1. Before me is an appeal against the judgment of the trial court delivered on 21st August 2025 by the Honourable Shadrack O. Otuke, Senior Resident Magistrate, in Garissa Chief Magistrates Court Civil Suit No. E027 of 2022. The brief background of the appeal is that the Respondents, acting as administrators of the estate of the late Tony Kimanzi Mutua alias Kimanzi Mutua (hereinafter “the deceased”), filed suit against the Appellant following a fatal road traffic accident on 30th December 2021 along the Garissa-Mwingi road at Tula area, in which the deceased, then aged 19 years, lost his life. The accident involved the Appellant’s motor vehicle registration number KBY 157U, driven by the Appellant’s authorized driver Lawrence Kahuthia Wanjiru (DW1), and motorcycle registration number KMFR 550G. The suit as against the 2nd Defendant (Equity Bank Limited) was struck out by a ruling delivered on 16th January 2024.
2. By its judgment dated 21st August 2025, the trial court entered judgment in favour of the Respondents as follows:
Liability 100% against the Appellant
Pain and suffering Kshs. 30,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency (global award) Kshs. 1,800,000.00
Special damages Kshs. 446,550.00
Total Kshs. 2,376,550.00 plus interest and costs
3. Aggrieved by the said judgment, the Appellant filed the present appeal vide a Memorandum of Appeal dated 17th December 2025, filed pursuant to leave to appeal out of time granted on 17th December 2025 in Garissa High Court Miscellaneous Application No. E015 of 2025. The appeal comprises twelve (12) grounds which broadly challenge the trial court’s finding of 100% liability against the Appellant (grounds 1-8), the award for loss of dependency as manifestly excessive (ground 9), the special damages award as not being strictly proved (ground 10), the alleged conferral of a double benefit arising from the interplay of the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32) (ground 11), and a general averment that the cumulative misdirections occasioned a miscarriage of justice (ground 12).
4. The appeal was disposed of by way of written submissions pursuant to directions issued on 18th March 2026. The Appellant, through G. Mutua Molo & Company Advocates, filed submissions on 9th April 2026. The Respondents, through N.M. & K. Advocates, filed their submissions on 16th April 2026. I have had the privilege of reading both sets of submissions alongside the authorities relied upon therein, as well as the record of appeal. I have framed the following issues for determination.
Issues:
1. Whether the court should interfere with the trial court’s finding on liability?
2. Whether the court should interfere with the trial court’s awards on quantum?
5. The Court of Appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award in damages:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” Judgment of Law JA.
6. The rationale for compensation is well-known. Potter, JA stated in Rahima Tayab & Others v Anna Mary Kinanu Civil Appeal No 29 of 1982 [1983] eKLR 114; 1 KAR 90 while relying on the oft-cited case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:
“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.”
7. In determining the issues above, I am mindful of the principle that an appellate court is not justified in substituting a figure of its own for that awarded by the trial court simply because it would have awarded a different figure had it tried the case at first instance. It must be shown that the learned Magistrate proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. Similarly, as regards findings of fact, an appellate court will not interfere with such findings unless the trial court clearly failed to take into account particular circumstances or relevant materials necessary for a proper assessment of the evidence.
Liability
8. The Appellant submits that the learned trial Magistrate fundamentally erred in law and in fact in finding the Appellant 100% liable, contrary to the weight of evidence on record. The Appellant centers its challenge on the trial court’s treatment of the evidence of PW3, PC Hussein Buno (the investigating officer), who visited the scene of the accident after the fact and based his findings on skid marks, debris and the resting positions of the vehicles. The Appellant specifically impugns paragraph 29 of the trial court’s judgment, wherein the Magistrate acknowledged that the motor vehicle was on the motorcycle’s lane after the collision and that it had veered to the right following the collision, yet paradoxically concluded that the motor vehicle was on the motorcycle’s lane at the time of impact. The Appellant submits that this reasoning is internally inconsistent and amounts to a material misdirection.
9. The foundation of the Appellant’s challenge on liability rests on the cross-examination evidence of PW3. In his examination in chief, PW3 stated that at the scene, the motor vehicle was found on the right lane — the motorcycle’s lane — facing the Garissa direction. However, on cross-examination, PW3 clearly stated that the accident occurred on the left lane, which was the motor vehicle’s lawful lane; that after the collision, the motor vehicle driver lost control and the vehicle veered off to the right lane; and that the rider of the motorcycle was to blame for the occurrence of the accident. The Appellant submits that the trial court failed to reconcile these admissions with its findings, and by treating the post-collision resting position of the motor vehicle as indicative of the point of impact, the Magistrate misapprehended the evidence in a manner that rendered the conclusion on liability unsafe.
10. The Respondents, for their part, submit that the trial court correctly found the Appellant wholly liable. They rely on the testimony of PW1 Jackson Munene Mwendwa, who testified as an eyewitness that he was approximately 20 meters behind the motorcycle when he saw the Appellant’s motor vehicle veer off its lane and violently collide head-on with the motorcycle. It is argued that the driver of a motor vehicle owes a higher duty of care to other road users and that the Appellant’s driver failed in that duty. The Respondents also rely on a line of authorities establishing that a pillion passenger bears no responsibility for the accident and cannot be the subject of contributory negligence. They further argue that the Appellant’s driver did not produce his inspection report or driving licence, and that adverse inferences should be drawn from those failures.
11. Having re-evaluated the evidence on the record, I find that the trial court erred in its analysis, save to add that I would similarly come to the same finding on liability. I find PW1’s testimony to be more cogent. PW1 was an eyewitness while PW3 was not at the scene of the accident. I agree with the appellant that PW3’s cross-examination evidence attributed blame to the motorcycle rider and implied that the left lane was the point of impact — evidence that the trial court failed entirely to reconcile with its conclusion. As the Court of Appeal held in Selle v Associated Motor Boat Co Ltd [1968] EA 123, this Court as a first appellate court is entitled to re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. Having cautioned myself accordingly, I now proceed to re-evaluate the evidence of PW1, PW3 and DW1.
12. I cannot discount the evidence of PW1, who was approximately 20 metres behind the deceased’s motorcycle and testified that the motor vehicle KBY 157U entered the motorcycle’s lane. PW1’s evidence does represent a direct eyewitness account, his credibility was not called into question, he was firm under cross-examination and honest when he admitted that he could not recall the Motorcycle’s registration number. On the other hand, PW3’s testimony was all over the place, while his evidence in cross-examination is more favourable to the Appellant, it is not in dispute that he visited the scene after the fact. He testified that he examined the skid marks and debris and provided an account that placed the point of impact on the motor vehicle’s lawful lane. DW1’s account — that the motorcycle emerged from a steep bend at high speed and encroached into his lane — cannot be entirely dismissed either in light of PW3’s cross-examination evidence.
13. That said, I find that I would have equally found the Appellant wholly liable for the accident as against the respondent. PW1 had nothing to gain from his testimony, he was an independent credible eyewitness and therefore I find his testimony to be the most believable. What negligence was proved on the part of the pillion passenger? I fear none. The trial court could not apportion liability to a third-party who was not party to the suit, the dispute as presented was rightfully between the Appellant and the Respondent. The question as to whether the driver of the said Motorcycle was negligent should have entirely not formed part of the controversy in this matter. The Appellant brought forth allegations of negligence on the part of the deceased but could not prove it see Kiando v Mungai [2024] KEHC 10412 (KLR). He elected not to bring in the third-party he blamed for the accident but brought forth spirited submissions blaming the said third-party for the accident.
14. Based on the material before the trial court, I find that the Respondent had proved its case to the required standard and therefore will not interfere with its findings in this regard.
Pain and Suffering
15. Pain and suffering was not a ground directly challenged in the Memorandum of Appeal. The deceased died on the spot from fatal head injuries, as confirmed by the post-mortem report and death certificate produced at trial. The conventional approach to pain and suffering for a person who died at the scene of an accident is to award a nominal sum in the range of Kenya Shillings Ten Thousand (KES 10,000.00) to Kenya Shillings One Hundred Thousand (KES 100,000.00), with higher awards where pain and suffering was prolonged before death. See Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLR. The trial court’s award of Kenya Shillings Thirty Thousand (KES 30,000.00) falls squarely within the accepted range for a person who died on the spot and I uphold it.
Loss of Expectation of Life
16. Loss of expectation of life was similarly not directly challenged in the Memorandum of Appeal. The deceased was a healthy 19-year-old whose life expectancy was tragically cut short by the accident. The Court of Appeal in Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja Deceased) v Kiarie Shoe Stores Limited [2015] eKLR confirmed the conventional award under this head, and both parties at trial agreed that Kenya Shillings One Hundred Thousand (KES 100,000.00) was the appropriate conventional sum. The Respondents submitted precisely this figure at trial. I uphold the trial court’s award of Kenya Shillings One Hundred Thousand (KES 100,000.00) under this head.
Loss of Dependency
17. The principles governing the assessment of loss of dependency under the Fatal Accidents Act (Cap. 32) are well settled. Where the deceased’s income and the details of dependency can be ascertained, courts prefer the multiplier-multiplicand approach. Where, however, those facts are difficult to establish with precision, courts may adopt a global sum so as not to sacrifice justice on the altar of methodology. In Marko Mwenda v Bernard Mugambi & Another, Nairobi HCCC No. 2343 of 1993, the court held that where insistence on the multiplier approach would result in injustice, the court should readily abandon it. Equally, in Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi (Suing as administrator and personal representative of Anthony Mwiti Gakungu Deceased) [2020] eKLR, the court affirmed that where no satisfactory proof of monthly income exists, a global sum approach informed by the special circumstances of the case is advisable and that the award should not be arbitrary but should correctly fit the gap left by the deceased.
18. The Appellant submits that the award of Kenya Shillings One Million Eight Hundred Thousand (KES 1,800,000.00) for loss of dependency is manifestly excessive. The Appellant points out that the deceased was only 19 years old, unmarried, and had no documentary proof of income. The Appellant proposes a global award of Kenya Shillings Four Hundred Thousand (KES 400,000.00), or in the alternative, a multiplier-based computation at minimum wage of Kenya Shillings 7,240.95 per month, a multiplier of 15 years and a dependency ratio of one-third, yielding Kenya Shillings Four Hundred and Thirty-Four Thousand, Four Hundred and Fifty-Seven (KES 434,457.00). The Appellant further submits that the trial court failed entirely to address or engage with the Appellant’s detailed written submissions, which is itself a misdirection in law.
19. The Respondents urge this court not to interfere with the trial court’s award. They submit that PW2, the deceased’s father, testified that the deceased was employed as a mason earning Kenya Shillings Thirty Thousand (KES 30,000.00) per month and used a substantial portion of his income to educate his younger siblings and support his parents. This testimony was supported by a letter from the local chief. The Respondents rely on the Court of Appeal’s decision in Jacob Ayiga Maruja & Francis Karani v Simeon Obayo [2005] eKLR to submit that documentary evidence is not the only way to prove earnings, and that oral testimony from a credible source is sufficient. The Respondents further submit that the deceased was the first-born child in a family of six and that his parents and siblings were genuinely dependent on him.
20. I have independently assessed the evidence on this head. I accept the Respondents’ submission, supported by the Court of Appeal in Jacob Ayiga Maruja (supra), that the absence of documentary proof of earnings does not per se defeat the claim for loss of dependency. PW2’s evidence that the deceased earned Kenya Shillings Thirty Thousand (KES 30,000.00) per month as a mason was given on oath and was corroborated by the chief’s letter. I also accept the Respondents’ submission that the global sum approach is appropriate in this case, given the deceased’s young age and the inherent uncertainty in projecting his future earnings trajectory. That said, I find that the trial court’s assessment of this head to be manifestly excessive and set it aside.
21. In reassessing the award, I take into account the following: the deceased was 19 years old at the time of his death; he was unmarried and had no children; his parents and siblings are his primary dependants; his occupation as a mason; a noble trade with variable earnings; and he had a full working life ahead of him. I also bear in mind the words of Meoli J in Chen Wembo & 2 Others v I K K & Another [2017] eKLR that even where a deceased is young but undertaking a professional, the path is fraught with imponderables and the court’s exercise of discretion is delicate.
22. Taking all the unique circumstances of this case into account, I find that a global award of Kenya Shillings One Million Six Hundred Thousand (KES 1,600,000.00) is fair, reasonable and deserved in the circumstances of this case.
Special Damages
23. On special damages, the rule is strict: they must be specifically pleaded and strictly proved by way of receipts. The Plaint pleaded special damages totalling Kenya Shillings Four Hundred and Fifty-Six Thousand, Five Hundred and Fifty (KES 456,550.00), comprising copy of records (KES 550.00), letters of administration (KES 445,000.00), and funeral expenses (KES 1,000.00). The Appellant correctly points out that the receipts produced in evidence totalled Kenya Shillings Four Hundred and Forty-Five Thousand, Five Hundred and Fifty (KES 445,550.00), is not the pleaded amount. The trial court at paragraph 84 of its judgment independently scrutinised the exhibits and found that the provable amount from the receipts was Kenya Shillings Four Hundred and Forty-Six Thousand, Five Hundred and Fifty (KES 446,550.00), and awarded accordingly. The trial court therefore did engage with this discrepancy, and I find no error in its approach. I uphold the special damages award at Kenya Shillings Four Hundred and Forty-Six Thousand, Five Hundred and Fifty (KES 446,550.00).
Interplay of the Law Reform Act and the Fatal Accidents Act
24. The Appellant’s ground 11 avers that the awards under the Law Reform Act (Cap. 26) for pain and suffering (KES 30,000.00) and loss of expectation of life (KES 100,000.00), totalling Kenya Shillings One Hundred and Thirty Thousand (KES 130,000.00), ought to have been taken into account in reduction of the loss of dependency award under the Fatal Accidents Act (Cap. 32), since the beneficiaries under both statutes are the same persons. This ground fails in law. The Court of Appeal in Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja Deceased) v Kiarie Shoe Stores Limited [2015] eKLR stated categorically: “It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.” The awards under the LRA and the FAA compensate for entirely different losses — the estate’s loss on the one hand, and the dependants’ pecuniary loss on the other — and no double benefit arises. This ground is dismissed.
Determination
25. The upshot of the above is that the appeal is partly successful. The judgment of the Trial Court is set aside and substituted as follows:
Liability 100% against the Appellant
Pain and suffering Kshs. 30,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency Kshs. 1,600,000.00
Special damages Kshs. 446,550.00
TOTAL Ksh. 2,176,550
26. Each party shall bear their own costs of this appeal. The Respondents shall have costs of the proceedings in the trial court. The above judgment shall accrue interest at court’s rate from the date of the trial court’s judgment delivered on 21st August 2025. It is so ordered.
2. By its judgment dated 21st August 2025, the trial court entered judgment in favour of the Respondents as follows:
Liability 100% against the Appellant
Pain and suffering Kshs. 30,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency (global award) Kshs. 1,800,000.00
Special damages Kshs. 446,550.00
Total Kshs. 2,376,550.00 plus interest and costs
3. Aggrieved by the said judgment, the Appellant filed the present appeal vide a Memorandum of Appeal dated 17th December 2025, filed pursuant to leave to appeal out of time granted on 17th December 2025 in Garissa High Court Miscellaneous Application No. E015 of 2025. The appeal comprises twelve (12) grounds which broadly challenge the trial court’s finding of 100% liability against the Appellant (grounds 1-8), the award for loss of dependency as manifestly excessive (ground 9), the special damages award as not being strictly proved (ground 10), the alleged conferral of a double benefit arising from the interplay of the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32) (ground 11), and a general averment that the cumulative misdirections occasioned a miscarriage of justice (ground 12).
4. The appeal was disposed of by way of written submissions pursuant to directions issued on 18th March 2026. The Appellant, through G. Mutua Molo & Company Advocates, filed submissions on 9th April 2026. The Respondents, through N.M. & K. Advocates, filed their submissions on 16th April 2026. I have had the privilege of reading both sets of submissions alongside the authorities relied upon therein, as well as the record of appeal. I have framed the following issues for determination.
Issues:
1. Whether the court should interfere with the trial court’s finding on liability?
2. Whether the court should interfere with the trial court’s awards on quantum?
5. The Court of Appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award in damages:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” Judgment of Law JA.
6. The rationale for compensation is well-known. Potter, JA stated in Rahima Tayab & Others v Anna Mary Kinanu Civil Appeal No 29 of 1982 [1983] eKLR 114; 1 KAR 90 while relying on the oft-cited case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:
“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.”
7. In determining the issues above, I am mindful of the principle that an appellate court is not justified in substituting a figure of its own for that awarded by the trial court simply because it would have awarded a different figure had it tried the case at first instance. It must be shown that the learned Magistrate proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. Similarly, as regards findings of fact, an appellate court will not interfere with such findings unless the trial court clearly failed to take into account particular circumstances or relevant materials necessary for a proper assessment of the evidence.
Liability
8. The Appellant submits that the learned trial Magistrate fundamentally erred in law and in fact in finding the Appellant 100% liable, contrary to the weight of evidence on record. The Appellant centers its challenge on the trial court’s treatment of the evidence of PW3, PC Hussein Buno (the investigating officer), who visited the scene of the accident after the fact and based his findings on skid marks, debris and the resting positions of the vehicles. The Appellant specifically impugns paragraph 29 of the trial court’s judgment, wherein the Magistrate acknowledged that the motor vehicle was on the motorcycle’s lane after the collision and that it had veered to the right following the collision, yet paradoxically concluded that the motor vehicle was on the motorcycle’s lane at the time of impact. The Appellant submits that this reasoning is internally inconsistent and amounts to a material misdirection.
9. The foundation of the Appellant’s challenge on liability rests on the cross-examination evidence of PW3. In his examination in chief, PW3 stated that at the scene, the motor vehicle was found on the right lane — the motorcycle’s lane — facing the Garissa direction. However, on cross-examination, PW3 clearly stated that the accident occurred on the left lane, which was the motor vehicle’s lawful lane; that after the collision, the motor vehicle driver lost control and the vehicle veered off to the right lane; and that the rider of the motorcycle was to blame for the occurrence of the accident. The Appellant submits that the trial court failed to reconcile these admissions with its findings, and by treating the post-collision resting position of the motor vehicle as indicative of the point of impact, the Magistrate misapprehended the evidence in a manner that rendered the conclusion on liability unsafe.
10. The Respondents, for their part, submit that the trial court correctly found the Appellant wholly liable. They rely on the testimony of PW1 Jackson Munene Mwendwa, who testified as an eyewitness that he was approximately 20 meters behind the motorcycle when he saw the Appellant’s motor vehicle veer off its lane and violently collide head-on with the motorcycle. It is argued that the driver of a motor vehicle owes a higher duty of care to other road users and that the Appellant’s driver failed in that duty. The Respondents also rely on a line of authorities establishing that a pillion passenger bears no responsibility for the accident and cannot be the subject of contributory negligence. They further argue that the Appellant’s driver did not produce his inspection report or driving licence, and that adverse inferences should be drawn from those failures.
11. Having re-evaluated the evidence on the record, I find that the trial court erred in its analysis, save to add that I would similarly come to the same finding on liability. I find PW1’s testimony to be more cogent. PW1 was an eyewitness while PW3 was not at the scene of the accident. I agree with the appellant that PW3’s cross-examination evidence attributed blame to the motorcycle rider and implied that the left lane was the point of impact — evidence that the trial court failed entirely to reconcile with its conclusion. As the Court of Appeal held in Selle v Associated Motor Boat Co Ltd [1968] EA 123, this Court as a first appellate court is entitled to re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. Having cautioned myself accordingly, I now proceed to re-evaluate the evidence of PW1, PW3 and DW1.
12. I cannot discount the evidence of PW1, who was approximately 20 metres behind the deceased’s motorcycle and testified that the motor vehicle KBY 157U entered the motorcycle’s lane. PW1’s evidence does represent a direct eyewitness account, his credibility was not called into question, he was firm under cross-examination and honest when he admitted that he could not recall the Motorcycle’s registration number. On the other hand, PW3’s testimony was all over the place, while his evidence in cross-examination is more favourable to the Appellant, it is not in dispute that he visited the scene after the fact. He testified that he examined the skid marks and debris and provided an account that placed the point of impact on the motor vehicle’s lawful lane. DW1’s account — that the motorcycle emerged from a steep bend at high speed and encroached into his lane — cannot be entirely dismissed either in light of PW3’s cross-examination evidence.
13. That said, I find that I would have equally found the Appellant wholly liable for the accident as against the respondent. PW1 had nothing to gain from his testimony, he was an independent credible eyewitness and therefore I find his testimony to be the most believable. What negligence was proved on the part of the pillion passenger? I fear none. The trial court could not apportion liability to a third-party who was not party to the suit, the dispute as presented was rightfully between the Appellant and the Respondent. The question as to whether the driver of the said Motorcycle was negligent should have entirely not formed part of the controversy in this matter. The Appellant brought forth allegations of negligence on the part of the deceased but could not prove it see Kiando v Mungai [2024] KEHC 10412 (KLR). He elected not to bring in the third-party he blamed for the accident but brought forth spirited submissions blaming the said third-party for the accident.
14. Based on the material before the trial court, I find that the Respondent had proved its case to the required standard and therefore will not interfere with its findings in this regard.
Pain and Suffering
15. Pain and suffering was not a ground directly challenged in the Memorandum of Appeal. The deceased died on the spot from fatal head injuries, as confirmed by the post-mortem report and death certificate produced at trial. The conventional approach to pain and suffering for a person who died at the scene of an accident is to award a nominal sum in the range of Kenya Shillings Ten Thousand (KES 10,000.00) to Kenya Shillings One Hundred Thousand (KES 100,000.00), with higher awards where pain and suffering was prolonged before death. See Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLR. The trial court’s award of Kenya Shillings Thirty Thousand (KES 30,000.00) falls squarely within the accepted range for a person who died on the spot and I uphold it.
Loss of Expectation of Life
16. Loss of expectation of life was similarly not directly challenged in the Memorandum of Appeal. The deceased was a healthy 19-year-old whose life expectancy was tragically cut short by the accident. The Court of Appeal in Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja Deceased) v Kiarie Shoe Stores Limited [2015] eKLR confirmed the conventional award under this head, and both parties at trial agreed that Kenya Shillings One Hundred Thousand (KES 100,000.00) was the appropriate conventional sum. The Respondents submitted precisely this figure at trial. I uphold the trial court’s award of Kenya Shillings One Hundred Thousand (KES 100,000.00) under this head.
Loss of Dependency
17. The principles governing the assessment of loss of dependency under the Fatal Accidents Act (Cap. 32) are well settled. Where the deceased’s income and the details of dependency can be ascertained, courts prefer the multiplier-multiplicand approach. Where, however, those facts are difficult to establish with precision, courts may adopt a global sum so as not to sacrifice justice on the altar of methodology. In Marko Mwenda v Bernard Mugambi & Another, Nairobi HCCC No. 2343 of 1993, the court held that where insistence on the multiplier approach would result in injustice, the court should readily abandon it. Equally, in Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi (Suing as administrator and personal representative of Anthony Mwiti Gakungu Deceased) [2020] eKLR, the court affirmed that where no satisfactory proof of monthly income exists, a global sum approach informed by the special circumstances of the case is advisable and that the award should not be arbitrary but should correctly fit the gap left by the deceased.
18. The Appellant submits that the award of Kenya Shillings One Million Eight Hundred Thousand (KES 1,800,000.00) for loss of dependency is manifestly excessive. The Appellant points out that the deceased was only 19 years old, unmarried, and had no documentary proof of income. The Appellant proposes a global award of Kenya Shillings Four Hundred Thousand (KES 400,000.00), or in the alternative, a multiplier-based computation at minimum wage of Kenya Shillings 7,240.95 per month, a multiplier of 15 years and a dependency ratio of one-third, yielding Kenya Shillings Four Hundred and Thirty-Four Thousand, Four Hundred and Fifty-Seven (KES 434,457.00). The Appellant further submits that the trial court failed entirely to address or engage with the Appellant’s detailed written submissions, which is itself a misdirection in law.
19. The Respondents urge this court not to interfere with the trial court’s award. They submit that PW2, the deceased’s father, testified that the deceased was employed as a mason earning Kenya Shillings Thirty Thousand (KES 30,000.00) per month and used a substantial portion of his income to educate his younger siblings and support his parents. This testimony was supported by a letter from the local chief. The Respondents rely on the Court of Appeal’s decision in Jacob Ayiga Maruja & Francis Karani v Simeon Obayo [2005] eKLR to submit that documentary evidence is not the only way to prove earnings, and that oral testimony from a credible source is sufficient. The Respondents further submit that the deceased was the first-born child in a family of six and that his parents and siblings were genuinely dependent on him.
20. I have independently assessed the evidence on this head. I accept the Respondents’ submission, supported by the Court of Appeal in Jacob Ayiga Maruja (supra), that the absence of documentary proof of earnings does not per se defeat the claim for loss of dependency. PW2’s evidence that the deceased earned Kenya Shillings Thirty Thousand (KES 30,000.00) per month as a mason was given on oath and was corroborated by the chief’s letter. I also accept the Respondents’ submission that the global sum approach is appropriate in this case, given the deceased’s young age and the inherent uncertainty in projecting his future earnings trajectory. That said, I find that the trial court’s assessment of this head to be manifestly excessive and set it aside.
21. In reassessing the award, I take into account the following: the deceased was 19 years old at the time of his death; he was unmarried and had no children; his parents and siblings are his primary dependants; his occupation as a mason; a noble trade with variable earnings; and he had a full working life ahead of him. I also bear in mind the words of Meoli J in Chen Wembo & 2 Others v I K K & Another [2017] eKLR that even where a deceased is young but undertaking a professional, the path is fraught with imponderables and the court’s exercise of discretion is delicate.
22. Taking all the unique circumstances of this case into account, I find that a global award of Kenya Shillings One Million Six Hundred Thousand (KES 1,600,000.00) is fair, reasonable and deserved in the circumstances of this case.
Special Damages
23. On special damages, the rule is strict: they must be specifically pleaded and strictly proved by way of receipts. The Plaint pleaded special damages totalling Kenya Shillings Four Hundred and Fifty-Six Thousand, Five Hundred and Fifty (KES 456,550.00), comprising copy of records (KES 550.00), letters of administration (KES 445,000.00), and funeral expenses (KES 1,000.00). The Appellant correctly points out that the receipts produced in evidence totalled Kenya Shillings Four Hundred and Forty-Five Thousand, Five Hundred and Fifty (KES 445,550.00), is not the pleaded amount. The trial court at paragraph 84 of its judgment independently scrutinised the exhibits and found that the provable amount from the receipts was Kenya Shillings Four Hundred and Forty-Six Thousand, Five Hundred and Fifty (KES 446,550.00), and awarded accordingly. The trial court therefore did engage with this discrepancy, and I find no error in its approach. I uphold the special damages award at Kenya Shillings Four Hundred and Forty-Six Thousand, Five Hundred and Fifty (KES 446,550.00).
Interplay of the Law Reform Act and the Fatal Accidents Act
24. The Appellant’s ground 11 avers that the awards under the Law Reform Act (Cap. 26) for pain and suffering (KES 30,000.00) and loss of expectation of life (KES 100,000.00), totalling Kenya Shillings One Hundred and Thirty Thousand (KES 130,000.00), ought to have been taken into account in reduction of the loss of dependency award under the Fatal Accidents Act (Cap. 32), since the beneficiaries under both statutes are the same persons. This ground fails in law. The Court of Appeal in Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja Deceased) v Kiarie Shoe Stores Limited [2015] eKLR stated categorically: “It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.” The awards under the LRA and the FAA compensate for entirely different losses — the estate’s loss on the one hand, and the dependants’ pecuniary loss on the other — and no double benefit arises. This ground is dismissed.
Determination
25. The upshot of the above is that the appeal is partly successful. The judgment of the Trial Court is set aside and substituted as follows:
Liability 100% against the Appellant
Pain and suffering Kshs. 30,000.00
Loss of expectation of life Kshs. 100,000.00
Loss of dependency Kshs. 1,600,000.00
Special damages Kshs. 446,550.00
TOTAL Ksh. 2,176,550
26. Each party shall bear their own costs of this appeal. The Respondents shall have costs of the proceedings in the trial court. The above judgment shall accrue interest at court’s rate from the date of the trial court’s judgment delivered on 21st August 2025. It is so ordered.