Momanyi v Nyagwencha (Civil Appeal E037 of 2024) [2025] KEHC 18447 (KLR) (6 November 2025) (Judgment) Neutral citation: [2025] KEHC 18447 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CIVIL APPEAL E037 OF 2024 TW CHERERE, J NOVEMBER 6, 2025 BETWEEN SHADRACK MOMANYI .......................................................................... PLAINTIFF AND MINGO NYAGWENCHA ..................................................................... DEFENDANT JUDGMENT Introduction 1. On 26th February 2017, the deceased, John Magubo Mingo, then aged 17 years, sustained fatalinjuries when he was knocked down while walking as a pedestrian along the Kisii–Nyamira road by motor vehicle registration number KBQ 358F, owned and/or driven by the Appellant, Shadrack Momanyi. 2. Upon hearing the matter, the trial court, by its judgment delivered on 02nd July 2024, found theAppellant wholly liable (100%) for the accident and entered judgment in favour of the Respondents for a total award of KES. 1,745,550/= as damages under the Fatal Accidents Act and the Law Reform Act, together with costs and interest. 3. Being dissatisfied with the entire judgment, the Appellant lodged the present appeal challengingboth the finding on liability and the quantum of damages awarded. Grounds of Appeal 4. The Appellant contends that the learned magistrate erred by: a. Holding the Appellant wholly liable despite inconclusive evidence as to fault; b. Disregarding the police abstract and occurrence book extract which indicated that the matter wasstill under investigation; c. Ignoring the Appellant’s submissions and failing to independently evaluate the evidence; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18447/eng@2025-11-06 1
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d. Awarding excessive general damages contrary to comparable precedents and the evidence onrecord. Submissions by the Appellant 5. The Appellant, through KRK Advocates LLP, argued that the trial court failed to properly evaluatethe evidence and that both the driver and the deceased contributed to the accident. It was submitted that the police abstract was inconclusive and that the evidence of the investigating officer was not produced. Counsel urged the Court to apportion liability equally at 50:50%. Reliance was placed on De Frias v Rodney [1998] BDA LR 15, Mohammed Kassim & 2 Others v Salim Fumo Bwanamkuu [2019] eKLR, Robert Collins Murimi v Benson Njihia Kamau [2017] eKLR, and Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2019] eKLR. 6. On damages, it was argued that the global award of Kshs. 1,500,000/= was excessive and shouldbe reduced to KES. 700,000/=. Authorities cited included P.I. v Zena Roses Ltd & Another [2015] eKLR and Kengen Ltd & Another v Jane Nesunga Khala [2017] eKLR. Submissions by the Respondents 7. The Respondents, through Ochoki & Company Advocates, opposed the appeal. They maintainedthat the trial court properly analysed the evidence and correctly found the Appellant wholly liable. It was submitted that the deceased was a lawful pedestrian and that ownership of the accident vehicle was admitted. 8. On quantum, they defended the award of KES. 1,500,000/= as reasonable and consistent withcomparable authorities, citing Francis Odhiambo Nyunja & 2 Others v Josephine Malala Owinyi [2020] eKLR, Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR, and Twokay Chemicals Ltd v Patrick Makau Mutisya & Another [2019] KEHC 5339 (KLR). Respondents urged that there was no basis for interference with the trial court’s discretion as set out in Butt v Khan [1982–88] KAR 1. Applicable Principles 9. This being a first appeal, the Court is obligated to re-evaluate the evidence and draw its ownconclusions as guided by Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Kenya Ports Authority v Kuston (Kenya) Ltd [2009] EA 212. An appellate court will only interfere with findings of fact where the trial court acted on no evidence, misapprehended the evidence, or applied wrong legal principles. Analysis on Liability 10. The evidence before the trial court established that the accident occurred on 26th February2017. PW1, a police officer, produced a police abstract confirming the accident but admitted that investigations were incomplete. PW3, an alleged eyewitness, stated that he heard a bang but did not see the impact. DW1 testified that the occurrence book entry indicated the deceased suddenly stopped on the road without due care. 11. In Hussein Omar Farah v Lento Agencies [2006] eKLR, the Court of Appeal, confronted withcircumstances akin to those in the present case, observed as follows: “ In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of afiairs, the question arises whether both drivers should be held to blame. It has been held in our https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18447/eng@2025-11-06 2
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jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.” 12. Upon a fresh evaluation of the record, this Court finds that, in the absence of any directeyewitness account establishing the precise manner in which the collision occurred, responsibility for the accident cannot be placed wholly on one party. Both the driver and the deceased must therefore share the blame. The trial court consequently erred in holding the Appellant solely liable. 13. Guided by the reasoning in Hussein Omar Farah v Lento Agencies (supra), as well as thedecisions in Robert Collins Murimi v Benson Njihia Kamau (supra) and Stanley Karanja Wainaina v Ridon Anyangu Mutubwa (supra), this Court finds that the just and equitable apportionment of liability is on an equal basis. The finding of 100% liability against the Appellant is accordingly set aside and substituted with a finding of 50:50 liability as between the parties. Analysis on Quantum 14. The guiding principles on appellate interference with the trial court’s discretion in assessment ofdamages are well settled. In Butt v Khan (supra), the Court of Appeal held that an appellate court will be slow to disturb an award unless it is shown that the trial court applied wrong principles, considered irrelevant matters, failed to consider relevant ones, or that the award is so inordinately high or low as to represent an erroneous estimate. 15. Comparable authorities show that a global sum of KES. 1,500,000 for a deceased aged 17 yearsfalls within the accepted range, as seen in Francis Odhiambo Nyunja & Others v Josephine Malala Owinyi [2020] eKLR and Twokay Chemicals Ltd v Patrick Makau Mutisya [2019] KEHC 5339 (KLR). The sum awarded by the trial court therefore remains unchanged and shall only be subject to the apportionment on liability. Disposition 16. From the foregoing analysis, the appeal partly succeeds on the issue of liability. Accordingly, theCourt makes the following orders: 1) The finding of 100% liability against the Appellant by the trial court is hereby set aside and substituted with liability apportioned at 50% against the Appellant and 50% against the deceased. 2) The awards on damages as assessed by the trial court are upheld, subject to the above apportionment of liability. 3. Each party shall bear its own costs of this appeal. 4. Appellant shall bear ½ costs in the lower court Appearances SIGNED BY/FOR: HON. LADY JUSTICE T. CHERERE THE JUDICIARY OF KENYA. NYAMIRA HIGH COURT HIGH COURT CIVIL Court Assistant - Hilda For Appellant - N/A for KRK Advocates LLP For Respondent - Mr. Ochoki for Ochoki & Co Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18447/eng@2025-11-06 3
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DATE: 2025-11-06 10:01:56 The Judiciary of Kenya https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18447/eng@2025-11-06 4
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