https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11054

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E209 OF 2023** **STANLEY MURERWA (Suing as the Legal Representative** **of SAMWEL MUCHUI (Deceased)……..…………………..APPELLANT** **VERSUS** **SAMSON MUTHURI…………………………………………RESPONDENT** *(Being an Appeal from the judgement and decree* *of* *Hon. M.A. Odhiambo, Senior Resident Magistrate* *delivered* *on 31st October, 2023 in Meru CMCC No. E205 of 2022).* **JUDGEMENT** 1. **INTRODUCTION.** 2. This appeal emanates from the judgement and decree of **Hon. M.A. Odhiambo,** Senior Resident Magistrate delivered on 31st October, 2023 in *Meru CMCC No. E205 of 2022,* a tortious liability claim arising out of a road traffic accident that is said to have occurred on 24th January, 2021 in which the deceased met his demise*.* The appeal challenges the findings of the trial court on both liability and quantum. 3. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 27th November, 2023, in seeking to set aside the judgement and decree of the trial court: 4. **THAT the learned trial Magistrate erred in law and in facts by failing to consider or take into consideration that the Appellant had on a balance of probabilities established that the Respondent and his authorized agents were wholly liable for the accident thereby arriving at the wrong conclusion on liability.** 5. **THAT the learned trial Magistrate erred in law and in facts in apportioning ratio on liability at the ratio of 50:50 between the Appellant and the Respondent whereas the Respondent did not call any evidence during trial and/or successfully challenge the version of the eye witness account thereby fell into error on the apportionment of liability.** 6. **THAT the learned trial Magistrate erred in law and in facts by following the Court of Appeal decision in *Chege Kimotho & others v Maria Vesters & Anor [1988] eKLR* whereas the said decision had been overruled by the decision in *Salvatore De Luca v Abdullahi Hemed Khalil & Anor [1994] eKLR*, which is a more recent decision on award of loss of consortium thereby fell into error while refusing to award damages under loss of consortium thereby arriving at the wrong conclusion.** 7. **THAT the learned trial Magistrate erred in law and in facts in using a global sum approach in complete ignorance of the uncontroverted evidence on income of the deceased person of Kes. 40,000/- adduced by the Appellant thereby fell into error on principle on the amounts of loss of dependency payable to the estate of the deceased.** 8. **THAT the judgment and decree of the learned trial Magistrate dated 31st October 2023 is against the weight of evidence, submissions and authorities placed before the court therefore erroneous.** 9. **THAT the judgment of the learned trial Magistrate dated 31st October, 2023 is bad in law.** 10. The Appellant proposes that the appeal be allowed, the judgement of the trial court dated 31st October, 2023 be set aside, this Court be pleased to find the Respondent 100% liable for the accident and proceeds to reassess the damages payable to the Appellant under the head of loss of dependency and that the Appellant be awarded the costs of this appeal as well as the costs of the proceedings before the trial court. 11. **DUTY OF THIS COURT.** 12. As this is a first appeal, I am obligated, pursuant to *Section 78* of the *Civil Procedure Act* and as articulated in **Selle v Associated Motor Boat Co. Ltd *[1969] E.A. 123,*** to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. 13. In ***Selle***, **Sir Clement De Lestang**observed that: ***“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.*** ***However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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 demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of ***Peters v Sunday Post Limited [1958] EA 424*** in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** ***ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** 1. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 2. **THE PLEADINGS BEFORE THE TRIAL COURT.** 3. The suit before the trial court was commenced vide the plaint dated 6th July, 2022 in which the Appellant pleaded that he had obtained a limited *grant ad litem* in respect of the estate of the late **Samwel Muchui** and was therefore clothed with the requisite legal capacity to institute the suit on behalf of the deceased’s estate. 4. The Appellant pleaded that at all material times, the Respondent was the beneficial owner of motor vehicle registration number KBQ 707J, an Isuzu lorry. 5. It was averred that on 24th January, 2021, the deceased was lawfully riding motorcycle registration number KMES 389H along the Meru–Industrial Road near Walker Garage Junction within Meru Town when the Respondent, by himself, his driver, agent and/or servant, so negligently, recklessly and carelessly drove, managed and controlled the said motor vehicle that it veered off the road and collided with the motorcycle, thereby fatally injuring the deceased. 6. The Appellant attributed the accident wholly to the negligence of the Respondent and/or his driver, whose particulars included driving at an excessive speed, driving recklessly and on the wrong side of the road, failing to keep any proper lookout, failing to stop, swerve or otherwise control the motor vehicle so as to avoid the collision, driving without due regard to other road users and traffic regulations, driving a defective motor vehicle and thereby causing the accident and the deceased’s death. 7. The Appellant pleaded that as a consequence of the accident, the deceased sustained fatal injuries, occasioning loss and damage to his estate and dependants. 8. It was further pleaded that at the time of his death, the deceased was 19 years old, was in good health and earned approximately Ksh.40,000/- per month as a driver and businessman. The Appellant identified the deceased’s beneficiaries as his wife, **Linet Kiende,** his son, **Tony Mwenda** and his uncle, **Stanley Murerwa Mugambi.** 9. The Appellant claimed special damages amounting to Ksh.158,930/-, comprising hospital expenses, post-mortem expenses, the cost of obtaining the limited grant *ad litem,* funeral expenses, motor vehicle search fees, the cost of issuing a demand notice and postage charges. He also sought damages under the *Fatal Accidents Act* and the *Law Reform Act,* damages for loss of consortium, costs of the suit and interest. 10. The Appellant further pleaded that he would rely on the doctrines of *res ipsa loquitur* and vicarious liability, averred that the cause of action arose within the jurisdiction of the trial court, and stated that despite issuing the requisite demand and notice of intention to sue, the Respondent and his insurers failed to settle the claim, thereby necessitating the institution of the suit. 11. The Respondent resisted the Appellant’s claim and to that end filed a statement of defence dated 15th March, 2023 in which he generally denied the allegations contained in the plaint and put the Appellant to strict proof thereof. 12. The Respondent admitted the descriptive averments relating to the parties but denied being the beneficial owner of motor vehicle registration number KBQ 707J, thereby putting the Appellant to strict proof of ownership. 13. The Respondent further denied that the Appellant had the requisite legal capacity to institute the suit on behalf of the estate of the deceased and put him to strict proof of the alleged limited grant *ad litem.* 14. The Respondent denied that the accident pleaded by the Appellant occurred in the manner alleged, or at all, and specifically denied the allegations of negligence attributed to him or to his driver, servant and/or agent. 15. Without prejudice to the foregoing denials, the Respondent pleaded in the alternative that if the accident occurred as alleged, then it was wholly or substantially caused by the negligence of the deceased. In that regard, the Respondent alleged that the deceased rode the motorcycle at an excessive speed, failed to observe traffic rules, rode in a zigzag manner, overtook dangerously, failed to heed the approach of the Respondent’s motor vehicle, failed to take evasive action to avoid the collision and rode into the path of the said motor vehicle. 16. The Respondent further pleaded that he would rely on the doctrine of contributory negligence, the provisions of the *Traffic Act* and the *Highway Code.* 17. The Respondent also denied that the deceased sustained the injuries alleged or that his estate suffered the loss and damage pleaded. He similarly denied the claim for special damages, the deceased’s age, occupation and alleged monthly income, as well as the particulars of the alleged dependants, all of which he put the Appellant to strict proof. 18. The Respondent denied the applicability of the doctrines of *res ipsa loquitur* and vicarious liability, denied having been served with a demand letter or notice of intention to sue, admitted that the trial court had jurisdiction to entertain the suit, but denied that any cause of action existed against him. 19. **THE EVIDENCE BEFORE THE TRIAL COURT.** 20. The Appellant called **Police Constable Robert Tomno** (PW1) as his first witness. The witness testified that he was attached to Meru Police Station and produced the police abstract (PExh1) relating to a road traffic accident which occurred on 24th January, 2021 at about 7.00p.m. near Walker Garage within Meru Town involving motor vehicle registration number KBQ 707J, an Isuzu lorry, and motorcycle registration number KMES 389H. 21. The witness stated that the accident resulted in the death of one **Samwel Muchui** and was recorded under Occurrence Book (OB) No. 4 of 24th January, 2021. He further testified that the investigating officer was **Sergeant Tinega,** who had since been transferred from the station, and that investigations into the accident were still pending. 22. Upon cross-examination, the witness conceded that he was not the investigating officer and had not carried the police investigation file to court. He stated that he was only producing the police abstract, confirmed that the motorcycle did not have an insurance policy and testified that no person had been charged in connection with the accident. He further acknowledged that the police abstract did not attribute blame to any party. 23. In re-examination, the witness reiterated that the motorcycle was uninsured and that investigations into the accident had not been concluded. 24. The Appellant testified before the trial court as PW2 and adopted the contents of his witness statement dated 6th July, 2022 in which he stated that on 24th January, 2021, the deceased, **Samwel Muchui,** was lawfully riding motorcycle registration number KMES 389H along the Meru–Industrial Road near Walker Garage Junction when motor vehicle registration number KBQ 707J, an Isuzu lorry, was negligently driven, veered from its lane and collided with the motorcycle, thereby inflicting fatal injuries upon the deceased. 25. The Appellant attributed the accident to the negligence of the driver of the said motor vehicle, contending that he drove at an excessive speed, veered off his lane and otherwise drove negligently. He testified that the deceased succumbed to the injuries sustained in the accident on the following day. 26. The Appellant further testified that prior to his death, the deceased was in good health and worked as a driver and businessman earning in excess of Ksh.40,000/- per month. According to the Appellant, the deceased supported his wife, child and the Appellant, and his death occasioned the family substantial loss and damage. He therefore prayed for the reliefs sought in the plaint. 27. Upon cross-examination, the Appellant admitted that he did not witness the accident and that the information regarding the manner in which it occurred, including the allegation that the Respondent’s motor vehicle was being driven at an excessive speed, had been relayed to him by other persons. 28. He testified that the deceased was a taxi driver and also sold cakes, although he conceded that he did not produce the deceased’s driving licence or documentary proof of the alleged cake business. He further acknowledged that the deceased’s death certificate described his occupation as that of a farmer. 29. In re-examination, the Appellant reiterated that he did not witness the accident but arrived at the scene as the deceased was being taken away and observed that he was lying off the road. 30. The Appellant maintained that although he had not produced the deceased’s driving licence, the family did not supply the information appearing in the death certificate regarding the deceased’s occupation. 31. The Appellant produced the following documents in support of his case: * The deceased’s certificate of death dated 30th July, 2021 – PExh2. * Post mortem report dated 28th January, 2021 – PExh3. * Motor vehicle search and its receipt for Ksh.550/- PExh4a and b. * Post mortem receipt for Ksh.7,000/- PExh5. * Loyal Funeral Services receipt dated 28th January, 2021 for Ksh.97,300/- – PExh6. * Mortuary expenses receipt for Ksh.5,700/- – PExh7. * Demand notice dated 12th April, 2022 addressed to Corporate Insurance – PExh8. * Receipt for Ksh.5,000/- PExh9. * G4S receipt for Ksh.380/- dated 13th April, 2021 – PExh10. * Treatment receipt for Ksh.3,000/- – PExh11. * Chief’s letter dated 16th June, 2022 – PExh12. * Limited grant *ad litem* dated 23rd November, 2021 PExh13. * Receipt dated 22nd November, 2021 for Ksh.40,000/- obtaining the limited grant *ad litem –* PExh14. * Certificate of birth for **Tony Mwenda** – PExh15. 1. The Appellant called **Erick Gitonga Muriungi** (PW3), who testified and adopted the contents of his witness statement dated 6th July, 2022. He stated that on 24th January, 2021, while walking along the opposite side of the Meru–Industrial Road near Walker Garage Junction within Meru Town, he saw the deceased riding motorcycle registration number KMES 389H when motor vehicle registration number KBQ 707J, an Isuzu lorry, approached at a high speed, veered off its lane and collided with the motorcycle, causing the deceased to sustain fatal injuries. 2. PW3 testified that he was near GGV Church and heading towards Meru Town when he heard screams and observed the lorry approaching from the opposite direction. According to him, the deceased had slowed down and was no longer on the main carriageway but was on the side of the road when the lorry veered from its lane onto the pedestrian walkway and struck the motorcycle. 3. The witness maintained that the lorry was being driven at an excessive speed and that its driver ought to have slowed down, attributing the accident wholly to the negligence of the driver. 4. Upon cross-examination, PW3 stated that the accident occurred at about 6.30p.m. Although he could not recall the colour of the lorry, he maintained that he saw the deceased slow down before the collision. 5. The witness testified that the deceased was wearing a helmet and reflective gear and was travelling from Meru Town towards Walker Garage. He further conceded that he did not record a witness statement with the police. 6. PW3 acknowledged that he knew both the Appellant and the deceased, having previously conducted business with the Appellant, and stated that the deceased worked both as a driver and as a cake vendor. 7. In re-examination, PW3 reiterated that the deceased earned a living as both a driver and a cake vendor. He stated that the deceased was wearing a helmet and was therefore unlikely to have heard the lorry approaching from behind. He maintained that the lorry was travelling behind the deceased immediately before the collision and reaffirmed his opinion that the lorry driver was solely to blame for the accident. 8. Although afforded an opportunity to do so, the Respondent elected not to adduce any oral or documentary evidence in support of his defence. 9. **THE FINDINGS OF THE TRIAL COURT.** 10. In its judgment rendered on 31st October, 2023, the trial court identified the issues for determination as being whether the Respondent was liable for the accident, the quantum of damages payable and the issue of costs. The court reviewed the pleadings, the oral and documentary evidence adduced by the Appellant, and the parties’ respective submissions before embarking on its analysis. 11. On the question of liability, the trial court observed that the burden of proving negligence lay upon the Appellant and that the applicable standard of proof was that of a balance of probabilities. In that regard, the court relied on ***Mount Elgon Hardware v United Millers Limited******[1996] KLR,*** wherein the Court of Appeal held that a party who alleges negligence must prove the particular acts of negligence pleaded and cannot be permitted to prove matters that were not pleaded. 12. The trial court considered the evidence of PW3, the only eyewitness called by the Appellant, and found that his account of the accident was inconsistent and inconclusive. The court observed that PW3 gave conflicting accounts regarding the direction in which the motor vehicle and the motorcycle were travelling and that his testimony did not satisfactorily establish how the collision occurred. 13. The court further noted that PW1 merely produced the police abstract, was not the investigating officer, did not have the police investigation file or a sketch plan, and was therefore unable to shed light on the point of impact or the circumstances surrounding the accident. 14. Having found that the evidence did not conclusively establish which of the two road users was to blame for the collision, the trial court relied on the decision of the Court of Appeal in ***Hussein Omar Farah v Lento Agencies******[2006] eKLR,*** in which the Court held that where the evidence does not enable the court to determine which of two drivers was responsible for an accident, both should ordinarily be held equally to blame. 15. Applying that principle, the trial court apportioned liability equally between the parties and held the Respondent and the deceased each 50% liable for the occurrence of the accident. 16. Turning to the issue of quantum, the trial court first considered the claim under the *Law Reform Act.* On damages for pain and suffering, the court observed that the deceased died on the day following the accident and awarded Ksh.100,000/-. In doing so, it relied on ***Francis Odhiambo Nyunja & 2 Others v Josephine Malala (suing as the legal administrator of the Estate of Kevin Osore Rapando) [2020] eKLR,*** where an award of Ksh.100,000/- was made in circumstances where the deceased died on the same day as the accident. 17. Under the head of loss of expectation of life, the trial court found that the deceased was a young and healthy man who would, in the ordinary course of events, have been expected to enjoy a long life. The court consequently awarded Ksh.100,000/- and relied on ***NMT (Suing as Administrator of the Estate of FM & LM) v Acacia Crest Academy [2018] eKLR,*** in which a similar award was made under that head. 18. With regard to damages under the *Fatal Accidents Act,* the trial court considered the rival submissions on whether to apply the multiplier approach or the global sum approach. The Appellant had urged the court to adopt the multiplier method based on an alleged monthly income of Ksh.40,000/-, whereas the Respondent contended that the deceased’s income had not been proved and advocated for the global sum approach. 19. In resolving that issue, the trial court found that there was no documentary evidence establishing that the deceased was employed as a driver, operated a business or earned the alleged monthly income of Ksh.40,000/-. The court therefore concluded that the evidence did not justify the application of the multiplier approach. 20. The trial court was guided by the decision in ***Hassan v Nathan Mwangi Kamau Transporters & 4 Others******[2008] 1 KLR (G&F) 90,*** which sets out the principles governing assessment of damages for loss of dependency. The court further relied on ***Ainu Shamsi Hauliers Limited v Moses Sakwa & Another (suing as the Administrators of the Estate of Ben Siguda Okach (Deceased)) [2021] eKLR,*** where it was held that where a deceased’s income is not proved by documentary evidence, the trial court has the discretion to adopt either the multiplier approach or the global sum approach. 21. The trial court also cited ***Albert Odawa v Gichumu Githenji, HCCA No. 15 of 2003******[2007] eKLR,*** in which the court observed that the multiplier approach is merely a method of assessing damages and not a rule of law, and that it ought to be abandoned where the relevant factors cannot be established without undue speculation, since justice should not be sacrificed at the altar of methodology. 22. Having considered those authorities, together with the decisions in ***Mashua Hassan Msuka (suing as the administrator of the Estate of Juma Mohamed Majepo) v John Migwi & Another******[2018] eKLR*** and ***Moses Koome Mithika & Another v Doreen Gatwiri & Another (suing as the legal representative of the Estate of Phineas Murithi (Deceased)) [2020] eKLR,*** where global awards were made for deceased persons of comparable ages, the trial court adopted the global sum approach. Taking into account the deceased’s age, the existence of two dependants and the comparable authorities cited, the court awarded Ksh.1,200,000/- for loss of dependency. 23. On special damages, the trial court reiterated the settled principle that such damages must not only be specifically pleaded but must also be strictly proved. Having found that the Appellant had produced documentary evidence in support of the pleaded items, the court awarded special damages in the sum of Ksh.158,380/-. The Appellant was also awarded the costs of the suit and interest on the awards. 24. **THE PARTIES’ SUBMISSIONS ON APPEAL.** 25. The Appellant submits that the appeal is meritorious and urges this Court, as a first appellate court, to re-evaluate the entire evidence on record and interfere with the findings of the trial court. In support of that proposition, reliance is placed on ***Municipal Council of Nakuru & Another v David Mburu Gathiaya [1993] eKLR,*** in which the Court of Appeal held that a first appellate court is under a duty to reconsider and re-evaluate the evidence on record and determine whether the trial court proceeded on wrong principles or misapprehended the evidence. 26. The Appellant further submits that although an appellate court should ordinarily be slow to interfere with an award of damages, it is entitled to do so where the trial court acted on an erroneous principle or arrived at an erroneous estimate of damages. 27. On liability, the Appellant contends that the trial court erred in finding that the evidence of PW3 was unclear and contradictory. It is submitted that PW3 consistently testified that both the lorry and the motorcycle were travelling in the same direction; that the deceased had moved off the main carriageway onto the side of the road; and that the Respondent’s lorry veered off its lane and struck the motorcycle. According to the Appellant, PW3’s account was coherent, consistent and established the Respondent's negligence on a balance of probabilities. 28. The Appellant further submits that the trial court erred in apportioning liability equally between the parties despite the Respondent having failed to adduce any evidence in rebuttal. It is argued that the Respondent neither challenged the eyewitness account nor displaced the Appellant’s evidence, with the result that the Appellant’s evidence remained uncontroverted and ought to have been accepted. 29. In that regard, the Appellant relies on ***Board of Management St. Paul Thomas Academy & Another v Patrick Muiruri Mwangi (Civil Appeal No. 33 of 2022) [2024] KEHC 3118 (KLR),*** where the High Court held that where a party adduces evidence which remains uncontroverted because the opposing party elects not to tender evidence, such evidence may be sufficient to discharge the burden of proof on a balance of probabilities. The Appellant accordingly urges the Court to hold the Respondent wholly liable for the accident. 30. On the question of loss of consortium, the Appellant submits that the trial court misdirected itself by relying on ***Chege Kimotho & Others v Maria Vesters & Another******[1988] eKLR*** in declining to make an award under that head. The Appellant argues that the said decision was subsequently overtaken by the Court of Appeal decision in ***Salvatore De Luca v Abdullahi Hemed Khalil & Another******[1994] eKLR,*** in which the Court recognized that damages for loss of consortium may be awarded where a spouse is killed in a road traffic accident. The Appellant therefore urges this Court to award Ksh.100,000/- under that head. 31. The Appellant further submits that the trial court erred in adopting the global sum approach in assessing damages for loss of dependency. It is argued that the evidence that the deceased earned Ksh.40,000/- per month as a driver and businessman was not controverted and that the trial court improperly insisted on documentary proof of income. 32. In support of that submission, reliance is placed on ***Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR,*** where the Court of Appeal held that insistence on documentary proof of income in every case would occasion injustice to many Kenyans who earn their livelihood in the informal sector and whose earnings are not ordinarily supported by documentary records. 33. The Appellant alternatively submits that even if the Court were to find that the deceased’s actual earnings were not proved with precision, it should nevertheless apply the multiplier approach by adopting the statutory minimum wage applicable to drivers. It is contended that the deceased’s age, occupation and dependency were ascertainable and that the applicable minimum monthly wage under the *Regulation of Wages (General) (Amendment) Order, 2018* was Ksh.18,881/-. The Appellant therefore proposes a multiplier of 41 years, a dependency ratio of two-thirds, and urges the Court to award Ksh.6,192,968/- for loss of dependency. 34. On his part, the Respondent submits that the appeal is devoid of merit and urges this Court to uphold the judgement of the trial court in its entirety. According to the Respondent, the issues arising for determination are whether the trial court properly apportioned liability at the ratio of 50:50, whether it correctly adopted the global sum approach in assessing damages for loss of dependency and who should bear the costs of the appeal. 35. On liability, the Respondent submits that the Appellant bore the burden of proving the pleaded particulars of negligence on a balance of probabilities. In support of that proposition, reliance is placed on ***Mount Elgon Hardware v United Millers Ltd [1996] eKLR,*** where the Court of Appeal held that a party alleging negligence must prove the particulars pleaded and cannot be permitted to prove matters not pleaded. 36. The Respondent argues that the evidence adduced by PW1 did not assist the Appellant in proving negligence since PW1 was not the investigating officer, merely produced the police abstract, did not know how the accident occurred, had not brought the police investigation file and did not produce a sketch map of the scene. It is submitted that the trial court therefore correctly found that PW1’s evidence did not establish liability. 37. The Respondent further submits that the absence of a sketch map and the police investigation file was fatal to the Appellant’s case. In that regard, reliance is placed on ***Peter Matara & 2 Others v Alloy Kenyatta Kevogo [2017] eKLR,*** in which the court, citing ***Postal Corporation of Kenya & Another v Dickens Munayi [2014] eKLR,*** observed that a sketch map is a crucial piece of evidence in establishing the point of impact and that its absence may cast doubt on the evidence regarding how an accident occurred. 38. With respect to the evidence of PW3, the Respondent submits that the witness gave inconsistent testimony regarding the circumstances of the accident. It is argued that whereas PW3 initially blamed the Respondent’s driver for veering onto the deceased’s lane, he later gave a different account concerning the direction in which the vehicles were travelling. 39. The Respondent also points out that PW3 admitted he could not recall the colour of the lorry, had not recorded a statement with the police and was well acquainted with both the deceased and the Appellant. It is therefore submitted that the trial court properly found PW3’s evidence to be unreliable and insufficient to establish sole liability against the Respondent. 40. The Respondent accordingly submits that the trial court correctly apportioned liability equally between the parties. Reliance is placed on ***Tipper Hauliers Limited & Salim Jalala Mwaita v Mercy Chepngeno Towet & Another [2021] eKLR,*** where the High Court upheld an apportionment of liability at 50:50 after finding that the police abstract indicated that investigations were pending, no police file had been produced and the available evidence did not conclusively establish who was to blame for the accident. The Respondent also relies on ***Valley Bakery Ltd & Another v Musyoki******[2005] eKLR*,** in which the court resolved conflicting evidence by apportioning liability equally between the parties. 41. On the assessment of damages, the Respondent submits that the trial court properly adopted the global sum approach after correctly finding that the Appellant had failed to prove the deceased’s occupation and income. It is pointed out that during cross-examination the Appellant conceded that he had not produced the deceased’s driving licence or any documentary proof that the deceased operated a business, and further admitted that the death certificate described the deceased as a farmer. 42. The Respondent submits that in the absence of satisfactory proof of income, the multiplier approach was inapplicable and that the trial court properly exercised its discretion by awarding a global sum. 43. In support of that submission, reliance is placed on ***Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of the Estate of Antony Mwiti Gakungu, Deceased) [2020] eKLR,*** where the court held that where there is no satisfactory proof of a deceased’s income or employment, it is preferable to adopt either the global sum approach or the statutory minimum wage rather than speculate on a multiplicand. 44. The Respondent further contends that the award made by the trial court was fair and consistent with comparable decisions. In that regard, reliance is placed on ***Mashua Hassan Msuka (suing as administrator of the Estate of the late Juma Mohammed Majepo) v John Migwi & Another [2018] eKLR,*** where a global award of Ksh.900,000/- was made for a deceased aged 22 years; ***Moses Koome Mithika & Another v Doreen Gatwiri & Another (suing as the legal representative of the Estate of Phineas Murithi (Deceased)) [2020] eKLR,*** where the High Court upheld a global award of Ksh.1,000,000/- for a deceased aged 20 years; and ***Elvina Nyevu Garama & Another v Samson Kahindi Kitsao & Another [2020] eKLR,*** in which the court awarded a global sum of Ksh.1,000,000/- for loss of dependency in respect of a deceased aged 22 years. 45. In the premises, the Respondent urges the Court to find that the trial court properly evaluated the evidence, correctly applied the applicable legal principles in apportioning liability and assessing damages, and consequently dismiss the appeal with costs. 46. **ISSUES FOR DETERMINATION.** 47. I have carefully considered the memorandum of appeal, the pleadings, the evidence adduced before the trial court, the impugned judgement, the rival submissions of the parties and the authorities cited. Although the memorandum of appeal contains six grounds of appeal, it is well settled that a court ought to distil the real issues in controversy for determination. 48. In my considered view, the appeal raises the following issues for determination: 1. Whether the trial court erred in apportioning liability for the accident at the ratio of 50:50 between the Appellant and the Respondent. 2. Whether the trial court erred in declining to award damages for loss of consortium. 3. Whether the trial court erred in adopting the global sum approach, rather than the multiplier approach, in assessing damages for loss of dependency and whether the resultant award was appropriate. 4. Whether there exists any basis for this Court to interfere with the judgement of the trial court. 5. Who should bear the costs of the appeal. 49. **ANALYSIS AND FINDINGS.** 50. The first issue for determination is whether the trial court erred in apportioning liability for the accident at the ratio of 50:50 between the Appellant and the Respondent. 51. The Appellant contends that the evidence adduced before the trial court established, on a balance of probabilities, that the accident was solely occasioned by the negligence of the Respondent’s driver, whereas the Respondent supports the trial court’s finding that the circumstances surrounding the accident were uncertain and incapable of supporting a finding of exclusive liability. 52. The applicable standard of proof in civil proceedings is proof on a balance of probabilities. Unlike criminal proceedings, a Plaintiff is not required to establish his case beyond reasonable doubt. In ***Miller v Minister of Pensions [1947] 2 All ER 372,*** **Denning J.** explained the standard in the following celebrated passage. ***“That degree is well settled. It must carry a reasonable degree of probability... If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged, but if the probabilities are equal it is not.”*** 1. That principle has been consistently adopted by our courts. In ***Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR,*** the Court of Appeal stated: ***“Denning J. in Miller v Minister of Pensions... put it more appropriately that the standard of proof is that if the evidence shows that the case is more probable than not, then the burden is discharged.”*** 1. Upon my own independent evaluation of the evidence on record, I am satisfied that the Appellant discharged that burden. The only direct evidence on how the accident occurred came from PW3, **Erick Gitonga Muriungi,** who witnessed the accident. His evidence was that the Respondent’s lorry was being driven at a high speed, veered off its proper lane and struck the deceased’s motorcycle, which had moved off the main carriageway. 2. The witness consistently maintained that the collision occurred because the Respondent’s driver left his proper lane and encroached onto the path occupied by the deceased. 3. The learned trial Magistrate rejected PW3’s evidence on the basis that it allegedly contained inconsistencies concerning the direction in which the two vehicles were travelling. With tremendous respect, I am unable to agree with that finding. A careful reading of the record shows that the alleged inconsistencies related to peripheral matters and not to the central question of how the collision occurred. On every material aspect of the occurrence of the accident, PW3 remained steadfast that the Respondent's lorry was travelling at excessive speed, veered off its lane and struck the deceased’s motorcycle. 4. Courts have consistently recognized that witnesses are not expected to possess photographic memories and that minor discrepancies in their recollection are natural. Indeed, minor inconsistencies are often indicative of truthful testimony rather than fabrication. Minor contradictions, unless they point to deliberate untruthfulness or affect the substance of the case, should be ignored as human recollection is rarely perfect. A witness recounting events from memory cannot be expected to remember every detail with mathematical precision. 5. Consequently, trivial discrepancies on collateral matters ought not to obscure the substance of otherwise credible evidence. In the present case, the trial court elevated inconsequential variations in PW3’s testimony into material contradictions, yet the essence of his evidence remained unwavering, that the Respondent’s lorry veered off its proper lane and hit the deceased’s motorcycle. 6. Equally significant is the fact that the Respondent elected not to call any evidence whatsoever. While a Defendant bears no legal obligation to testify, where a Plaintiff adduces credible evidence which establishes a *prima facie* case and such evidence remains uncontroverted, a court is entitled to accept it if it satisfies the standard of proof on a balance of probabilities. 7. The Respondent neither called the driver of the lorry nor any investigating officer nor any independent witness to offer an alternative account of the accident. 8. In ***Board of Management St. Paul Thomas Academy & Another v Patrick Muiruri Mwangi (Civil Appeal No. 33 of 2022) [2024] KEHC 3118 (KLR),*** the High Court observed that where one party adduces evidence which is not controverted by the opposing party, such evidence may be sufficient to discharge the burden of proof on a balance of probabilities. I respectfully adopt that reasoning. The evidence tendered by PW3 remained substantially unchallenged and was sufficient to establish the Respondent’s negligence. 9. I am also unable to agree with the trial court’s apparent conclusion that the absence of the police file or a sketch plan necessarily rendered the Appellant’s case incapable of proof. Those documents would undoubtedly have been useful, but they were not indispensable. 10. Civil liability is determined on the totality of the evidence placed before the court. Credible eyewitness testimony is capable, without more, of establishing negligence on a balance of probabilities. Likewise, the fact that police investigations were still pending did not preclude the court from making its own independent determination on liability based on the evidence before it. 11. In the final analysis, I find that the Appellant established, on a balance of probabilities, that the accident occurred because the Respondent’s driver drove at an excessive speed, veered off his proper lane and collided with the deceased’s motorcycle. 12. The allegations of contributory negligence pleaded in the statement of defence were not supported by any evidence whatsoever. Pleadings, however elaborate, do not constitute evidence. (See ***CMC Aviation Ltd v Cruisair Ltd (No. 1) [1978] KLR 103,*** where the Court of Appeal held that pleadings are not evidence and that allegations contained therein must be proved by admissible evidence). 13. I therefore find that the learned trial Magistrate erred both in law and in fact in apportioning liability at the ratio of 50:50. The evidence on record overwhelmingly established that the Respondent’s driver was wholly responsible for the occurrence of the accident. Accordingly, I set aside the finding on liability and substitute it with a finding that the Respondent was 100% liable for the accident. 14. The second issue for determination is whether the trial court erred in declining to award damages for loss of consortium. The Appellant contends that the learned trial Magistrate misdirected herself by relying on an outdated legal position and consequently failed to compensate the deceased’s widow for the loss of her husband’s companionship, affection and marital relationship. The Respondent did not specifically address this issue beyond urging this Court to uphold the judgement of the trial court. 15. The plaint expressly pleaded damages for loss of consortium. It was also pleaded, and evidence was adduced, that the deceased was survived by his wife, **Linet Kiende,** and their son, **Tony Mwenda.** Those facts were not displaced by any evidence from the Respondent. The issue, therefore, is whether a surviving spouse is entitled to damages for loss of consortium where death results from the tortious conduct of another. 16. The learned trial Magistrate declined to make an award under this head upon relying on the Court of Appeal decision in ***Chege Kimotho & Others v Maria Vesters & Another [1988] eKLR.*** In that decision, the Court expressed the view that damages for loss of consortium were recoverable where the injured spouse remained alive but, as a consequence of the injuries sustained, the marital relationship had been adversely affected. The learned trial Magistrate consequently concluded that no award was available where death had occurred. 17. With respect, that was a misdirection. The legal position did not remain static after the decision in ***Chege Kimotho.*** Subsequently, the Court of Appeal revisited the question in ***Salvatore De Luca v Abdullahi Hemed Khalil & Another [1994] eKLR*** and expressly recognized that damages for loss of consortium are recoverable where a spouse dies as a result of the tortious acts of another. 18. In that case, the Court departed from the earlier restrictive approach and acknowledged that the death of a spouse permanently deprives the surviving spouse of companionship, society, affection, comfort and the mutual benefits of marriage, thereby giving rise to a compensable claim for loss of consortium. 19. This Court is bound by the decisions of the Court of Appeal. Where there exist two apparently conflicting decisions of that Court, the well-established principle is that the later decision prevails unless it is rendered *per incuriam* or has been overruled by a superior court. 20. In ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others [2013] eKLR,*** the Supreme Court reaffirmed the importance of adherence to the doctrine of precedent in promoting certainty, consistency and predictability in the administration of justice. Accordingly, the learned trial magistrate ought to have been guided by the later decision in ***Salvatore De Luca*** which represented the prevailing jurisprudence on the issue. 21. The rationale for awarding damages for loss of consortium is self-evident. Marriage creates a unique legal and social relationship characterised by mutual love, affection, companionship, comfort, society, care and support. Where one spouse is wrongfully killed through the negligence of another, the surviving spouse suffers a distinct and irreparable loss over and above the pecuniary loss recoverable under the *Fatal Accidents Act.* An award under this head is intended to acknowledge that non-pecuniary deprivation arising from the destruction of the marital relationship. 22. In the present case, the evidence before the trial court established that the deceased was married to **Linet Kiende** and that the union had been blessed with a child. There was no evidence challenging the existence of the marriage or suggesting that the spouses were estranged. The Respondent having been found wholly liable for the accident, there exists no legal or factual basis upon which the deceased’s widow should be denied compensation for the permanent loss of her husband’s companionship and consortium. 23. I therefore find that the learned trial Magistrate erred in law in declining to make an award under this head of damages by relying on an earlier decision of the Court of Appeal whose legal position had subsequently been overtaken by the later decision in ***Salvatore De Luca*** (supra). 24. In the circumstances of this case, and taking into account the authorities cited by the Appellant, I am satisfied that an award of Ksh.100,000/- under the head of loss of consortium is fair, reasonable and commensurate with the loss suffered by the deceased’s widow. 25. Accordingly, I set aside the finding of the trial court declining to award damages for loss of consortium and substitute it with an award of Ksh.100,000/- under that head. 26. The third issue for determination is whether the learned trial Magistrate erred in adopting the global sum approach, rather than the multiplier approach, in assessing damages for loss of dependency and whether the resultant award was appropriate. 27. The Appellant contends that the trial court ought to have adopted the multiplier approach based on the deceased’s alleged monthly income, whereas the Respondent supports the adoption of the global sum approach on the ground that the deceased’s income was not proved. 28. The law is now well settled that there is no rigid formula for assessing damages under the *Fatal Accidents Act.* The multiplier approach and the global sum approach are merely alternative methods of assessing damages. Neither enjoys precedence over the other and the choice of approach depends on the peculiar facts of each case. The objective in either case is to arrive at an award that fairly compensates the dependants for the pecuniary loss occasioned by the deceased’s death. 29. The Court of Appeal succinctly stated this principle in ***Hassan v Nathan Mwangi Kamau Transporters & 4 Others [1986] KLR 457,*** where it held: ***“The choice of the multiplier is a matter of the court’s discretion which discretion has to be exercised judiciously and with a reason.”*** 1. More pointedly, the High Court in ***Albert Odawa v Gichimu Githenji, Nakuru HCCA No. 15 of 2003 [2007] eKLR*** observed: ***“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must, be abandoned where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”*** 1. I respectfully adopt the foregoing statement of the law. It follows that before a court adopts the multiplier approach, there must be credible evidence from which the deceased’s earnings and dependency can reasonably be ascertained. Where those factors remain speculative, the global sum approach becomes the more appropriate method of assessment. 2. In the present case, the Appellant pleaded that the deceased was a driver and businessman earning Ksh.40,000/- per month. However, during cross-examination, PW2 candidly admitted that he had not produced the deceased’s driving licence, any business records or any documentary evidence demonstrating that the deceased earned the alleged monthly income. Indeed, he further conceded that the death certificate described the deceased’s occupation as that of a farmer. 3. Although I agree with the Appellant that documentary evidence is not the only means of proving earnings, I am unable to conclude that the alleged monthly income of Ksh.40,000/- was proved. The Court of Appeal in ***Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR*** stated: ***“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally by production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways.”*** 1. That decision, however, does not dispense with the burden of proof. Rather, it recognizes that income may be proved by credible oral evidence where documentary evidence is unavailable. In the present case, apart from the bare assertion by PW2 that the deceased earned Ksh.40,000/- per month, there was no cogent evidence establishing either the nature, regularity or amount of those earnings. I therefore find that the trial court cannot be faulted for declining to adopt that alleged income as the multiplicand. 2. Consequently, I find that the learned trial Magistrate correctly rejected the multiplier approach. In the absence of credible evidence establishing the deceased’s earnings, the adoption of the global sum approach was entirely justified and accords with established jurisprudence. 3. Having reached that conclusion, the next question is whether the global award of Ksh.1,200,000/- was appropriate. An appellate court will only interfere with an award of damages where it is shown that the trial court acted on a wrong principle of law, misapprehended the evidence, took into account irrelevant considerations, failed to consider relevant matters or that the award is so inordinately high or low as to represent an erroneous estimate of the damage suffered. This principle was restated by the Court of Appeal in ***Butt v Khan [1982-88] 1 KAR 1,*** where **Law JA** observed: ***“An appellate court will not disturb an award of 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.”*** 1. The learned trial Magistrate relied on ***Mashua Hassan Msuka (suing as the Administrator of the Estate of the Late Juma Mohamed Majepo) v John Migwi & Another [2018] eKLR, Moses Koome Mithika & Another v Doreen Gatwiri & Another [2020] eKLR***and ***Ainu Shamsi Hauliers Limited v Moses Sakwa & Another (suing as Administrators of the Estate of Ben Siguda Okach (Deceased)) [2021] eKLR*** in support of the award it made of Ksh.1,200,000/-. 1. Those authorities correctly affirm the propriety of adopting the global sum approach where income has not been proved. However, they are distinguishable on their facts and did not compel the trial court to make the particular award that it did. 2. In ***Mashua Hassan Msuka,*** the deceased was aged 22 years and the High Court awarded a global sum of Ksh.900,000/- in 2018. In ***Moses Koome Mithika,*** the deceased was aged 20 years and a global award of Ksh.1,000,000/- was upheld in 2020. Those awards were made several years before the impugned judgement in the present appeal. They therefore reflected the prevailing economic conditions and value of money at the time they were rendered and could not, without adjustment, constitute the appropriate benchmark in 2023. 3. Equally, ***Ainu Shamsi Hauliers Limited*** principally dealt with the propriety of adopting the global sum approach instead of the multiplier approach. The Court in that case did not lay down any fixed or conventional figure to be awarded under the global approach. The authority therefore supports the methodology adopted by the trial court but not necessarily the quantum awarded. 4. More importantly, the learned trial Magistrate appears to have paid insufficient regard to the particular circumstances of this case. The deceased was only nineteen (19) years old. He was married and left behind a wife and a young child who were wholly dependent upon him. He was in good health and, by all accounts, had the prospect of many productive years ahead of him. These were highly relevant considerations which ought to have attracted a more generous award under the global sum approach. 5. While I agree that the multiplier approach would have been speculative in the circumstances of this case, I am equally persuaded that the global award of Ksh.1,200,000/- fell on the lower side and did not adequately compensate the deceased’s dependants for the pecuniary loss they suffered. In my considered view, the learned trial Magistrate thereby arrived at an award that constituted an erroneous estimate of damages and thereby invited appellate interference. 6. Doing the best I can in the circumstances, and taking into account the deceased’s youthful age, his family responsibilities, his life expectancy and inflationary trends, I consider that a global award of Ksh.2,000,000/- for loss of dependency represents a fair, reasonable and just compensation. 7. Consequently, while I uphold the learned trial Magistrate’s decision to adopt the global sum approach, I set aside the award of Ksh.1,200,000/- for loss of dependency and substitute it with an award of Ksh.2,000,000/- under that head. 8. With regard to the fourth issue for determination, which is whether there exists any basis for this Court to interfere with the judgement of the trial court, the position in law is that an appellate court is vested with the mandate to re-evaluate the evidence on record in order to determine whether the findings and conclusions reached by the trial court ought to be upheld. 9. While that jurisdiction is exercised with due restraint, the appellate court will readily interfere where the impugned findings are unsupported by the evidence, where the trial court failed to properly appreciate the weight or effect of the evidence adduced, or where it is demonstrated that the trial court plainly erred in its conclusions. 10. Applying those principles to the present appeal, I have found that the learned trial Magistrate fell into error in three material respects. First, she erred in apportioning liability equally between the parties despite the evidence on record establishing, on a balance of probabilities, that the Respondent’s driver was wholly responsible for the occurrence of the accident. Secondly, she misdirected herself in law by declining to award damages for loss of consortium after relying on an earlier decision of the Court of Appeal, notwithstanding the later decision in ***Salvatore De Luca*** (supra), which recognized the availability of such damages where a spouse dies as a result of another’s tortious conduct. Thirdly, although the learned trial Magistrate correctly adopted the global sum approach in assessing damages for loss of dependency, she arrived at an award that was inordinately low in the circumstances of this case, thereby warranting appellate intervention. 11. Save for the foregoing, I find no fault with the trial court’s awards under the heads of pain and suffering, loss of expectation of life and special damages. Those awards were based on sound legal principles, were supported by the evidence on record and have not been shown to have been founded on any error of law or principle. Consequently, they merit no interference. 12. It therefore follows that the appeal substantially succeeds. The impugned judgement cannot be allowed to stand in its entirety because it is tainted by errors both of law and of fact on the issues of liability, loss of consortium and the quantum awarded for loss of dependency. This Court is therefore obliged to interfere to the extent necessary to give effect to the law and the evidence on record. 13. The fifth and final issue concerns costs. The general principle governing the award of costs is codified in *Section 27(1)* of the *Civil Procedure Act,* which provides that costs follow the event unless the court, for good reason, orders otherwise. Having substantially succeeded in this appeal, there is no reason to deprive the Appellant of the costs thereof. 14. **DISPOSITION.** 15. In the result, and for the foregoing reasons, I find that the appeal is meritorious and is hereby allowed. Accordingly, I make the following orders: 1. **The appeal is hereby allowed.** 2. **The judgement and decree of the Senior Resident Magistrate delivered on 31st October, 2023 are hereby set aside to the extent indicated in this judgement.** 3. **The finding apportioning liability at the ratio of 50:50 is hereby set aside and substituted with a finding that the Respondent was 100% liable for the occurrence of the accident.** 4. **The dismissal of the award under the head of loss of consortium is hereby substituted with an award under the same head of Ksh.100,000/-.** 5. **The award under the head of loss of dependency of Ksh.1,200,000/- is hereby set aside and substituted with an award of Ksh.2,000,000/-.** 6. **The awards made by the trial court under the heads of pain and suffering (Ksh.100,000/-), loss of expectation of life (Ksh.100,000/-) and special damages (Ksh.158,380/-) are hereby upheld.** 7. **The awards under the heads of pain and suffering, loss of expectation of life, loss of dependency and loss of consortium shall attract interest at court rates from the date of the judgement of the trial court until payment in full.** 8. **The award of special damages shall attract interest at court rates from the date of filing suit until payment in full.** 9. **The Appellant shall have the costs of the suit before the trial court and the costs of this appeal together with interest thereon as provided by law.** 16. It is so ordered. 17. This file is hereby closed. DELIVERED (virtually), DATED & SIGNED this 15th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR APPELLANT: **Mr. Ngunjiri.** FOR RESPONDENT: **Ms. Mugwe.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.** **Ms. Mugwe:** I pray for 30 days stay of execution. **Mr. Ngunjiri:** No objection. **Court:** There shall be stay of execution for 30 days. **JOE M. OMIDO** **JUDGE**