https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10117

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS MACHAKOS LAW COURTS CIVIL APPEAL NO. 282 OF 2023 SOL VOLTAICS LIMITED……………………………………………………APPELLANT VERSUS ALICE WANJIKU MAINA Suing as administrators of the Estate of the late ANTHONY MUNGAI THUKU (Deceased)………………………………….RESPONDENT JUDGMENT 1. The appeal arises from the decision of the Principal Magistrate at Mavoko Law Courts, CMCC No. 1014 of 2022, delivered on 5th October 2023 (Hon. E.K.Suter) 2. The Respondent instituted the suit, CMCC No. E1014 of 2022 before the subordinate court vide Plaint dated 14th November 2022. 3. In the said suit, the Respondent alleged that the late Anthony Mungai Thuku, for the benefit of whose’s Estate the suit had been instituted, was lawfully walking along Syokimau-Katani road when the Appellant’s authorized servant, agent and /or employee so negligently, recklessly and carelessly drove, managed, and controlled motor vehicle registration number KDB 253U at a very high speed that he lost control of the said motor vehicle causing the said motor vehicle to veer off its lawful lane and collide onto the deceased. 4. The Respondent averred that the accident was occasioned by the negligence of the Appellant’s driver. 5. The Respondent averred that as a consequence of the said accident, the Respondent sustained injuries and later died, occasioning loss and damage to his Estate. 6. At the time of his death, the deceased was 39 years old. 7. He had been working as a motor vehicle electrician earning Kshs 40, 000/= a month, supporting his family who suffered loss of dependency under the Fatal Accidents Act as a result of his death. 8. The Respondent’s claim against the Appellant was for general and special damages under the Law Reform Act and Fatal Accidents Act. 9. The Respondent averred that the Appellant was vicariously liable for the negligent acts of its driver. 10. The Respondent claimed special damages for kshs 161, 180/= 11. The Appellant denied the occurrence of the accident and averred that if indeed the deceased sustained fatal injuries, the deceased wholly or substantially contributed to the occurrence of the accident. 12. The Respondent called three witnesses; PW1 PC No. 90892 Pius Kariuki of Athi River Police, testified that he was performing police duties; he produced the police abstract and a copy of the OB entry 65/23/02. 13. He testified that in the report of the accident, the driver of the lorry was found blameworthy for the accident. 14. PW2 Alice Wanjiku Maina, a sister of the deceased, testified that the deceased was doing vehicle wiring and would make kshs 40,000/=. 15. She testified that her late brother had a certificate of qualification and that he would sometimes send her. She testified that the deceased was taking care of his child and also his mother. 16. PW3 Shadrack Kisilu Mulinge testified that he was an eyewitness to the accident. 17. He was about 10 meters away from where the accident took place. He saw the motor vehicle KBB 253U, a lorry, pass him at high speed a few meters away. 18. It hit the deceased after the driver lost control. 19. The Appellant called only one witness: the driver of the lorry, Johnson Safari Asiachi, who testified that he was driving to town and he heard a noise on the driver’s side. 20. He checked and saw a person. 21. He stopped and took him to the hospital. He stated that he blamed the deceased since he had suddenly jumped from behind the vehicle. 22. He stated that the vehicle was owned by the Appellant company, which was his employer. 23. He testified that he was charged with causing death and paid a fine for the charge. 24. The subordinate court in determining liability considered that the Respondent called an eyewitness who testified on how the Appellant’s driver drove the vehicle at high speed since he had passed him, lost control, and knocked down the deceased, who was off the road. 25. The court considered that the police officer who visited the scene blamed the driver for the accident. 26. The court considered that the Appellant’s driver confirmed that he was charged before a traffic court and fined Kshs 100,000/= 27. The court considered that, whereas the Appellant submitted that the deceased jumped onto an oncoming vehicle from behind, the driver stated that he only saw the deceased after the impact and that if the driver had been careful, he would have noticed the pedestrian who was walking along the road. 28. The court took notice of the eye witness account, the police officer’s testimony, and the fact that the Appellant’s driver pleaded guilty to the charge of causing death by dangerous driving and that the defence testimony was not corroborated, and found on the balance of probability that the Respondent had proved that the accident was caused entirely by the carelessness of the Appellant’s driver and enter liability 100% against the Appellant. 29. The trial court awarded kshs 200.000/= for pain and suffering. 30. The trial court considered that the deceased died on 26th September 2021, while the accident occurred on 23rd September 2021; the fact that he had suffered serious head fractures meant that he must have suffered immense pain. 31. The court was guided by the case of Beatrice Mukulu Kanguta and another vs Silverstone quarry limited and another (2016) eKLR. 32. The trial court awarded kshs 100,000/= as damages for loss of expectation of life. An amount that was proposed by the Appellant. 33. On damages for loss of dependency, the trial court, on the concurrence of both parties, applied the minimum wage for Artisan grade III at KShs 18,846 for the Mavoko Area. The court applied a dependency ratio of 2/3 since the deceased was supporting his mother and his child. 34. The deceased died aged 39 years old. The trial court reasoned that since a formal retirement age does not regulate the deceased’s work, he could have worked beyond 6o years, and taking note of the uncertainties of life, the court used a multiplier of 21 years as being reasonable. 35. On special damages, the trial court awarded kshs 161, 180/= being the amount pleaded and proved. 36. The Appellant, being aggrieved with the decision of the trial court, preferred the present appeal. 37. The Appellant’s appeal is premised on the following grounds set out in the memorandum of appeal dated 24th October 2023. 38. The trial court erred in law and fact, misapprehended and misapplied the applicable principles in assessing quantum, thereby awarding an inordinately high sum that constituted an erroneous estimate of damages. 39. The trial court erred in law and fact by arriving at a finding on liability that went against the weight of evidence. 40. The trial court erred in law and fact by making a finding in favour of the Respondent when they had not proved their case on a balance of probabilities. 41. That the award of kshs 3,166,128/= as damages under the Fatal Accident Act was too excessive considering that the deceased was 39 years old at the time of the accident. 42. The trial court erred in fact and in law in awarding the Respondent Kshs 100,000/= as damages under the Law Reform Act. 43. The trial court erred in law by failing to deduct the damages awarded under the Law Reform Act from the total award. 44. The trial court erred in fact and law in awarding the Respondents kshs 200,000/= being pain and suffering, which award was excessive in the circumstances. 45. The appeal proceeded by way of written submissions. Both parties complied with the directions of the court and filed written submissions in support of and in opposition to the appeal. 46. The appellant, citing the provisions of sections 109 and 112 of the Evidence Act, urged that the Respondent did not discharge the burden of proof. 47. The Appellant further urged that pedestrians, too, have a duty of care, placing reliance on the decision of Leonard Kamenwa Njenga v David Maina Mbugua, the case of Bash Hauliers Ltd vs Anastacia Ndinda Kimonye, Zarina Akbarali Sharif and Another vs Noshir Pirosesha Sethna and Others EA 239. 48. The Appellant therefore prayed for the court to find and apportion contributory negligence upon the deceased. 49. The Appellant submitted that the award of kshs 200,000/= for pain and suffering was excessive and proposes kshs 20,000/= as being the reasonable figure. 50. The Appellant is aggrieved by the multiplier of 21 years for the deceased, who died aged 39 years. 51. The Appellant submitted that a multiplier of 15 years would have been reasonable in the circumstances. 52. The Appellant submitted that the award for loss of expectation of life should be deducted from the award on loss of dependency, as it was a case of double compensation. 53. The Respondent submitted that the court should not interfere with the finding of the trial court unless the same was based on no evidence or on a misapprehension of the evidence. 54. The Respondent submitted that the trial court did not err but made the correct finding based on the evidence adduced. 55. The Respondent justified the trial court’s decision on quantum, citing court decisions in Mercy Muriuki and another vs Samuel Mwangi Ndauati and another (suing as the legal administrator of the estate of the late Robert Mwangi) (2019) eKLR. Janet Kathambi v Charity Kanja Njiru (2021) KEHC 5894(KLR), where the court applied a multiplier of 21 years for a deceased carpenter who died at age 39. 56. The Respondent also relied on the decision of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (deceased) vs Kiarie Shoe Stores Limited (2015) eKLR and urged for the dismissal of the appeal. 57. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 58. This principle was succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and reiterated in Peters v Sunday Post Ltd [1958] EA 424. 59. Having considered the record of appeal, the submissions by counsel, and the authorities cited, the issues arising for determination are: 60. Whether the learned trial magistrate erred in finding the Appellant 100% liable. 61. Whether the award for pain and suffering was excessive. 62. Whether the multiplier adopted by the trial court was erroneous. 63. Whether damages awarded under the Law Reform Act ought to have been deducted from damages awarded under the Fatal Accidents Act. 64. Whether the overall award was excessive and warrants interference. 65. The law places the burden of proof upon the party who alleges. Sections 107, 109, and 112 of the Evidence Act require a claimant to establish his case on a balance of probabilities. 66. The Respondent called an eyewitness, PW3, who testified that he was approximately ten metres from the scene when he saw the Appellant’s lorry being driven at high speed. 67. He stated that the vehicle lost control and knocked down the deceased, who was off the road. 68. PW1, a police officer from Athi River Police Station, produced the police abstract and the relevant occurrence book extract. His evidence was that investigations blamed the driver of the Appellant’s vehicle. 69. Most significantly, DW1, the driver of the offending vehicle, admitted that he was charged in a traffic court in relation to the accident and was fined Kshs.100,000/=. 70. While a conviction in a traffic case is not conclusive proof of negligence in a civil claim, it constitutes highly persuasive evidence. 71. Section 47A of the Evidence Act provides that a final conviction by a competent court shall be taken as conclusive evidence that the person so convicted was guilty of the offence charged. 72. The Appellant contended that the deceased suddenly emerged from behind the vehicle. However, DW1 admitted that he only saw the deceased after the impact. His version was therefore not supported by any independent evidence. 73. In contrast, the Respondent's evidence consisted of an eye witness account, police investigations, and the driver's own admission that he was convicted in respect of the accident. 74. I am unable to fault the learned magistrate for preferring the Respondent’s evidence. 75. The finding that the accident was occasioned by the negligence of the Appellant’s driver was supported by the evidence on record. 76. On contributory negligence, although pedestrians owe a duty of care for their own safety, as stated in cases such as Bash Hauliers Ltd v Anastacia Ndinda Kimonye and Leonard Kamenwa Njenga v David Maina Mbugua, liability cannot be apportioned in the absence of credible evidence demonstrating negligent conduct on the part of the deceased. 77. No such evidence was placed before the trial court. Consequently, I find no basis for interfering with the finding holding the Appellant 100% liable. 78. An Appellate court will only interfere with an award of damages where the trial court took into account an irrelevant factor, omitted a relevant factor, or where the award is so inordinately high or low as to represent an entirely erroneous estimate. See Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another [1982-88] 1 KAR 727. 79. The evidence established that the accident occurred on 23rd September 2021 and the deceased succumbed to his injuries on 26th September 2021, approximately three days later. 80. Medical evidence revealed severe head injuries and fractures. The learned magistrate reasoned that the deceased must have endured considerable pain before his demise. 81. Awards for pain and suffering vary according to the duration of survival and the severity of injuries sustained. In the circumstances of this case, I cannot say that an award of Kshs.200,000/= was so excessive as to warrant interference. 82. The ground of appeal on pain and suffering, therefore, fails. 83. For loss of expectation of life, the award of Kshs.100,000/= under this head is within the conventional range repeatedly approved by the courts and was indeed the figure proposed by the Appellant before the trial court. 84. I find no reason to disturb the award. 85. The deceased was aged 39 years. 86. The parties agreed before the trial court that the minimum wage applicable to an Artisan Grade III in Mavoko was Kshs.18,846/= per month. The learned magistrate adopted that figure. 87. The evidence established that the deceased supported his child and his mother. The two-thirds dependency ratio was therefore justified. 88. The Appellant's principal grievance concerns the multiplier of twenty-one (21) years. 89. The choice of a multiplier is not a scientific exercise but an estimate based on the circumstances of each case. The court must consider the age of the deceased, the nature of his occupation, the vagaries and uncertainties of life, and the possibility of future contingencies. See Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR. 90. The deceased was self-employed as a motor vehicle electrician. Unlike employees in formal employment, he was not subject to a mandatory retirement age. 91. In Janet Kathambi v Charity Kanja Njiru [2021] KEHC 5894 (KLR), a multiplier of twenty-one years was adopted for a deceased aged thirty-nine years. 92. Taking into account the deceased’s age, occupation and prevailing judicial trends, I am satisfied that the multiplier of twenty-one years adopted by the trial court was reasonable and cannot be said to have been based on a wrong principle. 93. The Appellant submitted that the awards under the Law Reform Act ought to have been deducted from the award under the Fatal Accidents Act to avoid double compensation. 94. The law on this issue is now settled. 95. In Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No.2) [1987] KLR 30, the Court of Appeal held that while the court must take into account the award under the Law Reform Act, there is no requirement that it be mathematically deducted from the award made under the Fatal Accidents Act. 96. The same position was reaffirmed by the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of the Estate of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Ltd [2015] eKLR, where the Court stated that “taking into account” does not mean “deducting”. 97. There is no indication that the learned magistrate awarded duplicative damages. The damages under the two statutes compensated distinct causes of action. 98. Consequently, the complaint of double compensation lacks merit. 99. Upon a fresh evaluation of the evidence and the law, I find that the learned trial magistrate properly directed himself on both liability and quantum. The Appellant has failed to demonstrate any error of principle that would justify interference by this Court. Accordingly, the appeal is hereby dismissed in its entirety. The judgment of the subordinate court delivered on 5th October 2023 in Mavoko CMCC No. E1014 of 2022 is hereby upheld. The Respondent shall have the costs of this appeal. Delivered virtually via Microsoft Teams, dated and signed at Mombasa, this 25th day of June 2026 **Emmanuel Bitta** **Judge** In the presence of; C/A Nechesa Sagini for the Appellant