Beatrice Wairimu Kariuki & 1 other v Daniel Muraya Wairagu & 1 other

3. That at Kayole area a motor vehicle registration KCA 157E registered in the name of the defendants and/or being driven by their authorized driver and agent was negligently and/or carelessly driven causing it lose control and ram into motorcycle registration KMDS 571Y thus fatally injuring the deceased plaintiff. 4. The particulars of negligence attributed to the defendants’ authorized driver and/or agent are tabulated at paragraph 6 of the plaint. It is further pleaded that the defendants were vicariously liable for the negligence of their authorized driver and/or agent. 5. The plaintiffs aver at paragraph 8 of the plaint that, at the time of his death, the deceased plaintiff was thirty-two (32) years old, married to one (1) wife with one (1) daughter and survived by his father who depended on him. Further, he was a banker earning a salary of Kshs. 40,000 per month which he used to maintain his family and/or dependents. 6. However, the plaintiffs’ claim was opposed by the defendants vide a statement of defence dated 8th February 2019. The defendants denied all the averments in the plaint, in particular that, they were the registered owners of the subject vehicle, that the vehicle was being driven by their authorized driver and/or agent and the occurrence of the accident as alleged. 7. Similarly, the particulars of negligence attributed to the defendant’s driver and/or agent and the fact that they are vicariously liable was denied. 8. However, the respondent pleaded that in the alternative and without prejudice basis that, if the accident occurred as s alleged, then the same was solely caused or substantially contributed to by the negligence of the driver or the undisclosed rider of motorcycle registration No. KMDS 571Y. The defendants tabulated the particulars of negligence attributed to the said rider at paragraph 8 of the statement of defence. 9. Furthermore, the respondent pleaded that in the alternative and without prejudice basis that, if the accident occurred as the as alleged, the same was solely caused or substantially contributed to by the negligence of the deceased plaintiff and tabulated the particulars of negligence attributed to him at paragraph 9 of the statement of defence. 10. Furthermore, it is pleaded that by the deceased plaintiff agreeing to be transported by a motorcycle, he consented to the risks attendant to such means of transport and the defendants placed reliance on the doctrine of voluntary assumption of risk and/or volenti non fit injuria. 11. That in additionally, t the driver of the subject vehicle herein took all reasonable measure to avert the accident including applying emergency brakes, swerving and hooting and therefore not liable in fact and law. 12. At the close of the pleadings, the case proceeded to full hearing. The plaintiffs’ case was supported by the evidence of (PW1) Lucy Nyokabi Mwara the wife of the deceased plaintiff. 13. She averred that on 25th February 2018 at about 10:00pm she received a call and was informed the deceased plaintiff was riding on a motorcycle and was involved in a road traffic accident at Kayole area along the Naivasha -Nairobi Highway. That the deceased plaintiff died on arrival at the hospital on the same day and the post mortem report indicated the cause of death as; a spine injury fracture. 14. That the deceased plaintiff was thirty-two (32) years old at the time of the death and left behind (PW1) Lucy, a daughter, the brother and father all who depended on him. That he worked at Barclays Bank and was earning an average of Kshs. 90,000 per month, having earned Kshs. 78,998 in October 2017, Kshs. 82,431 in November 2017, and Kshs. 94,417 in December 2017. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 2

page 2 of 9

15. She produced the documents in the plaintiffs’ list of documents as (P exh 1-3, 5-9) and prayed for compensation on behalf of her family and her in-laws. 16. The plaintiffs’ case was further supported by the evidence of (PW2) No. 96714 PC Josphat Makau who confirmed the occurrence of the accident on 25th February 2018, involving the subject vehicle registration No. KCA 157E and motorcycle KMDS 571Y which had one pillion passenger, the deceased plaintiff. That as a result of the accident, the deceased plaintiff sustained injuries and was rushed to Naivasha District Hospital where he succumbed to his injuries. 17. He further testified that from the police file the accident occurred on the left side as one faces Nakuru direction. That in his opinion the scene of the accident is a view down and requires a car to be driven at a speed of 50Km/h and any speed higher than that would result in an accident with the driver being held liable. He produced the police abstract as (PExh4). 18. In cross-examination (PW2) PC Makau stated that he was not the investigating officer and that the investigating officer had been transferred. That the driver of the subject vehicle was never charged with a traffic offence. Further, investigations revealed that the accident occurred in the middle of the road after the motorcycle emerged from the right side while facing Nakuru. 19. Further the motorcycle did not indicate that it was joining the road and was hit from the rear. Furthermore, the rider of the motorcycle was blamed for causing death and was charged in Naivasha Law Courts Traffic No. 958 of 2018 which was still pending. 20. The plaintiffs’ case was also supported by the evidence of (PW3) Joseph Mbugua Kamau the rider of motorcycle registration No. KMDS 571Y. He adopted his witness statement and testified that on 25th February 2018, he was carrying a passenger from Kunset Hotel in Nakuru and to Naivasha Town. That he had worn a helmet and a reflector and had also given the deceased plaintiff a helmet. 21. That on reaching Duka Moja he checked both sides of the road and began to cross when they were hit from behind by the subject vehicle. That he sustained injuries and was rushed to hospital but later informed of the death of the deceased plaintiff while at hospital. He blamed the driver of the subject vehicle for causing the accident as he hit them when he had already begun to cross the road. 22. In cross examination, (PW3) Joseph confirmed he had been charged in Traffic case 958 of 2018. That the subject vehicle was heading from Nairobi towards Nakuru while he was on the right side facing Nakuru. 23. The defendants closed their case without calling any witnesses. 24. Be that as it may, the parties subsequently filed their respective submissions. By a judgment dated 24th October 2023, the trial court entered judgment in favour of the plaintiffs in the following terms: a. Liability-------------------------100% against the appellants a. Pain and suffering ---------------- Kshs. 20,000 b. Loss of expectation of life --------- Kshs. 100,000 c. Dependency ---------------------- Kshs. 9,502,857.60 d. Special damages--------------------Kshs. 84,150 e. Interest on (b), (c) and (d) from date of filing the suit while interest on (e) from the date of delivery of this judgment at court rates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 3

page 3 of 9

f. 25. 26. Costs of this suit be borne by the defendants. However, the defendants (herein “the appellants”) are aggrieved by the decision of the trial court and appeals against it on the following grounds: a. That the learned Magistrate was in error of law and fact in finding the appellants 100% liable despite the Police Officer blaming the rider of motor cycle. b. That the learned Magistrate was in error of law and fact for failing to dismiss the suit for the lack of evidence against the appellants. c. That the learned Magistrate was in error of law and fact in failing to take into consideration the testimony of the rider who testified for the respondent and admitted in his testimony to have been charged with a traffic offence following the accident. d. That the learned Magistrate was in error of law and fact in failing to find that the accident was entirely caused and contributed by the rider of the motor cycle despite the rider being blamed and charged with a traffic offence. e. That the learned Magistrate was in error of law and fact in placing an obligation upon a defendant to assist the plaintiff to sue the culpable party. f. That the learned Magistrate was in error of law and fact in failing to take into account certain considerations material to an estimate of evidence. g. That the learned trial magistrate erred and misdirected himself in fact and law by awarding damages to the respondent that were manifestly excessive. h. That the learned trial Magistrate erred and misdirected himself on the principles applicable to damages and in his findings on loss of dependency. i. That the learned trial magistrate erred in law and in fact in failing to take into account the uncertainties and vicissitudes of life and give due allowance for that. j. That the learned Magistrate erred in failing to consider and critically analyse the submissions made on of the defendants and thus arrived at an unjustifiably high award. k. That the learned Magistrate award on damages for loss of dependency was so inordinately high. l. That the learned Magistrate award of damages for loss of dependency was based on no evidence at all. m. That award on loss of dependency was based on no or wrong legal principles. Similarly, the plaintiffs (herein “the respondents”) were aggrieved by the decision of the trial court and filed a cross-appeal against it vide HCCA E095 of 2023 on the following grounds: a. That the learned trial Magistrate erred in law and in fact by awarding judgment on quantum that was too low when there was overwhelming evidence to support the appellant’s case. b. That the learned trial Magistrate erred in law and in fact by failing to consider the plaintiff/ appellant’s submissions on multiplier and therefore using a wrong multiplier and awarding general damages which were too low. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 4

page 4 of 9

c. That the learned trial Magistrate erred in law and in fact by considering extraneous facts and not the principles known in law in awarding damages and thereby ending up with an award on general damages that were too low in the circumstances of the case before him. 27. The appeal was disposed of vide filing of submissions. The appellants in submissions dated 6th September 2024, argued that the trial court erred in finding them 100% liable despite evidence adduced by the respondents to the contrary. 28. That (PW2) PC Makau who testified on behalf of the respondents adduced evidence that motorcycle registration KMDS 571Y, which the deceased plaintiff was on as a pillion passenger, was hit from the rear while trying to join the Highway from a feeder road without ascertaining it was safe to do so. That (PW3) Joseph the rider of the motorcycle admitted that he was on the right side of the road and crossed to the other side of the road. 29. That the rider of the motorcycle was blamed for causing the accident and subsequently charged in Naivasha Traffic Case No. 958 of 2018, which was confirmed by (PW3) Joseph. 30. The appellants submitted that the respondents bore the burden of proof of negligence attributed to them. That the appellants’ failure to call the driver as a witness did not shift the burden of proof to themselves. They relied on the case of, Mugoya Construction & Engineering Ltd v Simon Nzangi Mutuku [2005] eKLR where the Court cited with approval the Uganda Breweries case, which stated that failure to call a witness does not draw an adverse inference against a party where the burden of proof has not been discharged. 31. The appellants further submitted that, in Kenya there is no liability without fault and a plaintiff must prove negligence. That the respondents having failed to do so, the suit against the appellants should have been dismissed as stated in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 as quoted in the case of East Produce (K) Limited v Christopher Astiado Osiro (Civil Appeal No. 43 of 2001). 32. With regards to and particularly; loss of dependency, the appellants argued that the evidence adduced by the respondents was contradictory to their pleadings. That in their plaint the respondents pleaded that the deceased earned a salary of Kshs 40,000 but produced a pay slip for the month of October 2017, showing that the deceased earned a basic salary of Kshs. 40,000 and commission of Kshs. 95,823.50 with the net pay being Kshs. 95,823.50. 33. The appellants submitted that parties are bound by their pleadings relying on the case of, Wareham T/A AF Wareham & 2 Others vs Kenya Post Office Savings Bank (2004) 2 KLR 91 where it was stated that only evidence of facts pleaded is to be admitted and where the evidence does not support the facts pleaded the burden of proof fails. 34. Further, the appellants relied on the case of, Independent Electoral and Boundaries Commission & Anor vs Stephen Mutinda Mule & 3 Others (2014) eKLR, where the Court of Appeal cited with approval the case of Adetounoladegi (Nig) Ltd. vs Nigeria Breweries PKC sc 91 2002, and stated that it a trite principle of law that parties are bound by their pleadings and any evidence at variance with the averments in the pleadings must be disregarded. 35. That in the instant case, the respondents did not amend their pleadings to reflect the commissions. That parties being bound by their pleadings, the earnings as per the payslip produced should be disregarded. 36. The appellants argued that the respondents produced only one payslip showing a higher commission. That a commission is not a fixed wage or a salary and it varies from month to month as such damages https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 5

page 5 of 9

should be calculated on earnings that are constant. That it is highly prejudicial if the multiplicand is based on earnings that are not fixed. 37. The appellants proposed that in calculating the loss of dependency, the court should use the basic salary if Kshs. 40,000 as follows: 40,000x12x12 (multiplier)x2/3= Kshs. 3.840,000 38. The appellants urged the court to ensure awards under the Law Reform Act (Cap. 26) and Fatal Accidents Act (Cap. 32) are not duplicated, and cited the case of; Joseph Wachira Maina & another v Mohammed Hassan [2006] eKLR where the Court cited Humphrey Muigana & Anor -vs- Robert Kibibiri Gichuki & Anor (Nakuru HCCC No. 85 of 1996) and stated that its trite that courts have to take into account an award made under the Law Reform Act when making an award under the fatal Accidents Act. 39. In response to the cross-appeal, filed in Naivasha HCCA No. E095 of 2023, the appellants submitted the multiplier of twelve (12) years adopted by the trial court was reasonable and should not be interfered with. That the choice of multiplier is a matter of judicial discretion as stated by the Court in the case of; Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another (2014) eKLR. 40. The appellants submitted that they had proposed a multiplier of 25 years with the respondents proposing 15 years. That, the trial court in reaching a multiplier of 12 years took into consideration the submissions of both parties. 41. The appellants referred the court to the case of Antony Nyaga Njagi v Mohamed Ibrahim Abdirahmed [2018] eKLR, where the court adopted a multiplier of 15 years for the deceased who was 32 years old. Further, in the case of; Juma Kigambwi v Loise Wambui Kahenya [2017] eKLR, the Court adopted a multiplier of 15 years of the deceased aged 33 years. And Ann Njoki Njenga V Umoja Floor Mills & Another [2006] eKLR where a multiplier of 14 years was used for deceased person aged 36 years. 42. However, the respondents in response submissions dated 11th September 2024, argued that, the appellants failed to enjoin the rider of the motorcycle as a third-party and cited Order 1 rule 15 of the Civil Procedure Rules which makes provision for third party proceedings. 43. The respondents also relied on the case of, John Njenga Maina vs Humprey Kinyua Rukeria (2016) eKLR where the Court stated that where a party claims indemnity against a third party, he is required to apply for leave to issue third party notice under Order 1 Rule 15 of the Civil Procedure Rules. The Court held that in absence of the third party the respondent should shoulder full liability. 44. Furthermore, that the appellants did not call any witnesses to challenge the evidence of the police officer and the rider, who testified that the appellants' vehicle knocked the motorcycle from behind. 45. On assessment of damages the respondents cited the case of Butt vs Khan where it was stated that an appellate court will not disturb an award unless it is so inordinately high or low as to represent an erroneous estimate. 46. The respondents argued that the payslip reflecting earnings of Kshs 98,988.10 was the only proof of the deceased’s earnings. That pleadings are not evidence and the pay slip being documentary evidence was the best evidence. Therefore, the court was right in relying on the amount stated in the pay slip. 47. The respondents further argued that the commissions formed part of the deceased's taxable pay. That the appellants never produced any documents to prove that there was a time where the deceased did not earn a commission and the trial Magistrate was right in adopting the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 6

page 6 of 9

48. The respondents submitted that the trial court erred by applying a multiplier of 12 years. That a multiplier of 25 years was reasonable for the deceased who was 32 years old and therefore had another 35 years until retirement of sixty (60) years. 49. The respondents relied on the case of Coast Bus (Msa) Ltd vs Fatimahhai Osman Suleiman & Another (2020) eKLR, where a multiplier of 25 years was adopted for the deceased who was 33 years old. 50. That the court ignored the proposals of both parties and adopted a multiplier of 12 years with no justification and asked the court to set it aside and adopted 25 years and then proposed loss of dependency award be calculated as follows: 98,988.10x12x25x2/3 = Kshs 19,797,620 51. The respondent further sought the Court to enhance awards for pain and suffering to Kshs 100,000 and loss of expectation of life Kshs 200,000 arguing that the deceased was aged 32 years old and had a bright future ahead that was cut short by the accident. 52. At the conclusion of the arguments by the parties, I note that the role of the 1st appellate court as stated by the Court of Appeal in the case of; Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123, is to re-evaluate the evidence afresh and arrive at its own conclusion. 53. The court stated as follows: “ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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.” 54. Pursuant to the aforesaid and upon evaluating the evidence herein I find that, on liability, the plaintiff opted to sue the defendants who are alleged to be the owners of the motor vehicle that was involved in the accident. The plaintiffs thus exonerated the rider of the motor cycle on which the deceased was a pillion passenger. 55. However, when the plaintiff led evidence in support of her case, the evidence was contrary to the pleadings. (PW2) No 96714 PC Josephat Makau clearly testified that (PW3) Joseph Mbugua who was riding the motorcycle, entered the road from the right side and as per the results of investigation, the motorcyclist was held to blame and the driver charged with a traffic offence, albeit, the case was still on going. Indeed (PW3) Mbugua admitted that he was charged with a traffic offence over the accident. 56. It is further noted that in holding the defendants 100% liable, the trial court stated that, the defendants failed to join in the rider as a party to the suit. 57. However, it is trite law that, the primary burden of proof lies upon the plaintiff who initiates the case. If for example the plaintiff fails to adduce any evidence to support the case and the defendant too opts not to adduce any evidence, it cannot be said that the plaintiff has proved the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 7

page 7 of 9

58. Furthermore, it is settled law that, parties are bound by their pleadings. The plaintiff was well aware of the evidence of her witness; (PW2) PC Makau to the effect that (PW3) Mbugua, rider of the motor cycle was held to blame and even charged with a trffic offence, yet instead of making the motor cyclist as a co-defendant, opted to avail him as a witness. 59. In the same vein, the defendants blamed both the motorcyclist and the deceased for the accident and still did not enjoin the cyclist in the matter as a third party and/or adduce any evidence to substantiate the particulars of negligence attributed to both the cyclist and/or the deceased. 60. In the given circumstances, it is the finding of this court, that both parties to the suit squandered the opportunity to enjoin the cyclist as a party and left him walk scot free from liability to their detriment. In that case, both parties must bear the responsibility for the same and doing the best I can, I apportion liability between the parties at 50:50% in favour of the plaintiff and as against the defendants jointly and severally. 61. The afore finding is also supported by the fact that, the rider though charged is yet to be found guilty on the charges. He might as well be acquitted or not, it is not clear yet. 62. On quantum, the defendants’ argument is that the plaintiffs pleaded Kshs 40,000 as deceased’s and produced a payslip of Kshs 98,988.10. That the bulk of that amount was commission, which fluctuates and the two pay slips showed varied amount, yet the pleadings were not amended as to how much he earned inclusive of the commission nor support the sum awarded. 63. In response, the plaintiff/appellant, avers that the amount in pleadings is not evidence, that documentary evidence of the pay slip is the best evidence. Further the defendants have not produced evidence that plaintiff earned Kshs 40,000 only or never earned a commission. 64. However, as stated herein parties are bound by their pleadings. The plaintiff pleaded that the deceased was earning Kshs 40,000 and are bound by the same. Therefore, that sum less the statutory deductions and/or PAYE of Kshs 2,216.00, totalling Kshs 32,825.00 65. The multiplier of 12 years was not substantiated and taking into account the deceased’s age, a multiplier of 25 years and not 12 years is reasonable to give the deceased plaintiff 60 years. Therefore, loss of dependency is calculated as follows: 32,825.00x12x25x2/3=Kshs 6,565,000. 66. In addition, loss of expectation of life is enhanced to Kshs 200,000 from Kshs. 100,000, while other awards remain as awarded. 67. Consequently, judgment is entered for the plaintiffs as against the defendants as follows: a. Judgment on liability 50:50% b. Pain & suffering --------Kshs 20,000 c. Loss of expectation of life---Kshs 100,000 d. Loss of dependency --- Kshs 6,565.000 e. Special damages--------Kshs 84,150 Total----------------------Kshs 6,769,150 Less 50% Total amount awarded------Kshs 3,384,575 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 8

page 8 of 9

Interest on the said sum from date of filing of the suit to payment in full. Costs of trial in lower court subjected to 50% to the plaintiff. Costs of appeal be borne by each party. DATED DELIVERED AND SIGNED THIS 3RD DAY OF NOVEMBER, 2025. GRACE L. NZIOKA JUDGE In the presence of:Ms. Kimanthi for the appellant Mr. Owuor for the respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19342/eng@2025-11-03 9

page 9 of 9