Nahashon Ekati v Stephen Kimachia Itotia & Grace Watiri Njambi (Suing as the legal administrators of the estate of Lawrence Itotia Watiri (Deceased) & 1 other

2024. The Respondents had instituted that suit claiming that on 23rd October, 2021, the deceased, Lawrence Itotia Watiri, a pedestrian, was fatally injured along the Wangige–Gitaru dual carriageway after being knocked by motor vehicle registration number KDB 923U, said to be owned by the 1st Respondent and driven by the Appellant. 2. The Appellant denied the occurrence of the accident as alleged, denied any negligence on his part, and attributed the fatal incident entirely to the deceased's own reckless conduct in crossing a busy dual carriageway at an undesignated point despite the existence of a footbridge nearby. 3. In the said Judgment, the learned trial magistrate held the Appellant 100% liable for the accident and awarded damages under the Fatal Accidents Act, Cap 32, and the Law Reform Act, Cap 26, as follows: i. Pain and Suffering .....................Kshs.50,000/= ii. Loss of Expectation of Life .........Kshs. 100,000/= iii. Loss of Dependency ..................Kshs.3,360,000/= iv. Special Damages ......................Kshs. 142,550/= 2|Page

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TOTAL: Kshs. 3,652,550/= plus costs and interest. 4. Aggrieved by both the finding on liability and the awards on quantum, the Appellant lodged the present appeal vide an Amended Memorandum of Appeal dated 22nd May, 2024. 5. The Appellant brings this appeal on the following grounds as set out in the Amended Memorandum of Appeal: i. That the learned trial magistrate erred in law and in fact in holding the Appellant 100% liable for causing the accident despite the weighty evidence tendered before the court by the Appellant, which clearly established negligence on the part of the Deceased; ii. That the learned trial magistrate erred in law and in fact by awarding an inordinately high amount for Pain and Suffering; iii. That the learned trial magistrate misdirected herself in law and in fact by erroneously adopting Kshs. 30,000/= as the amount the deceased used to 3|Page

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earn in computing damages for Loss of Dependency, without taking into account that the amounts and evidence produced did not have any probative value; iv. That the learned trial magistrate misdirected herself in law and in fact by awarding inordinately high amounts for damages for Loss of Dependency; and v. That the learned trial magistrate erred in law and in fact in ignoring the material evidence of the defence and the Appellant's written submissions both on the issues of liability and quantum. E. THE APPELLANT'S WRITTEN SUBMISSIONS 6. The Appellant, through their counsel, submitted that the burden of proving negligence lies on the party alleging it, as provided under Sections 107–109 of the Evidence Act, and as reaffirmed in Ndiritu v Ropkoi & Another [2004] eKLR and Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991]. The Appellant urged that the Respondents failed to discharge this burden. 4|Page

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7. It was submitted that the eyewitness evidence of PW2 and PW3 was unreliable as their testimonies were internally inconsistent and were contradicted by the police abstract. 8. It was further submitted that the evidence overwhelmingly demonstrated that the deceased had crossed a busy dual carriageway at an undesignated point despite the existence of a footbridge nearby. Crossing a multi-lane highway without using a designated crossing point constitutes contributory negligence, as recognized in David Kimilu Mutinda v Masinde Wamela Samuel [2021] eKLR. The Appellant urged the court to either dismiss the suit entirely for failure to prove negligence, or in the alternative, to apportion liability equally at 50% against the Appellant. 9. On Pain and Suffering, the Appellant submitted that the award of Kshs. 50,000/= was inordinately high and ought to be reduced to Kshs. 20,000/=. 10. On Loss of Dependency, it was submitted that the trial court erred in adopting Kshs. 30,000/= as the multiplicand. The employment letter produced by 5|Page

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PW4 was authored unsupported by after business the accident, registration, was payroll records, or statutory remittance documents, and was therefore unreliable. The Appellant relied in the holding in Ngotho Gachanja v Mary Wangui Wanyoike [2020] eKLR, the High Court rejected a similar after-the-fact employment letter and applied the statutory minimum wage. The correct multiplicand was therefore Kshs. 8,366.35, being the minimum wage for a cook under the 2018 Regulations. 11. Using the multiplicand of Kshs. 8,366.35, a multiplier of 12–15 years, and a dependency ratio of 2/3, the Appellant computed the correct award as follows: Kshs. 8,366.35 × 12 × 15 × 2/3 = Kshs. 1,003,962. The trial court's award of Kshs. 3,360,000 was therefore excessive and ought to be set aside and substituted with Kshs. 1,003,962. 12. In the alternative and without prejudice, the Appellant prayed for re-apportionment of liability at 50:50 and recalculation of the award accordingly, resulting in a total award to the Respondent of Kshs. 633,256/=. 6|Page

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1ST RESPONDENT'S WRITTEN SUBMISSIONS 13. The 1st Respondent, through his counsel, filed written submissions opposing the appeal in its entirety. It was submitted that the learned trial magistrate had not awarded inordinately high amounts and that the said awards were within the discretion of the trial magistrate, reasonable, and well within the acceptable range. Reliance was placed on Dreamline Express v Namugga (Civil Appeal E139 of 2021) 2026 KEHC5 (KLR), where the court, while dismissing a similar appeal, observed that the trial magistrate had properly exercised her discretion, applied correct legal principles, and arrived at quantum assessments that, while perhaps generous, did not cross the threshold of being manifestly excessive. 14. On the multiplicand, the 1st Respondent submitted that the Appellant never objected to the employment letter at the trial court and was therefore estopped from challenging it on appeal. It was further submitted that courts are not restricted to documentary evidence alone in proving income. Not all employers pay minimum wages, and the trial 7|Page

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court was right to adopt Kshs.30,000/= as the deceased's salary as an assistant cook at Chiku Catering Squad. 15. The 1st Respondent vehemently opposed any reapportionment. It was submitted that the evidence of PW2, PW3 and the Appellant himself (DW1) established that motor vehicle KDB 932U was overspeeding and fled the scene after hitting the deceased. PW5 confirmed the Appellant had not been charged as he was on the run. The photographs adduced by the Appellant were further alleged to depict a different crime scene. The 1st Respondent urged the court to uphold the trial magistrate's finding of 100% liability, drawing support from the principle that an appellate court ought not disturb a finding on liability unless it is clearly erroneous. 16. On the question of double compensation, the 1st Respondent submitted that the deduction of the Law Reform Act award from the Fatal Accidents Act award is not mandatory, as settled in Munyau Winfred v Philip Kioko Mutie 2021KEHC3533(KLR) and Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015] eKLR (Court of Appeal). 8|Page

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ANALYSIS AND DETERMINATION 17. Having considered the pleadings, the record of appeal, and the written submissions filed on behalf of the parties, this Court identifies the following issues for determination: 1. Whether the learned trial magistrate erred in law and in fact in finding the Appellant 100% liable for the accident; 2. Whether the trial court erred in the assessment of damages under the Fatal Accident Act and the Law Reform Act 18. Being a first appeal, the duty of this court is to reevaluate and re-assess the evidence on record and draw its own independent conclusions, while at all times bearing in mind that, unlike the trial court, it did not have the advantage of observing the demeanour of the witnesses. These principles were set out in Selle and another – v- Associated Motor Boat Company Others (1968) EA 123 as hereunder 9|Page Ltd.&

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‘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 the estimate evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –v- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)’. 19. The burden of proof in negligence claims lies squarely on the party alleging negligence. As set out in Sections 107–109 of the Evidence Act, whoever 10 | P a g e

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desires a court to give judgment as to any legal right or liability dependent on the existence of facts must prove those facts. 20. On liability, the Respondents' case rested principally on the testimony of PW2 and PW3 and the police abstract (P. Exh. 1). PW1, the deceased's son, was not an eyewitness. PW2 claimed to have seen the deceased crossing the road without a zebra crossing or footbridge, and described a speeding vehicle. However, she admitted she did not know who was to blame, and her name did not appear in the police abstract. PW3 could not tell whether the deceased died on the spot or was still alive when he reached him. He also recorded his witness statement after the defence witness statement had been filed. PW5, the investigating officer, admitted the investigations were incomplete and stated that the driverof the accident motor vehicle was not charged. The police file was never produced in evidence. He confirmed that the police arrived an hour after the accident and never concluded their investigations. He also admitted the existence of a footbridge at the scene. 11 | P a g e

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A police abstract was produced in evidence. As held in Kennedy Nyangoya v Bash Hauliers [2016] eKLR, a police abstract serves only to prove that an accident occurred but is not proof as to who caused it in the absence of supporting evidence. The Appellant (DW1) testified that he was driving in the inner lane at a reasonable speed. He admitted that the accident occurred and that he did not stop due to insecurity around the accident scene. He reported the accident the day after. His vehicle side mirror was allegedly found in the outer lane which was inconsistent with his account of driving in the inner lane. He produced investigation reports and photographs corroborating his testimony. 21. Examination deceased, of a the evidence reveals that the busy dual pedestrian, crossed a carriageway at where there designated pedestrian crossing. themselves confirmed the absence a point PW2 was and no PW3 of a zebra crossing at the point where the deceased crossed. The footbridge referred to by PW5 was said to be under construction and was thus not an option for use by pedestrians crossing the highway. In this 12 | P a g e

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courts view crossing a multi lane highway at an undesignated point, constitutes conduct falling below the standard of care expected of a reasonable pedestrian. In David Kimilu Mutinda v Masinde Wamela Samuel [2021] eKLR, the Court of Appeal held that a pedestrian crossing a highway at night at an undesignated point ought to shoulder some blame. 22. That said, this court is mindful that an accident did occur and that the deceased lost his life. The evidence, taken as a whole, supports the view that both the Appellant and the deceased bore some measure of responsibility for the fatal accident. The deceased placed himself in the path of fast-moving traffic by crossing the carriageway at an undesignated point. The Appellant, as a driver, was under a duty to exercise vigilance and care at all times. To this extend the court finds that liability should be appropriately apportioned at the ratio of 70%:30% in favour of the deceased against the Appellant. The finding of 100% liability by the trial court against the Appellant is accordingly set aside. 13 | P a g e

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23. On the question of quantum, the court further recognises the well-settled principle that an appellate court will not disturb an award of general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or where it is demonstrated that the trial court took into account an irrelevant factor, failed to take into account a relevant factor, or proceeded on wrong principles of law. Kemfro Africa Ltd t/a Meru Express & Another v A.M. Lubia & Another [1982–88] 1 KAR 727 24. The Appellant contends that the award of ksh 50,000 for pain and suffering was excessive and proposes in his submissions that a sum of Kshs.10,000/= to be sufficient. The evidence on record is that the deceased died on the spot. On this limb I find no reason to interfere with the trial court’s award. In the case of Sukari Industries Limited v Clyde Machimbo Juma, Homa Bay HCCA No 68 of 2015 [2016] eKLR, the court stated: “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 14 | P a g e

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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 hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.” In the circumstances, it cannot be said that the award of ksh.50,000/= under this head is unreasonable to require this court’s interference. 25. On loss of expectation of life, the trial Court awarded ksh.100,000/= citing the case of Hyder Nthenya Musili &Another V China Wu Yi Limited &Another (2017) eklr. This is a conventional figure which I find to be reasonable and therefore uphold. 15 | P a g e

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26. On loss of dependency, the deceased is stated to have been 46 years old at the time of his death. This information is contained in the death certificate. He is survived by one son and his mother. From the evidence tendered, the deceased worked as a cook with Chiku Catering Squad. His employment confirmation letter dated 4.4.2022 was produced in evidence. His monthly salary is shown to be Ksh.30,000/= per month. This is the figure that the trial court adopted as a multiplicand. A multiplier of 14 years and a dependency ratio of 2/3, was used to compute damages under the head of Loss of Dependency 27. The Appellant challenged the amount of ksh.30,000/being the deceased monthly salary while he worked at Chiku Catering Squad. According to the Appellant, that figure was not supported. He contended that PW4 failed to produce statutory remittances, payroll records or business registration to support the monthly earnings. He proposed that the correct multiplicand would be ksh.8,366.35/= being the minimum wage for a cook under the 2018 regulations. The Appellant’s contention is that the 16 | P a g e

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deceased’s letter of employment was authored after the accident rendering it unreliable. On this issue the Respondent submitted that the said letter of employment was produced as an exhibit in the lower court. The Appellant cannot now object to it in this appeal. I have perused the lower court records and note that indeed the deceased’s employment dated 4,4,2022 was letter of produced in evidence. I concur with the Respondent that it is not open for the Appellant to challenge that evidence on appeal when indeed he did not oppose to its production before the lower court. In the circumstance I hold that the deceased earnings of ksh.30,000/= indicated in the letter of employment forms the multiplicand for purposes of computing loss of dependency. The learned trial magistrate was right in using the said figure in her computation. 28. The Appellant in his submissions is not opposed to the dependency ratio of 2/3 and the multiplier of 14 years which was applied by the learned trial magistrate. The court finds both to be reasonable and will not interfere with the same. The proper 17 | P a g e

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computation, subject to the adjusted liability ratio will therefore work out as follows: Loss of dependency : Ksh 30,000 *12*14*2/3 Total = Ksh.3,360,000/= 29.In the upshot, this appeal succeeds partially. The final computation in this judgement will therefore work out as follows: a) Liability…………………………..70%:30% a) Pain and suffering……………...Ksh.50,000/b)Loss of Expectation of Life......Ksh.100,000/c) Loss of Dependency...............Ksh.3,360,000/d)Special Damages...................Ksh 142,550/Total……………………………...Ksh.3,652,550.00 Les 30% contribution……Ksh1,095,765.00 Net Total……………………Ksh.2,556,785.00 e) Interest on General Damages shall be at court rates from the date of Judgment in the trial Court 18 | P a g e

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and on special damages interest shall be from the date of filing suit. f) Parties shall bear own costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE,2026 THROUGH THE TEAMS MICROSOFT PLATFORM KENNEDY KANDET JUDGE IN THE PRESENCE OF: WAWERU MBURU FOR THE APPELLANT OCHIENG HOLDING BRIEF FOR NJERI FOR THE RESPONDENT COURT ASSISTANT: JACKLINE KURUI 19 | P a g e

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