https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12827

Okitoi & another v Kinyua & another (Jointly as Administrators of the Estate of Brian Saisi Abung’ana - Deceased) (Civil Appeal E057 of 2025) [2026] KEHC 12827 (KLR) (11 August 2026) (Judgment) Neutral citation: [2026] KEHC 12827 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E057 of 2025 MA Odero, J August 11, 2026 Between Julia Cherotich Okitoi 1st Appellant Patrick Wanjau Munyiri 2nd Appellant and Jane Wakonyo Kinyua 1st Respondent Peter Abung’ana 2nd Respondent Jointly as Administrators of the Estate of Brian Saisi Abung’ana - Deceased Judgment 1.The Appellants Julia Cherotich Okitoi And Patrick Wanjau Munyiri have filed this Memorandum of Appeal dated 16th September 2025 seeking the following orders:-“(a)The appeal be allowed.(b)The Honourable court be pleased to vary, vacate, review and/or set aside the judgment of the lower court both on liability and quantum.(c)The Honourable Court be pleased to order that the Respondents case in the lower court stands dismissed with costs.(d)The Honourable court be pleased to assess downwards the quantum of damages awarded to the Respondent.(e)The Respondent does pay the costs of this appeal and the costs in the lower court.(f)That further relief be granted as may appear just and appropriate to the Honoruable Court. 2.The respondents Jane Wakonyo Kinyua And Peter Abung’ana (jointly As Administrators Of The Estate Of Brian Saisi Abung’ana (Deceased) opposed the appeal. 3.The matter was canvassed by way of written submissions. The Appellants field the written submissions dated 25th February 2026, whilst the Respondents relied upon their written submissions dated 18th February 2026. Background 4.The genesis of this appeal is a road traffic accident which occurred on 28th March 2021 at about 0012 involving a motor vehicle registration Number KBG 406 V Toyota Ipsum and a motor vehicle registration number KCQ 466T BMW. The evidence before the Lower Court was that on the material day at about midnight the Deceased Brian Saisi Abung’ana was driving the vehicle registration KBG 406 V in the company of three friends along Mary Immaculate road near Beavers Hotel. 5.PW3 John Thiga Njue who was a passenger in the vehicle being driven by the Deceased told the court that their vehicle was involved in a minor accident when the deceased in an attempt to avoid hitting an electric pole instead hit a concrete wall. Police were called to the scene. 6.PW3 went on to state that at some point the deceased went to his stationery vehicle to collect his mobile phone. That the Deceased sat in the driver’s seat with the door open and his legs on the ground outside. PW3 also sat on the right rear passenger rear seat with the door open and his feet also on the ground. 7.PW3 says he saw lights of a vehicle approaching from Beavers direction. That vehicle registration KCQ 466 T which was being driven at a high speed crashed into the deceased’s vehicle crushing the legs of both deceased and PW3. 8.PW2 Jane Wakonyo was the mother of the deceased. She told the court that on the evening of 27th March 2021 the deceased went out with friends driving the family vehicle registration KBG 406V. 9.At about 5.00pm PW2 received a phone call informing her that her son had been involved in an accident. She rushed to PGH Nyeri and found the deceased admitted there with severe injuries. Shortly thereafter the deceased passed away. 10.PW1 Corporal Arthur Katurima testified on behalf of his colleague Corporal Opiyo who visited the scene and told the court that following the accident an inquest file No. 2 of 2022 was opened in which the Court blamed the driver of the motor vehicle KCQ 466 T for hitting a stationery vehicle. PW1 produced as an exhibit the police abstract Pexb 1. 11.The second defendant Patrick Wanjau Munyiri confirmed that on the 28th March 2021 he was driving a motor vehicle registration KCQ 466T along Beavers/Mary Immaculate road heading to his home in Skuta area. That he noticed another vehicle in the middle of the road. That he tried to brake to no avail and rammed into the stationery vehicle. 12.The 2nd defendant stated that he came out of his vehicle to assess the scene but the crowd became hostile so he had to run away for his safety. That he was later called back to the scene by police who assured him that it was safe to return. 13.Following the demise of the deceased his parents filed a Civil Suit No. 187 of 2023 in the Magistrates Court. Vide the plaint dated 13th September 2023 the Plaintiffs sought the following.“(a)General damages under the Fatal Accidents Act and the Law Reform Act.(b)Special damages of Kshs. 112,000(c)Costs of the suit.(d)Interest on (a), (b) and (c) above at Court rates.(e)Any further or better relief that the Honourable Court may deem fit to grant.” 14.The Defendants filed a statement of Defence dated 11th October 2023, denying the plaintiff’s claim. 15.On 19th August 2025 Hon. C. OBARA, Chief Magistrate delivered her judgment in favour of the plaintiffs and made the following awards:-“(a)Liability 85:15(b)General damages for pain and suffering - Kshs. 30,000/=(c)General damages for loss of expectation of life - Kshs. 140,000/=(d)General damages for loss of dependency - Kshs. 2,500,000/=(e)Special damages - Kshs. 112,000/=Total - Kshs. 2,782,000/=Less 15% liability - Kshs. 417,300/=Final Award -Kshs. 2,364,700/=Plus interest and costs from the date of judgement” 16.Being aggrieved by this judgment the Appellants (Defendants in the Lower Court) filed this Memorandum of Appeal which is premised upon the following grounds;-“ 1.That the Trial Magistrate erred in law and in fact in finding that the Appellants were 85% liable for the occurrence of the alleged accident. 2.That the Trial Magistrate erred in law and in fact in finding that the Respondents had discharged their burden of proof on a balance of probabilities. 3.That the Learned Magistrate erred in awarding the Respondents the sum of Kshs. 2,500,000/= for loss of dependency, Kshs. 30, 000/= for pain and suffering, Kshs. 140,000/= for loss of expectation of life and Kshs. 112,000/= for special damages. 4.That the Learned Senior Principal Magistrate misdirected herself in law by assessing general damages for loss of dependency at Kshs. 2,500,000/= which was manifestly excessive and incomparable to the common judicial awards.” Analysis And Determination 17.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 18.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.LAs we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..” 19.The first question to be answered is whether the Respondents had the requisite ‘locus standi’ to bring this suit. Locus standi is a latin term which literally means “place of standing” and refers to the capacity of a party to appear in a suit. 20.The Respondents are the parents of the deceased Brian Saisi and filed suit as the legal representatives of the estate of the Deceased. At Page 25 of the Record of Appeal filed on 25th November 2025 is a copy of a limited Grant of Representation Ad Litem issued to the Respondents on 24th November 2022 authrorising them to file suit as personal representatives of the Deceased. I am therefore satisfied that the respondents had legal authority to file suit on behalf of the estate of the deceased. 21.On the question of liability the trial court apportioned liability 85:15 in favour of the Respondent. In his evidence PW3 testified that the appellant was driving his vehicle at a high speed thereby causing it to ram into the Respondents vehicle which was stationery on the road. PW1 the police witness only produced as an exhibit the police abstract confirming that a report had been made regarding an accident. PW1 had no evidence regarding how the accident occurred. No sketch map was produced to enable the court visualize the scene and see the point of impact. 22.In Postal Corporaiton Of Kenya & Another -vs- Dickens Munayi [2014] eKLR the court held that“In my view it is only a sketch plan of the scene that could clearly map out how the accident occurred and particularly where the point of impact was. Lack of this crucial piece of evidence leads me to doubt the entire evidence.” 23.According to the evidence adduced in the Lower Court the respondents vehicle had rammed into a wall and was left stationary where it had stopped. Section 53(2, a & b) of the Traffic Act Cap 403 Laws of Kenya provides as follows:-“…..The driver of any vehicle shall, in case of a breakdown, remove such vehicle from the road as soon as possible and, until so removed the vehicle shall be placed as close to the side of the road as possible. If the vehicle remains on the road between the hours of 6:45 p.m and 6:15a.m, its position shall be clearly indicated by a light or lights visible to drivers of vehicles approaching from either direction….[Own emphasis] 24.Whereas section 53(3) provides inter alia;“If any part of the vehicle remains on or near the road in a position so as to obstruct or likely to obstruct or cause danger to other traffic using the road, the driver shall place on the road not less than fifty meters from the vehicle two red triangles of such construction and dimension as may be prescribed, one ahead and one behind it so that each is clearly visible to drivers approaching form ahead or behind, as the case may be……” 25.There is no evidence that he Deceased took any steps to move his vehicle off the road and/or to place warning triangles or even twigs and branches as is commonly done in Kenya to warn oncoming motorists of the presence of his stalled vehicle on the road. This was even more necessary given that the accident occurred at night when visibility was poor. 26.The Deceased must be apportioned blame for leaving his vehicle on the road with no warning to oncoming drivers thereby causing an obstruction to other road users. 27.In Kavuti -vs- Kingoo T/a African Classic Bakery & 3 Others [2018] eKLR the Court in a similar case held thus:-“Where a vehicle creates a dangerous obstruction on the road, liability may attach even if another driver collides into it. A driver must not leave a vehicle in a position that amounts to a trap to other road users. On the other hand, a driver must anticipate foreseeable hazards. It is common for motor vehicles to break down on the road. PW1 ought to have driven in a manner that would have enabled him to avoid the accident… However, I find the driver of KCH 588B substantially to blame. Had he put in place warning signs, given that it was dark and drizzling, meaning that there was poor visibility, the accident would most probably not have occurred. Consequently, I apportion liability at 30% against the driver of KCJ 134T and 70% against the driver of KCH 588B.” [Own emphasis] 28.In apportioning 85% liability on the Appellants the Learned trial magistrate accepted the testimony of PW3 that the Appellant was driving his vehicle at a high speed and therefore was unable to brake in time to avoid ramming into the Respondents vehicle. However the trial court failed to take into account the contributory factors of the Deceased leaving his vehicle stationary on the road without any warning of its presence there. 29.I therefore find that the Deceased’s actions substantially contributed to the accident. In the circumstances I find that an apportionment of liability of 30% against the Deceased (Respondent) was more appropriate. I therefore set aside the finding of liability at 85:15 made by the trial court and instead apportion liability at 30% for the Deceased and 70% against the Appellant. Quantum 30.On the question of quantum this court will be guided by the decision of the Court of Appeal in the case of Bashir Ahmed Butt -vs- Uwais Ahmed Kiharo (1982-88] IAR where it was 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….” 31.In the case of Southern Engineering Col Ltd -vs- Musungi Mutia [1985] KLR 730, it was held that the measure of quantum of damages to be awarded lies at the discretion of the trial court. 32.PW2 who was the deceased’s mother told the court that although the accident occurred at about midnight her son died in hospital the next morning at about 5.00am. 33.In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the court stated that;-“…..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.” 34.Under the heading of pain and suffering the trial court awarded Kshs. 30,000. In my view this was a reasonable award given that the deceased labored in pain for about five (5) hours before succumbing to his injuries. I am not inclined to disturb this award. 35.Under loss of expectation of life the trial court made an award of Kshs. 140,000/=. In the case of Hyder Nthenya Musili & Another -vs-china Wuyi Limited [Supra] the conventional award was set at Kshs. 100,000/=. In coming to her decision the learned trial magistrate considered the authority of Victor Hosea Letting -vs- Anwarali & Brothers Limteid & Another [2019] eKLR where an award of Kshs. 150,000 was made under this heading. I do agree that in this case the Deceased passed away in the prime of his youth being aged only 22 years as evidenced by the Death Certificate thus there was true expectation of life which was unfortunately cut short by the accident. I therefore find that the award of Kshs. 140,000 was within judicial precedent and I will not disturb the same. 36.For loss of Dependancy the trial court made an award of Kshs. 2,500,000/=. The Deceased had no wife or children but he was a graduate with a Diploma in Information Technology from Co-operative University and it was expected that he would in the future be providing assistance to his parents. The Respondents urged for the multiplicand approach whilst the Appellants urged the court to adopt the lump sum approach. 37.The Deceased was at the time of his demise yet to be employed and thus it was not certain what he would earn in future given the vicissitudes of life. Courts ought not adopt a multiplier approach where it would amount to speculation regarding dependency. 38.In the case of Albert Odawa -vs- Gichimu Githenji [2007] Eklr The Court In Citing The Holding In Mwanzia -vs- Ngalali Mutua Kenya Bus LTD stated as follows:-“The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma. It can and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.” [Own emphasis] 39.In this instance, the age of the deceased is undisputed having gleaned from the death certificate that he was 22 years of age at the time of his demise. The trial court adopted the lump sum approach and awarded Kshs. 2,500,000/- citing the Dependants/Appellant’s Kshs. 1,700,000 as too low. 40.This being an appeal on quantum damages, this court is guided by the legal principle enunciated in Butt v Khan (1981) KLR 349, which was applied in Kemfro Africa Ltd t/a Meru Express Service & Gathongo Kanini v A. M. Lubia and Olive Lubia (1982 - 1988) 1 KAR 727 at page 730, wherein Kneller JA started as follows;-“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former court of Appeal for East Africa to be that it must be satisfied that either the Judge in assessing damages, took into account an irrelevant factor, or left out of account a relevant one or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 41.The deceased was a recent graduate on the cusp of entering the workforce but was not at the material time gainfully employed to warrant the multiplicand approach and thus I find the trial court was correct in applying the global sum approach. I shall therefore not disturb the award of Kshs. 2,500,000 made by the trial court. 42.On the limb of special damages the trial court awarded Kshs. 112,000.It is trite law that special damages must be specifically pleaded and proved. 43.The Court of Appeal, in Premier Diary Limited vs. Amarjit Singh Sagoo & another [2013] eKLR, said as follows on the issue:“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved…………………… 44.Similarly, the Court of Appeal, in Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] eKLR, stated that:“We do not discern from our reading of this decision a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved….. We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc.However, the claim herein did not fall in that class.” 45.The Respondents claim for special damages included(a)Procurement of Grant Ad Litem - Kshs. 2,000/=(b)Post Mortem and Mortuary Cost - Kshs. 5,000/=(see page 46 of the Record)(c)Hearse - Kshs. 55,000/=(see page 47) of the Record)(d)County Funeral Services - Kshs. 50,000/=Total Kshs. 112,550.00 46.The above claims were all satisfactorily proved during the trial and are therefore merited and allowable. As such this award will not be disturbed. 47.Finally this appeal partially succeeds. The judgment delivered on 19th August 2025 is hereby set aside. This Court now enters judgment in favour of the plaintiff (Respondents) against the Appellant and makes the following awards;-(i)Liability 70:30(ii)Pain and Suffering - Kshs. 30,000/=(iii)Loss of Expectation of life - Kshs. 140,000/=(iv)Dependancy - Kshs. 2,500,000/=(v)Special damages - Kshs. 112,000/=Total - Kshs. 2,782,000/=Less 30% Liability - Kshs. 834,600/=Total Award - Kshs. 1,947,400/= 48.Interest and costs are awarded to the Respondents. DATED IN NYERI THIS 11TH AUGUST, 2026……………………….MAUREEN A. ODEROJUDGE