Kyule v Chanzu (Civil Appeal E088 of 2025) [2026] KEHC 7147 (KLR) (Civ) (22 May 2026) (Judgment)

Kyule v Chanzu (Civil Appeal E088 of 2025) [2026] KEHC 7147 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7147 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E088 of 2025 AN Ongeri, J May 22, 2026 Between Patrick Thendu Kyule Appellant and Margaret Kagetha Chanzu Respondent (Being an Appeal from the Judgment of Hon. L.A. Mumassaba (PM) in Milimani CMCC No. E1594 of 2021 delivered on 16th November, 2025) Judgment 1.The Respondent in this Appeal sued the Appellant in her capacity as the Legal Representative of Daniel Sanju Kagetha (deceased) who was hit by Motor vehicle Registration No. KCG 482M along Kiambu Road on 17/6/2020. 2.The Respondent alleged in her Plaint dated 3/3/221 that the deceased was a pedestrian along Kiambu Road when he was hit by the said Motor vehicle at junction. The deceased was a boda boda operator earning Ksh. 60,000/= per month. 3.The Appellant who was driving the said Motor vehicle said that the deceased abruptly entered the road and he was hit by the motor vehicle. 4.There was no other eye witness to the accident. 5.The trial Court apportioned liability at 80 : 20% in favour of the Respondent against the Appellant and assessed damages as follows:-i.General damages for pain and suffering Ksh. 30,000/=ii.Loss of Expectation of life - Ksh. 100,000/=iii.Loss of Dependency – A global figure of Ksh. 2,000,000/=.iv.Special damages – Ksh. 65,742/=Total Ksh. 2,130,000/=Subject to 20% contributoryNegligence Ksh. 1,769,742/= 6.The Appellant has appealed against the said Judgment on the following grounds:-i.That the learned Magistrate erred in law and in fact in finding that the Appellants were 80% liable even after finding that the Respondent had failed to prove negligence on the part of the Appellant.ii.That the learned Magistrate erred in law and in fact in finding that the Respondent were 20% liable notwithstanding that the fact that the Appellant had demonstrated that the accident had been caused by the Deceased.iii.That the learned Magistrate erred in law and in fact in assessing loss of dependency in the sum of Ksh. 2,000,000/= which award is inordinately high and excessive.iv.That the learned Magistrate erred in law and in fact in assessing special damages in the sum of Ksh. 65,742/= which award is inordinately high and excessive.v.That the learned trial Magistrate erred in law and in fact in failing to apportion costs of the Suit in the same ratio as liability. 7.The parties filed written submissions as follows; The Appellant submitted that the suit was originally brought by the Respondent on behalf of herself and as an administrator of the estate of the deceased, who tragically lost his life when his motorcycle collided with the Appellant's lorry along Kiambu Road on June 17, 2020. 8.The Appellant is vigorously challenging the trial court’s findings on both liability and the assessment of damages. 9.On the question of liability, the Appellant contends that the trial court made contradictory and legally unsupportable findings. 10.The submissions highlight that the Respondent failed to call any eyewitnesses and instead relied on a police officer whose cross-examination revealed that the deceased's motorcycle had actually left its lane, lost control, and hit the lorry on its right side while the lorry was swerving left to avoid a head-on collision. 11.This version of events was corroborated by the defence witness. 12.The trial court explicitly noted in its judgment that the Respondent failed to produce any investigation reports, scene sketches, or photographs, ultimately concluding that she had not discharged the burden of proving negligence on a balance of probabilities. 13.Despite these clear findings that fault had not been established, the trial court inexplicably proceeded to apportion 80% liability to the Appellant and 20% contributory negligence to the Respondent. 14.The Appellant argues that there is absolutely no foundation for this 80:20 distribution, particularly since Kenyan jurisprudence firmly rejects liability without fault. 15.Citing established case law, the Appellant asserts that the mere occurrence of an accident does not prove negligence and that once the trial court determined the Respondent had failed to prove her case, it was duty-bound to dismiss the suit entirely. 16.Turning to the quantum of damages, the Appellant argues that the trial court’s award of 2,000,000 Kenyan Shillings for loss of dependency was inordinately high, legally flawed, and entirely unsupported by evidence. 17.The submissions point out that the comparative cases relied upon by the trial court involved deceased persons who had clear evidence of employment, consistent monthly bank deposits, or multiple children as dependents. 18.In sharp contrast, the deceased in this matter was unmarried and survived solely by his mother. 19.Furthermore, no evidence of employment, consistent income, or bank deposits was presented, and the mother failed to state her age, leaving the court with no factual basis to determine the length or justification of the dependency period. 20.The Appellant emphasizes that the final award even exceeded the dependency figures mathematically derivable from the Respondent's own pleadings, violating the cardinal rule that parties are bound by their pleadings. 21.Factoring in the accelerated nature of the payment, the vicissitudes of life, and the total lack of proof regarding consistent financial remittances, the Appellant proposes that a 10-year multiplier applied to the pleaded monthly dependency amount of 4,000 Kenyan Shillings is far more reasonable. 22.This calculation totals 480,000 Kenyan Shillings, making the trial court's original assessment grossly excessive. 23.Consequently, the Appellant prays that the High Court allow the appeal, set aside the trial court's findings on liability, review the dependency damages downward, and substitute the lower court's orders with a directive dismissing the entire suit with costs. 24.The issues for determination in this appeal are as follows;i.whether the trial court erred in law and fact by finding the Appellant 80% liable for the accident, andii.whether the global award of Ksh. 2,000,000/= for loss of dependency was inordinately high, excessive, and lacking a proper evidential foundation. 25.On the first issue of liability, the Appellant’s contention that the trial court made contradictory findings must be balanced against the duty of a driver to maintain a proper lookout, especially on public roads. 26.While the Appellant argues that the deceased’s motorcycle abruptly left its lane, courts have long held that motorists owe a high duty of care to avoid collisions even when other road users act unexpectedly. 27.Liability is an issue of fact, and an appellate court will not lightly disturb a trial judge's apportionment of liability unless it is demonstrated that the court completely misapprehended the evidence or acted on wrong principles. 28.Although the documentation from the police was sparse, the trial magistrate had the opportunity to evaluate the testimony of the driver and the police officer. 29.A pedestrian or motorcyclist entering a junction still requires a driver to exercise reasonable care and maintain control of their vehicle. 30.The trial court's apportionment of 80% liability against the Appellant reflects the heavy burden placed on drivers of larger motor vehicles to anticipate hazards. 31.Consequently, there is no compelling reason to overturn the trial court’s finding on liability, and the 80:20% apportionment in favor of the Respondent is hereby upheld. 32.Turning to the second issue regarding the quantum of damages for loss of dependency, the trial court’s award of a global figure of Ksh. 2,000,000/= cannot be sustained under the law. 33.It is a well-settled principle that damages must be assessed on sound legal parameters, typically utilizing the multiplicand (the lost financial support) and the multiplier (the estimated duration of dependency). 34.Parties are bound by their pleadings, and damages cannot be plucked from the air without a factual basis. 35.In this case, the Respondent failed to produce any proof of the deceased’s alleged income of Ksh. 60,000/= per month, and as an unmarried young man, his primary legal dependent was his mother, who failed to state her age. 36.Without the mother's age, the court cannot accurately gauge the multiplier, as dependency is bounded by the life expectancy of the surviving parent. 37.Furthermore, where income is not strictly proved, the court may adopt a reasonable minimum wage or lower baseline estimate while strictly factoring in the vicissitudes of life and the fact that a young man would likely marry and start his own family, thereby reducing his remittances to his mother. 38.The trial court's global award was inordinately high and represented an error of principle. 39.To arrive at a just award, a reasonable monthly dependency of Ksh. 10,000/= is adopted. 40.Applying a modest multiplier of 10 years to account for the lack of age data and life's uncertainties and a dependency ratio of two thirds yields a total loss of dependency calculated as follows; 41.10 x 10,000 x 12 x 2/3= Kshs.800,000. 42.The final orders of this Court are that the trial court's finding on liability apportioned at 80% against the Appellant and 20% against the Respondent is affirmed. The award for the loss of dependency is hereby reduced from Ksh. 2,000,000/= to Ksh. 800,000/=. 43.The remaining undisturbed awards for pain and suffering (Ksh. 30,000/=), loss of expectation of life (Ksh. 100,000/=), and special damages (Ksh. 65,742/=) bring the new total gross assessment to Ksh. 995,742/=. 44.After applying the 20% reduction for contributory negligence, the final decretal sum awarded to the Respondent is Ksh. 796,593/=. 45.Each party to bear its own costs of this appeal. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mr Njuguna for the AppellantNo appearance for the RespondentChrispine – Court Assistant