss the appeal with costs. 8. On quantum, the Respondent submits that even had the Appellants proved their case, the multiplicand of Kshs. 30,000.00 per month was not proved by documentary evidence, and that the death certificate listed the deceased’s occupation as a registrar, a government post from which retirement occurs at 60 years, while the deceased was aged 69 at the time of death. The Respondent proposes, in the alternative, a minimum wage multiplicand of Kshs. 10,000.00, a multiplier of 5 years, and a dependency ratio of one-third, yielding Kshs. 200,000.00 under the Fatal Accidents Act. **ISSUES FOR DETERMINATION** 1. Having considered the pleadings, the evidence on record, and the submissions of both parties, this appellate Court frames the following issues for determination: 1. *Whether the trial court erred in law and in fact in holding that the Appellants had failed to prove negligence against the Respondent on a balance of probabilities; and* 2. *If so, what remedy is the Appellants’ estate entitled to?* **ANALYSIS** **Whether the trial court erred in finding that negligence was not proved on a balance of probabilities** 1. The duty of this Court as a first appellate court is well-established. In **Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2EA 212**, the Court of Appeal held that on a first appeal, the appellate court should reconsider the evidence, evaluate it itself, and draw its own conclusions, though always bearing in mind that it has neither seen nor heard the witnesses. 2. This being a first Appeal, this court is under a duty to re-evaluateand assess the evidenceand make its own conclusions.I must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence 1st hand. In the case of **Peters vs Sunday PostLimited [1958]EA424**, the court therein rendered itself as follows: *“ It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”* 1. The appellate power to interfere with findings of fact arises where the trial court has misdirected itself in law, misapprehended the evidence, or reached a conclusion that is plainly wrong: see **Selle v Associated Motor Boat Co. Ltd [1968] EA 123**. This Court will apply that framework in evaluating the Appellants’ grounds. 2. The starting point is the standard and burden of proof. In a civil suit founded on negligence, the plaintiff must prove, on a balance of probabilities, the existence of a duty of care owed by the defendant, a breach of that duty, and a causal connection between the breach and the injury complained of. This much is not in dispute. What is in dispute is the quality of evidence that discharges that burden. 3. The trial court held, in effect, that because neither PW1 nor PW2 was an eyewitness to the accident, and because no criminal charges had been preferred against the Respondent, the Appellants had not discharged their burden. This reasoning requires careful scrutiny. 4. On the question of eyewitness testimony, it is necessary to distinguish between the absence of an eyewitness for the Appellants and the total absence of eyewitness evidence. In this case, there was indeed an eyewitness: the Respondent himself. DW1 testified that while proceeding along Outering Road, a pedestrian “appeared from the left side” and landed on the bonnet of his vehicle, breaking the windscreen and the LHS driving mirror. 5. This account, taken on its face, establishes that a fatal collision occurred between the Respondent’s vehicle and the deceased pedestrian. The Respondent did not dispute that the deceased sustained injuries and died. He did not dispute ownership and control of motor vehicle KBL 726L on the material date. In Ndegwa v Road Transport Services Ltd [1964] EA 271, the court affirmed that admissions by a defendant as to control of a vehicle at the time of an accident are admissible and may be relied upon by a court in drawing inferences as to liability. The Respondent’s own evidence therefore placed him at the scene and in control of the vehicle that caused the fatality. 6. The Respondent’s account, however, is internally inconsistent in ways that the trial court appears to have overlooked. In his witness statement dated 30th June 2017, DW1 stated that the deceased “had been pushed to where he was coming from.” Yet in his oral testimony and cross-examination, he was unable to identify who pushed the deceased, stating he did not see who did so. 7. The Respondent also stated he was in the company of his wife on the material day, yet he did not call her to testify. Her evidence would have been material, she was a passenger in the vehicle and therefore an eyewitness to the entire sequence of events. In **Mwangi v Wambugu [1984] KLR 453**, the Court of Appeal observed that the failure to call a material witness who was available and whose evidence would have shed light on disputed facts may give rise to an adverse inference against the party who withholds that witness. The inference available on the facts of this case is that the wife’s evidence would not have supported the Respondent’s account. 8. Furthermore, DW1 confirmed that both his windscreen and his left-hand side driving mirror were damaged. If the deceased had merely landed on the bonnet from the side of the road after being pushed, as the Respondent maintains, the damage to the vehicle would be inconsistent with the impact described. 9. The autopsy report produced as an exhibit confirmed that the deceased suffered head, chest, and pelvic injuries due to blunt force trauma consistent with a road traffic accident. The nature and severity of these injuries suggest a significant vehicular impact, not a pedestrian merely falling onto a stationary or slowly moving vehicle. No expert or lay evidence was led by the Respondent to explain why such catastrophic injuries were consistent with his account that the pedestrian “hit” the car rather than vice versa. 10. The trial court placed great weight on the fact that PW2, a police officer from Buruburu Police Station, admitted that he was not the investigating officer, had not visited the scene, and did not have the police file. The court also emphasised that PW2 confirmed no charges had been preferred against the Respondent. The court drew from these circumstances the inference that the Respondent was blameless. 11. With respect, this reasoning conflates two distinct legal standards. The question of whether the police chose to prefer criminal charges, a decision driven by the criminal standard of proof beyond reasonable doubt and by prosecutorial discretion, is wholly separate from the question of whether civil liability is established on a balance of probabilities. 12. The failure to call the investigating officer was treated by the trial court as a fatal gap in the Appellants’ case. This Court respectfully disagrees. The duty to investigate a road traffic accident is a statutory obligation imposed on the police in the public interest. A litigant cannot be expected to direct or control that investigation, nor is a civil plaintiff required to ensure that the investigating officer attends court. 13. What matters is whether the evidence before the court, taken as a whole, establishes the cause of action on a balance of probabilities. A police abstract is prima facie evidence of the occurrence of an accident but is not conclusive on the question of fault. Importantly, the abstract in this case confirmed the occurrence of the accident under OB No. 9/25/5/2017, identified the Respondent as the driver, and recorded that a pedestrian was struck and sustained fatal injuries. PW2 confirmed these particulars from the records available to him. That the investigating officer was not called does not extinguish the probative value of this evidence when read alongside the admissions of DW1. 14. The trial court also appears to have attached significance to the fact that the road was under construction at the time and that there was no zebra crossing or footpath at the scene. PW2 confirmed both these facts under cross-examination. The Respondent relies on this to suggest that the deceased was at fault for crossing a road with no designated crossing. 15. This Court observes, however, that the absence of a zebra crossing or footpath does not grant motorists immunity from the duty of care owed to pedestrians who are lawfully using the road. Section 73 of the Traffic Act (Cap 403) makes it a criminal offence to drive without due care and attention or without reasonable consideration for other road users. 16. Further, Section 56 imposes an obligation to maintain speed that is reasonable and prudent given the nature and condition of the road, including the presence of pedestrians. Where a road is under construction and lacks pedestrian infrastructure, a prudent driver is required to exercise greater, not lesser, caution. 17. It is against this evidential backdrop that this Court must assess whether the trial court’s dismissal of the suit was justified. The Respondent was in control of his vehicle on a busy urban road. The deceased, a pedestrian, was fatally injured when contact was made between the vehicle and his person. The Respondent’s own account is that visibility was clear and traffic was moving at a medium pace, yet he was unable to prevent a collision of sufficient force to break his windscreen and side mirror and cause the deceased to sustain fatal multi-organ trauma. 18. The first issue is therefore answered in the affirmative. The appeal succeeds on liability. The Respondent is held liable at 100% for the accident. **Quantum of Damages** 1. Having found for the Appellants on liability, this Court proceeds to assess the appropriate quantum of damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32). The Court is guided by the principle that an award under the Law Reform Act must be deducted from the total award under the Fatal Accidents Act to avoid double recovery, as affirmed in **Paul Ouma v Sarah Akinyi and Monica Achieng Were [2018] eKLR.** 2. Under the Law Reform Act: 1. Pain and Suffering: The deceased sustained serious head, chest, and pelvic injuries consistent with blunt force trauma. He died later in hospital on the same day. Given the period of suffering between the accident at approximately 10:00 am and his death later that evening, and the severity of the injuries he endured, this Court awards Kshs. 80,000.00 under this head. 2. Loss of Expectation of Life: The conventional award for loss of expectation of life in Kenya’s courts has been between Kshs. 100,000.00 and Kshs. 150,000.00. The deceased was 69 or 71 years old at the time of his death. This Court awards Kshs. 100,000.00 under this head: see **Joseph Mugweru Njenga & Another v Joseph Kamau Ng’ang’a [2018] eKLR.** 3. Under the Fatal Accidents Act, Loss of Dependency: 1. The deceased was survived by a wife and three children. PW1 testified that the deceased operated a pub business known as Roadside Pub near Mutindwa and earned a net profit of approximately Kshs. 30,000.00 per month. The Appellants produced business permits, a liquor licence, and M-Pesa statements. 2. The Respondent contested the sufficiency of this evidence. The Court notes that the death certificate lists the deceased’s occupation as a registrar; however, the Court also notes that PW1’s testimony as to the pub business was not shaken in cross-examination, and the documentary evidence, while not conclusive, corroborates the existence of a business. The Court, applying the caution enjoined by **Wambua v Patel & Another [1986] KLR 336** and declining to allow a party to “pluck a figure from the air,” finds that a net income of Kshs. 20,000.00 per month is a conservative and fair assessment. 4. In assessing the multiplier, the Court is guided by Benedeta Wanjiku Kimani v Changwony Cheboi & Another [2013] eKLR, which directs consideration of the age of the deceased, the balance of earning life, the life expectancy of dependants, and the vicissitudes of life. The deceased was 69 years old and had no reported health conditions other than liver cirrhosis noted in the post-mortem report. This Court applies a multiplier of 5 years, which is reasonable for a self-employed person of this age. 5. Three of the deceased’s children appear to have been adults at the time of his death. PW1, as spouse, remains a dependant. A dependency ratio of one-third is applied. Loss of Dependency: Kshs. 20,000 x 12 x 5 x 1/3 = Kshs. 400,000.00 Less: Law Reform Act awards (Pain & Suffering + Loss of Expectation of Life) = Kshs. 180,000.00 Net Loss of Dependency Award: Kshs. 220,000.00 1. Special Damages: The Appellants claimed Kshs. 853,193.00 comprising legal fees for letters of administration (Kshs. 80,000.00), motor vehicle search (Kshs. 550.00), and funeral expenses (Kshs. 772,645.00). 2. The Respondent disputed the legal fees receipt as unsigned, and contested funeral expenses as only Kshs. 768,355.00 being supported by legible receipts. This Court allows only those amounts supported by admissible receipts. The legal fee receipt, though not dated, was confirmed in re-examination to be signed; the Court allows this claim. Funeral expenses are allowed at Kshs. 768,355.00 Total special damages: Kshs. 848,905.00. **Orders** 1. In the result, this Court makes the following orders: 1. The appeal is hereby allowed. 2. The judgment and decree of the Chief Magistrates Court at Nairobi (Milimani Commercial Courts) in Civil Case No. 632 of 2020 dated 17th November, 2021 is hereby set aside in its entirety. 3. Judgment is entered in favour of the Appellants against the Respondent as follows: 1. **Pain and Suffering: Kshs. 80,000.00** 2. **Loss of Expectation of Life: Kshs. 100,000.00** 3. **Net Loss of Dependency: Kshs. 220,000.00** 4. **Special Damages: Kshs. 848,905.00** **TOTAL: Kshs. 1,248,905.00** * 1. The total award shall carry interest at court rates from the date of this judgment until payment in full. 2. The Appellants shall have the costs of this appeal to be borne by the Respondent. **Dated and Delivered Via Microsoft Teams at Nairobi this 11th Day of June, 2026.** **BENARD WAFULA MURUNGA** JUDGE *Delivered on virtual platform in the presence of* *Ayieko instructed by Laichena Mugambi for the Appellant* *Ogutu instructed by Archer Wilcock for the Respondent* *Kevin Babu - Court Assistant*