REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E030 OF 2024
BISMARK CARRIERS LIMITED………….………………APPELLANT
VERSUS
MILDRED MUGASIALI MWIMALI & BRANDON MMASI SHIRANDUA ( suing as the administrator and personal representative of the estate of JOHN MUSHEFI SHIRANDUA (DECEASED)……………………………………..……....RESPONDENT
( An Appeal from the judgment and decree in Sirisia Principal Magistrate’s Court in Civil Suit No. E088 of 2023 delivered by Hon J.O. Manasses on the 9 th February 2024)
JUDGMENT
The appellant herein, being dissatisfied with the judgment and decree of the trial magistrate delivered on 9th February 2024, has filed this appeal against the quantum on the following grounds;
That the learned trial magistrate erred in awarding a multiplier of 19 years without taking into consideration the vicissitudes of life.
That the learned trial magistrate erred in law and in fact in awarding a multiplicand of Kshs. 14,026/- when there was no basis to do so.
That the learned trial magistrate erred in law and in fact in awarding a loss of expectation of Kshs. 300,000/- which was excessive.
That the trial magistrate erred in law and fact in awarding pain and suffering of Kshs.100,000/- which was excessive.
That the trial magistrate erred in law and in fact in awarding special damages that were not pleaded and strictly proved.
That the trial magistrate erred in law and in fact for failing to appreciate fully or ignoring the submissions put before him by the appellants.
That the trial magistrate erred in law and in fact in awarding general damages that was excessive in the circumstances occasioning miscarriages of justice.
That the trial magistrate erred in law and in fact in awarding a dependency ratio of 2/3 when the circumstances of the case was such that the dependency ration could have been 1/3.
The appellant requests that the judgment and decree be set aside, a proper finding be made, and the appeal be allowed with costs.
The plaint states that on or about the 3rd of June 2023, the deceased was lawfully travelling as a pillion passenger on a motorcycle along Bungoma-Malaba Road. At Mayanja Bridge, the appellant’s agent, servant, or driver negligently drove or managed Truck Reg. No. KBN 136 N, hauling Trailer Reg. No. ZF 5406, which violently knocked the motorcycle carrying the deceased, resulting in serious injuries that led to her death. A consent was entered by the parties on 14 December 2023 regarding liability in the ratio of 80:20 in favour of the respondent against the appellant.
The Trial Magistrate entered judgment as follows;
Liability 80:20%
Pain and suffering Kshs 100,000/-
Loss of expectation of life Kshs. 300,000/-
Loss of dependency Kshs. 2,131,952/-
Less 20% contribution Kshs. 56,810.40
Special damages Kshs 317,100/-
Total Kshs. 2,279,242/-
The respondent was also awarded costs of the suit and interest on damages at court rates.
Parties canvassed the appeal through written submissions. The appellant submitted that, regarding the award of a multiplier of 19 years, the birth certificate indicated that the deceased was 41 years old. He was described as a businessman; therefore, applying a multiplier of 19 years was incorrect. It was argued that the trial court failed to consider other factors in life that could have shortened the deceased’s lifespan and that it was not proven she was in good health. The appellant referred to the case of Crown Bus Services Ltd & 2 Others vs Jamilla Nyongesa and Amida Nyongesa (legal representative of Alvin Nanjala) [2020] eKLR, w here the court held that a multiplicand of 39 years for a deceased aged 21 was incorrect, as it did not account for other life vicissitudes, such as ill health, that could have shortened her working life. The Respondent contended that the deceased was 41 and healthy, working as a businessman and farmer, and expected to continue working beyond 60 years, suggesting she had about 19 more years of active life. The appellant failed to provide any evidence contradicting the age of the deceased. Reliance was placed on the cases of Phoebe Wambui Waweru vs Armed Forces Canteen Organisation [2010] eKLR , where an 8-year multiplier was used for a deceased who died at 62, and Florence Gathei Miano vs Mary Boniface Musyoka & Another (suing as the legal representative and administrators of Boniface Musyoka Wambua’s estate) [2014] eKLR, where a 10-year multiplier was applied for a deceased aged 57.
Regarding a multiplicand of Kshs. 14026/-, the appellant argues that there is no clear evidence of the deceased's earnings as a businessman. The respondent only stated she earned Kshs. 30,000/- without providing any proof. It was contended that income is a special damage claim that must be pleaded and proven. Reliance was placed on the case of Auren vs Director of Police and Another ( Civil case 274 of 2016) [2023] KEHC 2931 (KLR). The appellant suggested that, in the absence of proof of earnings, the court should adopt the amount specified in the Regulation of Wages ( General ) ( Amendment) Order 2022, being Kshs. 8109.90, as the deceased was classified as an unskilled worker. The respondent submitted that the trial court used the minimum wage of Kshs. 14,026/- in accordance with the Kenya Gazette legal Notice no. 125 dated 1st July 2022, which was the relevant minimum wage for an unskilled labourer at the time of the deceased's death.
On the award for loss of expectation of life, the appellants argued that the sum of Kshs. 300,000/- was excessive without any legal basis, and that the deceased died immediately after the accident; therefore, the award should be a minimum sum. They relied on the cases of West Kenya Sugar Co. Limited vs Philip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya) [2019] eKLR and Hyder Nthenya Musili & Another vs China Wu Yi Limited & Another [2017] eKLR, where the court held that very nominal damages are awarded under loss of expectation of life if the death follows immediately after the accident. The respondent submitted that they relied on the case of Daniel Kuria vs Nairobi City Council [2013] eKLR, where the court awarded Kshs. 300,000/- to the deceased’s estate for loss of expectation of life. Further reliance was placed on the case of Susan Letayoro & Another vs JK (suing as the legal representative of the estate of CK (deceased)), Kabarnet HCCA No. 13 of 2020, where the court upheld a sum of Kshs. 300,000/- for loss of expectation of life. Therefore, the award was not excessively high.
Regarding the award for pain and suffering, it was submitted that the sum of Kshs. 100,000/- was excessive as the deceased died on the spot on the same day; there was no evidence that the pain was prolonged. The respondent submitted that the award was fair and reasonable.
The appellant did not challenge the respondents claim on special damages. The respondent submitted that special damages of Kshs. 318200/ was pleaded and proved.
The appellant further submitted that the trial court erred in awarding general damages that were excessive by using a wrong multiplier and multiplicand that were excessive. the Respondent argued that the damages awarded by the trial court were not inordinately high as the same was fair and reasonable and supported by the relevant law and binding decisions.
ANALYSIS AND DETERMINATION
The duty of an appellate court is to reconsider the evidence, evaluate it independently and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. (See Gitobu Imanyara & 2 others V Attorney General (2016) eKLR).
The Court of Appeal outlined the principles for challenging the award of damages in Kemfro Africa Ltd Vs Meru Express Service. A.M Lubia & Another 1957 KLR 27, as follows: -
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages."
I have considered the submissions and the evidence presented before the trial court. It is not disputed that the deceased was 41 years old at the time of his death; the death certificate confirms his age. The appellant contends that a multiplier of 19 years was excessive. In the cases of Nyamai Petronila & Another v Monica Usyoki [2020] eKLR and Isaack Abdikarim Abdile & Another v Rose Kinanu Muchai [2016] eKLR, the courts adopted a multiplier of 11 years for the deceased persons who were 49 years old and were a plumber and a businessman, respectively. In the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR, where the deceased was a mason aged 51 years, the court adopted a multiplier of 9 years. The deceased in this case was a businessman; considering the nature of her work and the uncertainties of life, I find that a multiplier of 19 years is not unreasonable.
Regarding his earnings before his death, the respondent testified that the deceased earned Kshs. 30,000. However, there was no evidence to support this claim. The parties agreed that the deceased was an unskilled worker. The appellant argued that the applicable sum is Kshs. 8109.90, as specified in the Regulations of Wages (General) (Amendment) Order 2022. The respondent also referenced the same regulation but provided a figure of Kshs. 14026. Since the deceased resided in Kakamega County, the applicable wage is Kshs. 14025.40.
The appellant did not submit on the dependency ratio. There was poof that the deceased had a wife and children; a dependency ratio of 2/3 is appropriate. The amount under this head is d as follows: 14025.40 x 12 x 19 x 2/3 = 2,131,800/-.
On pain and suffering, the appellant has contended that the amount awarded was excessive. The respondent maintains that the award is sufficient. The fact that the deceased died instantly was not disputed. It is likely that the deceased experienced some pain before his death. In the case of Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No 68 of 2015 [2016] eKLR, the award of Kshs 50,000/- was upheld for a deceased who died immediately after the accident. The court stated:
“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs. 10,000 to Kshs. 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”
In this case, I find that the award of Kshs. 50,000/- fair and appropriate.
On the loss of expectation of life, the trial court awarded a sum of Kshs 300,000/-. The circumstances in the case of Daniel Kuria Nganga (supra) were different; the plaintiff in that case provided detailed evidence to justify the sum of Kshs 300,000/-. Each case must be considered based on the evidence presented. In my view, this sum of Kshs 300,000/- is excessive; a sum of Kshs 100,000/- is adequate.
Special damages must be pleaded and proved, as is the well-known principle in law. The respondents pleaded and proved special damages of Kshs. 318,200/-.
The appeal partly succeeds, the lower court judgment on quantum is set aside, and an award is made to the Respondents as hereunder:
a. Pain and Suffering Kshs. 50,000/-
b.Loss of expectation of life Kshs. 100,000/-
c. Loss of dependency Kshs. 14025.40x19x12x2/3= 2,131,800/
Total Kshs2,281,800/-
Less than 20% Kshs. Kshs. 456,360/-
Total Kshs.1,825,440/-
Special damages Kshs. 318,200/-
Total sum of Kshs. 2,143,640.00
Orders accordingly
Dated, signed and delivered at Bungoma this 22 nd day of July 2025.
R.E.OUGO
JUDGE
In the presence of:
Mr. Wanjala For the Appellant
Miss Masakhalia h/b Mr. Mukisu For the Respondent
Wilkister - C/A
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E030 OF 2024
BISMARK CARRIERS LIMITED………….………………APPELLANT
VERSUS
MILDRED MUGASIALI MWIMALI & BRANDON MMASI SHIRANDUA ( suing as the administrator and personal representative of the estate of JOHN MUSHEFI SHIRANDUA (DECEASED)……………………………………..……....RESPONDENT
( An Appeal from the judgment and decree in Sirisia Principal Magistrate’s Court in Civil Suit No. E088 of 2023 delivered by Hon J.O. Manasses on the 9 th February 2024)
JUDGMENT
The appellant herein, being dissatisfied with the judgment and decree of the trial magistrate delivered on 9th February 2024, has filed this appeal against the quantum on the following grounds;
That the learned trial magistrate erred in awarding a multiplier of 19 years without taking into consideration the vicissitudes of life.
That the learned trial magistrate erred in law and in fact in awarding a multiplicand of Kshs. 14,026/- when there was no basis to do so.
That the learned trial magistrate erred in law and in fact in awarding a loss of expectation of Kshs. 300,000/- which was excessive.
That the trial magistrate erred in law and fact in awarding pain and suffering of Kshs.100,000/- which was excessive.
That the trial magistrate erred in law and in fact in awarding special damages that were not pleaded and strictly proved.
That the trial magistrate erred in law and in fact for failing to appreciate fully or ignoring the submissions put before him by the appellants.
That the trial magistrate erred in law and in fact in awarding general damages that was excessive in the circumstances occasioning miscarriages of justice.
That the trial magistrate erred in law and in fact in awarding a dependency ratio of 2/3 when the circumstances of the case was such that the dependency ration could have been 1/3.
The appellant requests that the judgment and decree be set aside, a proper finding be made, and the appeal be allowed with costs.
The plaint states that on or about the 3rd of June 2023, the deceased was lawfully travelling as a pillion passenger on a motorcycle along Bungoma-Malaba Road. At Mayanja Bridge, the appellant’s agent, servant, or driver negligently drove or managed Truck Reg. No. KBN 136 N, hauling Trailer Reg. No. ZF 5406, which violently knocked the motorcycle carrying the deceased, resulting in serious injuries that led to her death. A consent was entered by the parties on 14 December 2023 regarding liability in the ratio of 80:20 in favour of the respondent against the appellant.
The Trial Magistrate entered judgment as follows;
Liability 80:20%
Pain and suffering Kshs 100,000/-
Loss of expectation of life Kshs. 300,000/-
Loss of dependency Kshs. 2,131,952/-
Less 20% contribution Kshs. 56,810.40
Special damages Kshs 317,100/-
Total Kshs. 2,279,242/-
The respondent was also awarded costs of the suit and interest on damages at court rates.
Parties canvassed the appeal through written submissions. The appellant submitted that, regarding the award of a multiplier of 19 years, the birth certificate indicated that the deceased was 41 years old. He was described as a businessman; therefore, applying a multiplier of 19 years was incorrect. It was argued that the trial court failed to consider other factors in life that could have shortened the deceased’s lifespan and that it was not proven she was in good health. The appellant referred to the case of Crown Bus Services Ltd & 2 Others vs Jamilla Nyongesa and Amida Nyongesa (legal representative of Alvin Nanjala) [2020] eKLR, w here the court held that a multiplicand of 39 years for a deceased aged 21 was incorrect, as it did not account for other life vicissitudes, such as ill health, that could have shortened her working life. The Respondent contended that the deceased was 41 and healthy, working as a businessman and farmer, and expected to continue working beyond 60 years, suggesting she had about 19 more years of active life. The appellant failed to provide any evidence contradicting the age of the deceased. Reliance was placed on the cases of Phoebe Wambui Waweru vs Armed Forces Canteen Organisation [2010] eKLR , where an 8-year multiplier was used for a deceased who died at 62, and Florence Gathei Miano vs Mary Boniface Musyoka & Another (suing as the legal representative and administrators of Boniface Musyoka Wambua’s estate) [2014] eKLR, where a 10-year multiplier was applied for a deceased aged 57.
Regarding a multiplicand of Kshs. 14026/-, the appellant argues that there is no clear evidence of the deceased's earnings as a businessman. The respondent only stated she earned Kshs. 30,000/- without providing any proof. It was contended that income is a special damage claim that must be pleaded and proven. Reliance was placed on the case of Auren vs Director of Police and Another ( Civil case 274 of 2016) [2023] KEHC 2931 (KLR). The appellant suggested that, in the absence of proof of earnings, the court should adopt the amount specified in the Regulation of Wages ( General ) ( Amendment) Order 2022, being Kshs. 8109.90, as the deceased was classified as an unskilled worker. The respondent submitted that the trial court used the minimum wage of Kshs. 14,026/- in accordance with the Kenya Gazette legal Notice no. 125 dated 1st July 2022, which was the relevant minimum wage for an unskilled labourer at the time of the deceased's death.
On the award for loss of expectation of life, the appellants argued that the sum of Kshs. 300,000/- was excessive without any legal basis, and that the deceased died immediately after the accident; therefore, the award should be a minimum sum. They relied on the cases of West Kenya Sugar Co. Limited vs Philip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya) [2019] eKLR and Hyder Nthenya Musili & Another vs China Wu Yi Limited & Another [2017] eKLR, where the court held that very nominal damages are awarded under loss of expectation of life if the death follows immediately after the accident. The respondent submitted that they relied on the case of Daniel Kuria vs Nairobi City Council [2013] eKLR, where the court awarded Kshs. 300,000/- to the deceased’s estate for loss of expectation of life. Further reliance was placed on the case of Susan Letayoro & Another vs JK (suing as the legal representative of the estate of CK (deceased)), Kabarnet HCCA No. 13 of 2020, where the court upheld a sum of Kshs. 300,000/- for loss of expectation of life. Therefore, the award was not excessively high.
Regarding the award for pain and suffering, it was submitted that the sum of Kshs. 100,000/- was excessive as the deceased died on the spot on the same day; there was no evidence that the pain was prolonged. The respondent submitted that the award was fair and reasonable.
The appellant did not challenge the respondents claim on special damages. The respondent submitted that special damages of Kshs. 318200/ was pleaded and proved.
The appellant further submitted that the trial court erred in awarding general damages that were excessive by using a wrong multiplier and multiplicand that were excessive. the Respondent argued that the damages awarded by the trial court were not inordinately high as the same was fair and reasonable and supported by the relevant law and binding decisions.
ANALYSIS AND DETERMINATION
The duty of an appellate court is to reconsider the evidence, evaluate it independently and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. (See Gitobu Imanyara & 2 others V Attorney General (2016) eKLR).
The Court of Appeal outlined the principles for challenging the award of damages in Kemfro Africa Ltd Vs Meru Express Service. A.M Lubia & Another 1957 KLR 27, as follows: -
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages."
I have considered the submissions and the evidence presented before the trial court. It is not disputed that the deceased was 41 years old at the time of his death; the death certificate confirms his age. The appellant contends that a multiplier of 19 years was excessive. In the cases of Nyamai Petronila & Another v Monica Usyoki [2020] eKLR and Isaack Abdikarim Abdile & Another v Rose Kinanu Muchai [2016] eKLR, the courts adopted a multiplier of 11 years for the deceased persons who were 49 years old and were a plumber and a businessman, respectively. In the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR, where the deceased was a mason aged 51 years, the court adopted a multiplier of 9 years. The deceased in this case was a businessman; considering the nature of her work and the uncertainties of life, I find that a multiplier of 19 years is not unreasonable.
Regarding his earnings before his death, the respondent testified that the deceased earned Kshs. 30,000. However, there was no evidence to support this claim. The parties agreed that the deceased was an unskilled worker. The appellant argued that the applicable sum is Kshs. 8109.90, as specified in the Regulations of Wages (General) (Amendment) Order 2022. The respondent also referenced the same regulation but provided a figure of Kshs. 14026. Since the deceased resided in Kakamega County, the applicable wage is Kshs. 14025.40.
The appellant did not submit on the dependency ratio. There was poof that the deceased had a wife and children; a dependency ratio of 2/3 is appropriate. The amount under this head is d as follows: 14025.40 x 12 x 19 x 2/3 = 2,131,800/-.
On pain and suffering, the appellant has contended that the amount awarded was excessive. The respondent maintains that the award is sufficient. The fact that the deceased died instantly was not disputed. It is likely that the deceased experienced some pain before his death. In the case of Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No 68 of 2015 [2016] eKLR, the award of Kshs 50,000/- was upheld for a deceased who died immediately after the accident. The court stated:
“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs. 10,000 to Kshs. 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”
In this case, I find that the award of Kshs. 50,000/- fair and appropriate.
On the loss of expectation of life, the trial court awarded a sum of Kshs 300,000/-. The circumstances in the case of Daniel Kuria Nganga (supra) were different; the plaintiff in that case provided detailed evidence to justify the sum of Kshs 300,000/-. Each case must be considered based on the evidence presented. In my view, this sum of Kshs 300,000/- is excessive; a sum of Kshs 100,000/- is adequate.
Special damages must be pleaded and proved, as is the well-known principle in law. The respondents pleaded and proved special damages of Kshs. 318,200/-.
The appeal partly succeeds, the lower court judgment on quantum is set aside, and an award is made to the Respondents as hereunder:
a. Pain and Suffering Kshs. 50,000/-
b.Loss of expectation of life Kshs. 100,000/-
c. Loss of dependency Kshs. 14025.40x19x12x2/3= 2,131,800/
Total Kshs2,281,800/-
Less than 20% Kshs. Kshs. 456,360/-
Total Kshs.1,825,440/-
Special damages Kshs. 318,200/-
Total sum of Kshs. 2,143,640.00
Orders accordingly
Dated, signed and delivered at Bungoma this 22 nd day of July 2025.
R.E.OUGO
JUDGE
In the presence of:
Mr. Wanjala For the Appellant
Miss Masakhalia h/b Mr. Mukisu For the Respondent
Wilkister - C/A