https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7425

Scarce Comodities Ltd & 2 others v Kamau (Suing as the Legal Administrator of the Estate of Michael Manyagi Wambui - Deceased) (Civil Appeal E203 of 2024) [2026] KEHC 7425 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7425 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E203 of 2024 RN Nyakundi, J May 29, 2026 Between Scarce Comodities Ltd 1st Appellant Petrocity Enterprises Ltd 2nd Appellant Isaack Mbeechi 3rd Appellant and Anne Wambui Kamau (Suing as the Legal Administrator of the Estate of Michael Manyagi Wambui - Deceased) Respondent Judgment 1.The Respondent sued the Appellants as the trial Court wherein she stated that on or about 8th September, 2022, at around 1400 hours the deceased was lawfully riding his motorcycle along Uganda Road Eldoret and while at cloud 9 area when due to the negligence of the defendants, its agent and/or driver drove motor vehicle registration Number KCC 607B ZE9650 Mercedes Benz Trailer so recklessly, negligently that the said motor vehicle lost control and hit the deceased motorcycle as a result of which the deceased sustained fatal injuries to which he succumbed to the injuries. 2.The trial Court considered the evidence in totality and entered judgment in the following terms:Loss of Expectation of life Kshs. 200,000/=Pain and suffering Kshs. 30,000/=Special damages Kshs. 315,882/=Under the Fatal Accidents Act Kshs. 2,320,000/=Total Kshs. 2,865,882/= 3.Dissatisfied with the said Judgment, the Appellants lodged the instant appeal through a memorandum of appeal dated 24th September, 2024 raising the following grounds:a.That the learned trial Magistrate erred in law and fact in finding and/or holding the Appellants 100% liable in view of the evidence on record.b.That the learned trial Magistrate erred in law and fact in failing to dismiss the Respondent’s case in view of the fact that the Respondent did not prove negligence against the Appellants on a balance of probabilities.c.That the learned trial Magistrate erred in law and fact in adopting the wrong principles in assessment of damages payable to the Respondent both under the Fatal Accidents Act and the Law Reform Act.d.That the learned trial Magistrate erred in law and fact in awarding excessive damages for loss of expectation of life in view of the evidence on record.e.That learned trial Magistrate erred in law and in fact by adopting a multiplicand of Kshs. 20,000/= when the same was not proved thereby arriving at an erroneous decision.f.That learned trial Magistrate erred in law and fact by failing to consider the Appellants’ submissions on both liability and quantum thereby arriving at an erroneous decision. 4.The Appellants as a result sought for the following orders:a.That this appeal be allowed.b.That the subordinate Court’s judgment on liability be set aside and submitted with an order dismissing the Respondent’s case.c.That the damages awarded for loss of expectation of life be re-assessed downwards to Kshs. 100,000/=.d.That the multiplicand adopted be set aside and substituted with a multiplicand of Kshs. 8,109/= being the minimum wage of a general laborer under the Regulation of Wages (Amendment) Order 2022. 4.The appeal was canvassed by way of written submissions. Both parties filed written submission which I shall highlight briefly hereunder. Appellants’ written submissions 6.Learned Counsel Mr. Onyinkwa started by highlighting the duty of this appellate Court. On this, he cited the decision in Gitobu Imanyara & 2 others versus Attorney General (2016) eKLR. 7.Learned Counsel identified the following issues for determination:a.Whether the learned trial Magistrate erred in law and fact by finding and/or holding the Appellant 100% liable in view of the evidence on record (Grounds 1, 2 and 6 of the Memorandum of Appeal.)b.Whether the learned trial Magistrate erred in law and fact in awarding excessive damages for loss of expectation of life in view of the evidence on record (Grounds 3 and 4 of the Memorandum of Appeal).c.Whether the learned trial Magistrate erred in law and fact by adopting a multiplicand of Kshs. 20,000/= when the same was not proved thereby arriving at an erroneous decision (Ground 5 of the Memorandum of Appeal). 8.On the first issue, it is submitted for the Appellant that the learned trial Magistrate erred in holding the Appellants 100% liable for the accident. This is because none of the testimonies or the evidence adduced during trial pointed the blame to the Appellants/defendants. The Plaintiff availed three (3) witnesses to testify for and on behalf of the Plaintiff/Respondent on liability: PW1, PW2 and PW3. The evidence of this witnesses had glaring loopholes that the trial Magistrate overlooked and sidelined in his determination. 9.According to the Appellant, PW1 testified that she did not witness the accident and could not be able to tell how the accident occurred. The Plaintiff testified that there were two motor vehicle and a Nissan at the place and/or scene of the accident however, the Plaintiff could not state the registration number of the Nissan. It is submitted for the Appellant that PW1’s evidence was merely hearsay and neither aided the trial Court in determining the issue of liability as the Plaintiff/Respondent was not present at the scene of the accident, also the Plaintiff cannot testify on the circumstances of the accident which she did not witness. 10.Further, PW2 was the deceased’s colleague and he testified that he was informed of the accident by his colleagues and that he visited the scene of the accident where he found the items of the deceased by the roadside while the deceased had already been taken to mortuary. He also testified that the people at the scene of the accident informed him that the defendant’s trailer knocked the deceased. That on cross-examination he testified that he did not witness the accident and that he was informed by a colleague about the accident and that he does not remember the registration number of the vehicle that knocked the deceased. 11.It is further submitted for the Appellant that PW2(Police Officer) only produced the police abstract in Court. The abstract confirmed that the accident occurred and was reported. That this was not an issue of contention before the trial Court. The police officer during cross examination admitted he did not witness this accident and he was not at the scene. That without the photographs/sketch maps there is no way the Court can tell the point of impact between the defendant’s motor vehicle and the deceased’s motorcycle. That the purpose of having the police file is to lead evidence through sketch maps, covering reports and also show conclusions of the investigations thereby helping the Court determine the point impact and apportion liability. 12.Learned Counsel urged this Court to find that the trial Court’s holding was not consistent with its reasoning, and further, in view of the evidence on record, the trial Court ought to have held that the Plaintiff had failed to prove his case against the defendant and to set aside the trial Court’s judgment on liability with costs of the Appellants. 13.On the second issue, learned Counsel submitted that it is the duty of this Court while exercising its appellate jurisdiction to always subject the whole of the evidence afresh and exhaustive scrutiny and be able to draw its conclusions despite not getting an opportunity to see and hear the witness firsthand. On this, he cited the decision in East Africa in Peters –vs- Sunday Post Limited (1958) EA 424 14.On loss of expectation of life, it is submitted for the Appellant that the deceased at the time of death was 22 years. Further, that the deceased died on arrival at the hospital. The Appellants submitted that an award of Kshs. 200,000/= was excessive in the circumstances and proposed that an award of Kshs. 100,000/= would suffice. He cited the decision of Mercy Muriuki and another versus Samuel Mwangi Nduati and another. (Suing in as the lead administrator of the estate of the late Mwangi) (2019) eKLR. 15.On pain and suffering, it is submitted for the Appellant that the deceased died while on the way to the hospital. That the deceased did not therefore undergo prolonged pain and suffering before he succumbed. he proposed that considering the fact that the pain and suffering was not prolonged, an award of Kshs. 10,000/= would have been sufficient. 16.On the final issue, learned Counsel submitted that the Respondent in her testimony testified that the deceased worked with top line traders earning a monthly salary of Kshs. 30,000/= per month. That this was corroborated by the testimony of PW2 a co-worker of the deceased. Further the Plaintiff produced employment agreement as an exhibit 8 to that effect. That in the said agreement, the amount provided for is Kshs. 20,000/=. That the employment agreement was of a contract valid for one year. Therefore, it is not even certain whether the contract would have been renewed or not after its expiry. There was no evidence that was produced or even led concerning the deceased’s academic qualifications and specialty (if at all). Respondent’s written submissions 17.Learned Counsel Mr. Kemboi for the Respondent gave a brief background to the appeal and couched two issues for determination:a.Whether the Court erred in apportioning liability at 100%.b.Whether the assessment of damages was inordinately high 18.On the first issue, learned Counsel submitted that the Respondent/Plaintiff established his case by adducing testimony from witnesses which included PW3, a police officer assigned at the traffic base who confirmed occurrence of the accident and relied on the police abstract that indicated negligence on the part of the Appellant. He further submitted that the Appellant failed to rebut this evidence demonstrating any contributory negligence on the part of the deceased. On this Counsel cited the decision in Mary Njeri Murigi vs. Peter Macharia & Another (2016) eKLR wherein the Court highlighted that a person who is driving a vehicle is under a duty of care to other road users. 19.It is submitted for the Respondent that from the testimony of DW1, he failed to give clear details on the occurrence of the accident as shown during cross examination. That therefore, evidence on record showed the Appellant breached his duty of care to other road users through acts of recklessness. 20.Learned Counsel submitted that the trial Court in apportioning liability fully appreciated the evidence tendered before it in making the correct verdict that the Appellant was wholly to blame for the accident. 21.Moving to the second issue, learned Counsel submitted that it is trite law that an appellate Court will not interfere with an award of damages as held in the case of Catholic Diocese of Kisumu vs Sophia Achieng Tete (2004) eKLR. 22.In sum, Counsel submitted that the trial Court did not err in awarding he amounts awarded in the various heads. The Respondent urged this Court to maintain the damages as awarded at the trial Court. Analysis and determination 23.The Court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the Appellants and the Respondent. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate Court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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.” 24.The law is settled that an appellate Court will not lightly interfere with factual determinations made by a trial Court. Such intervention is justified only where the impugned finding is demonstrated to be without basis, or where the trial Court can be shown to have proceeded on erroneous principles. See Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982–1988] I KAR 278. 25.Having considered the record of appeal, the original record of the trial Court, the rival written submissions and the authorities relied upon, and bearing in mind the issues as framed by the respective Counsel, I find that the following questions fall for determination by this Court:a.Whether the learned trial Magistrate erred in finding and holding the Appellants wholly (100%) liable for the accident.b.Whether the learned trial Magistrate erred in the assessment of damages, in particular the award for loss of expectation of life, the award for pain and suffering, and the multiplicand adopted in computing the award for loss of dependency. Whether the trial Court erred in apportioning liability at 100% 26.The burden of proving the claim rested on the Respondent, who was obliged to establish her case on a balance of probabilities. Sections 107 and 109 of the Evidence Act, Cap 80 Laws of Kenya, place the legal burden upon the party who asserts the existence of the facts relied upon. The standard required is not one of certainty but of probability; the Respondent discharged that burden if the evidence, taken as a whole, rendered her version of events more probable than not. 27.The Appellants' central complaint is that none of the three witnesses called by the Respondent witnessed the accident, and that the police abstract produced by PW3, having been issued some three months after the accident and disclosing neither sketch plans nor the point of impact was incapable of coming to a finding of negligence against them. It was urged that the evidence of PW1 and PW2 was hearsay and that, in the absence of any eyewitness account or sketch map, the trial Court had no proper basis upon which to apportion blame. 28.It is correct, as the Appellants contend, that neither PW1, the mother of the deceased, nor PW2, his colleague, witnessed the accident, and that their account of its occurrence was derived from others. It is equally correct that a police abstract, of itself, is no more than prima facie evidence of the occurrence of an accident and of the particulars of those involved. It is rebuttable, and the trial Court rightly acknowledged as much. The question, however, is not whether the Respondent's evidence was beyond reproach, but whether, taken in its totality and weighed against that of the defence, it tilted the balance of probabilities in her favour. 29.PW3, Police Constable Silas Kiptoo, attached to the Eldoret Traffic Base, attended the scene and produced the police abstract, which attributed blame to the Appellants' motor vehicle. He testified that the Appellants' trailer had knocked the deceased’s KMDG 593K from behind, causing his death at the scene. Against this, DW1, the driver of the trailer, gave an account that was, on a careful reading, internally unsatisfactory. He stated that he heard a sound, stopped, and concluded that his vehicle had not hit the motorcycle, attributing the collision instead to a canter which he could neither identify by registration number nor properly describe. Yet, under cross-examination, he conceded that he did not see the deceased at all, the deceased being behind the parked canter and not in front of him and he further admitted that the police abstract attributed blame to him. A driver who concedes that he never saw the very road user with whom the collision is said to have occurred is poorly placed to displace the prima facie effect of the abstract. 30.A person in control of a motor vehicle owes a duty of care to other road users, the vehicle being a potentially lethal instrument in the hands of a careless driver. This Court is fortified by the sentiments in Mary Njeri Murigi v Peter Macharia & Another (2016) eKLR, where it was emphasized that a driver owes a duty of care to other road users and that due care is expected of the person in control of the vehicle. Once the Respondent had established a prima facie case, an evidential burden shifted to the Appellants. They led no cogent evidence of any contributory negligence on the part of the deceased. DW1's bare and unsubstantiated suggestion that the deceased had collided with an unidentified canter fell well short of discharging that burden, and the defence theory that another vehicle was responsible was, on the evidence, properly rejected by the trial Court. 31.It must be borne in mind that this is a first appeal, and that the trial Magistrate enjoyed the singular advantage of seeing and hearing the witnesses testify, an advantage this Court does not share (see Selle v Associated Motor Boat Co. supra). While the trial Court's reasoning on liability might have been more fully articulated, its conclusion that the Appellants were wholly to blame was reasonably open to it on the evidence, and cannot be said to be without foundation or to have proceeded upon any erroneous principle. I therefore find no proper basis to disturb the finding on liability, and the first ground of appeal accordingly fails. Whether the trial Court erred in the assessment of damages 32.The remaining grounds challenge the quantum of damages. The principles upon which an appellate Court may interfere with an award of damages are well settled. In Bashir Ahmed Butt v Uwais Ahmed Khan (1982–88) KAR, the Court of Appeal held:“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.” 33.To the same effect is the decision in Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, which the Respondent also relied upon, where the Court of Appeal stated:“It is trite law that the assessment of general damages is at the discretion of the trial Court and an appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate Court can justifiably interfere with the quantum of damages awarded by the trial Court only if it is satisfied that the trial Court applied the wrong principles (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” 34.Guided by these principles, and conscious that mere disagreement with the quantum is no warrant for interference, I turn to the specific heads of damages impugned by the Appellants. Loss of expectation of life 35.The trial Court awarded Kshs. 200,000/= under this head. The Appellants contend that this is excessive for a deceased aged 22 years who, on their account, died on arrival at hospital, and they propose a figure of Kshs. 100,000/=, relying on Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (2019) eKLR. The Respondent maintains that the award is justified given the youth and good health of the deceased. 36.In Mercy Muriuki & Another –Vs- Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR the Court observed that:“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” 37.Damages for loss of expectation of life are conventional in nature. They are awarded not as a measure of the pecuniary value of the life lost, but as a modest, standardized sum in recognition of the deprivation of the prospect of a predominantly happy life. Comparable awards offer a guide, although each case turns on its own facts and due regard must be had to the diminishing value of money over time. 38.While the conventional award has in the past frequently been placed at or about Kshs. 100,000/=, more recent decisions have, on account of inflationary trends, sustained higher awards, particularly where the deceased was young with a long life expectancy. As the Respondent points out, awards of Kshs. 200,000/= have been upheld in respect of relatively young deceased persons, including in City Hoppa Bus Ltd v Maria Clara Rota (2021), relied upon in Awale Transporters Ltd v Wakhungu & Another (Civil Appeal No. E013 of 2022). The deceased here was a young man of 22 years with the prospect of many years of life before him. In these circumstances, an award of Kshs. 200,000/=, though at the upper end of the range, cannot be characterized as so inordinately high as to represent an entirely erroneous estimate warranting the intervention of this Court. The trial Magistrate, who was further guided by the decision in Patrick Kariuki Muiruri & 3 others v Attorney General (2018) eKLR, exercised his discretion within permissible bounds. This head of the appeal fails. Pain and suffering 39.The trial Court awarded Kshs. 30,000/= for pain and suffering. The Appellants submit that, the deceased having died without prolonged suffering, an award of Kshs. 10,000/= would have sufficed. 40.The legal position is well established. Damages for pain and suffering are recoverable where the deceased endured pain in the interval between the injury and death. Where death follows immediately upon the accident, only nominal damages are awarded; conversely, higher awards are warranted where the suffering was prolonged. In West Kenya Sugar Co. Limited v Philip Sumba Julaya [2019] eKLR, the Court affirmed that damages under this head are recoverable for pain suffered before death, with very nominal sums awarded where death followed immediately. 41.In the case of Sukari Industries Limited V Clyde Machimbo Juma Homa Bay HCCA NO. 68 of 2015 [2016] EKLR where the deceased had died immediately after the accident and the trial Court had awarded Kshs. 50,000/= for pain and suffering, Majanja J. held that:“(5)On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.” 42.The deceased died on the way to hospital. An award of Kshs. 30,000/= sits at the lower end of the recognized range and is, by any measure, modest. Even on the Appellants' own case that the deceased did not endure prolonged suffering, the figure adopted by the trial Court is not so inordinately high as to betray any misapprehension of the evidence or misapplication of principle. I therefore decline to interfere with it. The multiplicand and loss of dependency 43.The award of Kshs. 2,320,000/= under the Fatal Accidents Act was computed by the trial Court upon a multiplicand of Kshs. 20,000/=, a multiplier of 29 years, and a dependency ratio of one-third (Kshs. 20,000 x 12 x 29 x 1/3). The Appellants' challenge is directed specifically at the multiplicand. They contend that the figure of Kshs. 20,000/= was not proved, and that it ought to be substituted with Kshs. 8,109/=, being the minimum wage of a general laborer under the Regulation of Wages (Amendment) Order, 2022. 44.The claim for loss of dependency arises under section 4(1) of the Fatal Accidents Act, which provides that every such action shall be for the benefit of the wife, husband, parent and child of the deceased, and that the Court may award such damages as it may think proportionate to the injury resulting from the death. In assessing such damages, the Court is guided by Chunibhai J. Patel & Another v P.F. Hayes & Others [1957] EA 748, which directs attention to the age and working-life expectancy of the deceased, his net earning capacity, and the proportion of that income that would have been applied to the dependents 45.The Appellants' contention that the multiplicand was unproven cannot be sustained on the record. Unlike the many cases in which a deceased's income is incapable of documentary proof, the deceased here was in documented employment. An employment agreement dated 1st October, 2021 was produced as an exhibit, evidencing a monthly salary of Kshs. 20,000/=, and this was confirmed by the testimony of PW1. While the Respondent had at trial urged a higher figure of Kshs. 30,000/=, the trial Court prudently adopted the lower, documented figure of Kshs. 20,000/=. That figure was therefore not plucked from the air. It was grounded in the best evidence available. 46.The minimum-wage figure of Kshs. 8,109/= for which the Appellants contend is the resort of the Court only where there is no proof of the deceased's earnings, a situation that does not obtain here. The Appellants' further submission that the one-year contract might not have been renewed is speculative and provides no proper basis for substituting the documented salary with the statutory minimum. The multiplicand of Kshs. 20,000/= was, in the circumstances, properly adopted. 47.The multiplier of 29 years and the dependency ratio of one-third were not made the subject of any specific ground of appeal, and in any event I find no fault with them. The deceased was a young man of 22 years. The multiplier of 29 years, being appreciably less than the full span to retirement age, already reflects an allowance for the vicissitudes, vagaries and uncertainties of life. The ratio of one-third was appropriate, the deceased having been unmarried. The resulting award of Kshs. 2,320,000/= under this head was therefore correctly arrived at, and I find no basis to disturb it. Special damages 48.Although the memorandum of appeal makes general reference to the assessment of damages, the award of special damages in the sum of Kshs. 315,882/= was not seriously contested before me. The trial Court found this sum to have been specifically pleaded and strictly proved through documentary evidence, in keeping with the established principle that special damages must be both specifically pleaded and strictly proved. I find no reason to interfere with this award. Disposition 49.In the result, having subjected the entire record to the fresh and exhaustive scrutiny demanded of a first appellate Court, I am satisfied that the learned trial Magistrate properly directed himself on the question of liability and applied the correct principles in the assessment of damages. The awards made fall within acceptable ranges and do not represent erroneous estimates. The Appellants have not demonstrated any error of principles, any misapprehension of the evidence, or any finding so plainly wrong as to justify the intervention of this Court. 50.Consequently, the appeal is found to be devoid of merit and is hereby dismissed. The judgment and decree of the trial Court delivered on 6th September, 2024 in Eldoret CMCC No. E408 of 2023 is upheld in its entirety. The Respondent shall have the costs of the appeal. 51.Orders accordingly. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY 2026.............................................R. NYAKUNDIJUDGE