https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11514

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E216 OF 2023** **PETER KARUGA WANJIKU APPELLANT** **-VERSUS-** **FRANCIS NGIMITHI NJORO (Suing as the administrator to the Estate of Lawrence Mungai Ngimithi (deceased) RESPONDENT** **JUDGEMENT** **(Being an appeal from the judgement and decree of the Senior Principal Magistrate’s Court at Kikuyu (Hon.L.K. Nyabando R.M) delivered on 9th June,2023 in SPMCC Civil Case No.E026 of 2020)** **Introduction and Background** 1. This appeal arises from the judgment and decree of the learned trial magistrate delivered on 9th June 2023 in Kikuyu SPMCC No. E026 of 2020, in which the respondent, who was the plaintiff before the trial court, was awarded damages arising from the death of his son following a road traffic accident. 2. By a Further Amended Plaint dated 23rd September 2022, the respondent sued the appellant seeking general and special damages following a road traffic accident which occurred on 4th January 2018 at about 8.30 p.m. at Muguga area along the Nairobi–Naivasha Road. 3. The respondent pleaded that the deceased was lawfully walking as a pedestrian when he was knocked down by motor vehicle registration number KAP 417L which was allegedly being negligently driven by the appellant's authorised driver, servant and/or agent. 4. The deceased sustained serious injuries as a result of the accident and subsequently died on 10th March 2018. 5. It was further pleaded that at the time of his death, the deceased was aged 44 years, unmarried, in good health and engaged in pig farming from which he earned approximately Kshs.40,000 per month. The respondent, who was his elderly father, pleaded that he was dependent upon the deceased. 6. The respondent sought damages under the Law Reform Act and the Fatal Accidents Act together with special damages of Kshs.846,905. 7. The appellant entered appearance and filed a Further Amended Statement of Defence dated 26th October 2022 denying liability and putting the respondent to strict proof of his claim. 8. At the hearing, the respondent called two witnesses in support of his case. The appellant did not call any witnesses and closed his case relying upon his Further Amended Statement of Defence. 9. Upon considering the evidence and the parties' submissions, the learned trial magistrate found the appellant 100% liable for the accident and awarded damages as follows: Pain and suffering..............................Kshs. 200,000 Loss of expectation of life.................Kshs. 100,000 Loss of dependency.............................Kshs. 2,800,000 Special damages..................................Kshs. 846,905 together with costs and interest. 1. Being dissatisfied with the judgment, the appellant lodged the present appeal through a Memorandum of Appeal dated 26th June 2023. **Grounds of Appeal** 1. The appellant faulted the learned trial magistrate for: 2. Finding the appellant liable in negligence in the absence of evidence proving the alleged negligence; 3. Allegedly accepting a multiplicand of Kshs. 40,000 per month despite the absence of documentary evidence proving the deceased's earnings; 4. Failing to apply the applicable minimum wage guidelines despite finding that there was insufficient evidence regarding the deceased's income; and 5. Generally entering judgment in favour of the respondent when the evidence adduced did not support the claim. 6. The appellant consequently prayed that the judgment and decree made on 9th June 2023 be set aside and the respondent's suit dismissed with costs. **Duty of the First Appellate Court** 1. This being a first appeal, this Court is obligated to reconsider and re-evaluate the entire evidence tendered before the trial court and arrive at its own independent conclusions, while bearing in mind that it did not have the advantage enjoyed by the trial court of seeing and hearing the witnesses testify. 2. **In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123,** the Court stated that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making allowance for the fact that it has neither seen nor heard the witnesses. 3. The respondent similarly relied on **Omune v Ray Store Limited (Appeal E060 of 2023) [2025] KEELRC 130 (KLR),** where the duty of a first appellate court to independently re-assess the evidence was reiterated. 4. Guided by those principles, I have carefully reconsidered the pleadings, the evidence adduced before the trial court, the judgment appealed from, the grounds of appeal and the rival submissions. **Evidence Before the Trial Court** 1. PW1 was a police officer attached to Kikuyu Traffic Base. He produced a police abstract relating to the accident which occurred on 4th January 2018 at about 8.30 p.m. at Muguga area along the Nairobi–Naivasha Road. 2. According to the police records, the accident involved the subject motor vehicle and two pedestrians. PW1 testified that one of the victims subsequently succumbed to the injuries sustained. 3. PW1 was neither the investigating officer nor an eyewitness to the accident. He explained that the investigating officer had since been transferred and that the matter was still pending under investigation. 4. In cross-examination, PW1 confirmed that the police abstract was dated 30th July 2018. He further stated, on the basis of the police records available to him, that the deceased was crossing the road at the time of the accident. 5. PW2 was the respondent and the father of the deceased. He adopted his witness statement as his evidence in chief and produced the documents filed in support of the claim. 6. PW2 blamed the driver of the subject motor vehicle for allegedly driving carelessly and knocking down the deceased. 7. In cross-examination, however, PW2 candidly admitted that he was in Limuru on the material night and did not witness the accident. He had been called and informed that the deceased had been involved in an accident. 8. PW2 identified one Kamau as a person who had witnessed the accident, but the said Kamau was not called to testify. 9. PW2 further testified that the road was under construction at the material time, was a murram road and formed part of a dual carriageway. 10. On dependency, PW2 testified that the deceased was aged 44 years, unmarried and engaged in pig farming. According to him, the deceased earned approximately Kshs.40,000 per month and gave him approximately Kshs.20,000 every month for his support. 11. PW2 admitted that he had not produced documentary evidence establishing either the deceased's alleged monthly income or the alleged monthly remittances. 12. The respondent thereafter closed his case. 13. The appellant elected not to call any witness and closed his case relying upon the Further Amended Statement of Defence. **Determination of the Trial Court** 1. On liability, the learned trial magistrate observed that the appellant had not called any witness to rebut the respondent's evidence. The court consequently held that the respondent's case stood unchallenged and uncontroverted and found the appellant 100% liable for the accident. 2. On loss of dependency, the respondent had urged the trial court to adopt a monthly income of Kshs.40,000/-, a multiplier of 25 years and a dependency ratio of one-half, which would have yielded Kshs.6,000,000/-. 3. The appellant had proposed application of a minimum wage of Kshs.12,522.70/-, a multiplier of 10 years and a dependency ratio of one-third, resulting in Kshs.502,120/-. 4. The learned trial magistrate considered the evidence and found that no sufficient evidence had been tendered to prove that the deceased earned Kshs.40,000/- per month as a pig farmer. 5. The court further found that although the respondent may have received support from his deceased son, it was difficult to accept, without supporting evidence, that the deceased consistently spent one-half of his income on the respondent. 6. The court relied on Dickson Taabu Ogutu (Suing as the Legal Representative of the Estate of Wilberforce Ouma Wanyama) v Festus Akolo & Another [2020] eKLR, Albert Kubai Mbogori v Violet Jeptum Rahedi [2017] eKLR, Kwanzia v Ngalali Mutua & Another and DMM (Suing as the Administrator and Legal Representative of the Estate of LKM) v Stephen Johana Njue & Another [2016] eKLR. 7. The learned magistrate concluded that the uncertainty surrounding the deceased's income made the multiplier approach inappropriate and elected instead to apply the global-sum approach. 8. Relying on Stephen Murathi v Brenda Makena (Suing as the Legal Representative of the Estate of Andrew Muthuri (Deceased)) [2021] eKLR, the court expressly reasoned that a global award of Kshs.2,500,000 was reasonable, taking into account the deceased's age, health and the passage of time. 9. There is, however, an apparent internal inconsistency in the judgment because the final tabulation records an award of Kshs.2,800,000/- under loss of dependency despite the reasoned determination expressly settling upon Kshs.2,500,000/-. **The Appellant's Submissions** 1. The appellant submitted that the respondent failed to prove negligence against the driver of the subject motor vehicle. 2. Reliance was placed on Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91 and Kiema Mutuku v Kenya Cargo Handling Services Ltd [1991] 2 KAR 258. 3. The appellant argued that although the respondent had pleaded specific particulars of negligence, he remained obligated to prove those allegations through evidence. 4. It was submitted that PW1 was neither the investigating officer nor an eyewitness and that the police abstract merely established the occurrence of the accident without proving how it occurred or who was to blame. 5. The appellant further submitted that PW2 did not witness the accident and that any statement by him purporting to describe how the accident occurred amounted to hearsay. 6. Reliance was placed on sections 107 and 108 of the Evidence Act for the proposition that the burden of proving the pleaded negligence remained upon the respondent. 7. The appellant submitted that the failure to call defence evidence did not automatically prove the respondent's case and that uncontroverted evidence must nevertheless satisfy the applicable standard of proof. 8. The appellant consequently urged the Court to allow the appeal, set aside the judgment and dismiss the respondent's suit with costs. 9. On quantum, however, the appellant expressly adopted the submissions made before the trial court and the trial court's assessment under the separate heads of damages, noting that damages would only become payable upon liability being established. **The Respondent's Submissions** 1. The respondent opposed the appeal and submitted that the trial court correctly found the appellant liable. 2. The respondent relied on **Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] eKLR** on the essential elements of negligence. 3. Reliance was also placed on **Multiple Hauliers (EA) Ltd v Justus Mutua Mulundu & Others [2017] eKLR** for the proposition that every driver on a public road owes a duty to keep a proper lookout and to take reasonable precautions to avoid causing injury to other road users. 4. The respondent submitted that the appellant failed to call the driver of the motor vehicle or any other witness to provide an alternative account of the accident and that the respondent's evidence therefore remained unchallenged. 5. It was consequently submitted that the finding of 100% liability ought to be upheld. 6. On pain and suffering, the respondent submitted that the deceased survived for more than two months following the accident and endured significant pain before his death. He supported the award of Kshs.200,000/-. 7. The respondent similarly supported the conventional award of Kshs.100,000/- for loss of expectation of life. 8. On loss of dependency, the respondent referred to the trial court's award as Kshs.2,500,000 and urged this Court to enhance it to Kshs.4,000,000/- on account of inflation and the fact that the deceased supported his elderly father. 9. The respondent further submitted that the award of Kshs.846,905/- as special damages was properly pleaded and proved. **Issues for Determination** 1. Having considered the record, the grounds of appeal and the rival submissions, the following issues arise for determination: 2. Whether the respondent proved negligence against the appellant on a balance of probabilities; 3. Whether the circumstances justify dismissal of the suit or apportionment of liability; 4. Whether there is any proper basis for interfering with the trial court's assessment of damages; and 5. What orders should issue as to costs. **Analysis and Determination** **Whether Negligence Was Proved** 1. The starting point is the burden of proof.Sections 107 and 108 of the Evidence Act place the burden upon the party who asserts the existence of facts from which a legal right or liability is said to arise. 2. In a claim founded upon negligence, the plaintiff must therefore establish the existence of a duty of care, breach of that duty and damage resulting from the breach. 3. **In Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] eKLR,** the Supreme Court restated the essential elements that must be established to sustain an action founded upon negligence. 4. There can be no doubt that a driver on a public road owes a duty of care to other road users, including pedestrians. 5. As observed in **Multiple Hauliers (EA) Ltd v Justus Mutua Mulundu & Others [2017] eKLR,** every driver is required to maintain a proper lookout and exercise reasonable care to avoid causing injury to other road users. 6. The existence of a duty of care, however, does not automatically establish breach. 7. **In Kiema Mutuku v Kenya Cargo Handling Services Ltd [1991] 2 KAR 258,** the court emphasised that there is no liability without fault in the law of negligence. A plaintiff must prove some negligent act or omission attributable to the defendant. 8. Similarly, **Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91** underscores the distinction between allegations contained in pleadings and evidence adduced in proof of those allegations. 9. In the present case, the occurrence of the accident and the involvement of the subject motor vehicle were established. What was not established with any degree of certainty was the precise manner in which the collision occurred. 10. PW1 was neither an eyewitness nor the investigating officer. He confirmed that investigations into the accident were still pending. 11. PW2 was equally not an eyewitness. He was in Limuru at the time of the accident and learned of it thereafter. Although PW2 identified one Kamau as an eyewitness, that witness was not called to testify. 12. Consequently, there was no direct evidence concerning the speed at which the motor vehicle was travelling, the precise point of impact, the distance at which the driver first saw or ought to have seen the deceased, the manner in which the deceased entered the roadway, or what evasive action, if any, was taken. 13. The police abstract established that an accident was reported and that the subject motor vehicle was involved. It did not, without more, establish any particular act of negligence on the part of the driver. 14. The learned trial magistrate therefore fell into error by proceeding on the basis that because the appellant did not call evidence, the respondent's case necessarily stood proved and justified a finding of 100% liability. 15. The absence of defence evidence may leave an otherwise properly established case unrebutted. It cannot, however, relieve a plaintiff of the initial burden of establishing a prima facie case on a balance of probabilities. 16. Put differently, uncontroverted evidence is not automatically synonymous with sufficient proof. 17. I therefore find that the evidence before the trial court did not justify the finding that the appellant's driver was wholly to blame for the accident. **Whether the Suit Should Be Dismissed or Liability Apportioned** 1. Having found that the evidence did not justify the trial court's finding of 100% liability, the next question is whether the respondent's suit ought to be dismissed altogether, as urged by the appellant, or whether the circumstances justify an apportionment of liability. 2. The evidence established that the subject motor vehicle was involved in a collision with the deceased on 4th January 2018. According to the police records produced through PW1, the deceased was crossing the road when the accident occurred. 3. The accident occurred at about 8.30 p.m. on a road which, according to PW2, was then under construction. 4. What remains uncertain is the precise manner in which the accident occurred and the respective degree of blame attributable to either road user. 5. Neither PW1 nor PW2 witnessed the accident. Although an eyewitness known as Kamau was identified, he was not called as a witness. 6. On the other hand, the appellant elected not to call the driver of the subject motor vehicle or any other witness to explain the circumstances surrounding the collision. 7. I reiterate that the appellant's failure to call evidence did not shift the legal burden of proving negligence from the respondent. Nevertheless, once the occurrence of the collision and the involvement of the appellant's vehicle had been established, the absence of evidence from the driver left the court without the account of the other person directly involved in the accident. 8. The Court is therefore confronted with an established collision between a motor vehicle and a pedestrian but insufficient evidence to determine with confidence whether the accident was caused principally by the driver's conduct, the deceased's manner of crossing the road, or a combination of both. 9. In **Hussein Omar Farah v Lento Agencies [2006] eKLR,** the Court of Appeal addressed circumstances in which the available evidence did not enable the court to determine which party was more blameworthy. The Court recognised that where there is no concrete evidence to determine who is to blame between two parties and both could equally have been responsible, liability may properly be apportioned equally. 10. The rationale underlying that principle is that a court should not arbitrarily attribute a greater degree of blame to one party where the evidence provides no rational basis for distinguishing the parties' respective contribution to the accident. 11. The principle does not mean that liability should automatically be divided equally whenever the evidence concerning an accident is incomplete. 12. Where a plaintiff adduces no evidence whatsoever connecting the defendant to the occurrence, the claim must fail. Conversely, where the evidence clearly establishes the negligence of one party, liability must follow the evidence rather than be mechanically apportioned. 13. The present case falls between those two situations. 14. This is not a case where the respondent failed to establish any connection between the appellant and the accident. The occurrence of the accident, the involvement of the appellant's motor vehicle and the fact that the deceased was a pedestrian crossing the road were established. 15. At the same time, there was no reliable evidence from which the trial court could properly conclude that the appellant's driver was wholly responsible. 16. There was no evidence concerning the speed of the motor vehicle, the precise point of impact, the distance from which the deceased could have been seen, the manner in which he entered the roadway or the evasive action, if any, taken by the driver. 17. The deceased, as a pedestrian crossing a public road at night, equally bore a duty to exercise reasonable care for his own safety. 18. Conversely, the driver owed a duty to maintain a proper lookout and to take reasonable precautions to avoid colliding with other road users, including pedestrians. 19. In the absence of direct evidence explaining the conduct of either the deceased or the driver immediately before the collision, this Court has no satisfactory evidential basis upon which to conclude that either party was more blameworthy than the other. 20. The failure by the respondent to call the identified eyewitness undoubtedly weakened his case and renders the finding of 100% liability unsustainable. However, I do not consider that outright dismissal represents the appropriate determination in the peculiar circumstances of this case. 21. The respondent established the occurrence of the collision involving the appellant's motor vehicle and the deceased. The evidence further established that the deceased was crossing the road when he was struck. The appellant, while under no obligation to disprove negligence, equally placed no evidence before the court from the driver explaining how the collision occurred. 22. The resulting evidential position is therefore one in which the accident is proved and the two road users involved are known, but the evidence does not permit a reasoned determination that either bears a greater degree of responsibility. 23. Applying the principle in **Hussein Omar Farah v Lento Agencies (supra),** I am persuaded that equal apportionment of liability is appropriate. 24. I therefore find that the learned trial magistrate erred in imposing 100% liability upon the appellant merely because the defence did not call evidence. 25. The finding of 100% liability is accordingly set aside and substituted with liability apportioned at **50% against the appellant and 50% contributory negligence against the deceased**. 26. For clarity, that apportionment does not arise from any reversal of the burden of proof. It arises from this Court's independent evaluation of the evidence, which establishes the occurrence of the collision and the involvement of both road users but provides no satisfactory basis for attributing a greater degree of blame to either. **Loss of Dependency** 1. The appellant's Memorandum of Appeal faults the learned trial magistrate for allegedly adopting a multiplicand of Kshs.40,000/- despite the absence of documentary proof of the deceased's earnings. 2. With respect, that ground does not accurately reflect the reasoning of the trial court. 3. The learned magistrate expressly found that the deceased's alleged monthly income of Kshs.40,000/- had not been sufficiently proved and declined to apply the multiplier/multiplicand approach. 4. Instead, the court adopted the global-sum approach. 5. In **Kwanzia v Ngalali Mutua & Another,** the court cautioned against rigid application of the multiplier approach where the relevant income and dependency factors cannot be ascertained with reasonable certainty. 6. The global approach was therefore available to the trial court, particularly where the evidence suggested that the deceased was engaged in informal agricultural activity but did not provide a reliable basis for determining his precise net monthly income. 7. The fact that the deceased was unmarried did not, without more, exclude dependency. The respondent testified that the deceased supported him and a chief's letter identified the respondent as the deceased's dependant. 8. The difficulty lay not necessarily in establishing the existence of some dependency but in accurately quantifying the extent of that dependency. 9. The learned trial magistrate was therefore entitled to resort to a reasonable global award. 10. More significantly, the appellant expressly stated in his submissions before this Court that he adopted the trial court's assessment of quantum under the separate heads of damages. 11. The respondent, on the other hand, urged this Court to enhance the award for loss of dependency to Kshs.4,000,000/-. 12. There is no cross-appeal before this Court seeking enhancement of the award. 13. A respondent seeking a substantive variation of a decree in his favour must properly place that challenge before the appellate court. Submissions alone cannot substitute for a cross-appeal. 14. I therefore decline the respondent's invitation to enhance the award to Kshs.4,000,000/-. 15. There nevertheless remains an internal inconsistency in the trial court's judgment. 16. In the reasoned analysis, the learned magistrate expressly concluded that a global award of Kshs.2,500,000/- was reasonable. In the final tabulation, however, the figure of Kshs.2,800,000 was recorded without any explanation for the additional Kshs. 300,000/-. 17. The respondent himself proceeded in this appeal on the basis that the award arrived at by the trial court was Kshs. 2,500,000/-. 18. In those circumstances, I find that Kshs.2,500,000 represents the reasoned assessment of the trial court under this head, while the figure of Kshs.2,800,000/- in the final tabulation is inconsistent with the court's express determination. 19. I accordingly adopt Kshs.2,500,000/- as the award for loss of dependency. **Pain and Suffering** 1. The trial court awarded Kshs.200,000/- for pain and suffering. The deceased was involved in the accident on 4th January 2018 and died on 10th March 2018. He therefore survived for approximately two months following the accident. 2. The appellant expressly adopted the trial court's assessment of damages and has not demonstrated that the award was based upon an erroneous principle or was so excessive as to warrant appellate interference. 3. The award of Kshs.200,000/- for pain and suffering is accordingly upheld. **Loss of Expectation of Life** 1. The trial court awarded Kshs.100,000/- for loss of expectation of life. That award was not challenged and is within the conventional range of awards under that head. 2. I find no basis for interfering with it. **Special Damages** 1. The Further Amended Plaint dated 23rd September 2022 specifically pleaded special damages of Kshs.846,905/-. 2. The trial court awarded the amount as pleaded and proved. 3. The appellant did not challenge the assessment of damages under this head. 4. The award of Kshs.846,905/- is therefore upheld. **Reassessment of the Award** 1. The damages payable before contribution are consequently as follows: Pain and suffering..............................Kshs. 200,000 Loss of expectation of life.................Kshs. 100,000 Loss of dependency.............................Kshs. 2,500,000 Special damages..................................Kshs. 846,905 **Gross total.....................................Kshs. 3,646,905** 1. Upon application of the deceased's 50% contributory negligence, the net award is: **Kshs. 3,646,905 × 50% = Kshs. 1,823,452.50** **Disposition** 1. Having independently reconsidered and re-evaluated the evidence, I find that the learned trial magistrate erred in holding the appellant 100% liable merely because the appellant did not call evidence. 2. The respondent retained the legal burden of proving the pleaded negligence notwithstanding the absence of defence evidence. 3. The evidence nevertheless established that the appellant's motor vehicle was involved in the accident in which the deceased, who was crossing the road, sustained injuries from which he subsequently died. 4. Neither the identified eyewitness nor the driver of the motor vehicle testified, and the available evidence does not provide a rational basis for determining that either road user was more blameworthy than the other. 5. In the circumstances, equal apportionment of liability is appropriate. 6. The appeal therefore succeeds partially. **Final Orders** 1. The finding of the trial court holding the appellant 100% liable for the accident is hereby set aside. 2. In substitution thereof, liability is apportioned at **50% against the appellant and 50% contributory negligence against the deceased**. 3. The respondent's request for enhancement of the award for loss of dependency to Kshs.4,000,000/- is declined. 4. The award for loss of dependency is assessed at **Kshs. 2,500,000/-**, being the figure expressly arrived at in the reasoned portion of the trial court's judgment. 5. The awards of Kshs.200,000/- for pain and suffering, Kshs.100,000/- for loss of expectation of life and Kshs.846,905/- as special damages are upheld. 6. The gross damages amount to **Kshs. 3,646,905/-**. 7. Upon application of the deceased's 50% contributory negligence, judgment is entered for the respondent against the appellant in the net sum of **Kshs. 1,823,452.50/-**. 8. General damages shall attract interest at court rates from the date of the judgment of the trial court, while special damages shall attract interest at court rates from the date of filing suit. 9. As the appeal has succeeded partially, each party shall bear its own costs of the appeal. 10. The respondent shall retain the costs of the proceedings before the trial court, subject to the revised finding on liability. 11. It is so ordered. It is so ordered. **DELIVERED, DATED AND SIGNED AT ON 24th DAY OF JULY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **JUDGE.** In the presence of: - Mr. Kimani for the Appellant. Miss Wariar for the Respondent. Court Assistant – Mr. Zadock.