Real Insurance Co Ltd & 1 other v Benson Chege Ngugi (being Sued As The Legal Representative of The Estate of Samuel Njoroge Chege Deceased)

Highway Code, failing to exercise due diligence, careless driving and causing the accident that claimed the life of the deceased. The deceased was survived by Benson Chege Njagi (father), Elizabeth Wanjiku Njoroge (mother), Joyce Njeri Chege (sister) and Nancy Mumbi Chege (sister) who are the dependants under the Fatal Accidents Act. 4. The deceased was twenty-three (23) years at the time of his death, led a vibrant and healthy life and worked as a Casual Laborer earning a monthly income of Kshs. 15,000/=. He supported his family and had a promising future had his life not been cut short by the negligence of the Appellants. The dependants claim for loss of expectation of life for the deceased who hadprospects of a long and happy existence. 5. As a result of the negligence, the Respondent incurred losses as special damages amounting to a sum of Kshs. 73, 650/= as particu larized under Paragraph 13 in of the Plaint filed before the trial Court. 6. In response, the appellants entered appearance and filed a joint statement of defence dated 23rd March 2021. In their defence, the appellants denied the contents of the plaint in toto as pleaded. The appellants pleaded negligence on the part of the deceased accused of distracting the driver of the Motor Vehicle Registration Number KBX 309T, failing to wear a safety belt while travelling aboard Motor Vehicle Registration Number KBX 309T and failing to have due regard to his own safety. The Appellants seeks the Court to dismiss the suit with costs. Evidence 7. On 21st September 2023, Benson Chege Ngugi testified as PW1 and stated that he recorded a statement dated 1st September, 2020 which he wished to be adopted as evidence. The Court adopted the statement as evidence in chief and the list of documents filed produced as Pexihibit 2 to 10. On cross examination, he stated that he did not witness the accident and relied on what he was told. 8. PW2- Cpl Peter Njogu, PW2 testified that he is attached to Tigoni Police Station. He produced police abstracts for an accident which occurred on 5th May, 2019. The OB extract indicated that the accident occurred on 5th May, 2019 and reported vide OB Number 17/5/2019. He stated that the accident occurred at Mutarakwa area involving Motor Vehicle Registration Number KBX 309T Toyota Hiace from Nairobi heading to Maai Mahiu. The motor vehicle lost control and swerved to the left and rolled severally. The passengers on board were injured and one died (Samuel Njoroge Chege). The passenger who were injured included Monicah Wanjiru Maina and Michael Kihera Wambui. He produced police abstracts as PExhibit 1(a), (b) and (c). The police abstracts indicate that the matter is pending under investigations. The accident was self-involving accident and there is no evidence that another vehicle was involved. 9. During cross examination he stated that he produced 3 police abstracts for Michael Kihera and Monicah Wanjiru. The one for Michael indicated 2 vehicles were involved and the matter is pending under investigations. No one was blamed for the accident and he could not tell which vehicle was to blame. He also stated that he did not visit the scene. On re examination he stated that the OB is the primary document in any investigations. The information was captured by oficers who visited the scene that is PC Nyaga. 10. The Defendant did not call any witness. At the close of the Respondent/ Plaintiff’s case, the parties were directed to file written submissions. Upon considering the evidence adduced and the submissions, the court delivered its Judgment on 4th July, 2024 wherein it entered Judgment in favour of the Respondent(Plaintiff) in the following terms:Loss of dependency - Kshs. 1,853,359.60/=, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2467/eng@2026-01-15 2

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Loss of expectation - Kshs. 100,000/=, Pain and suffering - Kshs. 20,000/= Special damages - Kshs. 64,350.00/= Total award - Kshs. 2,037,709.60/= 11. The Respondent was also awarded costs and interest of the suit. It is the said award which is subject of the present appeal. The Appeal 12. Being aggrieved by the Judgment and Decree of the trial Court, the Appellant lodged the present appeal vide a Memorandum of Appeal dated 29th July, 2024 setting out the following Grounds of Appeal:a. That the learned Magistrate erred in law and fact in failing to consider and find that the 1st & 2nd Appellants had shown a prima facie case with a high probability of success. b. That the learned Magistrate erred in law and fact in failing to consider and find that there was no concrete evidence placed before the court to determine who was to blame for the accident between the Deceased and the 1st & 2nd Appellants. c. That the learned Magistrate erred in law and fact in failing to consider and find that the contents of a police abstract as extracted from the records held by the police is merely evidence that a report of an accident was made and not that an accident occurred. d. That the learned Magistrate erred in law and fact in failing to consider and find that a police abstract is not conclusive proof of liability. e. That the learned Magistrate erred in law and fact in failing to consider and find that where there is no concrete evidence to determine how the accident occurred and who is to blame for causing an accident, both parties should be held equally liable. f. That the learned Magistrate erred in law and fact in awarding an exorbitant amount under the limb of loss of dependency. g. That the learned trial magistrate erred in law and in fact in adopting a multiplier of 37 years where the deceased was 23 years old and failing to consider the various vicissitudes and uncertainties of life in arriving at a multiplier as it cannot be assumed that the deceased would have lived and worked till the retirement age of sixty (60) years. h. That the learned Magistrate erred in law and fact in awarding the sum of Kshs. 64,350/= as special damages as the aforementioned amount was not fully proved by way of receipts. i. That the learned Magistrate erred in law and fact in failing to judiciously analyze the evidence on record thereby arriving at quantum that was erroneous, untenable, unfair and unjust to the Appellants. 13. The Appellants seek this court to allow the appeal, set aside the Judgment of the Honourable Court in CMCC. No. 260 of 2020 delivered on 4th July, 2024 by Honourable Jared O. Magori (SPM) and Costs and interest of this Appeal be borne by the Respondent. 14. This appeal was canvassed through written submissions. The Appellants’ filed submissions dated 10th March, 2025 whereas the Respondent’s submissions are dated 21st March, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2467/eng@2026-01-15 3

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Analysis and Determination 15. Having carefully considered the Appellants’ Grounds of Appeal, the rival submissions and the cited authorities, this Court finds that the following sole issue arising is whether the trial court erred on liability and quantum of damages. 16. This being a first appeal, this Court has a duty to analyze and re-evaluate the evidence adduced before the trial court afresh and draw its own conclusions bearing in mind that it did not have the opportunity to observe the witnesses testify. These principles were espoused in the case of Abok James Odera T/A A. J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR, where the court stated as follows:“ This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 17. It is a well settled principle that an appellate court will normally not interfere with a finding of the trial court unless the same if founded on wrong legal principles of law. In the case of Mbogo & Another v Shah [1968] E.A. 93, the Court laid down the principle that an appellate court should not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision was clearly wrong because it had misdirected itself or because it had acted on matters on which it should not have acted on wrong principles. 18. Similarly, in the case of Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR, the Court of Appeal held as follows:“ An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...” 19. On the issue of liability, according to the Respondent’s evidence as contained in the witness statement, he stated that he received a call on 5th May, 2019 that his son Samuel Njoroge Chege (deceased) who was on board Motor Vehicle Registration Number KBX 309T had been involved in a fatal road accident along Nakuru-Naivasha highway at Ndemi area. He was informed that as the driver was giving way to Motor Vehicle Registration Number KCJ 042H Faw Trailer from the opposite direction, the driver lost control and the motor vehicle ran off the road rolling several times. He was pronounced dead on arrival at the hospital-Tigoni in Kiambu County. According to the evidence of PW2, the accident involving Motor Vehicle Registration Number KBX 309T was self-involving, whereby the motor vehicle lost control and swerved to the left and rolled severally a result of which the passengers on board were injured and one died (Samuel Njoroge Chege). The police abstracts indicate that the matter is pending under investigations since the accident was self-involving accident and there is no evidence that another vehicle was involved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2467/eng@2026-01-15 4

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20. This court is guided by the decision in the case of Ngala Khambi and Another v Abdi Ali Mahithi and Another (Civil Appeal No. 18 of 1968) [1968] EACA 8 (30 October 1968), the Court of Appeal held that:“ It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial judge (Brown & Or. vs. Thompson (1968) 2 All. E.R. 708 in which the previous authorities are referred to in particular British Fame (Owners) v. MacGregor (Owners) (1943) 1 All.E.R.33).” 21. There is no dispute that the deceased in this appeal died as a result of the accident that occurred on 5th May 2019 involving Motor Vehicle Registration Number KBX 309T as per the evidence of PW2. 22. Guided by the case of Mwangi & Another v Olum (Suing as the Legal Administrator of the Estate of the Late Alice Akoth Okeyo – (Deceased) (Civil Appeal 089 of 2023) (2025) KEHC 7945 (KLR) the Court while citing the decision in the case of West Kenya Sugar Co. LTD v Lilian Auma Saya (2020) eKLR, held that:“ The Respondent is only a passenger on the motorcycle. A passenger cannot be held liable when a vehicle he/she is traveling in is involved in an accident.” 23. Accordingly, from the evidence adduced before the trial court the deceased who was a passenger in the Motor Vehicle Registration Number KBX 309T cannot be faulted for contributing to the accident. Therefore, the finding of the trial court on liability is hereby upheld. 24. On the issue of quantum of damages, an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited T/A “Meru Express Services (1976)” & Another v Lubia & Another (No. 2) Civil Appeal No. 21 of 1984 [1985] eKLR where it held thus: “ 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 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. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards.” 25. For pain and suffering, this Court finds the decision in the case of West Kenya Co. Limited v Philip Sumba Julaya (Suing as the administrator and personal representative of the Estate of James Julaya Sumba) (2019) eKLR the Court held that:“ The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period of his death. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2467/eng@2026-01-15 5

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principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.” 26. In his testimony, PW1 stated that the deceased was pronounced dead on arrival at the hospital-Tigoni in Kiambu County. The death certificate indicates that the deceased died at Mutarakwa. It is very clear that the deceased died immediately after the accident. In the case of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR, the Court in determining pain and suffering held as follows; “ The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh.100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” 27. In the present appeal, the trial court awarded a sum of Kshs. 20,000/= for pain and suffering. The Respondent had pleaded a sum of Kshs. 100,000/= relying on the cases of Alexander Okinda Anangwe (Suing as the administrator of the estate of Patricia Kezia Anangwe (deceased) vs Reuben Muriuki & 3 Others (2015) eKLR, where the appellate court upheld an award of Kshs. 100,000/= for pain and suffering in a case where the deceased died on arrival at the hospital. 28. In view of the above, it is this Court’s finding that the award by the trial court for pain and suffering was not excessive and uphold the same at Kshs. 20,000/=. 29. On loss of dependency, it has been stated that the deceased left behind dependants. He also used to work as a casual laborer earning a monthly salary of Kshs. 15,000/=. However, there is no evidence was adduced by the Respondent to support the monthly salary of Kshs. 15,000/=. In the absence of evidence to support the monthly salary this Court is guided by the decision in the case of Oyugi & Another -vs- Fredrick Odhiambo Ongong & 3 Others [2014] eKLR, where the Court stated that:“ Where a person is employed and the salary is not determined, his or her income may be determined by reference to the government wage guidelines issued from time to time.” 30. Based on the above authority, this court will adopt the minimum wage as per the Regulation of Wages (General Amendment) Order, 2018 which provides for a monthly salary at the rate of Kshs. 12,522= per month. 31. The Respondent proposed a multiplier of 37 years. The deceased died at the age of 23 years and he would have worked and retired at the age of 60 years. In this Court’s view a multiplier of 33 years would be reasonable considering the vagaries of life. It would therefore work out as follows; 33 x 12 x 12522 x 1/3 = 1,652,904/=. 32. On special damages, the Respondent pleaded for a sum of Kshs. 73,650/= nut upon computation, the trial Court awarded a sum of Kshs. 64,350/=. It is trite law that special damages must be pleaded and specifically proved. In the case of Fakir Mohammed v Joseph Mugambi Kiara & 2 Others [2010] KECA 51 (KLR), the Court stated that; “ As regards special damages, it is trite law that these must not only be pleaded but be specifically proved.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2467/eng@2026-01-15 6

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33. Having perused the receipts on record and the court has noted that the receipts produced only account for a sum of Kshs. 68,800/= and not Kshs. 73,650/= as pleaded. Accordingly, this Court awards as sum of Kshs.68,800/= as proved. 34. In the end, this Court finds that the appeal partially succeeds and proceeds to set aside the trial Court’s Judgment and substituted the same in the following terms:a. Liability at 100%. b. Loss of dependency - Kshs. 1,652,904/= c. Pain and suffering - Kshs. 20,000/= d. Loss of expectation of life - Kshs. 100,000/= e. Special damages - Kshs. 68,800/= Total award - Kshs. 1,841,704/= 35. The Respondent is hereby awarded costs of this Appeal and interest of the Judgment before the trial court. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 15TH DAY OF JANUARY , 2026. D. O. CHEPKWONY JUDGE In the presence of: Mr. Okoth counsel for 1st and 2nd Appellants Mr. Cheruiyot counsel for Respondent Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2467/eng@2026-01-15 7

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