(Being an appeal from the Judgment and decree of Hon. T.O. Omono, Resident Magistrate, delivered on 22 nd October 2024 in Kitale CMCC No. E175 of 2020)
JUDGMENT.
1. This is an appeal from the Judgment and decree of Hon. T.O. Omono, Resident Magistrate, that was delivered on the 22 nd October 2024 in Kitale CMCC No. E175 of 2020 . The suit at the trial court arose from a fatal traffic accident that occurred on the 30 th September 2018 , involving the deceased who was a passenger aboard motor vehicle registration number KBN 686N and the Defendants motor vehicle registration number UBB 243K . The accident occurred along the Gilgil – Naivasha road and the Plaintiff blamed the Defendants for the accident.
2. Upon hearing the witnesses and considering the evidence and submissions of the parties, the learned trial Magistrate made the following determination:
a. Liability 100% in favour of the Plaintiff
b. Loss of dependency Nil
c. Pain and suffering Kshs. 50,000.00
d. Loss of expectation of life Kshs. 100,000.00
e. Special damages Kshs. 150,000.00
Total Kshs. 300,000.00 .
3. The Plaintiff/Appellant was dissatisfied by the determination of the trial Magistrates on the failure to award for loss of dependency thus this appeal. It is therefore the only issue for consideration in this appeal.
4. This being a first appeal, the court is enjoined to consider the determination of the trial court and independently re-evaluate the evidence of the parties and arrive with its own determination based on the evidence before the trial court and the applicable law. The decisions made in Okeno vs. Republic [1972] E.A 32 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 . In the Selle case , the court stated thus:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
Analysis and determination .
5. During the hearing of the case before the trial court, the Plaintiff was the only witness and he adopted huis witness statement and produced the documents outlined in his list of documents and closed the Plaintiff’s case. The defence did not call any witnesses.
6. The gist of the Plaintiff’s evidence was that the Plaintiff and the deceased who was his wife were aboard the defendant’s motor vehicle on their way to Nairobi from Vihiga when the bus, Climax Bus Service left its lane and caused the accident by ramming into the oncoming motor vehicle. The deceased passed on as a result of the accident. She was a house wife and left behind three children. He produced a copy of the Death Certificate and the receipts in support of the special damages.
7. Upon the close of the Plaintiffs and Defendants case, they both filed their submissions. The Plaintiff prayed for the court to find the Defendants fully liable and prayed for damages as follows:
a. Loss of expectation of life Kshs. 200,000.00
b. Loss of dependency Kshs. 1,500,000.00
c. Pain and suffering Kshs. 100,000.00
d. Special damages Kshs. 150,000.00.
8. The Plaintiff’s Counsel also cited the determination in Techard Stream & Power Limited vs Mutio Muli & Mutua Ngao (2019), Nairobi HCCC No. 132 of 2001 Daniel Kuria vs Nairobi City Council (2013) eKLR, Marsabit HCCA Kenya Wildlife Service vs Teteya (Suing as the legal representative of the Estate of the late Lokusengelan (Deceased) Civil Appeal No. 10 of 2020) (2023) KEHC 26924 (KLR) (14 th December 2023), and Nakuru HCCC No. 26 OF 2005 Alice O. Alukwe (Suing on behalf of Maureen Alukwe (deceased))vs Akamba Public Road Services Ltd & 3 Others 92013) eKLR .
9. On the part of the defence, they submitted that the defendant be absolved from responsibility for the accident. In the alternative, the defence proposed an award of damages in the following terms:
a. Pain and suffering Kshs. 10,000.00
b. Loss of expectation of life Kshs. 80,000.00
c. Loss of dependency (Global award) Kshs. 600,000.00
d. Loss of dependency (Multiplier) Kshs. 521,348.40
e. Special damages Kshs. 8,000.00 .
10. In support of the defence, the Counsel was asked to consider the determinations in Wanja vs Kago (Civil Appeal E006 of 2021) (2022) KEHC 10332 (KLR) (13 th July 2022) (Judgment), West Kenya Sugar Co. Ltd vs Philip Sumba Julaya (Suing as the Administrator and personal representative of the Estate of James Julaya Sumba) (2019) eKLR, Beatrice Wangui Thairu vs Hon. Ezekiel Barngetuny & Another Nairobi HCCC No. 1638 of 1988, Oyugi Judith & Another Fredrick Odhiambo Ongong & 3 others (2014) eKLR, Mwanzia vs Ngalali Mutua & Kenya Bus Service (Msa) Ltd & Another, Meru High Court Civil Appeal No. 54 of 2020, Mutiga Kamai vs Joshua Kinyua Kamange ( Suing as the personal representative of the Estate of Elijah Kamange (Deceased)(2021) eKLR , among others.
11. In the Memorandum of Appeal as set out by the Plaintiff/Appellant is only on the issue of the quantum of damages, and more so on the refusal by the trial court to make an award of the loss of dependency. The Appellant has set out the Grounds as below:
a. That the Learned Magistrate erred in law and in fact in failing to take into account the evidence produced during the trial of this suit and the submissions on quantum of damages given on behalf of the appellants.
b. That the Learned Magistrate erred in law and in fact in failing to evaluate the evidence in its totality and in failing to take into consideration submissions and authorities submitted by the Appellant.
c. That the Learned Magistrate failed to generally, judicially apply and to adequately evaluate the evidence tendered and thereby arrived at a decision unsuitable in law in denying the award on Quantum on loss of dependency.
d. That the Learned Magistrate erred in law and in fact in failing to apply the proper legal principles regarding quantum, and thus arriving at a bad decision .
12. In arriving at the decision not to grant any award for loss of dependency, the trial court relied on Rahab Wanjiru Nderitu vs Daniel Muteti & 4 Others (2016) eKLR and Stephen Kivuti Kiura vs Anastacia Murugi Muthui & Another (2012) eKLR . In both decisions, the courts held that the Plaintiff had not produced any documents to confirm that they were spouses of the deceased, even the Chiefs letters to show that the Plaintiff was the wife or confirm that the deceased had children.
13. The award for loss of dependency is premised on the provisions of section 4 (1) of the Fatal Accidents Act, Cap 32 of the Laws of Kenya . For context, it provides as follows:
“ (1) Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused; and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct :”
14. In that regard, it is incumbent of the Plaintiff to plead the same in the pleadings and indicate the nature of relationship with the deceased to assist the court determine whether the dependency should be considered for award. In the present case, the Plaintiff stated that he was the spouse of the deceased and he brought the action ion hos won behalf and on behalf of his three children including the deceased’s two step daughters. It is the absence of proof of the Plaintiff relationship that was the basis of the denial by the trial court to make any award under the head of loss of dependency.
15. The Plaintiff stated in his witness statement that he is the husband of the deceased. The only other document is the Limited Grant of Letters of Administration, that he was granted prior to the commencement of the suit. The Appellant has cited the decisions in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR, and Ndeti Muli & Another v Hogla Mkando Omari & Another [2021] eKLR . In both instances, the courts stated that the Plaintiff need not provide documentary evidence as dependency is a matter of fact. The absence of documents alone should not defeat the claim for dependency.
16. The issue of dependency has been dealt with by courts of concurrent jurisdiction and the outcome in the majority has been that civil cases require a proof of the balance of probability and not beyond reasonable doubt. The duty remains on the person asserting to persuade the court on the correctness of their assertions. In the current case, the Plaintiff asserted and there was no contrary evidence that he was the husband to the deceased. While he stated in cross examination that he had not produced a marriage certificate or chiefs letter to confirm the marriage, or birth certificates of the children to confirm parenthood, the defence did not call any evidence to rebut the assertion of the Plaintiff that he was the spouse.
17. That being the case, and guided by the determination in the case of Leonard O. Ekisa & Another vs. Major K. Birgen [2005] eKLR , the trial court ought to have considered the prayer for loss of dependancy by the Plaintiff. The court opined therein thus:
“Though Mr. Magare for the defendant has argued that dependency was proved on only one person, that was the wife of the deceased, I differ from his contention. Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country. Expenses on children also do not need to be proved by documents. It is not possible to keep receipts for each of such expenditures. Each case has to depend on its own circumstances.
The evidence of PW2 was that he was a priest and was not getting an income to support his parents. The fact that the deceased’s wife was working does not remove her dependency on her late husband. The evidence was that the deceased used to pay for expenses of housing, school fees, food and other items for upkeep of the children. I find that there was dependency by all who were listed in the plaint.”
18. Flowing for the above analogy, it is also clear that in the spirit if African kindred, a spouse loses the unquantifiable support of the other spouse on their demise. Mothers are homemakers in every way, taking care of the home in ways that would require the adjustment or incorporation at a cost of additional support to fill in that gap.
19. Suffice to state that the trial court went beyond the scope of proof required to support the claim for loss of dependancy in declining to grant the same.
20. Having so stated, what award would be reasonable in the current circumstances? The deceased was a housewife and thus without a regular income. She was 39 years at the time of her demise. At the trial, the Appellant had proposed an award of Kshs. 1,500,000.00 and had cited the case of Kenya Wildlife Service vs Teteya (Suing as the Legal Representative of the estate of the late Lokusegelan (Deceased) Civil Appeal No. 10 of 2020, [2023] KEHC 26924 (KLR)(4 December 2023) .
21. The Respondent had proposed to the court to allow the global sum of Kshs. 600,000.00 or use the multiplier and multiplicand approach and had proposed the minimum wages of Kshs. 7,240.95 and 9 years as the active life of the deceased. The sum came to Kshs. 521,348.40 . Reliance was placed on the decisions in Mutiga Kamai vs Joshua Kinyua Kamange (Suing as the personal representative of the estate of the late Elijah Kamange (Deceased) (2021) eKLR, Arthur Nyamwate Omutondi & Others vs United Millers Limited & 2 Others (2009 ).
22. Noting the age of the deceased and the authorities cited herein, and further noting that the Plaintiff was the main financial provider for the family with the deceased undertaking household support for the family, I deem that an award of Kshs. 800,000.00 is reasonable in the circumstances and I will therefore award the same .
23. The appeal is thus disposed of as follows:
a. The judgment of the trial court on the award of loss of dependancy is hereby set aside and substituted with an award of Kshs. 800,000.00.
b. The other awards remain as granted by the trial court.
c. Each party to bear their costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 20 th August 2026.
HCCA NO. E079 OF 2024 ERNEST JOMO LUVALE VS GEORGE KINYANJUI & ANO. JUDGMENT Pg. 8
JUDGMENT.
1. This is an appeal from the Judgment and decree of Hon. T.O. Omono, Resident Magistrate, that was delivered on the 22 nd October 2024 in Kitale CMCC No. E175 of 2020 . The suit at the trial court arose from a fatal traffic accident that occurred on the 30 th September 2018 , involving the deceased who was a passenger aboard motor vehicle registration number KBN 686N and the Defendants motor vehicle registration number UBB 243K . The accident occurred along the Gilgil – Naivasha road and the Plaintiff blamed the Defendants for the accident.
2. Upon hearing the witnesses and considering the evidence and submissions of the parties, the learned trial Magistrate made the following determination:
a. Liability 100% in favour of the Plaintiff
b. Loss of dependency Nil
c. Pain and suffering Kshs. 50,000.00
d. Loss of expectation of life Kshs. 100,000.00
e. Special damages Kshs. 150,000.00
Total Kshs. 300,000.00 .
3. The Plaintiff/Appellant was dissatisfied by the determination of the trial Magistrates on the failure to award for loss of dependency thus this appeal. It is therefore the only issue for consideration in this appeal.
4. This being a first appeal, the court is enjoined to consider the determination of the trial court and independently re-evaluate the evidence of the parties and arrive with its own determination based on the evidence before the trial court and the applicable law. The decisions made in Okeno vs. Republic [1972] E.A 32 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 . In the Selle case , the court stated thus:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
Analysis and determination .
5. During the hearing of the case before the trial court, the Plaintiff was the only witness and he adopted huis witness statement and produced the documents outlined in his list of documents and closed the Plaintiff’s case. The defence did not call any witnesses.
6. The gist of the Plaintiff’s evidence was that the Plaintiff and the deceased who was his wife were aboard the defendant’s motor vehicle on their way to Nairobi from Vihiga when the bus, Climax Bus Service left its lane and caused the accident by ramming into the oncoming motor vehicle. The deceased passed on as a result of the accident. She was a house wife and left behind three children. He produced a copy of the Death Certificate and the receipts in support of the special damages.
7. Upon the close of the Plaintiffs and Defendants case, they both filed their submissions. The Plaintiff prayed for the court to find the Defendants fully liable and prayed for damages as follows:
a. Loss of expectation of life Kshs. 200,000.00
b. Loss of dependency Kshs. 1,500,000.00
c. Pain and suffering Kshs. 100,000.00
d. Special damages Kshs. 150,000.00.
8. The Plaintiff’s Counsel also cited the determination in Techard Stream & Power Limited vs Mutio Muli & Mutua Ngao (2019), Nairobi HCCC No. 132 of 2001 Daniel Kuria vs Nairobi City Council (2013) eKLR, Marsabit HCCA Kenya Wildlife Service vs Teteya (Suing as the legal representative of the Estate of the late Lokusengelan (Deceased) Civil Appeal No. 10 of 2020) (2023) KEHC 26924 (KLR) (14 th December 2023), and Nakuru HCCC No. 26 OF 2005 Alice O. Alukwe (Suing on behalf of Maureen Alukwe (deceased))vs Akamba Public Road Services Ltd & 3 Others 92013) eKLR .
9. On the part of the defence, they submitted that the defendant be absolved from responsibility for the accident. In the alternative, the defence proposed an award of damages in the following terms:
a. Pain and suffering Kshs. 10,000.00
b. Loss of expectation of life Kshs. 80,000.00
c. Loss of dependency (Global award) Kshs. 600,000.00
d. Loss of dependency (Multiplier) Kshs. 521,348.40
e. Special damages Kshs. 8,000.00 .
10. In support of the defence, the Counsel was asked to consider the determinations in Wanja vs Kago (Civil Appeal E006 of 2021) (2022) KEHC 10332 (KLR) (13 th July 2022) (Judgment), West Kenya Sugar Co. Ltd vs Philip Sumba Julaya (Suing as the Administrator and personal representative of the Estate of James Julaya Sumba) (2019) eKLR, Beatrice Wangui Thairu vs Hon. Ezekiel Barngetuny & Another Nairobi HCCC No. 1638 of 1988, Oyugi Judith & Another Fredrick Odhiambo Ongong & 3 others (2014) eKLR, Mwanzia vs Ngalali Mutua & Kenya Bus Service (Msa) Ltd & Another, Meru High Court Civil Appeal No. 54 of 2020, Mutiga Kamai vs Joshua Kinyua Kamange ( Suing as the personal representative of the Estate of Elijah Kamange (Deceased)(2021) eKLR , among others.
11. In the Memorandum of Appeal as set out by the Plaintiff/Appellant is only on the issue of the quantum of damages, and more so on the refusal by the trial court to make an award of the loss of dependency. The Appellant has set out the Grounds as below:
a. That the Learned Magistrate erred in law and in fact in failing to take into account the evidence produced during the trial of this suit and the submissions on quantum of damages given on behalf of the appellants.
b. That the Learned Magistrate erred in law and in fact in failing to evaluate the evidence in its totality and in failing to take into consideration submissions and authorities submitted by the Appellant.
c. That the Learned Magistrate failed to generally, judicially apply and to adequately evaluate the evidence tendered and thereby arrived at a decision unsuitable in law in denying the award on Quantum on loss of dependency.
d. That the Learned Magistrate erred in law and in fact in failing to apply the proper legal principles regarding quantum, and thus arriving at a bad decision .
12. In arriving at the decision not to grant any award for loss of dependency, the trial court relied on Rahab Wanjiru Nderitu vs Daniel Muteti & 4 Others (2016) eKLR and Stephen Kivuti Kiura vs Anastacia Murugi Muthui & Another (2012) eKLR . In both decisions, the courts held that the Plaintiff had not produced any documents to confirm that they were spouses of the deceased, even the Chiefs letters to show that the Plaintiff was the wife or confirm that the deceased had children.
13. The award for loss of dependency is premised on the provisions of section 4 (1) of the Fatal Accidents Act, Cap 32 of the Laws of Kenya . For context, it provides as follows:
“ (1) Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused; and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct :”
14. In that regard, it is incumbent of the Plaintiff to plead the same in the pleadings and indicate the nature of relationship with the deceased to assist the court determine whether the dependency should be considered for award. In the present case, the Plaintiff stated that he was the spouse of the deceased and he brought the action ion hos won behalf and on behalf of his three children including the deceased’s two step daughters. It is the absence of proof of the Plaintiff relationship that was the basis of the denial by the trial court to make any award under the head of loss of dependency.
15. The Plaintiff stated in his witness statement that he is the husband of the deceased. The only other document is the Limited Grant of Letters of Administration, that he was granted prior to the commencement of the suit. The Appellant has cited the decisions in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR, and Ndeti Muli & Another v Hogla Mkando Omari & Another [2021] eKLR . In both instances, the courts stated that the Plaintiff need not provide documentary evidence as dependency is a matter of fact. The absence of documents alone should not defeat the claim for dependency.
16. The issue of dependency has been dealt with by courts of concurrent jurisdiction and the outcome in the majority has been that civil cases require a proof of the balance of probability and not beyond reasonable doubt. The duty remains on the person asserting to persuade the court on the correctness of their assertions. In the current case, the Plaintiff asserted and there was no contrary evidence that he was the husband to the deceased. While he stated in cross examination that he had not produced a marriage certificate or chiefs letter to confirm the marriage, or birth certificates of the children to confirm parenthood, the defence did not call any evidence to rebut the assertion of the Plaintiff that he was the spouse.
17. That being the case, and guided by the determination in the case of Leonard O. Ekisa & Another vs. Major K. Birgen [2005] eKLR , the trial court ought to have considered the prayer for loss of dependancy by the Plaintiff. The court opined therein thus:
“Though Mr. Magare for the defendant has argued that dependency was proved on only one person, that was the wife of the deceased, I differ from his contention. Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country. Expenses on children also do not need to be proved by documents. It is not possible to keep receipts for each of such expenditures. Each case has to depend on its own circumstances.
The evidence of PW2 was that he was a priest and was not getting an income to support his parents. The fact that the deceased’s wife was working does not remove her dependency on her late husband. The evidence was that the deceased used to pay for expenses of housing, school fees, food and other items for upkeep of the children. I find that there was dependency by all who were listed in the plaint.”
18. Flowing for the above analogy, it is also clear that in the spirit if African kindred, a spouse loses the unquantifiable support of the other spouse on their demise. Mothers are homemakers in every way, taking care of the home in ways that would require the adjustment or incorporation at a cost of additional support to fill in that gap.
19. Suffice to state that the trial court went beyond the scope of proof required to support the claim for loss of dependancy in declining to grant the same.
20. Having so stated, what award would be reasonable in the current circumstances? The deceased was a housewife and thus without a regular income. She was 39 years at the time of her demise. At the trial, the Appellant had proposed an award of Kshs. 1,500,000.00 and had cited the case of Kenya Wildlife Service vs Teteya (Suing as the Legal Representative of the estate of the late Lokusegelan (Deceased) Civil Appeal No. 10 of 2020, [2023] KEHC 26924 (KLR)(4 December 2023) .
21. The Respondent had proposed to the court to allow the global sum of Kshs. 600,000.00 or use the multiplier and multiplicand approach and had proposed the minimum wages of Kshs. 7,240.95 and 9 years as the active life of the deceased. The sum came to Kshs. 521,348.40 . Reliance was placed on the decisions in Mutiga Kamai vs Joshua Kinyua Kamange (Suing as the personal representative of the estate of the late Elijah Kamange (Deceased) (2021) eKLR, Arthur Nyamwate Omutondi & Others vs United Millers Limited & 2 Others (2009 ).
22. Noting the age of the deceased and the authorities cited herein, and further noting that the Plaintiff was the main financial provider for the family with the deceased undertaking household support for the family, I deem that an award of Kshs. 800,000.00 is reasonable in the circumstances and I will therefore award the same .
23. The appeal is thus disposed of as follows:
a. The judgment of the trial court on the award of loss of dependancy is hereby set aside and substituted with an award of Kshs. 800,000.00.
b. The other awards remain as granted by the trial court.
c. Each party to bear their costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 20 th August 2026.
HCCA NO. E079 OF 2024 ERNEST JOMO LUVALE VS GEORGE KINYANJUI & ANO. JUDGMENT Pg. 8