Introduction
1. This appeal arises from the judgment of the Senior Principal Magistrate’s Court at Oyugis delivered on 31st July 2023 in CMCC No. E042 of 2022, in which the trial court found the Appellants wholly liable for a fatal road traffic accident involving motor vehicle registration number KCD 136U, Toyota Hiace Matatu.
2. The Respondent, suing as the legal representative of the estate of the deceased, Nuel Wereh Namale, instituted the suit in the lower court seeking damages under the Fatal Accidents Act, Cap 32 Laws of Kenya, and the Law Reform Act, Cap 26 Laws of Kenya.
3. The trial court found the Appellants 100% liable for the accident and awarded damages, including Kshs. 2,850,000/= for loss of dependency.
4. The Appellants are aggrieved by both the finding on liability and the assessment of damages. They now invite this Court to interfere with the judgment of the trial court.
Duty of a First Appellate Court
5. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
6. The applicable principle was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it neither saw nor heard the witnesses and should make due allowance for that fact.
7. However, an appellate court will not lightly interfere with findings of fact by a trial court unless it is demonstrated that the findings were based on no evidence, were founded on a misapprehension of the evidence, or that the trial court acted on wrong principles of law.
Grounds of Appeal
8. The Appellants raised several grounds of appeal which, in my view, may be condensed into the following issues:
a. Whether the learned trial magistrate erred in finding the Appellants 100% liable for the accident;
b. Whether the learned trial magistrate failed to properly evaluate the evidence on record;
c. Whether the award of Kshs. 2,850,000/= for loss of dependency was excessive; and
d. Whether the learned trial magistrate misapplied the principles governing assessment of damages in fatal accident claims.
Background of the Claim
9. The Respondent pleaded that on 15th July 2016, the deceased was fatally injured after being involved in a road traffic accident along the Homa Bay–Kendu Bay Road near Adiedo.
10. It was pleaded that the accident was caused by the negligent driving, management and/or control of motor vehicle registration number KCD 136U, Toyota Hiace Matatu, by the Appellants’ driver.
11. The Respondent sought general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs and interest.
Evidence Before the Trial Court
Evidence of PW1
12. PW1, the widow of the deceased, testified that the deceased was her husband and the breadwinner of the family.
13. She produced documentary evidence in support of the claim, including the death certificate, post-mortem report, police abstract, letters of administration and a motor vehicle search confirming ownership of the accident motor vehicle.
Evidence of PW2
14. PW2 testified as an eyewitness. Her evidence was that motor vehicle KCD 136U was being driven at high speed when the accident occurred.
Evidence of PW3
15. PW3, the investigating officer, testified that he investigated the accident and blamed the driver of the accident motor vehicle.
16. He further confirmed that the driver was charged in traffic court with the offence of careless driving and was fined.
Defence Case
17. Although the Appellants filed a statement of defence denying negligence, they did not call any witness at the trial.
18. Their defence therefore remained a bare denial and was unsupported by evidence.
Liability
19. The Respondent’s case on liability was supported by eyewitness evidence and the evidence of the investigating officer. The evidence was that the motor vehicle was being driven at high speed, causing the driver to lose control, as a result of which the vehicle rolled.
20. The Appellants did not call any witness to rebut or controvert that evidence.
21. Under sections 107 and 108 of the Evidence Act, the burden of proof lies on the party who alleges the existence of facts. The Respondent therefore bore the burden of proving negligence on a balance of probabilities.
22. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court held that negligence is not presumed and must be proved by evidence. The standard of proof is on a balance of probabilities.
23. In the present case, the evidence before the trial court showed that this was a self-involving accident. The deceased was a passenger and had no control over the manner in which the vehicle was being driven.
24. I am satisfied that the proximate cause of the accident was the negligence of the driver of motor vehicle KCD 136U, who was driving at high speed and lost control of the vehicle.
25. The Respondent discharged the burden of proof through credible and uncontroverted evidence. The 2nd Appellant, being the owner of the motor vehicle, was vicariously liable for the negligence of the 1st Appellant and/or driver.
26. I therefore find no basis to interfere with the trial court’s finding that the Appellants were 100% liable for the accident.
Assessment of Damages
Principles Governing Appellate Interference with Damages
27. The law on appellate interference with an award of damages is settled. An appellate court will not interfere with an award of damages merely because it would have awarded a different figure had it tried the matter.
28. The Court may only interfere where it is shown that the trial court took into account an irrelevant factor, failed to consider a relevant factor, applied a wrong principle, or that the award was so inordinately high or low as to represent an erroneous estimate.
29. This principle was stated in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, and reiterated in Butler v Butler [1984] KLR 225.
Damages under the Law Reform Act
30. Damages under the Law Reform Act compensate the estate of the deceased. They ordinarily include damages for pain and suffering and damages for loss of expectation of life.
Pain and Suffering
31. Damages for pain and suffering are awarded where the deceased experienced pain before death. The amount awarded depends on the circumstances of each case, including the period between injury and death.
32. In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court observed that nominal damages are usually awarded where death follows immediately after the accident, and that awards for pain and suffering generally range between Kshs. 10,000/= and Kshs. 100,000/= depending on the circumstances.
33. Similar awards have been made in decisions such as Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR and West Kenya Sugar Co. Ltd v Philip Atonya [2020] eKLR, where awards of Kshs. 50,000/= were considered appropriate.
34. In the present case, the deceased died on the same day of the accident. Taking into account the circumstances of death and the applicable conventional awards, I award Kshs. 10,000/= for pain and suffering.
Loss of Expectation of Life
35. Loss of expectation of life is a conventional award made to the estate in recognition of the fact that the deceased’s life was prematurely shortened.
36. In Benham v Gambling [1941] AC 157, the House of Lords stated that such an award should be moderate. Kenyan courts have generally adopted the conventional award of Kshs. 100,000/= under this head.
37. This position has been applied in decisions including Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR and West Kenya Sugar Co. Ltd v Philip Atonya [2020] eKLR.
38. In the present case, the trial court did not make an award under this head, although it had been pleaded. The court was under a duty to determine all issues properly placed before it. Failure to make a finding on this head was an error.
39. The deceased died at the age of 40 years, as shown in the death certificate. I therefore award Kshs. 100,000/= for loss of expectation of life.
Damages under the Fatal Accidents Act
40. The Fatal Accidents Act compensates the dependants of the deceased for the financial loss resulting from the death.
41. In assessing damages under this head, the court ordinarily considers the income of the deceased, the expected working life, and the dependency ratio. This is commonly referred to as the multiplier approach.
42. The principle was discussed in Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, where the Court considered the proper approach to assessment of damages for loss of dependency.
43. However, where the deceased’s income cannot be precisely ascertained, courts may adopt the global award approach. In this case, the learned trial magistrate found that the deceased’s income had not been proved and therefore adopted the global sum approach, awarding Kshs. 2,850,000/= for loss of dependency.
Global Award Approach
44. The global award approach has been upheld in several decisions where the income of the deceased could not be ascertained.
45. In Albert Odawa v Gichimu Gichenji [2007] eKLR, the Court stated that the multiplier approach is not a rule of law but a method of assessment, and that where the facts do not facilitate its application, the court may adopt a global award.
46. The same principle was applied in Mwanzia v Ngalali Mutua & Kenya Bus Services Ltd [2004] eKLR.
Comparative Awards
47. I have considered comparable decisions in which global awards were made. In Third Engineering Bureau v Momanyi [2025] KEHC 655, the Court made a global award of Kshs. 2,000,000/= where the deceased was aged 24 years.
48. In Joseph Muthuri v Nicholas Kinoti Kibera [2022] eKLR, the Court awarded a global sum of Kshs. 1,000,000/= in respect of a deceased who was 19 years old.
49. In Stanwel Holdings Limited & Another v Racheal Haluku Emanuel & Another [2020] eKLR, a global sum of Kshs. 2,000,000/= for loss of dependency in respect of a deceased aged 23 years was reduced on appeal to Kshs. 1,000,000/=.
50. In the present case, the deceased was aged 40 years at the time of death. He left behind a widow and four young children.
51. Considering the age of the deceased, the number of dependants, the uncertainty of income and the comparable authorities cited, I find that the award of Kshs. 2,850,000/= for loss of dependency was on the higher side.
52. I accordingly interfere with the award and substitute it with a global award of Kshs. 2,000,000/= for loss of dependency.
Special Damages
53. The Respondent pleaded special damages of Kshs. 200,000/=, comprising Kshs. 170,000/= for funeral expenses and Kshs. 30,000/= for obtaining letters of administration ad litem.
54. No receipts were produced in support of the special damages. The trial court also did not make a specific finding on this head, although the same had been pleaded.
55. It is trite law that special damages must not only be specifically pleaded but must also be strictly proved.
56. However, in respect of funeral expenses, courts have taken a practical approach and have recognised that bereaved families may not always keep receipts for all funeral-related expenses.
57. In Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, the Court of Appeal acknowledged the practical difficulty of expecting bereaved families to keep records of every expense incurred in burying a deceased relative. The Court accepted that funeral expenses may, in appropriate cases, be allowed where the claim is modest and reasonable.
58. In the present case, the pleaded sum of Kshs. 170,000/= for funeral expenses is modest and reasonable. I allow the same.
59. However, the claim for Kshs. 30,000/= being fees for letters of administration ad litem ought to have been strictly proved, as receipts or other evidence of payment were capable of being produced. That claim is therefore declined.
Double Compensation
60. The Court must also guard against double compensation where awards are made under both the Law Reform Act and the Fatal Accidents Act.
61. In Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, the Court of Appeal held that damages under the Law Reform Act and the Fatal Accidents Act are distinct, but the court must take into account the award under the Law Reform Act when assessing damages under the Fatal Accidents Act so as to avoid double compensation.
62. In the present case, having made an award for loss of expectation of life under the Law Reform Act, the same shall be taken into account in the final computation.
Disposition
63. In the result, the appeal succeeds only in part on quantum. The finding of the trial court on liability is upheld.
64. The judgment of the lower court on damages is hereby varied and substituted with judgment for the Respondent against the Appellants jointly and severally as follows :
a. General damages for pain and suffering: Kshs. 10,000/=
b. Loss of expectation of life: Kshs. 100,000/=
c. Loss of dependency: Kshs. 2,000,000/=
d.. Funeral expenses: Kshs. 170,000/=
Subtotal: Kshs. 2,280,000/=
Less award for loss of expectation of life to avoid double compensation: Kshs. 100,000/=
Grand Total: Kshs. 2,180,000/=
65. The Respondent shall have costs of the suit before the lower court and interest on the damages from the date of the judgment of the lower court.
66. Since the appeal has partially succeeded on quantum, the Appellants are awarded one-half of the costs of this appeal.
T.A ODERA
JUDGE
5.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 5TH DAY OF MARCH 2026 IN THE PRESENCE OF CA OGENDO PARTIES ABSENT
1. This appeal arises from the judgment of the Senior Principal Magistrate’s Court at Oyugis delivered on 31st July 2023 in CMCC No. E042 of 2022, in which the trial court found the Appellants wholly liable for a fatal road traffic accident involving motor vehicle registration number KCD 136U, Toyota Hiace Matatu.
2. The Respondent, suing as the legal representative of the estate of the deceased, Nuel Wereh Namale, instituted the suit in the lower court seeking damages under the Fatal Accidents Act, Cap 32 Laws of Kenya, and the Law Reform Act, Cap 26 Laws of Kenya.
3. The trial court found the Appellants 100% liable for the accident and awarded damages, including Kshs. 2,850,000/= for loss of dependency.
4. The Appellants are aggrieved by both the finding on liability and the assessment of damages. They now invite this Court to interfere with the judgment of the trial court.
Duty of a First Appellate Court
5. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
6. The applicable principle was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it neither saw nor heard the witnesses and should make due allowance for that fact.
7. However, an appellate court will not lightly interfere with findings of fact by a trial court unless it is demonstrated that the findings were based on no evidence, were founded on a misapprehension of the evidence, or that the trial court acted on wrong principles of law.
Grounds of Appeal
8. The Appellants raised several grounds of appeal which, in my view, may be condensed into the following issues:
a. Whether the learned trial magistrate erred in finding the Appellants 100% liable for the accident;
b. Whether the learned trial magistrate failed to properly evaluate the evidence on record;
c. Whether the award of Kshs. 2,850,000/= for loss of dependency was excessive; and
d. Whether the learned trial magistrate misapplied the principles governing assessment of damages in fatal accident claims.
Background of the Claim
9. The Respondent pleaded that on 15th July 2016, the deceased was fatally injured after being involved in a road traffic accident along the Homa Bay–Kendu Bay Road near Adiedo.
10. It was pleaded that the accident was caused by the negligent driving, management and/or control of motor vehicle registration number KCD 136U, Toyota Hiace Matatu, by the Appellants’ driver.
11. The Respondent sought general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs and interest.
Evidence Before the Trial Court
Evidence of PW1
12. PW1, the widow of the deceased, testified that the deceased was her husband and the breadwinner of the family.
13. She produced documentary evidence in support of the claim, including the death certificate, post-mortem report, police abstract, letters of administration and a motor vehicle search confirming ownership of the accident motor vehicle.
Evidence of PW2
14. PW2 testified as an eyewitness. Her evidence was that motor vehicle KCD 136U was being driven at high speed when the accident occurred.
Evidence of PW3
15. PW3, the investigating officer, testified that he investigated the accident and blamed the driver of the accident motor vehicle.
16. He further confirmed that the driver was charged in traffic court with the offence of careless driving and was fined.
Defence Case
17. Although the Appellants filed a statement of defence denying negligence, they did not call any witness at the trial.
18. Their defence therefore remained a bare denial and was unsupported by evidence.
Liability
19. The Respondent’s case on liability was supported by eyewitness evidence and the evidence of the investigating officer. The evidence was that the motor vehicle was being driven at high speed, causing the driver to lose control, as a result of which the vehicle rolled.
20. The Appellants did not call any witness to rebut or controvert that evidence.
21. Under sections 107 and 108 of the Evidence Act, the burden of proof lies on the party who alleges the existence of facts. The Respondent therefore bore the burden of proving negligence on a balance of probabilities.
22. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court held that negligence is not presumed and must be proved by evidence. The standard of proof is on a balance of probabilities.
23. In the present case, the evidence before the trial court showed that this was a self-involving accident. The deceased was a passenger and had no control over the manner in which the vehicle was being driven.
24. I am satisfied that the proximate cause of the accident was the negligence of the driver of motor vehicle KCD 136U, who was driving at high speed and lost control of the vehicle.
25. The Respondent discharged the burden of proof through credible and uncontroverted evidence. The 2nd Appellant, being the owner of the motor vehicle, was vicariously liable for the negligence of the 1st Appellant and/or driver.
26. I therefore find no basis to interfere with the trial court’s finding that the Appellants were 100% liable for the accident.
Assessment of Damages
Principles Governing Appellate Interference with Damages
27. The law on appellate interference with an award of damages is settled. An appellate court will not interfere with an award of damages merely because it would have awarded a different figure had it tried the matter.
28. The Court may only interfere where it is shown that the trial court took into account an irrelevant factor, failed to consider a relevant factor, applied a wrong principle, or that the award was so inordinately high or low as to represent an erroneous estimate.
29. This principle was stated in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, and reiterated in Butler v Butler [1984] KLR 225.
Damages under the Law Reform Act
30. Damages under the Law Reform Act compensate the estate of the deceased. They ordinarily include damages for pain and suffering and damages for loss of expectation of life.
Pain and Suffering
31. Damages for pain and suffering are awarded where the deceased experienced pain before death. The amount awarded depends on the circumstances of each case, including the period between injury and death.
32. In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court observed that nominal damages are usually awarded where death follows immediately after the accident, and that awards for pain and suffering generally range between Kshs. 10,000/= and Kshs. 100,000/= depending on the circumstances.
33. Similar awards have been made in decisions such as Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR and West Kenya Sugar Co. Ltd v Philip Atonya [2020] eKLR, where awards of Kshs. 50,000/= were considered appropriate.
34. In the present case, the deceased died on the same day of the accident. Taking into account the circumstances of death and the applicable conventional awards, I award Kshs. 10,000/= for pain and suffering.
Loss of Expectation of Life
35. Loss of expectation of life is a conventional award made to the estate in recognition of the fact that the deceased’s life was prematurely shortened.
36. In Benham v Gambling [1941] AC 157, the House of Lords stated that such an award should be moderate. Kenyan courts have generally adopted the conventional award of Kshs. 100,000/= under this head.
37. This position has been applied in decisions including Sukari Industries Ltd v Clyde Machimbo Juma [2016] eKLR and West Kenya Sugar Co. Ltd v Philip Atonya [2020] eKLR.
38. In the present case, the trial court did not make an award under this head, although it had been pleaded. The court was under a duty to determine all issues properly placed before it. Failure to make a finding on this head was an error.
39. The deceased died at the age of 40 years, as shown in the death certificate. I therefore award Kshs. 100,000/= for loss of expectation of life.
Damages under the Fatal Accidents Act
40. The Fatal Accidents Act compensates the dependants of the deceased for the financial loss resulting from the death.
41. In assessing damages under this head, the court ordinarily considers the income of the deceased, the expected working life, and the dependency ratio. This is commonly referred to as the multiplier approach.
42. The principle was discussed in Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, where the Court considered the proper approach to assessment of damages for loss of dependency.
43. However, where the deceased’s income cannot be precisely ascertained, courts may adopt the global award approach. In this case, the learned trial magistrate found that the deceased’s income had not been proved and therefore adopted the global sum approach, awarding Kshs. 2,850,000/= for loss of dependency.
Global Award Approach
44. The global award approach has been upheld in several decisions where the income of the deceased could not be ascertained.
45. In Albert Odawa v Gichimu Gichenji [2007] eKLR, the Court stated that the multiplier approach is not a rule of law but a method of assessment, and that where the facts do not facilitate its application, the court may adopt a global award.
46. The same principle was applied in Mwanzia v Ngalali Mutua & Kenya Bus Services Ltd [2004] eKLR.
Comparative Awards
47. I have considered comparable decisions in which global awards were made. In Third Engineering Bureau v Momanyi [2025] KEHC 655, the Court made a global award of Kshs. 2,000,000/= where the deceased was aged 24 years.
48. In Joseph Muthuri v Nicholas Kinoti Kibera [2022] eKLR, the Court awarded a global sum of Kshs. 1,000,000/= in respect of a deceased who was 19 years old.
49. In Stanwel Holdings Limited & Another v Racheal Haluku Emanuel & Another [2020] eKLR, a global sum of Kshs. 2,000,000/= for loss of dependency in respect of a deceased aged 23 years was reduced on appeal to Kshs. 1,000,000/=.
50. In the present case, the deceased was aged 40 years at the time of death. He left behind a widow and four young children.
51. Considering the age of the deceased, the number of dependants, the uncertainty of income and the comparable authorities cited, I find that the award of Kshs. 2,850,000/= for loss of dependency was on the higher side.
52. I accordingly interfere with the award and substitute it with a global award of Kshs. 2,000,000/= for loss of dependency.
Special Damages
53. The Respondent pleaded special damages of Kshs. 200,000/=, comprising Kshs. 170,000/= for funeral expenses and Kshs. 30,000/= for obtaining letters of administration ad litem.
54. No receipts were produced in support of the special damages. The trial court also did not make a specific finding on this head, although the same had been pleaded.
55. It is trite law that special damages must not only be specifically pleaded but must also be strictly proved.
56. However, in respect of funeral expenses, courts have taken a practical approach and have recognised that bereaved families may not always keep receipts for all funeral-related expenses.
57. In Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, the Court of Appeal acknowledged the practical difficulty of expecting bereaved families to keep records of every expense incurred in burying a deceased relative. The Court accepted that funeral expenses may, in appropriate cases, be allowed where the claim is modest and reasonable.
58. In the present case, the pleaded sum of Kshs. 170,000/= for funeral expenses is modest and reasonable. I allow the same.
59. However, the claim for Kshs. 30,000/= being fees for letters of administration ad litem ought to have been strictly proved, as receipts or other evidence of payment were capable of being produced. That claim is therefore declined.
Double Compensation
60. The Court must also guard against double compensation where awards are made under both the Law Reform Act and the Fatal Accidents Act.
61. In Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, the Court of Appeal held that damages under the Law Reform Act and the Fatal Accidents Act are distinct, but the court must take into account the award under the Law Reform Act when assessing damages under the Fatal Accidents Act so as to avoid double compensation.
62. In the present case, having made an award for loss of expectation of life under the Law Reform Act, the same shall be taken into account in the final computation.
Disposition
63. In the result, the appeal succeeds only in part on quantum. The finding of the trial court on liability is upheld.
64. The judgment of the lower court on damages is hereby varied and substituted with judgment for the Respondent against the Appellants jointly and severally as follows :
a. General damages for pain and suffering: Kshs. 10,000/=
b. Loss of expectation of life: Kshs. 100,000/=
c. Loss of dependency: Kshs. 2,000,000/=
d.. Funeral expenses: Kshs. 170,000/=
Subtotal: Kshs. 2,280,000/=
Less award for loss of expectation of life to avoid double compensation: Kshs. 100,000/=
Grand Total: Kshs. 2,180,000/=
65. The Respondent shall have costs of the suit before the lower court and interest on the damages from the date of the judgment of the lower court.
66. Since the appeal has partially succeeded on quantum, the Appellants are awarded one-half of the costs of this appeal.
T.A ODERA
JUDGE
5.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 5TH DAY OF MARCH 2026 IN THE PRESENCE OF CA OGENDO PARTIES ABSENT