https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11529

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CIVIL APPEAL NO. E019 OF 2025** **TAHIR SHEIKH SAID GRAIN MILLERS LTD…………….…..…………....…..APPELLANT** **-VERSUS-** **JOSHUA MILO MATHUKU** **SUSAN MWIKALI MILO (**Suing as the legal representatives of the estate of **PATRICK MATHUKU MILO – DECEASED …………………………...…RESPONDENTS** ***(Appeal from the Judgment of Hon. O.A Nyandusi (RM) in the Senior Principal Magistrate’s Court at Makindu, Civil Case No.536 of 2015, delivered on 18th March 2025)*** **JUDGMENT** 1. The Respondents filed a suit in the lower court seeking General Damages under the **Law Reform Act *(LRA)*** **and the Fatal Accidents Act *(FAA)*** on behalf of the Estate ofPatrick Mathuku Milopursuant to a Fatal Road Accident which occurred on 26/03/2015 *(*material day*)* along the Nairobi-Mombasa Road near Sultan Hamud. It was averred that the deceased was a lawful pedestrian standing off the said road when the Appellant’s motor vehicle KBY 916J ZE 6365 was driven so carelessly and negligently that it lost control, left the road and knocked the deceased thus injuring him fatally. The Respondents also prayed for Special Damages of Kshs. 173,790/=, costs of the suit and interest. 2. The Appellant filed a Statement of Defence, denying each and every allegation of fact in the plaint and called for strict proof thereof. The Appellant admitted the description of parties and fact of being the registered and beneficial owner of motor vehicle KBY 916J ZE 6365 *(*the trailer*).* The Appellant averred that the said accident was solely caused or substantially contributed to by the deceased’s own negligence. 3. After the preliminaries; the matter proceeded for hearing and judgment was eventually delivered. The learned trial magistrate found the Appellant 100% liable and assessed damages as follows; Pain & Suffering……………………………….Kshs 50,000/= Loss of Expectation of Life………………..…Kshs. 100,000/= Loss of Dependency……………….……...Kshs. 1,500,000/= Special Damages………………….……..…. Kshs. 166,690/= **Total…………………………..………...…. Kshs. 1,816, 690/=** 1. Aggrieved by the entire judgment, the Appellant filed this appeal and raised the following grounds; 2. **The learned trial magistrate erred in law and fact in making a finding of negligence against the Appellant without evidence and in holding that the Respondents had proved their case on liability on a balance of probability.** 3. **The learned trial magistrate erred in law in making findings on negligence based on extraneous issues and or hearsay evidence and in failing to analyze, evaluate and weigh the evidence against the rules of evidence before making any findings based on it.** 4. **That, the assessment for loss of dependency, loss of expectation of life and pain & suffering were inordinately high as to represent an entirely erroneous estimate.** 5. **The learned trial magistrate erred in assessing damages under the Law Reform Act and under the Fatal Accidents Act by failing to apply the correct principles in determining the same hence arrived at an erroneous estimate of damages.** 6. **The learned trial magistrate made an error in law on the issue of time Limitation under the Limitation of Actions Act, Law Reform Act and Fatal Accidents Act.** 7. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions. 8. With regard to liability, it was submitted that the Respondent called only two witnesses who did not testify on occurrence, blameworthiness and causation of the accident. That, without the Police Abstract and eye witness, there is no evidence that the accident occurred or how it occurred. Reliance was placed on the case of **Mbuthia Macharia -vs- Annah Mutua Ndwiza & Anor (2017) eKLR** for the submission that the evidential burden did not shift to the Appellant to controvert anything. Further reliance was placed on the case of **Peter Kanithi Kimunyu -vs- Aden Guyo Haro (2014) eKLR** for the submission that a police abstract is not proof of the occurrence of an accident but of the fact that occurrence of an accident was reported at a particular police station. 9. Reliance was also placed on the case of **Wayo & Anor (Suing on behalf of the estate of Benjamin Wayo Sailoki) -vs- Bwire (Civil Appeal E033 of 2022) [2025] KECA 866 (KLR) (7 March 2025) (Judgment)** for the submission that the evidence of PW1 and PW2 on liability was indirect and of zero probative value. 10. It was submitted that the trial court misapprehended the evidence by stating that the police abstract was produced in evidence. That, the trial court was on the right tangent by discrediting the evidence of PW2 hence the question that arises is which evidence the trial court relied on to find the Appellant liable. That, the trial court also observed that the Plaintiffs never led any evidence to enlighten the court on the issue of negligence but instead of dismissing the suit for want of proof, the burden of proof was shifted to the Appellant. Reliance was placed on the case of **Charterhouse Bank Ltd (Under Statutory management) -vs- Frank N. Kamau (2016) eKLR** for the submission that the burden of rebuttal only shifts when the claimant has led admissible credible evidence. 11. As to whether the award of Kshs. 1,500,000/= was warranted, it was submitted that dependency was not proved as the deceased was 16-years-old who was dependent on parents. Reliance was further placed on the case of **Nzuki Maithya & Anor (Suing as the Legal Representatives of the estate of Joseph Wambua (Civil Appeal E024 of 2022) [2024] KEHC 2752 KLR (11 March 2024) (Judgment)** where an award of Kshs. 1,000,000/= for loss of dependency was upheld for a 17-year-old deceased who was a student. 12. The court was further referred to the case of **Tanui -vs-Siele & Anor (2024) KEHC 2776 (KLR)** where an award of Kshs. 1,400,000/= was substituted with 1,200,000/= for a 16-year-old deceased who was still in school. 13. It was submitted that the trial magistrate acted on wrong principles by awarding Kshs. 1,500,000/= and blaming it on inflation. That, the judgment was delivered on 18/03/2025 which was barely one year after the cited cases were delivered and the trial magistrate did not distinguish as to why he opted for the decision in **Tanui -vs-Siele & Anor (supra)** and not **Nzuki Maithya & Anor (supra).** It was contended that an award of Kshs. 1,000,000/= is reasonable in this case. 14. The appeal, against the awards on loss of expectation of life and pain & suffering, was withdrawn. 15. With regard to liability, it was submitted that the evidence on liability was properly evaluated and a correct finding on liability arrived at. That, an Appellate Court ought not to interfere with findings of fact by a trial court unless such findings are based on no evidence, are founded on misapprehension of evidence or where the trial court acted on wrong principles. 16. It was submitted that contrary to the Appellant’s argument, the law does not require that negligence in Road Traffic Accident be proved only through direct eye witness testimony. That, the same can be inferred from circumstantial evidence and totality of evidence placed before the court. Reliance was placed on the case of **Mbithi & Anor -vs- Musembi & Anor (Suing as the Legal Administrators of the estate of Joseph Munyao Kikuvi) [2026] KEHC 6481 (KLR)** for the submission that where a vehicle leaves its proper lane or loses control and causes injury, negligence may be inferred unless satisfactorily explained by the Defendant. It was contended that the Appellant did not rebut the Respondent’s evidence or offer any alternative account as to how the accident occurred. 17. Reference was made to **Sections 107, 108 and 112 of the Evidence Act** for the submission that the evidential burden shifted to the Appellant who failed to call the driver, failed to produce any investigation report and failed to produce any evidence despite being in possession of material facts concerning the accident. Reliance was placed on the case of **Bukenya & Others -vs- Uganda (1972) EA 549** for the submission that where a party fails to call a material witness without explanation, the court may infer that the evidence of such witness would have been adverse to that party. 18. It was submitted that the Police Abstract, which was properly admitted, constituted *prima facie* evidence of occurrence of the accident and involvement of the Appellant’s motor vehicle. That, the authorities cited by the Appellant are distinguishable because credible evidence was adduced without any rebuttal whatsoever from the defence. 19. As to whether the award for loss of dependency was excessive, it was submitted that the fact that the deceased herein was a student aged 16 years does not negate dependency. That, Kenyan Courts have consistently recognized that parents are entitled to compensation for loss of dependency. Reliance was placed on the Court of Appeal decision in **Sheikh Mushtaq Hassan -vs- Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457** for the submission that African parents legitimately expect support from their children in future. 20. Further reliance was placed on **Tanui -vs- Siele & Anor *(supra)*** where an award of Kshs. 1,200,000/= for loss of dependency was made for a 16-year-old student. That, in consideration of inflation and changing economic realities, the award of Kshs. 1,500,000/= cannot be said to be excessive. That, the trial magistrate considered the comparable authorities placed before the court and exercised discretion judiciously. 21. It is now settled that the duty of a First Appellate Court isto analyze and re-evaluate the evidence on record in order to reach its own conclusion bearing in mind that it did not have the benefit of seeing or hearing the witnesses. **[Selle -vs- Associated Motor Boat Company (1969) E.A 123].** 22. Having looked at the grounds of appeal, the rival submissions and entire record, it is my considered view that the only issues for determination are; 23. **Whether the finding on liability should be disturbed.** 24. **Whether the award on loss of dependency should be disturbed.** 25. PW1Joshua Milo Mathuku adopted his statement as his evidence-in-chief. He stated that he is the deceased’s father and that on 26/03/2015, the deceased was headed to visit his aunt when he was knocked down by a trailer while standing off the along Mombasa-Nairobi Road. On cross-examination, he agreed that he did not witness the accident. 26. PW2was P.C David Okik from Sultan Hamud Traffic Base. He made reference to an abstract dated 25/03/2025 issued to Patrick Mathuku who was a pedestrian and fatally injured in a Road Traffic Accident that happened on 26/03/2015 at 2000hrs. That, the motor vehicle was KBX 916J ZE 6365, Make Mang. 27. It is evident that neither PW1 nor PW2 witnessed the occurrence of the accident. The Police Abstract was marked by PW1 as PMFI 7 but PW2 only made reference to it without producing it. As it is therefore, the Police Abstract is not part of the evidence on record. 28. Be that as it may, the Appellant admitted, in its defence, that an accident involving the trailer and the deceased occurred on the material day but denied the manner and style of occurrence stated in the plaint. The fact of the accident having occurred is therefore not in dispute but the Respondent still bore the burden of proving that the trailer was driven in a careless and negligent manner. 29. Without an eye witness, sketch map or any other independent evidence, this court is only sure that an accident occurred on the material day between the trailer and deceased but has no idea as to how it happened. Considering that the deceased was a pedestrian and the fact that the accident happened at night, it could very well be that he was crossing the road or standing off the road when the accident occurred and that the poor visibility of night time prevented the driver from seeing him in good time. This court has no idea as to whether the deceased adhered to the provisions of **Part 1 of the Highway Code** which, at **Regulation 6 and 7**, provides; **“6. Before you cross the road, stop at the curb, look right, look left and right again. Do not cross until the road is clear, then cross at right angles, keeping careful look-out all the time. If there is a refuge, stop on it and look again. On one-way traffic road, stop and look towards oncoming traffic before you cross.** **7. Do not cross unless you have a clear view of the road both ways. Take extra care near stationary vehicles or other obstructions, and whenever your view is limited.”** 1. In the case of **Patrick Mutie Kamau & Another -vs- Judy Wambui Ndurumo [1997] eKLR**, the Court of Appeal held that a pedestrian owes a duty to other Highway users to move with due care and follow the provisions of the Highway Code. 2. In apportioning 100% liability on the Appellant, the trial magistrate stated; **“Consequently, the court cannot rely on the testimony of PW2 which was secondary evidence nor the abstract as produced. It is my view that the burden shifted to the defendant to rebut the allegations by the plaintiffs which he failed. He did not call witnesses by simply stating that the company was declared insolvent. I note from the record that the statement of the driver had been filed. I do find that his testimony would have been critical to enlighten the court on the issue of negligence…since the Plaintiffs case remains unchallenged, I hold that the Defendant shall be held 100% liable.”** 1. The trial magistrate clearly misapprehended the evidence by finding that the burden shifted to the Appellant. There is no evidence to show that the deceased was hit while standing off the road or that the accident was caused by the carelessness and negligence of the trailer driver. The Appellant could only have been called upon to rebut if the Respondents had discharged their legal burden on a balance of probabilities. The **Halsbury’s Laws of England 4th Edition Volume 17** describe the legal burden as follows; **“The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.”** 1. From the foregoing and since it is not in dispute that the accident involved the trailer and the deceased, it is my considered view that both parties should be held liable. In the case of **Isabella Wanjiru Karangu -vs- Washington Malele; Civil Appeal No. 50 of 1981 [1983] KLR 142**, **Potter, JA** stated that: **“There can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. There is no reason for a pedestrian’s complete failure to see a motorist and vice versa….The doctrine of last opportunity is obsolete as no distinction can be drawn between negligence after seeing danger and negligence in not seeing it beforehand. The two causes of the accident cannot be severed and so the trial Judge was right to find both were at fault.”** 1. In this case, I am of the view that the Appellant’s driver was the one in possession of a lethal machine hence he should have been more careful and should bear the higher burden of 60% while the deceased bears 40%. 2. Awarding damages is largely an exercise of judicial discretion and the instances that would make an Appellate Court interfere with that discretion are well established. In **Butt -vs- Khan (1977)1KAR** it was held that; **“An appellate Court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.** 1. It was pleaded that the deceased was a 16-year-old High School Student who enjoyed a good, happy and vigorous life. That, his dependants were his parents. PW1 testified that he was the deceased’s father and that the deceased was in Form One but he could not remember what the deceased got in KCPE. He confirmed that the deceased had no wife or children and that he was dependent on his parents. 2. The Appellant’s argument is that dependency was not proved as the deceased was a 16-year-old child who was dependent on parents. **Section 4 (1)** **of the Fatal** **Accidents Act** recognizes that a parent is a dependant by providing that; **“Every action brought by virtue of the provisions of this** [**Act**](https://new.kenyalaw.org/akn/ke/act/1946/7) **shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused*,* and shall, subject to the provisions of section 7,be brought by and in the name of the executor or administrator of the person deceased*;* and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct”.** 1. Further, jurisprudence from our courts reveal that global awards are made for minors who are still in their parent’s care at the time of their death. The justification is that parents have a legitimate expectation that the said children will take care of them in their old age hence the need for compensation when the death of such child (ren) is caused by negligence. 2. In addition to the persuasive cases cited by the parties, there is the case of Onyango **& Anor (Suing as Legal Representatives of the Estate of Vincent Okoth Otieno-Deceased) -vs- Akoth (Civil Appeal E064 of 2024) [2025] KEHC 16563 (KLR) (14 November 2025) (Judgment)** which is equally persuasive, where the court (Kemei J) opined as follows; **“The legal principle of Stare decisis demands that similar claims ought to attract similar awards. Learned counsel for the Respondent has submitted that the deceased’s parents had already pre-deceased him and as such there should not be any issue of dependency at all. As at the time of filing the suit, it is clear that there were legal representatives who are believed to have been the deceased’s guardians as his parents had already passed on. These are the persons who had been taking care of him and meeting his school fees and needs and therefore as guardians, they assumed the role of parents and hence the issue of dependency ought to be considered. Indeed, all parents and guardians look up to their children to provide for them in old age. Hence, the guardians herein must be seen through that prism. I am therefore not persuaded by the Respondent’s counsel’s submission that the loss on dependency ought not to be interfered with. I am satisfied that the amount awarded by the learned trial magistrate was inordinately low as to represent an erroneous estimate of damages. It is highly likely that the deceased could have turned out successful after school and be in a position to help himself and his guardians. Guided by the above authorities and due to the inflationary trends, I find that the said award of Kshs. 300 000/= by the trial court was inordinately low. It is my considered view that an award of Kshs. 2,000, 000/= would be adequate compensation.”** 1. Consequently, it is my considered view that the award of Kshs. 1,500,000/= is within an acceptable range and should be upheld. 2. The Appeal against the awards on loss of expectation of life and pain & suffering was abandoned and the award on Special Damages was not contested. Consequently, the revised award should be; Pain & suffering……………………………….Kshs. 50,000/= Loss of expectation of life………………..…Kshs. 100,000/= Loss of dependency……………….……...Kshs. 1,500,000/= Special damages………………….……..…. Kshs. 166,690/= **Total…………………………..………...…. Kshs. 1,816, 690/=** Less 40%..................................................Kshs. 726, 676/= **Net Total…………………………..………..Kshs. 1,090, 014/=** 1. In view of the above holding, the appeal partly succeeds and partly fails to the extent stated above. As to costs, each shall bear own costs Dated, signed and delivered virtually this **23rd** day of **July 2026** **..........................................** **J.N.ONYIEGO** **JUDGE**