https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9707

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NO. E016 OF 2025** **OKEYO BRIAN SAM…………………..……………………1ST APPELLANT** **JORIM IKEYO GUYA……………………………………….2ND APPELLANT** **VERSUS** **SARAH AKINYI WAMBOGA (Suing as the personal representative of the estate of DANIEL JARED OWEGI……………………………RESPONDENT** **(Being an appeal arising from the judgement of Hon. Margaret Wambani Onditi (CM) in Siaya CMCC No. 6 of 2020 delivered on 13/2/2025)** **BETWEEN** **SARAH AKINYI WAMBOGA (Suing as the personal representative of the estate of DANIEL JARED OWEGI……………………………PLAINTIFF** **VERSUS** **OKEYO BRIAN SAM ………………………………………..1ST DEFENDANT** **JORIM IKEYO GUYA ………………………………..…….2ND DEFENDANT** **JUDGMENT** 1. The appeal herein arises from the judgment of Hon. Margaret Wambani Onditi, Chief Magistrate dated 13/2/2025 in Siaya CMCC No. 6 of 2020 wherein she held the Appellants 90% liable for the accident while the Respondent shoulders 10% contributory negligence and proceeded to award the Respondent Kshs 2,060,000 for loss on dependency as well as costs of the suit. 2. The Appellants were aggrieved and duly filed a Memorandum of Appeal dated 27th February 2025 wherein they raised the following grounds of appeal namely; - 3. The learned trial Magistrate erred in law and in fact in deciding that the Appellants were 90 % liable in negligence without setting out the evidence, without analyzing the evidence, without making any findings on the facts, and without giving any reason for her decision contrary to Order 21 Rule 4 Civil Procedure Rules. 4. The learned trial Magistrate in law and in fact in finding the Appellant liable in negligence at 90% without any evidence of, or any findings on, any such alleged negligence. 5. The learned trial Magistrate erred in law and in fact in failing to find that the Respondent, in order to succeed, was required to prove the Appellants’ pleaded alleged negligence and to hold that indeed no such alleged negligence had been proved. 6. The learned trial Magistrate erred in law and in fact in failing to consider the evidence of DW-1 which tended to show that the Appellants were not negligent. 7. The learned trial Magistrate erred in law and in fact in finding that the Appellants were 90% liable in negligence without assigning any reason for the said apportionment and when there was no evidence at all of the Appellants' negligence. 8. The learned trial Magistrate erred in law and in fact in failing to find that neither the pleaded negligence nor the pleaded particulars thereof had been proved by any evidence. 9. The learned trial Magistrate erred in law and in fact in failing to analyze the evidence as a whole and apportion liability between the Appellant and the Respondent as was appropriate. 10. The learned trial Magistrate's decision that the Appellant was 90% liable is unsupported on the law and the facts. 11. The learned trial Magistrate erred in law and in fact in failing to consider carefully the Appellant's submissions and the authorities cited therein. 12. The learned trial Magistrate erred in law and in fact in assessing and applying an income of Kshs 15,000.00 without any finding on any such income, the deceased's occupation, the earnings or expected earnings, contrary and without giving any reasons for such finding contrary to Order 21 Rule 4 Civil Procedure Rules. 13. The learned trial Magistrate erred in law in failing to find and apply the income applicable which was that of a general worker in "All other areas" at Kshs. 7,240.95, according to the Regulation of Wages (General) (Amendment) Order 2018, applicable in December 2019 when the deceased died. 14. The award for loss of dependency is inordinately high, unreasonable and unjustified as the multiplicand used was not based on any fact or law, was applied whimsically, and capriciously and without any proper exercise of the Court's discretion. 15. The learned trial Magistrate awarded damages for loss of dependency without any regard to the principles applicable to the award of such damages as established by law and precedents. Reasons wherefore, the Appellants pray that the Appeal be allowed and for orders that: - a) The judgment apportioning liability against the Appellant at 90% be set aside, and the Respondent's suit in the lower court be ordered dismissed. b) Alternatively, the judgment on liability varied and be replaced with a suitable judgment. c) The award for loss of dependency be set aside and/or be varied with a suitable award as the justice of the matter requires. d) The Appellant be awarded the costs of this appeal and of the trial Court. This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial Court and subject it to an independent analysis and arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See **Selle vs Associated Motor Boat Co. Ltd (1968) EA 123**. In **Simon Taveta v Mercy Mutitu Njeru KECA 755 (KLR)**, the Court of Appeal put it this way: - **"As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. EA 123, thus:** **"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 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 allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)".** This court further stated in **Jabane -vs- Olenja KLR 661**: 1. **"More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did - see in particular Ephantus wangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870."** 2. The Respondent had lodged suit vide a plaint dated 28th January 2020 wherein she pleaded that the deceased was her son who was hit by the Appellants motor vehicle registration No. KCE 548W Nissan X Trail causing him fatal injuries and prayed for general damages under the Law Reform Act and Fatal Accident Act. That the Respondent also pleaded particulars of negligence on the part of the Appellants. The Appellants filed a defence dated 3rd March 2019 wherein they denied the particulars of negligence attributed to them and maintained that the deceased was solely to blame for the accident and duly pleaded particulars of negligence against him and further sought for dismissal of the suit with costs. 3. The trial commenced in earnest on 28/11/2021. 4. **Sarah Akinyi Wamboga (PW1)** in her evidence testified inter alia; that the deceased was her elder son; that the deceased died on the 24/12/2019 and who was survived by two wives and four children; that the deceased’s wives left their matrimonial homes. She adopted her witness statement dated 28/1/2020 as her evidence in chief. She produced documents in her list of documents and maintained that the deceased was a full mechanic and a driver who earned Kshs 30,000/ per month. That she is the sole bread winner for the deceased’s children. On cross examination, she stated inter alia; that the deceased died the same day at the age of 29 years old; that she did not witness the accident; that she found the victim in hospital; that the deceased’s wives left after the death of their husband and she could not know their whereabouts; that one of the children Kelly Ryan was born in 2019 and was still a toddler when the mother took off; that the birth certificates and school reports for the children were at home; that the chief is aware of the existence of the children; that the deceased was riding his own motorcycle when he was hit; that she did not have the riding licence for the deceased; that the decased was ferrying passengers using his motorcycle as a transport business; that the deceased was someone else’s employee; that the deceased’s employer had not given her the letter of employment showing that he earned Kshs 30,000/ per month but that the decased had orally informed her that he used to earn that much; that the deceased’s wives ran away with his documents and left her with the children. 1. **No. 84390** Cpl **Edson Otieno (PW2)** testified inter alia; that the accident herein was recorded at Yala Police Station vide OB. No. 16 of 24/12/2019. He was empathic that the accident occurred on the 24/12/2019 at about 1600hrs at Muhoho area along Busia – Kisumu road. That the accident involved motor vehicle registration No. KCE 548W make Nissan X-trail which was being driven by Okeyo of P.O. Box 520 Yala and motor cycle Registration No. KMEW 350G make Boxer which was being ridden by Jared Daniel Owegi who succumbed to the injuries. That the registered owner of the accident motor vehicle was Joram Okeyo Guya and that the said vehicle was insured by Kenya Orient Insurance Company Limited. He produced the accident abstract as exhibit 3. On cross examination, he testified inter alia; that the investigating officer in the traffic case was Corporal Koech who was transferred to Turbo Police Station and that his police statement, the sketch plan and his findings are contained in the police file. That the matter is still under investigations and that no one has been charged. That at paragraph 10 of the police abstract, both Corporal Koech and police constable Mutisya were indicated as the witnesses. That he was aware of the circumstances of the case and that the accident indeed happened and it was reported at their police station. Both parties later agreed by consent to produce the birth certificates of the deceased’s children as exhibit 5. The Respondent therefore closed her case. 1. **Brian Sam Okeyo (DW1)** testified and adopted his statement dated 26/11/2021 and filed in Court on the 6/12/2021 as his evidence in chief. It was his evidence that he reported this accident to the police and he was issued with a police abstract dated 2/1/2020 which he produced as D Exhibit 1. He further produced his valid driving licence as D Exhibit 2 and a copy of certificate of examination and test dated the 27/2/2019 for motor vehicle registration No. KEC 548W as D exhibit 3. On cross-examination, he stated that the accident did take place and that he ahs no objection if the deceased’s family is compensated. 2. The Appellants closed their case. 3. The learned trial magistrate later considered the evidence and came up with the impugned judgment. 4. The appeal was canvassed by way of written submissions. 5. The Appellant’s counsel first pointed out the fact that the appeal is mainly on the finding on liability and the multiplicand of Kshs 15,000/ leading to the award on loss of dependency. That in her Plaint (at page 5-7 of the record) the Respondent being the legal representative of the estate of the deceased Daniel Jared Owegi, sued the Appellants for damages. She pleaded that on 24.12.2019, the deceased was lawfully riding his motor cycle along the Busia- Kisumu Road, and at Muhoho area, was knocked and fatally injured by motor vehicle KCE 548W, which was being driven negligently. She pleaded that the motor vehicle "lost control and came into a collision with the deceased". That several particulars of negligence were set out against the driver of motor vehicle KCE 548W, the 1st Appellant, among them that he allowed the motor vehicle to veer into the wrong side of the road, allowing the motor vehicle to so to the deceased side, driving at a excessive speed, failing to adhere to the safety of other road users especially the deceased, failing to hoot, brake, stop or swerve to avoid the accident, driving in total disregard of the road, and driving defective vehicles. That the Appellants, in an elaborate defence at page 11-13 of the record, denied all the allegations and particulars of negligence, and pleaded further that the accident was caused by the deceased's own negligence. The Appellant’s counsel did present a summary of the Respondent’s case but went ahead to concentrate on the Appellants’ evidence through DW1 which was that as he drove motor vehicle KCE 540W, towards Yala from Muhoho along the Kisumu- Busia Road, he saw a motor cycle coming from his rear at high speed. That there was an oncoming motor vehicle, a lorry. That the motor cycle at his rear then, without heeding the oncoming lorry, started to overtake DW1's vehicle on the right side. That at that juncture, the oncoming lorry was too near, and the motor cycle, to escape a collision with the lorry, swerved back to the left and ended up ramming into DW1's front driver' door, with the resultant impact throwing him off the road. That DW1 stopped his vehicle and took the injured motorcyclist to Yala Hospital, then went and reported the matter to the police. He blamed the motorcycle rider for riding at a high speed and overtaking without any care or regard to the road users. That DW-1 produced a police abstract (Exhibit D1) and Driving license (Exhibit D2) and a certificate of test and examination of his motor vehicle Exhibit D3. The certificate of examination (Exhibit D3, at page 57 of the record) showed the accident damage was on the onside (drivers) front window glass and front door, as stated by DW-1. The motor vehicle had no pre-accident defects. In cross examination, he was not asked any useful question in regard to the causation of the accident. 13. On liability, learned counsel reproduced the court’s finding: **"considered the plaintiffs apparent evidence on record and the court is duly satisfied that the plaintiff has established her case on a balance of probabilities against the defendants jointly and eventually to the effect that the defendants are substantially to blame for the road traffic accident and hence should be held 90% liable. The plaintiff will hence fore bear 10% contribution....regarding the multiplicand/income of the deceased that a "monthly income of kshs. 15,000/= as suggested by the plaintiffs is fair, reasonable and just sum in the circumstances of the case"** 14. Learned counsel submitted that the parties had in their submissions indicated that a multiplier of 20 and a dependency ratio of 2/3 was mutually acceptable by the parties, and that the Court did not thus err in applying the multiplier of the dependency ratio as proposed. 15. The Appellants counsel urged this court to examine and re-evaluate the evidence, and not to differ from the finding and interfere only when the finding of fact that is challenged on appeal is based on no evidence, or on a misapprehension of the evidence, or the trial magistrate is shown demonstrably to have acted on wrong principles in reaching the finding he did. That the Appellants, in ground 1 to 10 of the memorandum of appeal, complain that the trial court's judgment on liability was wrong. That there was no reason given for the finding that the appellants were 90% to blame. That the court simply stated that it had "considered the plaintiff's apparent evidence on record." This apparent evidence was not specified. That the trial Magistrate's error then was to find the Appellant liable at 90% without any regard to Order 21 Rule 4 of the Civil Procedure Rules. There was no consideration of the evidence by the Court. That the Court did not give any reasons for the finding that the Appellant was 90% to blame, and the Respondent 10%. That it is not clear why the court concluded that the Appellants were liable at 90% or at all. There was no consideration of the Appellants' driver's evidence, vis a vis that of the Respondent, and why the Court preferred the evidence of the Respondent and not that of the Appellants' driver. 16. The court was urged to consider the provisions of Order 21 Rule 4 Civil Procedure Rules which is as follows: "Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision." 17. It was contended that the operative word in this provision is SHALL. It was the view of the Appellants that the said rule requires that a judgment must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision, failing which it would be a defective judgment. A Court of law must give reasons for its determination in all cases. This was not done in this case. The decision thus lacks legality and must be set aside for offending Order 21 Rule 4 as set out above. That Order 21 Rule 4 gives no room for discretion or choice. The judicial officer must give reasons for their decision. Courts are courts of law and as such they are supposed to follow the law. The law as to drafting and preparing of judgments is very clear and specific as to its containing the reasons for the conclusions and determination reached by the judicial officer. It presupposes that in every judgment reasons must be given as to why that decision has been reached by the judicial officer. Where it is found that there were no reasons given as to why the decision made by the judicial officer was reached, then that decision must be re-looked into. The decision/judgment thus violated this cardinal rule of the Civil Procedure Rules, 2010 warranting an interference by this Honourable Court. 18. Reliance was placed in the cases of **Kiarie Wamutu v Mungai Kiarie & Another [1982]eKLR**, the Court of Appeal was considering an appeal where the trial judge, a zealot of brevity according to the appellate court, on an application by the defendants under 0rder VI rule 13 of the Civil Procedure Rules for the plaint to be struck out and the suit dismissed, made the following order:- "Application granted with costs to the defendants. Leave to appeal refused." The Court of Appeal, on appeal against this order, said: **"The judge also failed to observe the provisions of Order XX rule 4 which states that judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."** In another Court of Appeal decision in **Godfrey Gatere Kamau v Peter Mwangi Njuguna eKLR NYERI CoA Civil Appeal 139 of 2003**, the High Court had made a decision without giving any reasons. The Court of Appeal set it aside and said as follows: "**Having done so, we consider that the only order in this appeal is the one of 26th March 2003, which order does not have any reasons for it as required by Order XX R 4**, which provides:- **"Judgments in defended suits shall contain a concise statement of the case, the points for determination thereof and the reasons for such ".** **And Order XX Rule 5 of the Civil Procedure Rules provides that:** **"In suits in which issues have been framed, the court shall state its findings or decision, with the reasons therefore, upon each separate issue".** This court had occasion to deal with this point in several cases in the past, one such case being, **Wamutu Vs Kiarie(1982) KLR 480**, where it was held inter alia: **"Judgments in defended suits shall contain a concise statement of the case points of determination, the decision thereon and reasons for such a decision as required by Order XX Rule 4 of the Civil Procedure Rule."** Again in Civil Appeal No. 179 of 1997 J.P. **Machira t/a Machira & Co. Advocates vs Wangethi Mwangi & Another** (Unreported), which was a majority decision, Akiwumi, JA said, **"I think that as is required by Order XX rule 4 of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the Appellant and opposed by the Respondents, must be self-contained and should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. This, I fear he did not endeavour to do. He therefore exercised his discretion improperly".** **In the result, we allow the appeal on all four grounds; set aside the order allowing the Notice of Motion application dated 30th January, 2002, and substitute therefor an order dismissing the said Notice of Motion. We order that the suit be heard on its merits."** In **Francis Barasa Lurare & another v Denis Nyongesa Maloba** CoA Civil Appeal No. 163 OF 2018, the High Court Judge in a succession matter did not comply with Order 21 Rule 4 while making her decision as she did not set out the points for determination and nor give reasons for her determination. On appeal to the Court of Appeal, the Court of Appeal held that the judgment did not meet the threshold for drafting of a Judgment enshrined in Order 21, Rule 4 of the Civil Procedure Rules and was therefore sustainable on its merit. It thus set aside the judgment and remitted the case for retrial by the High Court. In the course of its decision, the Court Of Appeal held after setting out Order 21 Rule 4, of the Civil Procedure Rules:- **"The above position was reiterated by the court in the case of Wamitu vs. Kiarie (1982) KLR 481, wherein the court held inter alia that:** **"in defended suits, the Judgment shall contain a concise statement of the case, points of determination, the decision thereon and the reason for such a decision as required by Order XX, rule 4 of the CPR (as it was then cited) and now Order 21 rule 4."** **We have revisited and construed the above provision on our own, in light of the restatement of the principle enshrined therein as enunciated in the Wamitu case and applied it to the rival position herein. Our findings thereon is that since the succession proceedings filed by the appellants were defended by the respondent, the learned trial Judge was enjoined to ensure that in the concise statement of the case both the rival pleadings and the evidence in support thereto were addressed. From the record as appraised by us, the case for the appellants was simply that the deceased sold only two (2) acres to the respondent's father and of which they were ready and willing to cede to them; while the defence of the respondent to that appellants' position was that the area they occupied separated by a stream from the rest of the land forming the estate of the deceased is what the deceased sold to Jason now respondent's deceased father. According to them it was seven (7) acres. The above being the undisputed factual position on the record, the points for determination falling for identification and determination by the learned Judge should have revolved around the above contested position. Instead, this is what the learned trial Judge set out as the issue for determination:** **"5. The issue in my view, since there is evidence that the objector's family have been in occupation of what they bought 48 years, the same ought to be measured as the agreement did not mention the acreage."** **With utmost respect to the learned Judge, we find no point for determination identified by the learned Judge in the above captioned portion of the judgment. What it all amounts to in our view is an own impression of what the learned Judge had formed of the record before her. We therefore find that no point(s) was (were) identified by the learned Judge for determination as was required of the Court by the prerequisite in the above rule.** **In light of the totality of the above assessment and reasoning, we agree with the appellants' assertion that sanctioning the impugned judgment would leave the entire proceedings in limbo for the trial court's failure to effectually and judicially determine the dispute between the rival parties.** 19. Also in the case of **Machira t/a Machira & Co. Advocates v Wangethi Mwangi & another**, Civil Appeal No. 179 of 1997, Akiwumi, JA had this to say on rulings arising from applications; **"I think as required by Order XX rule 4 (now Order 21 rule 4) of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the appellant and opposed by the respondents, must be self-contained and should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision..."** See also the case of **Godffrey Gatere Kamau v Peter Mwangi Njuguna eKLR** 20. The English case of **Flanner v Halifax Agencies Ltd ALL ER 273** further explains the rationale for reasoned rulings and judgments thus; **"1. The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind, if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.** **2. The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself."** 21. The Respondent was under obligation to prove her case pursuant to the dictates of section 107 of the Evidence Act which provide that **"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side"** The effect of this is that if the party seeking judgment in a suit fails to avail evidence, or to avail evidence to the required standard, then such a party would fail to obtain judgment. This is the statutory yardstick to determine on whom the burden of proof in civil cases lies. The Appellants having denied all the allegations, the legal burden remained with the Respondent to persuade the trial court that all the facts pleaded existed. In **Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258,** it was held that there is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. The legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of an issue. Section 107(1) of the Evidence Act provides: **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.** 22. The evidential burden is cast upon any party to prove any particular fact, which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Evidence Act 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.** It was contended by the Appellants that the Respondent, in order to succeed, was required to prove the particulars of negligence alleged in the plaint. That none of the particulars of negligence pleaded by the Respondent was proved by any evidence. That the Respondent did not show by evidence that the Appellants' motor vehicle veered onto the side of the motorcycle, or was being driven at an excessive speed nor was it shown that the Appellants failed to drive or manage the vehicle carefully, or that they failed to have regard to other road users, or that they failed to hoot, brake stop or swerve so as to avoid the accident. That it was not shown that the Appellants drove without regard to the condition of the road or that the vehicle was defective. That the above matters were what was pleaded as the particulars of negligence, but as no evidence was given proving them, they remained mere allegations, in the Plaint. That they were not proved and that without proof of these allegations of negligence, the Respondent could not succeed. 23. It was also submitted that the Appellants' driver testified that the motorcycle was overtaking the Appellants' car in the face of an oncoming lorry and that when the motorcyclist was unable to do so safely, he swerved back to the left lane, and hit the Appellants' car that he had been overtaking on the right door. That in this scenario, there is no negligent conduct on the part of the Appellants. That there is nothing to show that the Appellants' driver fell below the standard of a reasonable driver. That there is no evidence of the Appellants' wrong doing and thus, the evidence as presented showed that the accident was solely caused by the motorcyclist. 24. The Appellants posed the question-What is negligence and what must a Plaintiff prove in order to succeed? In (**Awale Transporters Ltd & another v Kariuki (Suing as the administrator of the Estate of Joshua Kiptanui (Dcd) KEHC 3402** :[2023] **(KLR)** the High Court explained it this way **"16.It is trite law that he who alleges must prove. The burden of proof of the negligence of the appellant rested solely on the Respondent. Negligence as defined by Perly Chartersworth on Negligence 5th Edition Chapter 1 is the omission to do something which a reasonable man, guided upon those considerations ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. To determine whether an act was negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage."** http://17.In **Regina Wangeci v Eldoret Express Co. Ltd eKLR** held that: **“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of trial there is proved a set of facts, which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff's favour unless the defendant provides some answer adequate to displace that inference."** It follows that the concept of a duty of care has a correlation with the concept on proximate cause as explained in **Anns vs Merton London Borough Council 11---[1977]A**C in which the court observed that, Proximity simply means that the parties must be sufficiently close, so that it is reasonably foreseeable that one party's negligence would cause loss or damage to the other. Fairness means that it is fair, just and reasonable for one party to owe the duty to another." Also in Donoghue v Stevenson [1932] AC, the House of Lords held that **"a person should be able to sue another who causes them loss or damage. That is what the court referred to as the duty of care to their neighbours."** 25. It was therefore submitted that the claimant or plaintiff is under a duty to prove on a balance of probabilities the following elements: a. That the defendant owed a duty of care. b. That the defendant breached that duty of care. c. That the claimant/plaintiff suffered loss or damage as a direct consequence of the breach. In Kenya, there is no liability without fault in negligence claims. The Court in **Eastern Produce (K) Limited V Christopher Atiado Osiro KEHC** [2006]**3200 (KLR),** following **Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258**, stated: **"It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, where it was held that "there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence".** The Appellants further quoted the description of negligence as found in Salmond and Heuston on The Law of Torts 19th Edition. where it is described as **"conduct, not a state of mind, conduct which involves an unreasonably great risk of causing damage...........negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do..." (underlining is mine) The position is laid more clearly as "In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing." (Lord Wright in Lochgelly Iron and Coal Co. v. M'Mullan** [1934] **A. C. 1,25)** 41. Recently, in (AUTHORITY NO.10) **Ndungu v Njuguna & 2 others, KECA 1607 (KLR)**, the Court of appeal said: **"22.It was thus upon the appellant to discharge the burden of proof of negligence aforesaid against the respondents. This Court in East Produce Kenya Limited -vs- 12 Christopher Astiado Osiro eKLR, reiterated that he who alleges negligence bears the burden of proof. The court further quoted with approval the case of Kiema Mutuku -vs- Kenya Cargo Hauling Services Ltd** ][1991] **2 KAR 258 on the holding that: "There is yet no liability without fault in the legal system in Kenya and the plaintiff must prove some negligence against the defendant where the claim is based on negligence."** 26. It was submitted thatupon a correct evaluation of this evidence, and application of the legal principles as deduced from the authorities referred to that the Appellants were not to blame at all. That there was very clear uncontroverted evidence by the Appellants' driver (DW-1) on the part played by the motorcyclist in the causation, and which evidence showed that the deceased was totally to blame and hence, the apportionment of liability against the Appellants must thus be set aside. 27. The Honourable trial court, in its judgment, after setting the evidence given by the parties, stated that it had come to its decision "after considering the Plaintiff's apparent evidence" that the Appellants were 90% to blame. That there is no attempt at all to weigh that evidence with the Appellants' evidence. That the failure by the trial court to give consideration to the defence was therefore wrongful, as it completely vitiates the decision and violates the Appellants' right to a fair trial under Article 50 of the Constitution, and was highly prejudicial to them as the non-consideration resulted in a miscarriage of justice. 28. The Appellants submit that pursuant to Article 25 (c) of the Constitution, the right to a fair trial is non - derogable. It is trite law that all persons who come to a court of law are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. Accordingly, the right to fair hearing set out in Article 50(1) and the right to a fair trial set out in Article 50(2) of the Constitution, which are the same, are both non-derogable by the provisions of Article 25 of the Constitution. They entail a fair hearing, which means, among other things, that each party must have their evidence and submissions considered by the Court. That anything short of that is unconstitutional. 29. The Appellants urged the court to hold that as there is no doubt that the lower court completely ignored their defence in reaching her decision, the said trial court thus denied the Appellants a fair trial. That the trial court had a constitutional duty to weigh all the evidence, whether conflicting or not and that the non-consideration of the defence evidence of the Appellants amounted to a serious misdirection, offending both the Constitution the Civil Procedure Act, and also the rules of natural justice. That a judgment that did not consider the defence cannot be allowed to stand and must be overturned. 30. It was further submitted that DW-1's evidence, stood uncontroverted as it was not even subjected to any challenge on cross-examination. Thus the evidence was that the deceased was overtaking the 1st Appellant's vehicle in the face of an oncoming lorry, and when he failed to complete the maneuver, he ended up ramming onto the front driver's door of the appellants' vehicle. This is confirmed by the Appellants' motor vehicle report, Exhibit D3. Hence, it is crystal clear that the deceased was indeed totally to blame for the accident. Again, the evidence of police officer (PW-2) was merely procured to produce a police abstract. No sketch plan was produced and that his evidence did not in any way help in the Respondent’s case. 31. In the premises, it was submitted that upon a review of the evidence, this court ought to allow the appeal and order the dismissal of the Respondent's case for lack of proof of negligence. 32. As regards the award on loss of dependency, it was submitted that the Respondent pleaded that the deceased was a boda boda operator earning Kshs 30,000/= a month from that business. That there was no proof given of this pleaded income. That the Respondent did not show evidence that the deceased was a licensed/qualified motor cycle rider. Except for the Respondent' bare statement in court, no evidence of the deceased's activities and earnings was given. Indeed, the person who had employed him was not called to testify. 33. In her submissions before the trial court, the Respondent, perhaps recognizing the lack of evidence of earnings, submitted that the court should use "the applicable minimum earning of Kshs 15,000/=", (page 59 line 25 of the record). The Respondent did not lay any basis for this "applicable minimum earning". That the Appellants, in their submissions, at page 64 of the record, submitted that "without any credible evidence deceased's proof of his occupation and earning, the court ought to adopt the minimum wage of a general worker in "All other Areas". In December 2019 when he died which was Kshs. 7,240.95 according to the regulation of wages (General) (Amendment) order 2018 application". However, the trial court, in its judgment at page 67, line 38-39, stated that though the "Plaintiff did not produce any document to prove the deceased's monthly income, but this court is of the considered finding that a monthly income of Kshs 15,000/= as suggested by the Plaintiff is fair, reasonable in the circumstances of the case". It is against this decision that the Appellant appeals. That in considering an appeal against an award of damages, an appellate court proceeds as set set out in **Kemfro Africa Limited T/A Meru Express Service Gathogo Kanini V. A.M Lubia and Another**, and stated:- **"In the case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -v- A.M. Lubia & Another, (1982-88) 1 KAR 777, it was stated:** **"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. (See Ilango - v- Mayoka (1961) EA 705,709-713)"** In **Denshire Muteti Wambua - v- Kenya Power & Lighting http://Co.Ltd**, Civil Appeal No. 60 of 2004, this Court reiterated the principles under which the Court would interfere with the award of damages as stated and applied in the **Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini - v- A.M. Lubia & Another, (1982-88) 1 KAR 777**. In the case of **Arrow Car Limited - v- Bimomo & 2 Others, (2004) 2 KLR 101**, it was stated that comparable injuries should as far as possible be compensated by comparable awards. In **Denshire Muteti Wambua - v- Kenya Power & Lighting http://Co.Ltd**, Civil Appeal No. 60 of 2004, it was stated that awards have to make sense and have to have regard to the context in which they are made; they have to strike a chord of fairness. As was stated by **Lord Denning in Kim Pho Choo - v- Camden & Islington Area Health Authority, (1979) 1 All ER 332**, in assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant. In the instant case, the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past. This Court needs to strike a chord of fairness in the quantum of damages awarded." 34. It was submitted that the first error of principle by the trial court was that there were no reasons given why the court considered Kshs 15,000/= as the minimum wage and thus reasonable and fair. This offends Order 21 Rule 4, and all the arguments and submissions above on the requirements of the said rule and effect of non-compliance apply here in full force. It was further contended that the Respondent suggested the amount of Kshs 15,000/= as a "minimum earning" but did not base this minimum on any legal principle or wage guideline. It was not shown that it was a minimum wage for what class of worker and in what location. What the trial court did was to simply accept that suggestion, without interrogating it. This was completely wrong. That there being no evidence of the occupation or earning of the deceased, the court ought to have considered the deceased a general worker in Yala area where he worked and lived, and awarded a minimum wage of Kshs 7,240.95, which was the minimum wage of general workers in "All other areas", in 2019, in accordance with the Regulation of Wages(General) ( Amendment) Order 2018, applicable when the deceased died. That the multiplicand of Kshs 15,000/= must be set aside and replaced with one of Kshs 7,240.95. 35. It was finally submitted that the appeal be allowed and the court interferes with the judgment apportioning liability at 90:10 against the Appellants and set it aside in its entirety, and substitute it with a finding that the Appellants were not liable at all. That the court should also find that had the Respondent succeeded, either wholly or partially, a sum of Kshs 7,240.95 should have been applied as the income/multiplicand in determining loss of dependency award. The costs of the appeal should also be awarded to the Appellants. 36. The Respondent submitted that the aspect of liability was established as the occurrence of the accident was shown through oral testimony and documentary evidence (police abstract, postmortem, ownership records). That PW2 confirmed that the accident occurred on 24th December 2019 at 1600hrs and was recorded under OB No. 16/24/12/2019. That the Appellants failed to rebut this evidence. In **Stejes Agencies Ltd v Makali (2023) KEHC 22809 (KLR),** the High Court held that where a defendant fails to rebut the plaintiff’s evidence, liability properly attaches. That in the present case, the Appellants merely denied liability without producing independent evidence, thereby failing to displace the Respondent’s case. That the evidence showed that the Appellants’ motor vehicle lost control and collided with the deceased. Crucially, the Appellants’ own witness, DW1 (Brian Sam Okeyo) who was also the driver of the subject motor vehicle, made a material admission under cross-examination, stating: **“The accident in question took place, and as a result, the deceased lost his life. I have no objection if the deceased's family is compensated.”** That the above admission is significant for several reasons inter alia; that the Appellants admitted the occurrence of the accident yet in their defence denied the occurrence of the accident as per evidence of DW1 who expressly confirmed that the accident occurred and resulted in death and that it effectively collapsed the Appellants’ pleaded denial, leaving the Respondent’s version uncontroverted; that there was implicit acceptance of responsibility for the accident. That the Appellant’s witness evidence while framed as a sympathetic statement, the assertion that he had “no objection” to compensation is inconsistent with a party who bears no liability. In **Choitram v Nazari (1984) KLR 327**, the Court held that admissions, whether express or implied, are the best evidence against the maker. Further, in **Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another (2016) eKLR**, the Court held that a party’s own testimony can be used to establish liability where it supports the plaintiff’s case. 37. It was also contended that the Appellants failed to call call any independent eyewitness or provide an alternative account of how the accident occurred. That instead, they just chose to deny the occurrence and subsequent liability to the subject accident. In **Nandwa v Kenya Kazi Ltd (1988) eKLR**, the Court held that where evidence is uncontroverted, the court is entitled to rely on it. In **Njenga & Another v Kinyanjui (2024) KEHC 3810 (KLR),** the Court upheld liability where a vehicle was negligently driven and caused injury, emphasizing that courts rely on surrounding circumstances to infer negligence. This principle is anchoreed on good public policy and protection of victims of accidents, especially when they are hit and the driver runs away. The Appellants did not provide any evidence that would controvert the assertion that the collision was as a result of the driver losing control. Put differently, the loss of control by the Appellants’ vehicle strongly supports the finding of negligence. 38. It was contended that the Appellants are blaming the trial court for failing to give reasons for the 90:10 liability ratio. However, in **Migwi & Another v RH (2024) KEHC 6129 (KLR),** the Court upheld a 90:10 apportionment, emphasizing that such apportionment is a matter of judicial discretion based on evidence. That in the present case: the Appellants’ vehicle lost control while the deceased was lawfully riding his motorcycle. That the trial court’s apportionment is therefore justified and consistent with recent jurisprudence. 39. As regards the Appellants allegation that their evidence was ignored, it was submitted that the trial court had the power to see the evidence and come up with a finding on who was responsible for the accident. In **Mburugu & Another v Nyongesa (2023) KEHC 24047 (KLR),** the Court held that a trial court is entitled to reject defence evidence if it is not credible or persuasive. That the trial court in this case evaluated DW1’s evidence but found it insufficient on a balance of probability. 40. As regards the issue of interference with the trial court’s award on loss of dependency, reliance was placed in the case of **Onyango v Lawi (2025) KEHC 5478 (KLR)**, where the Court reiterated: **“Courts must consider comparable awards and inflation; interference only arises where the award is manifestly excessive or low.”** Similarly, in **Mwangi v Muchiri (2025) KEHC 11052 (KLR),** the Court emphasized that the appellate courts should not substitute their discretion unless the award is erroneous 41. It was submitted that the deceased was a boda boda rider with no documentary proof of income. That Courts routinely rely on minimum wage in such cases. That in the present case, even though PW1 testified that the deceased would make an average Kshs. 30,000 per month, the trial court adopted Kshs. 15,000, which is reasonable, conservative and consistent with prevailing economic conditions and minimum wage principles. That the Appellants have not demonstrated that this figure was excessive. 42. As regards the multiplier adopted, it was submitted that 20 years was reasonable. That the deceased was aged 29 years. In **Njenga & Another v Kinyanjui (2024) KEHC 3810 (KLR)**, the Court upheld awards based on reasonable multipliers tied to age and life expectancy. That the multiplier of 20 years is modest and well within accepted judicial range. That the Appellants have not demonstrated any good and justifiable reasons why this Honourable Court should interfere with the use of 20 years as a multiplier. 43. As regards the award on loss of dependency, it was submitted that the trial court applied the correct formula. In **Mwangi v Kahoro (2024) KEHC 10577 (KLR)**, the Court emphasized the need to align awards with comparable decisions, nature of evidence, inflationary trends. It was submitted that the award of Kshs. 2,060,000 is reasonable, supported by case laws of similar nature and is within acceptable judicial limits. 44. The Respondent therefore submitted that she proved her case on a balance of probabilities. That the trial court properly evaluated the evidence, correctly apportioned liability and applied sound principles in assessing damages. Put differently, that the Appellants have failed to demonstrate any error warranting interference. The Respondent respectfully prays that the appeal be dismissed in its entirety and the judgment of the trial court be upheld and that costs of the appeal be awarded to the Respondent. 45. I have considered the record of appeal and the submissions presented. It is not in dispute that the Appellant’s appeal is on liability and multiplicand leading to the award of loss of dependency. It is not in dispute that the issue of multiplier is agreed by the parties to be 20 years. I find the issue for determination is whether the apportionment of liability and assessment of multiplicand by the trial court was proper. 46. The *legal burden of proof* was on the Respondent to prove her claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove her assertions pleaded in the Statement of Claim. Section 107(1) of the *Evidence Act*, Cap 80 provides that: **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.** However, the burden may shift to the Defendant (Appellant) to disprove the alleged claim. This is the *evidential burden of proof,* which is well captured under Sections 109 and 112 of the Evidence Act. See **Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**. The two concepts are well illustrated by the Court of Appeal in the case of **Mbuthia Macharia v Annah Mutua & Another [2017] eKLR**, that: **“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”** See **Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,** The *standard of proof* is well captured in the case of **Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR**, where the Court held that: **Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say:** **“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”** **Kimaru J.** (as he then was) in **William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526** stated that: **“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.”** 47. The Respondent was under obligation to prove her case pursuant to the dictates of section 107 of the Evidence Act which provide that **"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side"** The effect of this is that if the party seeking judgment in a suit fails to avail evidence, or to avail evidence to the required standard, then such a party would fail to obtain judgment. This is the statutory yardstick to determine on whom the burden of proof in civil cases lies. The Appellants having denied all the allegations, the legal burden remained with the Respondent to persuade the trial court that all the facts pleaded existed. In **Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258,** it was held that there is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. The legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of an issue. Section 107(1) of the Evidence Act provides: **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.** 48. The evidential burden is cast upon any party to prove any particular fact, which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Evidence Act 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.** It was contended by the Appellants that the Respondent, in order to succeed, was required to prove the particulars of negligence alleged in the plaint. That none of the particulars of negligence pleaded by the Respondent was proved by any evidence. That the Respondent did not show by evidence that the Appellants' motor vehicle veered onto the side of the motorcycle, or was being driven at an excessive speed nor was it shown that the Appellants failed to drive or manage the vehicle carefully, or that they failed to have regard to other road users, or that they failed to hoot, brake stop or swerve so as to avoid the accident. That it was not shown that the Appellants drove without regard to the condition of the road or that the vehicle was defective. That the above matters were what was pleaded as the particulars of negligence, but as no evidence was given proving them, they remained mere allegations, in the Plaint. It was the evidence of the Appellants driver that that the motorcycle was overtaking the Appellants' car in the face of an oncoming lorry and that when the motorcyclist was unable to do so safely, he swerved back to the left lane, and hit the Appellants' car that he had been overtaking on the right door. However, the Appellant’s driver (Brian Sam Okeyo) confirmed on cross-examination that indeed the accident took place in which the deceased lost his life and that he has no objection if his family is compensated. I find that Appellants driver’s admission of the accident and agreeing that the deceased should be compensated as sufficient evidence of contribution to the accident and establishing his liability. It is noted that there was no eyewitness to the accident. The Appellants driver’s version that the deceased was overtaking when he was faced with an oncoming vehicle forcing him to move towards the Appellants driver, shows that it is highly likely that the Appellants driver failed to give the deceased way so as to enable the deceased complete the overtaking and thus caused the deceased to hit the Appellants vehicle. It is common knowledge that along the highways, motorists usually despise motorcycle riders as if they do not have rights on the highway. It is highly unlikely that the deceased could force himself and be sandwiched between the Appellants car and the oncoming vehicle unless the Appellants driver failed to give him way to pass or had accelerated so as to compete with the deceased and thereby caused the accident. I find that there was some contribution from the Appellants and the deceased regarding the accident. The issue is on the percentage of liability to be assessed. In **Awale Transporters Ltd & another v Kariuki (Suing as the administrator of the Estate of Joshua Kiptanui (Dcd) KEHC 3402** :[2023] **(KLR)** the High Court held: **"16.It is trite law that he who alleges must prove. The burden of proof of the negligence of the appellant rested solely on the Respondent. Negligence as defined by Perly Chartersworth on Negligence 5th Edition Chapter 1 is the omission to do something which a reasonable man, guided upon those considerations ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. To determine whether an act was negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage."** In **Regina Wangeci v Eldoret Express Co. Ltd eKLR** held that: **“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of trial there is proved a set of facts, which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff's favour unless the defendant provides some answer adequate to displace that inference."** Also in Donoghue v Stevenson [1932] AC, the House of Lords held that **"a person should be able to sue another who causes them loss or damage. That is what the court referred to as the duty of care to their neighbours."** Flowing from the foregoing, the claimant or plaintiff is under a duty to prove on a balance of probabilities elements inter alia; that the defendant owed a duty of care; that the defendant breached that duty of care; that the claimant/plaintiff suffered loss or damage as a direct consequence of the breach. In Kenya, there is no liability without fault in negligence claims. The Court in **Eastern Produce (K) Limited V Christopher Atiado Osiro KEHC** [2006]**3200 (KLR),** following **Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258**, stated: **"It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, where it was held that "there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence".** 49. An analysis of the evidence regarding how the accident took place leaves me to come to the conclusion that both the Appellants driver and the deceased were to blame for the accident and therefore should shoulder responsibility on liability at 50% to 50% respectively. That there was very clear evidence by the Appellants' driver (DW-1) on the part played by him and the motorcyclist in the causation, and which evidence showed that the Appellants driver and the deceased were equally to blame and hence, the apportionment of liability against by the trial court must be interfered with. 50. As regards the award on loss of dependency, the Respondent pleaded that the deceased was a boda boda operator earning Kshs 30,000/= a month from that business. However, the Respondent did not avail documentary proof of income. Indeed, the person who had employed him was not called to testify so as to back up the evidence on the wages the deceased earned. The Respondent’s counsel in the lower court had urged the court to use "the applicable minimum earning of Kshs 15,000/=" but did not lay any basis for this "applicable minimum earning". On the other hand the Appellants had urged the court to adopt the minimum wage of a general worker in "All other Areas". In December 2019 when the deceased died, the applicable minimum wage was Kshs. 7,240.95 according to the regulation of wages (General) (Amendment) order 2018 application". However, the trial court stated that though the Plaintiff did not produce any document to prove the deceased's monthly income, this court is of the considered finding that a monthly income of Kshs 15,000/= as suggested by the Plaintiff is fair, reasonable in the circumstances of the case. It is against this decision that the Appellant appeals. It is trite that in considering an appeal against an award of damages, an appellate court proceeds as set out in the case of **Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -v- A.M. Lubia & Another, (1982-88) 1 KAR 777,** where it was stated: **"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. (See Ilango - v- Mayoka (1961) EA 705,709-713)"** In **Denshire Muteti Wambua - v- Kenya Power & Lighting Co.Ltd**, **Civil Appeal No. 60 of 2004,** this Court reiterated the principles under which the Court would interfere with the award of damages as stated and applied in the **Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini - v- A.M. Lubia & Another, (1982-88) 1 KAR 777**. In the case of **Arrow Car Limited - v- Bimomo & 2 Others, (2004) 2 KLR 101**, it was stated that comparable injuries should as far as possible be compensated by comparable awards. In **Denshire Muteti Wambua - v- Kenya Power & Lighting http://Co.Ltd**, Civil Appeal No. 60 of 2004, it was stated that awards have to make sense and have to have regard to the context in which they are made; they have to strike a chord of fairness. As was stated by **Lord Denning in Kim Pho Choo - v- Camden & Islington Area Health Authority, (1979) 1 All ER 332**, in assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant. In the instant case, the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past. This Court needs to strike a chord of fairness in the quantum of damages awarded. 51. Looking at the assessment of the award by the trial court, it is noted that it did not give reasons why it settled on a multiplicand of Kshs 15,000/ yet there was no evidence or proof of income. I find that the trial court ought to have fallen on the minimum wage which was reasonable and fair. The trial court thus erred when arriving at the minimum wage as it did not rely on any legal principle or wage guideline. It was not shown that it was a minimum wage for what class of workers and in what location. What the trial court did was to simply accept that suggestion, without interrogating it. This was completely wrong. That there being no evidence of the occupation or earning of the deceased, the court ought to have considered the deceased as a general worker in Yala area where he worked and lived, and awarded a minimum wage of Kshs 7,240.95, which was the minimum wage of general workers in "All other areas" at the time in 2019, in accordance with the Regulation of Wages(General) ( Amendment) Order 2018 which was then applicable when the deceased died. Hence, the multiplicand of Kshs 15,000/= must be set aside and substituted with one of Kshs 7,240.95. 52. As regards the aspect of the multiplier, it is noted that the Appellants have challenged the multiplier of 20 years. However, from the submissions of the parties both here and in the lower court, it was agreed that the multiplier of 20 years was reasonable. Indeed, the deceased died at the age of 29 years and thus the use of 20 years was reasonable in my view as the same took care of the vagaries of life and the high mortality rates in Sub Saharan Africa. The deceased also had a family comprised of two wives and his parents and siblings. It transpired that the deceased’s wives were reported to have deserted the home upon his demise. That being the position, a dependency ratio of 2/3 is reasonable. Hence, the award on loss of dependency would be worked out as Kshs 7,240.95. X 12 X20 X2/3= Kshs 1, 158, 550/= This amount would eventually be subjected to 50% contributory negligence. 53. In view of the foregoing observations, it is my finding that the appeal partially succeeds. The same is allowed with an order that the trial court’s judgement dated 13/2/2025 is hereby set aside and substituted with judgement for the Respondent against the Appellants as follows; i) Liability.........50% ii) Loss of dependency Kshs 7,240.95. X 12 X20 X2/3= Kshs 1, 158, 550/= iii) 50% contribution....................Kshs 579, 275/= iv) NET AWARD.......................... Kshs 579, 275/= v) The Appellant is awarded half costs of the appeal while te Respondent shall have full costs in the lower court. Dated and delivered at Siaya, this 2nd day of July 2026 **D.KEMEI** **JUDGE** **In the presence of:** 1. Peter Karanja.........................................for Appellants 2. Dick Osala...............................................for Respondent 3. Maurine................................................Court Assistant