https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6979

Thungu & another v Otieno (Suing as the Legal Representative of the Estate of Mary Anne Auma Ohana (Deceased)) (Civil Appeal E008 of 2025) [2026] KEHC 6979 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 6979 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E008 of 2025 DK Kemei, J May 22, 2026 Between William Thungu 1st Appellant Eldoret Express Bus 2nd Appellant and James Ohana Otieno (Suing as the Legal Representative of the Estate of Mary Anne Auma Ohana (Deceased)) Respondent (Being an appeal against the Judgment and decree of Hon. C. Maiyo (RM) in Siaya CMCC NO. E064 of 2022 delivered on 23/10/2024) Judgment 1.The appeal herein arises from the Judgment/Decree of Hon O. Maiyo (PM) dated 23/10/24 in Siaya CMCC NO. E064 of 2023. The Court therein held the Appellants wholly liable at 100% for the accident and awarded general damages of 30,000/= for pain and suffering, 100,000/= for loss of expectation of life, 900,000/= for loss of dependency and those costs of the suit were awarded to the Respondent. 2.The appellants were aggrieved and duly filed a memorandum of appeal dated 5/2/2025 wherein they raised the following grounds of appeal namely.i.That the learned trial magistrate erred in fact and in law by apportioning 100% liability to the Appellants in favour of the Respondent which was against the weight of the evidenceii.That the learned trial magistrate exercised her discretion in making her findings on liability wrongly by not acting cautiously on the weight of the evidence that was before the court.iii.That the learned trial magistrate misdirected herself by relying on wrong principles when assessing damages awarded to the Respondent.iv.That the learned trial magistrate erred in law and fact in awarding loss of expectation of life of Ksh. 100,000/- an award that was excessive in the circumstances.v.That the learned trial magistrate erred in law and fact in awarding loss of dependency of Kshs 900,000/= an award which was excessive in the circumstancesvi)That the learned trial magistrate erred in law and in fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in lawvii)That the learned trial magistrate erred and misdirected herself by ignoring the submissions on record hence arriving at a wrong decision in awarding damagesviii)That the learned trial magistrate erred in law and in fact in failing to pay regard to the Defendants submissions that were guiding on the amount of quantum that is appropriate and applicable.ix)That the learned trial magistrate erred in law by exercising her discretion on assessment of quantum with judicious.x)That the learned trial magistrate erred in law and in fact in failing to appreciate and/or to give proper weight to the evidence adduced by Appellants/Defendants and as a result arrived at an unjustified decision on quantum.Reasons Wherefore the Appellant prays that the appeal be allowed and the decree be set aside and that this court this court do re-assess the evidence on record on liability and quantum and to award its own decision. That the Appellants be awarded costs of the appeal. 3.This being the first appellate court its duty is as well spelt out namely to re-evaluate the evidence tendered before the trial court and to arrive at its own independent conclusion. The court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Co. Ltd E1968 EA 123. 4.The Respondent had lodged suit vide a plaint dated 15/9/2022 wherein he pleaded that the deceased was hit by the Appellants m/v KCW 084E causing her fatal injuries and prayed for general damages under the Law Reform Act and Fatal Accidents Act. The Respondent pleaded particulars of negligence on the part of the Appellants. The Appellants filed a defence dated 31/10/2022 wherein they denied the particulars of negligence attributed to them and maintained that the deceased was solely to blame for the accident and duly pleaded particulars of negligence 5.The trial commenced in earnest on 10/6/24. 6.James Otieno Otieno (PW1) testified that the deceased was his child who died on 10/5/23 and was then aged 5 years old, and was yet to be enrolled in school. He adopted his statement dated 27/9/22 as his evidence in chief. He produced a copy of his ID card, death certificate, Chief’s letter, post mortem, demand notice as exhibits. He also identified the police abstract. He sought for judgement as prayed.On cross-examination, he stated inter alia; that he did not witness the accident; that the child was in company of four other children when the accident took place; that he did not leave the child unsupervised; that the scene did not have a zebra crossing; that he had not been called to testify in a traffic case; that he could not know what the deceased could have become in the future; that the police abstract indicated that the matter was pending under investigations (PUI). 7.No. 10426 Pc Belvin Simiyu (PW2) produced the police abstract as exhibit No. 5. On cross-examination, he stated inter alia; that he was not the investigating officer in the matter; that he had not produced sketch maps to confirm point of impact; that the minor was abruptly crossing from right to the left; that the minor was not accompanied by any adult; that there was no zebra crossing at the scene; that he was not sure if the driver was charged with any traffic offence; that he could not state if the driver was to blame for the accident as the police abstract indicated that it was pending under investigations (PUI). 8.James Juma Ayub (PW3) testified that he witnessed the accident. He adopted his witness statement dated 27/9/24 as his evidence in chief. That the bus was from Nyadhorera area heading towards Siaya direction. That the deceased was crossing the road. That the child fell down while almost crossing the road. That the bus stopped fifty (50) metres from the scene as it had been moving quite fast and was then competing with Climax Coaches bus. That the bus did not hoot at all. 9.On cross-examination, he stated inter alia; that the vehicle was heading to Nairobi; that the contents of his statement are true; that he was seated about five meters from the road; that there were children at the time without an adult accompanying them; that the children were crossing from the right side as one faced Nairobi direction; that the other boy had crossed while the sister was hit by the bus. 10.That marked the close of the Respondent’s case. 11.Michael Otieno Otieno (DW1) testified that he was the bus driver at the time of the accident and duly adopted his witness statement dated 10/7/22. That he blames the parent and the child for the accident because the child failed to see the road clearly and that the parent did not guide the child.On cross examination, he stated inter alia; that he had not seen the child and only heard the impact; that the child fell on the left side of the road; that he was driving at a speed of 30 km/hr; that there was no adult at the scene of the accident and that there were no houses or a verandah; that there was no vehicle following him from behind; that the child hit the left side of the vehicle (between the rear and front wheel) and who fell on the tarmac; that he did not see anyone on the left side of the road. 12.The Appellants closed their case. 13.The learned trial magistrate later considered the evidence and came up with the impugned Judgement. 14.The appeal was canvassed by way of written submissions. None of the Parties complied. 15.I have given due consideration to the record of appeal. The issue for determination is whether the trial magistrate applied the correct principles in arriving at the apportionment of liability and assessment of quantum of damages under the various heads of damages. 16.As regards the issue of liability, the Appellants contend that the trial court erred when it apportioned 100% liability against them, yet the Respondent was solely responsible for the accident. On the other hand, the Respondent maintains that it was the Appellants’ driver who caused the accident by hitting the deceased who was then aged 5 years old and crossing the road. 17.The legal burden of proof was on the Respondent to prove his claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove his assertions pleaded in his Plaint dated 15/9/2022. Section 107(1) of the Evidence Act, Cap 80 provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 18.However, the burden may shift to the Defendant (Appellant) to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334. The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR, that:“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR.’’ 19.The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, where the Court held that:Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say:“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 20.Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526 stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.” 21.The record of appeal, especially on the evidence of James Juma Ayub (PW3), is that the Appellants’ bus registration KCW 084E was being driven at high speed and that the driver did not even hoot to alert the children who were heading to a Posho mill, and that the young child was run over and died on the spot. He further added that the bus driver stopped at a distance of fifty metres away from the scene. He also stated that the bus driver was competing with another bus belonging to Climax Coaches. That the children were then alone without an adult accompanying them. It was the opinion of the said witness that the driver of the bus was to blame for the accident as he failed to observe the highway code of traffic, and that the driver of the bus was charged with an offence of causing death by dangerous driving and that the case was still pending under investigation. The evidence of the Respondent was corroborated by that of PW2. Since the deceased was hit by the bus on the front, it is ipso facto proof that the bus driver must have been driving at high speed and failed to keep distance and to have a proper look out for other road users. Indeed, the evidence of PW2 who was the eyewitness is that the driver was driving at high speed and did not even hoot or apply brakes and that it finally stopped at a distance of 50 metres away from the scene. I find that had the bus driver been driving carefully and at reasonable speed, the accident would have been avoided. The Appellants called the bus driver (DW1) who stated that he was driving at a speed of 30 km/hr at the time and that the victim hit his vehicle from the left and was only alerted by the impact. I find the version of the driver to be preposterous in view of the fact had he been driving at the speed of 30km/hr he would have easily braked and brought the bus easily to a stop. However, the fact that he had to stop 50 metres away was clear proof that he was driving at high speed. I find that the Appellants’ driver failed to maintain a safe distance in accordance with the Highway Code of Traffic. Even though the Appellants have claimed that the child was not accompanied by a guardian or parent, it transpired from the evidence of PW2 that there were other children who were with the deceased at the time. The Appellants have sought to have the deceased blamed for the accident as the area did not have a zebra crossing. The driver was expected to have a proper look out as he cruised on the highway and ensure that he observed the Highway Code of Traffic. The Appellant’s driver’s version that he only heard of an impact on his vehicle is clear evidence that he had not been keen to have a proper lookout of the surrounding as he cruised by. Even though the matter was pending under investigation, there is no doubt that the Appellant’s driver owed a duty of care to the deceased who was a child of tender age. In Andrews Vs Free borough [1960] 2 ALL ER 721 in which involved a child aged 8 years who stepped onto a kerb into the path of an oncoming car was held not to have contributed to the accident and that no contributory negligence would be attributed to such child due to her tender age. Again, in Gough Vs Thorne [1966] 1 WLR 1389, the Appellate Court of England declined to apportion liability or negligence to a girl aged thirteen and half years old who was knocked down while crossing the road. Lord Denning stated thus:“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence, if he or she is of such an age to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her. He or she is not to be found guilty unless he or she is blameworthy.’’The circumstances obtaining at the time did not absolve the Appellants’ driver from blame as he hit a 5 year old child. Iam unable to agree with the Appellant’s contention that the decased should shoulder part of the blame. I attribute the Appellants wholly in damages to the Respondent. Hence, the finding by the learned trial magistrate on liability was quite sound and must be upheld. 22.As regards the issue of quantum of damages, it is trite that in addressing the trial court’s duty in assessment of damages, regard must be had to the principles on assessment of damages. The Court of Appeal in the case of Kimatu Mbuvi t/a Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko (2006) KECA 130 held:“It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated in H. West & Son Ltd v Shephard [1964] AC 326 at page 353:“The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”The Court of Appeal in Butt vs. Khan [1981] KLR 349, held that an appellate court will only interfere with the award of damages where it is shown that the trial court took into consideration an irrelevant fact or that the sum awarded is inordinately low or high that it must be an erroneous estimate of the damages or that a wrong principle of law was applied in awarding the damages 23.It is noted that the Appellants have challenged the award of damages by the trial court. The learned trial magistrate awarded Kshs 50,000/ for pain and suffering, while she awarded Kshs 100,000/ for loss of expectation of life and went ahead to award Kshs 800,000/ for loss of dependency. As regards the award on pain and suffering, it is noted that the deceased died on impact and thus the excruciating pain felt must have been fleeting. The conventional sums awarded under this head of damages ranges from 10,000-100,000/ depending on the period the victim was in before breathing his/her last. I find the sum of 50,000/ was reasonable in the circumstances. As regards the award on loss of expectation of life, the conventional sums have always been within that range and hence I find the same to be reasonable in the circumstances. As regards the award on loss of dependency, it is noted that the deceased was aged 5 years and yet to enroll in school. The plaint indicated that the girl was bright and supported her family’s errands and that her death had robbed them of great source of hope and health. However, what is not in doubt is that her parents at the time could not empirically confirm what their daughter would have become in life had she lived her life to the fullest. The learned trial magistrate relied on the decision of Gikonyo J in Daniel Mwangi Kememi & 2 Others Vs JGM & Another [2016] eKLR where the learned judge awarded Kshs 1,000,000/ as general damages for loss of dependency where the deceased was a child aged 9 years old and a bright student who always held position one in her class and who expressed a desire to become a doctor upon completion of her education. The deceased herein was aged 5 years old and yet to be enrolled in school. It is not in dispute that every parent would wish to have their children succeed in life after school. However, it is not possible to guess what the deceased would have become had she not died. The court must also take into account the vicissitudes and vagaries of life when computing the award. I find the award of Kshs 800,000/ for loss on dependency was not excessive in the circumstances. 24.It is noted that the learned trial magistrate failed to deduct the sum awarded for loss of expectation of life in order to ensure that there was no double compensation. Consequently, the Appellants’ appeal succeeds to that extent. 25.In view of the foregoing observations, it is my finding that the appeal on liability lacks merit and is dismissed but the appeal on quantum partly succeeds. The total awards arrived at by the trial court is hereby set aside and are subjected to a deduction of Kshs 100,000/ (loss of expectation of life) to avoid double compensation and thereby to leave the sums of Kshs 850,000/ for pain and suffering and loss on dependency plus costs of the suit. Each party to bear the costs of the appeal. DATED AND DELIVERED AT SIAYA, THIS 22ND DAY OF MAY 2026.D. KEMEIJUDGEIn the presence of :M/s Ngome.................................for AppellantsM/s Odhiambo..................................for RespondentM/s Mourine......................................Court Assistant