https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10336

Tergat Tea Factory v Hambah (Suing as the Administrator of the Estate of Samson Omondi Ouma) (Civil Appeal E237 of 2024) [2026] KEHC 10336 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10336 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E237 of 2024 LM Wachira, J July 10, 2026 Between Tergat Tea Factory Appellant and John Otieno Hambah (Suing as the Administrator of the Estate of Samson Omondi Ouma) Respondent (Being an Appeal from the Judgment and Decree of Honourable L.N. KINIALE S.P.M. delivered on 24th October, 2024 In Nyando CMCC No. 58 of 2011) Judgment Introduction 1.This is an Appeal from the Judgment of Hon. Kiniale delivered on the 24th October, 2024 in Nyando CMCC 58 of 2011. The subject of the Appeal is a road traffic accident that occurred on the 9th August, 2009 at Kolweny along Kisumu Homabay road involving motor vehicle Registration Number KBD 148W in which the deceased was a passenger and motor vehicle registration number KAA 874P that was driven by the 2nd Respondent (David Kirwa) and registered in the name of the Appellant herein. 2.The trial Magistrate heard the matter and found the 1st and 2nd Defendants jointly and severally liable for the fatal injuries sustained by the deceased. 3.The Appellant being dissatisfied with the decision of the trial court filed a Memorandum of Appeal on the following grounds:-i.That the learned trial magistrate erred in law and in fact in failing to take into account the totality of the evidence on record thus arriving at a wrong decision on the issue of liability for the accident.ii.That the learned trial magistrate erred in law and in fact in solely deciding the case against the appellant in view of the evidence on record.iii.That the learned trial magistrate erred in law and in fact in failing to take into account the totality of the evidence on record thus arriving at a wrong decision on the issue of ownership of the motor vehicle registration no. KAA 874P at the time of the accident.iv.That the learned trial magistrate erred in law and in fact in failing to apportion liability to the 2nd Respondent in view of evidence on record.v.That the learned trial magistrate erred in law and in fact in awarding damages which were excessive in the circumstances.vi.That the learned trial magistrate erred in law and in fact by failing to consider the submissions of the Appellant. 4.The Appellant therefore prayed that the court sets aside the Judgment of the trial court and allows the Appeal or on a without prejudice basis, that the court finds that the 2nd Respondent was liable for the accident. Trial Court Evidence 5.The Evidence from the trial court is that the deceased was a passenger in motor vehicle registration number KBD 148W. That the motor vehicle registration number KAA 874P was carelessly driven and it rammed into KBD 148W as a result of which the Deceased suffered fatal injuries. 6.PW2 was an eye witness while PW3 was the police officer. Both witnesses confirmed the occurrence of the accident and blamed the driver of Motor vehicle Registration number KAA 874P for the accident. A police abstract was produced in court indicating that the driver – 2nd Respondent was charged with the offence of causing death by dangerous driving and was convicted and fined Kshs.20,000/-. A copy of records was also produced in court showing that the vehicle was registered in the name of the Appellant herein. 7.The Appellant on his part called one witness who only testified as to the ownership of the motor vehicle KAA 874P. According to the Appellant, the vehicle had been sold to a third party and he had a sale agreement. On that basis the Appellant denied liability. Submissions by the Appellant 8.The Appellant submitted that the trial court had erred in failing to find that the 1st Respondent had not proved that the offending motor vehicle had been sold and therefore did not belong to them. They submitted that they had availed evidence that the vehicle was under the control of a 3rd Party. 9.In those circumstances, the Appellant urged the court to find that the trial court had erred and set aside the judgement on liability. 10.On quantum, the Appellant submitted that the general damages awarded by the trial court were excessive. They urged the court to review the same to Kshs.10,000/- for pain and suffering, Kshs.50,000/- for loss of expectation of life, a global sum of Kshs.700,000/- for loss of dependency and Kshs.70,200 for special damages. Submissions by the 1st Respondent 11.On the other hand, the 1st Respondent submitted that the trial magistrate did not err in the judgment. That there was evidence of the occurrence of the accident and the copy of records shown the Appellant as the registered owner of the offending motor vehicle. Indeed, the driver who was the 1st Defendant in the trial court, was found guilty for the offence of Causing death by dangerous driving and was accordingly convicted. 12.The 1st Respondent urged the court not to interfere with the finding of the trial Magistrate. The 2nd Respondent did not file any submission. He also had not entered appearance in the trial court and there was an interlocutory judgement entered against him. Analysis and Determination 13.This being the first Appellate court, its duty is as summarized by the Court of Appeal in Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123: which is:- "… to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ 14.Having considered the appeal, the submissions in support and the opposing submissions, I frame the following issues for determination: -i.Whether the Appellant was liable for the accident.ii.Whether the general damages awarded to the 1st Respondent were excessive in the circumstances. Liability 15.The Trial court found the Appellant and the 2nd Respondent jointly and severally liable for the accident. I have taken my time to evaluate the lower court file and the evidence tendered therein. It is not in dispute that the Appellant was the registered owner of motor vehicle registration number KAA 874P. A copy of records was availed and it confirms that the Appellant is the owner of the vehicle. 16.The Appellant also does not dispute that the vehicle was involved in the accident and the 1st Respondent was a victim in the said accident. The Appellant’s only contention is that it sold the vehicle to a 3rd Party and therefore asked the court to set aside the Judgment of the trial court in its entirety or in the alternative apportion liability to the 2nd Respondent. (David Kirwa). 17.It is trite law that an Appellate court may only interfere with a decision of a trial court if the same was arrived at contrary to the evidence on record. In Mahendra M. Malde vs George M. Angira - Civil Appeal No. 12 of 1981, it was held that “...apportionment of blame is an exercise of discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle”. 18.In the instant case the trial Magistrate considered the fact that there was a copy of records indicating the Appellant as the registered owner of the motor vehicle in question. The court also considered the issue of the vehicle having been sold to a 3rd Party, and concluded that it was upon the Appellant herein to have joined to the proceedings the 3rd Party who is said to have bought the vehicle since they were the ones aware of the contract of sale. The 1st Respondent had availed evidence of ownership. 19.In those circumstances my finding is that the trial court had exercised its discretion and found the Appellant and the 2nd Respondent jointly and severally liable, and no reason has been given as to why this court should interfere with that finding. 20.In any event, the argument of the Appellant is that they were not liable because they are not the owners of the offending motor vehicle. It was for them to avail the owner of the vehicle and in fact that is why a 3rd Party notice was issued by the trial court. However, the Notice was never served on the supposed 3rd Party and no explanation was given as to why it wasn’t served. 21.Under Section 109 of the Evidence Act, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 22.It is the Appellant who introduced the issue of sale and it wasupon them to provide sufficient evidence that indeed the vehicle had been sold and explain why ownership had not passed to the alleged buyer. My finding is that in the circumstances, the Appellant cannot escape liability and it is upon them to follow up with the alleged 3rd Party to indemnify them for the loss they may suffer in meeting the claim herein. 23.I find that the trial Magistrate did not err in finding the Appellant and the 2nd Respondent jointly and severally liable for the fatal injuries suffered by the deceased. Quantum 24.I have considered the evidence on record and the submissions by the parties. It is trite law that this court may not interfere with an award on damages unless a certain criterion is met. In the case of Elizabeth Mumbi Kinyua vs. Samuel Wanjohi Murage [2024] eKLR the court held that for it to interfere with the award it must ascertain that trial court applied irrelevant factors or omitted relevant factors; that the award is so high as to amount to an erroneous assessment of damages and finally that the award is simply not justified from the evidence. This court will thus exercise caution before interfering with an award by the trial court. 25.The Appellant in the present instant submits generally that the award is high and seeks a review. The Appellant also seeks to have the loss of dependency awarded as a global sum without any legal argument to support the review. I have considered this submission alongside the judgment delivered by the trial Magistrate. The trial Magistrate took her time and considered the age of the deceased, how much she was earning per month at the time she met her death, and applied a dependency ratio because the deceased had dependents. 26.I find no reason of interfering with the award given by the trial court and my finding is that the trial court did not err in the assessment of general damages for pain and suffering, loss expectation of life and dependency. 27.There is no dispute on the special damages, so I will not comment on the same. 26.The upshot of the matter is that the Appeal herein lacks merit and the same is dismissed with costs to the 1st Respondent. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys – Court AssistantMiss Odhiambo for Mr Nyachiro for the Appellant.N/A for stausi & Co Advocates for the Respondent.