REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL NO. E147 OF 2022
ALFONCE MUTUA MAKAU…………………………………..…………APPELLANT
VERSUS
JAVAN KOROS (Suing as legal representative and Administrator
of the Estate of the late WILLY KIMUTAI (Deceased) ………… RESPONDENT
(Being an Appeal from the Judgement and Decree delivered on 4th October 2022 by Hon. M. A Otindo (PM) In Machakos Civil Suit No.327 of 2020)
JUDGEMENT
Background
1. The Respondent instituted a suit as the legal representative of the Estate of the late WILLY KIMUTAI (deceased) for damages, costs and interest for fatal injuries sustained in a motor vehicle accident that occurred on 07/08/2017 involving the deceased who was a pedestrian walking along the Machakos-Nairobi Road at Red Cross in Machakos. The Respondent attributed the accident to the negligence of the Appellant’s driver who was driving the Appellant’s motor vehicle registration number KCF 790Z.
2. The parties recorded a consent on liability at the ratio of 85% to 15% in favour of the Respondent against the Appellant and the case was set down for assessment of damages.
3. On quantum the trial court awarded the Respondent damages as follows:-
a) Pain and Suffering ……………………. Ksh. 180,000.00
b) Loss of expectation of life …………….Ksh. 100,000.00
c) Loss of dependency ………………….. Ksh. 2,792,134.80
Total Ksh. 3,072,134.80
Less 15% Ksh. 460,820.22
Total Ksh. 2,611,314.58
d) Special damages ……………………….Ksh. 100,925.00
Grand Total Ksh.2,712,239.58
4. The Respondent was also awarded costs of the suit and interest on general damages from the date of judgement until payment in full and interest on special damages from the date of filing suit until payment in full.
5. The Appellant is aggrieved with the judgment of the trial court on quantum and has lodged this appeal challenging the same vide a Memorandum of Appeal dated 31/10/2022 raising 10 grounds of appeal.
6. Similarly, the Respondent lodged a Cross-Appeal which was later amended on18/9/2023 basically challenging the award on Loss of dependency.
7. The Appeal and Cross -Appeal were directed to be canvassed through written submissions. The Appellant’s submissions are dated 07/07/2023 while the Respondent’s submissions are dated 19/9/2023.
8. For an Appellate Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately too low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. See Butt vs. Khan {1981} KLR 349 relating to assessment of general damages on appeal.
9. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus;
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge 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 lower judge acted on the wrong principles”.
10. This court is also alive to the fact that in an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”.
11. I have perused the Record of Appeal, the Cross Appeal, considered and weighed the rival submissions on the Appeal and Cross-Appeal and also taken into consideration the judicial decisions cited and attached.
12. The Appellant ideally challenges the award of Loss of dependency and funeral expenses which he considers to be excessive or not awardable. The Appellant also faults the trial court for failure to subject the special damages to the agreed liability ratio at 85%: 15%.
13. On the other hand, the Respondent in the Cross-Appeal faults the trial court for adopting a lower multiplier of 27 years, lower award for pain and suffering and an erroneous award for special damages.
14. First, I will consider whether the trial court erred in failing to subject the special damages to the agreed liability ratio at 85%: 15%. To my mind special damages should not be subjected to the apportionment of liability. Special damages are the actual amounts already incurred by a party prior to filing a claim. In Hashim Mohamed Said & Another v Lawrence Kibor Tuwei [2018] eKLR the court stated that special damages should not be subjected to the apportionment.
15. See also the case of A.O Bayusuf &Sons Limited vs. Samuel Njoroge Kamau [2008] eKLR where the court held that special damages ought not be subjected to a reduction based on the apportionment of liability.
16. Based on the foregoing cases, I find that the trial court did not err in failing to subject the special damages to apportioned liability.
17. In regard to the trial court having erred in awarding of Kshs.100,000/= towards funeral expenses that were too high and in absence of documentary evidence to award the same, it is common knowledge that in funeral and burial arrangements particularly where the deceased body has to be ferried from one locality to another expenses such as transportation and food must be incurred. In this instance, the deceased died in Machakos town and the body had to be transported to Mount Elgon which is hundreds of miles away. Reasonable expenses must have been incurred on the funeral plans. I am persuaded by the finding in the case of Jacob Ayiga & Anor vs. Simion Obayo (2005) eKLR, where the court had awarded funeral expenses despite lack of proof, by way of receipts, on grounds that funeral expenses must be incurred in every case where someone died.
18. To the point is the Court of Appeal, in Premier Diary Limited vs. Amarjit Singh Sagoo & another [2013] eKLR, that: -
“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”
19. In light of the foregoing jurisprudence, the award of funeral expenses in the circumstances of this case was properly made.
20. It is not disputed that the deceased was aged 23 years at the time of his death.
21. The Deceased is said to have been a general worker although the Appellant believed that should not be the position, the Appellant did not rebut the testimony of the Respondent and as such the trial court believed the deceased was a general worker at the time he died. The submissions by the Appellant that the trial court ought to award a global sum under loss of dependency did not hold water and the trial court dismissed the same. The trial court agreed by the submissions of the Respondent and applied the Regulation of Wages General (2017) for a general worker at Kshs.12,926.55 as the multiplier.
22. The Respondent sought for a multiplicand of 35 years to apply while the Appellant proposed 13 years.
23. The trial court agreed that considering the current retirement age of 60 years, further putting into consideration the vagaries of life agreed that the deceased possibly would have retired at 50 years and thus she found a multiplicand of 27 years applicable. The trial court further observed that the deceased was not married and was spending more of his income on the parents. The trial court thus found the multiplicand of 2/3 to be applicable.
24. The appellant seeks to overturn the above award and submits that the learned magistrate erred in fact by purporting to hold that due to the lack of rebuttal by the Appellant, it sufficed that the Respondent had proven that the deceased was a general worker and that even if the deceased was a general worker doing odd jobs, the applicable multiplicand should have been Kshs.6,896.15 that applied to all other areas based on the alleged deceased’s area of residence as per the Chief’s letter dated 4th March 2019 to be Mugen Location, Serem town, Nandi county. Further, guided by the death certificate, Kshs.6,415.55 ought to have been applied as per the Regulation of Wages (Agricultural Industry) (Amendment) Order 2017 for unskilled labourers. That there was no evidence to suggest that the deceased worked in Nairobi to justify the multiplicand of Ksh.12,926.55.
25. I have looked at the record of appeal at page 68 and noticed that the Respondent made an oral application to amend paragraph 8 of the Plaint to read the deceased was a general worker. The application was allowed by consent of the Parties. The Respondent testified that the deceased was a trained mechanic although he was doing all odd jobs. He was a general worker. He was working in Machakos and Makindu, Nairobi and also Athi River. The Death Certificate shows that the deceased’s place of residence at the time of death was Nairobi. I am aware that there are people who have both the rural and urban residences. In my view, the right person who can confirm a person’s rural residence is the area chief as happened in this case. I do not therefore agree with the Appellant that the deceased’s residence at the time of his demise was as shown in the Chief’s later but as per the Death Certificate and his occupation was a general worker as consented to by both parties.
26. I find that the learned magistrate correctly relied on the Minimum Wage as per Regulation of Wages (General) (Amendment) Order 2017 and applied a multiplier of Kshs.12,926.55.
27. The trial court considered the current retirement age of 60 years and further put into consideration the vagaries of life and agreed that the deceased possibly would have retired at 50 years and thus she found a multiplicand of 27 years applicable. The trial court further observed that the deceased was not married and was spending more of his income on the parents. The trial court thus found the multiplicand of 2/3 to be applicable.
28. The record shows that the deceased was supporting his aged father and two siblings. I find that the trial court did not misdirect itself by using a multiplier of 2/3. See HCA No. 9 of 2019, Crown Bus Services & 2 Others vs Jamila Nyongesa & Another (2020) eKLR, where the court used a ratio of for unmarried daughter. Also, in Eastern Produce (K) Ltd & Another v Dominic Lokadogi Lokado & Another (Suing as the personal representative of the Estate of the late Peter Ekuam Lokado) (2018) eKLR, the court applied the ratio of 2/3 where the deceased was unmarried but his father used to depend on him.
29. In regard as to whether the trial court misdirected itself by awarding damages under the Law Reform Act and under the Fatal Accidents Act. There is no requirement in law or otherwise for courts to engage in mathematical deductions for an award under the Law Reform Act and under the Fatal Accidents Act. The Law Reform Act covers non-pecuniary losses experienced by the deceased's Estate, such as pain and suffering, while the Fatal Accidents Act deals with the financial impact on dependents due to the death. So, claiming under both Acts doesn't duplicate compensation since they address distinct losses.
30. See Crown Bus Services Ltd & others vs Jamila Nvongesa (supra) where justice Edward M. Muriithi referenced KBT HCCA No. 1 of 2018, (Formerly NAKURU HCCA No. 147 of 2015) David Kenei Julius Cheretei v. Zipporah Chepkonga (suing as the Legal Representative of the estate of Wesley Chepkonga Chebii-Deceased), affirming that there is no requirement for deduction of the one award under Law Reform Act from the other under the Fatal Accidents Act.
31. Turning to the amended memorandum cross- appeal, the Appellant raised 7 grounds of appeal.
32. She submitted on grounds 1, 2, 3, 4 & 5 together. The Respondent submitted that the trial court misdirected itself by using a multiplier of 27 years.
33. The trial court found that the deceased was aged 23 years and not in formal employment. The court misdirected itself in that in informal employment there is no retirement age and the deceased could have worked past the age 60 years. The multiplier of 27 years was erroneous in that the deceased was aged 23 years, in vibrant health and in the informal sector there is no retirement age. Reliance was placed on the case of David Kayogi Munyao vs Francis Muthomi [2012] eKLR, Makau J. adopted a multiplier of 25 years for a deceased who died at the age of 34 years and in West Kenya Sugar Co. Ltd v Falantina Adungosi Odionyi (Suing as the legal representative of Patrick lgwala Odionyi-deceased) [2020] eKLR. The court used a multiplier of 35 years where the deceased died at the age of 21 years.
34. On special damages, the Respondent submitted that the trial magistrate erred in law and in fact in failing to award Ksh10,000/= that had been pleaded and proved. In her judgement, the trial magistrate stated that the amount of special damages pleaded was Kshs.10,925/= but held that amount proved was Kshs.905/=. The amount of special damages proved was Kshs.10,905/= but the trial court erred in not awarding the same.
35. The Receipts for Kshs.10,000/= is document number 4 on the Plaintiff’s supplementary list of documents found at page 24 of the Record of appeal. The receipt is at page 39 of the Record of Appeal.
36. The supplementary bundle was marked as PExt.12-16 and which bundle was produced at page 68 of the Record of Appeal. The trial court therefore erred by failing to award special damages of Kshs.10,000/= that had been pleaded and strictly proved.
37. On pain and suffering, the Respondent submitted that the trial court misdirected itself in law and in fact in making an inordinately low award of Kshs.180,000/= for pain and suffering as to be erroneous. While making an award for pain and suffering courts consider the length of the suffering. The longer the suffering is prolonged damages will be higher.
38. In the instant case the accident was on 7.8.2017. The deceased died on 31.8.2017. The pain was for a prolonged period of 24 days. The Respondent cited the case of Wonder Company Ltd & Another v Kalondu Munguti & another (Suing as the legal representative of the estate of) Joseph Ndung'u Muiruri [20191 eKLR. The deceased died 3 weeks after the accident. The court upheld an award of Kshs.300,000/= for pain and suffering.
Also, in HCA No.469 of 2009, Josephine Nzisa v Michael Mutahi Githiga [2017] eKLR the deceased died 4 days after the accident and the court awarded Kshs.300,000/= for pain and suffering.
39. The Respondent faulted the trial court for adopting a lower multiplier of 27 years. Guided by the decisions cited by the Respondent under this head, I am convinced that in deed the multiplier of 27 years applied by the trial court was low and I substitute it with 30 years. Loss of dependency will be as follows:
Kshs.12,926.55 x 30 x 2/3 x 12 =Kshs.3,307,116.00
40. The Respondent submitted that the trial court misdirected itself in law and in fact in making an inordinately low award of Kshs.180,000/= for pain and suffering as to be erroneous. The deceased died 24 days after the accident and he must have endured pain all through until he died. Similarly, guided by the decisions cited by the Respondent under this head I agree that the award of Kshs.180,000/= for pain and suffering was low and substitute it with an award of Ksh.300,000/=.
41. Finally, on special damages, the Respondent pleaded for Kshs.10,925/=. The trial court found that the Respondent only proved special damages of Kshs.905 but in the final order, she indicated it to be Kshs.925. I have perused the proceedings and I can confirm that the amount of special damages proved was Kshs.10,905/=.
42. The Receipts for Kshs.10,000/= is document number 4 on the Plaintiff’s supplementary list of documents found at page 24 of the Record of appeal. The receipt is at page 39 of the Record of Appeal. The Kshs.925 was for court fees on Ad litem proceedings. Therefore, special damages pleaded and proved were Kshs.10,925/= which I award.
43. The upshot therefore is that the Appeal is dismissed in its entirety. The Cross Appeal is allowed as follows:
a) Pain and Suffering ……………. Ksh. 300,000.00
b) Loss of expectation of life ……… .Ksh. 100,000.00
c) Loss of dependency …… Ksh. 3,307,116.00
Total Ksh. 3,707,116.00
Less 15% Ksh. 556,067.40
Total Ksh. 3,151,048.60
d) Special damages ………………… Ksh. 110,925.00
Grand Total Ksh.3,261,973.60
44. The Respondent is also awarded the half costs on the appeal and cross appeal plus interest at court rates from the date of this judgement till payment in full.
45. Orders accordingly.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 27TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 27TH MAY 2025
In the presence of:
Keiro............. for Appellant
Mahuga hb for Kivuva........... for Respondent
Milly........... Court Assistant
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL NO. E147 OF 2022
ALFONCE MUTUA MAKAU…………………………………..…………APPELLANT
VERSUS
JAVAN KOROS (Suing as legal representative and Administrator
of the Estate of the late WILLY KIMUTAI (Deceased) ………… RESPONDENT
(Being an Appeal from the Judgement and Decree delivered on 4th October 2022 by Hon. M. A Otindo (PM) In Machakos Civil Suit No.327 of 2020)
JUDGEMENT
Background
1. The Respondent instituted a suit as the legal representative of the Estate of the late WILLY KIMUTAI (deceased) for damages, costs and interest for fatal injuries sustained in a motor vehicle accident that occurred on 07/08/2017 involving the deceased who was a pedestrian walking along the Machakos-Nairobi Road at Red Cross in Machakos. The Respondent attributed the accident to the negligence of the Appellant’s driver who was driving the Appellant’s motor vehicle registration number KCF 790Z.
2. The parties recorded a consent on liability at the ratio of 85% to 15% in favour of the Respondent against the Appellant and the case was set down for assessment of damages.
3. On quantum the trial court awarded the Respondent damages as follows:-
a) Pain and Suffering ……………………. Ksh. 180,000.00
b) Loss of expectation of life …………….Ksh. 100,000.00
c) Loss of dependency ………………….. Ksh. 2,792,134.80
Total Ksh. 3,072,134.80
Less 15% Ksh. 460,820.22
Total Ksh. 2,611,314.58
d) Special damages ……………………….Ksh. 100,925.00
Grand Total Ksh.2,712,239.58
4. The Respondent was also awarded costs of the suit and interest on general damages from the date of judgement until payment in full and interest on special damages from the date of filing suit until payment in full.
5. The Appellant is aggrieved with the judgment of the trial court on quantum and has lodged this appeal challenging the same vide a Memorandum of Appeal dated 31/10/2022 raising 10 grounds of appeal.
6. Similarly, the Respondent lodged a Cross-Appeal which was later amended on18/9/2023 basically challenging the award on Loss of dependency.
7. The Appeal and Cross -Appeal were directed to be canvassed through written submissions. The Appellant’s submissions are dated 07/07/2023 while the Respondent’s submissions are dated 19/9/2023.
8. For an Appellate Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately too low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. See Butt vs. Khan {1981} KLR 349 relating to assessment of general damages on appeal.
9. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus;
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge 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 lower judge acted on the wrong principles”.
10. This court is also alive to the fact that in an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”.
11. I have perused the Record of Appeal, the Cross Appeal, considered and weighed the rival submissions on the Appeal and Cross-Appeal and also taken into consideration the judicial decisions cited and attached.
12. The Appellant ideally challenges the award of Loss of dependency and funeral expenses which he considers to be excessive or not awardable. The Appellant also faults the trial court for failure to subject the special damages to the agreed liability ratio at 85%: 15%.
13. On the other hand, the Respondent in the Cross-Appeal faults the trial court for adopting a lower multiplier of 27 years, lower award for pain and suffering and an erroneous award for special damages.
14. First, I will consider whether the trial court erred in failing to subject the special damages to the agreed liability ratio at 85%: 15%. To my mind special damages should not be subjected to the apportionment of liability. Special damages are the actual amounts already incurred by a party prior to filing a claim. In Hashim Mohamed Said & Another v Lawrence Kibor Tuwei [2018] eKLR the court stated that special damages should not be subjected to the apportionment.
15. See also the case of A.O Bayusuf &Sons Limited vs. Samuel Njoroge Kamau [2008] eKLR where the court held that special damages ought not be subjected to a reduction based on the apportionment of liability.
16. Based on the foregoing cases, I find that the trial court did not err in failing to subject the special damages to apportioned liability.
17. In regard to the trial court having erred in awarding of Kshs.100,000/= towards funeral expenses that were too high and in absence of documentary evidence to award the same, it is common knowledge that in funeral and burial arrangements particularly where the deceased body has to be ferried from one locality to another expenses such as transportation and food must be incurred. In this instance, the deceased died in Machakos town and the body had to be transported to Mount Elgon which is hundreds of miles away. Reasonable expenses must have been incurred on the funeral plans. I am persuaded by the finding in the case of Jacob Ayiga & Anor vs. Simion Obayo (2005) eKLR, where the court had awarded funeral expenses despite lack of proof, by way of receipts, on grounds that funeral expenses must be incurred in every case where someone died.
18. To the point is the Court of Appeal, in Premier Diary Limited vs. Amarjit Singh Sagoo & another [2013] eKLR, that: -
“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”
19. In light of the foregoing jurisprudence, the award of funeral expenses in the circumstances of this case was properly made.
20. It is not disputed that the deceased was aged 23 years at the time of his death.
21. The Deceased is said to have been a general worker although the Appellant believed that should not be the position, the Appellant did not rebut the testimony of the Respondent and as such the trial court believed the deceased was a general worker at the time he died. The submissions by the Appellant that the trial court ought to award a global sum under loss of dependency did not hold water and the trial court dismissed the same. The trial court agreed by the submissions of the Respondent and applied the Regulation of Wages General (2017) for a general worker at Kshs.12,926.55 as the multiplier.
22. The Respondent sought for a multiplicand of 35 years to apply while the Appellant proposed 13 years.
23. The trial court agreed that considering the current retirement age of 60 years, further putting into consideration the vagaries of life agreed that the deceased possibly would have retired at 50 years and thus she found a multiplicand of 27 years applicable. The trial court further observed that the deceased was not married and was spending more of his income on the parents. The trial court thus found the multiplicand of 2/3 to be applicable.
24. The appellant seeks to overturn the above award and submits that the learned magistrate erred in fact by purporting to hold that due to the lack of rebuttal by the Appellant, it sufficed that the Respondent had proven that the deceased was a general worker and that even if the deceased was a general worker doing odd jobs, the applicable multiplicand should have been Kshs.6,896.15 that applied to all other areas based on the alleged deceased’s area of residence as per the Chief’s letter dated 4th March 2019 to be Mugen Location, Serem town, Nandi county. Further, guided by the death certificate, Kshs.6,415.55 ought to have been applied as per the Regulation of Wages (Agricultural Industry) (Amendment) Order 2017 for unskilled labourers. That there was no evidence to suggest that the deceased worked in Nairobi to justify the multiplicand of Ksh.12,926.55.
25. I have looked at the record of appeal at page 68 and noticed that the Respondent made an oral application to amend paragraph 8 of the Plaint to read the deceased was a general worker. The application was allowed by consent of the Parties. The Respondent testified that the deceased was a trained mechanic although he was doing all odd jobs. He was a general worker. He was working in Machakos and Makindu, Nairobi and also Athi River. The Death Certificate shows that the deceased’s place of residence at the time of death was Nairobi. I am aware that there are people who have both the rural and urban residences. In my view, the right person who can confirm a person’s rural residence is the area chief as happened in this case. I do not therefore agree with the Appellant that the deceased’s residence at the time of his demise was as shown in the Chief’s later but as per the Death Certificate and his occupation was a general worker as consented to by both parties.
26. I find that the learned magistrate correctly relied on the Minimum Wage as per Regulation of Wages (General) (Amendment) Order 2017 and applied a multiplier of Kshs.12,926.55.
27. The trial court considered the current retirement age of 60 years and further put into consideration the vagaries of life and agreed that the deceased possibly would have retired at 50 years and thus she found a multiplicand of 27 years applicable. The trial court further observed that the deceased was not married and was spending more of his income on the parents. The trial court thus found the multiplicand of 2/3 to be applicable.
28. The record shows that the deceased was supporting his aged father and two siblings. I find that the trial court did not misdirect itself by using a multiplier of 2/3. See HCA No. 9 of 2019, Crown Bus Services & 2 Others vs Jamila Nyongesa & Another (2020) eKLR, where the court used a ratio of for unmarried daughter. Also, in Eastern Produce (K) Ltd & Another v Dominic Lokadogi Lokado & Another (Suing as the personal representative of the Estate of the late Peter Ekuam Lokado) (2018) eKLR, the court applied the ratio of 2/3 where the deceased was unmarried but his father used to depend on him.
29. In regard as to whether the trial court misdirected itself by awarding damages under the Law Reform Act and under the Fatal Accidents Act. There is no requirement in law or otherwise for courts to engage in mathematical deductions for an award under the Law Reform Act and under the Fatal Accidents Act. The Law Reform Act covers non-pecuniary losses experienced by the deceased's Estate, such as pain and suffering, while the Fatal Accidents Act deals with the financial impact on dependents due to the death. So, claiming under both Acts doesn't duplicate compensation since they address distinct losses.
30. See Crown Bus Services Ltd & others vs Jamila Nvongesa (supra) where justice Edward M. Muriithi referenced KBT HCCA No. 1 of 2018, (Formerly NAKURU HCCA No. 147 of 2015) David Kenei Julius Cheretei v. Zipporah Chepkonga (suing as the Legal Representative of the estate of Wesley Chepkonga Chebii-Deceased), affirming that there is no requirement for deduction of the one award under Law Reform Act from the other under the Fatal Accidents Act.
31. Turning to the amended memorandum cross- appeal, the Appellant raised 7 grounds of appeal.
32. She submitted on grounds 1, 2, 3, 4 & 5 together. The Respondent submitted that the trial court misdirected itself by using a multiplier of 27 years.
33. The trial court found that the deceased was aged 23 years and not in formal employment. The court misdirected itself in that in informal employment there is no retirement age and the deceased could have worked past the age 60 years. The multiplier of 27 years was erroneous in that the deceased was aged 23 years, in vibrant health and in the informal sector there is no retirement age. Reliance was placed on the case of David Kayogi Munyao vs Francis Muthomi [2012] eKLR, Makau J. adopted a multiplier of 25 years for a deceased who died at the age of 34 years and in West Kenya Sugar Co. Ltd v Falantina Adungosi Odionyi (Suing as the legal representative of Patrick lgwala Odionyi-deceased) [2020] eKLR. The court used a multiplier of 35 years where the deceased died at the age of 21 years.
34. On special damages, the Respondent submitted that the trial magistrate erred in law and in fact in failing to award Ksh10,000/= that had been pleaded and proved. In her judgement, the trial magistrate stated that the amount of special damages pleaded was Kshs.10,925/= but held that amount proved was Kshs.905/=. The amount of special damages proved was Kshs.10,905/= but the trial court erred in not awarding the same.
35. The Receipts for Kshs.10,000/= is document number 4 on the Plaintiff’s supplementary list of documents found at page 24 of the Record of appeal. The receipt is at page 39 of the Record of Appeal.
36. The supplementary bundle was marked as PExt.12-16 and which bundle was produced at page 68 of the Record of Appeal. The trial court therefore erred by failing to award special damages of Kshs.10,000/= that had been pleaded and strictly proved.
37. On pain and suffering, the Respondent submitted that the trial court misdirected itself in law and in fact in making an inordinately low award of Kshs.180,000/= for pain and suffering as to be erroneous. While making an award for pain and suffering courts consider the length of the suffering. The longer the suffering is prolonged damages will be higher.
38. In the instant case the accident was on 7.8.2017. The deceased died on 31.8.2017. The pain was for a prolonged period of 24 days. The Respondent cited the case of Wonder Company Ltd & Another v Kalondu Munguti & another (Suing as the legal representative of the estate of) Joseph Ndung'u Muiruri [20191 eKLR. The deceased died 3 weeks after the accident. The court upheld an award of Kshs.300,000/= for pain and suffering.
Also, in HCA No.469 of 2009, Josephine Nzisa v Michael Mutahi Githiga [2017] eKLR the deceased died 4 days after the accident and the court awarded Kshs.300,000/= for pain and suffering.
39. The Respondent faulted the trial court for adopting a lower multiplier of 27 years. Guided by the decisions cited by the Respondent under this head, I am convinced that in deed the multiplier of 27 years applied by the trial court was low and I substitute it with 30 years. Loss of dependency will be as follows:
Kshs.12,926.55 x 30 x 2/3 x 12 =Kshs.3,307,116.00
40. The Respondent submitted that the trial court misdirected itself in law and in fact in making an inordinately low award of Kshs.180,000/= for pain and suffering as to be erroneous. The deceased died 24 days after the accident and he must have endured pain all through until he died. Similarly, guided by the decisions cited by the Respondent under this head I agree that the award of Kshs.180,000/= for pain and suffering was low and substitute it with an award of Ksh.300,000/=.
41. Finally, on special damages, the Respondent pleaded for Kshs.10,925/=. The trial court found that the Respondent only proved special damages of Kshs.905 but in the final order, she indicated it to be Kshs.925. I have perused the proceedings and I can confirm that the amount of special damages proved was Kshs.10,905/=.
42. The Receipts for Kshs.10,000/= is document number 4 on the Plaintiff’s supplementary list of documents found at page 24 of the Record of appeal. The receipt is at page 39 of the Record of Appeal. The Kshs.925 was for court fees on Ad litem proceedings. Therefore, special damages pleaded and proved were Kshs.10,925/= which I award.
43. The upshot therefore is that the Appeal is dismissed in its entirety. The Cross Appeal is allowed as follows:
a) Pain and Suffering ……………. Ksh. 300,000.00
b) Loss of expectation of life ……… .Ksh. 100,000.00
c) Loss of dependency …… Ksh. 3,307,116.00
Total Ksh. 3,707,116.00
Less 15% Ksh. 556,067.40
Total Ksh. 3,151,048.60
d) Special damages ………………… Ksh. 110,925.00
Grand Total Ksh.3,261,973.60
44. The Respondent is also awarded the half costs on the appeal and cross appeal plus interest at court rates from the date of this judgement till payment in full.
45. Orders accordingly.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 27TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 27TH MAY 2025
In the presence of:
Keiro............. for Appellant
Mahuga hb for Kivuva........... for Respondent
Milly........... Court Assistant