https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8773

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E170 OF 2024** **PHELIX ONYANGO OWITI ……..……………...………...APPELLANT** **-VERSUS-** **SELINE AOKO & CHRISTINE** **WENDO ONYANGO(Suing as legal** **Admin & Personal Rep of the** **estate of TITUS ODEDO……………………..……..…………..……………RESPONDENT** **(*Being an appeal from the judgment and decree of the Honourable K. Cheruiyot delivered on 7th August, 2024019 in Kisumu CMCC NO. 472 of 2016*)** **JUDGMENT** **Background** 1. The suit herein related to a fatal road accident that occurred on the 20th March, 2016 along Ahero-Kisumu road, involving motorcycle registration number KMDH 036G that was being cycled by the deceased and the Defendant’s motor vehicle registration number KCE 399U. The suit claimed both general damages and special damages for the fatal injuries sustained by the deceased in the accident. The Respondent who had sued on behalf of the estate of the deceased and who was the Plaintiff at the trial court called three witnesses. 2. The Appellant herein called one witness, who was the driver and owner of motor vehicle registration number KCE 399U. 1. The matter proceeded to full trial and in the Judgment delivered on the 7th August, 2024, the trial Magistrate entered judgment as follows:- 1. Liability – 100% against the Appellant 2. General Damages 1. Pain & Suffering 50,000/- 2. Loss of expectation of life Kshs.100,000/-, 3. Loss of dependency Kshs 9,228,000 (using a multiplier of 20 years, and a multiplicand of Kshs.57,675/-) 3. Special damages Kshs.33,000/-. 2. The appellant being dissatisfied by the said decision has filed the Appeal herein on both liability and quantum, specifically on the head of loss of dependency. **Trial Court Evidence** 1. In the trial court the Respondent had blamed the appellant herein for the accident. PW1 was not at the scene but was the wife of the deceased. She was called and informed of the accident. She told court that the deceased worked as a surgeon in ICAD Kenya and was earning a gross salary of Kshs.73,941/- and net of Kshs.57,675/-. That he took care of her and their two children who are both minors and his own parents. 2. PW2 the eye witness to the accident. He testified that on 20/3/2016 at about 6:00p.m, he was at Lela stage on the left of the road as one faces Ahero direction. He stated that he was waiting to cross the road. That he saw 2 motor cycles and a matatu that were all headed in the same direction towards Ahero. He stated that the rider on KMDH 056G overtook the matatu on the right and immediately returned back to his lane. He stated that at the same time there was a motor vehicle Registration number KCE 339U, which was overtaking from the right lane as you face Ahero. The vehicle went and rammed onto the said motor cycle and then veered back to its lane while dragging the motor cycle and the cyclist beneath the bumper and only stopped on the extreme edge of the right lane. 3. PW2 told court that he rushed to the scene which was about 30 meters from where he was to help the cyclist but unfortunately, the cyclist passed on within a few minutes. PW2 told court that there were skid marks on the road from where the car dragged the cyclist from his lane to the right. He blamed the driver of motor vehicle registration number KCE 399U for the accident and stated that he should not have overtaken when the road was not clear given the presence of the motor cyclist. 4. PW3 the police officer produced the police abstract in court. It indicated that the matter was pending under investigations. 5. The Appellant testified that on the material day he was driving motor vehicle registration no KCE 339U at a speed of about 60 – 80KPH along Kisumu – Ahero road towards Kisumu. That visibility was good, road was smooth with no bumps and road signs. He stated that he saw a matatu in front of him about 100metres ahead which was overtaking a vehicle and that there were 2 motor bikes riding towards him Ahero direction. 1. It was his evidence that he passed the matatu that was headed towards Kisumu then saw a motor cycle overtake the matatu and then it got back to its lane. The witness claimed that the motor cycle was zig zagging and it lost control and rammed into a second motor cycle that was on the left lane (towards Ahero). DW1 stated that owing to this impact, the motor cycle herein spiraled on the road towards his side with the rider still holding onto it and rammed onto his left tyre and the impact threw the cyclist off the road. According to the witness, he had completely slowed down and was on the extreme edge of the road. 2. After the hearing, the trial Magistrate entered judgement for the Plaintiff as against the Defendant. Aggrieved by the judgment, the appellant filed this appeal and sought to set aside the judgment on liability and the loss of dependency, citing the following grounds:- * 1. *The Learned Trial Magistrate erred in law and in fact in finding that the Respondent had established negligence against the Appellant.* 2. *The Learned Trial Magistrate erred in law in failing to consider the evidence of PW-2 carefully, and thus failed to realized that the evidence was internally and externally inconsistent, unreliable, unbelievable and blatantly false.* 3. *The Learned Trial Magistrate erred in law and in fact in finding that the Appellant was driving at a high speed and overtaking, when there was no such evidence or credible evidence to support those findings.* 4. *The Leaned Trial Magistrate erred in law and in fact in failing to consider the evidence of the Appellant and make any findings or conclusions thereon.* 5. *The Learned Trial Magistrate erred in law and in fact in failing to state why he believed PW-2 and not DW-1, the Appellant.* 6. *The Learned Trial Magistrate erred in law and in fact in holding that he “had no reason to doubt PW-2” without giving any reasons therefore contrary to law, and while there was sufficient material to show that PW-2 could not possibly be believed.* 7. *The Learned Trial Magistrate erred in law and in fact in failing to consider the evidence before him objectively, dispassionately and as a whole, and thus erred in his finding on liability.* 8. *The Learned Trial Magistrate erred in law in failing to properly appreciate and consider the evidence before him and apportion liability as he ought to have done.* 9. *The Learned Trial Magistrate held a multiplier of 20 years suitable without considering any of the authorities cited to him at all which showed that for persons of the same age group of 35 years, such as the deceased, a multiplier of 15 was suitable.* **Appellants Submissions** 1. The Appellant submitted that the duty of this court as an appellate court is as stated in the case of ***Selle vs Associated Motor Boat Company Ltd (1986) E.A. 123,*** to re-evaluate the evidence afresh, and come to an independent finding, bearing in mind that it did not see the witnesses. The Appellant submitted that the trial magistrate did not analyse the evidence and state why he chose to go by the testimony of PW2, despite stating that the only eye witness evidence availed in court was by PW2 and DW1. 2. It further submitted that no negligence was proved against the Appellant and therefore the court should not have found the Appellant culpable. He took issue with the structure of Judgment adopted by the trial magistrate herein stating that the trial Magistrate did not list issues for determination and did not give reasons for preferring one piece of evidence over the other or the reasons for the determination. The Appellant thus asked the court to set aside the judgment of the trial court and allow the appeal. **Respondent’s Submissions** 1. The respondent submitted that the Appellant’s evidence was contradictory and the defence witness kept changing his story at the hearing. He stated that according to the DW1, he witnessed the accident yet he states that he had already passed the vehicle and the two motor cycles that he claimed to have collided. The respondent submits that unless the Appellant kept looking behind to see since he had already passed the motor cycles and which he submitted was highly improbable, illogical and impossible. The Respondent further submitted that there is no way the cyclists would have spiraled into the Defendant's vehicle if he had passed the matatu which was ahead of the motor cyclists. 2. The respondent submitted that looking at the totality of the evidence before court, there is no probability that these events occurred in the manner the Defendant/Appellant purported, and urged the court to treat the Appellant as an unreliable witness and dismiss the Appeal. **Determination** 1. This being the first appellate court, its duty is as summarized by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123**: which is "… to 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. Having considered the appeal, the submissions in support and the opposing submissions, I frame the following issues for determination:- 3. ***Whether the Appellant was liable for the accident.*** 4. ***Whether the loss of Dependency awarded by the trial Magistrate was excessive.*** **Liability** 1. The Trial court found the Appellant herein fully liable for the accident. I have taken my time to evaluate the lower court file and the evidence tendered therein. It is not in dispute that the Appellant was the registered owner of motor vehicle registration number KCE 399U. A copy of records was availed and confirm that the Appellant is the owner of the vehicle. 2. The Appellant has also not disputed the fact that he is the one who was driving on the material day. He told court that he was driving at a moderate speed of 60 – 80 KPH. That he passed the matatu that was headed towards Kisumu then saw a motor cycle overtake the matatu and then it got back to its lane. The Appellant claimed that the motor cycle was zig zagging and it lost control and rammed into a second motor cycle that was on the left lane (towards Ahero). That the motor cycle herein spiraled on the road with the rider still holding onto the bars towards his side and rammed onto his left tyre and the impact threw the cyclist off the road. 1. The Plaintiff’s witness told court that the Appellant was negligent and he is the one who drove to the path way of the motor cycle registration number KMDH 056Q and rammed onto it and then dragged the motor cycle together with the cyclist, who is now deceased to the edge of the road. 2. I have considered the two versions on how the accident occurred and the submissions by the parties. To start off, the trial court is vested with the discretion to award and apportion liability based on the evidence adduced before it. The appellate court may only interfere if the same was arrived at contrary to the evidence on record. In ***Mahendra M. Malde vs George M. Angira - Civil Appeal No. 12 of 1981***, it was heldthat *“...apportionment of blame is an exercise of discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the* *application of a wrong principle”.* 3. In the instant case the trial magistrate found that the testimony of PW2 (eye witness) was the correct version of how the accident occurred and that the Appellant was driving at a high speed and could not effectively apply brakes, while overtaking and he thus encroached into the lane of the deceased. 4. The Appellant submits that the trial magistrate erred in finding that the Appellant was culpable. I have considered the submission and my findings are as follows:- 1. The PW2 was consistent in his explanation of how the accident occurred. That it is the Appellant who veered onto the lane of the motorcycle while overtaking and rammed into the motor cycle thus causing the accident. 2. The version of how the accident took place according to the Appellant is not convincing. He states that he had already passed the matatu and the two motor cycles, when the motor cycle of the deceased rammed onto a second motor cycle. As correctly submitted by the Respondent, this would mean that he was ahead and the scene was behind him. To me this would have been difficult for the Appellant to give a proper account, because he was facing ahead. It is unlikely that a driver facing ahead, would keep turning while driving to see how an accident, that was behind him had occurred. 3. Thirdly, if indeed the Appellant had already overtaken and there was an accident behind him, again the version that the motor vehicle spiraled to his vehicle and knocked it on the tyre would not be correct. Because, he was already past the point of impact. 4. I have also taken my time to evaluate the sketch map appearing on page 126 of the record of Appeal. The sketch and even the evidence of the Appellant is that he was 100meters from the first point of impact between the two motor cycles. A distance of 100metres while spiraling is not a short distance at all. The sketch also indicates that the Appellant was on the opposite lane with the motor cycles, which is contrary to his testimony in court, that he had overtaken the motor cycles, meaning that they were all on the same lane. My finding is that the testimony of the Appellant is inconsistent and therefore not credible. 5. Having analyzed the entire evidence adduced by both parties, I find that the more probable scenario is that the accident happened in the manner described by PW2, who was at the scene and was consistent throughout his examination in chief and cross examination. 6. My finding is that the Appellant drove his vehicle in a negligent manner as he overtook and veered into the lane of the deceased and rammed into his motorcycle and caused the accident. The Appellant then dragged the deceased and his motor cycle and only managed to stop at the edge of the road. 1. On a balance of probability, I find that the Respondents had established that the appellant was negligent in the manner he drove and controlled motor vehicle registration number KCE 399U and caused the accident. I therefore find that the trial Magistrate did not err in finding that the Appellant herein was liable for the accident at 100%. # Loss of Dependency 1. PW1-the deceased’s wife testified that the deceased was the sole breadwinner to his family. The family consisted of PW1, their two children and two parents. He died at the age of 35 years. Prior to his death, he worked as a surgeon with ICAP Kenya and was earning Kshs.73,941/- basic monthly pay at the time he met his death. Pay slips of the deceased were produced in court as well as the death certificate. His last pay slip for February 2016 showed that his net pay for the month was Kshs.59,222/-. 2. The trial Magistrate applied a multiplier of 20 years and a Multiplicand of Kshs.57,675/- being the net pay of the deceased after the statutory deductions and personal obligations. Because the deceased was married and had dependents, the trial Magistrate applied a ratio of 2/3. 3. The Appellant submitted that the trial court had not considered the authorities cited by the parties when they submitted and did not comment on whether they were relevant or not and that had the Court considered the authorities, it would have found that a multiplier of 15 years was the most appropriate, taking into consideration vicissitudes of life. 1. I have considered the submissions and the entire authorities cited by the parties. The statutory retirement age for formal employment in Kenya is 60 years. The deceased died at the age of 35 years, a whole 25 years to his date of statutory retirement. Being a doctor, he would have probably worked beyond retirement. 2. The trial Magistrate gave him 20 years as multiplier. Although the Appellant submits that this should be reduced to 15 years, there was no evidence availed to court of any imponderables that would have shortened the life of the deceased and reduced his working years by that margin. The Appellant has submitted that the vicissitudes and imponderables of life would be like HIV and Covid 19 pandemic. There is no evidence that the deceased was HIV positive and, in any event, HIV is a condition, that would not necessarily shorten one’s working life or life generally. On Covid 19 pandemic, this accident took place long before the pandemic. And in any event, majority of Kenyans and the world in general survived the pandemic. In the cited case of **BENEDETA WANJIKU Vs CHANGWON CHEBOI & ANOR [2013] eKLR** the court found that:- “***The deceased was at the time of his death 44years of age. The Defendant adduced no evidence of the vicissitudes of life or other imponderables which would have shortened his working life to 6 years or to 50 years and retire from work. In the absence of vicissitudes of life which would have curtailed his working to 50 instead of the expected 60 years retirement age, I reject the multiplier of 6years suggested by the defence counsel'.....”*** 1. My finding is that the Appellant has not availed evidence of any special vicissitudes of life which would have in the present circumstances made the deceased to retire at the age of 50 years as opposed to the expected sixty (60 years) and therefore I find no reason to interfere with the trial Magistrate’s finding on the Multiplier. The multiplier of 20 years was reasonable in the circumstances. 2. And since the Appeal only related to liability and the Multiplier, I find no need on delving on the other aspects of the ratio and multiplicand. 3. The upshot of the matter is that this court finds that the trial Magistrate did not err in both the finding on liability and in applying a multiplier of 20 years. This Appeal is found to be without any merit and is dismissed with costs to the Respondent. **Judgment** delivered, dated and signed virtually at **Nairobi** this **19th** dayof **June,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Lindsy* – court assistant *Barasa ……………………………*for the Appellant *Gitari for Oluoch …………………*for the Respondent *Barasa - I ask for a 30days stay of execution.* *Gitari - No objection.* *Court – Stay of execution is granted for 30days.*