https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8925

Watu Credit Ltd v Otieno (Suing as the Legal Representatives of the Estate of Augustine Otieno Obita - Deceased) & 2 others (Civil Appeal E026 of 2024) [2026] KEHC 8925 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8925 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E026 of 2024 JN Kamau, J June 24, 2026 Between Watu Credit Limited Appellant and Alice Akoth Otieno (Suing as the Legal Representatives of the Estate of Augustine Otieno Obita - Deceased) 1st Respondent Abdul Karim t/a Oyster Energy 2nd Respondent Tobias Ouma 3rd Respondent (Being an appeal from the Judgment and Decree of Hon P. Karimi (RM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E272 of 2023 on 3rd June 2024) Judgment Introduction 1.In her decision of 3rd June 2024, the Learned Trial Magistrate, Hon P. Karimi, found the Appellant and the 2nd and 3rd Respondents wholly liable for the accident that resulted in the deceased’s death. She entered judgment in favour of the 1st Respondent against the Appellant and the 2nd and 3rd Respondents in the following terms:-Pain and suffering Kshs 50,000/=Loss of expectation of life Kshs 200,000/=Loss of dependency Kshs 1,560,000/=Special damages Kshs 190,550/=Total Kshs 2,000,550/=Plus costs of the suit and interest thereon at court rates. 2.Being aggrieved by the said decision, on 12th July 2024, the Appellant herein filed a Memorandum of Appeal dated 10th July 2024. It relied on eleven (11) grounds of appeal. The Supplementary Record of Appeal was dated and filed on 16th May 2025. 3.Its Written Submissions were dated and filed on 15th January 2025 while those of the 1st Respondent were dated 11th March 2025 and filed on 19th March 2025. The 2nd and 3rd Respondents did not participate in the Appeal herein. The Judgment herein is based on the said aforesaid Written Submissions, which the Appellant and the 1st Respondent relied upon in their entirety. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-a.Whether or not the Learned Trial Magistrate erred in her finding on liability and;b.Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court. 7.The court deemed it prudent to address the issues under the following distinct heads. I. Liability 8.Grounds of Appeal Nos (1), (2) (3), (4), (6) and (11) were dealt with together as they were all related. 9.The Appellant submitted that the 1st Respondent failed to prove that it was the owner of the Motor Cycle Registration No KMGK 919G (hereinafter referred to as “the subject Motor Cycle”) since the record from the National Transport and Safety Authority showed that the same was owned by Watu Nominees Company Ltd, a different legal entity. It was emphatic that the 1st Respondent sued the wrong party hence, the suit against it ought to have been dismissed. 10.It pointed out that the 1st Respondent did not prove liability against it as she blamed Motor Vehicle Registration Number No UBH 688 Q/UBH 120 R (hereinafter referred to as “the subject Motor Vehicle) for the accident as it hit the subject Motor Cycle. It submitted that the Police Abstract that was produced indicated that the subject Motor Vehicle was to blame and that the 3rd Respondent was charged with the offence of causing death by dangerous driving. It faulted the Trial Court and asserted that it should have been absolved from liability given the evidence before the Trial Court. 11.On her part, the 1st Respondent asserted argued that the Police Abstract, which the Appellant never objected to its production, listed it as among the owners of the subject Motor Cycle. She averred that the Appellant never called evidence to substantiate their defence and especially on ownership of the subject Motor Cycle. She averred that the Appellant admitted that it was the 1st Defendant in the primary suit. 12.She cited Sections 109 and 112 of the Evidence Act and cited North End Trading Company Limited vs The City Council of Nairobi (2019) eKLR where it was held that where a party failed to call evidence in support of its case, the party’s pleadings were not to be taken as evidence and the Plaintiff’s case remained uncontroverted. 13.She also referred this court to the case of Joel Muga Opinja vs East African Sea Food Limited [2013] eKLR where the court opined that although the best way to prove ownership was production of a document from the Registrar of Motor Vehicles, the contents of an abstract could not later be denied if the abstract was produced without objection and was not challenged. 14.She further pointed out that the Appellant never tendered any evidence to distinguish itself from Watu Nominees Company Ltd which was listed as the owner of the subject Motor Cycle in the motor vehicle search. She stated that in its defence, the Appellant admitted to being the 1st Defendant and was, therefore, estopped from denying that same fact. She added that it accepted service of Summons and never applied to be struck out from the suit during trial. She was emphatic that on a balance of probability, it was more likely than not that Watu Credit Limited and Watu Nominees Company Ltd were the same entity. 15.Notably, the 1st Respondent produced a Police Abstract Report, which showed that the Appellant was the registered owner of the subject Motor Cycle. She also produced a Copy of Records from the Registrar of Motor Vehicles which showed that the registered owner of the subject Motor Cycle was Watu Nominees Company Limited. 16.In Paragraph (4) of its Defence dated 20th November 2023, the Appellant denied being the actual, registered or beneficial owner of the subject Motor Cycle. In its submissions before the Trial Court, it reiterated the contents of the record from the Registrar of Motor Vehicles, which showed that it was not the owner but rather, the owner was Watu Nominees Company Limited. It, however, never applied to be struck out from the suit and further, it never called any evidence to show that indeed, it was not the owner of the subject Motor Cycle. 17.Section 8 of the Traffic Act Cap 403 (Laws of Kenya) provides as follows:-“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.” 18.Notably, the Police Abstract Report indicated the policy number, the insurance and the owner of the subject Motor Cycle. According to the policy details, the Appellant herein was the owner of the subject Motor Cycle and the policy holder. The Appellant did not adduce any evidence to controvert the contents of the Police Abstract. 19.This court wholly associated itself with the holding in the case of Joel Muga Opinja vs East African Sea Food Limited (Supra) and came to the conclusion that in the absence of any evidence to the contrary, for all purposes and intent, this court was satisfied that the Appellant was the beneficial owner of the subject Motor Cycle at the material time of the accident as per the Police Abstract Report that was issued on 4th August 2023 and could not escape liability by relying on the Copy of Records as at 7th August 2023 that indicated that the registered owner of the said subject Motor Cycle was Watu Nominees Company Limited. 20.The Appellant ought to have led evidence to explain how it came to be the insured of the subject Motor Cycle together with one Bernard Omondi Opiyo as per the policy No P-2021-200-9014-90-24740 (COMP) that was held by GA Insurance Limited. The Appellant could not approbate and reprobate in the same breath. Indeed, as the Trial Court observed, it defended the case by even indicating in its List of Witnesses dated 8th March 2024 that it would call witnesses. 21.Further, the Appellant submitted that as the 3rd Respondent was charged with the offence of causing death by dangerous driving, he ought to have been absolved of all blame and the suit against him be dismissed. 22.On the other hand, the 1st Respondent was emphatic that the Appellant never tendered any evidence to controvert her case. In this regard, she placed reliance on John Wainaina Kagwe vs Hussein Dairy Limited (2013) eKLR where the court opined that since the defence had not called evidence, the allegation in the defence with regards to blameworthiness of the accident remained mere allegations and the averments in the defence were not proved. 23.Courts have held repeatedly that a police abstract was not proof of occurrence of an accident but of the fact that the occurrence thereof was reported at a particular police station. Although the 1st Respondent averred that the subject Motor Vehicle hit the subject Motor Cycle, she did not witness the accident. She was only informed of the same. She did not also call any witness to testify how the accident occurred. 24.Be that as it may, it was clear from the Police Abstract Report that the deceased was a pillion passenger in the subject Motor Cycle. There was nothing that showed that he contributed to the causation of the accident. The 1st Respondent did not also lead evidence show that he wearing a helmet. 25.Even so, this court took judicial notice that the thousands of pillion passengers in Kenya do not wear helmets, which ought to be provided by the riders of motor cycles. Indeed, in Kenya, a majority of motor cycle owners or riders wore helmets leaving their pillion passengers at great risk in case of an accident. 26.Although the Appellant had indicated in its List of Witnesses that it would call one Bernard Omondi Opiyo and the Traffic Commander of Luanda Traffic Base or his representative, it did not call them to explain what evasive action it took or what preventive measures it took to prevent the deceased sustaining injuries that caused his death.. The Appellant was, therefore, vicariously liable for the omissions of the rider of the subject Motor Cycle by not providing a helmet to the deceased person at the material time. 27.The 3rd Respondent was blamed for the accident. He faced the charge of causing death by dangerous driving. At the time, the matter was said to have been pending under investigation. It was not clear to this court if the traffic case proceeded and if was concluded, the outcome thereof. The 2nd Respondent who was his employer was also vicariously liable for not having exercised due care and attention on the roads to other road users. 28.The Trial Court was not told whether the subject Motor Cycle was either parked or being driven on the side. The Trial Court was also not told how the subject Motor Cycle was hit, either from behind or on the side. The deceased did not just find himself on the road. The doctrine of res ipsa loquitor was, therefore, applicable in the circumstances of the case. The Appellant could not, therefore escape liability. 29.Through the 3rd Respondent, the 2nd Respondent, owed the deceased a duty of care. The 3rd Respondent was in charge of a more lethal machine. The fact that the deceased died shortly after the accident showed that the subject Motor Vehicle was being driven at an excessive speed. It was therefore, the opinion of this court that the subject Motor Vehicle should take more liability as compared to the subject Motor cycle. 30.Taking into account the circumstances of the case, this court came to the firm conclusion that apportionment of liability at 80%-20% against the 2nd and 3rd Respondents was fair and reasonable in the circumstances of this case. 31.In the premises foregoing, the Appellant’s Grounds of Appeal Nos (1), (2) (3), (4), (6) and (11) were dealt with together as they were all related. II. Damages Under The Law Reform Act A. Pain and Suffering 32.Grounds of Appeal No (8) was dealt with under this head. 33.The Appellant submitted that the deceased died on the day of the accident and, hence an award of Kshs 20,000/= would suffice. 34.On her part, the 1st Respondent submitted that according to the Police Abstract Report, time of the accident was 1000 hours while the Death Certificate showed the time of death as 1030 hours. She emphasised that the deceased died while undergoing treatment and as his death was not spontaneous, he must have endured a lot of pain. She urged the court not to disturb the award by the Trial Court. 35.She cited the case of Hyder Nthenya Musili & Another vs China Wu Yi Ltd & Another (2017) eKLR where the court held that the award for pain and suffering ranged from Kshs 10,000/= to Kshs 100,000/= with higher damages awarded if pain and suffering was prolonged. She also relied on Sukari Industries Limited vs Clyde Machimbo Juma (2016) eKLR where an award of Kshs 50,000/= was awarded where the deceased died immediately after the accident. 36.In Recto East Africa Limited vs Josephine Kwamboka Nyachaki & Another (2021) KEHC 5773 (KLR), an award of Kshs 100,000/= was upheld. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another (2020) eKLR and Sukari Industries Limited vs Clyde Machimbo(Supra) as quoted in the case of Wachira Joseph & 2 Others vs Hannah Wangui Makumi & Another (2021) eKLR, the courts therein awarded a sum of Kshs 50,000/= for pain and suffering. In the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR, the court therein awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident. 37.Taking into account the aforesaid cases, it was the considered view of this court that the sum of Kshs 50,000/= for pain and suffering that the Trial Court awarded was fair and reasonable as the deceased died on the same day and must have suffered a lot of pain and suffering. The court, therefore, left the same undisturbed. 38.In the premises foregoing, Ground of Appeal No (8) was not merited and the same be and is hereby dismissed. B.Loss of Expectation of Life 39.Ground of Appeal No (9) was dealt with under this head. 40.The Appellant proposed a sum of Kshs 100,000/=. The 1st Respondent argued that the Appellant did not advance any reasons for this court to interfere with the sum that was awarded by the Trial Court. It urged this court to upheld the award guided by Hyder Nthenya Case (Supra). 41.It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury. 42.However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents. 43.Indeed, in the case of Kigaraari vs Aya(1982-88) 1 KAR 768, it was stated as follows:-“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.” 44.As was held in the case of Selle vs Associated Motor Boat Company Ltd (Supra), an appellate court ought not to interfere with an award for damages merely because it could have awarded a lower figure. 45.However, bearing in mind the observations in Kigaraari vs Aya (Supra), this court found and held that the sum of Kshs 200,000/= was manifestly high warranting interference by this court. It was its considered view that a sum of Kshs 100,000/= for loss of expectation of life was fair and reasonable. 46.In arriving at the said conclusion, this court had due regard to the following cases:-1.In Abdulaziz v Odhiambo & another (Suing as legal representative of the Estate of Phili Ondago) [2026] KEHC 4349 (KLR), the court of appeal declined to disturb an award of Kshs.100,000/=.2.In Mutiso v Kimuyu [2023] KEHC 760 (KLR), the court declined to disturb an award of Kshs.120,000/= awarded by the trial court.3.In Hyder Nthenya Musili & Another vs China Wu Yi Ltd & Another (Supra), the court held that the conventional award for loss of expectation of life was Kshs 100,000/=. 47.To this end, this court substituted the award of Kshs 200,000/= with an award of Kshs 100,000/= for loss of expectation of life. 48.In the premises foregoing, Ground of Appeal No (9) was merited and the same be and is hereby upheld. III. Fatal Accidents Act A. Multiplicand 49.Ground of Appeal No (7) was dealt with under the respective and separate sub-headings. 50.The Appellant submitted that there was no evidence that showed that the deceased was a farmer and had any ascertainable income. It was emphatic that the Trial Court should have adopted the minimum wage of a labourer being Kshs 8,909/= in accordance with the Regulation of Wages (General Amendment) Order 2022. 51.On the other hand, the 1st Respondent relied on the case of Ayiga Maruja & Another vs Simeone Obayo (2005) eKLR where it was held that the proposition that the only way to prove the deceased’s earnings was by way of documents would do a lot of injustice to those who did not keep records of their earnings. She also placed reliance on the case of Midland Sacco vs Kirui & Another (suing as the legal representatives of the Estate of Richard Kipngeno Kirui (deceased) (2023) KEHC 22839 (KLR) where the court opined that a framer was not under any of the fifteen (15) stipulated categories of occupation in the wage bill (sic) and the court was tasked to award a reasonable award. 52.The 1st Respondent argued that the Trial Court was within reasonable ground in seeking to strike a balance between the monthly earnings of Kshs 24,000/= as proposed by the 1st Respondent and Kshs 8,909/= as the Appellant had proposed. To buttress her argument, she relied on the case of Munuhe & Another (suing as the legal representatives of the Estate of Peter Maina Ndegwa) vs Mutua (2024) KEHC 10944 (KLR) where a multiplicand of Kshs 13,000/= was upheld for a deceased aged fifty-one (51) years and who was a farmer. 53.While adopting a sum of Kshs 15,000/=, the Trial Court relied on the case of Midland Sacco vs Kirui & Another (Supra) where the court observed that there was no provision for a farmer in the Regulation of Wages (General Amendment) Order 2022. 54.Since the Trial Court did not just pluck a figure from nowhere but her finding was based on legal reasoning, this court did not see the need to disturb the multiplicand of Kshs 15,000/= that was adopted by the Trial Court. This court, therefore, left the same undisturbed. B. Dependency Ratio 55.The Appellant and the 1st Respondent did not submit on this issue. This court left the dependency ratio of two-thirds (2/3) that the Trial Court adopted, undisturbed. C. Multiplier 56.The Appellant argued that the Trial Court should have considered that the deceased was farming together with the 1st Respondent and hence, farming could still be continuing even in his absence. It added that as farming was extraneous and the deceased would not have continued with it for long, the Trial Court should have considered the vicissitudes of life which would have halted or reduced his earnings. He argued that no birth certificates were produced to show that the deceased had children. It suggested a multiplier of ten (10) years. 57.On her part, the 1st Respondent referred to the case of Mwaura vs Asingo & Yugu (suing as administrator and personal representative of the Estate of Maurice Oketch Asingu-deceased) 2024 KEHC 7841 (KLR) where a multiplier of seventeen (17) years was upheld for a deceased aged forty-seven (47) years. She was emphatic that the multiplier of thirteen (13) years adopted by the Trial Court was reasonable. 58.According to the Death Certificate, the deceased was said to have been fifteen (50) years old at the time of his death. After considering the vicissitudes and vagaries of life, the Trial Court adopted a multiplier of thirteen (13) years. It was the view of this court that the said multiplier was fair in the circumstances of the case herein. 59.In determining the appropriate multiplier, this court had due regard to the following cases:-1.In Samwel Osewe Ochillo vs Simon Omwoyo Obare (2013) KEHC 4612 (KLR), the court upheld a multiplier of fifteen (15) years for a deceased who was fifty (50) years old.2.In the case of Mary Wanjiku Gitau & Another (suing as the administrators of the Estate of Kenneth Mbugua Chege - Deceased) vs Kenya Power & Lighting Co Limited [2021] KEHC 6657 (KLR), the court adopted a multiplier of multiplier of (13) years where the deceased was aged fifty (50) years old.3.In Mombasa HCCA No 18 of 2014, Stephen Kiarie Muruguru vs Seleman Hamadi Koi & Another, suing as the legal representative of the estate of Adam Huseni Dago, the court adopted a multiplier of thirteen (13) years where the deceased was aged fifty-two (52) years.4.In the case of Janet Chonge Walumbe & 2 Others vs Julius Mwaniki & another [2019] KEHC 10656 (KLR), the court thereon adopted a multiplier of ten (10) years where the deceased was fifty (50) years. 60.From the foregoing cases, this court left the multiplier of thirteen (13) years undisturbed. 61.In the premises foregoing, Ground of Appeal No (7) was merited only to the extent of the award of pain and suffering which is hereby set side and/or vacated. IV. Special Damages 62.Ground of Appeal No (11) dealt with under this head. 63.The only issue of contention under this head was funeral expenses. It was the Appellant’s contention that the 1st Respondent admitted that funeral expenses were made by well-wishers and friends, hence she should not have been awarded the sum claimed for funeral expenses. It added that the expenses pleaded were not proved by receipts and some receipts failed to meet the requirement under Stamp Duty Act as they had no revenue stamps. It proposed a sum of Kshs 30,000/=. 64.The 1st Respondent pointed out that she produced a breakdown of funeral expenses and therefore the Trial Court was within the reasonable bound in awarding special damages of Kshs 190,550/= inclusive of funeral expenses. She placed reliance on the case of Rottger vs Dusa & another (suing on behalf of the Estate of Wilson Baya Thoya-deceased) (2023) KEHC 26630 (KLR) where the court observed that funeral expenses could not be receipted and requiring such receipt would cause inordinate hardship upon a claimant. 65.Notably, the Trial Court awarded Kshs 190,550/= for funeral expenses considering the age of the deceased. While doing so, the Trial Court noted that the budget the 1st Respondent produced was not receipted and the fact that the 1st Respondent admitted that some of the funeral expenses were fund raised. 66.This court could not fault the Trial Court in awarding this figure, although the same was on the higher side. Be that as it may, this court took judicial notice that the customs and traditions of the people of the deceased were lavish during funerals, and expenses could easily surpass the sum Kshs 190,550/=. In the absence of any evidence to the contrary, this court adopted the said sum, noting the sentiments of the court in Rottger vs Dusa & Another (Suing on behalf of the Estate of Wilson Baya Thoya (Supra) that strict proof of funeral expenses could be loosened as it was expected that funeral expenses must have been incurred. 67.In the premises foregoing, Ground of Appeal No (11) was not merited and the same be and is hereby dismissed, Disposition 68.For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 12th July 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon P. Karimi in Vihiga PMCC No E272 of 2024 Alice Akoth Otieno (suing as the legal representative of the estate of Augustine Otieno Obita-Deceased) vs Watu Credit Limited & 2 Others be and is hereby varied in respect of liability which is hereby apportioned at 80%-20% against the 2nd and 3rd Respondents and Appellant herein respectively. 69.It is hereby directed that judgment be and hereby entered against the Appellant, and 2nd and 3rd Respondents jointly and severally in favour of the 1st Respondent herein for the sum of Kshs 1,900,550/= made up as follows:-Loss of expectation of life Kshs 100,000/=Pain and suffering Kshs 50,000/=Loss of dependency Kshs 1,560,000/=2/3 x 15,000 x 12 x 13Special damages Kshs 190,550/=Kshs 1,900,550/=Plus costs of the suit and interest thereon at court rates. 70.For the avoidance of doubt, interest on special damages will be from the date of filing suit while the interest on general damages will be from the date of the judgment of the Trial Court until payment in full. 71.As the Appellant was partly successful in its appeal, it is hereby directed that each party will bear its own costs of this Appeal. 72.It is so ordered. DATED AND SIGNED AT VIHIGA THIS 24TH DAY OF JUNE 2026J. KAMAUJUDGE