Paul Kinuthia Michire v John Masinde Mukonbgolo (suing As The Administrator of The Estate of The Late Michael Isoka Masinde (deceased)) & 3 others

c. Any other relief the court may deem fit to grant. 2. The plaintiffs’ case is that on or about 14th March 2021, the deceased were all travelling lawfully in motor vehicle registration number KBK 404G along the Gilgil-Nakuru road. That the vehicle is registered, insured and/or beneficially owned by the 1st defendant. That at Flyover area, the driver of a motor vehicle KCS 036U/ZF 9639, lost control while overtaking another vehicle and hit motor vehicle registration No. KBK 404G fatally injuring the deceased. That the motor vehicle KCS 036U/ZF 9639 is registered in, insured by and/or beneficially owned by the 2nd defendant. 3. The particulars of negligence attributed on the part of the 2nd defendant and/or his driver or agent are tabulated as; driving the motor vehicle at an excessive speed in the circumstance of the case, failing to indicate that the vehicle was joining the road, driving a defective vehicle, driving under the influence of alcohol, failing to indicate that the vehicle was joining the road, failing to swerve, control, and/or brake to avoid the said accident, driving on the wrong side of the road, failing to keep proper lookout to other road users, driving without due care and attention, failing to maintain their respective lanes, and hitting the other vehicle from the back. 4. The plaintiffs further rely on the doctrine Res Ipsa Loquitor. It is also pleaded that the 2nd defendant is vicariously liable for the negligent acts and/or omissions of his drivers, servants or agents who caused the accident. 5. The 1st plaintiff (herein 1st respondent) pleaded that at the time of the accident the deceased was aged 24 years old and a second-year university student. That the persons listed at paragraph 7 of the plaint depended on him. The family incurred expenses in the form of special damages in relation to; letter of administration; Kshs 30,000, police abstract; Kshs. 200, official search; 550 funeral expenses; Kshs 57,000 totalling; Kshs 87,700 6. The 2nd plaintiff cum 2nd respondent averred that at the time of the accident, the deceased was 21 years old and a college student. That his dependants listed at paragraph 7 of the plaint had great hope of depending on him. Further the family incurred expenses in the form of special damages in respect of: letter of administration; Kshs 30,000, police abstract; Kshs. 200, official search; Kshs 1,500, funeral expenses; Kshs 20,000.00, totalling; Kshs 50,700 7. The 3rd respondent cum 3rd respondent averred that at the time of the accident the deceased was 21 years old and a college student That his dependants listed at paragraph 7 of the plaint had great hope of depending on him. Further the family incurred expenses in the form of special damages in respect of; letter of administration, Kshs 30,000, police abstract; Kshs. 200, official search, Kshs 1,500, funeral expenses; Kshs 20,000.00, totalling; Kshs 50,700 8. However, the plaintiffs’ claims were opposed by the 2nd defendant vide a statement(s) of defence dated 25th June 2021 and 23rd July 2021. He denied that he was the registered and/or beneficial owner or driver of motor vehicle registration No. KCS 036U/ZF9639, that the deceased were travelling in the said vehicle and were involved in the /or accident as alleged, and/or the accident was fatal. 9. The particulars of negligence attributed to the 2nd defendant and/or his driver were denied. Further the application of the doctrine of Res ipsa loquitor were denied. Similarly, he denied that he was vicariously liable for the occurrence of the accident. 10. However, the 2nd defendant pleaded that in the alternative and on a without prejudice basis, if the accident occurred then it was solely caused and/or contributed to by the driver of the other vehicle KBK 404G and tabulated the particulars of negligence against that driver as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 2

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a. Driving without any or any due regard to other road users and in particular motor vehicle Registration No. KCS 036U ZF9639. b. Driving at excessive speed in the circumstances. c. Driving into the path of motor vehicle Registration No. KCS 036U ZF9639. d. Driving without due care or attention. e. Failing to see motor vehicle Registration No. KCS 036U ZF9639 in sufficient time or at all to avoid the accident. f. Failing to swerve, break or control the said motor vehicle Registration No. KBK 404G so as to avoid the collision. g. Driving a defective motor vehicle. h. Permitting himself to lose control of motor vehicle Registration No. KBK 404G. i. Overtaking whilst it was not safe to do so. j. Driving under the influence of alcohol. 11. The 1st defendant did not enter appearance and interlocutory judgment was entered against her. 12. Be that as it may the matter proceeded with full hearing with No. 86335 PC Paul Komen giving evidence on behalf of the plaintiffs. He confirmed that the accident occurred on 14th March 2021 and it involved the motor vehicles registration No(s). KCS 056U/ZF 9629 and KBK 404G. That the deceased were travelling in motor vehicle registration KBK 404G driven by the deceased Michael Isoka Masinde. That at Gilgil Railway flyover he lost control and hit the oncoming track KCS 056U being driven by Nicholas Maya. All the deceased died on the spot. However, he informed the court that he was not the investigating officer but produced the police abstract for indicating that the matter was still under investigation. 13. The 1st plaintiff adopted his witness statement as his evidence in chief where he reiterated the averments in the plaint on the occurrence of the accident. He averred that the deceased died while undergoing treatment at Gilgil General Hospital. That the deceased was a second-year student at Jomo Kenyatta University of Agriculture and Technology (JKUAT) has left behind eight (8) dependents being; his mother, father and siblings who looked forward to dependent on him. 14. The 2nd respondent adopted her witness statement as his evidence in chief wherein she reiterated the averments in the plaint on the occurrence of the accident. She averred that the deceased died while undergoing treatment at Gilgil General Hospital. That the deceased was a student at Great Rift Valley Institute of Business Studies and has left behind four (4) dependents being; his mother, father and siblings who looked forward to depend on him. 15. The 3rd respondent adopted his witness statement as his evidence in chief wherein he reiterated the averments in the plaint on the occurrence of the accident. He averred that the deceased died while undergoing treatment at Gilgil General Hospital and while a second-year student at Mount Kenya University of business studies. That he left behind eight (8) dependents being; his mother, father and siblings who looked forward to dependent on him. 16. The 2nd defendant’s case was supported by the evidence of (DW1) Nicholas Kimeu the driver of motor vehicle registration No. KCS 036U ZF9639 who adopted his witness statement. He averred that on the material day at about 6:00am he was heading towards Nakuru and driving on the climbing lane https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 3

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when motor vehicle KBK 404G lost control, entered the climbing lane and hit his vehicle. That all the passengers in motor vehicle registration KBK 404G died on the spot. 17. That his motor vehicle was taken for inspection and was not found with any pre-accident defects. He blamed the driver of motor vehicle KBK 4040G for causing the accident and as stated in the police abstract. 18. At conclusion of hearing of the case the parties filed their final submissions and by a judgment dated 26th October 2023 the trial court stated as follows: - 19. a. The defendants are 50% liable jointly and severally for the subject road accident. b. General damages for pain and suffering – Kshs. 20,000. c. Damages for loss of dependency – Kshs. 1,683,000. d. Damages for loss of expectation of life – Kshs. 100,000. e. Special damages – Kshs. 70,000. f. Costs of the suit. g. Interest on (b), (c), (d) and (f) above from the date of this judgment and on (e) from the date of filing the suit herein. However, the 2nd defendant (herein “the appellant”) is aggrieved by the decision(s) 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 appellant liable despite the police officer blaming the driver of motor vehicle registration number KBK 404G for the accident. b. That the learned Magistrate was in error of law and fact in ignoring the police officer’s testimony and the appellant's evidence and list of documents which showed that the motor vehicle that was involved in the accident was motor vehicle registration number KCS 056U/ ZF 9639U and not motor vehicle registration number KCS 036U/ZF 9639U. c. That the d. That the learned Magistrate was in error of law and fact in disregarding the photos tendered by the appellant that clearly show that the motor vehicles involved in an accident was KCS 056U/ ZF 9639U and motor vehicle registration number KBK 404G. e. That f. That learned Magistrate was in error of law and fact in failing to find that the accident was entirely caused and contributed by the driver of motor vehicle registration number KBK 404G despite the driver being blamed by the police officer. g. That h. That learned Magistrate was in error of law and fact in rendering a judgment against the driver of motor vehicle registration number KCS 036U/ZF 9639U. the learned Magistrate was in error of law and fact for failing to dismiss the suit for the lack of evidence against the appellant. the learned Magistrate was in error of law and fact in failing to take into account certain considerations material to an estimate of evidence. the learned trial Magistrate erred and misdirected himself in fact and law by awarding damages to the respondent that were manifestly excessive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 4

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i. That the learned trial Magistrate erred and misdirected himself on the principles applicable to damages and in his findings on loss of dependency. j. 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. k. That the learned Magistrate erred in failing to consider and critically analyze the submissions made on behalf of the 2nd defendant and thus arrived at an unjustifiably high award. l. That the learned Magistrate award on damages for loss of dependency was so inordinately high. m. That the learned Magistrate award of damages for loss of dependency was based on no evidence at all. n. That award on loss of dependency was based on no or wrong legal principles. 20. The appeal was disposed of vide filing of submissions. The appellant in submissions dated 25th November 2024, argued that, that the learned trial Magistrate findings on liability was against the weight of the evidence. That (DW1) Nicholas testified that the accident occurred after motor vehicle registration KBK 404G lost control, encroached in the lane of his motor vehicle and collided with his vehicle. 21. That he produced photographs of the accident scene which clearly show that vehicle registration KBK 404G encroached on the lane of vehicle registration No. KCS 056U/ZF 9629. Further, his evidence was corroborated by the evidence of the police officer who blamed the driver of motor vehicle KBK 404G for causing the accident. 22. The appellant argued that DW1 was the only actual eyewitness to the occurrence of the accident and that the plaintiffs did not call any eyewitness to substantiate their allegation. The appellant relied on the cases of; Habil Imenje (Suing as Representative of The Late Howard Omondi Musasia (Deceased) vs Florian King’oo & 3 Others [2006] KEHC 1037 (KLR) and Mbilo Nzeki Munyasia vs Malde Transporters Ltd & 2 others [2015] eKLR where the High Court upheld the trial court’s holding that the plaintiffs lacked evidence as there was no eyewitnesses availed. 23. The appellant further argued that the police officer who testified was not the investigating officer and did not tender any sketch maps which could lay a basis of blame on him. He relied on the cases of; Violet Kamwenya Odiara & another (suing as the administratrix of the Estate of the Late Timothy Odiara Ndege) v Kiprono Chemwono [2019] eKLR where the High Court held that the police officer who is not the investigating officer and does not produce sketch maps of the accident lacks the basis to blame the respondent for the accident. 24. The appellant submitted that under section 107 of the Evidence Act (Cap 80) Laws of Kenya, the plaintiffs herein had the duty to prove their case against him on a balance of probabilities but failed to do so and therefore the learned trial Magistrate erred in finding him 50% liable for the accident. 25. On damages, the appellant submitted that the trial Magistrate misdirected himself on principles applicable and arrived at an erroneous award under the head of loss of dependency. That the trial court adopted a multiplier of 30 years for the deceased who were 21 years old at the time of their death but failed to take into consideration the uncertainties and vicissitudes of life, and that life expectancy in Kenya is around 45 years as held by the High Court in the cases of; Rose Munyasa & Another v Daphton Kirombo & Another [2014] eKLR and Simon Mwangi Mureithi v Martin O. Shikuku & 3 others [2005] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 5

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26. The appellant proposed a multiplier of 20 years and referred the court to the case of; Comply Industries Ltd & Anor Vs Martha Ngima Muthini (Suing as the Legal Representatives of the Estate of the late Stephen Mirau Muthini) (2014) eKLR where the High Court adopted a multiplier of 20 years for the deceased who was 21 years old. 27. The appellant further argued that the trial court erred in adopting the minimum wage under the Regulations of Wages (General Amendment) Order 2022 which commenced after the deceased died on 14" March 2021. That the applicable Regulations in force the time of the accident were the Regulation of Wages (General) (Amendment) Order 2018 and proposed loss of dependency be calculated as follows: Kshs 6.736.30 x 12 x 20 x 1/3= Kshs 538,904. 28. Lastly, the appellant argued that failure to attach the decree in the bundle of documents is a procedural technicality and cannot render the appeal fatally defective. He relied on the case of; Wambui & Another Vs Chelimo (Anti-Corruption And Economic Crimes Civil Suit No. 20 of 2021) [2023] KEHC 26710 (KLR) where the High Court held that the fact that a decree had not been drawn did not render an appeal nugatory, if the judgment is on record. 29. Further, in the case of; Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata [2017] KECA 353 (KLR) the Court of Appeal upheld the decision of the 1st appellate court that the record of appeal was competent notwithstanding the fact that a formal decree was not included. The Court of Appeal went on to hold that, it was a mere technicality that could not have sat well under the current constitutional dispensation that calls for substantive justice as opposed to technicalities and that the appellant did not suffer any prejudice due to the omission. 30. However, the 1st to 3rd respondents in submissions dated 29th August 2024 argued that the trial court in reaching its decision on liability considered the evidence on record to wit; that at the scene of the accident was a climbing lane with three clearly marked lanes. That the appellant’s slow-moving vehicle was expected to be at the extreme left to allow fast moving vehicles to use the middle lane for overtaking or cruising. 31. That, the appellant’s witness DW1 conceded that the there was no vehicle ahead of him and he saw the oncoming vehicle at 100 meters away but did not do anything to avoid the accident. Therefore, the learned trial Magistrate cannot be faulted for holding that DW1 was equally liable for the accident when he could have avoided the collusion if he kept to the extreme left side of the road. 32. The 1st to 3rd respondents relied on the case of; Nyota Tissiues Products vs Lawrence Lawi Kuboka & 4 others (2020) eKLR where the High Court held that failure of the driver of the vehicle being overtaken to give way or keep to its side of the road sufficiently to allow other road users to use the road points to negligence on its part. 33. Further, in the case of Hussein Omar Fara vs Lento Agencies (2006) eKLR the High Court held where there was no concrete evidence to determine who between the two drivers were to blame for causing an accident both should be held equally liable. 34. On loss of dependency, the 1st to 3rd respondents argued that the trial court considered the evidence and submissions by both parties and was guided by recent decision from the High Court and Court of Appeal on the minimum wage applicable and chose to be guided by the Regulation of Wages (General) Amendment Order 2022 which set the minimum wage at Kshs 14,025. 35. Furthermore, assessment of damages is an exercise of judicial discretion. That while the trial court is called to considered the parties' submissions it is not bound by them. That in any case, the trial https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 6

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Magistrate gave reasons for his decision and how he arrived at the award and cannot be faulted. The Court was urged to uphold and affirm the award. 36. In consideration the appeal, this court notes 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. 37. 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.” 38. To revert back on the matter herein, it is noteworthy that based on the grounds of appeal, the appellant faults the trial court for holding him liable despite evidence revealing that the driver of motor vehicle registration number KBK 404G was held to blame and/or awarding excessive damages. Consequently, the appeal is on both liability and quantum. 39. Upon considering the evidence adduced, it is clear from the pleadings that the plaintiffs blamed the appellant for causing the accident after recklessly overtaking other vehicles and causing his motor vehicle registration No. KCS 056U to collide with motor vehicle registration No. KBK 404G in which the deceased were travelling. 40. However, despite the plaintiffs pleading at paragraph 2 and 3 of the plaint that the 1st and 2nd defendants were the drivers, registered owners/insured and/or beneficial owners of motor vehicles, the plaintiffs again plead at paragraph 6, that the 2nd defendant(s) are (sic) is held vicariously liable for the negligent acts or omissions of their drivers and/or agents. So is not clear in what capacity the 2nd defendant was sued. 41. Be that as it were, it is clear that the deceased who were not driving the motor vehicle registration No. KBK 404G could not have contributed to the accident in any way except the driver thereof (if proved). The plaintiffs’ statements attached to the respective plaints reveal that none of them witnessed the accident and therefore cannot testify clearly as to what transpired before the accident. Equally the police abstract produced reveals that the matter is still pending investigation. 42. Notably the 1st defendant did not file any statement of defence, and interlocutory judgment was entered against her on 23rd August 2020 and so the court has not had the benefit of his evidence 43. On the other part, the 2nd defendant denied liability vide a statements of defence dated 25th June 2021 and 23rd July 2021 and blamed the driver of motor vehicle registration number KBK 404G, tabulating particulars of negligence against that driver at paragraph 9 of the defence. The 2nd defendant argues that the subject driver of motor vehicle KBK 404G encroached on his lane. However, that driver died in the accident and could not respond to the allegation against him and/or rebut the afore evidence by the 2nd defendant’s driver. Furthermore, the 2n defendant has not been charged with any traffic offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 7

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44. It also suffices to note that, at the hearing of the case, each plaintiff adopted their respective statements and produced supporting documents. Notably a police abstract dated 23rd March, 2021 blames driver of motor vehicle KBK 404G. Similarly, the evidence of (PW1) No. 86335 PC Paul Komen adduced vide Chief Magistrate Civil Case No. 342/2021 is that the driver of KBK 404G was overtaking, lost control, hit motor vehicle KCS 056U. That all passengers in motor vehicle KBK 404G died on the spot and the police abstract dated 27th April, 2021, clearly states that the inquest matter is pending in court. However, PW1 denied knowledge of the police abstract dated 23rd March 2021, where the driver of KBK 404G was held to blame. It is clear from the evidence of PW1 he exonerates the 2nd defendant’s driver from blame. 45. It is noted from the judgment of the trial court at paragraph 41, the trial court acknowledged that proof of a claim lies on the party that alleges. At paragraph 42 of the subject judgment, the court concedes that the plaintiff was duty bound to prove particulars of negligence attributed to the 2nd defendant. At paragraph 44, the trial court makes reference to Section 107 of Evidence Act as to who should prove the case and at paragraph 45, makes a finding that; the vehicles had a head on collision and that the plaintiff(s) conceded the accident occurred when motor vehicle KK 404G sought to overtake at high speed but lost control and hit on-coming vehicle. That the police abstract produced by 2nd defendant, blamed driver of motor vehicle KBK 404G for the accident after the investigations. 46. Further at paragraph 47, the trial court finds the driver of motor vehicle KBK 404G did not drive with due care and attention and overtook vehicles when the road was not clear and concurred with the content of the police abstract that held him to blame. 47. Furthermore, at paragraph 48, the trial court dismisses the plaintiff’s submissions that the 2nd defendant’s driver was to blame for failing to drive in a manner to avoid the accident and stated that, the subject allegation is lacking “proper footing” for the reason that no eye witness was called to prove the 2nd defendant or agent failed to take any action to avoid the accident. 48. However, at paragraph 49 of the judgment, the trial court then takes a shift and states that from the evidence of the 2nd defendant’s witness, he was not on the extreme lane of the road and that had he been on the extreme left lane, he would have avoided the accident. 49. At paragraph 50 of the judgment, the trial court states that the 2nd defendant’s driver did not do anything to avoid the accident and relied on the case of Hassan Omar Fara vs Lento Agencies 2006 eKLR where the court held that when a witness testified on both sides, both drivers should be held liable for causing the accident. Pursuant, thereof, the trial court found both drivers 50:50% liable. 50. In considering whether the trial court arrived at the correct and proper decision in holding the 2nd defendant’s driver liable, regard must be held to the following factors; a. The plaintiffs in the suits herein CMCC E341, E342 and E414 of 2021 were basically legal representatives and/or Administrators of the respective estate of the deceased(s). As such, none of them were eye witnesses to the accident. b. The witness called by the plaintiff No. 86335 PC Paul Komen clearly testified that the driver of motor vehicle KBK 404G ‘lost control of the vehicle and hit an on-coming truck KCS 056U’. In cross-examination, he stated the driver of motor vehicle KCS was on the climbing lane and that the driver of KBK left his lane and went to the lane of the other vehicle. From the evidence of this plaintiff witness, the driver of the 2nd defendant was exonerated from blame. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 8

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c. The 2nd defendant’s driver (DW1) Nicholas Kimeu is an eye witness to the accident. He testified that the motor vehicle KBK was speeding, lost control then went to the lane on which he was driving and collided with his motor vehicle. Notably, this evidence has not been rebutted. d. In addition, there is no evidence that the driver of the 2nd vehicle was ever held to blame after the accident and/or charged with any traffic offence. e. At paragraph 47 and 48 of the judgment trial court exonerates the 2nd defendant’s driver from blame. 51. It is the finding of this court based on the aforesaid that the 2nd defendant’s driver was not to blame for the accident. 52. The argument of the trial court that he failed to keep on the extreme lane is not supported by any evidence from the plaintiffs. The 2nd defendant’s evidence cannot be used against him. He has no duty to prove the plaintiff’s case. 53. Even then did he commit any offence by not keeping on the extreme left lane (if he did?) The 2nd defendant’s driver was on the ascending lane and as much as he is bound to keep on the extreme lane, he is only bound to do so if there is a vehicle ascending that is at a higher speed and needs to use the right ascending lane. That is not the case herein. Therefore, there is no offence the driver of the motor vehicle 2nd defendant committed by driving on the right ascending lane. If the deceased driver kept on his lane there would be no accident even if the driver of the 2nd defendant did not keep on the extreme left lane. 54. Further, even if the court were to place any liability on the 2nd defendant’s driver, it cannot be in equal measure with the plaintiff who was blamed fully for the accident. Finally, the case relied on to hold the 2nd defendant liable does not apply here, for there is no evidence that a witness herein testified for both parties. 55. The upshot of the afore is that there is no evidence herein to support the finding of the trial court that the 2nd defendant’s driver was to blame in any way. Consequently, I set aside the judgment of the trial court wherein the 2nd defendant was found 50% liable and substitute it with the finding that the driver of the motor vehicle KBK 404G was fully liable for the accident and find the 1st defendant 100% liable. 56. Pursuant to the afore finding, the issues raised by the 2nd defendant on quantum falls by the way. As the 1st defendant has not challenged the decision of the trial court on quantum, this court cannot pronounce itself on the same. The decision of the trial court on quantum stands save that any amount attributed to the 2nd defendant shall be borne by the 1st defendant. It is so ordered. DATED, DELIVERED AND SIGNED ON THIS 3RD DAY MARCH 2026. GRACE L. NZIOKA JUDGE In the presence of: Ms Kimathi for Appellant Mr Musa Machage for the Respondents. Hannah: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3481/eng@2026-03-03 9

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