https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10518

Wachara v Ototo & another (Suing as the Legal Representatives of the Estate of the Late Erick Mokua Ototo (Deceased)) (Civil Appeal E202 of 2025) [2026] KEHC 10518 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10518 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E202 of 2025 AM Okutoyi, J July 9, 2026 Between Samuel Onyango Wachara Appellant and Dennis Makori Ototo & Charles Mesha Dishon (Suing as the Legal Representatives of the Estate of the Late Erick Mokua Ototo (Deceased)) Respondent (Being an appeal from the Judgment and Decree Hon M Nyagah PM, delivered on 4th day of December 2025 in Etago PMCC No. E150 of 2023) Judgment Introduction 1.The suit in the Subordinate Court was commenced vide a Plaint dated 19th May 2023 and amended on 11th April 2025. The Plaint was filed by the Respondents Dennis Makori Ototo & Charles Mesha Dishon suing as a legal representative of Erick Mokua Ototo (Deceased), the Plaintiff in the lower court, against the Appellant Samuel Onyango Wachara, the Defendant then. The Claim sought special damages of Kshs 189,850/=; general damages; costs of the incidentals interests and such other further relief that the Honourable Court would deem fit and just to grant. 2.It was alleged that the Appellant was at all material times the registered and beneficial owner of motor vehicle registration No. KCV 797R, Make Isuzu. On or about 10th December 2020, the Respondent was lawfully riding motorcycle registration No. KMCN 688G along the Etago–Kenyenya road when the Appellant’s driver and/or agent negligently drove, managed, and/or controlled motor vehicle KCV 797R, causing it to violently lose control and collide with the motorcycle, resulting in fatal injuries to the Respondent. 3.It was further alleged that the Appellant’s driver was driving at an excessive speed, failing to keep proper outlook and dangerously driving without a valid licence, due care and attention. As a result of that, the Respondent suffered pain, loss, and damage; and subsequent death at the age of 19 years. The Respondent was allegedly working as a boda boda rider earning Kshs. 15,000/month. 4.Upon service of summons dated 19th July 2023, the Original Defendants then (Equity Bank (Kenya) Limited and Daniel Murage Wanjau, 1st & 2nd Defendants respectively) entered appearance and filed their respective statements of defenses, denying the key averments in the plaint and liability. 5.Parties complied with all the pre-trial directions and the matter was set down for hearing. Through an application dated 19th April 2024, which was unopposed the 1st Defendant’s name was struck out for reasons that it was only a financier and not the owner, thus the twin registration. 6.Subsequently, the parties having testified and the matter reserved for judgment, the Plaintiff through an application dated 10th April 2025 sought to arrest proceedings and judgment due on 8th May 2025. This prayer was coupled with a prayer for leave to amend the Plaint and reopen the Plaintiff’s case to start de novo. 7.The trial court vide a ruling dated 29th May 2025 allowed the application in its entirety and awarded costs to the 2nd Defendant, who was discharged from the proceedings as a result of the allowed amendment. Subsequently the Appellant herein Samuel Onyango Wachara, now sued as the sole Defendant entered appearance on 30th June 2025. Filed a statement of defense dated 7th July 2025 denying liability and claiming contributory negligence and volenti non fit injuria. 8.The suit proceeded to hearing, with the Appellants calling two witnesses while the Respondent called two witnesses as well. A judgment date was reserved. 9.In its judgment, the trial court found in favour of the Respondent thereby holding the Appellant liable for the accident. Judgment was thus entered against the Appellant in the sum of Kshs. 1,950,000/- made up as follows:Liability - 100%Pain and suffering - Kshs. 50,000/-Loss of Life and Expectancy- Kshs 100,000/-Loss of dependency - Kshs 1,800,000/- The Appellant’s Case 10.Aggrieved by the outcome, the Appellant preferred this appeal by way of the Memorandum of Appeal dated 13th December, 2025 which is premised on the following grounds:1.That the award for General Damages awarded to the Respondent was manifestly and inordinately excessive in the circumstances.2.That the Learned Trial Magistrate erred in law and in fact in holding the Appellants 100% Liable while the accident was wholly or substantially occasioned by the Respondent and the Third party on whose behalf the suit is mounted.3.That the Learned Trial Magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision.4.That the Learned Trial Magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.5.That the Learned Trial Magistrate erred in law and fact when the same relied on extraneous issues as a basis of his determination of liability. 11.In totality, the Appellant prayed for the trial court judgment to be set aside, varied and/or quashed, dismissing the Plaintiff suit with costs and in the alternative reassesses the liability and quantum awarded. 12.On 20th May 2026, the court directed that the appeal be canvassed by way of written submissions. The Appellant confirmed filing and service of his submissions dated 23rd April 2026 and Counsel for the Respondent indicated to the court that they had filed their submissions dated 7th May 2026 and filed on 11th May 2026. Appellant’s submissions 13.The Appellant summarized the submissions into the following salient issues, namely, the trial court’s respective findings on Limitation of Action, liability and quantum. Addressing the first issue, Counsel briefly stated that the trial court failed to pronounce itself on the limitation of the suit, the Respondent is liable and the quantum awarded was excessive in the circumstances. 14.The Appellant submitted that the cause of action arose on 10th December 2020 and the suit was herein filed on 19th July 2023 outside the One-year timeline provided under Sec 27,28 and 29 of Limitation of Actions Act. 15.The Appellants relied on the case of Philomena Mutheu Nzyoka Suing as a legal representative of the estate of the late Timothy Kiema Musango versus Transpares Kenya Limited (2016) eKLR and Car & General (Trading) Limited versus Marion Wairimu Muriitthi & Virginia Wacheke Muriithi (Suing as the Administrators of the Late Estate of Monica Wangechi Muriithi. (2024) eKLR wherein the Appellant urged the Court to allow the appeal for want of jurisdiction that the original suit was time barred and that no leave for extension was sought by the Respondent. 16.Regarding quantum, counsel urged the court to consider the decisions in Emmanuel Kaingu Karisa & another v National Land Commission & another County Government of Lamu & another (Interested Parties) (2021) eKLR, Albert Odawa v Gichimu Gichienji NKU HCCA No.15 of 2003 (2007) eKLR, Mary Khayesi Awalo & Another versus Mwilu Malungu &Another (1999) eKLR, Moses Mairu Muchiri versus Cyprus Maina Macharia suing as a legal representative of the estate of Mercy Nzula Maina (Deceased) (2016) eKLR, Gitari & 2 others v Kassim & 2 others (Civil Appeal E011 of 2022) [2024] KEHC 14065 (eKLR), Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30 and Charles Omwenga Ongiri & Another v Daniel Muniko [2017] eKLR on the guiding principles for consideration in assessing damages. Counsel proceeded to submit that the sum of Kshs. 1,950,000/- on general damages awarded by the trial court was erroneous manifestly excessive, and therefore proposed an award a global sum of Kshs. 1,000,000/- as a compensation to the deceased family with reliance on the aforementioned cases: 17.In conclusion therefore, it was contended that the trial court’s judgment ought to be disturbed in the manner set out hereinabove. It was further urged that the Appellant be awarded costs of the appeal and in the trial court. The Respondent’s submissions 18.The Respondent on the other hand in opposition of the appeal submitted that the Learned Trial Magistrate had correctly evaluated all evidence, correctly applied the law and delivered a sound judgement. 19.The Respondent submitted on three issues; Whether the suit was time barred, liability and quantum. On the first issue of the suit being time barred, Counsel for the respondent’s submitted that the same is an afterthought and lacks legal foundation. He reiterated the cause of action arising on 10th December 2020 with the original plaint filed on 19th July 2023 which is within the three years period prescribed for tortious claims. 20.Counsel averred that whereas Section 29 of the Limitations Act, Cap 22 provides for a 12 months limitation in death case, Section 27 empowers the court to extend time where material facts were not immediately known of where the interest of justice demand it. It was the Respondent’s submissions that technical arguments raised belatedly cannot oust jurisdiction where justice has been served. 21.On Liability, Counsel for the Respondent submitted that the testimonies given at the trial proved by its witnesses corroborate the attribution of liability to the Appellant’s driver and that the finding of 100% liability against the Appellant by the trial court was justified and supported by the evidence on record. 22.As pertains quantum, the Respondent averred that the awards for loss of dependency, pain and suffering and loss of expectation of life by the trial court were just taking into consideration the deceased was a young man with dependents. 23.In conclusion, the Respondent prayed for the Honourable court to dismiss the appeal in its entirety with costs. Analysis & Determination 24.The Appellate court herein has considered the record of appeal, the pleadings and original record of the proceedings as well as the rival submissions. I am guided by the Court of Appeal for East Africa in the case of Selle v Associated Motor Boat Co. [1968] EA 123 which set out the duty of the first appellate court in in the following terms:“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.” 25.From the foregoing, an appellate court would rarely disturb a finding of fact made by the trial court, unless the finding was made on a wrong principle or based on no evidence in arriving at the finding it did. See Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278. 26.The Court in seeking to arrive at a finding, has framed the following issues for determination, namely;a.Whether the Respondent’s suit was statutorily time barred, and if yes was an objection to jurisdiction raised;b.Whether the Learned Trial Magistrate properly applied the evidence it attributing Liability; andc.Whether the principles in award of damages were properly applied by the trial court. Whether the Respondent’s suit was statutorily time barred, and if yes was an objection to jurisdiction raised 27.The Appellant’s appeal herein mainly challenges the finding of the learned trial court that the suit was statute barred. This court notes that this objection/issue was neither captured by the Memorandum of Appeal nor pleadings filed at the trial court. 28.This court further notes that the objection has been raised at the appeal stage, and if so, through written submissions. The Appellant argues that the suit is statutorily barred. And that the objection was expressly raised at the trial court vide the submissions dated 4th December 2025. 29.Clearly both the said objections were raised vide written submissions. This Court will first address itself as to what amounts to an objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a Preliminary Objection is defined as a pure point of law, which has been pleaded or arises by clear implication from pleadings, and which, if argued, has the potential to dispose of the entire suit. It must not require evidence or refer to disputed facts. 30.A preliminary objection ought to be pleaded and on a pure point of law and raised at the earliest point. In as much as a plea of limitation has been raised, I am well guided that such a point cannot be raised by the Appellants vide submissions and conspicuously missing on the grounds outlined under the memorandum of appeal. 31.Submissions are not pleadings or evidence. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal in relation to submissions stated:“Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 32.That said, the Appellant is seeking to raise a new defense and/or objection at the appeal stage. Clearly, the objection was not properly raised, However the Court, including the trial court on its own motion can raise an objection, for the said reason, I’ll address myself as to whether the suit was statue barred. 33.It is the Appellant’s submission that the suit is statue barred by dint of Section 27,28 and 29 of the Limitations of Action Act and that an application for leave and extension of time ought to have been procured first. The Appellants concedes that the cause of action arose on 10th December 2020 and the suit filed on 19th July 2023 within three years in compliance with section 4(2) of Limitations of Actions Act. It is further the Appellant’s submission that in the case wherein the injured person dies such a cause of action should be brought in within twelve months. The nature of the suit is a tortious claim of negligence. 34.The Appellant is seeking to overturn the trial court finding and equally to find that the trial court misguided itself on reliance on section 4(2) of Limitation of Actions Act, which provides that an action founded on tort shall not be brought after the expiration of three years from the date in which the cause of action occurred. 35.Now the Court delves on the Appellant’s assertions, defense and/or submission on Limitation of action, the said Limitation is wholesomely anchored under section 27, 28 & 29 of the Limitations of Actions Act. The court will make reference to the following relevant sections;36.Section 29(4) of the Limitation of Actions Act states:“29.Provision where injured person has died(1)In relation to an action to which section 27 of this Act applies, being an action in respect of one or more causes of action surviving for the benefit of the estate of a deceased person by virtue of section 2 of the Law Reform Act (Cap. 26), section 27 of this Act and section 28 of this Act shall have effect subject to subsections (4) and (5) of this section.(2)Subsections (1), (2) and (3) of section 27 of this Act and section 28 of this Act shall have effect, subject to subsections (4) and (6) of this section, in relation to an action brought under the Fatal Accidents Act (Cap. 32) for damages in respect of a person’s death, as they have effect in relation to an action to which section 27 of this Act applies.(3)In the following provisions of this section, and in sections 27 and 28 as modified by those provisions, "the deceased" means the person referred to in subsection (1) or subsection (2), as the case may be.(4)Section 27(1) of this Act shall not have effect in relation to an action falling within subsection (1) or subsection (2) of this Act, unless the action is brought before the end of twelve months from the date on which the deceased died.” 37.Further in cross reference to Section 27 (1) of the Act provides that:27.Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.1.Section 4(2) does not afford a defence to an action founded on tort where—a.the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); andb.the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; andc.the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; andd.the requirements of subsection (2) are fulfilled in relation to the cause of action.” 38.It is submitted that the trial court erred by failing to rely on Section 27, 28 and 29 of the Limitation of Actions Act which provides that where the injured person dies, an action must be brought within twelve months from the date when the person died. In pursuit of this position, the Appellant relied on the decision of Aburili J. in Philomena Mutheu Nzyoka (Suing as a on the legal representative of the estate of the late TKM v Transpares Kenya Limited [2016] eKLR where the facts are similar to this present case, where the court held as follows:“From the provisions of Section 29 of the Limitation of Actions Act set out above, it is trite that where the person injured as a result of a tortious act or omission of another dies, then his or her personal representatives can only bring an action on behalf of the estate of the deceased person within twelve months from the date when the deceased died. And therefore it follows that where such period of twelve months from date when the deceased dies has lapsed, unless, by application of Sections 22, 27 and 28 of the Limitation of Actions Act , leave of court is sought and obtained extending such period for bringing an action, the action would be statute barred. It is on the basis of the above provisions of Section 4 (2) of the Limitation of Actions Act as read with Section 29 of the same Act that I find that although this suit was instituted within 3 years from the date when the cause of action arose on 14th November 2005, it nonetheless involves a person who died as a result of the injuries sustained in the accident. As such, the suit founded on the tort of negligence should have been lodged within one year from the date when the cause of action arose thus, by 14th November 2006.In the alternative, the Plaintiff ought to have sought and obtained leave of court or extension of time for filling of the suit as provided under Section 27 of Limitations of Actions Act. That was not done consequently the suit is statute barred” 39.Recently the High Court in Family Bank Limited v Kyalo & Somba (Suing as the legal representatives of Estate of Bernard Kyalo Mulandi (Deceased & 2 others () (2023) eKLR, distinguished itself from the above position espoused by Justice Aburili held as follows;“With all due respect, this court disagrees with the learned Justice Aburili’s interpretation of the provisions of Section 29(4) of the Limitation of Actions Act in the above case. It is also imperative to note that the decision is not binding to this court as it was made by a court of concurrent jurisdiction. It is only persuasive. In this court’s considered view, Section 29(4) above falls under Part 3 of the Act which deals with extension of limitation period in case of ignorance of material facts where an injured person has died as opposed to the limitation period itself. The 1st Respondent’s action was founded on the tort of negligence whose limitation period under Section 4(2) of the Act is three years. 40.This court is of the similar position whilst acknowledging that the position in Philomena Case (supra) is only persuasive and not binding on courts of concurrent jurisdiction. The correct position is that applicability of Section 27,28 & 29 does not apply to claims under Section 4(2) on tort of negligence arising from personal injury claims. The cause of action arose on 10th December 2020 and the suit was filed on 19th July 2023 before the three years’ limitation period lapsed. 41.In the premises, this court finds that the suit was not statute barred by limitation of time and the trial magistrate had jurisdiction to hear and determine the suit. Whether the Learned Trial Magistrate properly applied the evidence it attributing liability 42.This being the first appeal, it is noteworthy that an appellate court would not easily interfere with the trial courts’ discretion on this issue unless it found that the trial court applied wrong principles in arriving at the finding. This principle was anchored by the Court of Appeal in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M. Lubia that “.... 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 court are well settled. The appeal court must be satisfied either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.....” 43.The Appellant’s position is that the Respondent was negligent as per the evidence tendered by the Appellant before the trial court. It is alleged that the Appellant tendered enough evidence that the Respondent did not witness the accident neither did he produce police inquiry file, further it is alleged that DW1 Patrick Owino and DW2 PC Benard Ouma testified that the Respondent rammed the Appellant and as a result the 100% liability apportioned to the Appellant is unfair. 44.I take note that the trial Court’s judgment at Page 7 stated that DW1 visited the scene two years after the occurrence of the accident and interviewed no independent witnesses. DW2 corroborated the rear-ramming account but also admitted he never visited the scene and couldn't confirm whether the turn was legal. 45.However, the Appellant asserts that the Police records moved to Etago Police Station was altered to ensure the Appellant’s culpability, it is trite law that he who alleges must prove. The Appellant did not tender any evidence to prove that the Respondent’s Contributory negligence resulted to the fatality. 46.The Appellant has not brought out which evidence or material facts that the trial court failed to consider. Further, it has not shown which principles the court failed to apply or wrongfully applied in apportioning liability. 47.In the circumstances and on a balance of probability, I find that the trial court was right in its finding on 100% liability on the Appelllant. Whether the principles in award of damages were properly applied by the trial court 48.Foremost, it is not disputed that the Deceased suffered from fatal injuries as a result of the accident. As held by the trial court and equally by this court, the Respondent is entitled to damages under Fatal Accidents Act and Law Reform Act. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that“comparable injuries should attract comparable awards”. 49.It is trite law that this court shall not disturb an award for quantum unless it is satisfied that the same is excessively high or low or it was arrived using erroneous application of the well laid principles. 50.In the case of Butt vs Khan (1977) 1 KAR, the court therein also rendered itself on the same issue and held as follows: -“An Appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 51.The Appellant submitted that the trial Court erred in applying the multiplicand approach on loss of dependency, expectation of life, and pain and suffering yet the deceased was only 19 years old. The Appellant further submits that the dependency pleaded is a question of fact and ought to have been proved, which the Respondent didn’t and the trial court further ignored. Lastly the Appellant prays that the court should adopt the global sum approach in calculating damages for loss of dependency. Reliance was placed on the cases of Mary Khayesi Awalo & Another v Mwilu Malungu & Another [1999] eKLR and Mwanzia v Ngalali Mutua Kenya Bus Ltd as quoted in Albert Odawa v Gichimu Githenji [2007] eKLR where the courts advocated for the use of global lump sums principle where circumstances do not favour the multiplier approach. 52.This court finds that the trial court did not err and neither did it adopt a multiplicand approach as there no sufficient material on record that favored its application. The court awarded a lump sum award for loss of dependency for reasons that the deceased was 19 years old, in good health therefore would have been expected to have worked for many years. 53.An award of damages is an exercise of discretion by the trial court and thus an appellate court will not interfere with such discretion unless there are good grounds to do so. In Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR, the Court of Appeal stated thus:“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...” 54.PW1, testified that the deceased was a boda boda rider and admitted that he didn’t have any evidence as to his earnings and that the deceased didn’t have a wife. In adopting the global sum approach, the learned trial magistrate noted that there was no proof that the deceased earnings and awarded a sum of kshs 1,800,000/= for loss of dependency. 55.Was the award of Kshs1,800,000/= for loss of dependency inordinately excessive? In determining this issue, the court will look at the global sum award in cases where victims were within the same age group and working under comparable environments. The court notes that the case of Gitari & 2 others versus Kassim & 2 others (supra) wherein the court awarded a global sum of Kshs, 1,000,000 cited by the Appellant. 56.The trial court relied on the cases of Geoffrey Obiero & Another v Kenya Power & Lighting corporation Limited & Another (2019) eKLR in which the court awarded a global sum of Kshs 1,200,000/= for loss of dependency where the deceased was 25 years old in 2019. In the case of Twokay Chemicals Limited vs Patrick Makau Mutisya and Another (2019) eKLR, the appellate court upheld a global sum of Kshs 1,500,000 for loss of dependency of a minor aged sixteen years. Lastly Zachary Abusa Mugoma vs Julius Asiago Ogentoto & Jane Kerubo Asiago (2020) eKLR, the Court awarded a global sum of Kshs 1,500,000/= for loss of dependency. 57.Upon careful consideration of all the relevant factors in this appeal in respect of damages awarded to the Respondent as well as the comparative awards, this court finds that the sums were sufficient compensation for pain & suffering, loss of expectation of life and loss of dependency, and sees no basis in interfering with the trial court’s award. VI. Conclusion & Disposition 58.Consequently, this court upholds the judgment of the trial court. 59.As such this appeal is dismissed with costs to the Respondents.It is so ordered. JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 9TH DAY OF JULY 2026.A.M. OKUTOYIJUDGEIn the Presence of:Ms. Opondo for the AppellantN/A -RespondentRuth Mokeira- Court Assistant