Pamela Luvusi v Ao Bayusuf

6. The respondent successfully contested the appellant’s claim because the suit was eventually dismissed. In his judgment dated 30 April 2020, the learned magistrate held, inter alia, as follows: “ 36. In present case, no evidence was adduced at all on how the accident occurred to enable the court to consider whether to apportion liability or not. 37. Clearly, the plaintiff has failed to prove negligence on the part of the defendants (sic) driver and the defendant cannot be held liable. 38. To that extent, the plaintiff's case fails.” 7. If the claim had succeeded, so held the learned magistrate, he would have awarded a global sum of Kshs. 400,000/= for loss of dependency under the Fatal Accidents Act. As for damages under the Law Reform Act, the learned magistrate was prepared to award Kshs. 20,000/= for pain and suffering, and Kshs. 60,000/= for loss of expectation of life. He was going to award special damages of Kshs. 126,000/= which he found to have been supported by payment receipts produced in court as proof of the expenses the appellant incurred as a result of the immediate consequence of her son’s demise. 8. The appellant was dissatisfied with the learned magistrates’ judgment hence the instant appeal. In the memorandum of appeal dated 27 May 2020, the appellant has raised the following grounds: “ 1. That the learned senior principal magistrate erred in law and in fact in finding that the plaintiff/ appellant failed to prove negligence on the part of the defendant. 2. That the learned senior principal magistrate erred in law and in fact in finding that no evidence was adduced at all to enable the court apportion liability. 3. That the learned senior principal magistrate erred in law and fact in failing to consider the plaintiff/ appellant's evidence which was not controverted on a balance of probabilities. 4. That the learned senior principal magistrate erred in law and in fact by failing to hold and find that the Defendant was vicariously liable for the subject accident as evidenced by the police abstract. 5. That the learned senior principal magistrate erred in law by failing to appreciate section 47 of the Evidence Act and failing to hold and find that the driver of Motor Vehicle Registration Number KBA 714T was negligent in the subject accident as evidenced by the police abstract and his subsequent conviction for causing death by dangerous driving. 6. That the learned resident magistrate erred in law by failing to appreciate that mistake of an advocate should not be visited upon a client. 7. That the learned resident magistrate erred in failing to consider or properly examine evidence and the submissions tendered by the Appellant.” The appellant seeks that the appeal be allowed and the learned magistrate’s judgment be set aside or varied as appropriate. 9. This being a first appeal, it is incumbent upon this Honourable Court to consider the evidence on record afresh and come to its conclusion though bearing in mind that the subordinate court had the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 2

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advantage of seeing and hearing the appellant, who was the only witness that testified. (see Selle v Associated Motor Boat Co. [1968] EA 123; Kiruga v Kiruga & Another [1988] KLR 348. In this latter decision, the Court of Appeal held that: “ An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution.” 10. It is with this in mind that I will consider and evaluate afresh the evidence tendered before the learned magistrate. 11. The court record shows that on 16 February 2015, judgment in default of appearance was entered against the respondent. This was endorsed by the deputy registrar of this Honourable Court in the following terms: “ Interlocutory judgment is hereby entered for the plaintiff against the defendant for Kshs. 154,750/= who has failed to enter appearance and statement of defence within the stipulated period. Other prayers subject to formal proof.” 12. Interlocutory judgment is provided for under Order 10 rule 6 of the Civil Procedure Rules, 2010 and is normally entered where the defendant fails to appear after having been served with summons to enter appearance. This rule reads as follows: 6. Interlocutory judgment (Order 10, rule 6) Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against such defendant, and the plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be. 13. The learned deputy registrar must have invoked this rule when he entered judgment against the defendant on 16 February 2015. Indeed, there is on record a request by the appellant for judgment expressed to have been filed under order 10 rule 4(2) of the Civil Procedure Rules. The request is dated 22 January 2015 and was filed in court on 30 January 2015. It reads as follows: “ The Plaintiff in the above suit requests for judgment for Kshs.154,750/= being special damages and interlocutory judgment for general damages against A. 0. BAYUSUF, the defendant herein who having been served with summons, failed to enter appearance and lo file its written statement of defence within the stipulated period.” 14. No doubt, the learned deputy registrar must have acted on this request when he entered the interlocutory judgment. 15. Notwithstanding the entry of the interlocutory judgment, a memorandum of appearance dated 20 February 2015 was filed in court on 23 February 2015. Subsequently, a statement of defence dated 25 February 2015 was also filed on 26 February 2015. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 3

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16. The deputy registrar noted these pleadings in the record of proceedings of 2 March 2015. The record of proceedings on this particular date reads as follows: “ Defence on record but filed out of Deputy Registrar (sic) time after request for judgment.” As a matter of fact, the statement of defence was filed not just after the request of judgment, but after the interlocutory judgment had been entered. 17. In his judgment, the learned magistrate held that the statement of defence which was subsequently amended after the appellant amended her plaint, was properly on record and, consequently, held that the appellant’s suit had been contested and, in particular, the respondent had denied the allegations against it as set out in the plaint. The learned magistrate discounted the interlocutory judgment in the following terms: “ 27. I note that from the record, interlocutory judgment was entered. The same was not set aside neither did the plaintiff proceed with formal proof. Instead the plaintiff proceeded with the case as if such interlocutory judgment had not been entered. In my view the plaintiff abandoned her right to have the matter proceed by way of formal proof.” 18. Here, the learned magistrate clearly erred in law because once he clearly acknowledged, and indeed there was no room for dispute, that that there was an interlocutory judgment on record which had not been set aside, it was not open to him to proceed as if such a judgment never existed. An interlocutory judgment under order 10 rule 6 of the Civil Procedure Rules is never set aside by waiver, acquiescence, implication or by inference and, in the appellant’s case, the appellant cannot be assumed to have waived her right to proceed ex parte merely because the court allowed the participation of the defendant or its counsel in the proceedings. 19. According to order 10 rule 11 of the Civil Procedure Rules, any judgment entered under order 10, including an interlocutory judgment, can only be set aside or varied at the discretion of the court and, more often than not, and except in those cases where the court would be entitled to set aside the judgment as a matter of right (ex debito justitiae), the setting aside of an interlocutory judgment would be on an application by the party against whom the judgment has been entered. Order 10 rule 11 reads as follows: “ Setting aside judgment (Order 10, rule 11) Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. 20. Thus, if an interlocutory judgment has to be set aside, there must be an express order to that effect. And as much as the order setting aside the judgment is subject to the discretion of the court, the court does not exercise such discretion at whim, to the prejudice of the party in whose favour judgment has been entered. The discretion to set aside the judgment can only be exercised “upon such terms as are just.” 21. In the appellant’s case, there was no application to set aside the interlocutory judgment and, therefore, there was no basis upon which the court could possibly exercise its discretion and set aside the interlocutory judgment. In any event, there was no suggestion that the court had exercised its discretion to set aside the judgment. Instead, the court proceeded on the erroneous presumption that the appellant had waived her right to proceed and formally prove her claim without the participation of the respondent in the proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 4

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22. What this boils down to is that the learned magistrate erred in law when he proceeded with the appellant’s suit as if it had been properly contested or defended against. 23. Proceeding on the mistaken understanding that the respondent could participate in the proceedings notwithstanding that neither a memorandum of appearance nor a statement of defence had been filed as prescribed or, at least, before the interlocutory judgment had been entered, the learned magistrate allowed the defence counsel to cross-examine the appellant on her evidence. 24. Order 6 rule 1 of the Civil Procedure Rules, makes it mandatory for a defendant who wishes to defend himself against any claim to first file an appearance unless, of course, the court orders otherwise. The rule reads as follows: Where a defendant has been served with summons to appear, he shall unless some order be made by the court, file his appearance within the time prescribed in the summons. 25. According to Order 6 rule 2, the appearance takes the form of a memorandum of appearance and according to Order 7 rule 1, the defence is to be filed within fourteen days after entry of appearance. The rule reads as follows: 1. Defence [Order 7, rule 1] Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service. 26. Against the background of these provisions of the law, it can be concluded that, in the absence of the memorandum of appearance, the respondent had not demonstrated that it was prepared to defend itself against the appellant’s claim and, therefore, there was no legal basis upon which the defendant could participate in the proceedings and, in particular, to cross-examine the appellant. It was, therefore, plainly wrong for the learned magistrate to have allowed the respondent’s counsel to cross-examine the appellant when the respondent had not entered appearance. 27. Talking of when a defendant who has not entered appearance may participate in the formal proof hearing, Majanja, J. noted in Koinange & 2 others (Suing as administrators of the Estate of Dinah Muthoni Mbuthia) v Associated Construction Company (Kenya) Limited [2024] KEHC 4595 (KLR) as follows: “ The fact that there was a default judgment in place did not bar the respondent from attending the formal proof proceedings. It ought to have been served with the hearing notice. I would however add that following the default judgment, the respondent cannot present any evidence, call witnesses or produce documents as there is no defence to be presented. Its appearance and participation is limited to cross-examination of the witness and nothing more. The trial magistrate therefore came to the correct decision to the extent that the appellant was entitled to be served with process. The order dated 29.10.2021 is however set aside to the extent that it permits the respondent, “to participate fully in the trial and/or formal proof process/proceedings including cross-examination of the Plaintiff’s witnesses, production of documents and calling of witnesses.” The respondent’s participation in the formal proof shall be limited to cross-examination of the witnesses.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 5

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28. This can only be true where the defendant has entered appearance but has not filed a defence. Where no appearance has been entered, not even the limited window of cross-examination of the plaintiff without production of evidence is open to the defendant. 29. With the interlocutory judgment on record, and having held that the purported memorandum of appearance and the statement of defence were, at the very least, superfluous, the next question is whether in those circumstances, it would have been open for the trial court to interrogate the question of liability. 30. This is a question that has been discussed by the Court of Appeal in several cases. Amongst those I came across in seeking an answer to this question is the case of Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR), where the Court held that the plaintiff still bears the burden to prove his case on a formal proof notwithstanding that a defence against the suit has not been filed. The court held has follows: “ Neither can I agree with Mr Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.” Platt A.g J.A. stated in the same case as follows: “ I agree with the judgments that have been read, and would only like to emphasise two points. The first is that I am not surprised that the words “formal proof” have once again led to misunderstanding. They should not be used as they are no longer part of the Civil Procedure Rules. Orders IXA & IXB of those Rules do not employ them. As will be seen for Order IXA Rules 8 & 9, when any party does not appear or defend the plaintiff may set down the suit for hearing under Order IXB Rule 1. In the latter rule the plaintiff sets the suit down for hearing having given reasonable notice to every defendant who has appeared. There was an appearance in this case. Then under Order IXB rule 3, when the plaintiff only has attended, the court may proceed “ex parte”. The plaintiff has therefore to prove his case. To do so he calls evidence, such evidence before the court, the court may consider it unchallenged and proceed upon it, unless it is clear that it is intrinsically unreliable. No court will believe that the noon is actually the sun however unchallenged that statement may be.” (Emphasis added). 31. It is apparent that it is only a defendant “who has appeared” that may be notified, and therefore, who would be entitled to participate in the proceedings. The case ought also to be understood in context. The plaintiff, in that case, was held to have sued parties who ought not have been sued and, therefore, judgment could not be entered against them merely because there was no appearance or no proper appearance. 32. But in Peter Njoroge Kamau v Attorney General [2017] KECA 71 (KLR) the Court of Appeal was even clearer that once an interlocutory judgment has been entered, the plaintiff need not prove liability. The court held as follows: “ 23. If the learned Judge had perused carefully the record of the proceedings before the Resident Magistrate, she would have observed that interlocutory judgment was entered against the respondent when the appellant's application dated 25th June 2008 seeking striking out of the defence and interlocutory judgment https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 6

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was allowed on 24th September 2008. Clearly the learned Judge sought to distinguish the aforementioned authorities from this appeal on an erroneously factual basis namely, that in this appeal, unlike in the said cases, there was no interlocutory judgment, yet there was. The distinction that the learned Judge sought to draw between this appeal and the said authorities was not there. The learned Judge erred in that regard and arrived at a wrong legal proposition. The question of liability was a non-issue. It was a foregone conclusion. Once an interlocutory judgment was regularly entered, it meant that there was judgment on liability and the only other step remaining was assessment of damages. It would be absurd to have judgment on liability entered and then backtrack to impugn such judgment! The learned Judge fell into error in this regard.” 33. In allowing the appeal, the learned judges of appeal agreed with the counsel for the appellant that after the striking out of the defence in the resident magistrate’s court, and the making by the court of the order for the suit to proceed to hearing by way of formal proof, liability was settled and that the only issue for trial was quantum of damages. In so submitting, the learned counsel for the appellant cited a previous Court of Appeal decision of Abdullahi Ibrahim Ahmed versus Lem Lem [2013] eKLR where it is said to have been held that once interlocutory judgment is entered, and formal proof is directed, the issue of liability is resolved and the issue to be determined at formal proof is quantum of damages. 34. This is also the reasoning in Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR) where the Court of Appeal held: “ 17. 35. We would have thought that the effect of the interlocutory judgment was that liability in regard to the appellant's claim was no longer in issue as the respondents had failed to dispute the facts pleaded by the appellant in the plaint.” And as to what formal proof could have entailed in these circumstances, the court noted as follows: “(19) The formal proof entailed the taking of evidence in order to demonstrate the loss arising from the respondents' alleged breach of agreement and the justification for the reliefs sought by the appellant. The court, at the stage of formal proof, is only concerned with the extent of the loss and the appropriateness of the relief sought. (20) The appellant testified and called one witness at the formal proof hearing. The evidence of purchase of the business then run on the suit premises could not be and was not disputed. He produced the sale agreement for the purchase and demonstrated payment for the business. At no time did the appellant allege that he had bought the business from the respondents. The business did not belong to them in any event. Having demonstrated that he had made that investment, the appellant set out to demonstrate that the business was no more, thanks to the acts of the respondents. He lost his entire investment which was domiciled on the suit premises owned by the respondents. The best way to demonstrate the value of that investment was to produce the sale agreement and show how he had paid for the same. The respondents may have discredited some of the contentions of the appellant during the formal proof hearing but the record is plain that the appellant paid for the business for the said sum of Kshs.3,800,000/= which business could no longer be carried out on the premises thanks to the acts of the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 7

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(21) That being our view of the matter, we think the circumstances before the learned Judge did not justify the dislodging of the interlocutory judgment which had been regularly entered against the respondents. It is now settled that once interlocutory judgment has been entered the question of liability becomes a foregone conclusion. In Felix Mathenge -v- Kenya Power Lighting Company Limited (Civil Appeal No. 215 of 2002) UR, the Court held: "The role of the court after entering interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages". (Emphasis added). 36. If I may add, formal proof is necessary, in part because only material facts and not evidence are to be pleaded. Order 2 rule 3 of the Civil Procedure Rules speaks to this point. It reads as follows: 3. Facts not evidence, to be pleaded (Order 2, rule 3) (1) 37. Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. According to order 18 rule 1, it is at the hearing that a party produces evidence in support of those issues that he is bound to prove. The rule reads as follows: 2. Statement and production of evidence (Order 18, rule 2) Unless the court otherwise orders— On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. 38. Thus, formal proof serves the purpose of production of evidence which is not only pertinent to the claimant’s case but which, despite the interlocutory judgment, ought to be produced at the hearing. As to the nature of such evidence and when it will be required will, of course, depend on the peculiar circumstances of each case. 39. Speaking of evidence, only the appellant testified in her case against the respondent. It was her testimony that the deceased was her only son and that at the time of his death, he was in class five. In terms of academic performance, his son was always among the top two students in his class. 40. Besides being the deceased’s mother, she was also the administrator of his estate. Prior to filing suit, the appellant obtained a police abstract which, among other information, showed that the respondent’s driver had been charged and found guilty of some offence related to the accident. Among other documents she produced were the receipts for payment for expenses which she incurred including mortuary fees. She also produced letters of grant in respect of the deceased’s estate but limited to filing suit. 41. The learned magistrate accepted the police abstract as proof of the fact of ownership of the vehicle which caused the accident. Indeed, the Court of Appeal has held in Joel Muga Opija v East African Sea Food Limited (2013) KECA 181 that where the evidence to which a police abstract relates is not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 8

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disputed, such evidence ought to be accepted as conclusive proof of the facts upon which a party’s case rests. In that case the court held as follows: “ We have anxiously considered this aspect of the appeal as it is a legal matter as to what constitutes evidence that would establish ownership of a motor vehicle involved in an accident particularly in a situation such as obtained in this appeal before us. In the case of Thuranira Karauri vs Agnes Ngeche – [Civil Appeal No. 192 of 1996] (UR) which was annexed to the submissions of the respondent in the Senior Resident magistrate's court, this Court differently constituted stated:“The plaintiff did not prove that the vehicle which was involved in the accident was owned by the defendant. As the defendant denied ownership, it was incumbent on the plaintiff to place before the Judge a certificate of search signed by the Registrar of motor vehicles showing the registered owner of the lorry. Mr. Kimathi, for the plaintiff submitted that the information in the police abstract that the lorry belonged to the defendant was sufficient proof of ownership. That cannot be a serious submission and we must reject it.” We observe that in that case the defendant did not give evidence in his defence, and we further note that the learned Judges of Appeal in that case had settled for allowing the appeal on other grounds they considered more serious so that the finding above remained orbiter. Hear them at the end of their judgment: “In the final analysis, the appeal succeeds and is allowed. We set aside the judgment and decree of the Superior Court and in view of our finding that the claim was time barred, which rendered the suit incompetent, we substitute an order striking out the plaintiff's suit with costs to the defendant. The defendant will also have the costs of this appeal.” We find of persuasive value the view held by Ali Aroni J. when she considered a similar issue of ownership in the case of Collins Ochung Ondiek vs Walter Ochieng Ogunde – [HC Civil Appeal No. 67 of 2008,] (UR). She distinguished Thuranira's case from the case that was before her as follows: “In as much as the abstract form is not conclusive evidence of ownership of a motor vehicle, the court notes that the defence did not take the issue of ownership seriously. The case of Thuranira Karauri vs Agnes Ngeche can be distinguished from the current case in many ways, it had several loop holes, it was time-barred and no proof of extension of time was produced in evidence, other material documents were produced in breach of provisions of Section 35 of the Evidence Act which is not the case here. We agree, many reasons led to the decision in Thuranira's case the main one being that the suit was time-barred. In the more recent case of Ibrahim Wandera vs P.N. Mashru Limited, [Civil Appeal No. 333 of 2003] (unreported) this Court, again differently constituted considered a similar scenario. In that case only the appellant testified and on appeal the issue of whether ownership was proved was raised. Coincidentally, the advocate for the appellant was the same as is in this case and some of the grounds advanced in the Memorandum of Appeal were very close to the grounds raised in this appeal. This Court stated as follows: “The issue of liability was not specifically raised as a ground of appeal before the superior court. Tanui J. proceeded as though the appellant had not presented evidence on ownership of the accident bus. The learned Judge, with respect to him, did not at all make any reference to the police abstract report which the appellant tendered in evidence. In that document https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 9

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the accident bus is shown as KAJ 968W, with Mashiru of P.O. Box 98728 Mombasa as owner. This fact was not challenged. The appellant was not cross examined on it. It means the respondent was satisfied with that evidence.” In fact, in that case Mr. Menezes who represented the appellant applied to challenge the admissibility of the police abstract but without success. That he did so, demonstrated the importance of the contents of the abstract as to ownership. Lastly, in the case of Lake Flowers vs Cila Franklyn Onyango Ngonga (suing as the personal legal representative of the estate of Florence Agwingi Ogam (deceased) and Josephine Mumbi Ngugi (2008) eKLR which was also on the same issue, it was held:“Without the appellant adducing evidence at the trial to counter what the 1st respondent blamed its driver for, it was difficult for it to contest the liability blamed against it by the superior court and/or (sic) attempt to partly or wholly blame the 2nd respondent for the accident on this appeal. Neither can it deny the ownership of the Mitsubishi Canter without any evidence to counter the Police Abstract produced by the 1st respondent which shows it to be the owner of that motor vehicle.” It is noteworthy, that Bosire JA. sat in Thuranira's case (supra), Wandera's case (supra) and in the Lake Flower's case. It would appear that like us, he treated the comments in Thuranira case as orbiter. It is clear to us that there has been a move from the rigid position that was pronounced, albeit as orbiter, in the Thuranira case. In any case in our view an exhibit is evidence and, in this case, the appellant's evidence that the Police recorded the respondent as the owner of the vehicle and Ouma's evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter that evidence. We think, with respect, that the learned Judge in failing to consider in depth the legal position in respect of what is required to prove ownership, erred on point of law on that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the Registrar of Motor vehicles showing who the registered owner is, but when the abstract is not challenged and is produced in court without any objection, its contents cannot be later denied.” 42. I have had to reproduce here much of what the Court of Appeal said in order to understand the context in which police abstracts or the information contained in such documents may be admitted as conclusive proof of any particular facts. 43. The sum total is this: in the absence of any challenge, the contents of a police abstract, including information as to the ownership of a motor vehicle, cannot be denied. In the police abstract in issue, the owner of the vehicle is indicated to be A.O.Bayusuf which, as noted earlier in this judgment, is a company duly registered under the Companies Act. The accident was described in the abstract as fatal and the victim is named in the abstract as Peter Prizon. The driver of the vehicle is named as one Nabil Omar Morodhi and was charged with the offence of causing death by dangerous driving in Traffic Case no. 2546 of 2012. He was fined Kshs. 30,000/= in default one-year imprisonment. 44. The grant of letters of administration limited to filing the suit in court was made to the appellant on 3 June 2014. It shows that the deceased died on 21 November 2011. 45. These facts were not disputed and, that being the case, the only outstanding issue was the assessment of damages. In this regard, the learned magistrate rightly held that regardless of whether the plaintiff https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 10

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has proved negligence, the court is still bound to assess the damages to which the appellant would be entitled. He then proceeded to assess damages under the Fatal Accidents Act and the Law Reform Act. 46. Under the Fatal Accidents Act, he cited the cases of Oshiuji Kuvenji & Another -vs- James Mohamed Ongeng (suing as a representative of the estate of Samuel Ongenge (2012) eklr, and Palm Oil Transporters & Another -vs- R.K. Obura and Another (2015) eklr where a global award of Kshs. 400,000/= for loss of dependency was made for minor aged 11. He, therefore, awarded the sum of Kshs. 400,000/=for loss of dependency. 47. As for damages under the Law Reform Act, the learned magistrate established that the deceased died a few hours after the accident and, therefore, awarded Kshs. 20,000/= for pain and suffering. For loss of expectation of life, the court held that the age of the deceased was not given and, therefore, made an award of Kshs. 60,000/=. He awarded Kshs. 126,000/= as special damages. 48. According to the appellants, the award for pain and suffering ought to have been Kshs. 50,000/= while the sum of Kshs.2,700,000/= ought to have been awarded under the head of loss of expectation of life. It was submitted that the amount of Kshs. 60,000/= which the learned magistrate would have awarded for loss of expectation of life had the suit succeeded was too low because the court did not consider the multiplier and the age of the deceased. 49. As far as the head of damages under special damages is concerned, it was submitted that the court ought to have awarded the sum of Kshs. 154,750/= for which an interlocutory judgment had been entered. 50. The respondent’s submissions, on the other hand, are focussed on liability and, in particular, it has been urged that the appellant’s appeal should fail since it was not proved that the respondent was liable for the road traffic accident. For reasons I have given, and based on the precedents I have cited, the appellant need not have proved liability once an interlocutory judgment in default of appearance or defence was entered. 51. Turning back to the appeal on the award of damages, it is trite that assessmnet of damages is the discretion of the trial court and, for that reason, the appellate court would normally be reluctant to interfere with such assesment unless it can be demonstrated that the assessment was erronoeus in certain respects. This was so held by the court of Apeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). In that case, it was held that: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K).” 52. That aside, it is apparent that none of the grounds of appeal have questioned the assessment of damages by the learned magistrate. The appellant, and the respondent, as the respondent’s submissions show, were more concerned about the learned magistrate’s finding on liability. 53. Order 42 rule 4 of the Civil Procedure Rules constrained the appellant to stick to those grounds outlined in the memorandum of appeal. This rule reads as follows: 4. Grounds which may be taken in appeal [Order 42, rule 4] https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 11

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The appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. 54. No leave was granted for the appellant to be heard on any grounds other than those in the memorandum of appeal, and; as much as this Honourable Court is not confined to the grounds in the memorandum of appeal in reaching its decision, it cannot peg its decision on any ground or grounds outside the memorandum of appeal if the respondent has not been accorded the opportunity to contest the ground or grounds. I will, therefore, not venture into the question of whether the awards made were adequate. 55. For the reasons I have given, I will allow the appeal only to the extent of overturning the learned magistrate’s decision dismissing the appellant’s suit. I will substitute the decision with an order entering judgment against the defendant in terms proposed by the learned magistrate had he allowed the suit. 56. Accordingly, judgment is entered for the appellant against the respondent as follows: 57. a. Damages for Loss of dependency Kshs. 400,000/= b. Damages for pain and suffering Kshs. 20,000/= c. Damages for loss of expectation of life Kshs. 60,000/= d. Special damages Kshs. 126, 000/=. The appellant shall have costs of the suit in the lower court and in this appeal. Interest at court rates on the decretal sum and costs shall accrue from the date of judgment in the lower court till payment in full. It is so ordered. SIGNED, DATED AND DELIVERED ON 2 OCTOBER 2025 NGAAH JAIRUS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18792/eng@2025-10-02 12

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