(Being an appeal from judgement of Hon.L. N Njora Senior Principal Magistrate in Milimani CC 3984 of 2014 delivered on 28.4.2022.)
The appellant had filed a suit for compensation seeking both special and general damages payable to the estate of the deceased, Amos Maina Mwangi, under the Fatal Accidents Act and the Law Reform Act. In a very brief judgement, the learned magistrate stated as follows;
‘’Damages under the Fatal Accidents and Law Reforms Act Ksh 100,000
Special damages Ksh160,500
Costs of the suit are awarded as well as interest at court rates.”
It is instructive to note that parties had by consent agreed on liability in the ratio of 70:30 as against the respondent (Defendant). The plaintiff (Appellant), aggrieved by the said judgement, appealed to this court on the following grounds;
(a)That the learned magistrate erred in law and facts in awarding damages under the Fatal Accidents Act and Law Reform Act by awarding a global figure without any basis.
(b) That the learned trial magistrate erred in law and in facts in awarding damages which were inordinately low in the circumstances.
(c) That the learned magistrate failed to follow basic principles of writing judgement.
The appellant filed submissions in support of the appeal. No submissions were filed on behalf of the respondent.
APPELANT’S SUBMISSIONS
The appellant submitted that the trial magistrate erred in combining the award under the Law Reform Act and the Fatal Accident Act. That the award was so low. The appellant further submitted that the trial court failed to adhere to basic principles in judgement writing as the judgement failed to consider the issues raised and gave no reasons for the findings reached. That the judgement was silent on whether it took into account the consent on liability. The appellant asked the court to upset the entire judgement save for the finding on special damages.
ANALYSIS AND DETERMINATION
From the memorandum of appeal, this court should determine whether the learned magistrate correctly applied her mind to the facts before her and the law in arriving at her decision which was basically on quantum of damages payable to the appellant. It is not disputed that the issue of liability was settled by the consent of parties in the ratio of 70:30 in favour of the appellant against the respondent.
This being a first appeal, I am obligated to analyze and re-evaluate the evidence adduced before the trial court and reach my independent conclusion while bearing in mind that unlike the trial court, I did not have the benefit of hearing and seeing the witnesses testify. See Selle and Another –v- Associates Mater Boat Co. Ltd (1968) E.A 123 and Williamson Diamonds Ltd Brown 1970 E.A
The principles under which an appellate court will disturb an award of damages are well settled. The appellate court will only interfere with an award made by a lower court if it is satisfied that the ward is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages. In Butt V Khan civil appeal No.40 of 1997(U.R) the court held;
‘’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 on wrong principles and that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.’’
See also Kemfro Africa Ltd and another V.A.M Lubia & Another (1982-88)
From the brief judgement of the learned magistrate, it is clear that she did not address her mind to the evidence before her together with the law as is expected and thereby arrived at an erroneous and incomprehensible decision. I will therefore proceed to reevaluate the evidence and reach my own conclusion.
On special damages, the appellant had no issues. The learned magistrate awarded a sum of Ksh. 160,500, which I find was pleaded and strictly proved as required.
Under the Law Reforms Act, in Rose –V-Ford (1937) AC 826, it was held that damages for loss of expectation of life can be recovered on behalf of the estate of the deceased. Courts also award damages for pain and suffering. Further, in Benham vs Gambling (1941) AC 157 the court held that only moderate awards should be granted under this head for the following reasons;
‘’In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not for loss of future pecuniary prospects.’’
The generally accepted principle is that very nominal damages will be awarded under these two heads if the death followed immediately after the accident. The conventional award for loss of expectation of life is ksh. 100,000. For pain and suffering the awards range between ksh 10,000 to ksh 100,000 with higher awards granted where the deceased had prolonged pain before death following the accident. In the present case, the deceased died not long after the accident. I will therefore award Ksh 20,000 for pain and suffering and Ksh 100,000 for loss of expectation of life.
Under the Fatal Accidents Act, the deceased died aged 51 years. There was no evidence that he suffered from ill health. It was alleged that he was working as a business man. There was no evidence of his audited accounts to show his net income. It is however settled by courts that production of documents cannot be the only way of proving one’s earnings. Such an approach would be unfair to many litigants who are illiterate and have difficulty keeping records yet they earn their livelihoods through various ways.
In the circumstances of this case, I find it not a fit case for using a multiplier method on arriving at damages payable. I seek reliance in the case of Mwanzia –V-Ngala Mutua Kenya Bus Ltd and quoted in Albert Odawa –V- Gichumu.Githenji (2007) KLR where Justice Ringera (as he then was) expressed himself thus;
‘’The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma. It can and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.’’
It is therefore my finding that it is better to opt for the principle of lump sum award instead of estimating the income of the deceased in the absence of proper accounting books. In arriving at the lump sum, I will consider what would have been the dependency ratio noting that all the named dependants were adults. There is scanty evidence on how the adult children of the deceased were dependent on him.
Doing the best, I can, I find that a global sum of Kshs 1,600,000 would suffice for loss of dependency. In making this award, I have taken into account that I have awarded to the same dependants under Law Reform Act for non-pecuniary loss.
In conclusion the judgement of the trial magistrate is varied in the following terms;
i) Liability is 70:30 in favour of the appellant against the respondent
ii) Special damages -Ksh160,500
iii) Pain and suffering-Ksh 20,000
iv) Loss of expectation of life –Ksh 100,000
v) Loss of Dependency-Ksh 1,600,000
vi) The awards in (ii-v) shall be subject to contribution in the ratio stated in (i) above
vii) The appellant is awarded costs of this appeal and in the trial court together with interest at court rates from the dates of the judgement until payment in full.
The interest on general damages to accrue from date of judgement in the lower court while for special damages to accrue from the date of filing suit until payment in full.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY IN KAKAMEGA THIS 8 th July 2026
D.O. ONYANGO
JUDGE
2
The appellant had filed a suit for compensation seeking both special and general damages payable to the estate of the deceased, Amos Maina Mwangi, under the Fatal Accidents Act and the Law Reform Act. In a very brief judgement, the learned magistrate stated as follows;
‘’Damages under the Fatal Accidents and Law Reforms Act Ksh 100,000
Special damages Ksh160,500
Costs of the suit are awarded as well as interest at court rates.”
It is instructive to note that parties had by consent agreed on liability in the ratio of 70:30 as against the respondent (Defendant). The plaintiff (Appellant), aggrieved by the said judgement, appealed to this court on the following grounds;
(a)That the learned magistrate erred in law and facts in awarding damages under the Fatal Accidents Act and Law Reform Act by awarding a global figure without any basis.
(b) That the learned trial magistrate erred in law and in facts in awarding damages which were inordinately low in the circumstances.
(c) That the learned magistrate failed to follow basic principles of writing judgement.
The appellant filed submissions in support of the appeal. No submissions were filed on behalf of the respondent.
APPELANT’S SUBMISSIONS
The appellant submitted that the trial magistrate erred in combining the award under the Law Reform Act and the Fatal Accident Act. That the award was so low. The appellant further submitted that the trial court failed to adhere to basic principles in judgement writing as the judgement failed to consider the issues raised and gave no reasons for the findings reached. That the judgement was silent on whether it took into account the consent on liability. The appellant asked the court to upset the entire judgement save for the finding on special damages.
ANALYSIS AND DETERMINATION
From the memorandum of appeal, this court should determine whether the learned magistrate correctly applied her mind to the facts before her and the law in arriving at her decision which was basically on quantum of damages payable to the appellant. It is not disputed that the issue of liability was settled by the consent of parties in the ratio of 70:30 in favour of the appellant against the respondent.
This being a first appeal, I am obligated to analyze and re-evaluate the evidence adduced before the trial court and reach my independent conclusion while bearing in mind that unlike the trial court, I did not have the benefit of hearing and seeing the witnesses testify. See Selle and Another –v- Associates Mater Boat Co. Ltd (1968) E.A 123 and Williamson Diamonds Ltd Brown 1970 E.A
The principles under which an appellate court will disturb an award of damages are well settled. The appellate court will only interfere with an award made by a lower court if it is satisfied that the ward is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages. In Butt V Khan civil appeal No.40 of 1997(U.R) the court held;
‘’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 on wrong principles and that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.’’
See also Kemfro Africa Ltd and another V.A.M Lubia & Another (1982-88)
From the brief judgement of the learned magistrate, it is clear that she did not address her mind to the evidence before her together with the law as is expected and thereby arrived at an erroneous and incomprehensible decision. I will therefore proceed to reevaluate the evidence and reach my own conclusion.
On special damages, the appellant had no issues. The learned magistrate awarded a sum of Ksh. 160,500, which I find was pleaded and strictly proved as required.
Under the Law Reforms Act, in Rose –V-Ford (1937) AC 826, it was held that damages for loss of expectation of life can be recovered on behalf of the estate of the deceased. Courts also award damages for pain and suffering. Further, in Benham vs Gambling (1941) AC 157 the court held that only moderate awards should be granted under this head for the following reasons;
‘’In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not for loss of future pecuniary prospects.’’
The generally accepted principle is that very nominal damages will be awarded under these two heads if the death followed immediately after the accident. The conventional award for loss of expectation of life is ksh. 100,000. For pain and suffering the awards range between ksh 10,000 to ksh 100,000 with higher awards granted where the deceased had prolonged pain before death following the accident. In the present case, the deceased died not long after the accident. I will therefore award Ksh 20,000 for pain and suffering and Ksh 100,000 for loss of expectation of life.
Under the Fatal Accidents Act, the deceased died aged 51 years. There was no evidence that he suffered from ill health. It was alleged that he was working as a business man. There was no evidence of his audited accounts to show his net income. It is however settled by courts that production of documents cannot be the only way of proving one’s earnings. Such an approach would be unfair to many litigants who are illiterate and have difficulty keeping records yet they earn their livelihoods through various ways.
In the circumstances of this case, I find it not a fit case for using a multiplier method on arriving at damages payable. I seek reliance in the case of Mwanzia –V-Ngala Mutua Kenya Bus Ltd and quoted in Albert Odawa –V- Gichumu.Githenji (2007) KLR where Justice Ringera (as he then was) expressed himself thus;
‘’The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma. It can and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.’’
It is therefore my finding that it is better to opt for the principle of lump sum award instead of estimating the income of the deceased in the absence of proper accounting books. In arriving at the lump sum, I will consider what would have been the dependency ratio noting that all the named dependants were adults. There is scanty evidence on how the adult children of the deceased were dependent on him.
Doing the best, I can, I find that a global sum of Kshs 1,600,000 would suffice for loss of dependency. In making this award, I have taken into account that I have awarded to the same dependants under Law Reform Act for non-pecuniary loss.
In conclusion the judgement of the trial magistrate is varied in the following terms;
i) Liability is 70:30 in favour of the appellant against the respondent
ii) Special damages -Ksh160,500
iii) Pain and suffering-Ksh 20,000
iv) Loss of expectation of life –Ksh 100,000
v) Loss of Dependency-Ksh 1,600,000
vi) The awards in (ii-v) shall be subject to contribution in the ratio stated in (i) above
vii) The appellant is awarded costs of this appeal and in the trial court together with interest at court rates from the dates of the judgement until payment in full.
The interest on general damages to accrue from date of judgement in the lower court while for special damages to accrue from the date of filing suit until payment in full.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY IN KAKAMEGA THIS 8 th July 2026
D.O. ONYANGO
JUDGE
2