Sunkar Hardware & Tools Limited v Joseph Nzomo Kathunzi and David Mulyungi (suing As The Administrator of The Estate of The Late Kamene Katunzi Mwaniki - Deceased)

4. 2. That the learned Magistrate erred in law and fact in awarding the plaintiffs special damages of Kshs. 19,500/= which was not supported by evidence. The appellant prays that the Judgment on liability be set aside as well as the damages and special damages awarded be set aside. That the appellant be awarded costs of the appeal. The appeal was opposed and directions were given that the appeal be canvassed by way of written submissions. Respondent/Plaintifi ’s Case 3. He filed the suit vide a plaint dated 25/5/2022 claiming general, special damages and costs of the suit against the appellant. His claim was that the defendant/appellant was the registered owner of motor vehicle KCY 156W which he claims that it was driven negligently and carelessly on 28/6/2021 that it lost control, veered off the road and knocked down the deceased causing him fatal injuries. the respondent gave the particulars of negligence as follows: a. Driving the motor vehicle in excessive high speed in the circumstances. b. Driving the said motor vehicle without due care and attention. c. Driving the said motor vehicle so dangerously and/or so negligently and without regard to pedestrians particularly the deceased. d. Driving the said motor vehicle recklessly and in total violation of Traffic Rules. e. Failing to slow down, stop, break and/or take any other reasonable measure to avoid the said accident. f. Driving a defective motor vehicle. g. Causing the accident. 4. That the plaintiff would rely on the doctrine of Res Ipsa Loqutor. The respondent claimed that the appellant was vicariously liable. That by reason of the deceased’s death his estate suffered loss and damage. The deceased was 85 years old and a farmer who was the family’s bread winner. 5. PW1 David Mulyungi. He adopted his witness statement where he stated that the deceased was his mother who died as a result of a road accident after she sustained fatal injuries. he reported at Mwingi Police Station and was issued a Police Abstract. He blamed the driver of Motor Vehicle Registration number KCY 156W for the accident. In cross-examination he admitted that he did not witness the accident. He did not know how much money the deceased used to earn. 6. PW2 PC Mugungu Juma of Mwingi Police Station Traffic Base. He produced the Police Abstract. He testified that the accident occurred along Mwingi – Kalisasi road at Kwa Muthusi area involving motor vehicle KCY 156W Isuzu Dmax and pedestrian aged 85 years old called Kamene Kathunzi. The vehicle was being driven by Daniel Muthusi from Kalisasi direction. The vehicle knocked down the pedestrian who died on the spot. He visited the scene and conducted investigations. In cross-examination he was none committal as to who was to blame for the accident. He produced the Police Abstract as an exhibit in the case. In cross-examination he told he court that the road was newly tarmacked and was not marked for the middle yellow line. 7. PW3 Makina Munu testified that she witnessed the accident. The deceased was crossing the road and was hit before she finished crossing the road. She told he court that the deceased was crossing the road. Although she stated that there was a Zebra Crossing this contradicted the testimony of PW2 who https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 2

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earlier told the court that there was no Foot Bridge and Zebra Crossing at the scene and no Speed Sign. PW3 testified that the vehicle was being driven at a speed of 20KM/h. That the deceased was hit while crossing the road. Appellant/Defence Case 8. DW1 was Daniel Muthui. He adopted his statement. He told the court that he was driving the said vehicle at the time of the accident doing a speed of 70 Kilometers per hour. At the scene of the accident the deceased crossed the road was looking left or right. He swerved to the right but she was hit as she was very close. That he had no chance of avoiding her. He was driving on the left lane before she appeared. The learned magistrate held that the defendant was 100% liable. Submissions Appellants Submissions 9. He submits that the issue for determination is whether: a. The learned magistrate erred in law and fact by apportioning liability at 100% against the appellant. b. Whether the learned magistrate erred in fact and la by awarding excessive damages of Kshs. 1,000,000/=. c. Whether the learned magistrate erred in awarding Kshs. 24,050/= which was not supported by evidence. 10. On liability he submits that the learned magistrate apportionment of liability was unconscionable and was made without any legal or evidential justification. That PW3 confirmed that the deceased was crossing the road at a place where there was no zebra crossing, bump or flyover. That PW2 did not visit scene or record statements, nor did he record witness statement and did not produce investigations report or photographs. Relies on Pesa Hamisi -vs- P. N Mashru Limited (2020) eKLR where the Judge stated that it is desirable for the evidence of the police officer to be one to link in the claim objects of relevance at all times to the events in issue establishing the proximate cause of the accident. 11. That PW2 confirmed that he was not the investigating officer. That a police abstract is not evidence of wrong doing by the defendant as held in Peter Kimathi Kinunga -vs- Aden Ginyo (2014) eKLR. He submits that eh evidence of PW2 be disregarded as he did not produce the police file and the sketch plan. 12. The appellant further relies on Karienye (Suing as the Administrator of the Estate of the late Karienye Kibe Deceased -vs- Gman Investments Limited and Another which cited with approval the Court of Appeal in Hussein Omar Farar -vs- Lento Agencies C.A Nairobi Civil Appeal No. 34/2005 where the court of Appeal held that, “ if there is no concrete evidence to determine who is to blame between two drivers both should be held equally to blame.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 3

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13. He further relies on Abson Motors and 2 others -vs- sinema Kitsao & Crospus Kitsao Kajefwa (Administrators of the Estate of the late Kitsao Kajefwa Kitunga (deceased) HCC No. 39 of 2013 where the Court stated that: “ a pedestrian wo opts to cross the road must ensure that it is safe for him/her to do so. It is clear to me that he deceased being aged misestimated his decision to cross the road.” The court awarded the ration of 80:20. He submits that he deceased was 85 years old and therefore the magistrate erred in finding the appellant 100% liability. 14. On whether the award was excessive, it is submitted that this court has established a jurisprudence that an award of lost years is inseparable from the deceased’s employment or prospects of employment. That the deceased was not employed and there was no evidence of any other form of informal employment. 15. He cited Roger Dainty -vs- Oman Haji and Another CA 59/2004 “ …what the deceased could have been likely to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at time of his death was reasonably likely is what is to be considered as lost years.” 16. The appellant further relies on David Ngunye Mwangi -vs- Chairman of the Board of Governors of Nyeri High School (2001) eKLR where the court identified the four factors to be considered as age, wages and the expectations of the deceased and the properties of the net income the deceased would have made for his dependants. That considering the age of the deceased which was confirmed to be 85 years, the learned magistrate failed to consider the fact she was past retirement age of sixty years. That no proof of earning was disclosed. He submits that the awards of Kshs. 1,000,000/= was excessive. 17. That the pleadings by the respondent did not provide evidence to prove the deceased’s net income. It is submitted that there was no basis for awarding the deceased Kshs. 1,000,000/= for lost years and the court has reasons to interfere with the award. 18. On special damages it is submitted that the learned magistrate awarded Kshs. 24,050/= which was not specifically pleaded and proved. He relies on Philmark Systems Co. Ltd -vs- Andermole Enterprises (2018) eKLR which cited Malawi Railways Ltd -vs- Nyasulu (1998) MWSC 3 where it was stated that a party is bound by his own pleadings and that: “ The court is itself bound by the pleadings of parties as they are themselves. That it is not upon the court to enter any enquiry before it other than to adjudicate the specific matters in dispute which the parties themselves have raised in their pleadings. That it would be wrong for the court to pronounce any claim or defence not made by the parties. That special damages must be specifically pleaded and proved. The appellant prays that the appeal be allowed.” Respondents Submissions 19. It is submitted that the evidence of the eye witness proved negligence on the side of the appellant. That the driver who was in control of a lethal machine ought to have exercised caution while driving on a public road and be on the lookout, be vigilant and most importantly be ale to control the vehicle and bring it to a safe stop in the event of an emergency. That the learned magistrate did not error in his decision or liability. He relies on Miller -vs- Minister of Pension (1947) 2 ER 372 on burden of proof in Civil Matters where it was stated that it was on balance of probabilities. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 4

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20. On general damages, he relies on Section 4(1) of the Fatal Accidents Act and submits that the learned magistrate based his finding on the evidence available. That the deceased was working as a farmer at the time of his demise. Relies on Moses Maina Muchiri -vs- Cyrus Maina Macharia 2016 eKLR. The court held that a court can give a conventional award if the multiplicand cannot be ascertained. That the award by the learned magistrate was appropriate and reasonable. He urges the court to dismiss the appeal. He relies on Peter Namu Njeru -vs- Philemone Mwangoti -vs- 2016 eKLR on the principles of setting aside the awards of damages. Analysis and Determination 21. I have considered the proceedings and Judgment before the learned trial magistrate, the grounds of appeal and the submissions. The issues for determinations are: 1. Liability 2. Quantum of damages 22. This is a first appeal. The duty of this court has been laid down by the Court of Appeal and the High Court in a like of authorities. Briefly, the duty of the 1st appellate court is to analyze the evidence, evaluate it and came up with its own independent finding. The court must subject the entire evidence tendered before the trial court to a fresh, exhaustive and critical satiny. It must weigh conflicting evidence and draw its own conclusions, not merely check if there was some evidence to support the lower courts finding. The first appellate court is not limited to points of law only, it must consider both factual and legal findings. The court must however leave room for the fact that it did not have an opportunity to see and hear the witnesses when they testified and leave room for that. In Mwanasokoni -vs- Kenya Bus Services Ltd 1985 KLR 931 it was held that the duty of the first appellate court is to revisit the evidence on record, evaluate it and come up with its own conclusion. 23. In Abek James Odera t/a A.J Odera & Associates (2013) KECA 208 KLR, the court of Appeal stated that: “ This being a first appellate court we are reminded to our own primary vide as a first appellate court namely, to re-evaluate, re-asses and re-analyze the extracts on record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 24. In Kenya Ports Authority -vs- Kinston (Kenya) Limited (2009) 2 E.A 212 the court of Appeal held that: “ On first appeal from the High Court, the court of Appeal should reconsider the evidence, re-evaluate it and come up with its own finding and is not necessarily bound to agree with the finding of the trial court.” 25. This duty is reinforced by Section 78 of the Civil Procedure Act Cap 21 Laws of Kenya which provides as follows: “ (1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 5

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(2) (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” The 1st appellate must give reasons for its decision. 26. The term liability connotes the blameworthiness of a party that caused the accident. In simple terms it is the determination of the question as to who was to blame for the occurrence of the particular accident. Liability is proved by evidence and pits the person claiming that the other was to blame to discharge that burden of proof on a balance of probability. In this case the burden was on the respondent to prove that he appellant was to blame for the accident. Section 107 of the Evidence Act (Cap 80 Laws of Kenya) provides that: “ He who alleges must proof.” This is the legal burden of proof which rests on the person alleging existence of certain facts and does not shift. 27. The respondent called PW3 as its eye witness. The witness had stated in her witness statement that the vehicle KCY 156W was driven recklessly and carelessly, was over speeding and the driver lost control, veered off the road then knocked the deceased. That the owner of the moor vehicle stopped and waited for family members and the deceased. In court upon being cross-examined, she stated as follows: “ The deceased was crossing the road and the vehicle hit her before she finished crossing the road. The two versions of how the accident occurred do not add up. It shows the witness was not canid and she could not have been truthful. She further stated that there was a zebra crossing which she said is a white line at the edge of the road. This despite the fact that PW2 stated that there was no white line at the edge of the road nor was there a zebra crossing or foot bridge. This witness exposed herself as unreliable and was not a credible witness. Her testimony being the only eye witness as to how the accident was insufficient to prove that the appellant was to blame. PW2 the police officer visited the scene and he admitted that he did not investigate the accident and did not know the outcome of the accident. PW1 did not witness the accident. The learned magistrate’s finding that the evidence of the eye witness was more plausible was in error as he ignored the self-contradicting evidence in court and her witness statement. He ignore the evidence of the appellant that the deceased was crossing the road when it was not safe to do so. 28. An eighty-five-year-old woman who must have been crossing the road at slow pace is likely to have miscalculated the distance of the vehicle and endangered her own safety. It is clear that it was not established before the learned magistrate that any of the parties was more blame worthy than the other. The appellant had a duty to take care of other road users and ensure that the vehicle that he was in control of did not become a danger and cause harm to others. Time and again it has been held that the fact of the evidence per se is not conclusive evidence of breach of duty of care, there has to be proof on a balance of probabilities that he driver breached that duty. Balance of probabilities is a consideration as to what was more probable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 6

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29. The two scenarios in this case are that, the driver could have been negligent in the manner in which he was driving the vehicle at the material time or the deceased crossed the road when it was not safe to do so. Faced with such circumstance, the court has to apportion the blame equally to both of them. 30. In the case of Wanjohi -vs- Ngigi (Civil Appeal No. E189/2023 (2024) KLR the court stated: “ In this case there was no credible evidence on which negligence can be informed on the part of the 1st & 2nd respondent herein. Being guided by the case above the investigating officer never testified nor produced any sketch plans. The respondent did not prove her case on the balance of probabilities. The appeal succeeds and I set aside the judgment of the lower court.” 31. The court of Appeal in the case of Kanenge (suing as the administrators of the Estate of the late Kanenge Kibe (deceased) -vs- GMan Investments Limited & Another which was cited with approval by the court of Appeal in Hussein Omar Farar -vs- Lento Agencies, C.A Nairobi Civil Appeal No. 341 2005 (2006) KAR stated: “ In our view it is not reasonably possible to decide on the evidence of a witness who testified on both sides as to who is to blame of the accident. In this state of affairs, the question arises as to whether both drivers should be held to blame. It has been held in our jurisdiction that if there is no concrete evidence to determine who is to blame between the two drivers both should be held equally to blame.” 32. In Abson Motors and 2 Others -vs- Sinema Kitsao & Crispus Kitsao Kajefwa Kitunga (deceased) HCC 39/2019 the court held that the learned magistrate erred in holding that the respondent was 100% liable, the court held – A pedestrian who opts to cross the road must ensure that it is safe for him/her to do so. It is clear to me that the deceased must have mistimed her decision to cross the road. The court allowed the ratio of 80:20. 33. The deceased created a situation on the road which turned out to be dangerous and fatal. The police officer who produced the police abstract (which in itself did not proof that an accident occurred as there was no prove that it was reported as there was no OB and no investigation were done) did not lay blame on the appellant. The learned magistrate erred in making a decision on liability which was based on no evidence. The decision was against the weight of the evidence and cannot be upheld by this court. The deceased created the situation by crossing the road when it was not safe to do so. I find that the deceased and the driver were equally to blame. The decision of the learned magistrate on liability is set aside and substituted with and order that each party bears equal liability for the accident. That is 50:50 liability. 34. On quantum of damages the deceased was eighty-five (85) years old. No evidence was tendered to prove what she used to do to earn a living. There was absolutely no evidence. In determining the income, age has to be considered as person of advanced age has a diminished earning capacity. No evidence was produced to proof her earning, documentary or oral. The award of Kshs. 1,000,000/= was not based on any evidence. This award is no doubt excessive. 35. The respondent did not avail evidence on the income of the deceased. Courts have held that where the income has not been proved, the court should award a global sum or apply the minimum wage to assess the quantum of damages. I find that the learned magistrate erred by using income which was not proved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 7

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36. A proper approach would have been to award a global sum considering the age of the deceased. In Kwanzia -vs- Ngalali Mutua & Another, Ringera J as he then was, stated that: “ The multiplier approach is just a method of assessment of damages. It is not a principle of law or a dogma. It can be abandoned where facts do not facilitate its application. It is plain that it is useful and practical method where factors such as age of the deceased the amount of annual or monthly dependency and expected length of dependency are known or are knowable without undue speculation, where it is not possible, to insist on multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.” 37. See also Sheik Mushtaq Hassan -vs- Nathan Mwangi Kamau & 5 Others (1982-88) 1 KAR, the court stated that “ Accordingly, the good Judgment in the case should have been to award a reasonable global figure for loss of dependency.” 38. The court should apply a global sum in the circumstances of this case to determine the lost years. I find that a global sum of Kshs. 500,000/= is suitable considering the age of the deceased. In this regard, the learned magistrate’s Judgment cannot be sustained. I find that the appeal has merits. I order that Judgment of the learned Magistrate be set aside. It is substituted as follow: a. Liability – 50:50. b. Pain and suffering – Kshs. 50,000/=. c. Loss of expectation of life – Kshs. 100,000/=. d. Lost years – Kshs. 500,000/=. e. Special damages – Kshs. 24,050/=. f. Each party to bear its own costs. g. The general and special damages to attract interests form date of Judgment of the Lower Court. DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19569/eng@2025-12-19 8

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