https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11748

**REPUBLIC OF KENYA** **IN THE HIGH COURT KENYA AT KERUGOYA** **CIVIL APPEAL NO E211 OF 2024** **REGINA BAHATI NDUKU………………...……….…...……………….… APPELLANT** **VERSUS** **AGNES MUTETI (Suing as the administrator of the** **Estate of the late Makau Kimatu (Deceased).………………......………...................................................RESPONDENT** **JUDGMENT** The Appellant being aggrieved by the Judgment of Hon. Derrick K. Kuto (Mr) delivered on the 19th July, 2024 appeals to the High Court of Kenya on the following among other grounds: - 1. The learned magistrate erred in law and in fact in finding that the Respondent had proved liability on a balance of convenient. 2. The learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Appellant without considering the circumstances of the case. 3. The learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Respondent despite there being contradicting evidence on how the accident occurred. 4. The learned magistrate erred in law and in fact in failing to analyze the contradictory evidence adduced. 5. The learned magistrate erred in law and in fact in failing to consider the applicable legal principles and awarding excessive and exorbitant damages to the Respondent. 6. The learned magistrate erred in law and in fact in failing to consider the Appellant's submissions and analysis of the evidence in reaching his finding/ decision on liability and quantum of damages. The Appellant prays for orders: 1. That this Appeal be allowed. 2. That the Judgment/Decree of the Subordinate Court (Hon. D. Kuto (Mr)) delivered on the 19th July, 2024 apportioning 100% liability against the Appellant be set aside/ varied/ reviewed. 3. That the Judgment/Decree of the Subordinate Court (Hon. D. Kuto (Mr)) delivered on the 19th July, 2024 awarding a global sum of Kshs. 1,500,000/to the Respondent be set aside/ varied/ reviewed. 4. That the Appellant be awarded costs of this Appeal and of the entire proceedings in the Subordinate Court. **Brief facts** The plaintiffs filed a suit vide plaint dated 24th February ,2023 against the Defendant following a road accident that occurred on 27/10/2021. The claim is that the deceased was lawfully travelling as a passenger in motor vehicle registration number KDD 226F along Nairobi-Mombasa road at Kappa area when the defendant authorized driver, servant and or agent controlled and /or drove motor vehicle registration number KDD 226F recklessly and negligently that the motor vehicle lost control, veering off its lane and landed in a ditch occasioning fatal injuries to the plaintiff. Consequently, the plaintiff as administrator and on the behalf estate of the deceased claims damages under Fatal Accident Act and damages under Law Reform Act. The plaintiffs avered that at the time of the death of the deceased, he enjoyed good health and was a 17 years old businessman earning an income of Kshs 30,000. The Defendants filed their statement of defense dated 17th July, 2023. In the defense, she denied occurrence of the accident. The case proceeded for hearing, parties testified and they filed submissions. On 19th July, 2024, the court delivered judgment as follows: 1. Defendant is 100% liable. 2. Pain and suffering Kshs. 50,000/= 3. General damages for lost years Kshs. 1,500,000/ 4. Loss of expectation of life Kshs. 100,000/= 5. Special damages Kshs 22,100 Total Kshs. 1,672,100/= The plaintiff shall also have the costs and interest. It is so ordered. During the trial, the Respondent called two witnesses: **PW1 Agnes Muteti**. (the mother/administrator), who adopted her witness statement and testified that the deceased was her son, a 17-year-old businessman in good health earning approximately Kshs. 30,000 monthly; **PW2 (PC Fayo Ali from Athi River Police Station),** who produced the police abstract (Exhibit 1) confirming the accident involving KDD 226F and the deceased as a passenger. The case was noted as pending under investigation. The Appellant called no witnesses. **Appellant submissions** On whether the Trial Court was justified in apportioning 100% liability to the Defendant being the Appellant herein. During the trial, the Appellant stated that she did not witness the accident. On cross examination the Appellant stated that she was called by well-wishers and informed of the accident and that the deceased was a pedestrian and was knocked by motor vehicle KDD 226F. The Appellant's witness, a police officer, stated he had a Police Abstract dated 7th October 2021, relating to an accident involving motor vehicle registration number KDD 226F involving a passenger, one Makau Kimatu. The Police officer stated that he was only instructed to produce the Police Abstract. Notably, the Police Abstract annexed to the Plaintiff's List of Documents and produced by the Respondent is dated 8th November, 2021. The appellant submits that the evidence tendered through the police officer is materially flawed and lacks probative value. On the award of damages. The Appellant submits that the Trial Court erred in awarding a sum of Kshs. 50,000/= under the head of pain and suffering, despite the evidence on record, the Death Certificate, indicating that the deceased died on the same date of the accident. The award under pain and suffering should be minimal, often symbolic, to reflect the brief or non-existent period of consciousness. In **Hyder Nthenya Musili & another v China Wu Yi Limited & Another 2017 eKLR** the court stated: **“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 Kshs 100,000/while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and PW2 testified that the deceased died at the scene of the accident and | find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”** The Appellant submits that, while the Trial Court was entitled to award a lump sum for lost years under the Fatal Accidents Act, the sum of Kshs. 1,500,000 was inordinately high and unsupported by evidence. In **DMM (Suing as the Administrator and Legal Representative of the Estate of LKM vs. Stephen Johana Njue & Another 2016 KEHC 6186 KLR** the court expressed itself as hereunder: **“In the circumstances, the sum of Kshs. 700,000/= was a product of, and was an erroneous estimate of damages. Taking all factors into account, a 16-year-old in school and doing well would receive a compensation of between Kshs. 1,000,000/= to Kshs. 1,500,000/=.”** The appellant submits that an award of Kshs. 1,000,000 is sufficient. **Respondent submissions** On liability, the respondent submits that she produced a police abstract confirming the involvement of the deceased and the suit motor vehicle in the accident; the subject of this appeal as well as his class of persons in the said vehicle at the material time. This evidence was never controverted or challenged. The respondent blamed the appellant and or her driver for careless driving and losing control of the said vehicle causing the accident herein. This evidence was never challenged. On the contrary, the appellant and or her driver did not give any evidence on how the accident happened or rebut the evidence of the respondent. in the case of **Rahab Micere Murage (Suing as a Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 others [2012] eKLR** **The appellant alleged negligence against all the respondents as the cause of the accident in which her daughter died. She was not there at the scene and could not have known how the accident happened. As stated earlier vehicles driven on public roads in a proper manner do not without cause become involved in accidents. It must be for that reason that the appellant accused the respondents of negligence. Since each of the three respondents had knowledge as to how the accident happened, they were duty bound under the law to call evidence to show either, which one of them was responsible for the accident or which one of them was innocent in the matter. All of them having failed to adduce evidence in that regard, the rebuttable presumption of fact is that all of them were in one way or another negligent…** The respondent submits that the deceased cannot be culpable for the accident in any way having been a passenger in the suit motor vehicle. Also, the respondent also pleaded the doctrine of *Res Ipsa Loquitar.* The Court of Appeal in **Margaret Waithera Maina v Michael K. Kimaru[2017]** eKLR stated as follows: **This is a case where the doctrine of Res Ipsa Loquitor applies. In** **Mukusa vs. Singa & Others (1969) E. A 442, it was held that for the doctrine to apply there must be reasonable evidence of negligence but where the thing is §shown to be under the management of defendant or his servants and the accident in the ordinary course of things does not happen if those who have ‘the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care”.** With regard to the quantum of damages, it was decided in the Court of Appeal case - **Catholic Diocese of Kisumu v Tete [2004] eKLR** **The assessment of general damages is at the discretion of the trial Court and the Appellate Court is not justified in substituting a figure of its own for that awarded by the lower Court simply because it would have awarded a different figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles.** In this case, the deceased was 17years at the time of his death. He was in business and thus worked and earned a living. This evidence is not controverted. However, in absence of proof of monthly income, the global sum approach as used by the trial court was proper. The respondent relies on the following cases in urging this court to uphold the said award: **Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR** **the deceased was 17 years old at the time of the accident and the court awarded a global sum of Kshs 1,500,000/-.** **Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] eKLR** **Where the court upheld a global sum of Kshs 1,500,000/awarded under this head. The deceased was 16 years old at the time of her death.** **Issues** 1. Whether the trial magistrate erred in his finding on liability. 2. Whether the award of Kshs.1, 500,000.00/= as damages for loss of dependency as awarded to the deceased Estate was so inordinately high. **Analysis** I have carefully considered the entire record of appeal, the grounds of appeal, the written submissions by counsel for both parties, and the applicable Kenyan authorities. This being a first appeal, I am required to re-evaluate the evidence afresh and draw my own conclusions, while giving due deference to the findings of the trial court unless they are plainly wrong or based on misapprehension of evidence (see **Selle v Associated Motor Boat Co. Ltd [1968] EA 123).** **Liability** The trial court found the Appellant 100% liable. The Respondent pleaded that the deceased was a lawful passenger in the Appellant’s motor vehicle KDD 226F and that the driver lost control, veered off the lane, and caused the fatal accident. This was supported by the police abstract produced by PW2, which confirmed the involvement of the said vehicle and the deceased as a passenger on the material date and location. The Appellant did not call any evidence to controvert this. Although the defence denied the accident, no testimony was adduced on how the accident occurred, nor was any explanation offered for the vehicle leaving its lane and landing in a ditch. The appellant’s submissions alluded to alleged contradictions for instance, dates on police abstracts and a suggestion that the deceased was a pedestrian, but these were not supported by any evidence from the Appellant. The police abstract, though not conclusive on causation or negligence on its own, is prima facie evidence of the occurrence of the accident and the involvement of the parties The doctrine of res ipsa loquitur therefore applies, raising a presumption of negligence that the Appellant was required to rebut. **Rahab Micere Murage (Suing as Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 Others [2012] eKLR,** **where failure by those with knowledge of the accident to adduce evidence leads to a rebuttable presumption of negligence.** The Appellant’s failure to call any witness or offer any explanation left the Respondent’s evidence on liability uncontroverted. Being a passenger, the deceased could not have contributed to the accident. The trial magistrate was therefore justified in apportioning 100% liability to the Appellant. **Quantum of Damages** The assessment of general damages is at the discretion of the trial court. An appellate court will not interfere unless the trial court applied wrong principles, considered irrelevant matters, failed to consider relevant ones, or the award is so inordinately high or low as to represent an erroneous estimate of damages. See **Catholic Diocese of Kisumu v Tete [2004] eKLR;** Pain and suffering (Kshs. 50,000/=): The deceased died on the same date as the accident. Evidence indicates he died abruptly due to the injuries sustained. Where death follows immediately or shortly after the accident with little or no prolonged suffering, awards under this head are nominal or conventional. In **Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR**, **the court awarded Kshs. 10,000/= where the deceased died at the scene. Other authorities range from Kshs. 10,000/= to Kshs. 50,000/=, with higher awards where suffering was prolonged.** Given that the deceased died on the same day with no evidence of extended consciousness or suffering, the award of Kshs. 50,000/= is on the higher side. I substitute it with Kshs. 20,000/= Loss of expectation of life (Kshs. 100,000/=): This is a conventional award. The trial court’s award is upheld as standard and appropriate. Lost years / Loss of dependency (Kshs. 1,500,000/= global sum): The deceased was 17 years old, in good health, and described as a businessman. There is no documentary proof of income was adduced, making the multiplier approach inappropriate; a global/lump sum award was the correct method. Comparable authorities support this level of award: In **Francis Odhiambo Nyunja & 2 Others v Josephine Malala Owinyi (Suing as Administrator of Estate of Kevin Osore Rapando (Deceased)) [2020] eKLR**, **the court awarded a global sum of Kshs. 1,500,000/= for a 17-year-old.** In **Twokay Chemicals Limited v Patrick Makau Mutisya & Another [2019] eKLR**, **a similar global sum of Kshs. 1,500,000/= was upheld for a 16-year-old.** In **DMM (Suing as Administrator of Estate of LKM) v Stephen Johana Njue & Another [2016] eKLR).** **the court considered Kshs. 1,000,000/= to Kshs. 1,500,000/= appropriate for a 16-year-old in school and awarded Kshs. 1,200,000/=.** The award of Kshs. 1,500,000/= is within the range of comparable cases for a teenager of similar age and is not inordinately high. The trial court did not apply any wrong principle. This head is upheld. Special damages (Kshs. 22,100/=): These were specifically pleaded and proved. They are upheld. The appeal succeeds only partially on the quantum of damages for pain and suffering. The judgment of the Trial Court is hereby varied as follows: Liability remains at 100% against the Appellant. Pain and suffering: Kshs. 20,000/= General damages for lost years: Kshs. 1,500,000/= Loss of expectation of life: Kshs. 100,000/= Special damages: Kshs. 22,100/= **Total award: Kshs. 1,642,100/=** RAED AND PUBLISHED THIS 23RD JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT