https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10254

**REPUBLIC OF KENYA** **JURISDICTION:** IN THE HIGH COURT, BUNGOMA. **FILE NUMBER:** HC CIVIL APPEAL No. E102/2024. **BETWEEN:** BENEDETTA N. WELOBA & CHRISTINE WAFULA **CORAM:** R.K. ONDIEKI- JUDGE **HEARD:** 21st May, 2026. **DELIVERED:** 16th JUNE, 2026. **JUDGEMENT OF THE COURT:** *(Being an Appeal against the Judgment by Hon. Gladys Adhiambo (SPM) in Chief Magistrate’s Court at Kimilili MCC No. 078 of 2022, Delivered on 3rd June, 2024).* 1. **Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing.** Lord Simon’s speech in *Watt Vs. Thomas [1947] AC, 484* at p. 485 is recorded that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight**.** Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3. In *Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123*it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 4. In Lord Morris’ speech in *H West & Son Vs Shephard, [1964] AC 326*, said that the difficult task of awarding money compensation is 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 and limits of current thought. 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 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. 5. Lord Morris further said in Jag Singh Vs Toong Fong Omnibus Co Ltd *[1964] 1 WLR 1382*, that, it need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion. 6. **In the primary suit, the appellant sued the Respondent following a road traffic accident that occurred on 6th April, 2020 involving the deceased who was a motor cyclist with a pillion passenger *Oliver Juma* in a motor cycle registration number KMCK 697N and the defendant Motor Vehicle KTCB 309R and as a result of the accident, the deceased sustained fatal injuries.** 7. **Oliver Juma (PW1) told court that he was a pillion passenger on Motor Cycle were heading to Kitale direction along Kitale-Webuye road and were knocked from the rear by a track in its bid to overtake a Motor Cycle and the accident did occur. As a result, the witness sustained bodily injuries while the driver of the Motor Cycle sustained fatal injuries. Under cross examination, the witness said that the deceased was his brother and at the time, had no helmet on.** 8. **PC Paul Owino (PW2) told court that indeed the accident occurred and whilst the witness suffered bodily injuries, Andrew Simiyu suffered fatal injuries. The matter is pending and nobody has been charged.** 9. **Daniel Muringa Wafula(DW1) told court that he was driving a motor vehicle registration number KTCB 309R which was in front of Motor cycle registration number KMCK 679W. At the scene of the accident, he saw the deceased trying to overtake him from the right but did not manage and instead he heard a loud bhang on his left. The rider died on the spot. He blamed the cyclist as tried to overtake him on the wrong side. Under cross examination, the witness said that he did not sign the statement as the signature is not his.** 10. **In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;** 1. **That the learned Trial Magistrate erred in law and fact by holding the Appellant 50% liable in view of the evidence adduced.** 2. **That the learned Trial Magistrate erred in law and fact apportioning liability at 50% as against the Appellant and the Respondent.** 3. **That the learned Trial Magistrate erred in law and fact by failing to analyse the facts in making a determination on the case of liability at an erroneous decision.** 4. **That the learned Trial Magistrate erred in law and fact by adopting the wrong principle in assessment of damages awardable.** 5. **That the learned Trial Magistrate erred in law and fact in awardingKshs7,240/- against the evidence on record of Kshs21,000/ per month.** 6. **That the learned Trial Magistrate erred in law and fact by failing to consider the submissions and authorities by the appellant on both liability and quantum.** 11. **Reasons whereof, the Appellant seeks that;** 1. **The Appeal be allowed.** 2. **The decision by the Trial Magistrate on liability be set aside and or quashed.** 3. **That the lower court decision on earning of the deceased be set aside and or quashed.** 4. **That this honourable court proceed to make a decision on liability and on award on earning of ten deceased.** 5. **That the Appellant be awarded the costs of this appeal.** 12. **The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.** Analysis and Determination: 1. This court notes that the appellant settled on two issues for determination on whether or not the appellant proved his case on a balance of probability and whether or not quantum can be disturbed. The [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46) is clear enough upon whom the burden of proof lies. Section 107 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. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that 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 law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities. 2. Denning J. in *Miller Vs Minister of Pensions [1947] 2 ALL ER* discussing the burden of proof said that the 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 more probable than not’*, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 3. **Rajah JA**in***Britestone Pte Ltd Vs Smith & Associates Far East Ltd*** {*2007} 4 SLR (R} 855* succinctly states **that, t**he court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. 4. **Lord Brandon** inRhesa Shipping Co SA Vs Edmunds remarked that no Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take. Simply put, proof of a legal burden is a principle which applies in all cases without exception. 5. In ***Siraj Din Vs Ali Mohamed Khan (1957) EA 25*,** it was held that *t*he quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other as cited in BWK Vs EK & Ano. (2017) eKLR. 6. In the case of ***Susan Kanini Mwangangi & Another Vs Patrick Mbithi Kavita (2019) eKLR*** where there were no eye witnesses to the accident that resulted to the deceased therein sustaining fatal injuries, the court on the issue of lack of eye witnesses said t**hat is not necessarily fatal as long as there is credible evidence on which negligence can be inferred. Such inference may be made where the Plaintiff was a passenger in the vehicle that got involved in an accident in which event *res ipsa loquitor* may be successfully involved**. 7. In the case of ***P.A Okello & M.M Nsereko T/A Kaburu Okello & Partners Vs Stella Karimi Kobia & 2 Others (2012) eKLR***, the Court of Appeal held that **vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority. Put differently,** vicarious liability mostly comes into play when an employee has acted in a negligent manner for which the employer will be held responsible. 8. In this appeal, Oliver Juma adopted his witness statement and had this to say; **“…were heading towards Kitale direction and we were on the left side of the road as you face Misikhu, there was a tractor following us from behind and was hauling a trailer.** **The tractor passed us but the trailer knocked the motor cycle as it was overtaking us hence, the accident.** 9. Under cross examination, the witness said that**; “---there were other people at the market and they witnessed as the tractor was overtaking us…”** 10. In respect to the testimony of DW1, under cross examination said that the name David in the witness statement he adopted and dated 22nd February, 2022, is not his as well as all the signatures, thereon. He further said that the rider was overtaking on the right side and cannot tell exactly what happened. The fact that the statement bears the name of David and the fact that he did not sign a statement, is evidence enough, he did not drive the accident Tractor at the material time. He is unable to tell what happened. This goes to credibility of the witness. May I follow up the testimony of this witness with this remark by distinct jurists in the past, who had this to say; **“…the witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence…”** 11. In respect to damages under Law Reform Act and under Fatal Accidents Act, the law is distilled and need not be emphasized, even though sometimes, it behooves the court to repeat it depending on the circumstances of each case. In England, under the Law Reform Act, it is the deceased’s own cause which survives for the benefit of his estate as held in *Rose Vs Ford, [1937] AC 826*. So the estate should recover the damages the deceased would have recovered but for this death (and the expenses of his funeral). Damages for pain, suffering, loss of amenities and earnings are for the period he survived. So if death is more or less instantaneous the only damages recoverable will be for the deceased’s loss of expectation of life as held in Yorkshire Electricity Board Vs Naylor, [1968] AC 529. 12. Then any pecuniary loss suffered by a dependant must be off-set by any pecuniary gain which accrues to him or her. *Grand Trunk Ry v Jennings (1888), 13 App Cas 800, 804 Lord Watson; Baker v Dalgleish SS Co Ltd, [1922] 1 KB 361.* Administration expenses and estate duty must be deducted from the sum awarded as damages in assessing the value of the benefit under the Law Reform Act as held in *Rawlinson Vs Babcock and Wilco Ltd, [1967] 1 WLR 481.* The net benefit will be inherited by the same dependants under the Law Reform Act and that must then be taken into account in the damages awarded under the Fatal Accidents Act because the loss suffered under the latter Act must be off-set by the gain from the estate under the former Act as held in the case of *Davies Vs Powell Duffryn Association Collieries Ltd,*[1942] AC 601. 13. Back to the case at hand, we benefit from the guidance by the Court of Appeal in the case of *Chunibhai J. Patel and Another Vs P. F. Hayes and Others* [1957] EA 748, 749, the Court of Appeal stated the law on assessment of damages under the Fatal Accidents Act which we cite in part as follows: *“****The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase.*** 14. There is enough evidence that the deceased was a security officer earning a sum of Kshs21,000 per month that ought to have assisted use the multiplicand theory. Therefore, the multiplicand on loss of dependency is 21,000x12x40x1/3 translates to a sum of Kshs3,368,000/ 15. In disposal, the court makes a finding; 1. The finding on liability apportioning 50% to each party is hereby set aside. 2. The Respondent is held 100% liable for the accident. 3. Quantum is assessed at Kshs3,368,000/. Delivered virtually this 16th June, 2026 in the presence of the Appellant, the Respondent and Brian- Court Assistant. Orders Accordingly. Hon. R.K. Ondieki Judge.