Isaac Njenga Kinyanjui v Elijah Muhembi & Juliet Musimbi

2. Being aggrieved by the said decision, on 6 th September 2024, the Appellant herein filed a Memorandum of Appeal dated 5 th September 2024. He relied on nine (9) grounds of appeal. 3. His Written Submissions were dated and filed on 25th July 2025 while those of the Respondent were dated 16 th July 2025 and filed on 18 th July 2025. The 2nd Respondent did not participate in the Appeal herein. The Judgment herein is based on the said aforesaid Written Submissions, which the Appellant and the 1st Respondent relied upon in their entirety. LEGAL ANALYSIS 4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:HCCA NO E042 OF 2024 2

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a. Whether or not the Learned Trial Magistrate erred in her finding on liability and; b. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court. 7. The court deemed it prudent to address the issues under the following distinct heads. I. LIABILITY 8. Grounds of Appeal Nos (1), (2) and (3) were dealt with together as they were all related. 9. The Appellant submitted that the 1st Respondent had the onus of proving that not only did an accident occur, but that the said accident was as a direct result of the Appellant's negligent acts. He cited the case of Dharmagma Patel & Another vs T.A. (Minor)(Suing through his mother and next friend HH (2014) eKLR, where the court held that there was no liability without fault and there had to be proof of negligence where the claim was based on negligence. 10. He stated that the Police Abstract did not blame him for the accident and that PW 1 confirmed that he did not witness the accident and could not, therefore, be able to ascertain who was to blame. He pointed out that Amunabi Raphael Ateyu (hereinafter referred to as “DW 1”), who was the driver of Motor Vehicle Registration Number KDK 643F (hereinafter referred to as “ the subject Motor Vehicle”) testified that the deceased dived into the direct path of the said subject Motor vehicle and HCCA NO E042 OF 2024 3

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collided with it. He placed reliance in the case of Isabela Wanjiru Karangu vs Washington Malele Civil Appeal No.50 of 1981 (1983) KLR 142, where the court held that there could be no excuse for the pedestrian's complete failure to see a car and vice versa. 11. He invoked the Highway Code of Kenya, where it provides pedestrians are required to walk facing oncoming traffic. He pointed out that from PW 2’s evidence, the accident occurred when the suit motor vehicle coming from behind hit the deceased while he was on the left side of the road facing the Kapsabet direction. 12. He was emphatic that the deceased was negligent, going by DW 1’s evidence and the Police Officer’s account that the deceased attempted to cross the road. He submitted that nothing indicated that the deceased stopped to allow the approaching suit motor vehicle to pass. He added that there was no pedestrian crossing in sight or indication from PW 2's evidence that showed any attempts by the deceased to avoid the said accident. 13. He faulted the trial court for apportioning liability the way it did, even after finding that the deceased may have likely contributed to the accident. He was emphatic that where evidence relating to a traffic accident was insufficient to establish negligence of any party, the court had to find the parties equally to blame. He argued that it would have been fair if liability was apportioned equally and so urged this court to apportion it in such a manner. 14. this regard, he placed reliance on the case of Hussein Omar Farah vs Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006]eKLR, HCCA NO E042 OF 2024 4

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where the court observed that if there was no concrete evidence to determine who was to blame between two drivers, both should be held equally to blame. 15. The 1st Respondent submitted that according to the deceased’s mother, who witnessed the accident, the point of impact was on the left side as one faces Kapsabet’s general direction on the pedestrian walk. The 1st Respondent was emphatic that the subject Motor Vehicle veered off the road on the left side as one faces Kapsabet’s general direction and hit the deceased as the Police Officer. 16. The 1st Respondent asserted that the police opinion alone could not be conclusive as to who was to blame for the accident, nor could it be binding to the court, as such evidence was but an opinion which the court was mandated to test, as the police officer did not witness how the accident occurred. It referred to the case of Antony Musita & Another vs Purity Gatakaa & 2 Others HCCA No. 2 of 2009, where the court held that the evidence of the Investigating Officer was not binding on the court as the same contained an opinion of a Police Officer. 17. The 1st Respondent faulted the Appellant for failing to call one Fredrick Chege, who DW 1 said he was with in the vehicle. The 1 st Respondent argued that the failure to call him was because his evidence would have been adverse to the Appellant's defence. The 1 st Respondent dismissed DW 1’s explanation that the said Fredrick Chege was asleep at the time of the accident, given the time when the accident occurred. 18. The 1st Respondent cited the case of Mureithi & Another vs Mwangi & 3 Others (Environment & Land Case 298 of 2019)[2024] HCCA NO E042 OF 2024 5

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KEELC 6230 (KLR) among other cases where it was held that failure to call a material witness by a party could be interpreted as an indication of knowledge that his opponent's evidence was true, or at least, that the tenor of the evidence withheld would be unfavorable to his cause. 19. The 1st Respondent was emphatic that the Appellant’s driver was not honest as he testified that the deceased dived into the road, which was inconsistent with the Statement of Defence. It added that although the accident occurred on 20th September 2023, the driving license produced had expired on 26th March 2023. The 1 st Respondent placed reliance on the case of Al Kamar Trading Company Limited vs Harrison Otina [2015]eKLR, where it was stated that a genuine driver had to have a valid driving license and anything short of this was untenable. 20. The 1st Respondent was emphatic that the Appellant should have been found 100% liable since the evidence of the deceased’s mother was not controverted and met the required standard to establish liability. The 1st Respondent placed reliance on the case of Isimya Roses vs Zakayo Nyongesa, Civil Appeal No. 26 of 2015, where the court therein relied on the evidence of a single witness to find the defendant therein a hundred (100%) per cent liable for an accident. They urged this court to dismiss the appeal on liability. 21. A perusal of the Plaint dated 19 th March 2024 and filed on 22 nd March 2024 showed that the deceased was lawfully walking as a pedestrian along Cheptulu-Kapsabet road when the subject Motor Vehicle hit him, occasioning him fatal injuries. HCCA NO E042 OF 2024 6

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22. The Appellant filed a Statement of Defence dated 19 th April 2024 and filed on 25th April 2024 denying the occurrence of the accident. He asserted that if at all the accident occurred, then the deceased was, by his actions, the sole author of his own misfortune or substantially contributed to the accident. 23. No 68533, CPL David Chebii (hereinafter referred as ‘PW1’) testified that they received information about an accident at Musasa area. With his colleague, they rushed to the scene and established that the subject Motor Vehicle knocked down the deceased, who was crossing the road from left to right facing the Kapsabet direction. He said that the point of impact was on the left side while facing the Kapsabet direction, almost on the yellow line, and that the deceased died on the spot. He produced the Police Abstract Report. When he was cross-examined, he admitted that he was not the investigating officer and that he did not witness the accident. 24. Juliet Musimbi Mwashi (hereinafter referred to as ‘PW 2’) was the deceased’s mother. Her testimony was that the deceased was walking slightly ahead of her when the subject Motor Vehicle came from behind, hit the deceased while on the left side facing the Kapsabet direction, a fact that she reiterated when she was cross-examined. 25. DW 1 told the Trial Court that the deceased was walking off the same left lane heading in the same direction. He blamed the deceased, whom he said dived on his path, a fact that he reiterated when he was cross-examined. He asserted that he was never charged with a traffic offence. HCCA NO E042 OF 2024 7

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26. Notably, in the case of Khambi and Another vs Mahithi & Another [1968] EA 70, it was held that an appellate court would not interfere with the apportionment of liability save where such apportionment was manifestly erroneous. 27. The Appellant blamed the deceased for diving into the road, while the 1st Respondent blamed the Appellant for the deceased’s death after his subject Motor Vehicle veered off the road. It was one party’s word against another. While the Appellant asked this court to apportion liability equally against him and the deceased herein, this court was not persuaded to do so, as DW 1 was in charge of a lethal machine. The fact that the deceased died on the spot was proof that DW 1 was driving at an excessive speed in the circumstances. 28. On the other hand, the deceased could not escape liability. If he was hit from behind as PW 1 asserted, then he was to blame as the Highway Code provided that pedestrians were required to walk facing oncoming traffic. This was to ensure that the pedestrian had enough time to take evasive action to avoid the accident. In such a case, the degree of blameworthiness would be slightly lower. In the event the deceased died as he was crossing the road, he acted recklessly and put himself in danger. Indeed, he was hit near the yellow line, which showed that he was partly on the road at the time of the accident. 29. Noting the conflicting evidence of the 1 st Respondent’s witnesses and DW 1, this court took the view that apportionment of liability in the ratio of 70%-30% in favour of the 1st Respondents herein was fair in the circumstances of the case, as both DW 1 and the deceased owed each HCCA NO E042 OF 2024 8

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other a duty of care. This court, therefore, disturbed the apportionment of liability at 80%-20% that was made by the Trial Court. 30. In the premises foregoing, the Appellant’s Grounds of Appeal Nos (1), (2), and (3) were partially merited and the same be and are hereby upheld. II. DAMAGES UNDER THE LAW REFORM ACT A. PAIN AND SUFFERING 31. The Appellant and the 1st Respondent did not submit on this issue. This court, therefore, left the award of Kshs 50,000/= undisturbed. B. LOSS OF EXPECTATION OF LIFE 32. Although this court was of the view that the sum of Kshs 200,000/= for loss of expectation of life was on the higher side, it left the same undisturbed as no submissions were made under this head. 33. Indeed, it associated itself with the holding in the case of Kato vs Mwema (2023) KEHC 24976 (KLR), the court therein observed that an appellate court would not interfere with an award of the trial court merely because the award was high or because had it handled the case in the first place, it would have awarded a different figure. III. FATAL ACCIDENTS ACT A. MULTIPLICAND HCCA NO E042 OF 2024 9

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34. The Appellant faulted the Trial Court for adopting the multiplier approach. He was categorical that a global sum approach was applicable in this case since the deceased’s earning were not proved. He submitted that the multiplier method was only practical where factors such as the age of the deceased, the amount of annual or monthly dependency were well known or were knowable without undue speculation. He referred to Kenya Wildlife Services vs Geoffrey Mwaura [2018] eKLR, where the above principles were reiterated. 35. He also referred to Michael Rimiri M'ingetha & Another vs Zipporah Mukomua M'ituri (2020) eKLR, where the court observed that where there was no documentary evidence, as the deceased’s earnings, the court should resort to the principle of lump sum. 36. He stated that no evidence was produced to prove the deceased’s earnings, and that though the Trial Court had the discretion to adopt the minimum wage as it did, it was at liberty to use either the minimum wage or the lump sum approach, the global sum approach was the most probable, given that the income of the deceased was unproven and only pleaded without basis. 37. The 1st Respondent argued that the Appellant could not challenge the multiplicand that was adopted by the Trial Court, as it had proposed the same in his closing submissions. 38. A perusal of the Appellant’s submissions filed before the Trial Court showed that the Appellant actually urged the Trial Court to apply the Regulation of Wages Order 2022, Legal Notice 125. He further submitted that since the deceased was a farmer, the minimum wage that was HCCA NO E042 OF 2024 10

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applicable to him was that of a general labourer, and he suggested an amount of Kshs.8,109/=. He used this figure when computing the claim. 39. The Trial Court noted that both parties suggested the minimum wage approach and equally made a determination under the said approach. The Appellant is therefore estopped to state that the Trial Court erred in adopting the minimum wage approach while he himself suggested the same approach to the Trial Court. 40. It was therefore the view of this court that the minimum wage approach adopted by the Trial Court was reasonable and left the amount of Kshs 8,109.90 undisturbed. B. DEPENDENCY RATIO 41. The Appellant faulted the Trial Court for adopting a dependency ratio of two-thirds (2/3). He invoked Section 4 of the Fatal Accidents Act and reiterated that a deceased person's siblings are not recognized as dependents and, as such, the deceased's only dependents were his parents. He relied on the case of John Mungai Kariuki & Another vs Kaibei Kangai Ndethiu & 2 Others Kiambu Civil Appeal No. 29 of 2018, where the court held that cases of this nature were for the benefit of the wife, husband, parent, and child of the person whose death was so caused. 42. He argued that it was unfair to assume that the deceased would give two-thirds (2/3) of his income to his parents. He was emphatic that dependency was a matter of fact, yet the 1st Respondent failed to prove the extent to which they were dependent on the deceased. He referred to the case of Dickson Taabu Ogutu (suing as the legal representative HCCA NO E042 OF 2024 11

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of the estate of Wilberforce Ouma Wanyama vs Festus Akolo & Another (2020)eKLR, where the court held that the onus was on the appellant to prove that their aged parents were indeed dependent on the deceased and the extent of loss they had suffered. The court went ahead and upheld the ratio of one third (1/3) since there was no proof as to the extent to which the aged parents were dependent on the deceased, who was unmarried. 43. He referred this court to the case of Dismas Muhami Wainarua vs Sopon Kasirimo Maranta (Suing as administrator and or personal representative of the estate of Partinini Supon (Deceased) (2021) eKLR; Rodgers Kinoti vs Linus Bundi Murithi & Rose Dahabo Murithi (Suing as the legal Representative of the estate of Dennis Karani Murithi (Deceased) 2021 eKLR, among other cases where the courts awarded a dependency ratio of one-third (1/3) where the deceased was unmarried, without a child and the parents were the only dependents. He urged this court to adopt a dependency ratio of one-third (1/3). 44. The 1st Respondent argued that the ratio that was adopted by the Trial Court was premised on the law and particularly the authority they submitted to the Trial Court. They contended that PW 2 deceased testified that the deceased was supporting his parents and siblings, which evidence was not controverted. 45. Section 4(1) of the Fatal Accidents Act provides as follows:- “Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused (emphasis court), and shall, HCCA NO E042 OF 2024 12

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subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct: Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.” 46. Indeed, the extent of dependency was a question of fact as held in Leonard Ekisa & Another vs Major Birgen [2005] eKLR where the court stated that there was no rule of law that two thirds (2/3) of the income of a person was to be taken as available for family expenses but that the extent of dependency was a question of fact that was to be established in each case. 47. Notably, Section 4 of the Fatal Accidents Act listed the dependents as the deceased’s wife, child, and his parents. It did not recognise the deceased’s siblings as dependents. Going by the above provisions, it was this court’s finding that the dependency ratio of two-thirds (2/3) adopted by the Trial Court was erroneous and the same be and is hereby set aside. HCCA NO E042 OF 2024 13

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The court thus adopted a dependency ratio of one-third (1/3), which was reasonable in the circumstances of this case. C. MULTIPLIER 48. The Trial Court adopted a multiplier of thirty (30) years, considering the vicissitudes and vagaries of life. The Appellant did not submit on this issue. The 1st Respondent submitted that a multiplier of thirty (30) years was sound and they cited Board of Governors of Kangubiri Girls High School & another vs Jane Wanjika & Another NYR CA Civil Appeal No. 35 of 2014 [2014] eKLR where the court stated that the choice of a multiplier was a matter of the court's discretion, which discretion had to be exercised judiciously with a reason. 49. In determining the appropriate multiplier, this court had due regard to the following cases:1. Nanline Company Limited another (Being Sued vs as Owino & Legal Representative of the Estate of Henry Ouma Owino) [2022] KEHC 17260 (KLR), where the court upheld thirty (30) years for a deceased who was twenty (25) years old. 2. Khandasi (Suing as the Administrator of the Estate of Humphrey Adongo Khisa - Deceased) vs Butali Sugar Mills Ltd (Civil Appeal E121 of 2024) [2025] KEHC 8574 (KLR), where the High Court reviewed the multiplier of twenty (25) years to thirty-five (35) HCCA NO E042 OF 2024 14

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years for a deceased who was twenty-five (25) years old. 3. James Njiiri & 2 Others vs FPU & Another [2019] eKLR, the deceased therein was aged twenty-nine (29) years at the time of his death. The appellate court therein adopted a multiplier of thirty-one (31) years. 50. As was seen hereinabove, there was no clear-cut formula of assessing what the appropriate multiplier would be. However, courts were guided by comparable cases so as to arrive at conclusions that are not so wide apart as to cause inconsistency and confusion to those relying on the decisions. 51. The deceased was aged twenty-five (25) years at the time of his death. Taking into account all the past decisions relating to the issue of a multiplier, this court could not fault the Trial Court for having adopted a multiplier of thirty (30) years. It, therefore, left the same undisturbed as the same was not unreasonable. IV. 52. SPECIAL DAMAGES The Appellant faulted the Trial Court's award of Kshs 250,000/= which he stated was not proved by evidence. He referred this court to the case of Hahn V Sigh Civil Appeal No. 42 of 1983 (1985)KLR, where the court stated that special damages must not only be specifically pleaded but also strictly proved. 53. He was emphatic that the Trial Court awarded Kshs 250, 000/= when it clearly held that only receipts amounting to Kshs 50,000/= were HCCA NO E042 OF 2024 15

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produced and that no receipts amounting to Kshs. 200,000/= were filed in Court. 54. The 1st Respondent contended that the award of Kshs 250,000/= was proved by the production of receipts which the Appellant acknowledged in his closing submissions and identified as Exhibit 5 and Exhibit 10. 55. PW 2 produced a bundle of documents to support the 1st Respondent’s claim. The Trial Court noted that though the 1 st Respondent prayed for Kshs 450,000/= as funeral expenses, receipts were not filed in court. However, the Trial Court observed that both the Appellant and the 1st Respondent proposed a figure of Kshs 200,000/= for funeral expenses and proceeded to award the same. This court could not fault the Trial Court in awarding this figure, although the same was on the higher side. 56. Be that as it may, this court took judicial notice that the customs and traditions of the people of the deceased were lavish during funerals, and expenses could easily surpass the sum Kshs 200,000/=. In the absence of any evidence to the contrary, this court adopted the said sum, noting the sentiments of the court in Rottger vs Dusa & Another (Suing on behalf of the Estate of Wilson Baya Thoya – Deceased) [2023] KEHC 26630 (KLR) that strict proof of funeral expenses could be loosened as it was expected that funeral expenses must have been incurred. DISPOSITION HCCA NO E042 OF 2024 16

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57. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 6th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon P. Karimi in Vihiga PMCC No E078 of 2024 Elijah Muhembi & Another vs Njeki Transporters & Another be and is varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 1,031,616.60 made up as follows:Loss of expectation of life Kshs 200,000/= Pain and suffering Kshs 50,000/= Loss of dependency Kshs 973,188/= 1/3 x 8,109.90 x 12 x 30 Special damages Kshs 250,550/= Kshs 1,473,738/= Less 30% contributory negligence Kshs 442,121.40 Kshs 1,031,616.60 Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on special damages will accrue interest from the date of filing suit until payment in full while damages under the Law Reform Act and the Fatal Accidents Act will accrue from the date of judgment of the Trial Court until payment in full. 58. As the Appellant was partly successful in its appeal, it is hereby directed that each party will bear its own costs of this Appeal. HCCA NO E042 OF 2024 17

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59. It is so ordered. DATED and SIGNED at VIHIGA this 26th day of May 2026 J. KAMAU JUDGE HCCA NO E042 OF 2024 18

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