Mogoi v Makori (Civil Appeal 71 of 2019) [2025] KECA 418 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a father's fatal accident claim because he couldn't prove the truck driver was negligent — even though the defendant presented no evidence at all.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant proved his case on a balance of probabilities
- 2.What damages, if any, the appellant should be awarded
- 3.Whether the appellant had legal standing to file the suit without letters of administration
Key legal issues
#Whether the appellant proved negligence and causation against the respondent
The appeal fails because no witness saw how the accident occurred and no evidence supported the pleaded particulars of negligence; the deceased's own conduct in running behind the reversing vehicle to recover his jacket explained the accident.
The legal burden lay on the appellant, who asserted the affirmative of the issue under section 107(1) of the Evidence Act. None of the three witnesses was an eyewitness; PC Komen's evidence was that the deceased was knocked while trying to pull his jacket from the reversing vehicle. No evidence supported the pleaded particulars of excessive speed, zigzag driving or an incompetent driver. The respondent's failure to testify did not shift that burden.
Whether letters of administration were necessary for a claim under the Fatal Accidents Act
Letters of administration are not necessary for a claim for loss of dependency under the Fatal Accidents Act; sections 4(1) and 7 permit the beneficiaries themselves to sue where there is no administrator or no action is brought within six months.
The High Court had correctly construed sections 4(1) and 7 of the Fatal Accidents Act, under which either the executor or administrator or the persons for whose benefit the action is brought may sue. The court endorsed that reading but noted that an action without letters of administration is confined to loss of dependency; pain and suffering and loss of expectation of life claims under the Law Reform Act still require grant. The claim failed on liability, not capacity.
Scope of a second appeal
A second appeal is confined to matters of law, with narrow exceptions where the lower courts considered matters they should not have, omitted matters they should have considered, or reached a perverse finding.
The court reiterated the established limits on second appeals, adopting the approach in Kenya Breweries Limited v Godfrey Odoyo. The appellant's complaint that the Judge failed to re-analyze evidence raised matters of fact which a second appellate court does not disturb absent perversity or misdirection. The concurrent findings on liability were therefore unassailable.
Legal principles established
#- A claimant under the Fatal Accidents Act need not hold letters of administration; a suit for loss of dependency may be brought by or on behalf of the persons for whose benefit the action is brought, but such an action without letters of administration is limited to damages for loss of dependency (claims for pain and suffering and loss of expectation of life under the Law Reform Act require letters of administration).
- On a second appeal the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- The burden of proving negligence and causation lies on the plaintiff asserting it and remains there throughout, even where the defendant calls no evidence; failure to adduce evidence in support of pleaded particulars of negligence is fatal to the claim.
Court orders
#- 1.The second appeal is dismissed
- 2.No costs awarded; each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (Majanja, J.)
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal on matters of law (Court of Appeal Rules; appellate jurisdiction over the High Court)
Relief refused
#Setting aside the dismissal of the claim and an award of damages for negligence
The appellant failed to discharge the burden of proving negligence and causation against the respondent
Costs of the appeal
The court sympathized with the appellant and declined to award costs
Costs
No costs awarded; the court did not award any costs (like the High Court, it declined to award costs, leaving each party to bear their own)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above is that the appeal has no merit. It is accordingly dismissed. Like the learned Judge of the High Court, we sympathize with the appellant and therefore will not award any costs. Those shall be the orders of the Court.
The appellant’s action anchored on the Fatal Accidents Act was properly before the court, even without the letters of administration. However, such an action is limited to damages for loss of dependency.
Despite the respondent not tendering any evidence in support of his defence, the burden of proof lay and remained with the appellant to prove negligence on the part of the respondent, as it was the appellant asserting that fact and therefore having the duty to prove the respondent's liability.
Our duty as a second appellate court is confined to matters of law.
Issues in the judgment
#The quoted passage from the High Court judgment (and this Court's endorsement of it) transcribes the word 'plaintiff' as 'plaintifi'/'plaintiff' inconsistently; also the citation for Mary Wambui Kabugu appears as '1997) KECA 402 (KLR)' with a missing opening bracket, and the fifth ground of appeal lists only four complete grounds.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mogoi v Makori (Civil Appeal 71 of 2019) [2025] KECA 418 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/418/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.