' This is an appeal from the Judgment and decree of Hon. G.N. Barasa (RM) dated 1.04.2025 arising from Kisii CMCC No. E955 of 202022. The lower court heard the parties and proceeded to render the impugned judgment in the following terms: Liability 100%
Loss of expectation of life Ksh 150,000/=
Loss of dependency Ksh. 6,720,000/=
Special damages Ksh. 323,550/=
Pain and suffering Ksh. 20,000/=
Total Ksh. 7,213,520/=
The Appellants were defendants in the lower court. The Respondents were administrators of the estate of Daniel Mokoro Munga (deceased). The appeal is on both liability and quantum. The appellants raised the following grounds of appeal:
The trial magistrate proceeded on wrong principles to adopt an amount of Ksh. 60,000/= as the deceased’s monthly net income for assessment of damages for loss of dependency thereby arriving at a figure so inordinately high that manifestly represents an entirely erroneous estimate.
The trial magistrate erred in law and fact to fix the deceased’s monthly income on the basis of an unverified contract contrary to the evidence showing no such contract existed.
The trial magistrate erred in law and fact by failing to properly consider and analyze the evidence on whether the deceased had employment and ascertainable income thereby arriving at wrong conclusions on the deceased’s income.
The trial magistrate erred in law and fact to adopt 14 years as a multiplier thereby failing to consider other vicissitudes of life that ought to be considered.
The amount of damages awarded by the trial magistrate are against public interest and prevailing economic conditions.
The trial magistrate erred in law and fact to award special damages of Ksh. 323,550/= pleaded without proof that the deceased’s representatives incurred such expense.
The trial magistrate erred in law and fact to hold appellants 100% liable for the traffic accident contrary to the evidence showing that the deceased contributed to occurrence of the accident.
In summary, the appellants raised several grounds in the appeal and contended that the lower court erred in liability and quantum of damages. This was mainly on the multiplier of 14 years and multiplicand of Ksh. 60,000/=. This they averred were based on wrong principles and unsupported by evidence including an unverified employment contract. The other issue they raised was award of unproven special damages of Ksh. 323,550/=.
The appeal raised three issues, that is: Liability
Quantum of general damages
Special damages
Pleadings
The Respondents filed a Plaint dated 30.11.2022, seeking both general and special damages arising from a road traffic accident that occurred on 09.06.2021 along the Kisii–Keroka road at Keumbu. In the said plaint, the Respondents prayed for the following special damages: Funeral expenses ………………………………..……….. Ksh. 30,000/=
Cost of letters of administration ………………………….. Ksh. 35,000/=
Catering services …………………………………...…….. Ksh. 150,000/=
Purchases of branded drinking water ……..…………….... Ksh. 20,000/=
Purchase of flowers and paying of coloured eulogies ……….. Ksh. 42,000/=
Purchase of coffins, hiring hearse and lowering gear ……….. Ksh.46,000/=
Motor vehicle search …………………………………….….. Ksh. 550/=
Total Ksh.325,550/=
The Respondents set forth the particulars of negligence of motor vehicle registration number KCM 897T. They sought general damages under the Law Reform Act and the Fatal Accidents Act, as well as damages for loss of consortium.
It was pleaded that the deceased was survived by a widow and two children, aged 13 and 7 years. The deceased, aged 46 years at the time of his death, was described as a businessman and college tutor, leading a happy and vigorous life prior to the accident. It was further pleaded that he suffered excruciating pain before his demise.
The Appellants filed a defence dated 08.02.2023, in which they denied driving the motor vehicle recklessly or negligently as alleged. They instead attributed the occurrence of the accident to the negligence of the deceased, setting out particulars thereof in their defence. The particulars of negligence pleaded were rather hilarious and peculiar, alleging that the deceased was walking on the highway instead of areas reserved for pedestrians, and further, that he failed to take due care for his own safety and had hung onto a moving motor vehicle at the time of the accident.
Evidence
The first Respondent testified first, and the court permitted cross-examination of the witnesses. She stated that she was the widow of the deceased and produced exhibits 1 to 19 in support of her case. She testified that she was below forty years of age and had lost consortium as a result of the deceased’s death.
Upon being recalled for cross-examination, she stated that the deceased was a part-time lecturer at Kisii University and also had a letter of engagement from Angelic Teachers College. She conceded that she did not have an official letter of permanent employment or any payslips, but only the contract of service. She also produced the deceased’s academic certificates.
Regarding funeral expenses, she testified that there were no external contributions toward the burial. She denied the assertion that the deceased was engaged in the sugarcane business.
On re-examination, she stated that the deceased was a motivational speaker, writer and a part-time teacher in schools colleges(sic). She stated that the deceased was doing consultation and was heading to Keroka from Riosinde Secondary School.
The second witness is not named. However, from the anecdotal evidence, he was Robert Gesage Abuga Ticha. He stated that he recorded a statement dated 30.11.2022. He blamed the motor vehicle. On being recalled for cross examination he stated that he was a businessman in Keroka and witnessed the accident occurred. He stated that someone was walking off the road from Kisii direction to Keroka. He stated that the back door opened all of a sudden and hit him on the chest and he fell on the road. He testified that he had recorded a statement dated 30.11.2022, in which he attributed blame for the accident to the motor vehicle in question.
Upon being recalled for cross-examination, he stated that he was a businessman in Keroka and that he witnessed the accident as it occurred. He narrated that a person was walking off the road from the Kisii direction towards Keroka, when the rear door of the vehicle suddenly opened, striking the pedestrian on the chest and causing him to fall onto the road.
On defence hearing, Mathias Kipyegon Rono testified that he was driving the accident motor vehicle when he heard that he had hit someone from behind. He testified that upon looking through the side mirror, he saw someone lying on the ground. He stated that he was unable to alight from the vehicle as members of the public were baying for his blood. He thereafter parked the vehicle and reported the incident to the police.
He maintained that he did not see himself hitting anyone, and that the door had been properly locked and was firm prior to the incident. He stated that he only heard a bang, but did not hit anyone from the front. He further explained that he did not know what caused the bang, although he later saw someone lying on the side of the road. He added that he ordinarily locked the door whenever he was delivering goods.
DW2 was PC Kiserera attached to Kisii Police Station, undertaking traffic duties. He stated that the accident occurred. The driver failed to keep on the left side and hit a pedestrian off the road. The OB recorded that the vehicle veered off the road and hit a pedestrian. On re-examination, he stated that the pedestrian was walking on the left side of the road, facing Kisii Town from the Keroka direction.
Submissions
The appellant filed submissions dated 3.09.2029 stating that the court relied on wrong principles in finding a sum of Ksh. 60,000/= as a multiplicand. The court was urged to use the minimum wage or global award. Reliance was placed on the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR ) .
They also relied on the case of Kimilili Hauliers Limited V Maurice Msindano Musungu (Suing as Dependant of Jackson Odhiambo Okoth Deceased) [2012] KEHC 4511 (KLR) , where A. Mshila, held as follows:
The court also concurs with the Respondents submissions that no employer gives casual employees payslips and that the trial magistrate correctly addressed and issue of the multiplicand by finding that in the absence of evidence as proof of income the Government minimum wage guideline for unskilled labourers set by the Ministry of Labour be applied.
They also relied on the case of Enyamira Tea Farmers Sacco V Wilfred Nyambati Keraita (suing as the personal representative of) Mary Nyaboke Keraita- Deceased [2011] KHC 3253 (KLR) , where Asike-Makhandia J, as he then was, held that:
In the absence of proof of income, the trial magistrate ought to have reverted to the Regulation of wages (General Amendment Order 2005) and which came into force on 1st April, 2004. It is to be noted that the judgment herein was crafted and delivered on 30th March, 2005. Using this as a guideline, the magistrate should have settled for a round figure for Kshs. 4,000/= as the multiplicand.
It was further submitted that the court erred in relying on an unverified contract which was not an employment contract. The respondent did not even produce a salary, revenue returns. The court was urged to use the minimum wage as Regulation of wages (General Amendment Order 2022). It was their case that the court ought to have taken into consideration vicissitudes of life as held in the case of Leonard O. Ekisa & another v Major K. Birgen [2005] KEHC 2214 (KLR ) .
Regarding funeral expenses the appellant submitted that funeral expenses ought to be modest. A figure of less than 100,000/= could have sufficed. Reliance was placed in the case of Ndeti Muli & 2 others v Hogla Mkando Omari & another (Both suing as representatives of the Estate of Francis Mwatembo Mulonza) [2019] KEHC 11336 (KLR) .
On liability, they stated that the deceased was standing on the verge of the highway. This fact did not come out of any witness evidence.
The Respondent filed submissions dated 6.11.2024 by which it was submitted in material that the findings of the lower court were correct and should be upheld.
Analysis
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
This court’s jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
The first question is liability. It is not easy to understand the case of the appellant. They seek to recant the appellant’s case. It is important to note that the duty of the court is not limited to regurgitating evidence. The court has a duty to enlighten the ignorant. Knowledge is an invaluable gift, and part of that gift lies in sharing it, whether by offering information, advice, or skill, to empower others. Ignorance may sometimes appear blissful, but there exists both a moral and legal duty to dispel it, particularly where ignorance may lead to harm.
In this case, the 2nd Appellant stated that he did not know the cause of the “bang.” Yet, the outcome of that bang was the death of the deceased. Although he claimed not to know what happened, he was informed by DW2 that the accident occurred when he, the 2nd Appellant veered off the road and fatally hit the deceased.
The Appellants cannot now be heard to recant their own evidence. PW2, on the other hand, witnessed the occurrence of the accident, and his testimony was neither challenged nor discredited. There was equally no evidence to suggest that the deceased in any way contributed to the accident. The burden of proving contributory negligence lay with the Appellants, and they failed to discharge it. Liability cannot exist in the absence of fault. In the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, the court of appeal posited as doth:
There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.
On the aspect of contributory negligence, California Supreme Court, stated as follows in the case of MacDrugall App V Central Railroad Co. Rbr 63 Cal 431 :
“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”.
In the comparative jurisprudence in the case of Calvin Grant V David Pareedon et al Civil Appeal 91 of 1987, Theobalds J enunciated as follows; -
“Where there is evidence from both sides to a civil action for negligence involving a collision on the roadway and this evidence, as is nearly always usually the case, seeks to put the blame squarely and solely on the other party, the importance of examining with scrupulous care any independent physical evidence which is available becomes obvious. By physical evidence, I refer to such things as the point of impact, drag marks (if any), location of damage to the respective vehicles or parties, any permanent structures at the accident site, broken glass, which may be left on the driving surface and so on. This physical evidence may well be of critical importance in assisting a tribunal of fact in determining which side is speaking the truth.”
However, in this case, there was no scintilla of evidence to suggest that the deceased contributed in any way to the occurrence of the accident. The uncontroverted testimony of PW1 and DW2 established that the accident was wholly occasioned by the recklessness of the second Appellant. Consequently, the appeal on liability is devoid of merit and is hereby dismissed.
We now turn to the award of damages. This is limited only to damages under the Fatal Accidents Act. The aspect of loss of expectation of life and pain and suffering are not subject of the appeal. It must be remembered that damages are at large and are not a mathematical exercise. Where the deviations in the overall award are minimal, the court will not interfere with the award under the various heads, except for special damages that require specificity. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR , Justice D.S. Majanja held as doth:
“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would, as far as possible, be compensated by comparable awards, but it must be recalled that no two cases are exactly the same.”
In any case the same are minimal. The award of Ksh. 20,000/= for a person who died on the spot is proper. The award for loss of expectation of life was a sum of Ksh. 150,000/=. This was proper for a 46-year-old who had almost half his life ahead of hm.
It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry and the economy. In the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra), it was stated that:
…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation.
In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…
Under loss of dependency, the court will address two aspects, that is, the multiplier and the dependency ratio. Courts are not compelled to adopt multiplier method in cases where the exercise is a grope in the dark; speculation on the important aspects of lost years or dependency. This was well stated by Ringera J (as he then was) in the case of Kwanzia Vs Ngalali Mutua & another that:
“The Multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation, where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
Regarding dependency, George Dulu J, in the case of Leonard O. Ekisa & another v Major K. Birgen [ 2005] eKLR , stated as follows:
With regard to dependency, I have to rely on the case of Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), in which Ringera J. as he then was, held at page 248-
“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”
The learned Judge went further to state on the same page that -
“I am constrained to observe that there is no rule of law that two thirds of the income of a person is taken as available for his family expenses. The extent of dependency is a question of fact to be determined in each case (underline mine). When a trial court adopts two thirds of the income to value of dependency, this is no more than a finding of fact that such is reasonable in the particular case. Unfortunately, those findings of fact have for long masqueraded as holdings on points of law and counsel appearing before courts may be forgiven for assuming them to be the law. They are not. It takes a discerning court to put the law back to track. If I may say with admiration, such was the appellate bench in Bor –vs- Onduu [1982- 1992] 2 K.A.R. 288”
To be able to set aside damages, the court cannot do so arbitrarily or capriciously. There are set parameters for setting aside an award of damages. In the case of Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47 , the Court of Appeal held that:
In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the grounds of excess or insufficiency.
The court cannot base an appeal decision on conjecture, hyperbole, and surmises. The court cannot pick a figure arbitrarily. The duty of the court regarding damages is settled, and the state of Kenya''s economy and the people generally, as well as the welfare of the insured public, must be at the back of the mind of the trial court. In the case of Butler vs. Butler Civil Appeal No. 43 of 1983 (1984) KLR , Keller JA stated the following regarding the award of damages.
“This court has declared that awards by foreign courts do not necessarily represent the results that should prevail in Kenya, where the conditions relevant to the assessment of damages, such as rents, standards of living, levels of earnings, costs of medical supervision, and drugs, may be different. Kimothia v Bhamra Tyre Retreaders[1971]EA(CA-K); Tayab and Ahmed Yakub & Sons v Anna May Kinanu Civil Appeal 29 of 1982 (Law, Potter & Hancox JJA)March 30,1983. The general picture, all the circumstances, and the effect of the injuries on the person concerned must be considered.
The fall in the value of money generally and the leveling up or down of the rate of exchange between the Kenya Shs 20 and Pound Sterling must be taken into account.
Some degree of uniformity, however, is to be sought in awards of damages and the best guide is to pay regard to recent awards in comparable cases in local courts. Bhogal v Burbridge [1975] EA 285 (CA-K). None, alas, has been cited to us.
But a member of an appellate court may ask himself what award would have been made? There are differences of view and of opinion in the task of awarding money compensation in these matters, of course, and if the one awarded by the trial judge is different from one’s own assessment, it is not necessarily wrong. H West & Sons Ltd v Shephard [1964] AC 326, Lord Morris of Borth-Y-Gest; also Hancox JA in Tayab (1983 KLR, 114).
Finally, in deciding whether to disturb the quantum given by the lower court, the court should be aware of its limits. As an exercise of discretion, it should be done judiciously and conclusively in circumstances to ensure that the award is not too high or too low to be an erroneous estimate of damages.
The court of appeal pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs. Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -
The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.
The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”
Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. In the case of China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] eKLR the court stated as follows;
On review of the evidence it may be just on the facts of this particular case to adopt the global sum assessment approach. Where the trial court considers that a particular case justice would be better served by applying a global sum approach instead of a multiplier to substantially dispose off the assessment of damages. There can be no misdirection for that procedure. To put simply one cannot even rule out that the deceased income generating activities entitled him to monthly income of Ksh,.18,000/= per month. Had the deceased continued for longer he was to provide for the dependents. I find no reason to take a different view of from the learned trial magistrate with regard to an assessment on loss of dependency under the Fatal Accidents Act.
The court then has to juxtapose the facts with the law. The court found that the deceased was earning 60,000/=, and a multiplier of 14 years was applied. The question is whether the multiplier of 14 years is excessive. The second one is whether the multiplicand of Ksh. 60,000/= was excessive. The two children are 13 and 7 years. The widow was said to be under 40 years. The widow was according to the record, born in 1981, hence 40 years in 2021. A multiplier of 14 years in the circumstances is not inordinately high.
The next question is whether a sum of Ksh. 60,000/= was proper. I have read the entire record and I am unable to find the basis for award of Ksh. 60,000/= as a multiplier. The court did not consider the evidence of DW3. It is important to rule one way or another whether the said evidence is credible. Without such a finding, the High Court is left at a deep blue sea. The court is then left to determine the same. In that connection, the court of appeal has guided us. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR Kiage JA stated as doth: -
“I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the Court of Appeal Rules 2010; Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual findings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge.”
So what was the evidence in the court below? The death certificate indicated that the deceased was a businessman. However, the only evidence of business was a contract dated 1.2.2018 from Angelic Teachers College. The deceased had a Bachelor of Arts degree from the University of Nairobi. He had results for masters where he was to resit. There appears to have been a scholarship for MBA.
The purported contract dated 1.02.2018 was a contract for a site plan, where the deceased was to execute a contract in 2 weeks. He was to develop a site plan, architectural plans in respect of a two story building with a swimming pool included. This was not a contract for services but contract of services. It is in short, not a contract of employment.
The business name registered as Bedaquip Technology Solutions was registered in 2010. There appeared to be a letter from Mathare Training Centre. DW3 found the letter to be fictitious. It is no wonder that the respondent only stated that the deceased was a businessman. There were no payslips or account numbers showing income. It cannot be true that the deceased was employed. It was that the deceased was doing odd jobs and was not in employment. There was no evidence of a business.
Consequently, the award of Ksh 60,000/= is set aside as it is not based on fact. The letter from Kisii University College is dated 2011. It is not evidence of employment. When a party wishes to prove employment or business, it is their duty to tender such evidence. In the circumstances, dependency could not be based on the multiplier multiplicand appr
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Loss of expectation of life Ksh 150,000/=
Loss of dependency Ksh. 6,720,000/=
Special damages Ksh. 323,550/=
Pain and suffering Ksh. 20,000/=
Total Ksh. 7,213,520/=
The Appellants were defendants in the lower court. The Respondents were administrators of the estate of Daniel Mokoro Munga (deceased). The appeal is on both liability and quantum. The appellants raised the following grounds of appeal:
The trial magistrate proceeded on wrong principles to adopt an amount of Ksh. 60,000/= as the deceased’s monthly net income for assessment of damages for loss of dependency thereby arriving at a figure so inordinately high that manifestly represents an entirely erroneous estimate.
The trial magistrate erred in law and fact to fix the deceased’s monthly income on the basis of an unverified contract contrary to the evidence showing no such contract existed.
The trial magistrate erred in law and fact by failing to properly consider and analyze the evidence on whether the deceased had employment and ascertainable income thereby arriving at wrong conclusions on the deceased’s income.
The trial magistrate erred in law and fact to adopt 14 years as a multiplier thereby failing to consider other vicissitudes of life that ought to be considered.
The amount of damages awarded by the trial magistrate are against public interest and prevailing economic conditions.
The trial magistrate erred in law and fact to award special damages of Ksh. 323,550/= pleaded without proof that the deceased’s representatives incurred such expense.
The trial magistrate erred in law and fact to hold appellants 100% liable for the traffic accident contrary to the evidence showing that the deceased contributed to occurrence of the accident.
In summary, the appellants raised several grounds in the appeal and contended that the lower court erred in liability and quantum of damages. This was mainly on the multiplier of 14 years and multiplicand of Ksh. 60,000/=. This they averred were based on wrong principles and unsupported by evidence including an unverified employment contract. The other issue they raised was award of unproven special damages of Ksh. 323,550/=.
The appeal raised three issues, that is: Liability
Quantum of general damages
Special damages
Pleadings
The Respondents filed a Plaint dated 30.11.2022, seeking both general and special damages arising from a road traffic accident that occurred on 09.06.2021 along the Kisii–Keroka road at Keumbu. In the said plaint, the Respondents prayed for the following special damages: Funeral expenses ………………………………..……….. Ksh. 30,000/=
Cost of letters of administration ………………………….. Ksh. 35,000/=
Catering services …………………………………...…….. Ksh. 150,000/=
Purchases of branded drinking water ……..…………….... Ksh. 20,000/=
Purchase of flowers and paying of coloured eulogies ……….. Ksh. 42,000/=
Purchase of coffins, hiring hearse and lowering gear ……….. Ksh.46,000/=
Motor vehicle search …………………………………….….. Ksh. 550/=
Total Ksh.325,550/=
The Respondents set forth the particulars of negligence of motor vehicle registration number KCM 897T. They sought general damages under the Law Reform Act and the Fatal Accidents Act, as well as damages for loss of consortium.
It was pleaded that the deceased was survived by a widow and two children, aged 13 and 7 years. The deceased, aged 46 years at the time of his death, was described as a businessman and college tutor, leading a happy and vigorous life prior to the accident. It was further pleaded that he suffered excruciating pain before his demise.
The Appellants filed a defence dated 08.02.2023, in which they denied driving the motor vehicle recklessly or negligently as alleged. They instead attributed the occurrence of the accident to the negligence of the deceased, setting out particulars thereof in their defence. The particulars of negligence pleaded were rather hilarious and peculiar, alleging that the deceased was walking on the highway instead of areas reserved for pedestrians, and further, that he failed to take due care for his own safety and had hung onto a moving motor vehicle at the time of the accident.
Evidence
The first Respondent testified first, and the court permitted cross-examination of the witnesses. She stated that she was the widow of the deceased and produced exhibits 1 to 19 in support of her case. She testified that she was below forty years of age and had lost consortium as a result of the deceased’s death.
Upon being recalled for cross-examination, she stated that the deceased was a part-time lecturer at Kisii University and also had a letter of engagement from Angelic Teachers College. She conceded that she did not have an official letter of permanent employment or any payslips, but only the contract of service. She also produced the deceased’s academic certificates.
Regarding funeral expenses, she testified that there were no external contributions toward the burial. She denied the assertion that the deceased was engaged in the sugarcane business.
On re-examination, she stated that the deceased was a motivational speaker, writer and a part-time teacher in schools colleges(sic). She stated that the deceased was doing consultation and was heading to Keroka from Riosinde Secondary School.
The second witness is not named. However, from the anecdotal evidence, he was Robert Gesage Abuga Ticha. He stated that he recorded a statement dated 30.11.2022. He blamed the motor vehicle. On being recalled for cross examination he stated that he was a businessman in Keroka and witnessed the accident occurred. He stated that someone was walking off the road from Kisii direction to Keroka. He stated that the back door opened all of a sudden and hit him on the chest and he fell on the road. He testified that he had recorded a statement dated 30.11.2022, in which he attributed blame for the accident to the motor vehicle in question.
Upon being recalled for cross-examination, he stated that he was a businessman in Keroka and that he witnessed the accident as it occurred. He narrated that a person was walking off the road from the Kisii direction towards Keroka, when the rear door of the vehicle suddenly opened, striking the pedestrian on the chest and causing him to fall onto the road.
On defence hearing, Mathias Kipyegon Rono testified that he was driving the accident motor vehicle when he heard that he had hit someone from behind. He testified that upon looking through the side mirror, he saw someone lying on the ground. He stated that he was unable to alight from the vehicle as members of the public were baying for his blood. He thereafter parked the vehicle and reported the incident to the police.
He maintained that he did not see himself hitting anyone, and that the door had been properly locked and was firm prior to the incident. He stated that he only heard a bang, but did not hit anyone from the front. He further explained that he did not know what caused the bang, although he later saw someone lying on the side of the road. He added that he ordinarily locked the door whenever he was delivering goods.
DW2 was PC Kiserera attached to Kisii Police Station, undertaking traffic duties. He stated that the accident occurred. The driver failed to keep on the left side and hit a pedestrian off the road. The OB recorded that the vehicle veered off the road and hit a pedestrian. On re-examination, he stated that the pedestrian was walking on the left side of the road, facing Kisii Town from the Keroka direction.
Submissions
The appellant filed submissions dated 3.09.2029 stating that the court relied on wrong principles in finding a sum of Ksh. 60,000/= as a multiplicand. The court was urged to use the minimum wage or global award. Reliance was placed on the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR ) .
They also relied on the case of Kimilili Hauliers Limited V Maurice Msindano Musungu (Suing as Dependant of Jackson Odhiambo Okoth Deceased) [2012] KEHC 4511 (KLR) , where A. Mshila, held as follows:
The court also concurs with the Respondents submissions that no employer gives casual employees payslips and that the trial magistrate correctly addressed and issue of the multiplicand by finding that in the absence of evidence as proof of income the Government minimum wage guideline for unskilled labourers set by the Ministry of Labour be applied.
They also relied on the case of Enyamira Tea Farmers Sacco V Wilfred Nyambati Keraita (suing as the personal representative of) Mary Nyaboke Keraita- Deceased [2011] KHC 3253 (KLR) , where Asike-Makhandia J, as he then was, held that:
In the absence of proof of income, the trial magistrate ought to have reverted to the Regulation of wages (General Amendment Order 2005) and which came into force on 1st April, 2004. It is to be noted that the judgment herein was crafted and delivered on 30th March, 2005. Using this as a guideline, the magistrate should have settled for a round figure for Kshs. 4,000/= as the multiplicand.
It was further submitted that the court erred in relying on an unverified contract which was not an employment contract. The respondent did not even produce a salary, revenue returns. The court was urged to use the minimum wage as Regulation of wages (General Amendment Order 2022). It was their case that the court ought to have taken into consideration vicissitudes of life as held in the case of Leonard O. Ekisa & another v Major K. Birgen [2005] KEHC 2214 (KLR ) .
Regarding funeral expenses the appellant submitted that funeral expenses ought to be modest. A figure of less than 100,000/= could have sufficed. Reliance was placed in the case of Ndeti Muli & 2 others v Hogla Mkando Omari & another (Both suing as representatives of the Estate of Francis Mwatembo Mulonza) [2019] KEHC 11336 (KLR) .
On liability, they stated that the deceased was standing on the verge of the highway. This fact did not come out of any witness evidence.
The Respondent filed submissions dated 6.11.2024 by which it was submitted in material that the findings of the lower court were correct and should be upheld.
Analysis
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
This court’s jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
The first question is liability. It is not easy to understand the case of the appellant. They seek to recant the appellant’s case. It is important to note that the duty of the court is not limited to regurgitating evidence. The court has a duty to enlighten the ignorant. Knowledge is an invaluable gift, and part of that gift lies in sharing it, whether by offering information, advice, or skill, to empower others. Ignorance may sometimes appear blissful, but there exists both a moral and legal duty to dispel it, particularly where ignorance may lead to harm.
In this case, the 2nd Appellant stated that he did not know the cause of the “bang.” Yet, the outcome of that bang was the death of the deceased. Although he claimed not to know what happened, he was informed by DW2 that the accident occurred when he, the 2nd Appellant veered off the road and fatally hit the deceased.
The Appellants cannot now be heard to recant their own evidence. PW2, on the other hand, witnessed the occurrence of the accident, and his testimony was neither challenged nor discredited. There was equally no evidence to suggest that the deceased in any way contributed to the accident. The burden of proving contributory negligence lay with the Appellants, and they failed to discharge it. Liability cannot exist in the absence of fault. In the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, the court of appeal posited as doth:
There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.
On the aspect of contributory negligence, California Supreme Court, stated as follows in the case of MacDrugall App V Central Railroad Co. Rbr 63 Cal 431 :
“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”.
In the comparative jurisprudence in the case of Calvin Grant V David Pareedon et al Civil Appeal 91 of 1987, Theobalds J enunciated as follows; -
“Where there is evidence from both sides to a civil action for negligence involving a collision on the roadway and this evidence, as is nearly always usually the case, seeks to put the blame squarely and solely on the other party, the importance of examining with scrupulous care any independent physical evidence which is available becomes obvious. By physical evidence, I refer to such things as the point of impact, drag marks (if any), location of damage to the respective vehicles or parties, any permanent structures at the accident site, broken glass, which may be left on the driving surface and so on. This physical evidence may well be of critical importance in assisting a tribunal of fact in determining which side is speaking the truth.”
However, in this case, there was no scintilla of evidence to suggest that the deceased contributed in any way to the occurrence of the accident. The uncontroverted testimony of PW1 and DW2 established that the accident was wholly occasioned by the recklessness of the second Appellant. Consequently, the appeal on liability is devoid of merit and is hereby dismissed.
We now turn to the award of damages. This is limited only to damages under the Fatal Accidents Act. The aspect of loss of expectation of life and pain and suffering are not subject of the appeal. It must be remembered that damages are at large and are not a mathematical exercise. Where the deviations in the overall award are minimal, the court will not interfere with the award under the various heads, except for special damages that require specificity. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR , Justice D.S. Majanja held as doth:
“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would, as far as possible, be compensated by comparable awards, but it must be recalled that no two cases are exactly the same.”
In any case the same are minimal. The award of Ksh. 20,000/= for a person who died on the spot is proper. The award for loss of expectation of life was a sum of Ksh. 150,000/=. This was proper for a 46-year-old who had almost half his life ahead of hm.
It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry and the economy. In the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra), it was stated that:
…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation.
In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…
Under loss of dependency, the court will address two aspects, that is, the multiplier and the dependency ratio. Courts are not compelled to adopt multiplier method in cases where the exercise is a grope in the dark; speculation on the important aspects of lost years or dependency. This was well stated by Ringera J (as he then was) in the case of Kwanzia Vs Ngalali Mutua & another that:
“The Multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation, where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
Regarding dependency, George Dulu J, in the case of Leonard O. Ekisa & another v Major K. Birgen [ 2005] eKLR , stated as follows:
With regard to dependency, I have to rely on the case of Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), in which Ringera J. as he then was, held at page 248-
“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”
The learned Judge went further to state on the same page that -
“I am constrained to observe that there is no rule of law that two thirds of the income of a person is taken as available for his family expenses. The extent of dependency is a question of fact to be determined in each case (underline mine). When a trial court adopts two thirds of the income to value of dependency, this is no more than a finding of fact that such is reasonable in the particular case. Unfortunately, those findings of fact have for long masqueraded as holdings on points of law and counsel appearing before courts may be forgiven for assuming them to be the law. They are not. It takes a discerning court to put the law back to track. If I may say with admiration, such was the appellate bench in Bor –vs- Onduu [1982- 1992] 2 K.A.R. 288”
To be able to set aside damages, the court cannot do so arbitrarily or capriciously. There are set parameters for setting aside an award of damages. In the case of Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47 , the Court of Appeal held that:
In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the grounds of excess or insufficiency.
The court cannot base an appeal decision on conjecture, hyperbole, and surmises. The court cannot pick a figure arbitrarily. The duty of the court regarding damages is settled, and the state of Kenya''s economy and the people generally, as well as the welfare of the insured public, must be at the back of the mind of the trial court. In the case of Butler vs. Butler Civil Appeal No. 43 of 1983 (1984) KLR , Keller JA stated the following regarding the award of damages.
“This court has declared that awards by foreign courts do not necessarily represent the results that should prevail in Kenya, where the conditions relevant to the assessment of damages, such as rents, standards of living, levels of earnings, costs of medical supervision, and drugs, may be different. Kimothia v Bhamra Tyre Retreaders[1971]EA(CA-K); Tayab and Ahmed Yakub & Sons v Anna May Kinanu Civil Appeal 29 of 1982 (Law, Potter & Hancox JJA)March 30,1983. The general picture, all the circumstances, and the effect of the injuries on the person concerned must be considered.
The fall in the value of money generally and the leveling up or down of the rate of exchange between the Kenya Shs 20 and Pound Sterling must be taken into account.
Some degree of uniformity, however, is to be sought in awards of damages and the best guide is to pay regard to recent awards in comparable cases in local courts. Bhogal v Burbridge [1975] EA 285 (CA-K). None, alas, has been cited to us.
But a member of an appellate court may ask himself what award would have been made? There are differences of view and of opinion in the task of awarding money compensation in these matters, of course, and if the one awarded by the trial judge is different from one’s own assessment, it is not necessarily wrong. H West & Sons Ltd v Shephard [1964] AC 326, Lord Morris of Borth-Y-Gest; also Hancox JA in Tayab (1983 KLR, 114).
Finally, in deciding whether to disturb the quantum given by the lower court, the court should be aware of its limits. As an exercise of discretion, it should be done judiciously and conclusively in circumstances to ensure that the award is not too high or too low to be an erroneous estimate of damages.
The court of appeal pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs. Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -
The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.
The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”
Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. In the case of China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] eKLR the court stated as follows;
On review of the evidence it may be just on the facts of this particular case to adopt the global sum assessment approach. Where the trial court considers that a particular case justice would be better served by applying a global sum approach instead of a multiplier to substantially dispose off the assessment of damages. There can be no misdirection for that procedure. To put simply one cannot even rule out that the deceased income generating activities entitled him to monthly income of Ksh,.18,000/= per month. Had the deceased continued for longer he was to provide for the dependents. I find no reason to take a different view of from the learned trial magistrate with regard to an assessment on loss of dependency under the Fatal Accidents Act.
The court then has to juxtapose the facts with the law. The court found that the deceased was earning 60,000/=, and a multiplier of 14 years was applied. The question is whether the multiplier of 14 years is excessive. The second one is whether the multiplicand of Ksh. 60,000/= was excessive. The two children are 13 and 7 years. The widow was said to be under 40 years. The widow was according to the record, born in 1981, hence 40 years in 2021. A multiplier of 14 years in the circumstances is not inordinately high.
The next question is whether a sum of Ksh. 60,000/= was proper. I have read the entire record and I am unable to find the basis for award of Ksh. 60,000/= as a multiplier. The court did not consider the evidence of DW3. It is important to rule one way or another whether the said evidence is credible. Without such a finding, the High Court is left at a deep blue sea. The court is then left to determine the same. In that connection, the court of appeal has guided us. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR Kiage JA stated as doth: -
“I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the Court of Appeal Rules 2010; Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual findings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge.”
So what was the evidence in the court below? The death certificate indicated that the deceased was a businessman. However, the only evidence of business was a contract dated 1.2.2018 from Angelic Teachers College. The deceased had a Bachelor of Arts degree from the University of Nairobi. He had results for masters where he was to resit. There appears to have been a scholarship for MBA.
The purported contract dated 1.02.2018 was a contract for a site plan, where the deceased was to execute a contract in 2 weeks. He was to develop a site plan, architectural plans in respect of a two story building with a swimming pool included. This was not a contract for services but contract of services. It is in short, not a contract of employment.
The business name registered as Bedaquip Technology Solutions was registered in 2010. There appeared to be a letter from Mathare Training Centre. DW3 found the letter to be fictitious. It is no wonder that the respondent only stated that the deceased was a businessman. There were no payslips or account numbers showing income. It cannot be true that the deceased was employed. It was that the deceased was doing odd jobs and was not in employment. There was no evidence of a business.
Consequently, the award of Ksh 60,000/= is set aside as it is not based on fact. The letter from Kisii University College is dated 2011. It is not evidence of employment. When a party wishes to prove employment or business, it is their duty to tender such evidence. In the circumstances, dependency could not be based on the multiplier multiplicand appr
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