REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E017 OF 2024
HELEN MAKUNGU AMADIVA (suing as the
legal representatives of the Estate of Lwigado
Amadiva (deceased))……………………………………………….……APPELLANT
VERSUS
COUNTY GOVERNMENT OF VIHIGA……………………………..RESPONDENT
(Being an appeal from the Judgment and Decree of Hon R. Ndombi (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E113 of 2022 on 14 th March 2024)
JUDGMENT
INTRODUCTION
1. In her decision of 14 th March 2024, the Learned Trial Magistrate, Hon R. M. Ndombi, Principal Magistrate, found the Respondent wholly liable for the fatal accident that led to the deceased’s death and entered Judgment in favour of the Appellant against the Respondent in the following terms:-
Pain and suffering Kshs 100,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 1,831,950/=
Special damages Kshs 157,150/=
Kshs 2,189,100/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 9 th April 2024. She relied on four (4) grounds of appeal. The said Memorandum of Appeal did not bear a court stamp.
3. Her Written Submissions were dated 29 th July 2025 and filed on 25 th August 2025 while those of the Respondent were dated and filed on 4 th September 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. The Respondent submitted on the issue of liability. It did not, however, file a cross appeal. The appeal filed by the Appellant only challenged the award of damages. In the circumstances, it was this court’s view that the issue of liability was a non-issue in this appeal.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issue that had been placed before it for determination were:-
a. whether or not the quantum that was awarded was reasonable in the circumstances warranting interference by this court.
b. whether the Trial Court erred in its award of special damages.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. DAMAGES UNDER THE LAW REFORM ACT
A. PAIN AND SUFFERING
9. The Trial Court awarded Kshs 100,000/= for pain and suffering. The Appellant did not raise any objection to the figure. On the other hand, the Respondent argued that an award of Kshs 10,000/= for pain and suffering was fair as the deceased died on the same day of the occurrence.
10. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR and Sukari Industries Limited vs Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR , the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.
11. In the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR , the court therein awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident. In Sukari Industries limited vs Clyde Machimbo Jumba (2016) eKLR , the court held that nominal damages would be awarded if death occurred immediately after death and higher damages if pain was prolonged. The court also noted that the amount under this head ranged from Kshs10,000/= to Kshs 100,000/=.
12. Taking into account the aforesaid cases, it was the considered view that the sum of Kshs 100,000/= for pain and suffering was fair and reasonable as the deceased died while undergoing treatment during which time he must have suffered a lot of pain and suffering. The court, therefore, left the same undisturbed.
B. LOSS OF EXPECTATION OF LIFE
13. Both the Appellant and the Respondent did not seem to have any issue with the award under this head. The Respondent relied on the case of Benedeta Wanjiku Kimani vs Changwon Cheboi & Another [2013] eKLR where a sum of Kshs 100,000/= for loss of expectation of life. As the Trial Court awarded the sum of Kshs 100,000/= for loss of expectation of life, this court left the same as undisturbed.
II. DAMAGES UNDER THE FATAL ACCIDENTS ACT
B. MULTIPLIER
14. The Appellant pointed out that the deceased died at the age of thirty (30) years. Both she and the Respondent did not appear to contest the multiplier of twenty five (25) years. This court, therefore, left the multiplier undisturbed.
B. MULTIPLICAND
15. The Trial Court adopted a multiplicand of Kshs 18,319.50. Both the Appellant and the Respondent did not seem to have had a problem with the multiplicand. The court, therefore, left the multiplicand undisturbed.
C. DEPENDENCY RATIO
16. The Appellant faulted the Trial Court for adopting a dependency ratio of one third (1/3) when calculating loss of dependency. She submitted that the reasons the Trial Court gave were not based on evidence, fact or any law or principle. She stated that the Trial Court failed to consider her evidence and the Chief’s letter which mentioned the deceased’s child who was still a minor, a fact that the Respondent did not challenge even when it cross-examined her.
17. She faulted the Trial Court for having failed to consider the Chief’s letter and her viva voce evidence thus arriving at erroneous dependency ratio. She told the Trial Court that the deceased was his son and that all her other children died.
18. She placed reliance on the case of Sarah Naitore M'ikunvua vs Geoffrey Mwangi Bor & Another [2021] eKLR where the court reviewed the dependency ratio to two thirds (2/3) on the basis that although the deceased was unmarried, he had left behind a parent and a son who relied on him for support.
19. She referred to Section 4 of the Fatal Accidents Act which provided that any action filed under the Act, was brought for and on behalf of the deceased person's wife, husband, parent and child. She averred that she had brought the action on behalf of the deceased’s mother (sic) and his child. She argued that although the deceased was not married, that did not hinder his responsibilities towards the child. She urged this court to review the dependency ratio from one third (1/3) to two thirds (2/3).
20. On its part, the Respondent asked this court not to disturb the dependency ratio as no evidence was produced to show that the deceased had a child. It was also emphatic that the Appellant was also not a wife and, therefore, urged this court to retain the dependency ratio of one third (1/3) that the Trial Court had adopted.
21. Section 4(1) of the Fatal Accidents Act provides as follows:-
“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 (emphasis court) , 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:
Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.”
22. It was the Appellant’s evidence that the deceased had a child who depended on him. She produced a letter from the Chief dated 20 th May 2022 indicating that the deceased left two (2) dependants, being herself and a minor aged three (3) years old. The Respondent did not tender any evidence to rebut her evidence that he supported them financially.
23. Notably, the extent of dependency was a question of fact as held in Leonard Ekisa & Another vs Major Birgen [2005] eKLR where the court stated that there was no rule of law that 2/3 of the income of a person was to be taken as available for family expenses but that the extent of dependency was a question of fact that was to be established in each case.
24. Bearing in mind that the deceased had dependants, this court found the dependency ratio of third thirds (2/3) to have been fair. Any monies the deceased earned would have been used by the child whether or not the deceased was married. This court found and held that t he dependency ratio of one third (1/3) to have been inadequate in the circumstances of this case.
25. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (4) were merited and the same be and are hereby allowed.
III. SPECIAL DAMAGES
26. Ground of Appeal No (3) was dealt with under this head.
27. The Respondent submitted that the Trial Court applied wrong principles in considering the issue of special damages, thereby arriving at a wrong decision and awarding Kshs157,150/= despite producing receipts amounting to Kshs 171, 756/=. She also asserted that although she did not submit any receipts, she bought cows worth Kshs100, 000/= even though no receipts were produced.
28. She stated that courts had held that when there was a funeral, it was difficult for a bereaved party to keep all the receipts because in such times, such a party did not anticipate filing suits but only considered to do so after settling down after burials. She urged the court to consider such predicaments.
29. On its part, the Respondent asked this court to only award the that amount proved by the documents that were produced.
30. Whereas the Appellant did not specify the reason why she bought cows, the court took judicial notice that the same may have been intended for the activities appertaining to the deceased’s funeral. This court took further judicial notice that purchase of cows for funerals was a community effort to send off a loved one. However, it was expected that a bereaved family would incur some expenses towards their loved ones funeral.
31. This court did not see the receipts the Appellant was referring to. However, as the Respondent did not specifically oppose the sum of Kshs 157,150/= the Trial Court awarded only stating that it had to be proven, this court left the same undisturbed as the documents may not have found themselves in the Record of Appeal and the figure was modest noting the African funerals were an elaborate affair.
32. In the premises foregoing, Grounds of Appeal Nos (3) was not merited and the same be and is hereby dismissed.
DISPOSITION
33. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was dated 9 th April 2024 was partially merited. The effect of this decision is that the Judgment of Kshs.1,831,950/= under loss of dependency that was entered by the Trial Court in Vihiga in PMCC No E113 of 2022 on 14 th March 2024 be and is hereby set aside and/or vacated and judgment be and is hereby replaced with an order that judgment be and is hereby entered in favour of the Appellant against the Respondent for the sum of Kshs 4,021,050/= made as follows:-
Pain and suffering Kshs 100,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 3,663,900/=
2/3 x 18,319.50 x 12 x 25
Special damages Kshs 157,150/=
Kshs 4,021,050/=
Plus costs and interest at court rates. For the avoidance of doubt, interest on special damages will be from the date of filing suit while the interest on damages under the Law Reform Act and Fatal Accidents Act will be from the date of the judgment of the Trial Court until payment in full.
34. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of April 2026
J. KAMAU
JUDGE
HCCA NO E017 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E017 OF 2024
HELEN MAKUNGU AMADIVA (suing as the
legal representatives of the Estate of Lwigado
Amadiva (deceased))……………………………………………….……APPELLANT
VERSUS
COUNTY GOVERNMENT OF VIHIGA……………………………..RESPONDENT
(Being an appeal from the Judgment and Decree of Hon R. Ndombi (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E113 of 2022 on 14 th March 2024)
JUDGMENT
INTRODUCTION
1. In her decision of 14 th March 2024, the Learned Trial Magistrate, Hon R. M. Ndombi, Principal Magistrate, found the Respondent wholly liable for the fatal accident that led to the deceased’s death and entered Judgment in favour of the Appellant against the Respondent in the following terms:-
Pain and suffering Kshs 100,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 1,831,950/=
Special damages Kshs 157,150/=
Kshs 2,189,100/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 9 th April 2024. She relied on four (4) grounds of appeal. The said Memorandum of Appeal did not bear a court stamp.
3. Her Written Submissions were dated 29 th July 2025 and filed on 25 th August 2025 while those of the Respondent were dated and filed on 4 th September 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. The Respondent submitted on the issue of liability. It did not, however, file a cross appeal. The appeal filed by the Appellant only challenged the award of damages. In the circumstances, it was this court’s view that the issue of liability was a non-issue in this appeal.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issue that had been placed before it for determination were:-
a. whether or not the quantum that was awarded was reasonable in the circumstances warranting interference by this court.
b. whether the Trial Court erred in its award of special damages.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. DAMAGES UNDER THE LAW REFORM ACT
A. PAIN AND SUFFERING
9. The Trial Court awarded Kshs 100,000/= for pain and suffering. The Appellant did not raise any objection to the figure. On the other hand, the Respondent argued that an award of Kshs 10,000/= for pain and suffering was fair as the deceased died on the same day of the occurrence.
10. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR and Sukari Industries Limited vs Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR , the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.
11. In the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR , the court therein awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident. In Sukari Industries limited vs Clyde Machimbo Jumba (2016) eKLR , the court held that nominal damages would be awarded if death occurred immediately after death and higher damages if pain was prolonged. The court also noted that the amount under this head ranged from Kshs10,000/= to Kshs 100,000/=.
12. Taking into account the aforesaid cases, it was the considered view that the sum of Kshs 100,000/= for pain and suffering was fair and reasonable as the deceased died while undergoing treatment during which time he must have suffered a lot of pain and suffering. The court, therefore, left the same undisturbed.
B. LOSS OF EXPECTATION OF LIFE
13. Both the Appellant and the Respondent did not seem to have any issue with the award under this head. The Respondent relied on the case of Benedeta Wanjiku Kimani vs Changwon Cheboi & Another [2013] eKLR where a sum of Kshs 100,000/= for loss of expectation of life. As the Trial Court awarded the sum of Kshs 100,000/= for loss of expectation of life, this court left the same as undisturbed.
II. DAMAGES UNDER THE FATAL ACCIDENTS ACT
B. MULTIPLIER
14. The Appellant pointed out that the deceased died at the age of thirty (30) years. Both she and the Respondent did not appear to contest the multiplier of twenty five (25) years. This court, therefore, left the multiplier undisturbed.
B. MULTIPLICAND
15. The Trial Court adopted a multiplicand of Kshs 18,319.50. Both the Appellant and the Respondent did not seem to have had a problem with the multiplicand. The court, therefore, left the multiplicand undisturbed.
C. DEPENDENCY RATIO
16. The Appellant faulted the Trial Court for adopting a dependency ratio of one third (1/3) when calculating loss of dependency. She submitted that the reasons the Trial Court gave were not based on evidence, fact or any law or principle. She stated that the Trial Court failed to consider her evidence and the Chief’s letter which mentioned the deceased’s child who was still a minor, a fact that the Respondent did not challenge even when it cross-examined her.
17. She faulted the Trial Court for having failed to consider the Chief’s letter and her viva voce evidence thus arriving at erroneous dependency ratio. She told the Trial Court that the deceased was his son and that all her other children died.
18. She placed reliance on the case of Sarah Naitore M'ikunvua vs Geoffrey Mwangi Bor & Another [2021] eKLR where the court reviewed the dependency ratio to two thirds (2/3) on the basis that although the deceased was unmarried, he had left behind a parent and a son who relied on him for support.
19. She referred to Section 4 of the Fatal Accidents Act which provided that any action filed under the Act, was brought for and on behalf of the deceased person's wife, husband, parent and child. She averred that she had brought the action on behalf of the deceased’s mother (sic) and his child. She argued that although the deceased was not married, that did not hinder his responsibilities towards the child. She urged this court to review the dependency ratio from one third (1/3) to two thirds (2/3).
20. On its part, the Respondent asked this court not to disturb the dependency ratio as no evidence was produced to show that the deceased had a child. It was also emphatic that the Appellant was also not a wife and, therefore, urged this court to retain the dependency ratio of one third (1/3) that the Trial Court had adopted.
21. Section 4(1) of the Fatal Accidents Act provides as follows:-
“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 (emphasis court) , 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:
Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.”
22. It was the Appellant’s evidence that the deceased had a child who depended on him. She produced a letter from the Chief dated 20 th May 2022 indicating that the deceased left two (2) dependants, being herself and a minor aged three (3) years old. The Respondent did not tender any evidence to rebut her evidence that he supported them financially.
23. Notably, the extent of dependency was a question of fact as held in Leonard Ekisa & Another vs Major Birgen [2005] eKLR where the court stated that there was no rule of law that 2/3 of the income of a person was to be taken as available for family expenses but that the extent of dependency was a question of fact that was to be established in each case.
24. Bearing in mind that the deceased had dependants, this court found the dependency ratio of third thirds (2/3) to have been fair. Any monies the deceased earned would have been used by the child whether or not the deceased was married. This court found and held that t he dependency ratio of one third (1/3) to have been inadequate in the circumstances of this case.
25. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (4) were merited and the same be and are hereby allowed.
III. SPECIAL DAMAGES
26. Ground of Appeal No (3) was dealt with under this head.
27. The Respondent submitted that the Trial Court applied wrong principles in considering the issue of special damages, thereby arriving at a wrong decision and awarding Kshs157,150/= despite producing receipts amounting to Kshs 171, 756/=. She also asserted that although she did not submit any receipts, she bought cows worth Kshs100, 000/= even though no receipts were produced.
28. She stated that courts had held that when there was a funeral, it was difficult for a bereaved party to keep all the receipts because in such times, such a party did not anticipate filing suits but only considered to do so after settling down after burials. She urged the court to consider such predicaments.
29. On its part, the Respondent asked this court to only award the that amount proved by the documents that were produced.
30. Whereas the Appellant did not specify the reason why she bought cows, the court took judicial notice that the same may have been intended for the activities appertaining to the deceased’s funeral. This court took further judicial notice that purchase of cows for funerals was a community effort to send off a loved one. However, it was expected that a bereaved family would incur some expenses towards their loved ones funeral.
31. This court did not see the receipts the Appellant was referring to. However, as the Respondent did not specifically oppose the sum of Kshs 157,150/= the Trial Court awarded only stating that it had to be proven, this court left the same undisturbed as the documents may not have found themselves in the Record of Appeal and the figure was modest noting the African funerals were an elaborate affair.
32. In the premises foregoing, Grounds of Appeal Nos (3) was not merited and the same be and is hereby dismissed.
DISPOSITION
33. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was dated 9 th April 2024 was partially merited. The effect of this decision is that the Judgment of Kshs.1,831,950/= under loss of dependency that was entered by the Trial Court in Vihiga in PMCC No E113 of 2022 on 14 th March 2024 be and is hereby set aside and/or vacated and judgment be and is hereby replaced with an order that judgment be and is hereby entered in favour of the Appellant against the Respondent for the sum of Kshs 4,021,050/= made as follows:-
Pain and suffering Kshs 100,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 3,663,900/=
2/3 x 18,319.50 x 12 x 25
Special damages Kshs 157,150/=
Kshs 4,021,050/=
Plus costs and interest at court rates. For the avoidance of doubt, interest on special damages will be from the date of filing suit while the interest on damages under the Law Reform Act and Fatal Accidents Act will be from the date of the judgment of the Trial Court until payment in full.
34. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of April 2026
J. KAMAU
JUDGE
HCCA NO E017 OF 20242