https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9063

Rentworks East Africa Ltd v Shibibi (Suing as the Administrator of the Estate of Jackson Mboya – Deceased) (Civil Appeal E817 of 2024) [2026] KEHC 9063 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9063 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E817 of 2024 BW Murunga, J June 25, 2026 Between Rentworks East Africa Limited Appellant and Catherine Nambuye Shibibi (Suing as the Administrator of the Estate of Jackson Mboya – Deceased) Respondent (Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Milimani in Civil Suit No. E10261 of 2021 – Hon. N. Ruguru, Senior Principal Magistrate – delivered on 24th November 2023) Judgment A. Background 1.This appeal arises from the judgment of the Chief Magistrate’s Court at Milimani (Hon. N. Ruguru, Senior Principal Magistrate) delivered on 24th November 2023 in Milimani CMCC No. E10261 of 2021. 2.The suit had its genesis in a road traffic accident said to have occurred on 30th December 2015 along the Kenyatta–Muigai Road in the Dandora area of Nairobi, in the course of which Jackson Mboya (“the deceased”), a pedestrian then aged seven (7) years and a pupil in Standard One at Wangu Primary School, sustained fatal injuries. 3.His mother, Catherine Nambuye Shibibi (“the Respondent”), suing as administrator of his estate, instituted the suit by a plaint dated 10th August 2021 against Rentworks East Africa Limited (“the appellant”) as owner of motor vehicle registration number GKB 222H, claiming general damages under the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26), special damages of Kshs. 6,525.00, costs and interest. 4.The Appellant filed a statement of defence dated 14th September 2021 denying the accident and the particulars of negligence, and pleading in the alternative that the accident was caused or substantially contributed to by the deceased’s own negligence. 5.At the trial the Respondent called three witnesses, PW1 (PC Nthiga, a traffic officer), PW2 (the Respondent herself) and PW3 (Cheye Wafula) while the Appellant called one witness, DW1 (No. 50670 PC Henry Muramba, the driver of the subject vehicle). 6.The Learned Magistrate found the appellant 100% liable and awarded Kshs. 100,000.00 for pain and suffering, Kshs. 150,000.00 for loss of expectation of life, Kshs. 1,000,000.00 for loss of dependency and Kshs. 6,525.00 in special damages, a total of Kshs. 1,256,525.00, with costs and interest. 7.Aggrieved, the Appellant lodged this appeal by a Memorandum of Appeal dated 17th July 2024, the grounds of which the parties have, in their submissions, condensed into two complaints: liability and the quantum of general damages. B. The Appellant’s Submissions 8.On liability, the Appellant submits that the burden of proving negligence lay throughout on the Respondent and never shifted, relying on Karugi & Another v Kabiya & 3 Others [1987] KLR 347. It contends that the burden was not discharged. 9.The Appellant attacks PW3 as a witness whose name did not appear in the police abstract, who recorded no statement at the police station, and whose presence at the scene was doubtful, so that his account amounted to nothing. 10.It further submits that PW1 was not the investigating officer, did not visit the scene, produced no sketch map, confirmed that investigations were still pending, and read from an abstract bearing the annotation that the “pedestrian [was] to blame for the accident and contributed to his death.” 11.On that footing the trial court is said to have relied on uncorroborated and unreliable evidence to fix the Appellant with whole liability. 12.Relying on CMC Aviation Ltd v Cruisair Ltd (No 1) [1978] KLR 103 and Alfred Kioko Muteti v Timothy Miheso & Another [2015] eKLR, the Appellant argues that pleadings are not evidence, that the Respondent was obliged to prove how the accident occurred, and that she failed to bring the proper party to court. 13.In the alternative, it urges that even if some blame attached to it, the trial court ought to have apportioned liability, this being an accident between a pedestrian and a motor vehicle, and it relies on Wanjiru Ng’ang’a & Another v Paul Kinuthia Mungai [2015] eKLR and Hussein Omar Farah v Lento Agencies [2006] eKLR. The finding of 100% liability is said to be perverse and a grave misdirection. 14.On quantum, the Appellant contends that the award of Kshs. 1,000,000.00 for loss of dependency was inordinately high for a minor of seven on whom no one depended. While accepting that the global-sum approach is the proper method for a child of tender years (Frankline Kimathi Maariu v Philip Akungu Mitu Mborothi [2020] eKLR; Emmanuel Wasike Wabukesa v Munena Ndiwa Durman [2019] eKLR), it proposes a global sum of Kshs. 400,000.00. It likewise contends that the Kshs. 100,000.00 for pain and suffering and Kshs. 150,000.00 for loss of expectation of life were excessive, the death having been near-instantaneous, and proposes Kshs. 10,000.00 and Kshs. 100,000.00 respectively, relying on Stanley Muiru Njuguna v SK [2019] eKLR and James Gakinya Karienye v Perminus Kariuki Githinji [2015] eKLR. C. The Respondent’s Submissions 15.The Respondent submits that the trial court erred neither on liability nor on quantum, and that this court ought not to interfere unless the conditions in The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu [1985] eKLR are met. 16.On liability she relies on Khambi & Another v Mahithi & Another [1968] EA 70 for the principle that an appellate court will not disturb an apportionment of liability save where there is an error in principle or the apportionment is manifestly erroneous. 17.The Respondent submits that she proved her case on a balance of probabilities, in the sense explained in William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR, the Appellant having adduced no evidence to controvert her case or to establish contributory negligence. It is emphasised that the deceased was a child of seven who, in law, cannot be fixed with contributory negligence, reliance being placed on Butt v Khan [1981] KLR 349 (also [1982–1988] 1 KAR 1) to the effect that a child of tender years cannot be found contributorily negligent unless it is proved that the child knew, or ought to have known, that he should not do the act or make the omission. 18.On quantum, the Respondent supports the award of Kshs. 1,000,000.00 for loss of dependency, relying on Kenya Breweries Ltd v Saro [1991] KLR 408 that held that damages are payable to the parent of a deceased child irrespective of age or of proof of pecuniary contribution, on the inflation principle in Lau Chepung v Hoi Kong Ironwares Godown Co Ltd {1988} 2 HKLR 650, and on the comparable awards in Daniel Mwangi Kimemi & 2 Others v JGM & SMM, Civil Appeal No. 18 of 2014 (Kshs. 1,000,000.00 for a nine-year-old) and Anthony Konde Fondo & Another v RMC [2020] KEHC 2864 (KLR) (Kshs. 900,000.00 for a seven-year-old). She prays that the appeal be dismissed with costs. D. Issues For Determination 19.Having considered the record of appeal, the rival submissions and the authorities, two issues fall for determination:a.Whether the trial court erred in finding the appellant 100% liable for the accident; andb.Whether the trial court’s award of general damages was excessive, or otherwise made on a wrong principle, so as to warrant interference. E. Analysis And Determination 20.This being a first appeal, the court is under a duty to reconsider and re-evaluate the whole of the evidence on record, to subject it to fresh and exhaustive scrutiny, and to arrive at its own independent conclusions, bearing always in mind that, unlike the trial court, it neither saw nor heard the witnesses and must make due allowance in that respect. See: Selle & Another v Associated Motor Boat Co Ltd [1968] EA 123; Peters v Sunday Post Ltd [1958] EA 424). 21.That duty is, however, tempered by a settled restraint of that a finding of fact will not be disturbed merely because this court might have reached a different view; it will be disturbed only where it is shown to rest on no evidence, on a misapprehension of the evidence, or on wrong principles, The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu [1985] KLR 127; Mbogo & Another v Shah [1968] EA 93). 22.On the first issue, the starting point is that the legal burden of proving negligence rested on the Respondent and did not shift. Put at its highest, the Appellant’s case has real force. The investigation was admittedly incomplete; no sketch map was produced; the point of impact was never fixed; the original investigating officer was never traced; and the abstract from which PW1 read carried an annotation attributing blame to the pedestrian. 23.Were the Respondent’s case to rest on the abstract alone, the submission that liability was never proved would be difficult to answer, for it is well established that a police abstract is not conclusive proof of liability as per Kennedy Nyangoya v Bash Hauliers [2016] eKLR). The real question, then, is whether there existed credible evidence, independent of the abstract, on which the trial court could find the Appellant’s vehicle to have caused the death. 24.On a re-evaluation of the record, there plainly was, and it emerges from the Appellant’s own case. DW1 did not deny that the subject vehicle, GKB 222H, was at the scene of the accident. His account was that the vehicle attended in order to rescue a child who had been struck by some other, unidentified vehicle; that he personally conveyed the body to the City Mortuary; and that he thereafter took the vehicle for inspection in connection with a claim that he had caused the accident. 25.That testimony places the appellant’s vehicle and its driver squarely at the locus, contemporaneously with the death, and leaves the court with two competing explanations for one agreed set of facts: the respondent’s, that GKB 222H struck the child; and the appellant’s, that it merely came to the child’s aid. 26.Faced with those competing versions, the trial court was entitled to weigh the quality of each, and two matters tell decisively against the Appellant. 27.First, DW1 said he was travelling with his superior and a third officer; yet neither was called to corroborate the exculpatory account that another vehicle had struck the child. Second, although DW1 said he had taken the vehicle for inspection, no inspection or examination report was produced to show that GKB 222H bore no marks of impact, a document peculiarly within the appellant’s own possession. 28.Where a party withholds evidence within its knowledge, the court may infer that the evidence, if produced, would have been adverse to it , Section 112 of the Evidence Act. Further, in West Kenya Sugar Co Ltd v Lilian Auma Saya [2020] eKLR) Justice Njagi noted that:“…This is information that was within their knowledge – See section 112 of the Evidence Act. The inference to be drawn by the failure to produce the inspection report is that the evidence contained therein was adverse to their case.” 29.Set against the Respondent’s eyewitness, PW3, whose evidence directly implicated the subject vehicle, the Appellant’s bare denial did not displace the Respondent’s case on a balance of probabilities. See: William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR). 30.The attack on PW3 does not alter that conclusion. That his name was absent from the abstract, and that he recorded no statement, go to the weight of his evidence and not to its admissibility; and the assessment of a witness’s credibility is pre-eminently the province of the trial court, which had the advantage of seeing and hearing him (Selle, supra). Nothing on the record persuades me that the learned magistrate’s acceptance of PW3 was plainly wrong or wholly unsupported. 31.By the same token, the abstract annotation blaming the pedestrian cannot bear the weight placed upon it: the principle that denies the abstract conclusive force in the Respondent’s favour (Kennedy Nyangoya, supra) denies it conclusive force in the Appellant’s favour also, the more so where it issued from an officer who did not witness the accident, in an investigation that was admittedly unfinished. 32.That leaves the alternative plea that liability ought at least to have been apportioned. The authorities relied on, Wanjiru Ng’ang’a v Paul Kinuthia Mungai [2015] eKLR and Hussein Omar Farah v Lento Agencies [2006] eKLR, are apportionment cases concerning adult road users, a lorry driver and a cyclist; rival drivers, and have no purchase on these facts. 33.The deceased was a pedestrian aged seven. It is settled that a child of such tender years cannot ordinarily be fixed with contributory negligence. In Butt v Khan (1982–1988) 1 KAR 1; [1981] KLR 349, Madan JA observed that, as a matter of practice, a person under the age of ten cannot normally be guilty of contributory negligence, and that a young person may thereafter be so found only on clear proof that, at the material time, he had the capacity to know that he ought not to do the act or make the omission. 34.Law JA framed the test as whether the child was of such an age as to be expected to take precautions for his own safety. That is not an inflexible rule, a young child has, on appropriate facts, been held partly to blame as in Attorney General v Vinod [1971] EA 147; Rahima Tayab & Others v Anna Mary Kinanu (1983) KLR 114) but the onus of proving the child’s capacity lay on the Appellant, and the Appellant led no evidence whatever to discharge it. 35.There being no basis to attribute any blame to a seven-year-old, the refusal to apportion, and the finding of 100% liability, cannot be faulted. The first issue is answered against the appellant. 36.I turn to quantum. The principles governing appellate interference with an award of general damages are not in dispute. Such an award is an exercise of the trial court’s discretion, and this court will not substitute its own figure merely because it would have awarded differently. Interference is justified only where the trial court took into account an irrelevant factor or ignored a relevant one, proceeded on a wrong principle, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate of the damage. 37.As the Court of Appeal cautioned in Jane Chelagat Bor v Andrew Otieno Onduu [1988–1992] 2 KAR 288, it is not enough that there is a balance of opinion or preference; the scale must go down heavily against the figure attacked before this court will interfere. 38.The principal head in contest is loss of dependency, and here there is, helpfully, no dispute as to method. Both parties accept that, the deceased being a minor of seven with no ascertainable income, the multiplier approach is inapt and the proper course is the award of a global sum. An approach long sanctioned for the estate of a deceased child. 39.In Kenya Breweries Ltd v Saro [1991] KLR 408 the Court of Appeal held that the presence in a family of a child, of whatever age or ability, is itself a valuable asset, so that damages are payable to the parent irrespective of proof of pecuniary contribution. The Court of Appeal held that:“…in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four year old one who has not been to school and whose abilities are yet not ascertained. That, we think, is a question of common sense rather than law. But the issue of some damages being payable in both cases is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and do invariably take care of their aged parents. That must be why we still do not have “homes” for the aged; we think an African son or daughter may well find it offensive to have his/her parents cared for by strangers in a “home” while he or she is still able to look after them. At the national level, the concept now finds expression in the popular phrase “being mindful of other people’s welfare”. If any legal authority is required in support of our views we would quote this court’s decision in Sheikh Mushaq v Nathan Mwangi Kamau Transporters & Five others [1985 – 1986] 4KCA 217, wherein the late Nyarangi, delivered himself as follows:-“In general, in Kenya children are expected to provide and to provide for their parents when the children are in a position to do so and to the extent of their abilities. The children are expected to do that by the established customs of the various African and Asian communities in Kenya. This particular custom is broadly accepted, respected and practiced thoroughout Kenya both by Africans and Asians. I would say the application of the custom at family level is the basis of the national ethos of being mindful others’ welfare. In the Asian community, the custom is supported by the Hindu religion whose influence on the life of the Hindu religion whose influence on the life of the Hindu community is well night total. That is common knowledge. With regard to Africans, the courts in Kenya exercise their respective jurisdictions inter alia to the extent the circumstances of Kenya and its inhabitants permit and subject to the qualifications those circumstances render necessary. The trial judge’s contemptuous remarks about the custom of the people is contrary to section 3(1) of the Judicature Act cap 8 and therefore to be regretted and disapproved. The custom could not possibly be said to be repugnant to justice and morality. The custom is well within the tenets of the great religious of Hinduism, Christianity and Islam. It is a custom the practice of which appeals to ordinary people in Kenya, is not malevolent and the trial judge’s view that it is “ outrageous and pernicious” is not well-founded and must be rejected. …In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is not evidence of pecuniary contribution. 40.The learned magistrate adopted precisely that approach. The dispute is therefore reduced to a single question: was the global sum of Kshs. 1,000,000.00 so inordinately high as to be wholly erroneous? 41.The answer turns on a comparison with awards in reasonably comparable cases, adjusted for the steady erosion in the value of money. The Appellant’s figure of Kshs. 400,000.00 draws heavily on older and lower awards. But the more recent and more closely comparable authorities point materially higher. In Daniel Mwangi Kimemi & 2 Others v JGM & SMM, Civil Appeal No. 18 of 2014, the High Court in 2019 settled on Kshs. 1,000,000.00 for a nine-year-old. Most pointedly, in Anthony Konde Fondo & Another v RMC [2020] KEHC 2864 (KLR), the High Court in 2020 awarded Kshs. 900,000.00 for the death of a child of exactly seven years, the very age of the deceased here. 42.Measured against that body of authority, the award of Kshs. 1,000,000.00, made in November 2023, is not aberrant. It sits a modest distance above the Kshs. 900,000.00 awarded for an identically-aged child in 2020, a distance readily explained by the further erosion in the value of money over the intervening three years and is in line with the Kshs. 1,000,000.00 thought appropriate for a slightly older child in 2019. 43.A figure at the upper end of the established range is not the same as a figure outside it; and to reduce it to the Kshs. 400,000.00 urged by the Appellant would be to substitute this court’s preference for the trial court’s lawful exercise of discretion. I am not persuaded that the award is so inordinately high as to amount to a wholly erroneous estimate, and I decline to disturb it. 44.The remaining heads may be dealt with shortly. As to pain and suffering, the Appellant is right that, where death is instantaneous, only a nominal sum is conventionally awarded; but the record was not all one way, although the death certificate recorded death on the same day, PW2 testified that the deceased survived some eight hours in hospital before he succumbed, and the trial court was entitled to resolve that conflict on the evidence before it. As to loss of expectation of life, a conventional sum is awarded, and that sum has risen with inflation. 45.Awards that a court of co-ordinate jurisdiction has approved for a child of the same age cannot, without more, be condemned as inordinately high. I find no warrant to interfere with either head. The second issue, too, is answered against the appellant. F. Disposition 46.In the result, the Appellant has not demonstrated that the trial court proceeded on no evidence, misapprehended the evidence, or acted on any wrong principle, whether on liability or on quantum. The appeal is devoid of merit. Accordingly, I make the following orders:a.The appeal is dismissed in its entirety.b.The judgment and decree of the Chief Magistrate’s Court at Milimani in CMCC No. E10261 of 2021, delivered on 24th November 2023 are upheld.c.The Appellant shall bear the costs of this appeal.d.Interest shall run as decreed by the trial court. On general damages from the date of the lower court’s judgment, and on special damages from the date of filing the suit until payment in full.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGEDelivered on a virtual platform in the presence of:Ms Martin h/b for Arusei for Appellantsfor RespondentsKevin Babu - Court Assistant