Seahorse Energy Ltd v Grace Mamiyai Lemarpe & Lemarpe Lentionka (suing As The Legal Administrators OF The Estate OF Victor Langai Deceased)

5. He further told the court that the driver drove off after knocking down the deceased. CCTV footage captured the incident, allowing them to track the vehicle and driver. The accident happened at 0300 hours. Several bars were open at that time; the driver was unaware of the incident until they called him and showed him the CCTV footage on 8 June 2023. 6. During cross-examination, he told the court that there was no independent witness statement and that the CCTV footage and still photos were before the court. He visited the scene after the vehicle involved had left and the body of the deceased was taken to the hospital, and no one was charged in court with a traffic offence. 7. He stated that the accident happened while the vehicle was moving forward; however, he could not tell whether the driver was in the bars since there are also ATMs at Nyali Centre. From the CCTV footage, it was the rear side of the Prado that ran over the deceased. 8. The second witness (PW2) was Grace Mamiyiai Lemarpe, the mother of the deceased. She adopted her statement and documents as evidence in chief. She stated that the deceased was her firstborn, a businessman who was 23 years old at the time of his death. He passed away after two days, as she spoke with him in the morning while he was admitted to the hospital. He was a bachelor, paid her children's school fees, and sent her Kes 12,000 each month. The deceased was buried in Namanga, and the funeral expenses were pleaded and receipted. 9. In cross-examination, she informed the court that they were alerted to the deceased’s death by his paternal uncle, who stated that the deceased did not have a wife or children. She was shown the CCTV footage of the accident. 10. She further told the court that the deceased used to source goats from Tanzania and transport them to Nairobi either for slaughter or for export to the Arabian Peninsula. That the deceased used to give her money in cash. She testified that she had never been summoned in a traffic case regarding the death of the deceased. 11. The first witness for the defendant (DW1) was John Gicoka Wanjihia. The said witness adopted his statement. He produced a document marked as Exhibit 12. He told the court that he was not shown CCTV footage attachments and that he was not charged in a traffic case. He has never been involved in any previous road traffic accident, and he was unaware of the accident until days later, when he was alerted to it. 12. In cross-examination, he admitted to having been the driver of the accident vehicle belonging to his boss, Peter Munga, who is also the defendant. That he is a trailer driver, not Peter's personal driver, and that it was Peter who called him at night to drive him to the same place. He found him at a hotel in Nyali Centre at night. 13. He further told the court that he saw someone who seemed mentally ill jumping from side to side and attempting to block traffic. He did not feel any impact on the vehicle. He dropped Peter off at his home in Nyali before taking a taxi to Changamwe in Mikindani, and was only alerted about the accident 8 days later by Peter, who informed him that the police had contacted him. He doesn’t know how the accident occurred because he didn't see the vehicle hit anyone. 14. DW2, Margaret Muthoni Kayla, the operations manager of Sunrays Insurance Co. Ltd, told the court that she was involved in supervising investigations and compiling the report of the accident, the subject of this case. The report showed that the victim lay on the ground as the vehicle approached and that he was run over. The victim was to blame for the accident. He was a night guard, but there was no proof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 2

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The report indicated that the dependents of the deceased were his siblings and parents, and that there was no evidence of a wife or children. 15. She told the court that the vehicle had no pre-accident defects and no post-accident damage. Their findings were that the accident occurred, as per police records, the victim having been run over by the rear tyre of the vehicle when his leg was on the road. 16. In cross-examination, she stated that Peter Munga is the director of Sunrays General Insurance Limited and is not the owner of the accident vehicle, as it belongs to the defendant. She also clarified that Peter is not a director of the defendant, and it is likely his namesake who does hold that position. Additionally, she testified that they obtained information about the accident from the police officer who reviewed the CCTV footage. 17. In re-examination, she stated that Francis viewed the CCTV footage. 18. After the conclusion of the trial, and upon considering the submissions of the parties, the court below delivered a judgment. The trial court made an award on the basis of three heads of claim: pain and suffering, loss of expectation of life and loss of dependency. 19. On pain and suffering, the court awarded Kes 100,000. 20. On loss of expectation of life, the court stated that the deceased was a young lad of 23 years at the time his life was cut short, and all indicators are that he was hale and hearty and full of promise. His estate was awarded Kes 100,000. 21. On special damages, the court awarded the same as prayed on the grounds that it was pleaded and strictly proven by way of a bundle of receipts identified as P Ex 6 & 10. 22. The court also awarded the plaintiff costs and interest on the suit. 23. Dissatisfied the appellant appealed to this court seeking to have the said judgment set aside and/or vacated; the plaintiff /respondent suit be dismissed with costs; alternatively this honourable court do take up the matter and revaluate the evidence on record, submissions by the parties, and/or re-assess the evidence adduced and pronounce itself thereof; and, that the costs of the appeal be paid by the respondent. 24. The appeal is based on the following grounds: a. That the learned magistrate erred in law and in fact in making a finding of negligence against the appellant without evidence and in holding that the respondent had proven his case on liability, on a balance of probability; b. That the learned magistrate erred in law in making findings on liability based on extraneous issues and/or hearsay evidence and in failing to analyse and weigh the evidence against the rules of evidence before making any findings based on it; c. That the learned magistrate erred in law and in fact in finding that the respondent had proved his case on circumstantial evidence on the causation and the actual collision, if any, despite the clear and well laid principles as set down in Mary Ayo Wanyama vs Nairobi City Council [CA 252 of 1998]and Multiple Hauliers v Patricia Anyango & 2 others [2012] eKLR and the lack of direct evidence on the very occurrence tendered by any of the plaintiff’s witnesses; d. That the learned magistrate erred in law and in fact by exercising judicial discretion wrongly, in relying on the police abstract produced by the respondent, despite it being prima facie https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 3

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evidence that requires corroboration and the said document clearly not stating the results of the investigations, if any; e. That the learned magistrate erred in law by awarding an inordinately high award as to represent an entirely erroneous estimate despite there being no evidence on the deceased’s formal employment or source of income. f. That the learned magistrate erred in law by awarding the respondent awards that were neither specifically pleaded nor proven; and g. That the learned magistrate erred in law and in fact in awarding the respondent costs. 25. The appeal was canvassed through written submissions. I will summarise each party’s submissions below. 26. The appellant, through its advocates, Okello Kinyanjui & Company LLP, filed its written submissions dated 15th October 2025. 27. In his submissions, the learned counsel for the appellant relied on Sections 107 and 108 of the Evidence Act and submitted that there was no evidence tendered to prove negligence against the appellant. It was further submitted that no statement from any independent eyewitness was recorded, nor was the maker of the footage called to produce it in evidence. The evidence on record, therefore, was mere hearsay and of no probative value for want of corroboration. The alleged CCTV footage was not produced at trial, nor was any evidence led as to its recording. 28. Counsel relied on Section 106 of the Evidence Act and submitted that no certificate of electronic evidence was tendered, citing that the police file was forwarded to the Office of the Directorate of Public Prosecutions (ODPP), which took no action. No evidence was presented before the court to demonstrate such forwarding of the file, or the follow-up efforts made in readiness for trial, or reasons why the police file was not tendered in evidence so that the court could benefit from the investigating officer’s covering report, findings, statements from independent witnesses, sketch maps drawn, and the scope of investigations undertaken. 29. Counsel relied on Section 112 of the Evidence Act and submitted that from evidence tendered at trial, investigations had not been concluded by the time the matter came up for hearing and therefore, liability could not be apportioned to either of the parties as a result of the police investigations. The plaintiff was duty-bound to prove his case at trial by producing evidence that would have laid the blame or causation upon the defendant. 30. Counsel further submitted that there was no evidence as to the actual place where the accident occurred or causation. That PW2 did not witness the accident, nor visit the scene. She also did not state whether her informant witnessed the accident, nor was the alleged witness called to lead evidence of the occurrence for which the defendant's negligence can be inferred. 31. Counsel submitted that the learned magistrate erred in finding that the plaintiff proved the case to the required standards, when there was no evidence supporting such a finding, as the plaintiff failed to prove the particulars of negligence pleaded in the plaint. 32. On quantum counsel submitted that the trial court misapprehended the evidence tendered before it, relied on and applied wrong principles, thereby arriving at an erroneous figure that was inordinately high. That the learned magistrate erred when he included the deceased’s siblings in the list of dependants as well as applying a multiplicand of 1/3 instead of 2/3 and further erred by applying the Wage Order, 2022, which is not a statute to be relied upon as the deceased’s employment was not proven nor was there evidence led as to what his real station in life was. It was submitted that it was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 4

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wrong for the deceased to be categorised as a general labourer without any documentation in proof of the same, nor showing daily or monthly earnings. 33. Counsel relied on Section 4(1) and submitted that the trial court erred when it adopted the multiplier of 37 years for a 23-year-old assuming he would work to retirement age without considering vicissitudes and vagaries of life, natural causes, fatigue and the fact that the sum would be paid and received in lump sum and was therefore a source of income in the future. It was contended that a multiplier of 10-12 years would have been sufficient recompense. 34. Counsel submitted that had the plaintiff proved his case to the required standards, the correct award would have been Kes 200,000, computed as 5000 × 10 ×12 × 1/3 = Kes 200,000, for loss of dependency. That the final awards should have been, in such an event, liability-nil; loss of dependency-Kes 200,000; pain and suffering-Kes 30,000; loss of expectation of life - Kes 100,000; funeral expense - Kes 10,300. 35. In conclusion, counsel urged the court to dismiss the plaintiff’s/respondent’s suit with costs and allow the appeal. 36. On the other hand, the respondent, through her advocates, Michael Ngure & Co. Advocates, filed written submissions dated 24th October 2025. 37. Liability counsel submitted that PW1, the police officer, placed the appellant’s vehicle at the scene of the accident and attributed liability to the appellant’s driver based on CCTV evidence that was relied upon. He further submitted that DW1 admitted he was the driver of the vehicle involved in the accident and that he saw someone on the same road, which should have been enough to alert him to exercise caution while using the road, as the primary duty of care falls on him as a driver. The duty of care requires a prudent driver to maintain a proper lookout and control of the vehicle at all times to anticipate and respond to such situations. The claim that the driver jumped onto the road cannot absolve him of liability; it is an afterthought and cannot excuse the negligent conduct that caused the death of the deceased herein. 38. Counsel further submitted that no evidence to rebut the respondent’s case was offered at all by the appellants. It is inconceivable for the appellant’s driver to claim that he didn’t know that he had knocked someone, and such a reality was only brought to him when the CCTV footage was shown to him. 39. Counsel concurred with the trial court’s analysis on liability and agreed with its determination that the appellant was 100% liable and urged this court to uphold the same. 40. On quantum counsel for the respondent submitted that the appellant had failed to bring its case within the ambit of the conditions precedent to this court interfering with the trial court's exercise of discretion in assessing damages, and therefore the appeal should be dismissed. The appellant had not shown that the award falls outside the range of comparable awards. Counsel concurred with the findings of the trial court and urged the court to uphold the same. 41. On special damages, counsel submitted that the same was pleaded and proved by the respondent through the documents she produced. 42. In conclusion, counsel urged the court to dismiss the appeal with costs to the appellant. 43. I have considered the grounds of appeal and the submissions by both parties’ counsels. The issue for determination is whether this court should interfere with the lower court's findings on liability and quantum. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 5

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44. 45. The court in the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased) [2016] KEHC 4186 (KLR) stated that: “ 8. The appeal to this court is a first appeal. It is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348. 9. It was further held in the case of Hahn v Singh (1985)KLR 716 that the appellate court will hardly interfere with the conclusions made by a trial court after weighing the credibility of the witnesses in cases where there is a conflict of primary facts between witnesses and where the credibility of the witness is crucial.” On the issue of liability, the appellant has argued that the respondent did not discharge her burden of proof on the grounds that the CCTV footage was not produced before the court, she was not and did not visit the scene of the accident and that there was no independent witness. The trial court, in its judgment, considered the said factors and held as follows on liability: “ The court observes that while the police officer revealed that the accident is still under investigation, the court is not convinced that the driver of the accident motor vehicle, with his many years of experience, would have run over the deceased without perceiving the crushing bones and tearing of flesh from beneath its undercarriage. On the other hand, there was manifest contradictions between in the evidence preferred by the defence, the first being on the proprietorship of the defendants: while the driver stated that his boss Peter Munga was also the owner of the defendants the manager denied this and explained the similarity in names of the defendant’s director and their insured’s director is because they were namesakes. Secondly, while the report produced by the manager states that the driver was the one who had seen and narrated to them the contents of the CCTV footage, the latter made no admission of this in his testimony and, in fact, elaborated that he did not know how the accident occurred and had not asked his boss whether he had viewed the clip. Given the foregoing, the court rejects the inconsistent narrative painstakingly put forward by the defendants and finds that the happenstance of the complained-of accident and the defendants, vicariously so to the same degree. Thus spoken liability is assessed at 100% against the defendants in the manner aforesaid.” 46. I have considered the evidence tendered before the trial court and have also noted the inconsistencies and or contradictions in the evidence of DW1 and DW2. It is also evident that the DW1 in crossexamination conceded to being the driver of the said accident vehicle and that the same belonged to Peter Munga, the owner of the defendant. He also conceded that he had seen someone on the road. Therefore, it is my view that the plaintiff/respondent discharged the burden of proof as per Section https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 6

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107 of the Evidence Act. The defendant/appellant did not tender any evidence to rebut the plaintiff’s evidence. The evidence of PW1 was corroborated by that of DW1. Therefore, it is my view that it will not be prudent for this court to interfere with the findings of the trial court, considering the conflicting evidence of the defendant’s witness. I am guided by the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased) (supra). 47. On quantum, the appellant challenged the finding on loss of dependency and special damages. 48. On the loss of dependency, the appellant argued that the learned magistrate erred when he included the deceased’s siblings in the list of dependants, as well as applying a dependency ratio of 1/3 instead of 2/3. Furthermore, he erred by applying the Regulation of Wages (General) (Amendment) Order 2022, which is not a statute to be relied upon, since the deceased’s employment was neither proven nor was there evidence presented regarding his true station in life. The categorization of the deceased as a general labourer, without any documentation to support this or evidence of his daily or monthly earnings, was an error on the part of the learned magistrate. 49. It further argued that the trial court erred when it adopted the multiplier of 37 years for a 23-yearold assuming he would work to retirement age without considering vicissitudes and vagaries of life, natural causes, fatigue, wear and tear and the fact that the sum would be paid and received in a lump sum and was therefore a source of income in the future. A multiplier of 10-12 years would have been sufficient recompense. 50. The court in the case of Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu (Suing as the Legal Representative of the Estate of the Late Augustus Muindi (Deceased) [2021] KEHC 6932 (KLR) the court stated: 51. “ 23. Going by above decisions, the formula for assessment of dependency is the multiplicand that the annual net income multiplied by a suitable multiplier of expected working life lost by the deceased as a result of premature death. The dependency ratio, is the fraction of the income that a person is expected to give to his dependents in his lifetime. If a person is married, it is expected that the person would spend 2/3 of his income to support his dependants but where the person unmarried it is accepted that 1/3 of his income is utilized to, in support of his dependants. 24. In this instance, the deceased was unmarried and the Appellant’s grievance that the trial court fell into error by adopting 2/3 ratio is well taken. The deceased was survived only by his parents who were said to be farmers. Going by the evidence of the first Respondent at the trial, he is in fact the owner of the motorcycle that the deceased rode and used for boda boda business. If he was able to purchase a motorcycle out of farming proceeds, then I am persuaded that the deceased’s parents were reasonably able to cater for most of their needs and therefore given that the deceased was a young man who had not married as observed above, a dependency ratio of 1/3 was fair in the circumstances.” Further, the court in the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) stated: “ What are the applicable principles of law as regards the award of the damages urged by the parties? To properly assess damages under the Fatal Accidents Act, it is necessary to determine https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 7

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the deceased’s income, the dependency ratio of his dependants, and the multiplier to be used. This Court is guided by the manner of assessment of damages for loss of dependency as aptly explained by Ringera J. (as he then was) in Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another, Nairobi HCCC No. 1638 of 1988, as follows: The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must, in the first instance, find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years' purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations, such as the fact that the award is being received in a lump sum and would, if wisely invested, yield returns of an income nature.” 52. On loss of dependency, the trial court adopted the multiplicand of Kes 15,201.65 × 12 × 37 × 1/3 = Kes 2,249,844.20. It adopted the minimum wage of a general labourer as being Kes 15,201.65 as provided under the Regulation of Wages (General) (Amendment) Order, 2022 for reasons that the deceased was a watchman with no evidence of employment and income in the form of documents, additional 37 years of service as the deceased was 23 years at the time of death pegging on the maximum age for retirement in Kenya and a fraction of a third for reasons that the deceased was a bachelor with only his parents and three siblings dependent on him for a livelihood. 53. The accident in this case occurred on 4th June 2023 involving the deceased and motor vehicle KDJ 123J. The deceased was a 23-year-old bachelor caring for his siblings and parents, and he was a businessman sourcing goats from Tanzania to Nairobi for slaughter or sale in the Arabian Peninsula, as per the testimony of PW1. The respondent's evidence was cogent and, as far as I can tell, was not rebutted. 54. In the circumstances, it is my view that the trial court did not err in adopting a minimum wage of a general labourer, being Kes 15,201.65 as the multiplicand, and the dependency ratio of 1/3, as the deceased was a bachelor. 55. In response to the multiplier of 37 years of service, as determined by the Court below, the appellant suggested 10-12 years. The court in the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another (supra) stated: “ But due allowance must be given for the vagaries, vicissitudes and uncertainties of life, and due regard must also be had of the fact that the payment under this head is also being made in a lump sum.” 56. It is my view that the multiplier of 35 years would suffice in this case. Adopting the identified multiplicand and the multiplier, the amount payable under the Fatal Accidents Act is Kes 15,201.65 × 12 × 35 × 1/3 = Kes 2,128,231. 57. On pain and suffering, the appellant suggested Kes 30,000 in its submissions on final awards. The deceased in this case died two days after the accident. The trial court awarded Kes 100,000. The said sum appears reasonable in my view. I therefore concur with the award in respect to the said finding. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 8

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58. On special damages, the court in the case Hyder Nthenya Musili & another v China Wu Yi Limited & another (supra) held, “ Lastly, it is trite law that for special damages to be awarded, they must be specifically pleaded and also strictly proved. It was held as follows in Maritim & Another v Anjere (1990-1994) EA 312 at 316 in this regard: “It is now trite law that special damages must not only be pleaded but must also be specifically proved, and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.” 59. The appellant did not dispute the award of special damages. The Court will therefore refrain from interfering with it. 60. Based on the foregoing findings, the decision of the trial Court is largely upheld. The respondent shall have the following awards: Liability………………………. assessed at 100% in favour of the Respondent. Quantum Kes Pain and suffering……………………..100,000 Loss of expectation of life……………. 100,000 Loss of dependency………………..…2,128,231 Special damages………………………187,400 Total…………………………. 2,515,631 61. I also award the respondent the costs of the appeal and of the court below. 62. Orders accordingly. DATED AND SIGNED IN MOMBASA, THIS 13TH DAY OF MARCH 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Ms Chege, holding brief for Mr Kinyanjui, for the Appellant; Ms Kariuki, holding brief for Mr Ngure, for the Respondent; and Ms Bancy – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5918/eng@2026-03-13 9

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