REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E006 OF 2025
COSCO LOGISTICS LIMITED…………………………..1ST APPELLANT
TRANSWAY LOGISTICS CO. TD……………………….2ND APPELLANT
TRANSGREAT INT. LOGISTICS CO. LTD……………3RD APPELLANT
VERSUS
CHRISPINUS NYONGESA MANAHU (Suing as the
Personal Representative of the estate of
BRIAN WAMALWA NYONGESA (DSCD) ……………..…RESPONDENT
(Being an appeal from the Judgement and Decree of the Resident Magistrate’s Court in Sirisia PMCC No. E032 of 2021 delivered by Hon. John O. Manasses (RM) on 13th December 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Principal’s Magistrate’s Court in Sirisia Civil Case No. E032 of 2021 delivered by Hon. John O. Manasses (RM) on 13th December 2024 on both liability and quantum of damages. In the said case, the Respondent had sued theAppellants seeking recovery of general and special damages arising from a road accident that occurred on 4th May 2021, in which the Appellant sustained injuries that led to his death.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“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.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Amended Plaint dated 4th May 2021, the Respondent averred that on or about 4th May 2021, the deceased was lawfully travelling as a pillion passenger abode an unknown motorcycle when the Appellants agent driver and/or servant drove and controlled Motor Vehicle Registration number KCG 280L that was hauling trailer registration number KCG 280L in such a reckless, negligent and careless manner resulting into an accident, which led to the deceased herein sustaining fatal injuries.
5. The Appellants in their joint Statement of Defence dated 16th April 2022, denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondent’s negligence wholly or substantially.
D. EVIDENCE
6. PW1, Chrispinus Nyongesa Munga’hu, adopted his recorded statement dated 28th June 2021and his list of documents dated the same as his exhibits as his evidence in chief. He told the Court that the deceased herein was his son and was a farmer and businessman by profession. On cross-examination, he told the Court that his son was a farmer and a businessman by profession, but he did not adduce any evidence to support that averment. He also failed to avail any documentary evidence to demonstrate that the deceased used to earn Kshs. 30,000/= per month. Whereas PW1 had testified that the deceased was married, the letter from the chief did not indicate the same. He also failed to adduce any documentary evidence to prove that the deceased was survived by a son.
7. On re-examination, he reiterated that the deceased herein was earning Kshs. 30,000/= per month and he was survived by a son who entirely depended on him, and that he died on 4th May 2021.
E. THE APPEAL
8. The Appellants seeks to overturn the judgment on both liability and quantum as per the preferred grounds of appeal.
9. The Appellants prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that the costs of the appeal be awarded to the Appellants.
10. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
11. On the issue of liability, it was a fact according to the trial Court’s record that this matter was part of series files with its test suit being Bungoma CMCC No. 142 of 2021-Muchoe Mukhwana Julius vs Cosco Logistics Co. Ltd & Another where parties had recorded a consent on liability at 100% against the Appellants, on 12th April 2024. The issue of liability does not lie as the appellants are bound by their own consent as recorded in the test suit.
12. In light of the above finding, the only issue open for determination before this court is on quantum.
13. The Appellants contend that the award made under the heading of loss of dependency was not justified. The Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
14. In Mariga V Musila (1984) KLR 251 the same court also stated as follows:
“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 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 court judge acted on the wrong principles...”.
15. It is the law in Kenya that general damages must be compensatory. When one looks at the impugned Judgment, it must be fair in the sense of what the claimant suffered. In my view, whether at the trial Court or on appeal, claimants should not aspire to a perfect compensation. They should take what has reasonably been found by the court as a fair compensation since the said award cannot by any chance replace a damaged part of a human body but that the same suffices as the tortfeasor’s earnest response (sorry) for the accident.
16. Guided by the above principles, I now proceed to determine whether the learned trial magistrate erred in the assessment of damages under the loss of dependency awarded to the respondents in view of the evidence on record. I will start with the damages awarded under the Law Reform Act. It is important to point out at this juncture that general damages under the Law Reform Act are awarded for the benefit of the deceased’s estate in two categories only namely for pain and suffering and secondly, for loss of expectation of life.
17. At this stage, I wish to point out in passing that only dependants recognized under the Fatal Accidents Act are supposed to benefit from damages awarded for loss of dependency. Section 4(1) of the Fatal Accidents Act defines dependants as the wife, husband, parent and child of the deceased person.
18. I do stand guided by the principle that there is no golden rule in the assessment of damages in respect of a deceased. The heads, global or mixed approaches have been applied in the superior Courts. What is beyond doubt is that irrespective of the age of a deceased, and whether or not there is evidence of his pecuniary contribution, damages are payable to his parents/dependents.
19. Under the heading of pain and suffering, according to the Respondent’s trial Court’s submissions, the deceased died on shortly after the incident, thus it was clear that he suffered pain before succumbing to his injuries and proposed an award of Kshs. 200,000/=. The trial Court made an award of Kshs. 100,000/=. In the Civil appeal No. E036 OF 2023- West Sugar Co. Ltd vs David Wabwile Wachiye & Others (Suing as the legal representative/administrator of the estate of Elias Simiyu (DCD), this Court upheld the holding of the trial Court which made the award of Kshs. 60,000/= where the deceased died on the spot. I find the award of Kshs. 100,000/= made under this heading appropriate as the deceased suffered prior to his demise. I, therefore, uphold the award by the trial magistrate.
20. Under the heading of loss of expectation of life, the trial Court held that the deceased died at the age of 23 years and made the conventional award of Kshs. 100,000/=. I find that this award was appropriate. I, therefore, uphold the award by the trial magistrate.
21. Under the heading of loss of dependency, the trial Court found that the multiplier approach was the most appropriate in assessing the damages for loss of dependency in this case wherein the trial magistrate used the minimum wage of Kshs.8,110/= as per the Wages (General Amendment Order) 2022, multiplier of 37 years since the deceased died at the age of 23 years yet was supposed to work for another 37 years and he was not married and had a child thus used the dependency ratio of 2/3.
22. Loss of dependency is a question of fact to be proved by evidence. The deceased was survived by his child. It is my finding that in the absence of tangible proof of earnings, the trial court should have adopted a global sum approach in assessing damages for loss of dependency instead of the multiplier method. For this I am guided by the decision in Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR, where the Court held as follows: “It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
23. In assessing damages under for loss of dependency using the global sum approach, I will consider the awards made in the following similar past awards: In Stanwel Holdings Limited & Another vs Racheal Haluku Emanuel & Another [2020] eKLR the Court reduced an award of Kshs.2,000,000.00/= for loss of dependency (a global sum) to Kshs.1,000,000/= for the estate of a 23-year-old deceased. In Ainu Shamsi Hauliers Limited vs Moses Sakwa & Another (Suing as the administrators of the estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the Court on Appeal upheld an award of Kshs.2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children.
24. Having regard to the decisions in the above cited cases, I find that a global sum of Kshs.2,500,000/= will be adequate compensation for the Respondent under loss of dependency since the deceased died at a young age and was survived by one child and also considering the inflation of the Kenyan Shilling, age of the authorities referred to above and the current high cost of living.
25. I, therefore, interfere with the award by the trial magistrate under this heading. The amount in that regard will increase by a small margin of Kenya Shillings Nine Hundred Thousand Four Hundred and Forty-Four shillings only (Kshs. 99,440/=). The Appellants appeal must thus fail.
26. On special damages, according to the trial Court, the Respondent pleaded Kshs. 104,990/=. The Appellant’s in their submissions argue that the Respondent ought to have provided the Court with receipts bearing stamp duty as per the dints of Section 19 (1) of the Stamp Duty Act. Under Section 88 of the Stamp Duty Act, the obligation to affix a revenue stamp on a receipt is in law placed upon the person issuing the receipt and not the person to whom it is issued. To decline admission of such receipts would be therefore to punish an innocent party.
27. The issue was aptly addressed by Sila J, in the case of Jackson Kariuki Kahungura & another v John Karanja Kihagi & 5 others [2018] eKLR in which the Court observed as follows:
“71.From the above, the duty to stamp the receipt is not that of the recipient but that of the issuer of the receipt. One could object to production of the receipt if not stamped, so that it may be stamped, but once introduced as evidence, the court cannot close its eyes and assume that no such expense was ever incurred. This indeed appears to be the approach taken by several judges. In the case of Beatrice Ndungwa Makau vs Nairobi City Council & Another, High Court at Nairobi, Civil Appeal No. 1 of 2007, (2012) eKLR, the trial magistrate court refused to make an award of special damages on the reason that the receipts produced were not stamped. On appeal, Onyancha J, stated as follows:
“In rejecting the evidence contained in the receipts produced by the appellant, the trial magistrate used the ground that the receipts were not revenue-stamped. However, that reason was one for rejecting the receipts from being produced. However, neither the Respondents nor the court objected to production. Once the evidence was properly produced in my view, it would be difficult for the court to close its eyes and brain to the evidence they contained or represented. In my opinion, the court should not have ignored properly admitted evidence of the appellant, which were in any case, not rejected by the Respondents.”
28. In my humble view, Courts need to be slow before denying someone an award for money that he must have spent, just because a receipt, for which the duty to stamp is not his, has not been stamped. Why should the Court prejudice you for the omission of somebody else and on something that you have no duty to do? My persuasion therefore is that the learned trial Magistrate correctly awarded the amounts in the receipts that did not have revenue stamps. I need not say more.
29. The Appellant failed to discharge its duty under Section 107 of the Evidence Act to warrant this Court to interfere with the awards of the trial Court save for the award on loss of dependency which I shall interfere with by increasing the same by a small margin of Kenya Shillings Nine Hundred Thousand Four Hundred and Forty-Four shillings only (Kshs. 99,440/=). The Appellants appeal must thus fail.
G. CONCLUSION
30. In the upshot, I find no merit in this Appeal. The judgment delivered on 13th December 2024, is confirmed and upheld. This appeal is dismissed.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Kemboi FOR APPELLANTS
Mr Alukwe FOR RESPONDENT
Peter Machoni -COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E006 OF 2025
COSCO LOGISTICS LIMITED…………………………..1ST APPELLANT
TRANSWAY LOGISTICS CO. TD……………………….2ND APPELLANT
TRANSGREAT INT. LOGISTICS CO. LTD……………3RD APPELLANT
VERSUS
CHRISPINUS NYONGESA MANAHU (Suing as the
Personal Representative of the estate of
BRIAN WAMALWA NYONGESA (DSCD) ……………..…RESPONDENT
(Being an appeal from the Judgement and Decree of the Resident Magistrate’s Court in Sirisia PMCC No. E032 of 2021 delivered by Hon. John O. Manasses (RM) on 13th December 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Principal’s Magistrate’s Court in Sirisia Civil Case No. E032 of 2021 delivered by Hon. John O. Manasses (RM) on 13th December 2024 on both liability and quantum of damages. In the said case, the Respondent had sued theAppellants seeking recovery of general and special damages arising from a road accident that occurred on 4th May 2021, in which the Appellant sustained injuries that led to his death.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“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.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Amended Plaint dated 4th May 2021, the Respondent averred that on or about 4th May 2021, the deceased was lawfully travelling as a pillion passenger abode an unknown motorcycle when the Appellants agent driver and/or servant drove and controlled Motor Vehicle Registration number KCG 280L that was hauling trailer registration number KCG 280L in such a reckless, negligent and careless manner resulting into an accident, which led to the deceased herein sustaining fatal injuries.
5. The Appellants in their joint Statement of Defence dated 16th April 2022, denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondent’s negligence wholly or substantially.
D. EVIDENCE
6. PW1, Chrispinus Nyongesa Munga’hu, adopted his recorded statement dated 28th June 2021and his list of documents dated the same as his exhibits as his evidence in chief. He told the Court that the deceased herein was his son and was a farmer and businessman by profession. On cross-examination, he told the Court that his son was a farmer and a businessman by profession, but he did not adduce any evidence to support that averment. He also failed to avail any documentary evidence to demonstrate that the deceased used to earn Kshs. 30,000/= per month. Whereas PW1 had testified that the deceased was married, the letter from the chief did not indicate the same. He also failed to adduce any documentary evidence to prove that the deceased was survived by a son.
7. On re-examination, he reiterated that the deceased herein was earning Kshs. 30,000/= per month and he was survived by a son who entirely depended on him, and that he died on 4th May 2021.
E. THE APPEAL
8. The Appellants seeks to overturn the judgment on both liability and quantum as per the preferred grounds of appeal.
9. The Appellants prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that the costs of the appeal be awarded to the Appellants.
10. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
11. On the issue of liability, it was a fact according to the trial Court’s record that this matter was part of series files with its test suit being Bungoma CMCC No. 142 of 2021-Muchoe Mukhwana Julius vs Cosco Logistics Co. Ltd & Another where parties had recorded a consent on liability at 100% against the Appellants, on 12th April 2024. The issue of liability does not lie as the appellants are bound by their own consent as recorded in the test suit.
12. In light of the above finding, the only issue open for determination before this court is on quantum.
13. The Appellants contend that the award made under the heading of loss of dependency was not justified. The Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
14. In Mariga V Musila (1984) KLR 251 the same court also stated as follows:
“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 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 court judge acted on the wrong principles...”.
15. It is the law in Kenya that general damages must be compensatory. When one looks at the impugned Judgment, it must be fair in the sense of what the claimant suffered. In my view, whether at the trial Court or on appeal, claimants should not aspire to a perfect compensation. They should take what has reasonably been found by the court as a fair compensation since the said award cannot by any chance replace a damaged part of a human body but that the same suffices as the tortfeasor’s earnest response (sorry) for the accident.
16. Guided by the above principles, I now proceed to determine whether the learned trial magistrate erred in the assessment of damages under the loss of dependency awarded to the respondents in view of the evidence on record. I will start with the damages awarded under the Law Reform Act. It is important to point out at this juncture that general damages under the Law Reform Act are awarded for the benefit of the deceased’s estate in two categories only namely for pain and suffering and secondly, for loss of expectation of life.
17. At this stage, I wish to point out in passing that only dependants recognized under the Fatal Accidents Act are supposed to benefit from damages awarded for loss of dependency. Section 4(1) of the Fatal Accidents Act defines dependants as the wife, husband, parent and child of the deceased person.
18. I do stand guided by the principle that there is no golden rule in the assessment of damages in respect of a deceased. The heads, global or mixed approaches have been applied in the superior Courts. What is beyond doubt is that irrespective of the age of a deceased, and whether or not there is evidence of his pecuniary contribution, damages are payable to his parents/dependents.
19. Under the heading of pain and suffering, according to the Respondent’s trial Court’s submissions, the deceased died on shortly after the incident, thus it was clear that he suffered pain before succumbing to his injuries and proposed an award of Kshs. 200,000/=. The trial Court made an award of Kshs. 100,000/=. In the Civil appeal No. E036 OF 2023- West Sugar Co. Ltd vs David Wabwile Wachiye & Others (Suing as the legal representative/administrator of the estate of Elias Simiyu (DCD), this Court upheld the holding of the trial Court which made the award of Kshs. 60,000/= where the deceased died on the spot. I find the award of Kshs. 100,000/= made under this heading appropriate as the deceased suffered prior to his demise. I, therefore, uphold the award by the trial magistrate.
20. Under the heading of loss of expectation of life, the trial Court held that the deceased died at the age of 23 years and made the conventional award of Kshs. 100,000/=. I find that this award was appropriate. I, therefore, uphold the award by the trial magistrate.
21. Under the heading of loss of dependency, the trial Court found that the multiplier approach was the most appropriate in assessing the damages for loss of dependency in this case wherein the trial magistrate used the minimum wage of Kshs.8,110/= as per the Wages (General Amendment Order) 2022, multiplier of 37 years since the deceased died at the age of 23 years yet was supposed to work for another 37 years and he was not married and had a child thus used the dependency ratio of 2/3.
22. Loss of dependency is a question of fact to be proved by evidence. The deceased was survived by his child. It is my finding that in the absence of tangible proof of earnings, the trial court should have adopted a global sum approach in assessing damages for loss of dependency instead of the multiplier method. For this I am guided by the decision in Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR, where the Court held as follows: “It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
23. In assessing damages under for loss of dependency using the global sum approach, I will consider the awards made in the following similar past awards: In Stanwel Holdings Limited & Another vs Racheal Haluku Emanuel & Another [2020] eKLR the Court reduced an award of Kshs.2,000,000.00/= for loss of dependency (a global sum) to Kshs.1,000,000/= for the estate of a 23-year-old deceased. In Ainu Shamsi Hauliers Limited vs Moses Sakwa & Another (Suing as the administrators of the estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the Court on Appeal upheld an award of Kshs.2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children.
24. Having regard to the decisions in the above cited cases, I find that a global sum of Kshs.2,500,000/= will be adequate compensation for the Respondent under loss of dependency since the deceased died at a young age and was survived by one child and also considering the inflation of the Kenyan Shilling, age of the authorities referred to above and the current high cost of living.
25. I, therefore, interfere with the award by the trial magistrate under this heading. The amount in that regard will increase by a small margin of Kenya Shillings Nine Hundred Thousand Four Hundred and Forty-Four shillings only (Kshs. 99,440/=). The Appellants appeal must thus fail.
26. On special damages, according to the trial Court, the Respondent pleaded Kshs. 104,990/=. The Appellant’s in their submissions argue that the Respondent ought to have provided the Court with receipts bearing stamp duty as per the dints of Section 19 (1) of the Stamp Duty Act. Under Section 88 of the Stamp Duty Act, the obligation to affix a revenue stamp on a receipt is in law placed upon the person issuing the receipt and not the person to whom it is issued. To decline admission of such receipts would be therefore to punish an innocent party.
27. The issue was aptly addressed by Sila J, in the case of Jackson Kariuki Kahungura & another v John Karanja Kihagi & 5 others [2018] eKLR in which the Court observed as follows:
“71.From the above, the duty to stamp the receipt is not that of the recipient but that of the issuer of the receipt. One could object to production of the receipt if not stamped, so that it may be stamped, but once introduced as evidence, the court cannot close its eyes and assume that no such expense was ever incurred. This indeed appears to be the approach taken by several judges. In the case of Beatrice Ndungwa Makau vs Nairobi City Council & Another, High Court at Nairobi, Civil Appeal No. 1 of 2007, (2012) eKLR, the trial magistrate court refused to make an award of special damages on the reason that the receipts produced were not stamped. On appeal, Onyancha J, stated as follows:
“In rejecting the evidence contained in the receipts produced by the appellant, the trial magistrate used the ground that the receipts were not revenue-stamped. However, that reason was one for rejecting the receipts from being produced. However, neither the Respondents nor the court objected to production. Once the evidence was properly produced in my view, it would be difficult for the court to close its eyes and brain to the evidence they contained or represented. In my opinion, the court should not have ignored properly admitted evidence of the appellant, which were in any case, not rejected by the Respondents.”
28. In my humble view, Courts need to be slow before denying someone an award for money that he must have spent, just because a receipt, for which the duty to stamp is not his, has not been stamped. Why should the Court prejudice you for the omission of somebody else and on something that you have no duty to do? My persuasion therefore is that the learned trial Magistrate correctly awarded the amounts in the receipts that did not have revenue stamps. I need not say more.
29. The Appellant failed to discharge its duty under Section 107 of the Evidence Act to warrant this Court to interfere with the awards of the trial Court save for the award on loss of dependency which I shall interfere with by increasing the same by a small margin of Kenya Shillings Nine Hundred Thousand Four Hundred and Forty-Four shillings only (Kshs. 99,440/=). The Appellants appeal must thus fail.
G. CONCLUSION
30. In the upshot, I find no merit in this Appeal. The judgment delivered on 13th December 2024, is confirmed and upheld. This appeal is dismissed.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Kemboi FOR APPELLANTS
Mr Alukwe FOR RESPONDENT
Peter Machoni -COURT ASSISTANT