https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12840

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E060 OF 2024** NYAMIRA LUXURY EXPRESS CO. LTD…………….……… 1ST APPELLANT GUARDIAN BUSES COMPANY……………………………… 2ND APPELLANT VERSUS SAMUEL OMBUI MANYONI & MARGARET MAGOMA MOKAYA (Suing as the legal Representatives of the Estate of ALFRED MOKAYA OMBUI(DECEASED)……………………………………………. RESPONDENT *(An appeal arising from the judgment of the Chief Magistrate's Court at Nakuru (Hon. R. Kefa, PM) in Civil Suit No. 779 of 2018 delivered on 14th March, 2024)* **JUDGMENT** 1. This is an appeal against the judgment of Hon. R. Kefa, Principal Magistrate, delivered on 14th March, 2024 in NAKURU CMCC NO. 779 of 2018. 2. The suit arose from a fatal road accident that occurred on 25th December, 2017 at around 7:00 p.m. along the Nairobi–Nakuru highway at Barnabas area, involving a bus, registration No. KBR 141B, and a motorcycle, registration No. KMEA 500M. 3. The Deceased, Alfred Mokaya Ombui (the Deceased) was a rider of the above-mentioned motor cycle and carrying a pillion passenger, Sylvia Idaya Jumba. The Deceased, aged 27 years survived by his parents, died on the spot; the pillion passenger was injured. 4. The Deceased's parents, Samuel Ombui Manyoni and Margaret Magoma Mokaya, sued the bus company and its co-defendant in Nakuru CMCC No. 779 of 2018 as legal representatives of his estate, seeking damages under the Fatal Accidents Act and the Law Reform Act, plus special damages for funeral expenses. The deceased was said to have been a self-employed welder earning Kshs. 30,000–40,000 per month, though no documentary proof of his earnings or business registration was produced. 5. On 14th March 2024, Hon. R. Kefa, Principal Magistrate, found the Defendants 100% liable and awarded Kshs. 6,686,727/= for loss of dependency and Kshs. 149,825/= for special damages, a total of Kshs. 6,836,552/=. The dependency figure appears to rest on the Artisan Grade I minimum wage scale under the Kenya Subsidiary Legislation 2018 (Kshs. 28,822.10) as multiplicand, the trial court having accepted that lack of documentary proof of trade or income should not defeat a genuine claim for someone working informally. 6. Aggrieved by this decision, the Appellants, through the firm of M/s Kimondo Gachoka & Co. Advocates preferred this appeal based on fourteen grounds which in substance argue that: 7. the Trial magistrate erred in finding them 100% liable despite evidence — from the police file and their own witness (DW1) — that the deceased rider overtook improperly and contributed to his own death and to the pillion passenger's injuries; 8. no traffic charges were ever preferred against the bus driver, and the investigation remained officially unresolved; 9. the trial magistrate weighed the Respondents' case in isolation from the Appellants' case, precluding an impartial assessment of liability and quantum; 10. the loss of dependency award of Kshs. 6,686,727/= is inordinately high 11. the special damages award of Kshs. 149,825/= was not strictly proved. The Appellant prays that this Court allows the appeal, sets aside the judgment on liability and quantum, and substitute a fresh award, with costs. 1. The Respondents, through E.M. Juma & Ombui Advocates, rely substantially on the pillion passenger's statement in the police file, which blames the bus driver for approaching from behind and knocking the motorcycle down while overtaking — the opposite of the Appellants' account — and on an inconsistency between the bus driver's own statement (that he parked off the road) and the attending officer's finding that the bus was still on the road, on the left lane. On quantum, they maintain that dependency and the deceased's trade were adequately proved through oral testimony, consistent with the principle that documentary proof of income is not a precondition to a claim. They ask that the appeal be dismissed with costs. ANALYSIS & DETERMINATION 1. I have considered both parties submissions and authorities filed in respect to this appeal. 2. The appeal turns on two irreconcilable accounts of the same collision, neither corroborated by an independent eyewitness — the Appellants relying on the investigating officer's file recommendation blaming the rider, the Respondents relying on the pillion passenger's contemporaneous statement blaming the bus. 3. In the circumstances the issues for determination are as follows;- 4. ***Whether the trial magistrate erred in holding the Appellants 100% liable for the accident.*** 5. ***Whether the Respondents discharged the burden of proof under sections 107–112 of the Evidence Act.*** 6. ***Whether the deceased rider contributed to the accident, and if so, in what proportion.*** 7. ***Whether the award of Kshs. 6,686,727/= for loss of dependency was inordinately high or based on a wrong principle.*** 8. ***Whether the award of Kshs. 149,825/= in special damages was strictly proved.*** 9. ***Who should bear the costs of the appeal.*** 10. The Appellants primary contention is that the learned magistrate erred in finding them 100% liable for the accident. They argue that their evidence and submissions were not properly considered. 11. The evidence on record points to the following;- 12. ***The eye witness PW2 who was the pillion passenger and eye witness testified thst the bus (KBR 141B) overtook their motorcycle and knowcked them from the rear*** 13. ***PW1, the investigating officer produced the Police Abstract (Ex.7) and the police file (Ex. 10), which contained the Respondnet’s witness statement.The police file indicated the area of the accident and that the Deceased was found on the left side of the road.*** 14. ***DW1, the bus driver testified that he only heard a bang from the left rear tyre and did not see the accident. He testified that he stopped the bus and parked it off the road.*** **Analysis of the issues** **i) Whether the trial magistrate erred in holding the Appellants 100% liable for the accident?** 1. Two materially different accounts of the collision are before court, and neither is corroborated by an independent eyewitness. 2. According to the Appellants' account, that is DW1 who was the investigating officer, and their driver's own statement), the bus was in its correct lane and the motorcycle which attempted to overtake improperly from the left side of the bus was thrown off the road as a result; the investigating officer's recommendation on the police file blames the rider. 3. The Respondent’s account on how the accident occurred was given by the pillion passenger Sylvia Idaya's statement in the police file. That the bus, travelling behind the motorcycle, attempted to overtake and struck it from the rear, throwing it onto the tarmac. 4. A perusal of record before me confirms the driver stated he "heard a bang from the rear left tyre" and saw nothing before stopping. A language more consistent with a vehicle that struck something from behind than with a vehicle that was itself overtaken. 5. I also note the inconsistency in the Appellants' own evidence to the effect that the driver said he parked off the road after the accident, yet the attending officer, CPL Beatrice Nolari, found the bus still on the road, on the left lane. That inconsistency weakens, without destroying, the reliability of the driver's account of his own positioning. 6. I therefore do not accept that the record supports a finding of total liability against the Appellants. The investigating officer's own recommendation, echoed by both PW2 and DW1, attributes fault to the rider for overtaking improperly, and it is common ground that no traffic charges were preferred against the bus driver and that the investigation remained officially unresolved. 7. A finding of 100% liability cannot stand in the circumstances. 8. The Appellant has equally prayed that this Court finds the rider wholly to blame. The pillion passenger's statement is a on-scene account, not a bystander's inference and squarely places the fault on the bus for an unsafe overtaking manoeuvre. 9. Weighed against that is an investigating officer's recommendation from a file both police witnesses conceded was still technically "pending," and a driver's account of his own positioning that is contradicted by the attending officer's own observation. 10. I am therefore not persuaded that the Appellants have shown, on a balance of probabilities, that their driver was in no way to blame. 11. Where the evidence does not conclusively favour one party, the settled approach restated in **Hussein Omar Farah v Lento Agencies, Civil Appeal 34 of 2005 [2006] eKLR** where it was held as follows; ***"If there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame to share liability.”*** 1. But equal apportionment is the default only where the two accounts are evenly balanced and I do not find them evenly balanced here. 2. The claim that the rider was to blame for overtaking improperly comes from a different source entirely. It is the Respondents' own witness, PW2, who testified on cross-examination as to what the investigating officer's recommendation on the file actually was and DW1 independently confirmed the same conclusion. That is closer to an admission against interest than a self-serving defence account and I cannot simply set it aside. 3. At the same time, I accept that an eyewitness physically present at the point of impact ordinarily carries more weight than an unsigned investigative recommendation whose author never testified and whose basis was never tested under oath. 4. The balance here tips further in the Respondents' favour given the additional weight of the pillion passenger's direct, percipient account and the corroborating detail in the bus driver's own statement that he heard, but did not see, the point of impact. 5. I therefore set aside the trial court's finding of 100% liability against the Appellants and substitute a finding of 90% liability against the Appellants and 10% contributory negligence against the deceased. 6. I do not accept that the trial magistrate's finding lacked any evidential basis as she had before her the police file, the investigating officer's recommendation, and the pillion passenger's statement, and was entitled to prefer the Respondents' account of events. Her error, as I find it, was narrower: she did not engage with the contributory-negligence evidence squarely raised by the Appellants' own witness and reflected in the investigation file itself, and so arrived at a finding of total liability that the evidence, taken as a whole, does not support. 7. The Appellants argue that the learned magistrate erred in using Kshs. 28,822/- per month as the deceased's income. They submit that the minimum wage of Kshs. 6,415/- should have been applied instead. # From the evidence of record, I note that the Respondents produced evidence from the Kenya Subsidiary Legislation 2018, which provides for the earning scale of Artisan Grade 1 at Kshs. 28,822.10 per month. # The deceased was a welder, a skilled artisan, and the Respondents relied on the legislative provision to establish his income. # The Appellants did not adduce any evidence to challenge the income figure used by the trial court. # In fatal accident claims, courts are required to use the actual income of the deceased if it is proven # For skilled workers, such as welders, industry-specific rates apply, not the minimum wage. # The minimum wage (Kshs. 6,415/-) is applicable to unskilled labor, not skilled artisans. # The deceased was a welder hence a skilled artisan. The Respondents provided legislative evidence (Kenya Subsidiary Legislation 2018) to support the use of Kshs. 28,822/- per month for an Artisan Grade 1. This figure is reasonable and justified for a skilled welder. # The Appellants' argument that the minimum wage should have been used is misconceived. The minimum wage applies to unskilled labor, not skilled artisans like welders. Furthermore, the Appellants failed to adduce any evidence at the trial stage to challenge the income figure used by the court. # Accordingly, I find that the learned magistrate did not err in using Kshs. 28,822/- per month as the deceased's income. The Appellants' argument on wage rate fails. Grounds 9-10 and 12 of the appeal are dismissed. # Although not explicitly pleaded in the Memorandum of Appeal, the Appellants' submissions touched on the quantum of damages. The trial court applied a 2/3 dependency ratio to calculate the loss of dependency. # The dependency ratio in fatal accident claims depends on the circumstances of the case. For a married person with dependants, the standard ratio is 2/3 (Butt v Khan [1977] eKLR while for a single person with only parents as dependants, the appropriate ratio is 1/3, as the deceased would have had significant personal expenses and future contingencies (e.g., marriage, children). # The deceased was a 27-year-old, single welder with only his parents as dependants. In such cases, the 1/3 dependency ratio is more appropriate, as the deceased would have spent a significant portion of his income on personal expenses and future contingencies. 1. However, this ground was not explicitly pleaded in the Memorandum of Appeal. The Appellants' grounds on quantum (Grounds 9-10, 12) are general and do not specifically challenge the dependency ratio. Under Order 2 Rule 4 of the Civil Procedure Rules, parties are bound by their pleadings, and new grounds cannot be introduced on appeal without leave. 2. Since the dependency ratio was not explicitly pleaded in the Memorandum of Appeal, the Appellants cannot raise this issue through submission. 3. The Appellants did not contest the special damages awarded of Kshs. 149,825/- at the trial stage. Under the principle that special damages must be specifically pleaded and proven and given that they were not challenged at trial, they are not disputable on appeal 4. The award of Kshs. 149,825/- for special damages is upheld. 5. After carefully considering the grounds of appeal, the evidence on record, and the submissions by both parties, the court finds that: 6. The learned magistrate did not err in finding the Appellants 100% liable for the accident. 7. The learned magistrate did not err in using Kshs. 28,822/- per month as the deceased's income. 8. The appeal is without merit It is dismissed in its entirety with costs to the Respondent. **Dated, signed, and delivered at Nakuru this 13th day of August, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A Miss Mwaura holding brief for Nasimiyu for Appellant Obura for Respondent