Francis Kariuki Mwangi v Peter Kioko Macharia & 1 other

2. The Respondents asserted that the accident was solely caused by the negligence of the Appellant or his authorized driver or agent/servant. At the time of his death was aged 24 years and in good health. The deceased suffered a long painful death as he was hospitalized at the Intensive Care Unit at Kenyatta Hospital from 1st August 2021 until 8th October 2021 when he succumbed to the injuries. The deceased had a passion for art and had in fact joined a DJ school with big dreams of joining the lucrative entertainment industry which dreams were abruptly cut short by the death. The deceased was at the time employed in a shop along Mombasa Road where he would earn Kshs.15,000/= per month. He was an orphan who had responsibilities of taking care of his grandfather and three siblings who were still in school. His life was cut short. 3. The Appellant entered appearance and filed a Statement of Defence dated 20/4/2023 denying in toto the Respondents’ claim and averred that without prejudice to the denial, in the event the alleged accident in question occurred the deceased is entirely to blame for causing the same. The Appellant prayed that the Respondents’ suit be dismissed with costs. 4. On 31/05/2023, parties’ advocates in formed he trial court that they had fully complied with Order 1 of the Civil Procedure Rules and the suit was then set down for hearing on 07/09/2023. 5. PW1-No. 96306 PC Michael Too from Athi River Police Station testified that he had a police abstract dated 21/05/2022 in respect to a road traffic accident on 01/08/2021 at 6.00pm at Shell area along Nairobi-Namanga Road involving motor vehicle KXK 280 and a pedestrian who was fatally injured. The pedestrian was called George Mutisya. He produced the police abstract as PExt.5. He stated that he had been paid Kshs.5,000 as court attendance charges. 6. On cross examination, PW1 stated that as at the time the abstract was issued, the case was pending under investigation. The Appellant was not to blame for the accident. PW1 was not the Investigating Officer and did not witness the accident. He was not re-examined. 7. PW2-Ezekiel Mochama testified that the deceased was his nephew who was an orphan. He adopted hi witness statement dated 12/01/2023 as his evidence in chief and produced as exhibits a bundle of documents dated 12/01/2023. He testified that he was present at the scene of the accident. He blamed the driver of motor vehicle registration KXK 280 for causing the accident. He prayed for damages for the death of the deceased and costs of the case. 8. On cross examination, PW2 stated that he witnessed the accident. The deceased was his nephew who used to earn Kshs.15,000/= per month. He admitted not to have shown court any evidence of the same. The deceased was not married but had siblings. 9. In re-examination, he stated that George (deceased) used to earn Kshs.15,000/= per month. 10. The Respondents’ case was then closed. 11. The Appellant’s counsel indicated that they didn’t wish to call any witness. 12. Parties’ advocates were then directed to file written submissions. 13. Upon considering the pleadings, the evidence tendered on record and the parties’ submissions, the trial court delivered its judgement on 09/11/2023 in favour of the Respondent and against the Appellant as follows:a. Liability 90% : 10% (in favour of the Respondent) b. Pain and suffering Kshs.100,000/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7057/eng@2026-03-18 2

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c. Loss of expectation of life Kshs.100,000/= d. Loss of dependency Kshs.1,500,000/= e. Special damages Kshs.434,267/= Total Kshs.2,134,267 Less 10% contribution negligence Kshs.231,426.70 Total award Kshs.1,920,840.30 14. Being dissatisfied with the above judgement, the Appellant lodged the appeal herein vide a Memorandum of Appeal dated 11th January, 2024 based on the following grounds: a. That the learned Magistrate erred in law and fact in failing to consider and find that the Appellant had shown a prima facie case with a high probability of success. b. That the learned Magistrate’s decision was unjust against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice. c. That the learned Magistrate erred in law and fact in failing to consider and find that in assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike. d. That the learned Magistrate erred in law and fact in failing to take into consideration the vagrancies and vicissitudes of life in arriving at an award under loss of dependency. e. That the learned Magistrate erred in law and fact in failing to consider and find that in assessing compensatory damages, the law seeks at most to indemnify the victim for the loss suffered and not to mulct the tortfeasor for the injury he has caused. f. That the learned Magistrate erred in law and fact in failing to judiciously analyse the evidence on record thereby arriving at a quantum that was erroneous, untenable, unfair and unjust to the Appellant. 15. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 17/07/2025 while the Respondents’ submissions are dated 01/10/2025. 16. The Appellant submitted that the learned Magistrate erred in apportioning liability against the Appellant in the ratio 90:10 and pray that liability be apportioned in the ratio of 50:50%. Equally the trial court erred in the award of general damages which are inordinately high considering the injuries sustained. the police abstract produced by PW1 showing that the matter was pending under investigations is not a justification to hold the deceased liable for the accident or absorb the Appellant from full liability. After all, our courts have held that the purpose of a police abstract is to show that an accident occurred and that a matter was reported in a particular police station and not to determine liability. 17. The Respondents invited this court to note that the Appellant has intentionally failed to address the fact that an eye witness testified in this matter on behalf of the Respondents and further that he deliberately failed to call any witness in support of his defence to controvert any evidence adduced by the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7057/eng@2026-03-18 3

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18. From the foregoing, the Respondents submitted that the trial court did not error in apportioning liability in the ration of 90:10 in favour of the Respondents as against the Appellant and that in fact the Appellant ought to have been held 100% liable. Analysis and Determination 19. I have carefully considered the record, the appeal and the Parties’ advocates written submissions to the appeal. The Appellant is challenging both liability as well as the award for quantum which he asserts to be excessive. This court will therefore consider whether the trial court’s judgement should be set aside and the appeal herein be allowed. Liability 20. A cursory perusal at the proceedings show that the Appellant did not call any evidence to challenge the Respondents’ case. 21. The law on how a court should proceed where the defendant does not call or produce any evidence has been long settled. In the case of North End Trading Company Limited (Carrying on the Business Under the Registered Name of) Kenya Refuse Handlers Limited vs. City Council of Nairobi [2019] eKLR justice J.A. Makau held as follows: “ …. where a defendant does not adduce evidence the plaintiff’s evidence is to be believed, as allegations by the defence is not evidence” 22. Similarly, in the case of Rono v Lomsons Enterprises (Civil Case 5 of 2019) [2024] KEHC 6249 (KLR) (31 May 2024) (Judgment) it was stated as follows-; “ The failure to call evidence means that the evidence adduced by the plaintiff remain uncontroverted and therefore unchallenged. In such a situation the plaintiff is taken to have proved its case on balance of probability in absence of the defendant’s evidence. In the instant case the plaintiff gave evidence which was not challenged, proved documents in support of her claim. I find the plaintiff’s evidence to be credible and I am satisfied the plaintiff pleaded and proved her claim for special damages” 23. Guided by the above decisions, this court finds that upon the failure by the Appellant to call a witness to counter the Respondents’ evidence or adduce any contrary evidence, no amount of crossexamination on the Respondents’ testimony could successfully prove the appellant’s case; essentially, the unchallenged evidence presented by the Respondents stood as the truth in the absence of rebuttal evidence from the Appellant. The Respondents’ evidence remained uncontroverted that the accident occurred due to the negligence on the part of the Appellant for veering off the road and failing to have due regard to other users. 24. It has also been settled via various court judgments that a driver must drive at a reasonable speed that allows him to come to a safe stop in the event that an object, animals or even people suddenly emerge on the road. In the case Joseph Muthuri v Nicholas Kinoti Kibera [2022] eKLR, the court held that: “ When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid hitting anything he sees after he has seen it...A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7057/eng@2026-03-18 4

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takes reasonable steps to avoid hitting or colliding with the object...He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently”. 25. The presence of pedestrians such as the deceased herein at the scene of the accident was reasonably expected and thus the Appellant being in control of a vehicle which had been described by various court judgments as a lethal weapon ought to have taken reasonable steps to avoid hitting pedestrians such as the deceased herein. 26. This court has noted that in the Appellant’s submissions basically challenge the evidence of the police officer (PW1) and has totally ignored the weight of the evidence of the eye witness who witnessed the accident occur with no contrary evidence on the same. 27. Accordingly, this court finds no reason to interfere with liability as apportioned by the trial court. Quantum 28. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. 29. In the case of Maraga v Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus; “ The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 30. The approach taken by courts in the assessment of damages is that comparable injuries (both personal and fatal) should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 31. This court finds that considering the authorities relied upon by the trial court, the awards under the Law Reform Act and Fatal Accidents Act are adequate compensation. The same cannot be said to be manifestly excessive as to amount to a wrong assessment. In the premises, there is no sufficient cause, in my view, for disturbing the awards made by the trial court under the two statutes. 32. However, this court noted that trial court subjected the award on special damages to apportionment of liability which was erroneous. 33. Accordingly, this court upholds the trial court’s awards save that the special damages will not be subjected to apportionment of liability. The award of special damages does not need to be subjected to apportionment of liability. See Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] eKLR where the court stated that special damages should not be subjected to the apportionment. 34. In the end, the court makes the following orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7057/eng@2026-03-18 5

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a. Liability 90% : 10% (in favour of the Respondent) b. Pain and suffering Kshs. 100,000/= c. Loss of expectation of life Kshs. 100,000/= d. Loss of dependency Kshs.1,500,000/= Total Kshs.1,700,000/= Less 10% contribution negligence Kshs. 170,000/= Total award Kshs.1,530,000/= e. Special damages Kshs. 434,267/= NET AWARD........................Kshs.1,964,267/= 35. In the end, the appeal is dismissed with costs to the Respondent assessed at Kshs.30,000/=. 36. It is so ordered. This file is closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18TH MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18TH MARCH 2026 In the presence of : https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7057/eng@2026-03-18 6

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