INTRODUCTION
1. This is an appeal against the judgment and decree of the Principal Magistrate's Court at Kimilili (Hon. Gladys Adhiambo, SPM) delivered on 9th February 2024 in Kimilili SPM Civil Case No. E253 of 2021, which was heard together, by consent of the parties, with the related Kimilili SPM Civil Case No. E252 of 2021, both suits arising from the same road traffic accident. The trial Court found the Appellant (the Defendant below) 100% liable for the accident, and made the following awards: pain and suffering, Kshs 50,000/=; loss of expectation of life, Kshs 200,000/=; loss of dependency, Kshs 1,216,479.60/=; and special damages, Kshs 145,300/=, together with costs and interest, yielding a total award of Kshs 1,611,779.60/=.
BACKGROUND
2. The 1st and 2nd Respondents, suing as administrators and personal representatives of the estate of Stephen Musebe Wasike (deceased), pleaded that on 25th May 2020, along the Naitiri-Wabukhonyi murram road at Suppernet area, the deceased was a pillion passenger on motorcycle registration number KMCJ 815A, ridden by one Alex Ndombi Barasa, when the Appellant's motor tractor, registration number KTCB 079Z with trailer ZC9550, negligently swerved into the lane in which the motorcycle was overtaking, colliding with it. The rider died on the spot; the deceased died three days later while undergoing treatment at Webuye Sub-County Hospital.
3. The Plaint as originally filed pleaded the accident date as 26th May 2021. This was amended at trial, by consent, to 25th May 2020, which is the date borne out by the police abstract and by the evidence of every witness who spoke to it.
4. The suit sought general and special damages under the Fatal Accidents Act and the Law Reform Act. The Appellant entered appearance and filed a defence denying negligence, but, never adduced any evidence in support of that defence.
PROCEDURAL HISTORY AT TRIAL
5. The Appellant initially failed to enter appearance, and an ex parte interlocutory judgment on liability was entered against him on 9th September 2022. That judgment was set aside by consent on 15th December 2022, on terms that the Appellant pay the Respondents thrown-away costs of Kshs 8,000/=, whereupon the matter proceeded to a fully defended hearing, with Civil Case No. E252 of 2021 following the same procedural steps throughout by consent.
6. The Respondents called three witnesses and closed their case on 29th June 2023. The Appellant's counsel was thereupon granted leave, without objection, to file witness statements within 14 days. No statements were filed. On 5th October 2023, some four months later, and after the Appellant's counsel sought a further adjournment on the day fixed for the defence hearing, the trial Court — noting that “it is evident that the defendant is not interested in having his witness heard” — closed the Appellant's case for want of witnesses. The Appellant accordingly gave no evidence, called no witness, and adduced nothing to rebut the Respondents' case at any stage of the trial.
7. This history explains, and to a significant degree justifies, the trial Court's later observation in its judgment that “the defendant never appeared before this Court to testify.” It was not a case of a diligent defendant denied a hearing; it was a case of a defendant who, having been granted every reasonable indulgence, did not avail himself of the opportunity to controvert the case against him. I bear this squarely in mind under Issue (i) below.
D. SUMMARY OF THE EVIDENCE
8. PW1, Mercyline Nanjala Mwikulo, the deceased's widow and 1st Respondent, testified that the deceased died on 25th May 2020, three days after the accident and that she was not present at the scene. She testified that the deceased worked as a tractor driver at Nzoia Sugar Company and a separate plant company, earning Kshs 32,000/= per month, though her own recorded statement gave a figure of Kshs 25,000/= per month, and she conceded she had no document to support either figure. She testified that the deceased had three children with her, and produced birth certificates for them.
9. In cross-examination, however, PW1 made a series of highly material admissions. She conceded that, in order to obtain a birth certificate for one child so that he could enrol in school, she had used her sister Mary Tabani's identity card, her own not then being available. She further conceded, in her own words, that she had “stated lies” in her statements, and that certain other persons she had at points identified as the deceased's children were not, in fact, his children. She also conceded that she had not availed receipts for several items of special damages she had claimed, including mortuary charges, the cost of clothing and transporting the body, and a claimed grant of Kshs 45,000/=.
10. PW2, Kennedy Barasa, an eyewitness, testified that on 25th May 2020, at around 7.30 p.m., he witnessed the accident. He had himself alighted from the same motorcycle shortly before, at his home nearby, after which the deceased boarded as a pillion passenger. He testified that the motorcycle was overtaking the Appellant's tractor, which was hauling a loaded sugarcane trailer, when the tractor swerved to its right — into the lane in which the motorcycle was overtaking — while avoiding a pothole on its own side of the road, and struck the motorcycle. He testified that visibility was adequate (“it was not dark; it had started growing dark but not very dark, so one could clearly see what was happening”), that he was about ten metres from the point of impact, and that he rushed to the scene immediately. His account was not shaken in cross-examination, and no rebutting evidence was called.
11. PW3, PC Nobert Wamukota, produced the police abstract (OB 57 of 25/5/2020) as Pexhibit 1. He testified that he was not the investigating officer, had not visited the scene, and could not speak to the circumstances of the accident; he confirmed that, at the time the abstract was filled, investigations were pending and no one had yet been charged with any traffic offence.
E. THE TRIAL COURT'S JUDGMENT
12. The trial Court found the driver of the Appellant's tractor 100% liable for the accident, and held the Appellant vicariously liable. On quantum, the Court awarded pain and suffering of Kshs 50,000/=, loss of expectation of life of Kshs 200,000/=, and loss of dependency of Kshs 1,216,479.60/=, the last figure being the product of a multiplicand of Kshs 7,240.95/= (the general labourer's minimum wage under the Regulation of Wages (General) (Amendment) Order 2018, adopted in the absence of proof of the deceased's actual earnings), a multiplier of 21 years, and a dependency ratio of 2/3. It further awarded special damages, which, once correctly totalled against the exhibits actually produced come to Kshs 145,300/=.
13. Notably, in the course of assessing dependency, the trial Court itself recorded serious reservations about the reliability of the Plaintiffs' evidence, observing that a birth certificate produced for one child had been procured using another person's identity document, and describing the 1st Respondent, in terms, as having misled the Court and tendered false documents. The Court confined the dependency ratio to reflect only two children it found to be genuinely proved, rather than the larger number initially claimed.
F. THE GROUNDS OF APPEAL
14. The Appellant's nine grounds may conveniently be grouped as follows: (a) liability — that the trial Court failed to appreciate the Appellant's evidence and submissions, found him 100% liable without justification, and considered extraneous matters (grounds 1, 2, 8 and, in part, 9); and (b) quantum — that the award for loss of dependency was exaggerated, inordinately high, reached without regard to the Appellant's submissions or the precedents cited, and wrongly quantified (grounds 3, 4, 5, 6, 7 and, in part, 9).
15. The Appellant's written submissions argue that the trial Court shifted the burden of proof onto the Appellant merely because he called no evidence, relying on Statpack Industries v James Mbithi Munyao for the proposition that a Plaintiff must prove his case on a balance of probabilities whether or not the defence calls evidence. On quantum, the submissions argue that the multiplicand of Kshs 7,240.95/= was speculative for want of proof of income, and that the correct approach, following Maruja & Another v Obayo (Suing as the Administrator of the Estate of Thomas Ndaya Obayo), Civil Appeal No. 167 of 2002, [2005] KECA 202 (KLR), was to adopt a global sum; a range of Kshs 600,000/= to Kshs 800,000/= is proposed, with reliance also placed on Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another for the proposition that a 21-year multiplier was manifestly excessive.
16. The Respondents' written submissions maintain that the trial Court properly analysed the evidence of PW2 and was entitled to find the Appellant fully liable in the absence of any answering evidence, and that the multiplicand, multiplier and dependency ratio adopted were all reasonable and consistent with precedent, relying principally on Msafiri v Wangui & Another and Murby v Lobalochor.
G. PRELIMINARY MATTERS
i. The accident date relied upon in the Respondents' submissions
17. The Respondents' submissions on this appeal state that the accident occurred “on 26/5/2021.” That is the date as originally, and incorrectly, pleaded. The record shows that on the very day the Respondents opened their evidence, their own counsel applied to amend paragraph 5 of the Plaint to substitute 25/5/2020 for 26/5/2021; the amendment was made by consent, without objection from the Appellant's then counsel, and the trial thereafter proceeded, including in the Respondents' own trial submissions of October 2023, on the corrected date. The appellate submissions' reversion to the superseded date appears to be an oversight rather than a deliberate mischaracterisation, since the correct date was established in the Respondents' own favour.
(2) Citation of authority in the Appellant's submissions
18. One authority relied upon in the Appellant's written submissions is misattributed, and a second was, on the record before me, supported by the wrong document, though the citation itself is sound and I have been able to correct the position. Statpack Industries v James Mbithi Munyao, Nairobi HCCA No. 152 of 2003, is described in the submissions as a decision of the Court of Appeal; it is in fact a judgment of the High Court (Visram J, as he then was), sitting as a first appellate Court from a magistrate's Court. This does not affect the persuasive value of its reasoning on burden of proof and causation, which I have had regard to below, but the attribution should be corrected.
19. As for Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another, the document placed in the record under that citation is a ruling on an interlocutory application for stay of execution in Nyeri Civil Appeal No. 90 of 2009 — an earlier, separate appeal in the same underlying dispute, before a different Court. It is not the substantive decision the Appellant's submissions evidently intended to cite. That decision is, in fact, a genuine and frequently-cited judgment of the Court of Appeal at Nyeri: Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another, Civil Appeal No. 35 of 2014, [2014] eKLR (Visram, Koome & Odek, JJ.A), which considered loss of dependency on a second appeal and held that “the choice of a multiplier is a matter of the Court's discretion which discretion has to be exercised judiciously and with a reason,” approving the reasoning of Nambuye J (as she then was) in Cornelia Elaine Wamba v Shreeji Enterprises Ltd & Others, HCCC No. 754 of 2005. I have accordingly gone to the correct decision myself, rather than treat the citation as unsupported, and I apply it, together with other verified authority where, as will be seen, it does not assist the Appellant's specific submission that 21 years was excessive, but it does support a related and, in the event, more consequential point: that a multiplier must be the product of a reasoned choice, which this one was not.
H. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
20. As a first appellate Court, I am obliged to re-evaluate the evidence afresh and reach my own conclusions, while bearing in mind that I neither saw nor heard the witnesses (Selle v Associated Motor Boat Co Ltd [1968] EA 123). As regards quantum specifically, an appellate Court will not ordinarily interfere with a trial Court's assessment of damages unless it is shown that the Court took into account an irrelevant factor, left out of account a relevant one, applied a wrong principle, or arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate (Kemfro Africa Limited t/a Meru Express Services (1976) & Another v A.M. Lubia & Olive Lubia (No. 2) [1985] eKLR; Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 1).
ISSUES FOR DETERMINATION
21. The following issues arise:
(i) whether the finding of 100% liability against the Appellant should be disturbed;
(ii) whether the awards for pain and suffering and loss of expectation of life should be disturbed;
(iii) whether the award of special damages should be disturbed; (iv) whether the award for loss of dependency should be disturbed, and if so, what order should follow; and (v) what order should issue as to costs.
J. ANALYSIS
Issue (i): Liability
22. It is correct, as the Appellant submits, that the burden of proving negligence rests on a Plaintiff throughout, and is not relieved merely because the defence calls no evidence; even evidence that goes unchallenged must be interrogated by the Court and not accepted merely because it is unopposed. I place reliance on the decisions in Karugi & Another v Kabiya & 3 Others [1987] KLR 347; Kenya Power & Lighting Co. Ltd v Nathan Karanja Gahoka & Another [2016] eKLR). I have applied that standard here.
23. PW2 gave direct, firsthand eyewitness evidence, from a vantage point of some ten metres and in conditions he described as affording clear visibility, that the Appellant's tractor swerved out of its own lane and into the lane in which the motorcycle was lawfully overtaking, while the tractor driver was avoiding a pothole on his own side of the road. That account is coherent, detailed, and was not dislodged in cross-examination. It squarely establishes negligence on the part of the tractor's driver. A driver who swerves into an opposing or adjacent lane of traffic, whatever the reason, and collides with a vehicle lawfully using that lane, has prima facie failed to keep proper control of his vehicle and to keep a proper lookout. Once that evidence stood uncontroverted — the Appellant having, through his own default rather than any denial of opportunity, adduced nothing to meet it — the trial Court was entitled to find, on a balance of probabilities, that the case was proved. I make reference to the case of Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, where the Court of Appeal held that proof on a balance of probabilities “means a win, however narrow”.
24. The fact that the investigating police officer, PW3, could not himself say the tractor driver was to blame, and confirmed that no criminal charge had yet been laid, does not assist the Appellant. The standard of proof in a civil claim for damages is the balance of probabilities, entirely distinct from the criminal standard, and a civil Court is neither bound by, nor required to await, the outcome or even the commencement of a criminal investigation or prosecution arising from the same facts; the two proceedings serve different purposes and are governed by different rules. PW3's evidence went only to the state of the police investigation, on which he had no personal knowledge in any event, having neither visited the scene nor conducted the investigation himself; it did not, and could not, undermine PW2's direct eyewitness account.
25. I also bear in mind that the Appellant's case was closed for want of witnesses after his counsel was granted leave and a 14-day extension, which passed unused for over four months. A party who fails, without adequate explanation, to place evidence before the Court that was reasonably within his power to produce, cannot complain on appeal that his “evidence” was not appreciated, where none was in fact given; that default was entirely of the Appellant's own making, notwithstanding every reasonable indulgence extended to him, and it is against that background that PW2's unrebutted eyewitness account falls to be assessed. Grounds 1, 2, 8 and 9, insofar as they relate to liability, accordingly fail, and I decline to disturb the finding that the Appellant is 100% liable.
Issue (ii): Pain and suffering; loss of expectation of life
26. Neither the Memorandum of Appeal nor the Appellant's submissions specifically challenge the figures of Kshs 50,000/= for pain and suffering or Kshs 200,000/= for loss of expectation of life; the Appellant's quantum challenge, both as pleaded and as argued, is confined to loss of dependency. Both figures are, in any event, within the conventional range for awards of this kind in Kenyan practice, given that death was not instantaneous and followed a period of hospitalisation. I decline to disturb either award.
Issue (iii): Special damages
27. The trial Court's judgment, read in isolation, lists an item of “living tents and seats” at Kshs 36,000/=. The corresponding exhibit in the record, however, is a receipt for Kshs 3,600/=. Rather than treat this as an unexplained tenfold overstatement, I have checked the arithmetic of the judgment's own final total: adding the corrected general damages (Kshs 1,466,479.60/=) to the special damages items as receipted — feeding of mourners Kshs 65,700/= (Pexhibits 7a and 7b), coffin Kshs 30,000/= (Pexhibit 7c), tents Kshs 3,600/= (Pexhibit 7d), catering Kshs 6,000/= (Pexhibit 7e), and purchase of a cow Kshs 40,000/= on a written agreement (Pexhibit 7f) — produces exactly Kshs 1,611,779.60/=, which is the total sum the trial Court in fact certified as payable. This confirms that the figure actually used in arriving at the final award was Kshs 3,600/=, consistent with the receipt, and that the Kshs 36,000/= appearing in the itemised list is a transcription error on the face of that one line, not a sum actually awarded twice over.
28. On that corrected basis, the special damages awarded (Kshs 145,300/= in total) are each supported by a receipt or written agreement produced at trial, notwithstanding PW1's candid admission that she had not availed proof for other, unawarded items she had at one point claimed (mortuary charges, the cost of clothing and transporting the body, and a Kshs 45,000/= grant fee). It is to the trial Court's credit that those unproved items were not, in fact, included in the final award, consistently with the requirement that special damages be specifically pleaded and strictly proved (Maruja & Another v Obayo, Civil Appeal No. 167 of 2002, [2005] KECA 202 (KLR)). I decline to disturb the award of special damages, save to direct that the record be corrected to reflect Kshs 3,600/=, not Kshs 36,000/=, against the item for tents, so that the judgment is internally consistent on its face.
Issue (iv): Loss of dependency
29. This is where the appeal succeeds, in substantial part. I address the age of the deceased, the number and identity of his genuine dependants, and the resulting computation, in turn.
(a) The deceased's age
30. The record discloses three different figures for the deceased's age. The Plaint pleaded 35 years; that, however, is a pleading, not evidence, and carries no independent weight once the trial evidence is examined — it is what one party asserted before any evidence was called, not a finding based on anything. What remains are two genuine evidentiary sources, and they conflict: the death certificate (Pexhibit 3), on which the Respondents' trial submissions relied to propose an age of 30, and PW1's own sworn testimony, given under cross-examination, that her husband “died aged 38 years, sorry he was 39 years.” The trial Court's multiplier of 21 years is arithmetically consistent with an assumed working life to 60 calculated from the pleaded age of 35 (60 minus 35 equals 25, discounted by 4 years for contingencies, giving 21); it therefore appears the trial Court proceeded on a figure that was not, in truth, evidence at all, without engaging with either of the two figures that were.
31. I prefer PW1's evidence. A death certificate records the age reported to the registrar, ordinarily by whoever presents the death for registration in the immediate aftermath of the death; nothing on this record identifies who supplied that information or on what basis, and entries of this kind are not infrequently approximate, particularly where made under the stress of sudden bereavement. PW1, by contrast, was the deceased's wife of many years, who bore his children and gave her evidence on oath, correcting herself in the course of doing so (“died aged 38 years, sorry he was 39 years”) in a manner more consistent with a witness recalling an actual fact than reciting a rehearsed figure. Where an unexplained documentary entry conflicts with the direct, personally-grounded testimony of the person with the closest possible knowledge of the deceased, and there is no material on record to test or corroborate the document's own source, the document is not necessarily to be preferred merely because it is a document. In Ainu Shamsi Hauliers Limited v Moses Sakwa & Another [2021] eKLR, where a death certificate was accepted as to age only because there was no other reliable evidence to weigh against it — a position materially different from this case, where a considered, corrected, sworn account is available). I find, on a balance of probabilities, that the deceased was 39 years old at the time of his death.
32. This finding does more than correct a number; it allows the multiplier itself to be fixed on a reasoned basis, which the trial Court's own approach did not achieve. The Court of Appeal has held that “the choice of a multiplier is a matter of the Court's discretion which discretion has to be exercised judiciously and with a reason” (Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another, Civil Appeal No. 35 of 2014, [2014] eKLR). Applying the same structure the trial Court itself evidently used — a working life to 60, discounted by 4 years to allow for the ordinary contingencies of life and employment — but to the properly-found age of 39 rather than the unproved pleaded age of 35, gives a raw span of 21 years (60 minus 39), and, after the same 4-year discount, a multiplier of 17 years.
(b) The dependants: applying the credibility findings to the right facts
33. The trial Court found, and PW1 herself admitted, that she had procured a birth certificate using her sister's identity document, and that she had “stated lies” in her sworn statements as to which children were, and were not, the deceased's. That is a serious matter, but it does not follow that every part of PW1's evidence must be rejected wholesale; it is a well-established feature of the common law of evidence, applicable with equal force in this jurisdiction, that a witness found to have lied on one matter may nonetheless be believed on another, and that a Court may accept part of a witness's account while rejecting the rest, according to what is independently corroborated and what is not. PW2's evidence on liability, for instance, is wholly independent of PW1's credibility and is unaffected by it. The task is to identify precisely which part of PW1's evidence the finding of dishonesty actually touches, and which it does not.
34. PW1 consistently named three children throughout her evidence, in both examination-in-chief and cross-examination: Levy, Hilda and Arman. It was only in the course of cross-examination that further names — Faith, Paustine and Jared Musebe — were raised, and it was those additional names, and only those, that PW1 disclaimed, stating candidly that she had “stated lies” in referring to them as the deceased's children. As to Arman, PW1's admitted irregularity was in how his birth certificate was procured — she used her sister's identity card because her own was not then available — not in who his parents were; the certificate itself, on the trial Court's own account of it, names the deceased as father, and nothing on the record disputes that PW1 is his mother. An irregularity in the administrative process of obtaining a document is a different thing from a falsehood as to parentage, and the former cannot be allowed to cast doubt on a fact, paternity, that the document, read correctly, in fact confirms, and that was never itself challenged.
35. On this footing, the credibility finding properly extends to excluding Faith, Paustine and Jared Musebe as dependants, which PW1 herself invited, but does not extend to excluding Arman, whose position is different in kind. I am satisfied that the deceased left three genuine dependent children — Levy, Hilda and Arman — on PW1's own consistent and, as to these three, uncontradicted testimony. I note that the trial Court's own finding of two dependent children, described as “Hilda Nabalayo” and “Mercy Majani”, corresponds to neither this record nor to any names PW1 herself gave in evidence in this file; that finding appears, with respect, to have been transposed from the evidence in the consolidated file, Civil Case No. E252 of 2021, rather than drawn from the evidence properly before the trial Court in this matter, and I do not adopt it.
(c) Multiplicand, dependency ratio, and computation
36. On multiplicand, I see no basis to disturb the trial Court's resort to the statutory minimum wage, in the absence of any reliable proof of the deceased's actual earnings; PW1's own figures were inconsistent (Kshs 32,000/= given orally against Kshs 25,000/= in her written statement) and unsupported by any document. That approach is well supported: where there is no reliable evidence of a deceased's actual income, Courts have repeatedly resorted to the applicable statutory minimum wage as the multiplicand, rather than either accept an unproved figure or abandon the multiplier method altogether and I am persuaded by the decision in Kathuni v Kinyari (Sued as the Legal Representative of the Estate of Kelvin Lugendi Gibendi, Deceased), Civil Appeal No. E023 of 2022, [2024] KEHC 1458 (KLR), holding that, in the absence of evidence of actual earnings, “the correct approach would have been to assess the income by applying the minimum wage for unskilled workers or to apply the global award”; Ngania & 2 Others v Adulu (Suing as the Legal Representative of the Estate of Clinton Morgan Kiprotich), Civil Appeal No. E005 of 2023, [2024] KEHC 4005 (KLR), upholding a multiplicand pegged to the Regulation of Wages (General) (Amendment) Order for want of proof of income). The figure of Kshs 7,240.95/= is, in any event, very close to the multiplicand independently applied on comparable facts in Kimathi v Kithinji & Another, Civil Appeal No. E210 of 2023, [2024] KEHC 14533 (KLR) (a multiplicand of Kshs 7,241/=). I retain it.
37. On dependency ratio, the conventional two-thirds applied for a household comprising a spouse and dependent minor children is well established and was not separately challenged as a matter of principle. It is unaffected by whether the household in fact had two or three qualifying children, since the ratio reflects the proportion of the deceased's earnings notionally devoted to the family unit as a whole, and not a sum divided per child. I retain it.
38. The elements of the calculation are accordingly: a multiplicand of Kshs 7,240.95/=, a multiplier of 17 years, and a dependency ratio of 2/3. The resulting award for loss of dependency is Kshs 7,240.95 x 12 x 17 x 2/3 = Kshs 984,769.20/=. I set aside the trial Court's award of Kshs 1,216,479.60/= and substitute an award of Kshs 984,769.20/=. I have had regard to the global-sum awards upheld in Msafiri v Wangui & Another, Civil Appeal No. E1066 of 2023, [2025] KEHC 9137 (KLR), and Murby v Lobalochor, Civil Appeal No. E033 of 2024, [2025] KEHC 15185 (KLR), both relied upon by the Respondents, but have not adopted either figure as a benchmark: both concerned deceased persons of a different, undisputed age, with dependants whose number was not in question, and neither involved a finding that the claimant's own evidence on dependency included admitted falsehoods. The figure I have arrived at is derived from this record, not imported from either of those cases.
Issue (v): Costs
39. The appeal succeeds in substantial part. Liability is upheld in full, and so are the awards for pain and suffering, loss of expectation of life, and special damages; the award for loss of dependency is reduced, though not to the extent the Appellant sought. In those circumstances, I consider it just that each party bear its own costs of this appeal. The costs of the suit in the Court below, as awarded by the trial Court, are not disturbed, save that they shall now be computed by reference to the substituted award.
K. FINAL ORDERS
a) The appeal is allowed in part.
b) The finding that the Appellant is 100% liable for the accident of 25th May 2020 is upheld.
c) The awards of Kshs 50,000/= for pain and suffering, Kshs 200,000/= for loss of expectation of life, and Kshs 145,300/= for special damages (the last corrected to reflect Kshs 3,600/=, not Kshs 36,000/=, for the item of tents) are upheld.
d) The award of Kshs 1,216,479.60/= for loss of dependency is set aside and substituted with an award of Kshs 984,769.20/=, calculated on a multiplicand of Kshs 7,240.95/=, a mu
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1. This is an appeal against the judgment and decree of the Principal Magistrate's Court at Kimilili (Hon. Gladys Adhiambo, SPM) delivered on 9th February 2024 in Kimilili SPM Civil Case No. E253 of 2021, which was heard together, by consent of the parties, with the related Kimilili SPM Civil Case No. E252 of 2021, both suits arising from the same road traffic accident. The trial Court found the Appellant (the Defendant below) 100% liable for the accident, and made the following awards: pain and suffering, Kshs 50,000/=; loss of expectation of life, Kshs 200,000/=; loss of dependency, Kshs 1,216,479.60/=; and special damages, Kshs 145,300/=, together with costs and interest, yielding a total award of Kshs 1,611,779.60/=.
BACKGROUND
2. The 1st and 2nd Respondents, suing as administrators and personal representatives of the estate of Stephen Musebe Wasike (deceased), pleaded that on 25th May 2020, along the Naitiri-Wabukhonyi murram road at Suppernet area, the deceased was a pillion passenger on motorcycle registration number KMCJ 815A, ridden by one Alex Ndombi Barasa, when the Appellant's motor tractor, registration number KTCB 079Z with trailer ZC9550, negligently swerved into the lane in which the motorcycle was overtaking, colliding with it. The rider died on the spot; the deceased died three days later while undergoing treatment at Webuye Sub-County Hospital.
3. The Plaint as originally filed pleaded the accident date as 26th May 2021. This was amended at trial, by consent, to 25th May 2020, which is the date borne out by the police abstract and by the evidence of every witness who spoke to it.
4. The suit sought general and special damages under the Fatal Accidents Act and the Law Reform Act. The Appellant entered appearance and filed a defence denying negligence, but, never adduced any evidence in support of that defence.
PROCEDURAL HISTORY AT TRIAL
5. The Appellant initially failed to enter appearance, and an ex parte interlocutory judgment on liability was entered against him on 9th September 2022. That judgment was set aside by consent on 15th December 2022, on terms that the Appellant pay the Respondents thrown-away costs of Kshs 8,000/=, whereupon the matter proceeded to a fully defended hearing, with Civil Case No. E252 of 2021 following the same procedural steps throughout by consent.
6. The Respondents called three witnesses and closed their case on 29th June 2023. The Appellant's counsel was thereupon granted leave, without objection, to file witness statements within 14 days. No statements were filed. On 5th October 2023, some four months later, and after the Appellant's counsel sought a further adjournment on the day fixed for the defence hearing, the trial Court — noting that “it is evident that the defendant is not interested in having his witness heard” — closed the Appellant's case for want of witnesses. The Appellant accordingly gave no evidence, called no witness, and adduced nothing to rebut the Respondents' case at any stage of the trial.
7. This history explains, and to a significant degree justifies, the trial Court's later observation in its judgment that “the defendant never appeared before this Court to testify.” It was not a case of a diligent defendant denied a hearing; it was a case of a defendant who, having been granted every reasonable indulgence, did not avail himself of the opportunity to controvert the case against him. I bear this squarely in mind under Issue (i) below.
D. SUMMARY OF THE EVIDENCE
8. PW1, Mercyline Nanjala Mwikulo, the deceased's widow and 1st Respondent, testified that the deceased died on 25th May 2020, three days after the accident and that she was not present at the scene. She testified that the deceased worked as a tractor driver at Nzoia Sugar Company and a separate plant company, earning Kshs 32,000/= per month, though her own recorded statement gave a figure of Kshs 25,000/= per month, and she conceded she had no document to support either figure. She testified that the deceased had three children with her, and produced birth certificates for them.
9. In cross-examination, however, PW1 made a series of highly material admissions. She conceded that, in order to obtain a birth certificate for one child so that he could enrol in school, she had used her sister Mary Tabani's identity card, her own not then being available. She further conceded, in her own words, that she had “stated lies” in her statements, and that certain other persons she had at points identified as the deceased's children were not, in fact, his children. She also conceded that she had not availed receipts for several items of special damages she had claimed, including mortuary charges, the cost of clothing and transporting the body, and a claimed grant of Kshs 45,000/=.
10. PW2, Kennedy Barasa, an eyewitness, testified that on 25th May 2020, at around 7.30 p.m., he witnessed the accident. He had himself alighted from the same motorcycle shortly before, at his home nearby, after which the deceased boarded as a pillion passenger. He testified that the motorcycle was overtaking the Appellant's tractor, which was hauling a loaded sugarcane trailer, when the tractor swerved to its right — into the lane in which the motorcycle was overtaking — while avoiding a pothole on its own side of the road, and struck the motorcycle. He testified that visibility was adequate (“it was not dark; it had started growing dark but not very dark, so one could clearly see what was happening”), that he was about ten metres from the point of impact, and that he rushed to the scene immediately. His account was not shaken in cross-examination, and no rebutting evidence was called.
11. PW3, PC Nobert Wamukota, produced the police abstract (OB 57 of 25/5/2020) as Pexhibit 1. He testified that he was not the investigating officer, had not visited the scene, and could not speak to the circumstances of the accident; he confirmed that, at the time the abstract was filled, investigations were pending and no one had yet been charged with any traffic offence.
E. THE TRIAL COURT'S JUDGMENT
12. The trial Court found the driver of the Appellant's tractor 100% liable for the accident, and held the Appellant vicariously liable. On quantum, the Court awarded pain and suffering of Kshs 50,000/=, loss of expectation of life of Kshs 200,000/=, and loss of dependency of Kshs 1,216,479.60/=, the last figure being the product of a multiplicand of Kshs 7,240.95/= (the general labourer's minimum wage under the Regulation of Wages (General) (Amendment) Order 2018, adopted in the absence of proof of the deceased's actual earnings), a multiplier of 21 years, and a dependency ratio of 2/3. It further awarded special damages, which, once correctly totalled against the exhibits actually produced come to Kshs 145,300/=.
13. Notably, in the course of assessing dependency, the trial Court itself recorded serious reservations about the reliability of the Plaintiffs' evidence, observing that a birth certificate produced for one child had been procured using another person's identity document, and describing the 1st Respondent, in terms, as having misled the Court and tendered false documents. The Court confined the dependency ratio to reflect only two children it found to be genuinely proved, rather than the larger number initially claimed.
F. THE GROUNDS OF APPEAL
14. The Appellant's nine grounds may conveniently be grouped as follows: (a) liability — that the trial Court failed to appreciate the Appellant's evidence and submissions, found him 100% liable without justification, and considered extraneous matters (grounds 1, 2, 8 and, in part, 9); and (b) quantum — that the award for loss of dependency was exaggerated, inordinately high, reached without regard to the Appellant's submissions or the precedents cited, and wrongly quantified (grounds 3, 4, 5, 6, 7 and, in part, 9).
15. The Appellant's written submissions argue that the trial Court shifted the burden of proof onto the Appellant merely because he called no evidence, relying on Statpack Industries v James Mbithi Munyao for the proposition that a Plaintiff must prove his case on a balance of probabilities whether or not the defence calls evidence. On quantum, the submissions argue that the multiplicand of Kshs 7,240.95/= was speculative for want of proof of income, and that the correct approach, following Maruja & Another v Obayo (Suing as the Administrator of the Estate of Thomas Ndaya Obayo), Civil Appeal No. 167 of 2002, [2005] KECA 202 (KLR), was to adopt a global sum; a range of Kshs 600,000/= to Kshs 800,000/= is proposed, with reliance also placed on Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another for the proposition that a 21-year multiplier was manifestly excessive.
16. The Respondents' written submissions maintain that the trial Court properly analysed the evidence of PW2 and was entitled to find the Appellant fully liable in the absence of any answering evidence, and that the multiplicand, multiplier and dependency ratio adopted were all reasonable and consistent with precedent, relying principally on Msafiri v Wangui & Another and Murby v Lobalochor.
G. PRELIMINARY MATTERS
i. The accident date relied upon in the Respondents' submissions
17. The Respondents' submissions on this appeal state that the accident occurred “on 26/5/2021.” That is the date as originally, and incorrectly, pleaded. The record shows that on the very day the Respondents opened their evidence, their own counsel applied to amend paragraph 5 of the Plaint to substitute 25/5/2020 for 26/5/2021; the amendment was made by consent, without objection from the Appellant's then counsel, and the trial thereafter proceeded, including in the Respondents' own trial submissions of October 2023, on the corrected date. The appellate submissions' reversion to the superseded date appears to be an oversight rather than a deliberate mischaracterisation, since the correct date was established in the Respondents' own favour.
(2) Citation of authority in the Appellant's submissions
18. One authority relied upon in the Appellant's written submissions is misattributed, and a second was, on the record before me, supported by the wrong document, though the citation itself is sound and I have been able to correct the position. Statpack Industries v James Mbithi Munyao, Nairobi HCCA No. 152 of 2003, is described in the submissions as a decision of the Court of Appeal; it is in fact a judgment of the High Court (Visram J, as he then was), sitting as a first appellate Court from a magistrate's Court. This does not affect the persuasive value of its reasoning on burden of proof and causation, which I have had regard to below, but the attribution should be corrected.
19. As for Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another, the document placed in the record under that citation is a ruling on an interlocutory application for stay of execution in Nyeri Civil Appeal No. 90 of 2009 — an earlier, separate appeal in the same underlying dispute, before a different Court. It is not the substantive decision the Appellant's submissions evidently intended to cite. That decision is, in fact, a genuine and frequently-cited judgment of the Court of Appeal at Nyeri: Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another, Civil Appeal No. 35 of 2014, [2014] eKLR (Visram, Koome & Odek, JJ.A), which considered loss of dependency on a second appeal and held that “the choice of a multiplier is a matter of the Court's discretion which discretion has to be exercised judiciously and with a reason,” approving the reasoning of Nambuye J (as she then was) in Cornelia Elaine Wamba v Shreeji Enterprises Ltd & Others, HCCC No. 754 of 2005. I have accordingly gone to the correct decision myself, rather than treat the citation as unsupported, and I apply it, together with other verified authority where, as will be seen, it does not assist the Appellant's specific submission that 21 years was excessive, but it does support a related and, in the event, more consequential point: that a multiplier must be the product of a reasoned choice, which this one was not.
H. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
20. As a first appellate Court, I am obliged to re-evaluate the evidence afresh and reach my own conclusions, while bearing in mind that I neither saw nor heard the witnesses (Selle v Associated Motor Boat Co Ltd [1968] EA 123). As regards quantum specifically, an appellate Court will not ordinarily interfere with a trial Court's assessment of damages unless it is shown that the Court took into account an irrelevant factor, left out of account a relevant one, applied a wrong principle, or arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate (Kemfro Africa Limited t/a Meru Express Services (1976) & Another v A.M. Lubia & Olive Lubia (No. 2) [1985] eKLR; Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 1).
ISSUES FOR DETERMINATION
21. The following issues arise:
(i) whether the finding of 100% liability against the Appellant should be disturbed;
(ii) whether the awards for pain and suffering and loss of expectation of life should be disturbed;
(iii) whether the award of special damages should be disturbed; (iv) whether the award for loss of dependency should be disturbed, and if so, what order should follow; and (v) what order should issue as to costs.
J. ANALYSIS
Issue (i): Liability
22. It is correct, as the Appellant submits, that the burden of proving negligence rests on a Plaintiff throughout, and is not relieved merely because the defence calls no evidence; even evidence that goes unchallenged must be interrogated by the Court and not accepted merely because it is unopposed. I place reliance on the decisions in Karugi & Another v Kabiya & 3 Others [1987] KLR 347; Kenya Power & Lighting Co. Ltd v Nathan Karanja Gahoka & Another [2016] eKLR). I have applied that standard here.
23. PW2 gave direct, firsthand eyewitness evidence, from a vantage point of some ten metres and in conditions he described as affording clear visibility, that the Appellant's tractor swerved out of its own lane and into the lane in which the motorcycle was lawfully overtaking, while the tractor driver was avoiding a pothole on his own side of the road. That account is coherent, detailed, and was not dislodged in cross-examination. It squarely establishes negligence on the part of the tractor's driver. A driver who swerves into an opposing or adjacent lane of traffic, whatever the reason, and collides with a vehicle lawfully using that lane, has prima facie failed to keep proper control of his vehicle and to keep a proper lookout. Once that evidence stood uncontroverted — the Appellant having, through his own default rather than any denial of opportunity, adduced nothing to meet it — the trial Court was entitled to find, on a balance of probabilities, that the case was proved. I make reference to the case of Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, where the Court of Appeal held that proof on a balance of probabilities “means a win, however narrow”.
24. The fact that the investigating police officer, PW3, could not himself say the tractor driver was to blame, and confirmed that no criminal charge had yet been laid, does not assist the Appellant. The standard of proof in a civil claim for damages is the balance of probabilities, entirely distinct from the criminal standard, and a civil Court is neither bound by, nor required to await, the outcome or even the commencement of a criminal investigation or prosecution arising from the same facts; the two proceedings serve different purposes and are governed by different rules. PW3's evidence went only to the state of the police investigation, on which he had no personal knowledge in any event, having neither visited the scene nor conducted the investigation himself; it did not, and could not, undermine PW2's direct eyewitness account.
25. I also bear in mind that the Appellant's case was closed for want of witnesses after his counsel was granted leave and a 14-day extension, which passed unused for over four months. A party who fails, without adequate explanation, to place evidence before the Court that was reasonably within his power to produce, cannot complain on appeal that his “evidence” was not appreciated, where none was in fact given; that default was entirely of the Appellant's own making, notwithstanding every reasonable indulgence extended to him, and it is against that background that PW2's unrebutted eyewitness account falls to be assessed. Grounds 1, 2, 8 and 9, insofar as they relate to liability, accordingly fail, and I decline to disturb the finding that the Appellant is 100% liable.
Issue (ii): Pain and suffering; loss of expectation of life
26. Neither the Memorandum of Appeal nor the Appellant's submissions specifically challenge the figures of Kshs 50,000/= for pain and suffering or Kshs 200,000/= for loss of expectation of life; the Appellant's quantum challenge, both as pleaded and as argued, is confined to loss of dependency. Both figures are, in any event, within the conventional range for awards of this kind in Kenyan practice, given that death was not instantaneous and followed a period of hospitalisation. I decline to disturb either award.
Issue (iii): Special damages
27. The trial Court's judgment, read in isolation, lists an item of “living tents and seats” at Kshs 36,000/=. The corresponding exhibit in the record, however, is a receipt for Kshs 3,600/=. Rather than treat this as an unexplained tenfold overstatement, I have checked the arithmetic of the judgment's own final total: adding the corrected general damages (Kshs 1,466,479.60/=) to the special damages items as receipted — feeding of mourners Kshs 65,700/= (Pexhibits 7a and 7b), coffin Kshs 30,000/= (Pexhibit 7c), tents Kshs 3,600/= (Pexhibit 7d), catering Kshs 6,000/= (Pexhibit 7e), and purchase of a cow Kshs 40,000/= on a written agreement (Pexhibit 7f) — produces exactly Kshs 1,611,779.60/=, which is the total sum the trial Court in fact certified as payable. This confirms that the figure actually used in arriving at the final award was Kshs 3,600/=, consistent with the receipt, and that the Kshs 36,000/= appearing in the itemised list is a transcription error on the face of that one line, not a sum actually awarded twice over.
28. On that corrected basis, the special damages awarded (Kshs 145,300/= in total) are each supported by a receipt or written agreement produced at trial, notwithstanding PW1's candid admission that she had not availed proof for other, unawarded items she had at one point claimed (mortuary charges, the cost of clothing and transporting the body, and a Kshs 45,000/= grant fee). It is to the trial Court's credit that those unproved items were not, in fact, included in the final award, consistently with the requirement that special damages be specifically pleaded and strictly proved (Maruja & Another v Obayo, Civil Appeal No. 167 of 2002, [2005] KECA 202 (KLR)). I decline to disturb the award of special damages, save to direct that the record be corrected to reflect Kshs 3,600/=, not Kshs 36,000/=, against the item for tents, so that the judgment is internally consistent on its face.
Issue (iv): Loss of dependency
29. This is where the appeal succeeds, in substantial part. I address the age of the deceased, the number and identity of his genuine dependants, and the resulting computation, in turn.
(a) The deceased's age
30. The record discloses three different figures for the deceased's age. The Plaint pleaded 35 years; that, however, is a pleading, not evidence, and carries no independent weight once the trial evidence is examined — it is what one party asserted before any evidence was called, not a finding based on anything. What remains are two genuine evidentiary sources, and they conflict: the death certificate (Pexhibit 3), on which the Respondents' trial submissions relied to propose an age of 30, and PW1's own sworn testimony, given under cross-examination, that her husband “died aged 38 years, sorry he was 39 years.” The trial Court's multiplier of 21 years is arithmetically consistent with an assumed working life to 60 calculated from the pleaded age of 35 (60 minus 35 equals 25, discounted by 4 years for contingencies, giving 21); it therefore appears the trial Court proceeded on a figure that was not, in truth, evidence at all, without engaging with either of the two figures that were.
31. I prefer PW1's evidence. A death certificate records the age reported to the registrar, ordinarily by whoever presents the death for registration in the immediate aftermath of the death; nothing on this record identifies who supplied that information or on what basis, and entries of this kind are not infrequently approximate, particularly where made under the stress of sudden bereavement. PW1, by contrast, was the deceased's wife of many years, who bore his children and gave her evidence on oath, correcting herself in the course of doing so (“died aged 38 years, sorry he was 39 years”) in a manner more consistent with a witness recalling an actual fact than reciting a rehearsed figure. Where an unexplained documentary entry conflicts with the direct, personally-grounded testimony of the person with the closest possible knowledge of the deceased, and there is no material on record to test or corroborate the document's own source, the document is not necessarily to be preferred merely because it is a document. In Ainu Shamsi Hauliers Limited v Moses Sakwa & Another [2021] eKLR, where a death certificate was accepted as to age only because there was no other reliable evidence to weigh against it — a position materially different from this case, where a considered, corrected, sworn account is available). I find, on a balance of probabilities, that the deceased was 39 years old at the time of his death.
32. This finding does more than correct a number; it allows the multiplier itself to be fixed on a reasoned basis, which the trial Court's own approach did not achieve. The Court of Appeal has held that “the choice of a multiplier is a matter of the Court's discretion which discretion has to be exercised judiciously and with a reason” (Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another, Civil Appeal No. 35 of 2014, [2014] eKLR). Applying the same structure the trial Court itself evidently used — a working life to 60, discounted by 4 years to allow for the ordinary contingencies of life and employment — but to the properly-found age of 39 rather than the unproved pleaded age of 35, gives a raw span of 21 years (60 minus 39), and, after the same 4-year discount, a multiplier of 17 years.
(b) The dependants: applying the credibility findings to the right facts
33. The trial Court found, and PW1 herself admitted, that she had procured a birth certificate using her sister's identity document, and that she had “stated lies” in her sworn statements as to which children were, and were not, the deceased's. That is a serious matter, but it does not follow that every part of PW1's evidence must be rejected wholesale; it is a well-established feature of the common law of evidence, applicable with equal force in this jurisdiction, that a witness found to have lied on one matter may nonetheless be believed on another, and that a Court may accept part of a witness's account while rejecting the rest, according to what is independently corroborated and what is not. PW2's evidence on liability, for instance, is wholly independent of PW1's credibility and is unaffected by it. The task is to identify precisely which part of PW1's evidence the finding of dishonesty actually touches, and which it does not.
34. PW1 consistently named three children throughout her evidence, in both examination-in-chief and cross-examination: Levy, Hilda and Arman. It was only in the course of cross-examination that further names — Faith, Paustine and Jared Musebe — were raised, and it was those additional names, and only those, that PW1 disclaimed, stating candidly that she had “stated lies” in referring to them as the deceased's children. As to Arman, PW1's admitted irregularity was in how his birth certificate was procured — she used her sister's identity card because her own was not then available — not in who his parents were; the certificate itself, on the trial Court's own account of it, names the deceased as father, and nothing on the record disputes that PW1 is his mother. An irregularity in the administrative process of obtaining a document is a different thing from a falsehood as to parentage, and the former cannot be allowed to cast doubt on a fact, paternity, that the document, read correctly, in fact confirms, and that was never itself challenged.
35. On this footing, the credibility finding properly extends to excluding Faith, Paustine and Jared Musebe as dependants, which PW1 herself invited, but does not extend to excluding Arman, whose position is different in kind. I am satisfied that the deceased left three genuine dependent children — Levy, Hilda and Arman — on PW1's own consistent and, as to these three, uncontradicted testimony. I note that the trial Court's own finding of two dependent children, described as “Hilda Nabalayo” and “Mercy Majani”, corresponds to neither this record nor to any names PW1 herself gave in evidence in this file; that finding appears, with respect, to have been transposed from the evidence in the consolidated file, Civil Case No. E252 of 2021, rather than drawn from the evidence properly before the trial Court in this matter, and I do not adopt it.
(c) Multiplicand, dependency ratio, and computation
36. On multiplicand, I see no basis to disturb the trial Court's resort to the statutory minimum wage, in the absence of any reliable proof of the deceased's actual earnings; PW1's own figures were inconsistent (Kshs 32,000/= given orally against Kshs 25,000/= in her written statement) and unsupported by any document. That approach is well supported: where there is no reliable evidence of a deceased's actual income, Courts have repeatedly resorted to the applicable statutory minimum wage as the multiplicand, rather than either accept an unproved figure or abandon the multiplier method altogether and I am persuaded by the decision in Kathuni v Kinyari (Sued as the Legal Representative of the Estate of Kelvin Lugendi Gibendi, Deceased), Civil Appeal No. E023 of 2022, [2024] KEHC 1458 (KLR), holding that, in the absence of evidence of actual earnings, “the correct approach would have been to assess the income by applying the minimum wage for unskilled workers or to apply the global award”; Ngania & 2 Others v Adulu (Suing as the Legal Representative of the Estate of Clinton Morgan Kiprotich), Civil Appeal No. E005 of 2023, [2024] KEHC 4005 (KLR), upholding a multiplicand pegged to the Regulation of Wages (General) (Amendment) Order for want of proof of income). The figure of Kshs 7,240.95/= is, in any event, very close to the multiplicand independently applied on comparable facts in Kimathi v Kithinji & Another, Civil Appeal No. E210 of 2023, [2024] KEHC 14533 (KLR) (a multiplicand of Kshs 7,241/=). I retain it.
37. On dependency ratio, the conventional two-thirds applied for a household comprising a spouse and dependent minor children is well established and was not separately challenged as a matter of principle. It is unaffected by whether the household in fact had two or three qualifying children, since the ratio reflects the proportion of the deceased's earnings notionally devoted to the family unit as a whole, and not a sum divided per child. I retain it.
38. The elements of the calculation are accordingly: a multiplicand of Kshs 7,240.95/=, a multiplier of 17 years, and a dependency ratio of 2/3. The resulting award for loss of dependency is Kshs 7,240.95 x 12 x 17 x 2/3 = Kshs 984,769.20/=. I set aside the trial Court's award of Kshs 1,216,479.60/= and substitute an award of Kshs 984,769.20/=. I have had regard to the global-sum awards upheld in Msafiri v Wangui & Another, Civil Appeal No. E1066 of 2023, [2025] KEHC 9137 (KLR), and Murby v Lobalochor, Civil Appeal No. E033 of 2024, [2025] KEHC 15185 (KLR), both relied upon by the Respondents, but have not adopted either figure as a benchmark: both concerned deceased persons of a different, undisputed age, with dependants whose number was not in question, and neither involved a finding that the claimant's own evidence on dependency included admitted falsehoods. The figure I have arrived at is derived from this record, not imported from either of those cases.
Issue (v): Costs
39. The appeal succeeds in substantial part. Liability is upheld in full, and so are the awards for pain and suffering, loss of expectation of life, and special damages; the award for loss of dependency is reduced, though not to the extent the Appellant sought. In those circumstances, I consider it just that each party bear its own costs of this appeal. The costs of the suit in the Court below, as awarded by the trial Court, are not disturbed, save that they shall now be computed by reference to the substituted award.
K. FINAL ORDERS
a) The appeal is allowed in part.
b) The finding that the Appellant is 100% liable for the accident of 25th May 2020 is upheld.
c) The awards of Kshs 50,000/= for pain and suffering, Kshs 200,000/= for loss of expectation of life, and Kshs 145,300/= for special damages (the last corrected to reflect Kshs 3,600/=, not Kshs 36,000/=, for the item of tents) are upheld.
d) The award of Kshs 1,216,479.60/= for loss of dependency is set aside and substituted with an award of Kshs 984,769.20/=, calculated on a multiplicand of Kshs 7,240.95/=, a mu
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