REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W.F.)
CIVIL APPEAL NO. E065 OF 2022
ANNAH MUKAMI KAMAU and
PAUL GATHURA KAMAU
(Suing on their own behalf and as
the administrators of the estate of the late
VERONICAH WANJA KAMAU alias
VERONICA WANJA KAMAU (Deceased)) ……………APPELLANTS
VERSUS
SAMMY KARENGAN LONG’OTOP
alias SAMMY LONGOTOP…………………………..RESPONDENT
AND
CIVIL APPEAL NO. E066 OF 2022
ANNAH MUKAMI KAMAU and
PAUL GATHURA KAMAU
(Suing on their own behalf and as
the administrators of the estate of the late
CECILIA WANGARI KAMAU (Deceased)) ……………APPELLANTS
VERSUS
SAMMY KARENGAN LONG’OTOP
alias SAMMY LONGOTOP…………………………..RESPONDENT
(Being an Appeal from the decree arising out of the judgment of Hon. S. M. Nyaga, delivered on 4/8/2022 in Baricho Magistrates Court Civil Suit No. 86 of 2021)
JUDGMENT
This is a consolidated judgment in respect of two appeals being, Kerugoya High Court Civil Appeal Nos E065 of 2022 and E066 of 2022. They arise out of one judgment of the trial court delivered on 4/8/2022in in two separate cases which were consolidated. The judgment was on assessment of general and special damages under the Law Reform Act and the Fatal Accidents Act claims arising out of a road traffic accident. The issue of liability was agreed upon by consent in the ratio of 80:20 in favour of the appellants. The two deceased were sisters who died out of injuries sustained in a road traffic accident involving the respondent’s vehicle and a motor cycle on which they were being ferried as pillion passengers.
I have consolidated this judgment for the two cases because I am satisfied that the factors to be considered in consolidating cases as set out in the case of Mombasa HCCC No. 992 of 1994 Nyati Security Guards and Services Ltd vs Municipal Council of Mombasa [2004] eKLR are satisfied. The High Court said that the main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The factors are that there are two or more suits or matters pending in the same court where: -
Some common question of law or fact arises in both or all of them; or,
The rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or
For some other reason it is desirable to make an order for consolidating them.
The two appeals herein arise from the same judgment and the appellant and the respondent in both cases are the same. The common issue that arises for determination in both cases is whether the learned trial magistrate was right in his exercise of discretion in assessment of damages under the head of loss of dependency and specifically, whether the multiplicand adopted of KShs 11,602.90 as a minimum wage for each of the deceased person’s was correct.
The appellant was dissatisfied with that decision and now appeals to this court in two separate memoranda of appeal, each in respect of one of the cases even as the judgment was one. The grounds of appeal in both cases are common as follows. That the learned magistrate misdirected himself in law and in fact:
by adopting a multiplicand that was inordinately low in the circumstances.
in failing to adopt a multiplicand that was commensurate to the deceased’s occupation
by failing to appreciate the uncontroverted evidence that the deceased was a business lady.
by failing to consider the appellant’s submissions on the applicable multiplicand.
The appellant therefore prays to this court to allow the appeal, set aside the trial court’s choice of multiplicand and substitute it with such a higher sum as it deems fair, just and reasonable in the circumstances and reassess the damages for loss of dependency.
The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Learned counsel for the appellant urged the court to consider the grounds of appeal as the issues for determination.
Analysis and Determination
The issues raised by learned counsel for the appellant can be summed up into one, that is, whether the multiplicand adopted of KShs 11,602.90 as a minimum wage for each of the deceased person’s was correct.
In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
The standard of proof in civil cases was discussed by the Court of Appeal decision in Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The court while referring to Lord Nicholls decision in the Re H (minors) case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. The Court said:
“This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…”
In the present case the appellants presented evidence by way of witness statements by Anna Mukami that the deceased were her daughters. They were engaged in the business of baking and supply of cake and cookies. In each case, she said the daughters used to earn KShs 100,000/= per month. This evidence was not challenged by the respondent as he offered no evidence at trial. However, even where the evidence is not challenged the appellant still had the burden to prove on a balance of probabilities that indeed each of the deceased sisters, was earning that much.
Learned counsel for the appellants has urged this court to make its own assessment of damages for loss of dependency. He suggested that the court takes the unchallenged evidence of PW 1 and adopts KShs 100,000/= as the appropriate multiplicand or in a worst-case scenario, it should apply KShs 16,295.95 being the pay for a charge hand baker under the Minimum Wage Guidelines.
Learned counsel for the respondent on his part submits that this court should be hesitant to interfere with the assessment of damages by the trial court unless it finds that the decision of the trial court was arrived at erroneously. He cited, among others, the case of Peters v Sunday Post Ltd [1958] EA at p 429, (I have read the original report) where Sir Kenneth O’Connor, P. said:
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.”
Learned counsel submits that the appellant did not provide any evidence that each of the deceased was running a bakery nor the amount each deceased was earning per month from the bakery from which she allegedly made an average income of KShs 100,000/= per month which she shared equally with her sister. Learned counsel also submitted that there were not audited books of account, bank or M-pesa statements or tax returns or any record of income and as such the assertion of their earnings remained a mere allegation. Learned counsel submitted that the invoices produced at the hearing were not proof of earnings. He submitted further that it was not proved that each of the deceased owned a bakery or was in charge of a bakery.
In view of the fact that there was no evidence of monthly earnings of the deceased, learned counsel submitted relying on the case of Philip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR that the trial court was correct to use the Minimum Wage Guidelines under the Regulation of Wages (General)(Amendment) Order 2018 and rely on the minimum wage of KShs 11,602.90 per month, being the monthly pay for a bakery worker, as the multiplicand. He relied on the High Court case of China Henan International Co-operation Ltd v China Henan International Co-operation Ltd & another [2021] KEHC 2731 (KLR) where there was evidence that the deceased operated a hotel business and matatu business but the High Court on appeal found that no evidence was adduced by the respondent to show the income the deceased received from the said businesses. There was evidence that the deceased was managing the hotel. The business permit produced indicated that he was the holder of a single business permit and the activity allowed was “medium eating house snack bar, tea house, hotel no lodging no alcohol service between 8-20 customers”. Fee paid was Kshs. 5,000/-. The High Court found that going by the Regulation of Wages Order the deceased’s work fell under the category of General worker.
Learned counsel for the respondent also submitted on the issue of the multiplier adopted by the trial court being high. However, given that there was no appeal or cross-appeal on that issue, it does not fall for determination herein.
The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded 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.”
It is not true as submitted by learned counsel for the respondent that the appellant never provided evidence that the deceased were operating a business of a bakery. There were various documents produced as exhibits being invoices and receipts for the various items they purchased for the business, a medical examination certificate for each and a licence for food handlers for each of them issued under the Food, Drugs and Chemical Substances Control Act (Food Hygiene Regulations) which is a requirement under the law. It is shown in those licences that the nature of business was confectioner. That to me, on a balance of probability was sufficient to convince the learned trial magistrate that the two were involved in that business and I so find.
Indeed, the respondent did not dispute that they were engaged in that business. Their contention is that there was no evidence that they were the operators. I am however, persuaded by learned counsel for the appellants to find from the evidence adduced that the more reasonable approach would be to consider them at the level of the charge-hands. There was the uncontroverted evidence from their mother that they operated the business as theirs and not just as general workers. I do not see any other way she would have put it. She tendered the documents which reasonably considered supported her evidence. It was then upon the respondent to discount that evidence whether through cross-examination or testimony in defence. That was not done.
What was I agree and the learned magistrate found so that was not established from that evidence was their respective earnings. Their mother did not say from where she picked the figure of KShs 100,000/=. It is also not clear whether the same was the overall monthly income before subtracting the overheads of operating the business and finally arriving at each deceased’s earnings.
Both learned counsels agreed that it was appropriate to apply the minimum wage guideline as the measure of income for each of the deceased and that the applicable Minimum Wage Guidelines was the Regulation of Wages (General)(Amendment) Order 2018. The only point of departure is weather to apply the wages for a general worker or a charge-hand. In this case, I am satisfied and find that the learned trial magistrate misapprehended the evidence tendered which was that the two sisters were operating the business of the bakery and therefore could not be equated to general workers in the bakery. I find that the best category of worker for each of them was that of a charge-hand baker whose minimum monthly wage for all other areas where they fell was KShs 16,295.95.
Consequently. I am satisfied and find that the multiplicand of KShs 16,295.95 is the appropriate one arising from the fact that there is evidence that the two sisters were the ones operating the business. In that case, loss of dependency will work out as follows:
For Veronicah Wanja Kamau
16,295.95 x 12 x 35 x 1/3 = 2,281,433/=
For Cecilia
16,295.95 x 12 x 30 x 1/3 = 1,955,514/=
Consequently, the trial court’s award in damages for loss of dependency in each of the cases set aside is substituted with the awards above. For clarity the other awards of damages which were not challenged shall remain as awarded save that the total award in each case will be subject to 80% apportionment of liability.
Judgment is entered for the appellants against the respondents as follows:
Civil Appeal No. E065 of 2022: Deceased Veronicah Wanja Kamau:
General Damages
Under the Law Reform Act
Pain & Suffering - KShs. 30,000/=
Loss of Expectation of Life - KShs. 100,000/=
Under Fatal Accident Act
Loss of dependency – KShs 2,281,433
Special damages – KShs 186,290/=
Total KShs 2,597,723/=.
Less 20% contribution = KShs 2,141,436.40
Civil Appeal No. E066 of 2022: Deceased, Cecilia Wangari Kamau:
General Damages
Under the Law Reform Act
Pain & Suffering - KShs. 30,000/=
Loss of Expectation of Life - KShs. 100,000/=
Under Fatal Accident Act
Loss of dependency – KShs 1,955,514
Special damages – KShs 153,670/=
Total KShs 2,239,184/=.
Less 20% contribution = KShs 1,791,347.20
Interest is payable on special damages at court rates from the date of filing suit while interest on general damages at court rates is payable from the date of judgment in the lower court.
The appellants shall have the costs of this appeal.
Dated, signed and delivered on the Virtual Platform, Teams this 21st day of May 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mutua for the Appellants.
Achola (Ms) for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W.F.)
CIVIL APPEAL NO. E065 OF 2022
ANNAH MUKAMI KAMAU and
PAUL GATHURA KAMAU
(Suing on their own behalf and as
the administrators of the estate of the late
VERONICAH WANJA KAMAU alias
VERONICA WANJA KAMAU (Deceased)) ……………APPELLANTS
VERSUS
SAMMY KARENGAN LONG’OTOP
alias SAMMY LONGOTOP…………………………..RESPONDENT
AND
CIVIL APPEAL NO. E066 OF 2022
ANNAH MUKAMI KAMAU and
PAUL GATHURA KAMAU
(Suing on their own behalf and as
the administrators of the estate of the late
CECILIA WANGARI KAMAU (Deceased)) ……………APPELLANTS
VERSUS
SAMMY KARENGAN LONG’OTOP
alias SAMMY LONGOTOP…………………………..RESPONDENT
(Being an Appeal from the decree arising out of the judgment of Hon. S. M. Nyaga, delivered on 4/8/2022 in Baricho Magistrates Court Civil Suit No. 86 of 2021)
JUDGMENT
This is a consolidated judgment in respect of two appeals being, Kerugoya High Court Civil Appeal Nos E065 of 2022 and E066 of 2022. They arise out of one judgment of the trial court delivered on 4/8/2022in in two separate cases which were consolidated. The judgment was on assessment of general and special damages under the Law Reform Act and the Fatal Accidents Act claims arising out of a road traffic accident. The issue of liability was agreed upon by consent in the ratio of 80:20 in favour of the appellants. The two deceased were sisters who died out of injuries sustained in a road traffic accident involving the respondent’s vehicle and a motor cycle on which they were being ferried as pillion passengers.
I have consolidated this judgment for the two cases because I am satisfied that the factors to be considered in consolidating cases as set out in the case of Mombasa HCCC No. 992 of 1994 Nyati Security Guards and Services Ltd vs Municipal Council of Mombasa [2004] eKLR are satisfied. The High Court said that the main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The factors are that there are two or more suits or matters pending in the same court where: -
Some common question of law or fact arises in both or all of them; or,
The rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or
For some other reason it is desirable to make an order for consolidating them.
The two appeals herein arise from the same judgment and the appellant and the respondent in both cases are the same. The common issue that arises for determination in both cases is whether the learned trial magistrate was right in his exercise of discretion in assessment of damages under the head of loss of dependency and specifically, whether the multiplicand adopted of KShs 11,602.90 as a minimum wage for each of the deceased person’s was correct.
The appellant was dissatisfied with that decision and now appeals to this court in two separate memoranda of appeal, each in respect of one of the cases even as the judgment was one. The grounds of appeal in both cases are common as follows. That the learned magistrate misdirected himself in law and in fact:
by adopting a multiplicand that was inordinately low in the circumstances.
in failing to adopt a multiplicand that was commensurate to the deceased’s occupation
by failing to appreciate the uncontroverted evidence that the deceased was a business lady.
by failing to consider the appellant’s submissions on the applicable multiplicand.
The appellant therefore prays to this court to allow the appeal, set aside the trial court’s choice of multiplicand and substitute it with such a higher sum as it deems fair, just and reasonable in the circumstances and reassess the damages for loss of dependency.
The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Learned counsel for the appellant urged the court to consider the grounds of appeal as the issues for determination.
Analysis and Determination
The issues raised by learned counsel for the appellant can be summed up into one, that is, whether the multiplicand adopted of KShs 11,602.90 as a minimum wage for each of the deceased person’s was correct.
In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
The standard of proof in civil cases was discussed by the Court of Appeal decision in Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The court while referring to Lord Nicholls decision in the Re H (minors) case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. The Court said:
“This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…”
In the present case the appellants presented evidence by way of witness statements by Anna Mukami that the deceased were her daughters. They were engaged in the business of baking and supply of cake and cookies. In each case, she said the daughters used to earn KShs 100,000/= per month. This evidence was not challenged by the respondent as he offered no evidence at trial. However, even where the evidence is not challenged the appellant still had the burden to prove on a balance of probabilities that indeed each of the deceased sisters, was earning that much.
Learned counsel for the appellants has urged this court to make its own assessment of damages for loss of dependency. He suggested that the court takes the unchallenged evidence of PW 1 and adopts KShs 100,000/= as the appropriate multiplicand or in a worst-case scenario, it should apply KShs 16,295.95 being the pay for a charge hand baker under the Minimum Wage Guidelines.
Learned counsel for the respondent on his part submits that this court should be hesitant to interfere with the assessment of damages by the trial court unless it finds that the decision of the trial court was arrived at erroneously. He cited, among others, the case of Peters v Sunday Post Ltd [1958] EA at p 429, (I have read the original report) where Sir Kenneth O’Connor, P. said:
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.”
Learned counsel submits that the appellant did not provide any evidence that each of the deceased was running a bakery nor the amount each deceased was earning per month from the bakery from which she allegedly made an average income of KShs 100,000/= per month which she shared equally with her sister. Learned counsel also submitted that there were not audited books of account, bank or M-pesa statements or tax returns or any record of income and as such the assertion of their earnings remained a mere allegation. Learned counsel submitted that the invoices produced at the hearing were not proof of earnings. He submitted further that it was not proved that each of the deceased owned a bakery or was in charge of a bakery.
In view of the fact that there was no evidence of monthly earnings of the deceased, learned counsel submitted relying on the case of Philip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR that the trial court was correct to use the Minimum Wage Guidelines under the Regulation of Wages (General)(Amendment) Order 2018 and rely on the minimum wage of KShs 11,602.90 per month, being the monthly pay for a bakery worker, as the multiplicand. He relied on the High Court case of China Henan International Co-operation Ltd v China Henan International Co-operation Ltd & another [2021] KEHC 2731 (KLR) where there was evidence that the deceased operated a hotel business and matatu business but the High Court on appeal found that no evidence was adduced by the respondent to show the income the deceased received from the said businesses. There was evidence that the deceased was managing the hotel. The business permit produced indicated that he was the holder of a single business permit and the activity allowed was “medium eating house snack bar, tea house, hotel no lodging no alcohol service between 8-20 customers”. Fee paid was Kshs. 5,000/-. The High Court found that going by the Regulation of Wages Order the deceased’s work fell under the category of General worker.
Learned counsel for the respondent also submitted on the issue of the multiplier adopted by the trial court being high. However, given that there was no appeal or cross-appeal on that issue, it does not fall for determination herein.
The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded 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.”
It is not true as submitted by learned counsel for the respondent that the appellant never provided evidence that the deceased were operating a business of a bakery. There were various documents produced as exhibits being invoices and receipts for the various items they purchased for the business, a medical examination certificate for each and a licence for food handlers for each of them issued under the Food, Drugs and Chemical Substances Control Act (Food Hygiene Regulations) which is a requirement under the law. It is shown in those licences that the nature of business was confectioner. That to me, on a balance of probability was sufficient to convince the learned trial magistrate that the two were involved in that business and I so find.
Indeed, the respondent did not dispute that they were engaged in that business. Their contention is that there was no evidence that they were the operators. I am however, persuaded by learned counsel for the appellants to find from the evidence adduced that the more reasonable approach would be to consider them at the level of the charge-hands. There was the uncontroverted evidence from their mother that they operated the business as theirs and not just as general workers. I do not see any other way she would have put it. She tendered the documents which reasonably considered supported her evidence. It was then upon the respondent to discount that evidence whether through cross-examination or testimony in defence. That was not done.
What was I agree and the learned magistrate found so that was not established from that evidence was their respective earnings. Their mother did not say from where she picked the figure of KShs 100,000/=. It is also not clear whether the same was the overall monthly income before subtracting the overheads of operating the business and finally arriving at each deceased’s earnings.
Both learned counsels agreed that it was appropriate to apply the minimum wage guideline as the measure of income for each of the deceased and that the applicable Minimum Wage Guidelines was the Regulation of Wages (General)(Amendment) Order 2018. The only point of departure is weather to apply the wages for a general worker or a charge-hand. In this case, I am satisfied and find that the learned trial magistrate misapprehended the evidence tendered which was that the two sisters were operating the business of the bakery and therefore could not be equated to general workers in the bakery. I find that the best category of worker for each of them was that of a charge-hand baker whose minimum monthly wage for all other areas where they fell was KShs 16,295.95.
Consequently. I am satisfied and find that the multiplicand of KShs 16,295.95 is the appropriate one arising from the fact that there is evidence that the two sisters were the ones operating the business. In that case, loss of dependency will work out as follows:
For Veronicah Wanja Kamau
16,295.95 x 12 x 35 x 1/3 = 2,281,433/=
For Cecilia
16,295.95 x 12 x 30 x 1/3 = 1,955,514/=
Consequently, the trial court’s award in damages for loss of dependency in each of the cases set aside is substituted with the awards above. For clarity the other awards of damages which were not challenged shall remain as awarded save that the total award in each case will be subject to 80% apportionment of liability.
Judgment is entered for the appellants against the respondents as follows:
Civil Appeal No. E065 of 2022: Deceased Veronicah Wanja Kamau:
General Damages
Under the Law Reform Act
Pain & Suffering - KShs. 30,000/=
Loss of Expectation of Life - KShs. 100,000/=
Under Fatal Accident Act
Loss of dependency – KShs 2,281,433
Special damages – KShs 186,290/=
Total KShs 2,597,723/=.
Less 20% contribution = KShs 2,141,436.40
Civil Appeal No. E066 of 2022: Deceased, Cecilia Wangari Kamau:
General Damages
Under the Law Reform Act
Pain & Suffering - KShs. 30,000/=
Loss of Expectation of Life - KShs. 100,000/=
Under Fatal Accident Act
Loss of dependency – KShs 1,955,514
Special damages – KShs 153,670/=
Total KShs 2,239,184/=.
Less 20% contribution = KShs 1,791,347.20
Interest is payable on special damages at court rates from the date of filing suit while interest on general damages at court rates is payable from the date of judgment in the lower court.
The appellants shall have the costs of this appeal.
Dated, signed and delivered on the Virtual Platform, Teams this 21st day of May 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mutua for the Appellants.
Achola (Ms) for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE