Adail Mohammed Liban & 1 other v Winfred Mutheu Mutiso & 2 others

averred that if at all an accident occurred, then it was wholly or substantially contributed to by the negligence on the part of the deceased. 4. The matter was heard and judgment delivered where the learned trial magistrate found the Appellants 100% liable and assessed damages as follows; Loss of expectation of life………………kshs 100,000/= Loss of dependency… kshs 2, 931,770/ = Pain & suffering………………………….kshs 50,000/= Total… kshs 3,081,770/= 5. 6. Aggrieved by the award, the Appellants filed this appeal and raised the following grounds; a. The learned magistrate erred in law and fact when he held that the Appellants were 100% liable for the accident. b. The learned magistrate erred in law and fact by failing to consider the evidence of the Appellants in the judgment. c. The learned magistrate erred in law and fact in awarding the damages for the loss of dependency to the Respondent herein. d. The learned magistrate erred in law and fact in awarding the costs in the judgment. Parties took directions to proceed by way of written submissions and each filed their respective submissions. The Appellants’ Submissions 7. On the issue of liability, reliance was placed on Owino & Another -vs- Kengen Company Limited (Civil Appeal E193 of 2023) [2024] KEHC 10631 (KLR) for the proposition that; where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. It was submitted that every road user is liable for his own safety hence the deceased had an obligation to fulfil in avoiding the accident by virtue of being on the road. Reliance was placed on Joseph Muthuri -vs- Nicholas Kinoti Kibera (2022) eKLR, where the court held that; “ When a man drives motor vehicle along the Road, he is bound to anticipate that there may be things and people or animals in the way at any moment, he is bound not to go faster that will permit his car any time to avoid anything he sees after he has seen it’’ 8. It was submitted that the Police abstract produced did not apportion blame to the Appellants herein but referred the results of investigations to the insurance which indicates that the investigative agencies were not clear as to who was the cause of the accident. It was contended that the testimony of Winfred Mutheu Mutiso, who was not present at the scene, ought not to have been heavily relied upon in determining liability. Reliance was placed on the case of Pioneer General Insurance Limited -vs- Julius Nyaga Njoka (Civil Appeal E027 of 2023) [2024] KEHC 31162 (KLR) where the Court emphasized that; “ Where the evidence is evenly balanced, the court should apportion liability equally or in a reasonable ratio guided by probabilities.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 2

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9. It was submitted that the trial court’s finding on liability is inconsistent with precedent and should be reviewed to 70:30 in favor of the Respondent. 10. The Appellants submitted that their testimony and documents were glossed over. Reliance was placed on Associated Construction Co (K) Ltd & Another -vs- Cheruiyot (Civil Appeal E200 of 2023) [2024] KEHC 12469 (KLR) for the proposition that a trial court must analyze and evaluate all the evidence before arriving at its determination. It was submitted that the trial court failed to address contradictions in the Respondent's testimony and documentary evidence and disregarded the Appellants' evidence entirely, contrary to Article 50(1) of the Constitution, which guarantees a fair hearing. 11. On the issue of quantum, it was submitted that the trial magistrate awarded damages for loss of dependency without proper basis for the multiplicand. Reliance was placed on Rutto -vs- Tanui & Another (suing as legal administrators of the estate of Cyrus Kibiwott Kiptoo) (Civil Appeal 10 of 2023) [2024] KEHC 14816 (KLR) where the court held; “ In the absence of satisfactory proof of monthly income, the Court should be wary of subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach.” 12. It was submitted that the trial court should have used the global sum approach as it is used where there is insufficient, vague, or non-existent evidence of the deceased’s income or financial contribution to the dependents. It was contended that the multiplicand-multiplier method requires specific figure as years of dependency. Reliance was placed on Albert Odawa - vs- Gichimu Githenji [2007] eKLR where the court held that; “ The multiplier approach is just a method of assessing damages. What a court is required to do is to take into account the facts of the case and arrive at a reasonable figure for compensation. In fatal accident claims, where the multiplier method cannot be appropriately applied, the court is perfectly entitled to make a global award.” 13. It was submitted that the deceased’s earnings were neither proven nor supported by documentary evidence hence the global sum approach would have been more appropriate. Reliance was placed on Mwanzia -vs- Ngalali & Another (2001) KLR 495 where the court stated; “ The multiplier approach is just a rule of thumb which provides a guideline to be used in assessing damages. It is not a principle of law or a dogma. It can and should be departed from where the facts do not support its application.” 14. Further reliance was placed on Shem Okello -vs- Mary Awuor (Suing as administrator of the estate of John Ouma) (2023) KEHC 19219 (KLR) for the submission that, damages must be based on evidence; an award based on assumptions offends the principle of restitution. It was contended that the trial court erred in law and fact by adopting an arbitrary multiplicand, which resulted in an excessive and unjustified award. That, the same ought to set aside and the global sum approach be adopted. 15. The Appellants invited this court to adopt the findings in Bofad & Simga Agencies Company Limited -vs- Nyakang’o & Another (Suing as the Legal Representatives of the Estate of Joel Nyakang’o https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 3

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(Deceased) (Civil Appeal E045 of 2023) [2024] KEHC 7399 (KLR) (13 June 2024) (Judgment), where the court, in varying the loss of dependency award held that; “ Given the deceased was a casual laborer and no pay slip, bank records, or written statements were produced, the court was correct in applying the global approach. It would be speculative and unreasonable to adopt a fixed income.’’ 16. The Appellants proposed a global award of kshs 400,000/= for loss of dependency. 17. With regard to award for loss of expectation of life, it was submitted that a conventional sum of Kshs, 70,000/= has been adopted in a myriad of cases hence the same should be adopted in this case. Reliance was placed on Alice Wambui Kariuki & Another -vs- Martin Olhuno & Attorney General & Another: HCCC civil case No. 2699 of 1993. 18. With regard to the award for pain and suffering, it was submitted that the deceased died while undergoing a CT scan as per the post-mortem form and the police abstract hence the award of Kshs. 50,000/= was awarded without any legal basis. That, the death was instantaneous and within a short period of time after the occurrence of the accident and there cannot have been pain and suffering before the death hence no award should be given by this court. Respondent’s Submissions 19. With regard to liability, it was submitted that the Appellant was wholly liable for causing the accident as he was driving at a very high speed to the extent of inability to control the vehicle. That, the Respondent’s evidence was corroborated by the police officer, PW2, who confirmed the occurrence of the accident and produced the police abstract. Reliance was placed on Mwangi - vs- Wambugu (1984) eKLR for the submission that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on misapprehension of evidence or where the court has clearly failed on some material point to take into account particular circumstances or probabilities material to an estimate of the evidence. Further reliance was placed on the case of Kiruga -vs- Kiruga & Anor (1988) KLR, 348 where the Court of Appeal observed; “ An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.” 20. As to whether the learned magistrate failed to consider the Appellants’ evidence, it was submitted that the Appellants did not call any witness during the trial hence the plaintiff’s case remains uncontroverted. Reliance was placed on Edward Muriga Through Stanley Muriga D. Schulter; Civil Appeal No. 23 of 1997 for the submission that, where a defendant does not adduce evidence, the plaintiff’s evidence is to be believed as allegations by the defence is not evidence. Further reliance was placed on Motrex Knitwear Ltd -vs- Gopitex Knitwear Mills Ltd; Nairobi (Milimani) HCCC No. 834 of 2002 where the court stated; “ Although the defendant has denied liability in an amended defence and counter claim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence are unsubstantiated. In the circumstances, the counter- claim must fail.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 4

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21. With regard to quantum, it was submitted that dependency is a matter of fact and must be proved by evidence. Reliance was placed on Abdulla Rubeya Hemed -vs- Katuma Mvurya & Anor (2017) eKLR where the court stated; “ Dependency is always a matter of fact to b proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependents. Rather, the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.” 22. It was submitted that the deceased was 35 years and was survived by a wife and 3 children and that ordinarily, a dependency ratio of 2/3 is used where the deceased was married with children. It was contended that the Appellants did not dispute the existence of the dependants. Reliance was placed on Petronila Mole -vs- Richard Mwindi Savi and Catherine Mwende Mwindi (2021) eKLR for the submission that a married person is expected to utilize 2/3 of their earnings on their family. 23. It was submitted that the trial magistrate adopted a multiplier of 25 years as the deceased was a driver by profession and was expected to work until 60 years or more as there is no retirement age for business people. That, the trial magistrate was right in using the minimum wage of kshs 14,658.85/= as the multiplicand as there was no proof of earnings due to the nature of deceased’s work. Reliance was placed on Isaack Kimani Kanyingi & Anor (suing as the legal representative of the estate of Loise Gathoni Mugo) -vs- Hellena Wanjiru Rukanga (2020) KLR where the Court of Appeal held that a minimum wage ought to be adopted as a multiplicand where monthly income cannot be ascertained. Analysis And Determination 24. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record and to draw its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. (Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123) 25. I have considered the grounds of appeal, the rival submissions and entire record, the following issues arise for determination : a. Whether the apportionment of liability should be disturbed. b. Whether the quantum of damages should be disturbed. Whether the apportionment of liability should be disturbed. Evidence on liability 26. PW1 was Winfred Mutheu Mutiso, the deceased’s wife. She testified that she did not witness the accident and was told about it by the deceased friend, who was not a witness in the case as well. 27. PW2 was P.C David Okik of Sultan Hamud Traffic Base. He testified that he had an abstract dated 06/10/21 issued on 18/04/22 to Cornelius Muli who was a driver and was fatally injured. That, the accident was first noted as a serious injury and it occurred along the Nairobi-Mombasa Road involving KCV 073Z Toyota Hiace driven by Cornelius Muli and KBL 977V/ZE 8246 drive by Adil Liban. 28. That, the driver of KBL 977V driving from Nairobi to Mombasa left his proper lane and collided headon with KCV 073Z. That, the investigations blamed the driver of KBL 977V and he was charged for causing death by dangerous driving vide file TR 1416/21. PW2 produced the police abstract as P.Exh 1. 29. On cross-examination, he conceded that he did not visit the scene and was not the investigating officer. 30. The Respondent closed her case and the Appellants also closed their case without calling a witness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 5

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31. The police officer who testified on behalf of the Respondent was neither an eye witness nor an investigating officer. His version of how the accident occurred is not verifiable as no sketch plans were availed or other independent evidence. The police abstract does not describe how the accident occurred but is sufficient proof that an accident involving two motor vehicles occurred on the material day. I have noted that the traffic case indicated in the police abstract is 16 of 2021 while PW2 gave the case number as 1416 of 2021. The results of investigations in the abstract are; ‘matter referred to insurance.’ 32. Considering that the Respondent had a duty to substantiate her pleadings on a balance of probability, the evidence adduced does not show that it was the Appellants’ vehicle that lost control, veered off the road and collided with the vehicle that the deceased was driving. The fact that the Appellants did not call a witness did not absolve the Respondent of her obligation to substantiate her averments on a balance of probability. It is evident that the trial court erred by finding that the evidence of PW2 supported the averments in the plaint and that failure to call a witness by the Appellants meant that; the evidence relating to the circumstances leading up to the accident remained uncontroverted. 33. Consequently, although the evidence on record is clear that two vehicles were involved in the accident that led to the deceased’s death, the same is not sufficient to determine the party that was at fault. In Simon Waweru Mugo - vs- Alice Mwongeli Munyao (2020) eKLR the Court rendered itself thus; “ 22. Where negligence has been established and where there is a head on collision the court is required to make a call on apportionment of liability. Spry V P in Lakhamshi v Attorney General, (1971) E A 118, 120 rendered himself thus: “It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents, it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them….” 34. These circumstances call for the apportionment of liability equally between the parties i.e 50:50. Whether the quantum of damages should be disturbed. 35. Awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In Butt –vs Khan (1977)1KAR it was held that; “ An appellate Court will not disturb an award for damages unless it is 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 6

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Award under Law Reform Act 36. Th Appellants argued that the award of kshs 50,000/= for pain and suffering was without basis as the death was instantaneous and there cannot have been pain and suffering before death. 37. The evidence of PW1 was that she found the deceased at the hospital and the death certificate shows that the death occurred at Bishop Kioko Hospital. PW2 said that the accident was first noted as a serious injury. The post-mortem report shows that the death occurred at about 1700hrs on 03/10/2021 and the cause was head injury and blunt force trauma. According to the evidence therefore, the deceased succumbed to his injuries while undergoing treatment in the hospital and although he died on the same day, he did not die on the spot as alleged by the Appellants and as such, he must have undergone pain and suffering even if not prolonged. 38. This situation is covered by what Majanja J said in Sukari Industries Limited –vs- Clyde Machimbo Juma; Homa Bay HCCA NO. 68 of 2015 [2016] eKLR that; “ (5) 5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years… ” 39. Hence , the award of kshs 50,000/= is within an acceptable range and I find no reason to interfere with the trial courts discretion. 40. With regard to the award for loss of expectation of life, the Appellants contend that a conventional sum of Kshs, 70,000/= has been adopted in a myriad of cases hence the same should be adopted in this case. However, there are also a myriad of cases where ksh 100,000/= has been awarded as a conventional figure. In Hyder Nthenya Musili & Another –vs- China Wu Limited & Another [2017] eKLR, the learned Judge observed that ‘The conventional award for loss of expectation of life is Kshs. 100,000/=’ 41. Similarly, in Melbrimo Investment Company Limited –Vs- Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR the court upheld an award of Kshs 100,000/=. 42. The award of kshs 100,000/= is reasonable. Award under the Fatal Accidents Act 43. The Appellants argued that the trial court should have used the global award approach as opposed to the multiplier approach because the deceased’s earnings were neither proven nor supported by documentary evidence. 44. It was pleaded that the deceased was a driver with an average earning of kshs 10,000/= per month out of which, 2/3 went to the family members for their upkeep. In cross-examination, PW1 reiterated that the deceased was a driver earning kshs 10,000/= per month but she conceded that she had not availed proof. The undisputed fact from the evidence is that the deceased was involved in an accident while driving motor vehicle KCV 073Z, Toyota Hiace hence, on a balance of probability, it was established https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 7

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that his occupation was that of a driver. Consequently, it was possible to establish the minimum wage of a driver hence the trial magistrate’s exercise of discretion on that aspect cannot be faulted. 45. The deceased died on 03/10/2021 hence the applicable minimum wage rates were those established by the Regulation of Wages (General)(Amendment) Order 2018 which came into effect on 01/05/2018. The death certificate shows that the deceased was a resident of Emali-Makueni hence his wage would have been 13,975.30 indicated ‘for all other areas’ under paragraph 8 i.e., a driver of a medium sized vehicle. The use of kshs 14,658.85/= as the multiplicand was therefore erroneous. Even the figure submitted in the subordinate court at Ksh 21,481 is not supported by any evidence. 46. The deceased died at the age of 35 years and was survived by his wife and three children aged 18,13 and 5 years at the time. The trial court used a dependency ratio of 2/3 and multiplier of 25 years, yet the plaintiff submitted for a multiplier of 23 years. The ratio of 2/3 has been used in numerous authorities where a deceased person was survived by a spouse and young children. In John Simon Ashers & Another -vs- Nelson Okello Onjao [2020] eKLR the court opined that; “ The dependency ratio of 2/3 is normally applied in a case where the deceased has dependents such as the deceased in this case and I find that the same was correctly applied.” 47. Hence, the award for loss of dependency works out as follows; 13,975.30 x 23 x 12 x 2/3 = 2,571,455.20 48. As for special damages, the trial magistrate found that the pleaded amount of kshs 41,700/= was not proved hence did not make any award under this head. The burial of the deceased is not in dispute hence it goes without saying that his family must have expended some money in laying him to rest. In my view, the pleaded amount of kshs 40,000/= for funeral expenses is very modest and is allowed. In Capital Fish Kenya Limited -vs- The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR), the Court of Appeal stated; “ We do not discern from our reading of this decision a departure from the time-tested principle that special damages should not only be specifically pleaded but must also be strictly proved. Further the facts in that case are clearly distinguishable from the facts of this case. We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein did not fall in that class.” (Emphasis mine). 49. The award will change as follows; Liability… 50:50 Loss of expectation of life………………kshs dependency………………….....kshs 2,571,455.20 100,000/= Loss of Pain & suffering………………….……….kshs 50,000/= Funeral expenses……………………..….kshs 40,000/= Total… kshs 2,761,455.20 Less 50% contribution……………………kshs 1,380,727.60 Net Total…………………………………..kshs 1,380,727.60. (50) The appeal succeeds to that extent. The Judgment of the subordinate court is set aside and substituted accordingly https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 8

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The respondent will have costs and interest from the date of the judgment of the subordinate court.The appellant will have half the costs of the appeal. JUDGMENT DATED, SIGNED AND DELIVERED VIA CTS ON 28TH APRIL 2026 MUMBUA T MATHEKA JUDGE CA Chrispol Appellants’ Advocate CSA Advocates LLP xxx.co.ke Respondent’s Advocate Shem Kebong’o & Co. Advocates xxx.com SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA JUDICIARY OF KENYA MAKUENI HIGH COURT HIGH COURT DIVISION DATE: 2026-04-28 16:13:40 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6483/eng@2026-04-28 9

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