https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8973

Mutua & another v Kirera (Civil Appeal E106 of 2024) [2026] KEHC 8973 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 8973 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E106 of 2024 KL Kandet, J June 26, 2026 Between Simon Migwi Mutua 1st Appellant Alpha Mercantile Limited 2nd Appellant and Purity Ntinyari Kirera Respondent (Being an Appeal from the Judgment of Hon. K. Sambu (SPM) delivered on 6th September 2023 in Kiambu Chief Magistrate's Court Civil Suit No. 487 of 2016) Judgment 1.This is an appeal brought by the Appellants against the judgment of the Honourable K. Sambu (SPM) delivered on 6th September 2023 in Kiambu Chief Magistrate Court’s Civil Suit No. 487 of 2016, against the Respondent, sued as the Personal Representative of the Estate of the deceased, Dennis Mwenda, following a fatal road traffic accident that occurred on 30th July 2015. 2.The trial court found the Appellants 100% liable for the accident in which the deceased fell off a moving motor vehicle, registration number KCD 515K and sustained fatal injuries. Judgment was entered against the Appellants in the sum of Kshs.3,901,600/= in general and special damages. 3.Aggrieved by the said judgment, the Appellants filed a Memorandum of Appeal dated 18th March 2024 and subsequently filed written submissions dated 6th May 2026. The appeal only challenges the trial court's finding on liability and the award of special damages. 4.The Appellants' Memorandum of Appeal sets out the grounds of appeal as follows:a.The Honourable Magistrate erred in fact by finding admissions that were never made by the Appellants;b.The Honourable Magistrate erred in fact by failing to appreciate that the deceased was solely to blame for or contributed to the occurrence of the fatal accident;c.The Honourable Magistrate erred in law in finding the Appellants were 100% liable for the accident;d.The Honourable Magistrate erred in fact by failing to consider that the deceased voluntarily boarded at the back of the pick-up truck KCD 515K and failed to exercise due care;e.The Honourable Magistrate erred by disregarding, ignoring, and misapprehending the evidence of the Appellants;f.The Honourable Magistrate erred in law and fact by failing to consider that the Plaintiff did not prove any particulars of negligence averred in the amended Plaint dated 20th April 2021;g.The Honourable Magistrate erred in fact by awarding special damages devoid of strict proof;h.The Honourable Magistrate erred in fact by awarding special damages for funds/expenses not expended or incurred by the Plaintiff/Respondent; andi.The Honourable Magistrate having failed to take into account the aforesaid considerations, this Honourable Court has jurisdiction to interfere with the judgment delivered on 6th September 2023. 5.The Appellants pray that the appeal be allowed, the judgment dated 6th September 2023 be interfered with and/or set aside, and that costs be awarded in favour of the Appellants. 6.According to the evidence of the 1st Appellant (DW1) and who was the driver of the accident motor vehicle, the deceased and his colleagues were late for work at the National Youth Service (NYS). They flagged down the Appellant's pickup truck, which was not a passenger service vehicle. The 1st Appellant agreed to give the group a lift. One of the passengers (DW2) sat at the front cabin with the diver. 7.The vehicle was moving at a low speed of approximately 10 km/h in heavy morning traffic along Kiambu Road. A traffic police officer had stopped a vehicle ahead. The 1st Appellant was carefully overtaking this stationary vehicle when the deceased, seated on the edge of the pickup, lost balance and fell off the moving vehicle. The 1st Appellant was alerted by passengers banging on the vehicle, immediately stopped, and rushed the deceased to Kiambu District Hospital. 8.The Appellants maintained before the trial court that the deceased was the sole author of his own misfortune by disregarding the driver's express safety instructions and exposing himself to obvious and foreseeable danger. 9.The Appellants in their submissions contend that the trial magistrate erred in law and in fact by stating at paragraph 10 of the Judgment that the 1st Appellant was attempting to dodge traffic police officers and had abruptly swerved. The Appellants submit that this finding has no foundation whatsoever in the evidence tendered before the court. 10.The Appellants argue that the evidence of the witnesses including on cross-examination that the driver was overtaking a stationary vehicle stopped by police ahead, plainly describes a routine overtaking manoeuvre. There was no evidence that the 1st Appellant accelerated to escape the traffic officers. 11.In support of the proposition that an appellate court may interfere with a judgment of the lower court, the Appellants relied on Kenya Breweries Ltd v Odongo [2000] KLR 138 (CAK), which reaffirmed the power of an appellate court to interfere with a trial court's finding on liability where the trial court has misdirected itself or failed to properly evaluate the evidence. 12.The Appellants further relied on Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] KECA 146 (KLR), which held that the determination of liability in a road traffic case is a matter of applying common sense to the facts of each particular case, adopting the formulation in Stapley v Gypsum Mines Ltd [1953] AC 663. 13.The Appellants submitted that the deceased's conduct overwhelmingly demonstrates that he was the author of his own misfortune. The evidence of the defence witnesses was consistent and uncontroverted, that the deceased voluntarily boarded an open pick-up truck that was not a passenger service vehicle, was expressly instructed to sit on the floor, and instead chose to sit on the edge of the vehicle. 14.Relying on Harrison Ndungi v John Wambua Musau [2017] KEHC 6377 (KLR), the Appellants submitted that for a passenger to be found negligently liable, it must be demonstrated that he acted in a particular manner that brought him within the ambit of the doctrine of volenti non fit injuria. The Appellants contended that the deceased's conduct squarely satisfies this test. 15.The Appellants further relied on Winfred Ndunge Musyoka v Martin Mugo Gatiti & another [2020] KEHC 5506 (KLR), where the High Court held that where a passenger's own conduct directly precipitates the injury, that passenger must bear a substantial degree of contributory negligence. 16.The Appellants draw particular support from Njuguna v Coast Raha Limited & another [2025] KECA 11809 (KLR), where the Court of Appeal considered a strikingly similar factual scenario, finding the passenger 70% liable for disregarding safety instructions and falling from a moving vehicle. 17.The Appellants submitted that the deceased was between 70% and 100% responsible for the accident. At the very least, the Appellants pray that liability be apportioned at 90% against the deceased's estate and 10% against the Appellants. 18.Relying on Mania & 2 others v Muthui [2022] KEHC 14133 (KLR), the Appellants submitted that the burden of proof in a negligence action lies upon the plaintiff to establish each element of the tort. The Respondent's case relied heavily on the fact of the accident, presumably invoking the doctrine of res ipsa loquitur, but once the Appellants provided a clear, coherent, and uncontroverted explanation of the accident, the doctrine ceased to apply and the burden shifted back to the Respondent to disprove the Appellants' account. 19.The Appellants argued that the Respondent adduced no evidence to rebut the Appellants' account. The police officer who testified was not the investigating officer and could not confirm the circumstances of the accident beyond the police abstract. The Respondent herself (PW2) was not at the scene of the accident. No eyewitness contradicted the Appellants' evidence. 20.The Appellants submissions challenged the award of special damages in the sum of Kshs.131,660/=, contending that the Respondent failed to adduce the necessary primary documentary evidence to prove each item of special damage claimed. 21.The Appellants submitted that the Respondent's list of documents referenced receipts, but those receipts were not formally produced and identified as exhibits by a competent witness. The entire sum of Kshs.131,660/- awarded as special damages ought therefore to be set aside. 22.In her filed written submissions, the Respondent stated that the police officer called to testify confirmed the events that led to the accident and the eventual death of the deceased, being that he was tossed off the vehicle while it was in motion and landed on the tarmac. The Respondent submitted that the 1st appellant’s evidence (DWI) corroborated the circumstances under which the accident occurred 23.According to the Respondent, the 1st appellant admitted in Court that the accident occurred as he attempted to overtake a motor vehicle that was stopped by the police ahead of him. As the driver of the motor vehicle, the 1st Appellant ought to have been careful noting he was ferrying passengers on the back of his Pick-up. 24.The Respondent further submitted that DW1 (the 1st Appellant) explicitly admitted during cross-examination that he executed an overtaking manoeuvre around a vehicle that had just been stopped by traffic police officers ahead. Under the circumstances common sense and basic driving principles dictate that an attempt to overtake a vehicle under active police interception requires sudden acceleration and an unheralded, abrupt swerve to prevent being stopped along with it. 25.It was also the Respondent’s submission that the trial court applied common sense to the primary facts of this case, an approach explicitly approved by the Court of Appeal in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as cited in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] KECA 146 (KLR) 26.On Special damages of Kshs.131,660 the Respondent submitted that the same had been proved as stated by the trial Court. Among the special damages pleaded, the Respondent informed the Court that the family had expended Kshs.90,860 which went towards burial expenses. Documents were produced in Court including various receipts which had been produced as exhibits and formed part of the Court records. 27.It was also the Respondent’s contention that Courts on their own motion deemed that funeral expenses are in fact special damages that need not be specifically proved to be awarded as it is not in question that the same were incurred. This was the Court’s sentiment in the case of Rottger V Dusa & Another ((Suing On Behalf Of The Estate Of Wilson Baya Thoya - Deceased)) (Civil Appeal 063 Of 2023) [2023] Kehc 26630 (Klr) (18 December 2023). 28.This Court has considered the Memorandum of Appeal; the Record of Appeal and the written submissions filed by both parties and identifies the following issues for determination:i.Whether the Learned Trial Magistrate erred in drawing wrong conclusions from the evidence regarding the 1st Appellant's conduct at the time of the accident.ii.Who between the deceased and the 1st Appellant was responsible in negligence for causing the accident?iii.Whether the Respondent sufficiently proved the special damages claimed. 29.This Court, sitting as a first appellate court, is obliged to re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. This duty is well settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, which requires this Court to re consider and re evaluate the evidence afresh in order to determine whether the conclusions reached by the trial court are supported by the evidence on record. 30.An appellate court will not ordinarily interfere with findings of fact by the trial court unless such findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles of law. 31.On the first issue, the trial magistrate's finding that the 1st Appellant was attempting to dodge traffic police officers and had abruptly swerved is a significant factual finding that must be examined closely. This Court has reviewed the record of evidence as presented before the trial court. 32.DW1's own evidence on cross-examination was that he was overtaking a motor vehicle that had been stopped by police officers ahead. There was no evidence that the 1st Appellant accelerated, veered suddenly, or took any deliberate action to evade law enforcement officers. 33.In Kenya Breweries Ltd v Odongo [2000] KLR 138 (CAK), the High Court reaffirmed that an appellate court may interfere with a trial court's finding on liability where the trial court has misdirected itself or where the inference drawn is perverse. 34.The allegation of a lawful overtaking as a deliberate evasion of police, in the absence of any supporting evidence, is a misdirection of a material fact. This Court finds that the trial magistrate erred in drawing this inference and this ground of appeal is merited. 35.On the second issue for determination, the doctrine of contributory negligence is firmly established in Kenyan law. A claimant who, by their own want of care, contributes to the cause of the accident must bear a corresponding reduction in their award. The related doctrine of volenti non fit injuria operates where a person voluntarily assumes a known risk, thereby disentitling them from full recovery. 36.The Appellants' evidence, through DW1 and DW2, establishes an uncontroverted fact that the deceased voluntarily boarded an open pick-up truck not designated as a passenger service vehicle. He deliberately chose to take a manifestly dangerous ride. It is common sense that the open pickup truck had neither seats nor seat belts to guarantee the safety of human passengers. 37.The courts have consistently held that where a passenger voluntarily assumes an obviously dangerous position in a vehicle, that passenger must bear a significant degree of contributory negligence. In Njuguna v Coast Raha Limited & another [2025] KECA 11809 (KLR), the Court of Appeal, found a passenger who disregarded safety instructions and fell from a moving vehicle to bear a degree of contributory negligence. 38.In Godo v Agwanda [2024] KEHC 2476 (KLR), the Court apportioned liability equally at 50%:50% between a driver and a passenger who fell from a moving vehicle, holding that the passenger's failure to take reasonable care for their own safety directly contributed to the accident. 39.In Harrison Ndungi v John Wambua Musau [2017] KEHC 6377 (KLR), the Court stated that for a passenger to be found negligent, it must be shown that the passenger acted in a manner that brought them within the ambit of the doctrine of volenti non fit injuria. In the present case, the deceased voluntarily boarded a non-passenger vehicle, and chose to occupy a position of obvious peril on the moving vehicle. This conduct satisfies the test conclusively. It is instructive to note that only the deceased fell from the moving motor vehicle though there were three passengers at the back of the motor vehicle. 40.On the issue of liability, this Court finds that the trial magistrate did not give much weight to the evidence that the deceased also contributed to the accident through negligence. The evidence establishes that the deceased voluntarily assumed an obviously dangerous risk. Having regard to the totality of the evidence and the authorities cited, this Court finds that the deceased equally contributed to the accident. He ought to have exercised reasonable care for his own safety. 41.The above notwithstanding, I find that it was incumbent on the 1st Appellant, knowing that he was carrying passengers who were at the risk of falling, to exercise greater caution since he was the driver and had full control of the motor vehicle. If the said motor vehicle was moving at low speed as alleged, then the fall may not have been fatal. In the circumstances of this case, I find it fair and reasonable to apportion liability in the ratio 70%:30% between the deceased and the 1st Appellant. 42.On the third issue, the law on special damages is well settled. Special damages must not only be specifically pleaded but must also be strictly proved. 43.In Jumbo Foam Mattresses Limited v Farrah [2025] KEHC 3549 (KLR), the Court held that special damages cannot be awarded where there is no documentary evidence adduced in support, and that it is not sufficient to merely list expenses without backing each item with evidence. A limited exception exists for funeral and burial expenses by virtue of the principle in Premier Dairy Limited v Amarjit Singh Sagoo & another [2013] eKLR, recognised in Jumbo Foam Mattresses, where the Court of Appeal acknowledged that bereaved families cannot be expected to maintain meticulous records when their primary concern is the burial of their kin. 44.It is noted that the Respondent's list of documents referenced receipts in support of the special damages claim of Kshs.131, 660/-.However, perusal of the record shows receipts amounting to a total of Ksh.90,360/- were tendered and include receipts for burial expenses. 45.This Court therefore finds that the award of special damages in the sum of Kshs.90,360/- was supported by the evidence adduced before the trial court and the same is awarded. 46.In the upshot this appeal partially succeeds. The trial court’s Judgment on liability is set aside and substituted accordingly. The claim for special damages is varied to the extend expressed above. 47.Quantum of damages was not appealed and therefore this court will adopt the computation by the trial court and therefore enter final judgment in favour of the Respondent against the Appellants as hereunder:Liability 70%: 30%General Damages for pain and suffering Ksh. 50,000Loss of expectation of life Ksh. 120,000Loss of Dependency Ksh.3,600,000Special damages Ksh. 90,360Total Ksh.3,860,360Less 30% contribution Ksh. 1,158,108Net Balance Ksh 2,702,252Interest is awarded on special damages from the date of filing suit in the lower court. 48.On costs, the court finds that the appeal has partially succeeded. I therefore order that parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH JUNE, 2026 THROUGH THE MICROSFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Ms Wamuyu For The AppellantMs Kibet Hb For Wangombe For The RespondentsCourt Assistant: Aggrey Ochieng