https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10237

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E032 OF 2025** **EDWIN OMONDI …..…………………………………………………. 1ST APPELLANT** **CHARLES ODHIAMBO ………………….…………………………….. 2ND APPELLANT** **-VERSUS-** **MIRIAM ANDAYI ANYANGU (Suing as the Personal Representative of the estate of JOSEPHAT ANYANGU (DECEASED) …………………..………………… RESPONDENT** *(****Being an appeal from the judgment/decree of the Honourable E.A. Obina (Senior Principal Magistrate) delivered on 17/01/2025 in Kisumu MCCC No. E183 of 2024)*** **JUDGMENT** 1. This is an appeal against the trial court’s determination on liability and assessment of damages under the Fatal Accidents Act. It arises from Kisumu MCCC No. E183 of 2024 in which the Appellants were sued by the Respondent for damages under the Fatal Accidents Act arising from the demise of the Plaintiff’s husband as a result of a road traffic accident that occurred on or about 30th September 2023 along Maseno-Kombewa road. According to the Plaint dated 8th April 2024, the deceased was lawfully riding on his motor cycle registration number KMEM 169X when upon reaching near Oree area, the 2nd Appellant’s motor vehicle registration number KCT 295W Isuzu Lorry was so carelessly and/or negligently driven by the 1st Appellant such that it lost control and came into a collision with the deceased’s motor cycle. As a result, the deceased was seriously injured to which he succumbed. The particulars of negligence attributed to the Appellants were set out in paragraph five of the plaint. The Respondent then filed her witness statement dated 29th January 2024, together with the statement of Luka Akuno Omutaro of the even date reiterating the averments as contained in the Plaint. Further, the Respondent filed a list of documents dated 8th April 2024 to be relied upon during trial to establish the case against the Appellants. 2. The Appellants filed their defence vide a Statement of Defence dated 13th June 2024, denied liability and in turn blamed the Respondent for the accident and injuries sustained. The particulars of negligence on the part of the Respondent were set out in paragraph 5 of the defence. The Appellants also listed the 1st Appellant as a witness and filed his statement. 3. On 24th October 2024, the matter came up for hearing of the Respondent’s case with the Respondent calling one witness, Luka Akuno Omutaro and the Respondent herself. The Respondent sought an adjournment to call the police officer as his witness. On 19th November 2024, when the matter came up for the hearing of the police officer’s testimony, the police abstract was produced as the Respondent’s evidence by consent of the parties. On 28th November 2024, the matter came up for hearing of the Appellants’ case. The Appellants called one witness, being the 1st Appellant, relied on his statement and did not produce any document. In its judgment, the trial court found the Appellants 100% liable for the accident. The trial court awarded damages for loss of dependency at Kshs. 2,688,000/- (14,000 by 12 by 24 by 2/3). 4. Aggrieved by the judgment of the lower court, the Appellants filed a Memorandum of Appeal dated 7th February 2025 and listed the following grounds of appeal: 5. The learned Magistrate erred in law and in fact by awarding liability at one hundred per centum, ignoring the testimony of the defence witness in totality, thereby making a wholly erroneous decision. 6. The learned Magistrate erred in law and fact by applying Kshs. 14,000 as the deceased’s monthly income for purposes of computing damages for loss of dependency yet the Plaintiff had tendered no evidence of the Deceased’s income, thereby making a wholly erroneous award. 7. The learned Magistrate erred in law and fact by considering irrelevant factors in applying a multiplier of 24 years. 8. The learned Magistrate showed extreme prejudice by totally ignoring the Appellant’s submissions on issues of law and evidence and thereby made an inordinately high award of damages. 9. The Appellants prayed that the appeal be allowed with costs and that the award for damages for loss of dependency be set aside and be substituted with an award favourable and calculated by this Honourable Court or a Global Award as the Court may deem reasonable. They further prayed that the award which the Honourable Court may deem reasonable be subjected to a contributory percentage. 10. The parties agreed to dispense the hearing of the appeal by way of written submissions. **APPELLANTS SUBMISSIONS** 1. The Appellants submissions are dated 22nd April 2026 and outline the key areas of appeal. On Ground 1 of the appeal, they submitted that the court did not analyse the Defence witness statement and testimony. The Appellants invited the Honourable Court to the trial court’s judgment at line 32 of Page 83 of the Record of Appeal, where the trial court stated that the defence did not adduce any evidence and/or even call a witness to contradict the Respondent’s case. The Appellants further referred the Honourable Court to page 34 of the Record of Appeal, where the Appellants’ witness, being the 1st Appellant, adopted his statement as his evidence in chief. It is on this basis that the Appellants argued that it is not true that the Appellants did not call a witness nor adduce evidence and urged the Honourable Court to consider the Appellants’ evidence. 2. The Appellants further submitted that PW2’s evidence is shaky and lacks credibility as he did not know the point of impact and point of final rest of both the motor vehicle and the motor cycle. The Appellants submitted that the said witness confirmed that he did not see which side of the road the accident happened and which direction the motor vehicle was heading towards. 3. It is also the Appellants’ submission that the Respondent failed to present the police officer to reconstruct the accident scene to enable the court to come to a conclusion on who is liable for the accident. They argued that the police abstract did not indicate who is to blame for the accident. It is their further submission that PW2 was not indicated in the police abstract as an eye witness and thus question his credibility. 4. The Appellants urged the Honourable Court to set aside the apportionment of liability and dismiss the Respondent’s suit. The Appellants further urged the Honourable Court to consider assessment of damages. The Appellants urged the Honourable Court to be guided by the Court of Appeal decision in **Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR** in determining whether it is justified in disturbing the quantum of damages awarded by a trial court. 5. On Ground 2 of the appeal, the Appellants did not submit on it. Although Ground 2 challenged the multiplicand adopted by the trial court, the Appellants did not advance any submissions in support thereof. It is settled that a ground of appeal upon which no submissions are made is ordinarily deemed abandoned. Consequently, this Court will not consider that ground. 6. On Ground 3 of the Appeal, the Appellants submitted that that the learned Magistrate erred in law and fact by considering irrelevant factors in applying a multiplier of 24 years. They relied on **Oyugi Judith & another v Fredrick Odhiambo Ongong & 3 others [2014] KEHC 8813 (KLR)** on the principles applicable to an assessment of damages under the Fatal Accidents Act. The Appellants argued that the trial court applied a Multiplier of 24 years in the ordinary import of 60 years as the retirement age but failed to consider the vicissitudes and vagaries of life. It is their submission that the trial court ignored their submissions on the vagaries of life. They relied on **Monica Njeri Kamau v Peter Monari Onkoba [2019] KEHC 9341 (KLR)¸** where the Court held that a multiplier of 11 years was reasonable for a Deceased who died at age 36. Given that time has passed, the Appellants urged the Court to extrapolate it to 14. 7. On dependency, the Appellants submitted that other than listing the dependants, there was no proof of dependency and therefore proposed that the Deceased used 1/3 of his income on the Respondent. It is on that basis that they proposed an award for loss of dependency of Monthly Earnings 14,000 × 12 Months ×14 years ×1/3 Dependency = Kshs. 784,000.00. **RESPONDENT’S SUBMISSIONS** 1. The Respondent’s submissions are dated 12th May 2026 in opposition to the appeal, on both liability and quantum. She cited **Anyinga v Khai & Another [2024] KEHC 1526 (KLR)** and urged the Honourable Court not to disturb the award of general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. 2. On liability, the Respondent submitted that she established the occurrence of the accident through oral testimony and documentary evidence. She further submitted that the Appellants did not rebut the evidence of PW2, Luka Akuno, who was an eye witness. As a result, it was her submission that where a defendant fails to rebut the plaintiff’s evidence, liability properly attaches. Since the Appellants did not produce independent evidence, they failed to displace the Respondent’s case. 3. Further, she refers the Honourable Court to the evidence of DW1, who is the 1st Appellant herein, where he stated in his witness statement dated 23rd October 2024 that he hooted to warn the Respondent but he ignored the warnings, forcing him to swerve on the opposite lane to avoid collision with it. In the process, the 1st Appellant hit the motor cycle on the left rear side of the lorry as the lorry lost control and veered off the road on the opposite lane. The Respondent submitted that the above admission is significant as it comprises an admission of occurrence of the accident, in addition to implicit acceptance of responsibility. The Respondent relied on **Kenya Power and Lighting Company Limited v. Nathan Karanja Gachoka & Another [2016] KEHC 1362 (KLR) [2016] KEHC 1362 (KLR).** 4. It is the Respondent’s submission that the Appellants did not call any independent eyewitness nor provide an alternative account of how the accident occurred. Instead, they denied the occurrence and liability in respect of the subject accident. The Respondent relied on **Nandwa v Kenya Nazi Ltd [1988] KECA 42 (KLR).** 5. The Respondent further submitted that the Appellants’ evidence was not ignored. They relied on **Mburugu & another v Nyongesa [2023] KEHC 24047 (KLR)** to argue that a trial court is entitled to reject defence evidence if it is not credible or persuasive. **ANALYSIS AND DETERMINATION** 1. Having read and considered the submissions together with the memorandum and record of appeal and the applicable law, these are the issues that come up for determination of this appeal: 2. Whether the learned Magistrate erred in holding the Appellants 100% liable for the accident. 3. Whether the learned magistrate applied the correct principles in assessing loss of dependency, particularly the multiplier. 4. **Whether the learned Magistrate erred in holding the Appellants 100% liable** 5. As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the court in a first appeal such as this one was stated in **Selle & Another –vs- Associated Motor Boat Co. Ltd. & Others (1968) EA 123** in the following terms: “I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 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 allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (***Abdul Hammed Saif*** ***–vs- Ali Mohamed Sholan*** ***(1955), 22 E.A.C.A. 270***).” 1. In **Peters v Sunday Post Ltd [1958] EA 424**, Sir Kenneth O'Connor observed that although an appellate court has jurisdiction to review the evidence, it should not differ from the findings of the trial court unless it is satisfied that the court failed to take account of particular circumstances or probabilities or its impression of the evidence is inconsistent with the evidence on record. 2. The Appellants' evidence consisted of the testimony of the 1st Appellant, who adopted his witness statement as his evidence-in-chief. In his evidence, he stated that upon noticing the deceased's motorcycle, he hooted to warn him but the deceased failed to heed the warning. He further testified that he swerved in an attempt to avoid the collision, but the lorry lost control, whereupon the deceased's motorcycle collided with the left rear side of the lorry. Contrary to the Respondent's submission, therefore, the Appellants did present an alternative account of how the accident occurred. The issue before this Court is not whether the defence presented an alternative version, but whether that version was sufficiently credible and probable to displace the Respondent's evidence on a balance of probabilities. 3. In determining that issue, this Court is mindful that liability is determined not by the number of witnesses called but by the quality and probative value of the evidence tendered. **Section 143 of the Evidence Act** expressly provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for proof of any fact. Consequently, the mere fact that the Appellants called only one witness cannot, of itself, be a basis for rejecting their defence. Equally, the absence of documentary evidence is not conclusive against a party. The court must instead evaluate whether the evidence adduced is sufficiently cogent, credible and probable to establish the facts asserted. 4. The Appellants did not produce any documentary evidence in support of their version of events. While there is no legal obligation requiring a defendant in a road traffic claim to produce documents such as a police file, sketch plan, inspection report or occurrence book extract, the availability of such evidence would ordinarily strengthen a party's account where the circumstances surrounding the accident are contested. In the present case, no explanation was offered for the failure to place before the court any investigative material capable of corroborating the 1st Appellant's testimony. The Appellants also did not place before the court any investigative material capable of corroborating the 1st Appellant's account of the accident. Consequently, the defence case rested solely on the oral testimony of the 1st Appellant. 5. I have carefully weighed that evidence against the Respondent's case. Although the 1st Appellant maintained that he swerved in an attempt to avoid the accident, he admitted that the collision occurred after his motor vehicle had crossed onto the opposite side of the road. That account, standing on its own, does not necessarily exonerate the Appellants from negligence. More importantly, no independent evidence was adduced to demonstrate that the deceased had created an emergency or that the manoeuvre undertaken by the 1st Appellant was the only reasonable course open to him in the circumstances. In the absence of such evidence, the Court is left only with the 1st Appellant's assertion that the deceased was solely to blame. 6. On the other hand, PW2 gave direct evidence of the occurrence of the accident. Although the Appellants criticised his testimony on the basis that he could not identify the precise point of impact or the final resting positions of the vehicles, those omissions did not undermine the substance of his evidence. It is not uncommon for an eyewitness to fail to recall every detail of an accident scene with precision. The proper inquiry is whether the evidence, taken as a whole, remains credible and internally consistent. Having reviewed the record, I find no material contradiction that would render PW2's evidence unreliable. 7. The Appellants further submitted that the Respondent ought to have called the investigating officer to reconstruct the accident scene. The burden imposed by **sections 107, 108 and 109 of the Evidence Act** is to prove negligence on a balance of probabilities; it is not a legal requirement that such proof be established to a higher evidentiary standard. The **Court of Appeal in Kirugi & Another v Kabiya & 3 Others [1987] KLR 347** reiterated that the burden of proof remains with the plaintiff throughout the trial and is not lessened merely because the defence appears weak. Similarly, in **Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR**, the Court observed that proof on a balance of probabilities is not attained by the quantity of evidence adduced but by its quality, the court being required to determine whether the evidence presented makes the existence of the asserted facts more probable than not. 8. In **Timsales Limited v Wilson Libuywa [2008] eKLR**, the Court of Appeal observed that a police abstract merely evidences the occurrence of an accident and is not conclusive proof of negligence. It follows that the absence of the investigating officer does not, without more, render a party's case incapable of proof where there is other credible evidence upon which the court can determine liability. 9. The Court further notes that although the Appellants now argue that the Investigating Officer ought to have testified, they did not object to the production of the police abstract when the matter was before the trial court. Instead, the document was admitted by consent, thereby dispensing with the necessity of calling its maker for purposes of production. Having elected that course, the Appellants cannot properly impugn the proceedings on the basis that the Investigating Officer was not called, particularly when they neither sought his attendance for cross-examination nor demonstrated what prejudice they suffered as a result. 10. I have equally considered the Appellants' submission that PW2 was not named as an eyewitness in the police abstract. With respect, I do not find that omission determinative. A police abstract is not intended to be a comprehensive summary of all the evidence gathered during investigations, nor does it constitute the evidentiary record of the case. The credibility of a witness is assessed by the court upon evaluating the consistency of his testimony, its coherence with the other evidence on record and the manner in which it withstands cross-examination. In the present case, nothing emerged from the cross-examination of PW2 that would justify rejecting his testimony. 11. Upon independently re-evaluating the evidence as required of this Court, I am satisfied that the Respondent proved negligence on a balance of probabilities. Conversely, while the Appellants presented an alternative account of the accident, that account remained uncorroborated and was unsupported by any objective evidence capable of demonstrating that the deceased was solely responsible for the collision. In the circumstances, I find that the defence evidence lacked sufficient probative value to displace the Respondent's case. I therefore find no reason to interfere with the learned trial magistrate's finding holding the Appellants wholly liable for the accident. 12. **Whether the learned magistrate applied the correct principles in assessing loss of dependency, particularly the multiplier** 13. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of **Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR** thus: “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 of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the 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.” 1. The Appellants contend that the learned Magistrate failed to consider the vicissitudes of life in adopting a multiplier of twenty-four years. The concept of the vicissitudes of life refers to the ordinary uncertainties attendant to human existence, including illness, accidents, loss of employment and other contingencies which may curtail a person's expected working life. 2. The assessment of a multiplier is not an exact science but an exercise of judicial discretion. The court must consider, among other matters, the age of the deceased, the nature of his occupation, the probable remaining working life and the ordinary contingencies of life. As stated in **Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another (Nairobi High Court Civil Case No. 1638 of 1988)**, the multiplier approach is intended to arrive at fair compensation rather than mathematical precision. It should take account the expectation of earning life, dependency, the chances of life and lump-sum payment. 3. The deceased was thirty-six years old. Assuming a retirement age of sixty years, the remaining working life would have been approximately twenty-four years. The learned magistrate adopted a multiplier of twenty-four years. In adopting a multiplier of twenty-four years, the learned magistrate was entitled to take into account the deceased's age and remaining working life. A multiplier is ultimately an exercise of judicial discretion dependent upon the circumstances of each case. 4. In **Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR**, the Court of Appeal reiterated that the multiplier approach is not a principle of law but a method of assessment and that courts should strive to achieve fair compensation rather than mathematical precision. 5. Authorities reveal that there is no fixed multiplier applicable to a deceased aged thirty-six years. In **Pleasant View School Ltd v Rose Mutheu Kithoi & Another [2017] eKLR**, the court upheld a multiplier of twenty years, while in **Elizabeth Chelagat Tanui & Another v Arthur Mwangi Kanyua [2013] eKLR** a multiplier of eighteen years was adopted. Conversely, in the case of **Anne Njoki Njenga**, as discussed by the High Court in **Nguku Julius alias Julius Kioko Nguli v Stephen Musau Kilonzo & Another [2019] eKLR**, a multiplier of fourteen years was adopted for a deceased of the same age. These decisions demonstrate that the appropriate multiplier is not determined by age alone but depends on the particular circumstances of each case, including the vicissitudes of life, the nature of the deceased's occupation and the expectation of continued dependency. In the circumstances of the present appeal, I am satisfied that a multiplier of 24 years cannot be said to be so inordinately high as to represent an erroneous estimate of the loss suffered by the dependants. 6. I am not persuaded that there exists any basis for interfering with the dependency ratio of two-thirds, the evidence having established that the deceased left behind a spouse and dependants, and no evidence having been adduced to justify a departure from the ratio (See **Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457** and **Boru v Onduu [1988–1992] 2 KAR 288**). **Conclusion** 1. Upon my own re-evaluation of the evidence, I am satisfied that the Respondent discharged the burden of proving negligence on a balance of probabilities and that the Appellants did not place before the court evidence sufficient to displace that case. 2. With regard to the award for loss of dependency, the Appellants abandoned their challenge to the multiplicand by failing to submit on that ground. As regards the multiplier, no error of principle has been demonstrated to warrant appellate interference. The learned magistrate exercised his discretion on proper principles, and this Court finds no basis for disturbing the award. 3. Consequently, the appeal lacks merit and is dismissed in its entirety. The judgment of the subordinate court is hereby upheld. The Respondent shall have the costs of the appeal. 4. It is so ordered. **DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10TH DAY OF JULY… .. 2026.** **HON. ALEX. K. ITHUKU** **JUDGE** **Mr. Mirende for the appellant** Respondents are served. Not present. **Mr Mirembe** I apply for stay of execution for 30 days. **HON. ALEX. K. ITHUKU** **JUDGE** **Court** Stay of execution for 30 days granted. **HON. ALEX. K. ITHUKU** **JUDGE**