https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8136

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURAN’GA** **CIVIL APPEAL NO. E013 OF 2025** **PETER KARANJA……………………….………………………. APPELLANT** **VERSUS** **GRACE WAITHIRA MWANGI (Suing as Administrators and Legal Representative of the Estate of MATHEW MWANGI IRUNGU) Deceased……….……………………………………………….... RESPONDENT** ***(Being an appeal from the Judgment of the Honourable Susan N. Mwangi delivered on 8thJanuary, 2025 Murang’a CMCC No. E153 of 2023 - Grace Waithira Mwangi)*** **JUDGEMENT** 1. By way of Plaint dated 18th August 2023 the Respondent sought the following orders; 1. General damages under both the Law Reform Act and the Fatal Accidents Act. 2. Special damages. 3. Costs and interest of the suit. 4. Any other or better relief this Honourable court may deem fit to grant. 1. She pleaded that on or about the 26/9/2020 at 1600 hours at Wanjii area along the Maragua- Murang’a road, the deceased was driving motor vehicle registration number KCT 169 T- Toyota Pick-up on his lane and part of the road when the defendant by himself or through his agent and drove motor vehicle registration number KVC 804 Lorry so negligently and carelessly that he caused an accident when the two vehicles collided. 2. It was her case that as at the time of his death, the deceased was aged 30 years in good health and nutrition. He was married with two children (minors) and he was the sole breadwinner of the family. 3. He worked as a driver earning a daily-sum of Kshs 1 200 which he used to support himself and his family. She pleaded the particulars Of Dependency and Special Damages and prayed that the court grant the orders as prayed. 4. The defendants denied all the allegations in the plaint and urged the court to dismiss the plaintiffs’ suit. 5. During the trial,PW1 was Grace Waithira Mwangi adopted her witness statement as evidence in chief. During cross examination, she stated that she did not witness the accident as she was at home. 6. PW2 was PC Wambui Wambua testified that the accident occurred on 26/09/2020 at Wanjii area along Kenol- Murang’a road involving motor vehicles No. KCT 169T, Toyota Hilux and No. KVC 804 Isuzu lorry and that the lorry was from Murang’a headed to Kenol direction and the pickup was from Kenol to Murang’a general direction. 7. She testified that she was conversant with the area where the accident occurred and that near the scene of the accident there is a road leading to a nearby quarry, Karaba quarry. 8. The quarry is on the right side as you face Maragua junction and the accident occurred near that road that leads to the quarry and the point of impact was in the middle of the road. 9. DW1 was Peter Karanja Irungu who adopted his witness statement as evidence in chief. During cross examination, he testified that Vehicle No. KVC was his and that he was driving it on the material date driving from Murang’a heading towards Kenol road. 10. He testified that the accident did not occur on the road heading to that quarry, and that he wasn’t near the junction and had not started joining the road. He had put on the signal to the right side. That the road at the scene of the accident was tarmacked and there was space after the road. 11. He stated that when he saw KCT 169T it was around 30m but since he was at a high speed, he went off the road and he was hit from the front to end of his vehicle. 12. DW2 was John Munyoki an investigator with Leon Investigation agency. He testified that he interviewed the driver of KVC 804, and the police officer, and he concluded that the driver of KCT 169T was to blame for the cause of the accident. 13. He produced his investigation report dated 11.9.2023 as D Exhibit 2. Further, that he didn't go with any witness from the other side and went there almost 3 years after the accident. He relied on what was documented by the officer who visited the scene immediately after the accident. At the scene he wasn't shown the junction to Karaba quarry. 14. He stated that he didn't see the bridge near the road to the quarry and that he took photographs of the lorry as the report was meant for consumption of Madison Insurance. When he saw the vehicle the same had already repaired. He never photographed vehicle KCT 169T but indicated in his report that it had been damaged. 15. In cross examination, he stated that he prepared the report but did not sign it. 16. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court entered judgement for the Plaintiff in the following t erms; 1. General Damages for pain and suffering Kshs. 50,000 2. General Damages for loss of dependency Kshs. 3,000,000 3. General Damages for loss of expectation of life – Kshs. 100,000/- 4. Special Damages Kshs. 27,000/- 5. Funeral Expenses Kshs. 60,000/- 6. Costs and interests therein until payment in full. 17. The Appellant instituted the present appeal vide a Memorandum of Appeal dated 28th January 2025 premised on the following grounds; * 1. That the Learned Trial Magistrate erred in law and in fact in apportioning 100% liability against the Appellant without considering the circumstances of the case. 2. That the Learned Trial Magistrate erred in law and in fact in apportioning 100% liability against the Defendant in light of the evidence placed before the court by both the Appellant and the Respondent which did not prove on a balance of probability negligence against the Appellant herein. 3. That the Learned Trial Magistrate erred in law and fact by failing to consider the evidence by the Appellant as well as submissions thereby arriving at an erroneous finding. 4. That the Learned Trial Magistrate erred in law and fact by relying on extraneous evidence not before the court thereby arriving at an erroneous finding. 5. That the Learned Trial Magistrate erred in law and fact by awarding the Respondent an excessive and exorbitant amount for general damages for pain and suffering, loss of expectation of life and loss of dependency in total disregard of the submissions by parties herein. 18. The parties filed submissions on the Appeal. **Appellants’ Submissions;** 1. Counsel reproduced all the witnesses’ evidence and urged that from the evidence adduced in court, it is not in dispute that an accident occurred between motor vehicle registration number KCT 169T and motor vehicle Registration number KVC 804 and that the deceased died as a result of the accident. 2. Counsel urged that the trial magistrate erred both in law and in fact by holding the Appellant 100% liable. The facts on record are that the police officer had the occurrence book extract in court. She read the circumstances of the accident as per the O.B extract which were that the motor vehicles were heading to opposite directions when the deceased recklessly overtook another motor vehicle, thus ramming into the Appellants' motor vehicle. It is submitted that there is nothing on the record to show that the Appellant negligently overtook other motor vehicles causing the accident. The Police officer's evidence corroborated that of DW1 that the accident occurred on the Appellants' lane, as the deceased overtook another motor vehicle, thus ramming into the Appellant's motor vehicle as enumerated by the pictures of the scene of the accident. 3. Counsel cited the case of **Bhandari t/a Chetambe Jaggery v Junta (Civil Appeal 216 of 2019) [2025] KECA 1441 (KLR) (31 July 2025) (Judgment) and Mbogo (Suing as the administrator to the Estate of the Late John Gachau Mbugua) v Kenya School of Monetary Studies (Civil Appeal 708 of 2016) [2024] KEHC 468 (KELT) (Civ)** (25 January 2024) (Judgment) in this regard. 4. Counsel additionally cited Macharia v Kirimi & another (Civil Appeal 60 of 2019) [2023] KEHC 24185 (KLR) (26 October 2023) (Judgment) and reiterated that the trial magistrate erred in relying on extraneous circumstances to apportion 100% liability against the Appellant. 5. It submitted that no negligence was proven against the Appellant. Counsel submitted that the weight of evidence before the magistrate's court was not sufficient to prove negligence against the Appellant. 6. Counsel submitted that the deceased died on the spot of the accident and urged that the decision in Mercy Muriuki & another Samuel Mwangi Nduati & another (suing as the legal administrator of the estate of the late Robert Mwangi) (2019) eKLR is very categorical that the range is to be kept and that the award shall depend on the pain and suffering the deceased went through before ffs or her demise. Which range is between Kshs. 10,000/= to Kshs. 100,000/= and that Kshs. 100,000/= is to be awarded where the deceased went through extreme pain and suffering. 7. Counsel submitted that since the deceased died on the same day of the accident, no justification was tendered for the award of Kshs. 50,000/= for pain and suffering. He urged the court to assess the same downwards to Kshs. 30,000/=. 8. On whether the Learned Magistrate erred in fact and in law the Respondent an excessive amount of Kshs. 3,000,000/= for loss of dependency, Counsel urged that the deceased was a driver earning Kshs. 1,200/= per day. 9. No Evidence was tendered in support of the said daily income, nor a driving license filed in proof of employment. Counsel proposed that the multiplier to be used and applied is that of Kshs. 7,240.95/ = as per the minimum wage of general labourers according to the Regulation of Wages (General) Amendment order 2108, noting that the Regulation of wages Amendment order 2022 was about to come into force when the deceased passed on in 2020. 10. Given that the deceased was 30 years old, a multiplier of 20 years is more modest in the circumstances, taking into account the vagaries and vicissitudes of life. Counsel urged that Section 4 of the Fatal Accidents Act, enumerates, a wife, husband, parent and child, as the only possible claimants under the statute. The Respondent also pleaded that the deceased was survived by a wife and two children who were his dependents. Counsel urged that a multiplicand of 2/3 will be reasonable in the circumstances of the case. 11. Counsel urged that in the unlikely event that the court adopts a global sum approach he invited the court to award Kshs. 1, 500,000/=. He urged the court to allow the Appeal as prayed. **Respondents’ submissions** 1. Counsel urged that the deceased as at the time of death was aged 30 years as per the death certificate who was the sole breadwinner of his family and was raising his two young children who will have to grow without a father in this their formative age and a young widow who has to contend with life without a life companion and solely cater for the young children. 2. Counsel urged that it was common ground that an accident occurred on 26/9/2020 at Wanjii Area along the Murang'a-Maragua road which was in the nature of a collision between motor vehicle registration number KVC 804 Isuzu lorry owned and driven by the defendant and motor vehicle registration number KCT 169T driven by the victim, Mathew Mwangi Irungu. 3. Counsel urged that the defence by the defendant was haphazard and could only be termed as a general denial by ​the defendant.At paragraph 4 of the defendant even wrongly gives the motor vehicle driven by the deceased as KCY 169Y which is unknown as the deceased was driving motor vehicle registration number KCT 169T. 4. In the statement signed and filed by the defendant himself, the defendant had even sought to mislead the court(and also advocate) by alleging that motor vehicle registration number KCT 169T had been overtaking and that it had encroached on his lane. 5. He urged that the defence evidence was contradictory and further the defendant admitted in court that he was the one who had encroached and crossed over to the opposite lane as he was turning to the junction on the right and effectually he had blocked and entirely obstructed the oncoming traffic posing a danger. 6. He urged that from the evidence on record, it is factual that the defendant was negligent and reckless in his manner and way of driving and that the allegation of inclusion of extraneous evidence is absurd as there is nowhere the court imported extraneous evidence. 7. Counsel urged that the court explained the basis of the award and it was in accordance with the law (The Law Reform Act and The Fatal Accident Act). The same has basis in decided authorities. The deceased was a young person aged 30 years. That the award made by the court was fair, reasonable and consistent with court awards awarded in similar matters. Counsel urged that the discretion of the court was exercised in accordance with the law. 8. He urged the court to dismiss the Appeal with costs. **Analysis and determination** The following are the issues for determination; Whether the appeal has merit. Who shall bear the costs. **Whether the appeal has merit;** 1. In **Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA** the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 1. This principle was enunciated thus: 2. *“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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...”* 2. This court shall reconsider the evidence and evaluate it in arriving at its own conclusion. 3. Section 78(1) Of the Civil Procedure Act provides that subject to such conditions and limitations as may be prescribed, an appellate court shall have power— 1. to determine a case finally; 2. to remand a case; 3. to frame issues and refer them for trial; 4. to take additional evidence or to require the evidence to be taken; 5. to order a new trial. (2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein. 1. In the plaint, the respondent pleaded the particulars of negligence in the plaint while the appellant on his part denied the particulars of negligence putting the respondent to strict proof. 2. In reviewing whether the Respondent was negligent, the court notes from the record that the scene of the accident was on the truck registration number KVC804’s lane. 3. The occurrence book pointed out that the vehicles were heading in opposite directions when the deceased recklessly left his lane so as to overtake another vehicle ramming into the appellant’s motor vehicle. 4. This was corroborated and confirmed by DW-1 and the investigating officer who testified that the accident occurred on the appellant’s lane when he was hit by the deceased motor vehicle. 5. During cross examination PW-2 testified that, *"It was reported by a good Samaritan that an accident had* *occurred at Wanjii area involving motor vehicle registration No. KCT* *1697 Toyota Hilux driven by Matthew Irungu. The said motor vehicle* *was from Kenol to Muranga general direction on board one* *Stephen Mwangi. At the same time one Peter irungu a driver of motor vehicle registration No. KVC 804 isuzu lorry was driving from the opposite direction. On reaching at the scene of the accident, the driver of the pickup overtook a fleet of vehicles and collided on with the said lorry which was on its proper lane.”* *“From the occurrence* *book extract, the accident occurred on the lorry's lane and so the point of impact was on the left side of the road, the lorry's lane.”* 1. During cross examination DW-1 testified that, ”I *saw KCT when it was around 30m but since I was on speed, I went* *off the road and he hit me from the front to end of my vehicle.”* 1. During re-examination he stated, *Re-examination:” The accident occurred on the right side as one* *heads towards Maragua.”* 2. In the judgment, the trial court observed *that PC Wambui Wambua, “In cross examination, she went ahead to extract the occurrence book extract of how the* *report was made at the station.* *From the said extract, it was a good Samaritan who had reported of how the pickup overtook a fleet of vehicles thus colliding with the defendant's lorry which was on its rightful and proper lane. The pickup driver died on the spot while his conductor had sustained injuries on his neck and from the above, she confirmed it was the pickup which was on the wrong.”* 1. The police abstract confirms that indeed an accident occurred involving the two motor vehicles. 2. The evidence of the police officer confirmed that the accident was caused by the deceased. The evidence of the driver of the lorry confirms the foregoing. 3. This court is satisfied that the Respondent did not prove his case on a Balance of probability. The court is of the opinion that the Respondent was 100% liable for the accident. 4. The trial court fell into error in blaming the respondent 100%. **Determination;** 1. The appeal has merit and the judgment must be set aside. 2. The award of quantum is set aside. **Costs;** 1. On the issue of costs, the court is guided by the case of **Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd** Judicial Review Application no 6 of 2014where the court held as follows: - *“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event.......It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”* 1. The Respondent shall shoulder the costs of this appeal. **Order:** 1. The appeal is allowed. 2. The judgment made by the Learned Magistrate on 8th January, 2025 is hereby set aside and be substituted with an order dismissing the suit. 3. Costs of the suit and the appeal to the appellant. **Dated, Signed and Delivered Virtually at Eldoret this 3rd day of June, 2026.** **…………………………………** **J. CHIGITI (SC)** **JUDGE**