Jane Wanjiru Mwangi & 1 other v Patrick Muriuki Wachira & 1 other

3. In their defence, the Respondents denied the claim and instead blamed the deceased for negligence. In the alternative, they alleged that the deceased contributed to the injuries or damages sustained. 4. The matter proceeded to full hearing and the trial court found that the Appellants herein had not proven their case on a balance of probabilities against the Respondents. However, the trial court indicated in the judgment that had the Appellants proved their case to the required standard, that the court would have made the following awards; 5. a. Pain and suffering Kshs. 100,000/= b. Loss of expectation of life Kshs. 100,000/= c. Loss of Dependency Kshs. 2,000,000/= (Using the global award principle) d. Loss of consortium Kshs. 0/= (The Law Reform Act and Fatal Accidents Act do not provide for the same). e. Special damages Kshs. 30,550/= Being aggrieved by the Judgment, the Appellants herein filed this appeal citing grounds that the Learned Magistrate erred in law and fact by holding that liability had not been proved against the Respondents despite the preponderance of evidence proving liability on the part of the Respondents; by holding that the Respondents were not liable despite the fact that it was deceased who had a right of way where the 1st Respondent’s motor vehicle was joining the highway; ignoring the evidence of the Appellants’ witnesses; dismissing the Appellants’ case on liability in the absence of any evidence from the Respondents exonerating them from blame; by failing to hold that since the Respondents had failed to enjoin a 3rd party they were blaming meant they were solely to blame for the accident; by holding that she could not ascertain liability because of the pendency of an inquest; in disregarding the Appellants’ submissions and evidence on liability; she disregarded the appellant’s submissions and judicial authorities on liability with the resultant miscarriage of justice to the Appellants; failing to appreciate that the appellants proved their case on a balance of probabilities and failed to determine liability; misdirected herself by awarding a global figure as loss of dependency when there was evidence to support a finding that the deceased was a self employed business woman earning approximately Kshs. 1,500/= per day; by coming to conclusion that there was no evidence that the deceased was a business woman when there was sufficient evidence adduced to prove beyond any peradventure that she was a salonist; misdirected herself in law and in fact in adopting the principal of awarding a global figure as loss of dependency to the deceased contrary to the evidence adduced by the appellants that the deceased died on 8th January 2019 while a business woman thereby applying wrong principles when assessing the damages to be awarded; taking into account irrelevant considerations/ factors while awarding general damages; failing to appreciate, consider and take into account the Appellants’ submissions on the quantum of damages awardable in the circumstances; making decisions on quantum that was erroneous, without proper basis and against the weight of evidence. Appellants’ Submissions 6. The Appellants commenced their submissions with a brief background of the appeal, providing a summary of how the matter proceeded before the trial court. While relying on the authorities of Selle & Another v Associated Motor Boat Co. Ltd [1968] E.A. 123 and Abok James Odera t/a J. Odera Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the Appellants acknowledged the role of this Court, as an appellate court, to re-evaluate the evidence adduced before the lower court and subject the same to a fresh and exhaustive analysis. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 2

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7. The Appellants identified three issues for determination, namely: i. Whether the trial court erred in finding and holding that the Appellants had failed to prove their case on a balance of probabilities against the Respondents; ii. Whether the trial court erred in holding that, had the Appellants succeeded in proving their case to the required standard, it would have awarded them Kshs.2,000,000 for loss of dependency under the global award principle; and iii, if the answers to (i) and (ii) above are in the affirmative, what reliefs this Honourable Court ought to grant in the circumstances. 8. Regarding the first issue, the Appellants submitted that their case rested on the evidence of PW1, Cpl. Samuel Kirimi of Kahawa Sukari Police Station, who produced police abstract dated 4th February 2019. PW1 testified that following the accident, the unknown motorcycle rider fled the scene. He further stated that a public inquest was conducted at the Chief Magistrate’s Court in Ruiru, during which the police file and a sketch plan were produced. However, at the time of hearing, PW1 testified that he had not yet received the results of the said public inquest. The Appellants further relied on the evidence of PW2, Jane Wanjiru Mwangi, who testified that the deceased was a single mother of two minors, both of whom remained in her care. PW2 added that the deceased was self-employed, operating a salon business in Nairobi, earning approximately Kshs.1,500 per day, and that she was the sole breadwinner of her family. PW2 explained that given the nature of the business, it was difficult to maintain documentary proof of earnings. The Appellants also referred to the testimony of DW1, Lilian Wanjiru Kamau, the 2nd respondent herein, who stated that she was proceeding towards Githurai and, upon reaching Nakumatt Junction to join Thika Road, she slowed down and stopped to give way to road users on the service lane who had the right of way. DW1 testified that it was at this point that her vehicle was struck by an unknown motorcycle which was carrying the deceased. 9. The Appellants further submitted that from the evidence on record, including the sketch map produced by the Respondents, it was evident that at the point of the accident, the 2nd Respondent was joining the highway from a feeder or minor road, whereas the unknown motorcycle was already on the main road and therefore had the right of way. They contended that it is trite law that users on the highway or main road have the right of way, while users joining from a feeder or minor road are obligated to yield. In support of this position, they relied on the cases of Njeru & Another v Nyakundi (Civil Appeal E021 of 2021) [2022] KEHC 13963 (KLR), Kubai Kithinji Kaiga (Suing as the legal representative of the estate of John Kaiga (Deceased) v Kenya Wildlife Service [2021] eKLR, James Gikonyo Mwangi v D M (Minor suing through his mother and next friend I M O) [2016] eKLR, and Njoroge v Said (Civil Appeal 157A of 2020) [2024] KEHC 8763 (KLR). The Appellants argued that the Respondents failed to enjoin the motorcycle rider, against whom they sought to apportion blame. They further submitted that the Respondents did not demonstrate any effort on the part of the 2nd Respondent, as the driver, to avoid the accident. Relying on the authorities of Mburu Samson & Another v Boaz Masita Osindi [2021] eKLR, Osoro & Another v Onyango (Civil Appeal 14 of 2022) [2023] KEHC 23578 (KLR), and Oduor v Achieng (Civil Appeal E026 of 2023) [2023] KEHC 27162 (KLR), the Appellants maintained that a passenger cannot be held liable for negligence where a vehicle in which he or she was travelling is involved in an accident. 10. The Appellants submitted that the Court is obligated to assess all the evidence adduced by both parties and determine which case is more probable. They pointed out that the 2nd Respondent admitted that she was joining the main road from a feeder road and, in cross-examination, stated that she had been given way by other vehicles on the highway when the unknown motorcycle collided with her vehicle. The Appellants argued that the sketch map indicated that the 2nd Respondent’s vehicle obstructed the path of the unknown motorcycle, which had the right of way, thereby causing the accident through her negligence. They further submitted that the subject motor vehicle, or at least part of it, encroached onto the path of vehicles on the highway, which explained why the unknown motorcycle struck the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 3

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front portion of the vehicle. According to them, the only plausible explanation for the impact was that the vehicle had not properly stopped at the stop/give-way line to yield to traffic on the main road but had instead encroached into the lane of vehicles enjoying the right of way. The Appellants maintained that the sketch map produced by the Respondents contradicted the 2nd Respondent’s testimony that she had stopped at the junction, since the map showed the front part of Motor Vehicle Registration Number KCQ 211V already on the highway. 11. It was their submission that, with the sketch map produced by the Respondents clearly indicating fault, the trial court did not require the outcome of the inquest to establish liability. While Relying on the authorities of Jackson Kimani Ngugi (Suing as the Legal Representative of the Estate of Josephat Mburu Gitau – Deceased) v Jackton Ayieko Aruko & Another [2020] eKLR and Transafrica Portways Limited v Postal Corporation of Kenya [2011] eKLR, the Appellants contended that it was erroneous for the trial court to decline to apportion liability merely on account of the pendency of the inquest proceedings. They argued that the standards of proof in inquest and civil proceedings are distinct, and that in the present case, they only needed to prove their case on a balance of probabilities, regardless of the inquest. 12. The Appellants submitted that it would be unfair and unjust, even to the deceased, for both the trial court and this Court to turn them away despite the clear and convincing evidence on record, including the police abstract and the post-mortem report, which confirmed that an accident occurred on 25th December 2018 and that the deceased died as a result of injuries sustained therein. They urged the Court to find the Respondents jointly and severally liable, at 100%, for the accident and the demise of the deceased. In the alternative and while relying on the case of Mburu Samson & Another v Boaz Masita Osindi [2021] eKLR, the Appellants submitted that if the trial court was unable to ascertain who was solely to blame, it ought to have apportioned liability at the ratio of 90% against the Respondents and 10% against the rider of the unknown motorcycle. 13. On the issue of loss of dependency, the Appellants referred to the evidence of PW2, Jane Wanjiru Mwangi, who testified that the deceased was a widow with two children aged 14 and 12 years, and that she was the sole breadwinner of the family. Although no documentary evidence was tendered in the form of receipts to prove the deceased’s earnings, the Appellants submitted that the Court should take judicial notice of the fact that, in the informal sector such as the one the deceased was engaged in, it is rare to maintain records of income. In support of this argument, they cited the cases of Michael Murigi Karanja v Mohammed Salim Kassam [2015] eKLR, Millicent Atieno Ochuongo v Kalota Richard [2015] eKLR, and FMM & Another v Joseph Njuguna Kuria & Another [2016] eKLR. They contended that in awarding general damages under the Fatal Accidents Act for loss of dependency, the trial court, by adopting the global award principle and awarding Kshs. 2,000,000, failed to give due consideration to the Appellants’ evidence. 14. The Appellants clarified that they do not challenge the trial court’s awards for pain and suffering and for loss of expectation of life. They therefore urged the Court to uphold those awards, but to nonetheless find that the trial court erred in holding that they had failed to prove their case against the Respondents to the required standard. 15. In conclusion, the Appellants prayed that this Court allows the appeal, sets aside the judgment of the trial court, particularly in respect of its findings on liability and loss of dependency, and substitutes the same with appropriate findings in their favour. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 4

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Respondents’ Submissions 16. The Respondents commenced their submissions with a brief introduction of the matter and thereafter identified two issues for determination, namely: whether the trial court erred in its finding on liability, and whether the trial court erred in its finding on quantum. 17. On the first issue, the Respondents submitted that the element of causation could be inferred from the testimony of PW1, particularly the conduct of the motorcycle rider who fled the scene. While citing the case of Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR, the Respondents argued that the evidence of DW1, who was driving the subject motor vehicle at the time of the accident, clearly demonstrated that an unknown hit-and-run motorcycle, carrying one pillion passenger, rammed into the front right side of the stationary vehicle. They added that, upon alighting, DW1 observed that the rider had already escaped from the scene. In relying on the case of Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR), the Respondents contended that the trial court, having correctly applied the law to the facts and the evidence on record, cannot be faulted for its decision. They emphasised that the judgment was not premised solely on the inquest or its outcome but was primarily based on the probative value of the testimonies adduced at trial. 18. The Respondents further submitted that the evidence of PW2 amounted to hearsay, as she expressly testified that on the material date she was at home and only learnt of the accident afterwards through a police officer, thus she did not witness the accident. They also contended that the police abstract indicated that the accident involved the subject motor vehicle and a hit-and-run motorcycle, a fact that was not controverted by the Appellants. Accordingly, they argued that Ground 5 of the appeal, which faulted the trial court for failure to enjoin a third party, was without basis. They further submitted that the occurrence of an injury per se is not sufficient to establish liability. The Respondents maintained that, notwithstanding the pendency of the inquest, they had discharged their burden of disproving negligence on their part by adducing uncontroverted evidence on causation through the testimony of DW1, which was corroborated by PW1. They urged that, since neither the Appellants nor PW1 were present at the scene when the accident occurred, they could not displace the testimony of DW1, who explained the cause or probable cause of the accident and how it transpired. 19. The Respondents submitted that contrary to the Appellants’ submissions alleging that the suit motor vehicle was encroaching on the road, the unchallenged testimony at trial was that DW1 had already stopped to allow the flow of oncoming traffic and was thereafter given way to join the highway. 20. On the issue of whether the court erred in its finding on quantum, the Respondents placed reliance on the case of Kemfro Africa Limited v Meru Express Service & A.M. Lubia & Another [1957] KLR 27, submitting that the trial court provided a proper basis for its awards. They emphasized that the testimony on earnings and dependency was challenged at trial, where, upon cross-examination, PW2 admitted that she had no documentary proof of the deceased’s earnings nor receipts of the school fees she paid towards her nephew’s education. The Respondents argued that the Appellants failed to demonstrate that the trial court had proceeded on the wrong principle, misapprehended the evidence, or arrived at figures that were inordinately high or low. In their view, there was therefore no basis for interfering with the trial court’s decision on quantum. 21. They further submitted that had the multiplier approach been adopted, the variance in damages would have amounted to Kshs. 171,164/=, a figure they contend falls within the permissible bounds of judicial discretion. They also noted that in assessing damages for pain and suffering, the trial court demonstrably considered the rival submissions before arriving at an independent finding, which was premised on comparable awards. Reliance was placed on Bashir Ahmed Butt v Uwais Ahmed Khan https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 5

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(1982-88) KAR and Joshua Mung’athia v Evarick Muthuri Ntoibia & Another (Suing as the Legal Representative of the Estate of Fredrick Ntoiba Baraya (Deceased)) [2021] eKLR. On this basis, they submitted that grounds 3, 7 and 8 of the appeal were unfounded, reiterating the duty of this court to independently assess the substratum of the case and address the appeal on the basis of its own evaluation. 22. Without prejudice to the foregoing, the Respondents submitted that if this court were to find in favour of the Appellants, then liability should in any event be apportioned to the Respondents at 20% as had been urged at trial. 23. In conclusion, the Respondents submitted that the court dismiss the appeal with costs. Analysis and Determination 24. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by both the Appellants and the Respondents. However, I must remind myself of the duty of this court as the appellate court. 25. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424. Summarily, this court ought not to interfere with the exercise of the discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters which it should not have acted or it has failed to take into consideration matters which it should have taken into consideration and in doing so, arrived at a wrong conclusion. 26. I am guided by the Court of Appeal decision in Ephantus Mwangi and another v Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988} 1KAR 278 where the court stated that; “ A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 27. I therefore have a duty to delve into factual details and revisit the evidence as presented in the trial court, analyze the same, evaluate it and arrive at my own independent conclusion having in mind that the trial court had the advantage of hearing the parties. 28. I have considered and analyzed the pleadings and the evidence adduced before the trial court by the parties to this appeal, and the submissions in this appeal and it is my view that the following issues arise for determination; a. Whether the trial court erred in finding that liability was not proved against the Respondents. b. Whether the trial court erred in relying on the pendency of the inquest proceedings in declining to determine liability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 6

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c. Whether the trial court erred in its assessment of damages, particularly on the head of loss of dependency. d. Whether the appellate court should interfere with the trial court’s findings on damages under other heads. Whether the trial court erred in ffinding that liability was not proved against the Respondents. 29. The Appellants’ case rested primarily on the evidence of PW1, CPL Kirimi, who produced the police abstract confirming the occurrence of the accident and involvement of Motor Vehicle KCQ 211V and the testimony of PW2, Jane Wanjiru, who spoke on the deceased’s status as a breadwinner. The Respondents’ case was that the accident was caused by a hit-and-run motorcycle which rammed into the vehicle as it was stationary. 30. It is trite law that in civil proceedings, liability is established on a balance of probabilities. From the record, the sketch map placed Motor Vehicle KCQ 211V partly encroaching on the main road from a feeder road at the time of collision. The rider of the motorcycle, though unidentified, was on the main road and therefore had the right of way. The Respondent’s driver (DW1) admitted that she was joining the main road and had relied on being “pave way” or given way by other vehicles. That admission, coupled with the sketch map, in my view, shifts the balance of probability towards negligence on her part. 31. The trial court held that liability could not be established without the outcome of the inquest. With respect, this was a misdirection. Civil liability is distinct from criminal culpability or inquest findings. The standard of proof in civil proceedings is on a balance of probabilities, whereas an inquest seeks to determine cause of death, not civil fault. I am persuaded with the determination of the court in the case of Transafrica Portways Ltd v Postal Corporation of Kenya [2011] KEHC 2486 (KLR) where the court held that; “ I have carefully considered that point. In my view and finding, the purpose of any inquest is to establish who in the face of available evidence should be investigated in a relevant criminal charge concerning any death of any person, resulting. Such charge might be murder or manslaughter or death by dangerous or reckless driving. The evidence produced in an inquest might be sufficient or insufficient to prove any of the possible charges which might be preferred. The purpose of an inquest accordingly is to recommend who, if at all, should be investigated and charged in a relevant subsequent criminal charge. It is therefore, my view and finding that findings of an inquest are not only inclusive but amount only to recommendations as to which person should possibly be investigated in a subsequent criminal charge as aforestated.” 32. The Respondents did not join the unknown motorcyclist they sought to blame. In such circumstances, liability ought to rest with the party before court. 33. Accordingly, I find that the Appellants proved liability against the Respondents on a balance of probabilities. Even if contributory negligence were to be considered, it could not exonerate the Respondents fully. Whether the trial court erred in relying on the pendency of the inquest 34. The trial court expressly indicated that it could not determine liability as the inquest was pending. As discussed above, that was a misdirection. The civil court was not bound to await the inquest, and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 7

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failure to decide liability amounted to abdication of judicial duty. The court ought to have determined the matter on the basis of the pleadings and evidence before it. This ground succeeds. Whether the trial court erred in assessment of damages, particularly on loss of dependency 35. The law on circumstances under which an appellate court would interfere with an award of damages is settled. An appellate court will not interfere with an award of general damages by a trial court unless the trial court acted under a mistake of law, or, where the trial court acted in disregard of principles, or, where the trial court took into account irrelevant matters or failed to take into account relevant matters, or, where the trial court acted under a misapprehension of facts, or, where injustice would result if the appellate court does not interfere; and, where the amount awarded is either ridiculothe usly low or ridiculously high that it must have been erroneous estimate of the damage. 36. In the case of Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] KECA 252 (KLR), the Court of Appeal stated as follows; “ We agree that this court will not ordinarily interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled” 37. The trial court stated that had the Appellants succeeded in proving liability, it would have awarded Kshs. 2,000,000/= under the head of loss of dependency, applying the global award approach. 38. The appellant contended that the trial court erred in adopting the global award under the Fatal Accidents Act and awarding kshs.2,000,000/=. They urged that the court failed to properly consider the evidence presented. In contrast, the respondent submitted that’s submission is that had the multiplier approach been used, the difference in damages would have amounted to Kshs.171,164/=, an amount they argued falls within the permissible bounds of judicial discretion. 39. The Appellants claimed the deceased operated a salon and earned approximately Kshs.1,500/= per day. However, no documentary evidence was provided to support this assertion. It is acknowledged that in the informal sector, proving income can be challenging. In the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, the Court of Appeal emphasizedthat: “ ….We do not subscribe to the view that the only way to prove profession of a person must be by the production of certificates and that the only way to prove earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet they earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.” 40. Wherein light of this, where documentary evidence is unavailable, a global award method is acceptable. I therefore find no fault in the trial court adoption of the global award method in awarding loss of dependency and will not interfere with it. 41. Regarding the reasonableness of the amount awarded, I refer to the case of Kabeste Restaurant Limited v Mutie & another (Suing as the Administrator of the Estate of Johstone Makili Munyao)) [2025] KEHC 9410 (KLR) where the court upheld a global award of kshs 2,500,000/- for loss of dependency involving a 24 year old deceased. I therefore do agree with the respondents that the award of ksh https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 8

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2,000,000 falls within the permissible bounds of judicial discretion. I will not interfere with the trial court’s award under loss of dependency Whether the appellate court should interfere with the trial court’s ffindings on damages under other heads. 42. The trial courts awards that would have been awarded on the other heads are within range of comparable awards and I see no reason to interfere. 43. Based on the above, I find that the appeal succeeds and direct as follows; a. The finding of the trial court that liability was not proved is hereby set aside. Judgment is entered in favour of the Appellants as follows b. The Respondents are found 100% liable for the accident. c. The appellant is awarded i. Pain and suffering – Kshs.100,000/= ii. Loss of expectation of life – Kshs.100,000/= iii. Loss of dependency – Kshs.2,000, 000/= iv. Special damages – Kshs.30,550/= Total: Kshs.2,230,550/= d. Interest at court rates from the date of judgment in the lower court. e. Costs of the appeal and the trial court is awarded to the Appellants. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 23RD OCTOBER, 2025 RHODA RUTTO JUDGE In the presence of; ………………………………………Appellant ………………………………………..Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15144/eng@2025-10-23 9

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