https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10630

Tugende Company Ltd v Ogola & another (Suing as administrators of the Estate of Evans Omondi Mahero) (Civil Appeal E061 of 2025) [2026] KEHC 10630 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10630 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E061 of 2025 DK Kemei, J July 17, 2026 Between Tugende Company Limited Appellant and Caroline Adhiambo Ogola And Jane Apondi Mahero (Suing As Administrators Of The Estate Of Evans Omondi Mahero) Respondent (Being an appeal from the judgement and resultant decree of the Chief Magistrate’s Court at Ukwala (Hon J.O Manasses (RM)) dated 29th July 2025 in Ukwala CMCC No. E039 of 2023) Judgment 1.This is a first appeal arising from the judgment and decree of the trial court delivered on 29th July 2025 by Hon. J.O. Manasses (RM) at the Ukwala Magistrate’s Court. The trial court found the Appellant 100% liable for a road traffic accident that occurred on 11th March 2023 and awarded the Respondents a global sum of Ksh 4,974,050/= plus interest and costs. 2.Aggrieved by the wholesale decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 26th August 2025 wherein they raised the following grounds of appeal namely; -a.That the learned trial Magistrate erred in law and in fact in failing to give a reason for the award of liability and quantum.b.That the learned Magistrate erred in law and fact in apportioning liability at 100% as against the Appellant.c.That the Honourable learned Magistrate erred in law in applying the wrong principles of law on standard of proof in civil cases.d.That the Honourable learned Magistrate erred in law in applying wrong principles of law in failing to find that parties are bound by their pleadings.e.That the Honourable learned Magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum.f.That the Honourable learned Magistrate erred in law and fact in relying on the letter of contract dated 26th July 2022.g.That the Honourable learned Magistrate erred in law and fact in failing to consider and properly evaluate the Respondent’s evidence.h.That the learned Magistrate misdirected himself by failing to consider and apply some weight to the submissions by the Appellant while writing up the judgment.i.That the learned Magistrate erred in law and in fact in awarding costs of the suit to the respondents. 3.This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123. 4.The Respondents, suing as the legal representatives and administrators of the Estate of Evans Omondi Mahero (the Deceased) had moved the trial court via a Plaint dated 2nd May 2023. They alleged that the Deceased was riding a motorcycle along the Kisumu-Busia Road when a vehicle owned by the Appellant negligently collided with him inflicting fatal injuries. 5.The Appellant filed its Statement of Defence dated 15th August 2023, categorically denying ownership of the offending vehicle, the occurrence of the accident and negligence. In the alternative, the Appellant pleaded contributory negligence on the part of the Deceased. 6.No.83153 Pc Michael Kasafiri (PW1) stated that he was a police officer attached to the Traffic Department and was the investigating officer assigned to the accident. He testified that the accident occurred on 11th March, 2023 along the Kisumu-Busia Road. According to his investigation, the incident was a head-on collision involving two motorcycles. The first motorcycle Registration Number KMGH 712D was being ridden by Evans Omondi Mahero (the Deceased). The second motorcycle, Registration Number KMFX 731X was allegedly owned by the Appellant. Under cross-examination, the witness admitted that despite recording in his statement that the rider of motorcycle KMFX 731X was to blame for the collision, no criminal charges were ever preferred against anyone arising from the accident. He further testified that the road where the accident occurred was wide measuring approximately 7 meters and was clear. However, he noted that it was raining at the material time and both motorcycle riders had been carrying pillion passengers. 7.Caroline Adhiambo Ogola (PW2) a widow and a co-administrator testified that she was the widow of the Deceased Evans Omondi Mahero and had brought the suit alongside Jane Apondi Mahero as the joint administrators of his estate. She stated that the Deceased was a family provider who left behind dependents, including herself and two daughters. Under cross-examination, the witness admitted that she did not produce a marriage certificate to prove her legal marriage to the Deceased. She further stated that she had left the birth certificates and birth notifications of the two subject children at home and consequently, she did not present any documented proof of their birth or existence to the court. 8.Daniel Opiyo Magero (PW3) introduced himself as the local Assistant Chief and testified that he knew the Deceased as a resident of his sub-location. He confirmed that he had authored a chief's letter dated 28th July 2023 introduced to support the family's claim of dependency. Under cross-examination, when pressed to verify the identity and existence of the family members listed, the witness explicitly stated on oath: "I confirm you cannot verify the existence of the two subject children." 9.Winnie Owuor Akello (PW4) testified that she was the manager of the Siaya County Club and was called to prove the income and employment of the Deceased. She produced an employment contract indicating a gross monthly salary of Ksh 28,000/= for an electrician. Under cross-examination, the witness conceded that the employment contract she produced was addressed to a person named "Lawrence Omondi". She further admitted that the contract itself was executed between the employer and "Evans Omondi Ohono," rather than the name "Evans Omondi Mahero" appearing on the court pleadings. She also confirmed that no official pay slips matching the Deceased's name were attached and that the stated gross income was subject to statutory deductions. 10.The Appellant chose not to call oral witness testimony instead relying entirely on its Statement of Defence dated 15th August 2023 and its legal submissions. Through its pleadings and arguments, the Appellant categorically denied ownership of the offending vehicle/motorcycle, denied that its driver or agent was negligent, and denied the occurrence of the accident itself. In the alternative, the Appellant argued that the accident was heavily contributed to by the negligence of the deceased rider. 11.The Appeal was canvassed by way of written submissions. It is noted that it is only the Appellant who have complied and filed their submissions. 12.The Appellant stated that the appeal contested both the liability and quantum determined by the trial court. The Appellant raised several distinct grounds of appeal from the Memorandum of Appeal dated 26th August 2025. Specifically, the Appellant contended that the learned magistrate erred by failing to provide any legal reasoning for the awards on liability and quantum and further erred by apportioning liability at 100% against the Appellant. The Appellant further asserted that the trial court applied incorrect legal principles regarding the standard of proof in civil cases and failed to uphold the principle that parties are strictly bound by their pleadings. 13.On quantum, the Appellant submitted that the trial magistrate relied on extraneous evidence specifically misdirecting himself by relying on a letter of contract dated 26th July 2022. Finally, the Appellant argued that the court failed to properly evaluate the Respondents' evidence, ignored the Appellant’s lower court submissions and erred in awarding the costs of the suit to the Respondents. Consequently, the Appellant urged the High Court to allow the appeal, set aside the judgment, review the awards downwards and grant them the costs of both courts. 14.Regarding the mandate of the first appellate court, the Appellant reminded the court that under Rule 29(1) of the Court’s rules, it is bound to re-appraise the evidence and draw its own independent inferences of fact as established in Selle & Another v. Associated Motor Boat Co. Limited [1986] EA 123. The Appellant strongly argued that the Deceased rider could not be entirely exonerated from liability. They pointed out that while the pleadings stated the Deceased's motorcycle collided with the Appellant's vehicle, there was no proof that the Deceased possessed the legal qualification or license to ride. The Appellant cited Section 30 and Section 103B of the Traffic Act arguing that operating a motorcycle on public roads without a valid driving license is illegal and disentitles a claimant from full relief. To support an apportionment of liability, the Appellant relied on Rentco East Africa Limited v. Dominic Mutua Ngonzi (2021) eKLR and Simba v. Langat (Civil Appeal 84 of 2021) [2024] KEHC 2110 (KLR). They argued that riding a motorcycle against traffic regulations, carrying pillion passengers or riding unlicensed constitutes reckless conduct and bare impunity that the court must condemn by reducing the claimant's liability share. They maintained that at the very least, a 70:30 ratio or a 50:50 split should be applied. 15.The Appellant submitted that the Respondents failed to call any eyewitnesses to explain the physical circumstances of the accident. They noted that the police abstract showed the matter was still under investigation rendering the investigating officer's (PW1) attempts to blame the Appellant inadmissible hearsay and speculative. In support, they cited Mutuku v. Toboso [2023] KEHC 581 (KLR) and Sally Kibii and Another v. Francis Ogaro [2012] eKLR. 16.The Appellant emphasized that the legal burden of proof rested entirely on the Respondents to establish specific particulars of negligence as held in Florence Rebecca Kalume v. Coastline Safaris & Another [1996] eKLR 17.The Appellant pointed out a critical flaw in the Respondents' case: the Plaint specifically alleged that a Tractor registration number KMFX 731X was driven negligently and at excessive speed, yet no evidence was led at trial to confirm that a tractor or any vehicle owned by the Appellant was involved in that manner. Citing Statpack Industries v. James Mbithi Munyao [2005] eKLR and Nzoia Sugar Company Limited v. David Nalyanya [2008] eKLR, the Appellant submitted that the mere occurrence of an injury or accident is not proof of negligence. The Appellant argued that because the evidence on record was incredibly scanty, the Respondents had failed to discharge their burden on a balance of probabilities under Sections 107 and 109 of the Evidence Act. 18.Addressing their own decision not to call witnesses at trial, the Appellant cited Margaret Wanjiru Ndirangu & 4 others v. Attorney General [2020] KECA 683 (KLR) to submit that a defendant's failure to testify does not automatically guarantee success for a plaintiff whose evidence has already been thoroughly discredited during cross-examination. 19.Turning to the assessment of damages for loss of dependency, the Appellant submitted that the trial court was not mandatorily bound to use the mathematical multiplier approach especially where clear documentary proof of earnings was lacking. They suggested that a global sum approach would be more appropriate under the circumstances citing Mwangi v. Arim (2022) eKLR. 20.Given that the Deceased was 30 years old, the Appellant contended that a global sum between Ksh 1,000,000/= and Ksh 1,300,000/= would be entirely sufficient for loss of dependency. They supported this valuation by citing comparable awards in John Macharia v. Josphat Muriungi Muguange (2020) eKLR and Antony Muthamia Ngurwe & another v. Jane Nkatha Kathurima [2020] KEHC 5598 (KLR). 21.In the alternative, if the court insisted on the multiplier approach, the Appellant submitted that the trial court's adoption of a straight 30-year multiplier was standardless and lacked judicial reasoning. The Appellant argued that a straight deduction from life expectancy fails to take into account the vagaries and vicissitudes of life such as illnesses and economic disruptions which demand a downward adjustment of the working years multiplier. 22.Having carefully considered the Memorandum of Appeal, the lower court record and the Appellant written submissions, I find that the singular overarching issue for determination is whether this appeal has merit. 23.The Appellant vehemently argued that the trial court ignored a fundamental tenet of civil litigation: parties are bound by their pleadings. In Paragraph 5 of the Plaint, the Respondents explicitly pleaded that the Appellant’s driver/agent negligently drove a "Tractor Registration Number KMFX 731X". However, the testimony of PW1 (PC Michael Kasafiri), the investigating traffic officer presented a radically different factual context. PW1 testified that the accident was a head-on collision between two motorcycles (Registration No. KMGH 712D ridden by the Deceased and Registration No. KMFX 731X allegedly owned by the Appellant). 24.It is trite law that a variance between material pleadings and the evidence adduced at trial is fatal unless cured by an amendment. The Respondents pleaded a collision involving a tractor, yet led evidence of a collision involving a motorcycle. Furthermore, looking at the evidence of negligence, PW1 acknowledged under cross-examination that despite blaming the rider of KMFX 731X in his statement, no one was charged with any traffic offense. The road was wide (7 meters) and clear yet it was raining. Both riders were carrying pillion passengers. 25.The trial court's brief holding that the "defendant is found 100% liable" completely ignored the clear indications of contributory negligence. Operating a motorcycle under rainy conditions requires heightened caution. Given that this was a head-on collision on a wide road both riders failed to keep a proper lookout or steer clear of each other. 26.Consequently, the trial court erred by failing to apportion liability. Guided by the circumstances and the evidence of PW1, this court sets aside the finding of 100% liability and substitutes it with an apportionment of 70% against the Appellant and 30% contributory negligence against the Deceased. 27.The trial court awarded a sum of Ksh 4,800,000/= for loss of dependency based on a monthly multiplicand of Ksh 20,000/=, a multiplier of 30 years and a dependency ratio of . The Appellant challenged every component of this mathematical equation. The Respondents claimed the Deceased was "Evans Omondi Mahero". PW4 (Winnie Owuor Akelle), the manager of Siaya County Club produced an employment contract to establish earnings of Ksh 28,000/= gross. However, under cross-examination, PW4 admitted that the contract was addressed to one "Lawrence Omondi" and executed between the employer and "Evans Omondi Ohono". No pay slips matching the name "Evans Omondi Mahero" were produced and that PW4 confirmed that the gross salary was subject to statutory deductions. 28.The trial court chose a net multiplicand of Ksh 20,000/=. While there is a glaring mismatch in the names across the documents, the Assistant Chief (PW3) confirmed that the Deceased was known in the locality. However, strict proof of earnings requires systemic harmony. Since the income was gross and unverified by official tax returns or clean matching identification, the court’s adoption of Ksh 20,000/= as a net multiplicand was speculative but within reasonable bounds for an electrician. It shall remain undisturbed. 29.The trial court adopted a straight multiplier of 30 years reasoning that because the Deceased died at age 30, he had 30 more years to work until the statutory retirement age of 60. This scaling methodology is an error in principle. 30.It is settled law that a multiplier is not calculated by a simple mathematical deduction from the statutory retirement age. The court must apply a discount to factor in the vicissitudes of life, employment instability and the human condition. In Rono v. Kipserem [2025] KEHC 8550 (KLR), courts re-emphasized that an over-stretched multiplier scaling more than 15-20 years for a young adult is rarely sustainable without downward adjustments for life's uncertainties. A reasonable multiplier in these circumstances ought to have been 18 years. 31.In the case of Oyugi Judith & another v Fredrick Odhiambo Ongong & 3 others [2014] eKLR where Majanja J. was of the view where income was not proved, then courts opt to adopt a global award approach as opposed to the multiplier approach which would be speculative at best. 32.RingeraJ, in Mwanzia v NgalaliMutua and Kenya Bus Services (Msa) Ltd & Another quoted with approval by Koome J (as she then was) in Albert Odawa v Gichimu Gichenji NKU HCCA No.15 of 2003[2007] eKLR in submitting as therein held that 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. That 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. 33.In Ezekiel Barng’entuny –vs-BeatriceThairu HCC No. 1638 of 1988 where Justice RingeraJ (as he then was) held thus; - “The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The Court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same the important figure is the net earnings of the deceased. The Court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure usually called the multiplier, the Court must bear in mind the expectation of earning life of the deceased. The expectation of life and dependency of the dependents ‘and the chances of life of the deceased and the dependents. The sum thus arrived at must then be discounted to allow the legitimate consideration such as the fact that the award is being received in a lump sum and award if wisely invested yield returns of an income nature’’. 34.The trial court applied a dependency ratio of on the premise that the Deceased left behind a mother, a wife and two daughters. However, a meticulous analysis of the trial record exposes a failure of proof. PW2 (the widow) admitted under cross-examination that she did not produce a marriage certificate. More critically, she stated that she left the birth certificates/notifications of the two children at home and did not present them to the court. PW3 (the Assistant Chief) explicitly testified under cross-examination: "Confirm you cannot verify the existence of the two subject children. PW3: I confirm." 35.In actions under the Fatal Accidents Act (Cap 29 Laws of Kenya), dependency is a material fact that must be pleaded and strictly proved. A court cannot award damages for loss of dependency for non-existent or unverified dependents based on a letter from a chief that the chief himself cannot verify on oath. Since only the wife's relational status was generally supported by social context, the dependency fraction of (which applies to large families) cannot stand. The appropriate dependency ratio for a single verified spouse or minimal dependency is . 36.In light of the above therefore the damages awardable to the Respondent under this head shall be assessed as hereunder:Kshs. 20,000 x 12x 18 x 1/3= Kshs. 1,440,000/= 37.The trial court awarded Ksh 30,000/= for pain and suffering and Ksh 100,000/= for loss of expectation of life. These are standard conventional awards where death occurs relatively quickly following an accident. They are hereby affirmed. 38.The re-assessed gross quantum is as follows:i.Pain and Suffering: Ksh 30,000/=ii.Loss of Expectation of Life: Ksh 100,000/=iii.Loss of Dependency: Ksh 1,440,000/=iv.Special Damages: Ksh 44,050/=Total Gross Damages: Ksh 1,614,050/= 39.Factoring in the 30% contributory negligence attributed to the Deceased, the net award due to the Respondents is computed as 70% of the Gross Damages:Net award: 70% of 1,614,050/= Kshs. 1,129,835/= 40.Ultimately, the appeal is allowed to the extent that the trial court's judgment on both liability and quantum is set aside. I hereby issue the following orders:a.Liability is apportioned at 70% against the Appellant and 30% against the Deceased.b.The global award of Ksh 4,974,050/= is set aside and substituted with an award of Ksh 1,129,835/=.c.The net award shall attract interest at court rates from the date of the trial court's judgment (29th July2025) until payment in full.d.As the appeal has succeeded, the Appellant is is awarded half costs of this appeal while the Respondent shall have full costs in the lower court DATED AND DELIVERED AT SIAYA, THIS 17TH JULY DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:M/s Bitok…………………………..for the AppellantOpondo…………………………..for the RespondentMaureen……………………………….Court Assistant