Wachira v Kiarie (Suing as the administrator and legal representative of the estate of Kiarie Wanyoike Njoroge) & 2 others [2023] KEHC 26280 (KLR)

Wachira v Kiarie (Suing as the administrator and legal representative of the estate of Kiarie Wanyoike Njoroge) & 2 others (Civil Appeal E029 of 2022) [2023] KEHC 26280 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26280 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E029 of 2022

FROO Olel, J

December 4, 2023

Between

Philip Wachira

Appellant

and

Elizabeth Wangari Kiarie (Suing as the administrator and legal representative of the Estate of Kiarie Wanyoike Njoroge)

1st Respondent

Maryland Estate

2nd Respondent

Malik Boeki Company Ltd

3rd Respondent

Judgment

1. The Appellant was the 3rd defendant in the primary suit, where he was sued as the beneficial owner and/or driver of Motor vehicle [particulars witheld] Toyota Fielder (hereinafter referred to as the suit motor vehicle). It was alleged that on 6th October 2018, the deceased herein was lawfully pedestrian along Kenyatta Avenue road, when near Guest Inn area the suit motor vehicle was carelessly and recklessly driven and/or controlled by the appellant and/or his agent that they caused the same to lose control and as a result it hit the deceased and thereby caused him to sustain fatal injuries. The appellant did file his statement of defence denying the said accident and in the alternative attributed the said accident to the deceased. The 2nd and 3rd respondents herein did not file any pleadings and did not take part in the proceedings before the trial court.

2. After hearing of the suit, the learned magistrate in his judgment delivered on 11th March 2022 apportioned Liability at the ratio of 35:65 in favour of the 1st respondent and proceeded to award the 1st respondent a total award of Kshs 2,714,465/= under various heads and taking into account the contribution as assessed.

3. The Appellant, being dissatisfied by both quantum awarded and liability as apportioned did file his Memorandum of Appeal where he raised several grounds of appeal namely:-a)That the learned trial Magistrate was in error of fact and law in apportioning liability at 65. 35 in favour of the respondent/plaintiff when the weight of the evidence showed that the deceased was entirely to blame for sleeping on the road at night just meters off a pub.b)That the learned trial magistrate was in error of law and fact in failing to find that the deceased was largely if not entirely to blame for the occurrence of the accident.c)That the learned trial magistrate erred and misdirected himself in fact and law by awarding damages to the respondent that were manifestly excessive.d)That the learned trial magistrate erred and misdirected himself on the principles applicable to damages and in his findings on loss of dependency.e)That the learned trial magistrate erred in law and in fact in failing to take into account the uncertainties and vestitutes of life and give due allowance for that.f)That the learned trial magistrate erred in law and in fact by failing to work out or setout calculation’s on loss of dependency and dependency ratio.g)That the learned trial magistrate erred in law and in fact by failing to set out in all issues in controversy including calculations in his judgment.h)That the learned trial Magistrate erred in failing to consider and critically analyze the submissions made on behalf of the 3rd defendant and thus arrived at an unjustifiably high award.i)That the learned magistrate award on damages was so inordinately high.j)That the learned magistrate award of Kshs 4,000,000/= for loss of dependency was based on no evidence at all.k)That award on loss of dependency was based on a wrong legal principle.l)That the learned magistrate findings on liability went against the weight of evidence.m)That the learned trial magistrate erred in law and fact in failing to find that the plaintiff/respondent had failed to make out his case and hence dismiss the same.n)That the learned magistrate was in error of law and fact in failing to take into account certain consideration’s material to an estimate of the evidence.

Facts of the case 4. The 1st respondent did testify and adopted her witness statement. It was her evidence that she was the wife and legal administrator of the estate of her deceased husband, who was unfortunately knocked down by the suit motor vehicle on 6th October 2018, along Kenyatta Avenue near Guest Inn area and as a result sustained fatal bodily injury. The deceased was a businessman running successful transport business, that included matatus and lorries for hire. Further the deceased undertook construction work and leased construction equipment and his gross monthly earning was estimated at Kshs 250,000/= she produced into evidence all the documents she relied on.

5. In cross examination, she confirmed that she was not present when the accident occurred and had no eye witness to corroborate her evidence. She maintained that the deceased was a businessman who earned Kshs 250,000/= monthly though she had no documents to prove the same. She was blessed with three children George Waweru (born 1982), Henry Njuguna (born 1987) and Micheal (born 1992). They all depended on their deceased father as they were all unemployed. In reexamination she reaffirmed that she and her children were not working and depended on their father/husband for upkeep. The police had also informed her that they would charge the appellant but she had never been called to court to testify as against him.

6. PW2 PC Josephat Makau from Naivasha police station produced the police abstract and confirmed that indeed an accident did occur, and the appellant was charged with the offence of causing death by dangerous driving in Naivasha Traffic case No 1580 of 2019. The investigation into the accident was undertaken and had laid blame for the accident on the appellant. In cross examination PW2 confirmed that accident sketch marks were drawn and the point of impact was on the edge of left side of the road, too close to the tarmac. There was no indication that the deceased was drank nor was there any evidence that the deceased was on phone when he was hit. The traffic case was still pending before court and the appellant had absconded court. A warrant of arrest was pending as against him. In re exam PW2 confirmed that the accident occurred within Naivasha town on Kenyatta Avenue, near the junction. It was a heavily built up and populated area.

7. The appellant testified and confirmed that indeed the accident did occur on the said date. The deceased had tried to cross the road from right to left. He swerved and tried to apply breaks, but unfortunately, he hit him. The accident occurred inside the tarmac on the left side and he was driving at 40 to 50km/hr. After the accident the police were called and the suit motor vehicle was driven to the police station. He blamed the deceased for crossing the road without checking and/or clarifying that it was safe to do so. He confirmed that he was charged in court with the offence of causing death by dangerous driving and the traffic case was still ongoing.

8. In cross examination, the appellant confirmed that he was driving heading into Naivasha town and was driving at a speed of about 40 to 50km/hr when the accident occurred. He had tried to swerve to avoid the collusion but the accident occurred on the left side of the road. The left side of the suit motor vehicle hit the deceased as he was crossing the road. There were no witnesses to the accident.

Parties Submissions Appellants Submissions 9. The appellant submitted that this court had a duty to consider the evidence adduced at the trial and evaluate it afresh before coming to its own independent conclusions irrespective of the determination by the trial court, subject to the understanding that it is only the trial court that had the advantage of seeing and hearing the witnesses. Reliance was placed in the citation of Sellev Associated Motor BoatCo Ltd, Jacob Momanyi Orioki v Kevian Kenya Ltd (2018) eKLR & Godfrey wamalwa wamba & another v Kyalo Wambua (2018) eKLR.

10. On the issue of Liability, it was submitted that the evidence PW2 and the appellant’s tallied and indeed confirmed that the deceased was attempting to cross the road when he was hit by the suit motor vehicle and further that the accident occurred on the road. The appellant therefore could not be faulted for the accident as the deceased was not crossing the road from a Zebra crossing and he also had corresponding duty to be mindful of other road users. Therefore, the appellant’s negligence was not proved and the 1st respondents’ suit ought to have been dismissed. Reliance was placed on David Mwangi & another v Stephen Mwangi & another (2017 ) eKLR, Patrcik Mutie Kamau & another v Judy Wambui Ndurumo,

11. The appellant further submitted that the 1st respondent also did not call any independent eyewitness to support her case and PW2 also did not produce the accident sketch map and therefore the evidence was inconclusive. In absence of such a witness/evidence, the appellants negligence was not proved and no liability could be apportioned as against the appellant. Reliance was placed on the case of Lusia .N.A.Liseche v Daniel Mburu Kinyajui & another (2010) eKLR, Habil Imenje (suing as representative of the late Howard omondi Musasia Deceased ) v Florian King’oo & 3 others (2006) eKLR, Mbilo Nzeki Munyasia v Malde Transports Ltd & 2 others (2015) eKLR & Lillian Birbir 7 another v Ambrose Lemaon (2016) eKLR

12. As regards quantum the appellant submitted that the trial magistrate erred and misdirected himself on principles applicable in calculating loss of dependency. There was no proof of monthly income nor was there proof of dependency as the deceased children were all adults. The appellant urged this court to find that in absence of such proof the trial court should have applied the minimum wage of Kshs 13,572/=, multiplier of 7 years and dependency ration of 1/3; (13,572. 90 x 7 x 12 x 1/3= Kshs 380,041. 20/=. But even if the court were to use the global award approach, the award of Kshs 4,000,000/= was excessive under the circumstance and the global ward should have been limited to Kshs 400,000/=.

Respondents Submissions 13. The 1st Respondent did submit that she did prove her case on balance of probability, that indeed an accident did occur and as a result of the said accident, the deceased sustained fatal injuries. PW2 had the police file in court and based on facts established therefrom, it was confirmed that the appellant was culpable and subsequently he was charged in court with the offence of causing death by dangerous driving.

14. On liability, the 1st respondent did submit that, the appellant should have been driving at a moderate speed of not more that 50km/hr considering the area, where the accident occurred and should have been able to control the said motor vehicle to avoid the accident. There was no evidence that the appellant was drunk nor was he sleeping on the road as alleged and therefore the appellant bore a greater duty of care. The apportionment reached by the trial court was thus fair and logically sound.

15. The 1st Respondent urged the court to find that there was no error by the trial court in using the global award method. The appellant was a businessman who took care of his family and thus loss of dependency was properly awarded. Reliance was placed in Mary Njeri Murigi v Peter Macahria & another (2016) eKLR , Albert Odawa v Gichimu Gicheji Nakuru HCCA 15/2003 (2007) eKLR

16. The court was urged to uphold the trial Court’s award on both liability and quantum.

Determination 17. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. As held in Selle & Anotherv Associated Motor Boat Co ltd & others (1968) EA 123 where it was stated that;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court Is by way of retrial and the principals 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 conclusion 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 estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. (Abduk Hammed saif v Ali Mohammed Sholan (1955), 22 E.A.C.A 270"

18. In Coghlan v Cumberland (1898) 1 Ch, 704 , the court of appeal of England stated as follows;“Even where, as in this case, the appeal turns on a question of fact, the court of appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the material before the judge with such other material as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong ... when the question arises which witness is to be believed rather than the other and that question turns on manner and demeanour, the court of appeal always, is and must be guided by the impression made on the judge who saw the witness. But there may obviously be other circumstance’s quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court had not seen."

19. Also it has been held by the court of appeal in Ephantus Mwangi and another v Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988} 1KAR 278 that;“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstance’s or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

20. Therefore, this court has a solemn duty to delve at some length into factual details and revisit the evidence as presented in the trial court, analyze the same, evaluate it and arrive at its own independent conclusion, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.

Liability 21. From the Evidence adduced by both parties, they do admit that an accident did occur on 6th October 2018 at about 7:30pm, along Kenyatta Avenue near Guest Inn area. The appellant who was driving the suit motor vehicle did knocked down the deceased as he attempted to cross the road, and as a result, he did sustain fatal injuries and died on the spot. The only issue disputed is whether liability as apportion by the trial magistrate was proper or as submitted by the appellant, the deceased should have been held 100% liable.

22. When the court is faced with two sets of circumstances it is still duty bound to make a determination thereon however difficult the circumstances are. This was appreciated by Madan , J (as he was then) in Welch v Standard Bank Limited (1970) EA 115 where he expressed himself as hereunder;“When there is no material to generate actual persuasion in the courts mind, still the court cannot un-concernedly refuse to perform its allotted task of reaching a determination. The collision is a fact. Any one of the alternatives mentioned may provide the right answer as to how it happened. The court’s sense of impartiality prevents the choosing of the alternatives of individual blame against either driver. It would be just to say, and it is as likely the explanation that both drivers were to blame equally as that only one of them was wholly to blame. Accidents do not happen but they are caused. It is an explanation which offers a solution of impartial practicability.Every day, proof of collision is held to be sufficient to call on the two defendants to answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court has nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence enabling the court to draw a distinction between them, they must both be held to blame, and equally to blame…..justice must not be denied because the proceedings before the court failed to conform to conventional rules provided, in it judgment, the court is able to discern that which is right owing to it being fair and just in the circumstances, without jeopardizing the vital task of doing justice. Provided there is no transgression of this sacred duty, the court will act justly in coming to a decision even if there is no evidence capable of procreating actual persuasion ... There being nothing to enable the court to draw a distinction between the two drivers, it is consonant with probabilities, and it is not repugnant aesthetically to a logical judicial mind, to hold that both were to blame, and equally to blame. The court does so in this case."

23. Similarly, in Lakhamshi v Attorney General(1971) EA 118 it was held that:“A judge is under a duty when confronted with conflicting evidence to reach a decision on it and inmost traffic accidents, it is possible on a balance of probability to conclude that one or other party was guilty, or both parties were guilty, of negligence. In many cases, as for example, where vehicles collide near the middle of a wide straight road, in conditions of good visibility, with no obstruction or other traffic affecting their courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the Centre of the road, the other must be negligent in failing to take evasive action. It is usually possible, although extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence but where it is not possible, it is proper to divide the blame equally between them."

24. The issue of apportionment of liability was also discussed in Khambi and another v Mahithi and another (1968) E.A 70 where it was held that;“It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial judge.”Similar decisions have been reached in Mahendra M Malde v George M Angira Civil Appeal.

25. While there was no eye witness to the said accident, PW2 did carry the police file to court and based his testimony on facts obtained therein. His evidence on liability was based on the police sketch marks which were in the said file. From the finding therein, it was established that,““the point of impact was near the edge of the left side of the road, too close to the tarmac. The pedestrian wanted to cross the road when he was hit by that motor vehicle ... there was no indication that the deceased was drunk, nor any indication that the deceased was on the phone.”The appellant also testified that,““Around 7:16 in the evening as I was proceeding to town, a man tried to cross the road from right to left.”The evidence adduced confirmed that the appellant hadn’t crossed the road and this explaines why the point of impact was on the edge of the left side of the road, close to the tarmac.

26. Further, there was evidence adduced by both parties that the accident happened within a well built up and populated area. The appellants assertion that he was driving at an average speed of 40 - 50 km/hr is not plausible, given the instant fatal injuries the appellant sustained, which is indicative of the fact that the respondent was knocked down by a motor vehicle driven at high speed. The appellant obviously failed in his duty as a driver to keep a reasonable look out for other road users, the respondent included and failed to drive at a moderate speed within a town center.

27. Further even if it is true that Respondent was crossing the road, courts have severally held that a pedestrian cannot simply be faulted for crossing the road, as roads are used by motorists and pedestrians as well. It was the duty of motorists to drive with due care and attention as well as observe traffic rules and regulations including giving right of way to pedestrians at designated places. A motor vehicle driver also had to anticipate that things, people or animals might stray onto the road and he is bound not to drive at high speed so as to avoid accidences occasioned by such persons/animals.

28. In other words, 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. See Masembe v Sugar Corporation & another (2002) 2 EA 434, which was cited with approval in the case of Kennedy Muteti Musyoki v Abedinego Mbole ( 2021) eKLR & Osoro & 2 others v Msango & another suing as legal representative of the Estate of Nicholas Brown Mwangemi (deceased) (Civil Appeal 65 of 2019)(2022) KEHC 212(KLR)

29. The 1st Respondent’s documentary and oral evidence were consistent and pointed towards negligence of the appellant as the cause of the accident as he was driving at high speed within a township area and could therefore not stop at once on application of the emergency breaks. The point of impact was at the side of the road and as noted from the police file was,“the point of impact was near the edge of the left side of the road, too close to the tarmac”.The trial magistrate adequately considered all the evidence and parties’ submissions and rightly apportioned liability. There was no evidence that the learned magistrate based his decision on wrong principles or parameters and therefore there is no basis to interfere with the trial courts findings and determination on liability.

Quantum 30. As regards quantum, in Woodruff v Dupont [1964] EA 404 it was held by the East African court of appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

31. This court is also guided by the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR where the Court set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low ...”

32. In the case of Southern Engineering Co. Ltd v Musungi Mutia [1985] KLR 730, the court held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”

33. Further it is also trite law, that when it comes to assessment of damages, comparable injuries should as far as possible be compensated by comparable awards. It however needs recalling that no two cases are unusually similar in terms of nature and extent of injuries sustained. The court of appeal in Stanley Maroa v Geoffrey Mwenda (2004) eKLR stated as follows ;“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable award keeping in mind the correct level of awards in similar cases.”

34. Further in the case of Charles oriwo odeyo v Apollo Justus Andabwa & another (2017) eKLR the court stated that;“The court in making an award for damages must always consider prevailing inflation.”

Whether the trial court erred in awarding an inordinately high award for loss of dependency 35. As regards the award under loss of dependency, there are two schools of thought on this issue, with one school advocating for an award under the heading calculating loss of dependency in terms of the number of years and anticipated income for the deceased, whereas the other school advocates for a global award.

36. The Court of Appeal in Chunibhai J. Patel and another v P. F. Hayes and others [1957] EA 748, 749, stated the law on assessment of damages under the Fatal Accidents Act and held as follows:“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependents, the net earning power of the deceased (i. e his income less tax) and the proportion of his net income which he would have made available for his dependents. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase. (Emphasis added)”

37. In Mwanzia v Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa v Gichumu Githenji Nku HCCA No.15 of 2003 [2007] eKLR, the court made the following observation;“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

38. In the same breath, the court in Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, held as follows-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

39. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, it stated:“[23].In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.[24].The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

40. The trial Magistrate did adopt the Global award method, which the appellant faulted and proposed that in determining quantum and submitted that the trial court ought to have used the multiplier method. The appellant proposed that the minimum wage should be applicable and a multiplier of 7 years be used (13,572. 90 x 7 x 12 x 1/3 = 380,041. 20/=).

41. The approach of the trial court cannot be faulted in using global award method as no facts were placed before court such as the, the actual amount of annual or monthly income of the deceased, level of dependency and the expected length of the dependency were left unknown and such estimates could not be made without undue speculation. While the appellant pointed out that the deceased children were adults and thus unlikely to be dependent on the father, in the current Kenyan context it is also likely that the last two children who were aged 31years and 26 years were still being supported by their parents due to lack of Jobs in the market and were probably still reliant on the deceased for upkeep, a factor which this court takes judicial notice of.

42. The appellant has failed to show that in assessing quantum, the trial magistrate, took into account irrelevant principles or left out of account relevant ones, but correctly pointed out that the amount awarded by the trial court for loss of dependency being Kshs 4,000,000/= was inordinately high and thus represented a wholly erroneous estimate of the damages as assessed. Based on all the factors as pleaded in the case I would reduce the award to Kshs 2,000,000/=

Disposition 43. This appeal is thus partially merited. The judgment and decree issued in Naivasha CMCC No 564 of 2019 dated 11th March 2022 with respect to the award of loss of dependency Is hereby set-aside and is reduced to Kshs 2,000,000/=. The total award will therefore be as follows;a) Pain and Suffering Kshs 30,000/=

b) Loss of expectancy of life Kshs 100,000/=

c) Loss of Dependency Kshs 2,000,000/=

d) Special damages Kshs 46,100/=

Sub Total Kshs 2,176,100/=

(Less 35% contributory Negligence Kshs761,635/=)

Total Award Kshs 1,414,465/= The respondent is also awarded costs and interest at court rates

44. The appellant is awarded half costs of this appeal costs of this appeal which is hereby assessed at Kshs 150,000/= all inclusive

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 4Th day of December, 2023. In the presence of;Ms. Mbugua for AppellantNo appearance for RespondentSusan Court Assistant