https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9042

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI, NAIROBI** **CIVIL APPEAL NO. E087 OF 2024** **KAHUNYO JAMES MWERI ........................................................ 1ST APPELLANT** **JULIUS MAINA .......................................................................... 2ND APPELLANT** **-VERSUS-** **SELINA ACHIENG' OMENDA** **(SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF THE LATE JAMES OTIENO OMENDA (DECEASED))……………..……….... RESPONDENT** *(Being an Appeal from the Judgment of the Honourable Hosea Ng'ang'a delivered on 18th January, 2024 in Milimani CMCC Suit No. E770 of 2022)* **JUDGMENT** 1. Life is a fragile tapestry, easily torn apart by a single careless moment on our busy roads. Every so often, this Court is called upon to gaze into the profound human tragedy left in the wake of road carnage. This appeal beckons the Court to revisit the events of the fateful evening of Sunday 14th July 2019 an evening that prematurely extinguished the light of a vibrant 27-year-old man, James Otieno Omenda and left a grieving mother seeking to balance the scales of justice. 2. It is a case that juxtaposes the cold mechanics of a tragic traffic accident against the enduring love and dependency of a mother. In resolving this dispute, the Court must apply the strict tenets of the law, yet remain profoundly aware that behind every case file lies a human story waiting to be heard, understood and rightfully adjudicated. **BACKGROUND** 1. The genesis of this appeal traces back to the Milimani Chief Magistrate's Court. The Respondent, Selina Achieng' Omenda, instituted Civil Suit No. E770 of 2022 in her capacity as the legal representative of the estate of her late son, James Otieno Omenda seeking general and special damages under the Law Reform Act and the Fatal Accidents Act. She averred that on 14th July 2019 at around 8:30 P.M, the deceased was lawfully riding his motorcycle, registration number KMES 324Y TVS, along Jogoo Road opposite the Blue Sky Flats. 2. Tragically, his journey home was violently cut short when an Isuzu Minibus, registration number KCK 446G, owned by the 1st Appellant and driven by the 2nd Appellant at the material time, carelessly and negligently rammed into the deceased. The impact inflicted fatal blunt force trauma upon the young man who despite being rushed to Mama Lucy Kibaki Hospitalsuccumbed to his extensive injuries on the same night while undergoing treatment. 3. The trial court, presided over by Hon. Hosea Ng'ang'a, heard the emotional testimony of the deceased's mother (PW1) and PC Benard Wanami (PW2). Finding the Appellants entirely culpable for the accident, the learned trial magistrate entered judgment in favour of the Respondent on 18th January 2024, awarding Kshs. 100,000/= for General Damages; Kshs. 100,000/= for Loss of Expectation of Life; Kshs. 2,250,000/= for Loss of Dependency; and Kshs. 439,835/= in Special Damages. **THE APPEAL** 1. Aggrieved, yet perhaps unable to confront the stark reality of their liability, the Appellants lodged the present appeal. Their Memorandum of Appeal dated 18th January 2024 essentially contends that the trial magistrate erred in law and fact by ignoring their submissions, arriving at a 100% liability finding against them and granting awards that they term as excessive and unjust in the circumstances. The Appellants pray that the judgment be set aside or, in the alternative, that the awards be reassessed downwards. 2. The appeal was canvassed by way of written submissions. The Appellants sought to have the judgment set aside, arguing that the Respondent failed to prove negligence and that the damages awarded were disproportionate. 3. Conversely, the Respondent filed eloquent submissions defending the trial court’s findings, maintaining that the burden of proof was met and that the awards were a fair and conservative reflection of a mother's devastating loss. **ISSUES FOR DETERMINATION** 1. This being a first appeal, this Court is acutely mindful of its solemn duty to re-evaluate, re-assess and re-analyze the evidence on record and draw its own independent conclusions, while giving due regard to the trial magistrate who had the distinct advantage of observing the demeanor of the witnesses. 2. Having carefully perused the record of appeal, the rival submissions and the applicable jurisprudence, two primary issues crystalize for my determination: 3. Whether the trial court erred in finding the Appellants 100% liable for the accident. 4. Whether the quantum of damages awarded by the trial court was so inordinately high as to warrant the interference of this appellate court. **ANALYSIS AND DETERMINATION** 1. ***The Question of Liability*** 2. A motor vehicle in the hands of a reckless driver is no different from a loaded weapon. The rules of the road are not mere suggestions, they are the fragile threads that keep the fabric of public safety intact. At the trial, the Respondent led cogent evidence through PW2, PC Bernard Wanami, who gave a vivid and unshakeable description of the accident. He testified that the 2nd Appellant who was the driver of the minibus failed to adhere to traffic rules, resulting in the fatal collision. The 2nd Appellant was subsequently blamed and recommended for prosecution. 3. Section 107(1) of the Evidence Act provides: **Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** 1. Section 109 of the Evidence Act stipulates: **The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.** 1. The aforementioned sections of the Evidence Act place the burden of proof on the party who asserts a fact. The Respondent discharged this burden on a balance of probabilities. What did the Appellants offer in rebuttal? A deafening silence. They failed to tender any substantive evidence to shift the blame to the deceased. It is a well-settled principle of law that where a party fails to adduce evidence to rebut cogent testimony, the court is left with no option but to accept the uncontroverted evidence. In **AMK (Suing as the mother & next friend of JMK – Minor) v Kenya Power & Lighting Company Limited [2020] KEHC 6796 (KLR),** the High Court astutely observed: **"Where a party fails to call evidence in support of its pleading (be it a plaint or defence), the evidence of the opposing party is to be believed as having not been rebutted..."** 1. The Respondent established a prima facie case of negligence against the 2nd Appellant. The evidential burden shifted to the Appellants to controvert this. By failing to do so, the Appellants left the Respondent's evidence unchallenged. I therefore find no error in the trial magistrate's conclusion attaching 100% liability to the Appellants. 2. ***The Sanctity of the Assessment of Damages*** 3. The Appellants launch a spirited attack against the damages awarded, terming them "excessive." It is necessary to pause and remind ourselves of the hallowed principles governing appellate interference with damage assessments. This Court is not a surgeon wielding a scalpel, eager to trim trial court awards simply because another figure appears preferable. 4. An appellate court's power to interfere with an award of damages is circumscribed. As eloquently laid out in Butt v Khan (1977) 1 KAR, **“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.”** 1. The law regarding special damages is trite. Special damages must be specifically pleaded and strictly proved. The Respondent pleaded the sum of **Kshs. 439,835/=,** comprising medical expenses, funeral expenses and vehicle search fees. She painstakingly produced original receipts and documentation to prove each item. A mother who has to sell her cows to bury her beloved son deserves every cent of those proven expenses reimbursed. The trial court made no error here. 2. Furthermore, the Appellants did not challenge these documents at trial. An appellate court cannot, therefore, interfere with a claim that was pleaded and perfectly proved by documentary evidence. 3. The trial court awarded **Kshs. 100,000/=** for Pain and Suffering and **Kshs. 100,000/=** forLoss of Expectation of Life. The Appellants argued that the deceased died shortly after the accident and thus the award for pain and suffering should be non-existent or strictly nominal. 4. I am guided by the principles enunciated in **Mercy Muriuki & another v Samuel Mwangi Nduati & Anor [2019] eKLR**, where the court observed: ***“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”*** 1. The post-mortem report painted a grim picture; the deceased suffered fractured ribs on the left side, a lacerated kidney, punctured lungs and multiple blunt force trauma. The deceased did not die instantly, he endured excruciating, albeit brief, agony as life slowly slipped away from him in the hospital ward. Though money can never replace a life, these nominal and conventional awards offer a symbolic acknowledgment of the pain endured before taking the final breath. They are beautifully within the acceptable, conventional legal brackets. 2. The crux of the Appellants' grievance lies in the Kshs. 2,250,000/= awarded for Loss of Dependency. They argue that because the deceased was a boda-boda rider and no documentary proof of income such as payslips or bank statements was produced, the trial court should have either dismissed the claim or significantly lowered the multiplicand. 3. To accept the Appellants' argument would be to blindfold justice to the vibrant reality of the Kenyan socio-economic fabric. The *'jua kali'* artisan, the mama mboga, the small-scale farmer and the boda-boda rider form the very backbone of our economy. They do not clock in at polished human resource desks, nor do they receive neatly printed pay slips at the end of the month. Yet, they toil under the scorching sun, they earn an honest living and they support their families with unmatched dedication. 4. The Court of Appeal, in a breath of profound judicial wisdom in **Jacob Ayiga Maruja & another v Simeon Obayo [2005] KECA 202 (KLR)**, forever settled this debate by holding: **"We do not subscribe to the view that the only way to prove profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things."** 1. A monthly income of Kshs. 15,000/= for a boda-boda rider is not merely reasonable, it is modest. The trial court properly adopted this multiplicand. Furthermore, a multiplier of 25 years for an energetic 27-year-old man and a dependency ratio of 1/2 for a bachelor supporting his mother, are entirely appropriate and line up with the principles of assessment. Denying fair compensation purely for lack of formal documentation works a grave injustice. **The *Question of Double Compensation*** 1. The Appellants raised the recurring issue of "double compensation," arguing that the damages awarded under the Law Reform Act must be deducted from the Fatal Accidents Act award. This issue has frequently confounded litigants, but it has been decisively settled by the Court of Appeal. 2. In **Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR)** the Court adopted the reasoning from **Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015]** eKLR, holding that: ***“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction…In my considered view, it would be a futile exercise for a court to labour to make an award under the Law Reform Act and then proceed to deduct it from the award under the Fatal Accidents Act. Effectively such deduction would nullify the benefits intended by the two Acts of Parliament for deserving claimants.”*** 1. Accordingly, the trial magistrate committed no error in maintaining the separate awards under both Acts without rendering a mathematical deduction that would unjustly deprive the estate of its rightful compensation. **DETERMINATION** 1. As this Court pens the final chapter of this appeal, it must be said that the halls of justice do not exist to frustrate the genuinely aggrieved through rigid technicalities or unfeeling arithmetic. The trial magistrate acted with judicial valor, properly appreciating the evidence and applying the correct principles of law to deliver a judgment that resonates with fairness. 2. The upshot of the foregoing analysis is that this appeal lacks merit. It is a futile attempt to escape the undeniable consequences of a tragedy birthed by their own negligence. The trial court’s judgment is sound legal reasoning and must remain undisturbed. 3. Consequently, I make the following final orders: 4. The Appeal is hereby dismissed in its entirety. 5. The Judgment and Decree of the Honourable Hosea Ng'ang'a delivered on 18th January 2024 in Milimani CMCC Suit No. E770 of 2022 is upheld and affirmed. 6. The Respondent shall have the costs of this Appeal. **IT IS SO ORDERED.** **Dated and delivered at Nairobi this 25th Day of June, 2026.** **BENARD WAFULA MURUNGA** **JUDGE** ***Delivered on virtual platform in the presence of:*** ***Ms Kwarikwar for Respondent*** ***Kevin Babu - Court Assistant***