https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10360

Quick Matt Limited v Chimisa (Suing as Legal Representative of the Estate of Shelmith Ayera (Deceased)) (Civil Appeal E095 of 2025) [2026] KEHC 10360 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 10360 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E095 of 2025 MW Mutuku, J June 24, 2026 Between Quick Matt Limited Appellant and Adelaide Kavala Chimisa Respondent Suing as Legal Representative of the Estate of Shelmith Ayera (Deceased) (Being an appeal from the judgment and decree of Hon. Meresia Opondo delivered on 11th June 2025 in Kiambu Chief Magistrate’s Court Civil Case No. E309 of 2024) Judgment 1.Before this Court is the Memorandum of Appeal dated 7th August 2025 by which the Appellants sought the following orders:-(a)That this Appeal be allowed.(b)That the finding of the lower court be set aside and more specifically the judgment of the lower court against the appellant on liability be set aside.(c)That alternatively this court does evaluate the evidence and make an assessment on both the issue of liability and on the measure of damages.d)That the appellants be awarded the cost of this appeal.e)Any other relief as this honorable court deems fit. 2.The appeal was canvassed by way of written submissions. The appellant filed the written submissions dated 14th March 2026 whilst the Respondent relied upon their written submissions dated 13th March 2026. Background 3.This appeal arises from a road traffic accident which occurred on 16th August 2023. It is alleged that the deceased, who is the respondents daughter was a lawful pedestrian along the Northern by pass in Ruaka around 7 p.m, when she was knocked down by the appellant’s motor vehicle KCW 400Y Prado. She later passed away at Kiambu Level 5 Hospital while undergoing treatment for the injuries she sustained as a result of the accident. 4.Following the accident the mother of the Deceased filed a suit in the Lower Court seeking General and Special damages. The suit was heard and a judgment delivered on 11th June 2025 in favour of the respondent. 5.The appellant being dissatisfied with the whole of the judgment and decree of the learned magistrate has appealed the whole judgment on the grounds that:- 1.That the learned magistrate erred in fact and law in finding that the appellant was in any way to blame for the injuries sustained by the respondent. 2.That the learned magistrate erred in law and fact in finding that the respondent had led evidence showing that the appellant was to blame for the accident that gave rise to the suit before the lower court when in fact the respondent had not presented any such evidence at all 3.That the learned magistrate erred in fact and law in finding that the appellant was to blame for the accident that led to the suit before the lower court when the only evidence presented to the lower court showed that the deceased accident victim was to blame for her misfortune. 4.That the learned magistrate erred in fact and law in shifting the burden of proof to the appellant. 5.That the learned magistrate erred in law in disregarding the evidence contained in the police abstract notwithstanding the absence of any other evidence and proceeding on the sole basis that the entries in a police abstract are not conclusive evidence of blame. 6.That the learned magistrate erred in fact and law in basing her finding on evidence that was not presented to the trial court or on relying on evidence that that could not meet the threshold of proof of blame to the required standard. 7.That the learned magistrate erred in fact and law in finding that the appellant was to blame for the lapses or errors of judgment on the part of the deceased accident victim. 8.That the learned magistrate erred in fact and law in making an award of damages that was manifestly excessive and unsupported by the evidence before her. 9.That the learned magistrate erred in fact and law in making an award of damages that was unwarranted, grossly excessive and inconsistent with the evidence or case law. Analysis and Determination 6.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 7.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557(KLR) in which the Court of Appeal stated as follows:-“This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that 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 is 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 allowances in this respect. see Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” 8.The fact that the appellants have requisite locus standi in this matter is not in any doubt. At Page 27 of the Record of Appeal is a limited Grant of letters of Administration issued in favour of the appellants authorising them to file suit on behalf of the estate of the deceased. 9.Similarly the fact that an accident occurred on 16th August 2023 is also not in doubt. At Page 13 of the record is a copy of police abstract dated 28th March 2024 confirming that an accident had occurred involving the motor vehicle Registration KCW 400Y and a pedestrian. At Page 25 of the record is the Death Certificate confirming that the Deceased Shelmith Ayesa died at the age of twenty nine (29) years as the result of injuries sustained in a road accident. 10.The Appellants are aggrieved by the finding of the trial court that liability had not been proved by the respondents. 11.It is trite law that he who alleges must prove. It is a general proposition of the law that the legal burden of proof lies upon the party who invokes the aid of the law. Section 107(1) of the Evidence Act Chapter 80 Laws of Kenya provides:“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 12.Sections 109 and 112 of the same Act provide as follows:-“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. “112. In Civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him”. 13.The two provisions were considered in the case of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court held as follows:“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Section 109 and 12 of the Act.” 14.This being a civil case the respondents were required to prove on a balance of probability that it was the driver of the appellant’s vehicle who caused the accident, which led to the death of the victim. 15.The respondents called three Witnesses in support of their case. PW 1, Sako Tundura Gagi informed the court that he had employed the deceased. It was his evidence that he used to pay the deceased Ksh 30, 000 per month and that she had only worked for him for a period of 11 days. PW 2 Adelaide Kavala Chimasia is the mother to the deceased. Her evidence was that she used to live with the deceased and her two children. That on the date of the accident, she received a phone call, and was informed that the deceased had been involved in a Road Traffic Accident. That when she rushed to Kiambu Level 5 Hospital, she found that her daughter had passed on. She was issued with a police abstract, and later conducted a search in respect of the motor vehicle. The search, produced as exhibit 7 indicated that the motor vehicle Registration number KCW 400Y was registered in the name of Quick Mart Limited. 16.PW 3 was a police officer based at Karuri police station. He produced the police abstract issued by the police station. He further told the court that he was not the investigating officer of the case. In his evidence in chief, he stated that police abstract indicated that the pedestrian was to blame for the accident. PW1 did not witness nor investigate the accident and thus could not tell how the same occurred. 17.The Respondent did not call any evidence during the trial. 18.The appellants sought to rely on the police abstract as proof that the accident was caused by the negligence of the deceased pedestrian. The said police abstract was produced in evidence by the police officer. The maker of the document was not called to testify. No evidence was called from the police officer who visited the scene. No sketch map was produced as an exhibit. In short no evidence was called to prove the contents of that sketch plan. 19.A police abstract does not provide proof of how the accident occurred and cannot be deemed to be proof of liability. In the case of Peter Kanithi Kimuyu -vs- Aden Guyo [2014] eKLR it was held that:-“A police abstract is not proof of the occurrence of an accident but of the fact that following an accident, the occurrence thereof was reported at a particular police station.” 20.Therefore the production of the police abstract did not absolve the respondents of their legal obligation to prove liability as against the appellant. A police abstract is merely proof that a report was made to a particular police station. In the absence of evidence from an officer who visited the scene and/or a sketch map the police abstract is of little value to the court. 21.In the case of ZOS and CAO -vs- Amollo Stephen [2019]eKLR, Hon. Lady Justice Aburili observed as follows:-“The police abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of the accident but proof of the fact that following an accident the occurrence thereof was reported to the police who took cognizance of that accident. It is the police, having received information of a report of occurrence of an accident [who] would investigate and establish the circumstances under which such an accident occurred……….” 22.In the same case the Court went on to state that:-“…………..it was incumbent upon the appellant at the time of hearing to either call an eyewitness who saw the accident take place to prove the listed particulars of negligence attributed to the Respondent or to call the police from Bondo Police Station who investigated the accident to shed light on the result of the investigations and as to who was to blame for the subject accident wherein the Deceased lost his life.” 23.On this issue, though the occurrence of the accident is not expressly denied, I note that there was no eye witness who was availed by either side to give an account of how the accident in question happened. The police officer who visited the scene and made recommendations on the police abstract was not called to give evidence. Consequently, there was no sketch plan produced before court to enable this court make a determination on the blame worthiness of the parties herein. Further, the appellant failed to avail the driver of the said motor vehicle as a witness to his case. 24.Faced with a similar situation, the court in the case of Enock Sinde Obegi v Benard Sumo [2020] KEHC 6558 (KLR), the court held as follows;“However, I agree with Counsel for the appellant that this being a case where the accident is not disputed but all we have is one driver’s word against the other, it would be a good case to apportion liability in the ratio 50:50%. This is as was held by the Court of Appeal in the case of Farah v Lento Agencies [2006] 1 KLR 124, 125 where the Court of Appeal held: -“ ………… 4.The trial court had two conflicting versions of how the accident occurred. It was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. 5.Where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. As no side could establish the fault of the opposite party, liability for the accident could be equally on both the drivers. Therefore, each driver was equally to blame.” 25.Similarly in the case of Oduor v Njagi (Civil Appeal 100 of 2020) [2024] KEHC 12437 (KLR) (26 September 2024) (Judgment), Hon. Justice Ado Moses upheld a finding on 50: 50, and observed thus,“ 25.It is trite that in an action for negligence as a result of road traffic accident, the burden of proof rests upon the plaintiff alleging it. However, under the doctrine of res ipsa loquitor, negligence can be inferred in the absence of any either plausible explanation on how the accident occurred. In the case of Sally Kibii and Another versus Francis Ogaro [2012] eKLR, the court, stated the following in relation to the doctrine; - ‘‘The Plaintiff in the trial only produced two witnesses who admitted that they did not witness the accident and could not tell how it happened. The police abstract showed that the accident was caused by collusion of two vehicles and investigation were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to blame and the absence of an eye witness diminishes the appellant’s chance to prove a case of negligence against the defendant….to successfully apply this doctrine (res ipsa loquitor) there must be proof of facts that are consistent with negligence on the part of the defendant as against any other cause…….can safely presume that the mere fact that two cars being KAK 746J and KAG 331K collided, negligence was on the part of the defendant’s cause and not the other. The plaintiff must prove fact which give rise to what may be called res-ipsa loquitor situation.’’ 26.Guided by the above cited authorities, and after considering the evidence before this court, I find that plaintiff and the defendant liable, and apportion liability at the ratio of 50: 50. 27.I hereby substitute the finding of the trial court and find that in absence of eye witness account on how the accident occurred, and the appellants having failed to call their driver, and further in absence of the evidence of the conclusive evidence in respect to the outcome of the investigations by the investigating officer, I apportion liability at the ratio of 50:50 between the appellant and the respondent. On quantum. 28.It is trite that this Court will only interfere with the judgment of the lower Court if the same is founded on wrong principles of law and/or misapprehension of the evidence. That was the holding by the Court of Appeal in in Butt v Khan [1977] 1 KLR, where it was stated that-“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”. Pain and suffering 29.In order to ascertain whether the amount awarded by the trial Magistrate was within the principles that guide the award of damages under this header, the court has to look at how long the deceased remained alive after the accident. 30.In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] eKLR, the Court made the following observation in regard to awards under the Law Reform Act, Cap 26 Laws of Kenya-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is ksh 100,000/= while for pain and suffering the awards range from ksh 10,000/= to ksh 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” (emphasis added). 31.In the case of Mercy Muriuki & another V Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the Late Robert Mwangi) [2019]eKLR the court observed that higher damages are awarded if the pain and suffering was prolonged before death. 32.The learned trial magistrate observed that the deceased succumbed to the injuries after two days and awarded a sum of Ksh 50,000. However, I have looked at the death Certificate and the post mortem report, and the two documents confirm that the deceased passed on the 16th August 2023, the same date and a few hours after the accident. I will substitute the award under this head with an award of Ksh 20,000. Loss of expectation of life. 33.The deceased enjoyed good health, and no evidence was adduced to the contrary. Under this head, an award of Ksh 100,000 was awarded and I find no reason to disturb the same. Loss of dependency. 34.Section 4 of the Fatal Accidents Act limits the beneficiaries of a deceased to the wife, husband, parent and child. On whether the learned Magistrate erred in law and in fact in adopting a multiplier of 25 years, the appellants submitted that the multiplier of 25 years applied by the learned trial magistrate was not reasonable and that the trial court did not take into account the facts and evidence. 35.The deceased died at the age of 29 years as per the death certificate. In my opinion the trial court arrived at the right multiplier and I find no reason to disturb the finding on loss of Dependency 37.This court is satisfied that the trial court arrived at the right finding that the deceased had two children who solely depended on her. This was proven through, copies of the birth certificates of the two minors and the evidence of the mother of the deceased. 38.In Millicent Kimuli & Anor v Mbisi Linah Catherine & another [2015] eKLR, the Court adopted a multiplier of 30 years for a deceased who died at the age of 30. The appellant herein has not stated in what manner the Trial Court misapprehended the evidence. I uphold the multiplier of 25 years awarded by the Trial Court in this case for being fair and reasonable. The application of 2/3 dependency ratio was not challenged, thus the award of damages for loss of dependency is upheld. 39.The court finds that the trial Magistrate did not fall into error in this header and I find no reason to disturb the finding. 40.The special damages are not challenged. Costs. 41.In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:-“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 41.The success was mixed, therefore, each party shall bear their own costs in the appeal in line with Section 27 of the Civil procedure Act, which, provides as follows: -(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. Determination 42.The appeal is partially allowed in the following orders: 1.That the finding of the lower court on liability is hereby set aside and substituted with a finding that judgement on liability is hereby entered in the ratio of 50:50. 2.The respondents are awarded general damages of Ksh 3,120,000 as follows:-i)Pain and suffering -Ksh 20,000ii)Loss of Expectation of Life –Ksh 100,000.iii)Loss of Dependency – Ksh 3,000,000.This figure, less 50%, the respondent is thus awarded Ksh 1,560,000. 3.Each party shall bear their own costs of this appeal. 4.30 days stay of execution granted. 5.Right of appeal. DELIVERED, DATED AND SIGNED ON THIS 24TH DAY JUNE, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGE.In the presence of:-No appearance for the Appellant.No appearance for the respondent.Court Assistant – Mr. Kibet.