https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6881

Nzau & another v Emmanuel & another (Suing as Administrators of the Estate of the Late Brian Baraza Wafula - Deceased) (Civil Appeal E320 of 2025) [2026] KEHC 6881 (KLR) (Civ) (19 May 2026) (Judgment) Neutral citation: [2026] KEHC 6881 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E320 of 2025 FR Olel, J May 19, 2026 Between Alfred Mitau Nzau 1st Appellant Elite Accounting Serives Ltd 2nd Appellant and Leonard Wafula Emmanuel 1st Respondent Liveena Atieno Oginga 2nd Respondent Suing as Administrators of the Estate of the Late Brian Baraza Wafula - Deceased (BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF THE HON THOMAS NYZOKI (CM) DATED 14th FEBRUARY 2025 IN MILLIMANI CMCC CASE NO E13072 OF 2022) Judgment A. Introduction 1.The Appellants were the defendant’s in the primary suit, where they had been sued for compensation based on a tort of negligence arising from a fatal Road Traffic Accident which occurred on 19.07.2021 at about 23.29hrs. The respondent averred that on the material night, the deceased was a pillion passenger on motorcycle registration Number KMFS 076F (hereinafter referred to as the suit motorcycle) and were travelling on the outer-lane of Thika superhighway when at around roasters area, the 1st defendant driving motor vehicle registration Number KCS 954T Toyota Fielder ( hereinafter referred to as the suit motor vehicle) abruptly joined the road without giving way and in the process knocked down the suit motorcycle and ran over the deceased, causing him to suffer fatal injuries. 2.It was their further contention that as a result, the deceased estate had suffered loss and damage, as the deceased was their sole bread winner and thus sought to be compensated for the loss suffered. 3.The Appellants filed a joint statement of defence denying each allegation of fact pleaded and put the respondents to strict proof thereof. In the alternative they also averred that if said accident did occur, (which was denied) then it was the deceased who was negligent as he had failed to wear protective gear, was reckless and disregarded his own safety and put the respondent’s to strict proof to the contrary. B. Facts at Trial 4.PW1 Cpl Hassan Njeru Njoka of Kasarani police station (Traffic base) confirmed that indeed the accident did occur and resulted in one fatality. The 1st appellant was charged with the offence of causing death and dangerous driving and he had admitted the said offence and was fined. He produced the police abstract into evidence. PW2 Jonah Kilemi Kubai, who was the rider of the suit motorcycle adopted his witness statement where he explained how the said accident occurred and reaffirmed that they were both wearing helmets at the material time of the accident. 5.PW3 Liveena Atieno Oginga, also adopted her witness statement, and her claim supporting documents were admitted as exhibits in support of her case. She explained that she was the deceased wife and that they were blessed with two children. On 20.07.2021 in the wee hours of the morning, her father-in-law had called her and told her that the deceased had been involved in an fatal accident along Thika road and they later went and viewed his body at Kenyatta National hospital funeral home. Postmortem was done and it was ascertained that he suffered multiple injuries and blunt force trauma caused by the said accident. 6.They had spent approximately Kshs.163,000/= as funeral expenses and further stated that the deceased was a university graduate, who was a director at Naiccom Limited, and would draw a monthly salary of Kshs.80,000.00/= which he would use to maintain his family and parents. That as a result of his death, they had lost their bread winner and prayed to be compensated accordingly. 7.The respondents did close their case at that point and later liability was settled by consent at 85:15 in favour of the respondents. The appellants thereafter closed their case without calling any witness 8.The trial court did consider the pleadings, evidence adduced and submissions filed. In his considered judgment, he upheld the consent on liability at 85:15% in favour of the respondents, and on quantum he awarded the respondent as follows; General damages for pain and suffering Kshs.50,000/=, loss of expectation of life Kshs.100,000/=, loss of dependency Kshs.12,800,00/= (80,000/= x 12 x 20 x 2/3). Special damages pleaded and proved was awarded at Kshs.164,380/= plus cost and interest of the suit. 9.Being dissatisfied and aggrieved by the said award the appellants filed their memorandum of appeal raising eight (8) grounds of appeal, namely;a.That the trial court, as the court of 1st instance, failed to thoroughly examine and evaluate the evidence placed before it particularly the compelling and glaring evidence of insurance fraud, forgery, and production of forged and/or fraudulent documentation by the respondent.b.That the trial court erred in law and in fact by departing from the well-established principles that an award for loss of dependency must be substantiated by evidence.c.That the trial court erred in law and in fact by awarding the respondent the sum of Kshs.12,800,000/= for loss of dependency, in the absence of proof establishing dependency or evidence of dependency relationship.d.That the trial court erred in law and in fact by finding that the Appellant failed to challenge the 1st respondent’s testimony on dependance and the deceased person’s employment/earnings, when in fact, these issues were contested by the appellants during cross examination and written submissions.e.That the trial court erred both in law and fact by determining the deceased income to be Kshs.80,000/= despite the absence of any evidence confirming employment or any verifiable source of an income generating activity.f.That the trial court erred both in law and fact by relying on a dependency ration of 2/3 in the absence of evidence establishing that the deceased person was married to the 2nd respondent or that the deceased person was the biological father of the minor, Collet Tyana Otieno.g.That the trial court erred in law and in fact by awarding compensation under fatal accidents act in the absence of evidence establishing that the 2nd respondent was the wife of the deceased person, or that the deceased was the biological father of the minor, Collet Tyana Otieno.h.That the trial court erred in law and in fact by finding that the appellants did not dispute the award of special damages amounting to Kshs163,000/= when in fact, the Appellants explicitly contested the sums claimed by the respondents at paragraph 31 – 32(i) –(iv) of their written submissions. C. Analysis and Determination 10.I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited(1968) EA 123 11.A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act. A court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316 12.In this Appeal, the Appellants are challenging both liability and the quantum of damages awarded by the trial court. Liability 13.Specifically on liability the appellant alleged that the respondent’s case was premised on forged documents and was designed to promote insurance fraud. Unfortunately, this line of submission cannot hold since the respondents bundle of claim supporting documents was admitted into evidence by consent, apart from the police abstract, which was produced by PW1. If indeed the said documents were forged, the appellant ought to have challenged the appellants’ evidence by bringing in expert evidence to prove the said fraud. When given an opportunity to call their witnesses to defend the claim, they failed to do so and instead consented to liability being assessed at 85.15% in favour of the appellant 14.The respondents evidence was therefore uncontroverted and as held by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) -v-Thomas Ondiki Oduor & Another 2019 eKLR where he stated:-“ 22.There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements. 23.In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged. 15.The Appellants appeal on this front therefore fails and is dismissed. Quantum 16.On quantum, in Woodruff Vs Dupont (1964) EA 404 it was held by the East African court of Appeal that;“The question as to quantum is one of fact for the trial judge and the principles of the law enunciated in the decided cases are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so indefinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of a fact from doing justice between the parties. So to use them would be to misuse them…….The quantum of damages being a question of fact for the trial judge to determine, the sole question for determination in this Appeal is not whether he follows any particular rules or the orthodox method in computing the damages claimed by the plaintiff, but whether the damages awarded are, “such as may fairly and reasonably be considered as a rising according to the usual cause of things, from the breach of contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendants. 17.This court is further guided by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR where the Court set out the parameters under which an appellate court will interfere with an award in general damages and held that:“An appellate court will not disturb an award for general 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...” 18.The appellant faulted the trial magistrate award for loss of dependency and stated that deceased earnings were not proved. This submission is incorrect as it was established that the deceased was a director at Niccon limited and earned a gross salary of Kshs.80,000/=. The only error noted is that the trial court calculated dependency ratio using gross income instead of net income. For this proposition, am guided by the observation of the Court of Appeal for East Africa in the case Chunibhai J Patel and Another vs PF Hayes and Others [1957] EA 748, observed that:“The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependent’s, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependent’s. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase.” 19.The deceased earned Ksh.80,000/= less tax (PAYE), SHA, and Housing tax his earning would probably reduce to about Kshs.50,000. It would also be accurate to assume that for an average middle-aged man with dependents both immediate family and parents would have a bank or Sacco loan which would probably take another Kshs.10,000/= off his pay slip. The loss of dependency should have thus been calculated at (40,000/= x12 x20 x 2/3=6,400,000/=). Special damages was specifically pleaded and proved by the receipts provided. C. Disposition 20.Flowing from the above, I do find that this Appeal is partially successful and the award on loss of dependency in the judgment of the primary suit is set aside and reduced to Ksh.6,400,000/=. All grounds of Appeal lack merit and the same is dismissed. 21.Judgment is therefore entered into for the respondent as follows:i.Pain and suffering Kshs.50,000/=.ii.Loss of expectation of life Kshs.100,000/=iii.General damages under fatal accident Act Kshs.6,400,000/=.iv.Special damages Kshs.164,380/=Sub Total Kshs.6,714,380/=Less 15% contributory negligence Kshs.1,007,157/=.v.Judgment is therefore entered for the respondents in the sum of Kshs.5,707,223/= 22.The respondent is awarded costs of the primary suit plus interest at court rated until payment in full. 23.Each party will bear their own costs of this Appeal 24.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT THIS 19TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Team this 19TH day of MAY, 2026.In the presence of: -N/A………………………………..AppellantN/A…………………………. RespondentJARSO………………………………. Court Assistant