Munywoki & another (Suing as the Legal Representatives of the Estate of the Late Fidelis Nyamai Daud) v Kivuva [2026] KEHC 15930 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO.179 OF 2022

1. REGINAH NDUNGE MUNYWOKI

2. AGNES SYOKAU DAUD

(Suing as the legal representatives of the estate

of the late FIDELIS NYAMAI DAUD). ..........................APPELLANTS

-VERSUS-

DUNCAN NZAU KIVUVA …………………………..………..RESPONDENT

(Being an appeal from the judgment delivered on 2.11.2022 by the Chief Magistrate sitting at Machakos Law Courts Hon. E.H. Keago in CMCC NO. 703 OF 2019)

JUDGEMENT

1. By a Plaint dated 17th May 2019, the Appellants (Plaintiffs then) sued the Appellant (Defendant then) claiming general damages and special damages of Kshs.96,680/= plus costs and interest following a road traffic accident that occurred on 6th August 2018 involving motor vehicle registration number KUV 254 belonging to the Respondent and a motor cycle registration number KMDR 875P ridden by Fidelis Nyamai Daudi (Deceased).

2. The Respondent filed a Statement of Defence dated 12th September 2021 basically denying the Appellants’ claim and pleading that the accident if at all it occurred which is denied the same was wholly caused or substantially contributed to by the negligence of the deceased who was riding motor cycle registration No. KMDR 875 that was not even insured. The Respondent prayed that the Appellants’ suit be dismissed with costs.

3. The suit proceeded for full trial with the Appellants calling three (3) witnesses in support of their case. The 1st plaintiff/Appellant Agnes Syokau David testified as PW1 and stated that she Knows Fidelis Nyamai Daudi who died in a Road Traffic Accident. She adopted her statement recorded and dated 17/05/2019. She stated that the deceased was 25 years at the time of his demise and prior to his demise he used to assist her and he equally had two children namely Faith Daudi Nyamai and Brian Nyamai and his wife was Regina Ndunge Nyamai. The witness stated that she was called by her daughter-in-law about the accident. She identified the Police Abstract as MFI-1, Certificate of death as MFI-2, burial Permit MFI-3. She also identified the certificates of birth for the two children as MFI 1 4(a-b), letter of instruction from the area Chief as MFI-5, Letters of grant ad litem MFI-6 Copy of records MFI 7, statutory Notice MFI-8 and the Postmortem report as MFI-10. She therefore sought for compensation following the demise of her son and for the benefit of the children and his spouse. She also prayed for costs.

4. When she was cross-examined by Kyalo for the defendant, she stated that they stay at Kalumoni and the accident happened about 200 metres away. She admitted that she didn't witness the accident neither did she find the deceased at the scene. She admitted that she can't tell who was to blame for the accident. She admitted that she didn't know who was the owner of motor cycle KMPR 875P but she met the owner who assisted in the treatment of his son. She admitted that the motor cycle didn't belong to her son. She admitted that she didn't know how much her son used to earn but he used to support her and still support his family. The witness stated that she has other children who also assist her.

5. On re-examination she stated that the deceased used to run the boda to earn a living. She confirmed that the witness statement was read to her and she signed the same.

6. PW2, Regina Ndunge Munywoki a resident of Wote where she works as a shop attendant stated that she did record her statement in support of the claim before Court. She adopted the statement as her evidence in Chief. She corrected her statement to read KUV as the accident M/V and not KUR as reflected in the statement. She confirmed that she filed the claim supporting documents which she produced as EX2 to EX10 in this matter. She identified the Police abstract as MFI1. She therefore sought for compensation.

7. When she was cross-examined, she stated the accident happened about 3 Kms from where they were staying. She admitted that she didn't witness the accident but she found the victim at the Hospital and he passed on later. She admitted that the Police Abstract shows the motor cycle as KMDR 875P but she can't tell whether it was insured but it belonged to alias Musanii. The witness stated that the owner of the motor cycle only assisted in paying for her fare home after her husband passed on. She admitted that she had not sued the owner of the motor cycle. She admitted that she was not aware whether the owner of motor vehicle KUV 254 was ever charged of any Traffic Offence. She admitted that she had not produced any document to show the monthly income of the deceased but his daily earning was Kshs.1,500/= of which he used deposit with the owner of the motor cycle Kshs.300/= daily remaining with a balance of Kshs.1200/=.

8. On re-examination, she stated that she admitted that she couldn't tell whether the deceased had a Driving Licence and whether the motor cycle was insured. She admitted that she had not sued the owner of the motor cycle since he was not the driver of motor vehicle KUV 254. On the income she stated that she had estimated but with the income the deceased used to provide for the family.

9. PW3, PC Daniel Chacha of Machakos, Traffic base stated that an accident occurred which involved motor vehicle KUV 254 on the 6/8/2018 Toyota Pick-up and motor cycle KMDR 875P Skygo along Machakos Kitui road where the rider was fatally injured. The case was investigated by Corporal Barasa who had been transferred and he couldn't tell which station he was at. He stated that as on the date of issuing the Police abstract the matter was pending Under Investigation. He stated that the rider succumbed to the injuries. The witness stated that he was paid Kshs.5000/= for Court attendance. He produced the Police abstract as PEX 1(a) and the payment voucher for Court attendance as PEX 1(b). He stated that the motor cycle was not insured.

10. When he was cross-examined, he stated that he didn't have the OB and Police file and therefore can't explain the circumstances of the accident. He admitted that he can't tell who caused the accident.

11. On re-exam he stated that the contents of the Police abstract are obtained from the OB records. That marked the close of the Appellants’ case.

12. The defence called 4 witnesses in support of their defence. DWI Duncan Musau Kivuva the owner of motor vehicle KUV 254 adopted his statement recorded and filed in Court on the 9/03/2021as his evidence in Chief. He amended his statement to read the correct date as 8/08/2015. He identified the driver as James Muthini Kivuva and that the motor vehicle had all the valid documents. He stated that the driver was not charged of any Traffic Offence and his motor vehicle was released upon inspection. He urged the Court to dismiss the case as the driver was not to blame for the accident. He produced the Police Abstract as DEX1.

13. When he was cross-examined, he stated that he was not present when the accident happened. He stated that the driver told him that the rider was on high speed. He stated that his motor vehicle was released unconditionally.

14. DW2, James Muthini Kivuva a resident of Muvuti Location stated that on the material day he was the one driving motor vehicle KUV 254 Toyota Pick-up. He stated that he recorded his statement which he wished to adopt as his evidence in Chief. He stated that the accident happened at Muvuti Junction just before you get to Kitui road. He stated that he was driving on the left lane and the motor cycle was coming from the opposite direction. The rider who was on high speed suddenly came to his lane and he had to move to the extreme left and the rider still came on and hit the motor vehicle. The witness stated that the rider didn't have any protective gears on. The scene was visited by the police officers and they took his Driving Licence and copy of the insurance sticker. He stated that he had not been charged of any Traffic offence and the motor vehicle had a current inspection sticker. He stated that the rider was to blame for the accident in that he rode on high speed while looking behind. He stated that the accident was witnessed by people who were nearby.

15. When he was cross-examined, he stated that he had not produced his Driving Licence. He confirmed that he was driving from Machakos to Mbooni and the accident happened at Mbooni Junction. He stated that the rider was from Mbooni entering Kitui road while he was on his left towards Mbooni. He stated that he had stopped before the accident for about 5 minutes as the rider was riding in a zigzag manner. He stated that he was driving at about 5kph before he finally stopped. He admitted that he was the one joining the feeder road and the accident happened at noon when the road was clear. He stated that the Investigating Officer told him that the rider was to blame for the accident. He stated that the rider was not careful as he rode while facing behind/back ward and at a speed of 80KPH.

16. On re-exam he stated that he gave his DL to the Police and he had stopped for about 5 seconds before the Impact occurred. He stated that he clearly saw the rider as he rode towards him and he was solely to blame for the accident.

17. DW3, PC Gideon Kipruto of Machakos Police station stated that he had the OB records for 6/08/2016 which relate to an accident which happened on the Muvuti Junction which involved motor vehicle KUV 254 driven by James Muthini and motor cycle KMDR 875D Skygo. He stated that the motor vehicle and the motor cycle were going in opposite directions and the motor cycle failed to Keep to his proper Traffic Lane and hit motor vehicle KUV 254 on the front head lights and a Police Abstract was issued to the driver of motor vehicle KUV 254. He stated that the Investigating Officer concluded that it was the rider who was to blame for the accident. He produced the Police abstract as DEX1. He stated that the matter was investigated by Corporal Wafula who has since retired.

18. When he was cross-examined, he stated he was not the Investigation Officer in the matter. He confirmed that the Police Abstract is duly stamped by their office stamp. He stated that the Investigating Officer concluded that the rider was to blame on the 6/08/2018 and the Police abstract was issued on the 30/8/2018. He admitted that he didn't have the Police file nor the sketch maps from the scene. He admitted that the Investigation Officer had since retired but nobody was charged of any Traffic Offence.

19. DW4, James Mwendwa an artisan stated that he knows Duncan Kivuva who was his neighbour. He adopted his statement recorded which was filed in Court on 9/03/2021 as evidence in chief. He confirmed to have witnessed the accident as he sat under a Mango Tree. He stated that he saw a Pick-Up on its left towards Mbooni and there was a rider from Mbooni direction who was whistled back and he turned to check. He then lost control of the Motor cycle and knocked the Pick-up. He stated that the rider was on high speed and he didn't have any safety gear on. He stated that it's the rider who was to blame for the accident. He was on high speed and looked behind which resulted in the accident.

20. When he was cross-examined, he stated that he had known Duncan since his birth and they come from the same village. He admitted that the accident motor vehicle belongs the Duncan and before the accident the rider had been called by a whistle and he looked behind. He stated that he was sitting alone at the scene under the Mango tree. He stated that the road is marked and when the driver of the Pick-up saw the rider come on high speed he slowed down and moved to the extreme left. That marked the close of the defence case.

21. The matter was set for submissions. On the part of the Appellants, it was submitted that the Respondent was were to blame for the accident due to reckless driving and negligence. They submitted that PW3 and DW3 testified and each of them stated that they were not Investigation Officer in this matter. They submitted that there was evidence that an accident happened and the accident motor vehicle KUV 254 belonged to the Respondent. On the basis of that they urged the Court to find that the Respondent was to blame for the accident and therefore should be held liable at 100%.

22. Upon considering the pleadings, evidence and submissions by both parties, the learned trial magistrate dismissed the Appellants’ suit for failure to prove liability against the Respondent.

23. Being dissatisfied by the said judgment, the Appellants filed the appeal herein vide a Memorandum of Appeal dated 1st December 2022 raising five grounds of appeal challenging the whole of the trial court’s decision as follows, That: -

a) The Learned Magistrate erred in law and fact by making a finding that the Appellants did not prove their case and proceeded to dismiss the same with costs.

b) The Learned Magistrate erred in law and fact by failing to take into account the Appellants' evidence presented before the trial court and in particular the Appellant's witness, PW 3, which showed that the defendant now respondent or his duly authorized agent was substantially to blame for causing the accident giving rise to the suit before the lower court.

c) The Learned Magistrate erred in law and fact by failing to make a finding that the evidence presented by the Appellants could not sustain the pleaded claim.

d) The Learned Magistrate erred in law and fact by wholly disregarding submissions tendered by the Appellant before arriving at his decision.

e) The Learned Magistrate erred in law and in fact in meting out a decision that was extremely harsh to the Appellants without having due regard to intervening factors and circumstance of the matter before him.

24. It is therefore proposed to ask this Honourable Court to set aside the judgment of the learned trial Magistrate dismissing the suit before the lower court with costs to the Respondent.

25. The appeal was canvassed through written submissions and both parties complied.

Analysis and determination

26. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.

27. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -

“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.

28. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.

29. I have carefully perused the Record of Appeal and the grounds of appeal and keenly considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited. I will proceed to consider whether the trial court’s judgement dismissing the Appellant’s suit should be disturbed on this appeal.

Liability

30. From the evidence tendered by both the Respondent and Appellants, there is no doubt that an accident occurred on 6th August 2018 involving motor vehicle registration number KUV 254 belonging to the Respondent and a motor cycle registration number KMDR 875P ridden by Fidelis Nyamai Daudi (Deceased). The key witnesses to the accident are DW2, James Muthini Kivuva, the driver of motor vehicle registration No. KUV 254 Toyota Pick-up at the time of the accident and DW4, James Mwendwa, the eye witness who witnesses the accident from under a mango tree.

31. From the evidence of these two witnesses, first DW2 stated that he was driving on the left lane and the Motor Cycle was coming from the opposite direction. The rider who was on high speed suddenly came to his lane and he had to move to the extreme left and the rider still came on and hit the motor vehicle.

32. He stated that the rider was to blame for the accident in that he rode on high speed while looking behind.

33. He stated that he had stopped before the accident for about 5 minutes as the rider was riding in a zigzag manner. He stated that he was driving at about 5kph before he finally stopped. He admitted that he was the one joining the feeder road and the accident happened at noon when the road was clear. He stated that the Investigation Officer told him that the rider was to blame for the accident. He stated that the rider was not careful as he rode while facing behind/back ward and at a speed of 80KPH.

34. On re-exam he stated that he gave his DL to the Police and he had stopped for about 5 seconds before the impact occurred. He stated that he clearly saw the rider as he rode towards him and the rider was solely to blame for the accident.

35. What comes out from the evidence of DW2 is that he was able to see the Motor Cycle coming from the opposite direction as it rode towards him. In fact, DW2 stated that he had stopped before the accident for about 5 minutes as the rider was riding in a zigzag manner and at a speed of 80kph. The big question would then be, what step did DW2 take to escape the motor cycle in order to avoid the collision and the resultant accident. The witness did not say whether he hooted, turned on warning lights, put in place a life saver, warning sign or in any other manner acted to alert or stop the deceased rider. He did not adduce any evidence to confirm the rider was driving at 80kph?

36. DW3 also stated that the scene was visited by the police officers who took his DL and copy of the insurance sticker. He does not say what the police officers did when they arrived. Did the said officers draw sketch maps and or take measurements at the scene or recorded statements of the people he says were at the scene

37. DW3 further stated that the Investigation Officer told him that the rider was to blame for the accident. This clearly confirms that what he told the court regarding the accident and placing blame on the deceased is what he was told by the Investigation Officer. His evidence thus amounts to hear say.

38. On the other hand, DW4 James Mwendwa, the eye witness testified that he witnessed the accident as he sat under a mango tree. He stated that he saw a Pick-up on its left towards Mbooni and there was a rider from Mbooni direction who was whistled back and he turned to check. He then lost control of the Motor cycle and knocked the Pick-up. He stated that the rider was on high speed and he didn't have any safety gear on. He stated that it is the rider who was to blame for the accident. He was on high speed and looked behind which resulted in the accident. This testimony seems to be at variance with what DW2 stated that he had stopped for about 5 seconds before the impact occurred and not being on his left towards Mbooni.

39. The evidence of the PW3, PC Daniel Chacha and that of DW3, PC Gideon Kipruto both of Machakos Traffic base was not very useful to the court because they both admitted that they did not visit the scene, they did not have the police file nor the sketch maps of the scene. DW3 produced the records for 6/08/2016 which related to the accident. He stated that the motor vehicle KUV 254 driven by James Muthuni and Motor Cycle KMDR 875D Skygo were going in opposite directions and the motor cycle failed to keep to his proper Traffic Lane and hit motor vehicle KUV 254 on the front headlights and a Police Abstract was issued to the driver of motor vehicle KUV 254. He stated that the Investigating Officer one Corporal Wafula who investigated the accident had since retired. The said I.O had concluded that it was the rider who was to blame for the accident. He confirmed that nobody was charged of any Traffic Offence.

40. Apart from producing the Police Abstract, PW3 and DW3 did not avail the police file which only could be containing the nature and scope of investigations that were purportedly conducted by Corporal Wafula and what he established in his investigations on the accident. What the two police officers told the court must be what they gathered from the OB, police file, police abstract and some of the witnesses in the case.

41. The trial court stated as follows in its judgment at page 9, line 12 :-

“I have considered the evidence and submissions on record as to the circumstances of the accident. PW3 stated that the motor cyclist was to blame for the accident, the testimony was corroborated by DW3 and DW4 who all blamed the rider for the accident. DW4 was the eye witness to the accident. He attributed the accident to high speed and loss of control who then hit the motor vehicle KUV 254 which was on the other side of the road. Hence the particulars as pleaded by the plaintiff have not been proved. Hence the suit against the defendant is hereby dismissed.”

42. Having considered and analysed the evidence of DW3, the eye witness and DW3 and DW4, police officers who produced police abstracts relating to the same accident. It is not clear whether DW4 ever recorded a witness statement with the Investigating Officer in the matter and whether investigations were ever concluded. The same police abstract produced by both parties dated 30/8/2018 shows that the Investigating Officer was one Corporal Baraza and not Corporal Wafula as was testified by DW3. The police abstract also showed that the matter was pending under investigation. It was not clear when the Investigating Officer decided that the rider was to blame for the accident. The Police Officers PW2 and DW3 did not even have the police file in court for the court to ascertain any findings on the file. There was no sketch map produced. The evidence of DW4 was not helpful to this court. This court is guided by the decision in Michael Hubert Kloss & Another -v- David Seroney & 5 others (2009) eKLR where the Court of Appeal held: -

“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley -v- Gypsum Mines Ltd (2) (1953) A.C. 663 at Page 681 as follows: -

“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection. In a Court of Law, this question must be decided as a properly instructed and reasonable jury would decide it…………..”

The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally”.

43. Accidents do not just occur. It must be caused by either one of those involved or contributed to by both parties. In such circumstances of this case, I find that the Respondent too is to blame for negligence though to a minimal extent and I hereby apportion liability at 85% as against the deceased and 15% as against the Respondent. I am therefore constrained to disturb the trial magistrate’s finding on liability.

Quantum

44. On quantum, the trial court stated that, however, on the issue of quantum had the plaintiffs (Appellants) proved their case against the defendant (Respondent) she would have made the following awards.

45. The deceased died on the 7/06/2016 which was one day after the accident for such a period the trial court found that the sum of Kshs.50,000/= for pain and suffering to be reasonable which she would have awarded being guided by the finding; - In the case of Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) 2019 eKLR it was observed that:

“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for toss of expectation of life is Kshs.100,000/= while for pain and suffering the award range from Kshs.10,000/= to Kshs.100,000/= with higher damages being awarded if the pain and suffering was prolonged before death."

46. On loss of expectation, the death was sudden and at the time of the deceased's demise he was healthy. The trial court considered the cited case law and found the amount to be within the range and would have awarded the plaintiff a sum of Kshs.100,000=.

47. On loss of dependency the deceased died at the age of 25 years. He would have lived up to the age of 70 which is biblical and continued to earn his living by working although note actively in the later years of his life. However, owing to the vicissitudes of life his life would have been cut short. The trail magistrate would have used the Multiplicand of 25 years. The deceased was survived by a spouse, two children and parents. Hence the dependency ratio of 2/3 would apply. The deceased didn't have a profession so he would have been treated as a causal labourer. The applicable multiplicand would have been the minimum wage in 2015 for causals which was Kshs.13, 674/=, hence the trial court would have found the dependency ratio of 2/3 to be reasonable with the multiplier of Kshs.13,674 which would work as follows; -

(13,674X2/3X12X 25) =2,734,800/=

48. On Special damages, the Plaintiffs/Appellants produced receipts for funeral expenses which included coffin casket, fees for copy of records, catering service for the mourners, cost of photo session, a quick perusal of the receipts adds up to Kshs.96,680/=. This claim of Kshs.96,680/= as special damages would have been allowed.

49. The Appellants are also awarded Kshs.5,000/= that was paid to PC Daniel Chacha of Machakos, Traffic base for court attendance to testify.

50. It is trite law that an appellate court should be slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the trial court 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 trial court acted on the wrong principles (See Maraga V Musila (1984) 1 KLR 251). 

51. I have considered the awards on damages as proposed by the trial magistrate and I find them to be based on the correct principles of assessing damages in fatal injury claims. Therefore, I will proceed to award the Appellants the awards as proposed by the trial magistrate less 85 % contributory negligence.

52. Special damages shall not be subjected to the apportioned 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.

53. In the end, I allow the appeal as follows:-

a) Liability 85% :15%

b) Pain and suffering Kshs. 50,000/

c) Loss of expectation Kshs. 100,000/=

d) Loss of dependency

(13674 x2/3x12x 25) Kshs.2,734,800/=

Kshs.2,884,800/=

Less 85% Kshs.2,452,080/=

Kshs. 432,720/=

e) Special damages Kshs. 96,680/=

f) Police court attendance Kshs. 5,000/=

Total Kshs. 534,400/=

54. The Appellants will also have the costs on the total award herein plus interest at court rates from the date of this judgement till payment in full.

55. Stay of execution of 30 days is granted. Right of Appeal 30 days.

Orders accordingly, file closed.

JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 12TH OCTOBER 2026

NOEL I. ADAGI

JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 12TH OCTOBER 2026

In the presence of :

………................................. for Appellants

……….............................. for Respondent

.......................... Court Assistant