Dennis Mokaya Mochama & 1 other v Geoffrey Machwara Mayogi (Suing as the legal representative of the Estate of Dorothy Monyangi Onguti (Deceased))

Act. The Respondent blamed the occurrence of the accident on the negligence of the 1st Appellant who was said to have driven 2nd Appellant’s motor vehicle registration number KCT 580M recklessly, at an excessive speed and without due care and attention thereby causing the collision. The Respondent further stated that the deceased sustained fatal injuries as a result of the collision and later succumbed while undergoing treatment. It was also averred that the deceased was aged 23 years and was engaged in business through which she earned an income that supported her dependants. 3. The Appellants denied liability and maintained that the accident was either wholly or substantially caused by the negligence of the driver of motor vehicle registration number KBC 170Z. 4. Upon hearing the matter, the learned trial magistrate entered judgment in favour of the Respondent and awarded damages as follows: i) Pain and suffering KES.100,000 ii) Loss of expectation of life KES.100,000 iii) Loss of dependency KES.7,278,856 iv) Special damages KES.112,490 v) Costs and interest.

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5. Aggrieved by the said judgment, the Appellants lodged the present appeal vide the Amended Memorandum of Appeal dated 8th October 2025 challenging both liability and quantum. 6. The appeal was canvassed through written submissions. In submissions dated 27th April 2026 and filed by Messrs. Ouma Njoga & Co. Advocates, counsel for the Appellants submitted that the learned trial magistrate erred in finding the Appellants wholly liable despite what counsel termed as inconsistencies in the Respondent’s evidence regarding the occurrence of the accident. Counsel further argued that the investigating officer did not conclusively attribute blame to the Appellants and that the Respondent had failed to prove negligence on a balance of probabilities. 7. On quantum, counsel for the Appellants submitted that the award of KES.7,278,856 for loss of dependency was excessive and unsupported by evidence since no documentary proof of earnings was produced. Counsel urged the court to adopt the statutory minimum wage under the Regulation of Wages Order Order, 2018 and proposed a multiplicand of KES.8,109.90 together with a multiplier of 20 years and a dependency ratio of one-third. Counsel also challenged the award of KES.100,000 for pain and suffering on the ground

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that the deceased died shortly after the accident and therefore only nominal damages were justified. 8. The Respondent opposed the appeal through submissions dated 30th March 2026 filed by Messrs. Gogi & Associates Advocates. Counsel submitted that the learned trial magistrate properly evaluated the evidence and correctly found the Appellants liable for the occurrence of the accident. It was argued that the evidence adduced before the trial court established that motor vehicle registration number KCT 580M was being driven at a high speed prior to the collision. 9. On the question of damages, counsel for the Respondent submitted that the awards made by the trial court were reasonable and founded on settled principles. Counsel maintained that the deceased was aged 23 years and that the multiplier adopted by the trial court was justified. Counsel further submitted that in the absence of strict proof of income, the court could properly resort to the statutory minimum wage and proposed adoption of a multiplicand of KES.10,000 per month. 10. Having considered the record of appeal, the judgment of the subordinate court, the submissions by counsel and the authorities cited, the following issues arise for determination:

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1) Whether the learned trial magistrate erred in finding the Appellants wholly liable for the occurrence of the accident. 2) Whether the awards made under the various heads of damages were excessive and founded on proper principles. 12. On the first issue of whether the learned trial magistrate erred in finding the Appellants wholly liable for the occurrence of the accident, the Appellants submitted that the learned trial magistrate failed to properly analyse the evidence on record and thereby erroneously found them wholly liable for the occurrence of the accident. Counsel argued that the evidence tendered before the trial court did not conclusively establish negligence against the 1st Appellant and that there were inconsistencies in the testimony of the Respondent’s witnesses regarding the manner in which the accident occurred. 13. The Respondent on the other hand maintained that the evidence tendered before the subordinate court sufficiently established negligence against the 1st Appellant. Counsel submitted that motor vehicle registration number KCT 580M was being driven at a high speed prior to the collision and that the learned trial magistrate properly evaluated the evidence before apportioning liability.

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14. The duty of a first appellate court, as articulated in Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reaffirmed in Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR, is to subject the entire evidence on record to a fresh and exhaustive scrutiny and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 15. The evidence on record reveals that the deceased was travelling as a lawful passenger aboard motor vehicle registration number KCT 580M when it collided with motor vehicle registration number KBC 170Z along the Kisii–Nyamira road. The 1st Appellant was the driver of motor vehicle registration number KCT 580M while the 2 nd Appellant was sued as the owner thereof. 16. PW2 Bernard Nyancho testified that he witnessed motor vehicle registration number KCT 580M being driven from Kisii towards Nyamira at a high speed before it swerved onto the lane of motor vehicle registration number KBC 170Z thereby causing the collision. 17. Notably, the Appellants did not tender any cogent evidence to disprove the Respondent’s account regarding the manner in which the accident occurred. Although the investigating officer did not conclusively attribute blame to

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either driver, the totality of the evidence tendered before the trial court pointed to negligence on the part of the driver of motor vehicle registration number KCT 580M. 18. Further, no evidence was placed before the court to demonstrate any contribution on the part of the deceased who was merely a lawful passenger aboard motor vehicle registration number KCT 580M. 19. In my view, the act of swerving onto the lane of an oncoming vehicle was itself evidence of negligence. Drivers are under a duty to keep to their proper lane and maintain proper control of their motor vehicles so as not to endanger other road users. The evidence tendered before the trial court demonstrated that the driver of motor vehicle registration number KCT 580M failed in that duty. 20. The 1st Appellant was the driver of motor vehicle registration number KCT 580M while the 2 nd Appellant was sued as the owner thereof. Consequently, the 2nd Appellant was properly held vicariously liable for the negligent acts of the 1st Appellant committed in the course of driving the said motor vehicle. 21. Upon re-evaluating the evidence on record, I am satisfied that the learned trial magistrate properly directed himself on

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liability and arrived at the correct finding holding the Appellants liable for the occurrence of the accident. 22. On whether this court should interfere with the awards made by the trial court, the applicable principles are now well settled. In Butt vs Khan (1977) EA 1, the court held that an appellate court ought not to interfere with an award of damages unless it is shown that the trial court proceeded on wrong principles or that the award was so inordinately high or low as to represent an entirely erroneous estimate. Similarly, in Kemfro Africa Ltd t/a Meru Express Services & Another vs Lubia & Another (1982–88) 1 KAR 727, the court stated that interference is only justified where the trial court took into account an irrelevant factor, left out a relevant factor, or the award is wholly erroneous. The same position was reiterated in Marga vs Musila [1984] KLR 251 and Bashir Ahmed Butt vs Uwais Ahmed Khan [1982–88] KAR. 23. The Appellants challenged the award of KES.100,000 for pain and suffering arguing that the deceased died shortly after the accident and therefore only nominal damages ought to have been awarded. The Respondent on the other hand submitted that the deceased did not die instantly and that the award made by the trial court was modest and within

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conventional limits considering the injuries sustained before death. 24. The Appellants submitted that the award of KES.100,000 for pain and suffering was excessive considering that the deceased died shortly after the accident. Counsel relied on H. Young & Company EA Ltd vs Juma [1976] KLR 701, where the court awarded KES.10,000 for pain and suffering where death occurred shortly after the accident, and Hyder Nthenya Musili & Another vs China Wu Yi Limited & Another [2017] eKLR, where an award of KES.10,000/= was made after the deceased died before reaching hospital. The Respondent on the other hand relied on Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another [2019] eKLR, where the court upheld an award of KES.60,000 for pain and suffering where the deceased survived for a short period after the accident before succumbing to the injuries. 20. In the present case, although PW2 stated that the deceased died several hours after the accident but evidence was produced to establish the precise duration the deceased survived after the accident. In the circumstances, and bearing in mind the comparable authorities cited by the parties, I find that the award of KES.100,000 was on the higher side. Doing the best I can in the exercise of this court’s discretion, I set

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aside the award under this head and substitute it with an award of KES.30,000 for pain and suffering. 21. The award of KES.100,000 for loss of expectation of life was not seriously challenged and, in any event, falls within the conventional range ordinarily awarded by courts under that head. The Respondent relied on Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another (Supra) and Omar Shariff & 2 Others vs Edwin Matias [2020] eKLR, where courts awarded KES.100,000 for loss of expectation of life. 22. The Appellants, in their submissions dated 09th July 2024, similarly relied on Rachel Onkoba Sanya vs Hellen Jebet & Another [2020] eKLR, where the court awarded Kshs.100,000/= for loss of expectation of life in respect of a deceased aged 23 years. 23. Bearing in mind the comparable authorities cited by both parties and the conventional nature of awards under this head, I find no basis upon which this court can interfere with the award of KES.100,000 for loss of expectation of life. 24. The principal complaint by the Appellants concerned the award of KES.7,278,856 for loss of dependency with the Appellants submitting that the deceased’s alleged income of KES.39,500 per month was not proved.

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25. I have reconsidered the evidence on record regarding the deceased’s earnings. Although the Respondent pleaded that the deceased was engaged in business and farming activities, no documentary evidence was produced to establish the alleged monthly income. 26. In the absence of definite proof of earnings, courts ordinarily resort to the applicable Regulation of Wages Orders in assessing damages under the head of loss of dependency. In this regard, both parties addressed the court on the applicability of the minimum wage guidelines. The Appellants, in their submissions dated 09th July 2024, urged the court to adopt the Regulation of Wages (Agricultural Industry) Order and proposed a multiplicand of KES.8,109.90. 27. The Respondent, on the other hand, proposed a multiplicand based on alleged earnings of KES.39,559/= per month but conceded that no documentary proof of earnings had been produced before the court. 28. The deceased was aged 23 years at the time of death. Taking into account the vicissitudes and uncertainties of life, I find that the multiplier of 30 years adopted by the learned trial magistrate was reasonable and I shall not interfere with the same.

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29. However, I find that the learned trial magistrate erred in adopting a multiplicand of KES.39,559 in the absence of documentary proof of earnings. In the circumstances, the proper approach was to resort to the applicable Regulation of Wages Order. 30. Doing the best I can in the circumstances, I adopt the minimum wage proposed by the Appellants under the Regulation of Wages (Agricultural Industry) Order, namely KES.8,109.90 per month, together with a dependency ratio of two-thirds (2/3). The award for loss of dependency is therefore recalculated as follows: KES.8,109.90 × 12 × 30 × 2/3 = KES.1,946,376. 31. In the result, the appeal partially succeeds only to the extent of the award made under the head of pain and suffering and loss of dependency and it is hereby ordered: 1) The award of KES.100,000 under the head of Pain and suffering is hereby set aside and substituted with an award of KES.30,000. 2) The award of KES.7,278,856 under the head of loss of dependency is hereby set aside and substituted with an award of KES.1,946,376. 3) The award on loss of expectation of life, special damages and costs of the suits shall remain as awarded by the trial court

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4) Each party shall bear its own costs of the appeal. DELIVERED AT NYAMIRA THIS May 2026 28th DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant For Appellant - Hilda - Sugi for Ouma Njoga & Co. Advocates For Respondent Advocates - Ms. Gogi for Gogi & Associates

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