(Being an appeal from the decree arising from the judgment of Hon. D.M. Ireri (S.R.M.) delivered on 5/10/2022 in Baricho Magistrates Court Civil Case No. 159 of 2018)
JUDGMENT
Background
1. The appellants bring this appeal through a memorandum of appeal dated 29/11/2022. The record of appeal was filed on 21/9/2023. This appeal seeks to challenge the trial court’s award of general damages under the heads of pain and suffering and loss of dependency. Although in the grounds of appeal the appellants also mentioned special damages as another head of award with which they were not satisfied, they did not submit on the same and I take it that they abandoned it and for good cause. For special damages, the appellants submitted that a sum of KShs 22,700/= could be awarded as having been proved subject to compliance with the requirements of the Stamp Duty Act (Cap. 480) Laws of Kenya. The trial court considered the issue and relying on authorities awarded that amount.
2. The appeal arises from a decree issued on 12/7/2023 arising from a judgment of the trial court dated 5/10/2022 in a suit by the respondent against the appellants claiming compensation under the Law Reform Act (Cap. 26) Laws of Kenya and the Fatal Accidents Act (Cap. 410) in general and special damages for fatal injuries sustained by Judy Wairimu Kinyua (deceased) arising out of a road traffic accident on 6/11/2017.
3. After trial the court awarded KShs 50,000/= general damages for pain and suffering and also found that the respondent had proved loss of dependency on account of being the husband of the deceased and having three minor children with her and applying the multiplier/multiplicand approach and relying on minimum wage guidelines awarded KShs 1,213,722/=.
Grounds of appeal
4. The appellants were dissatisfied with that decision and now appeal to this court on the following grounds:
a. the learned magistrate’s award of general damages for pain and suffering, loss of expectation of life and loss of dependency is so manifestly excessive as to amount to an erroneous estimate of the loss suffered by the deceased and/or the estate of the deceased.
b. the learned magistrate erred in both fact and law by making an award under loss of dependency yet the same was not strictly proved as required by law as to amount to an erroneous estimate of the loss suffered by the deceased and/or the estate of the deceased.
c. the learned magistrate erred in both fact and law by ignoring the authorities cited by the appellant.
d. the learned trial magistrate’s award of special damages was erroneous as the same was not strictly proved as required by law.
5. The appellant therefore prays to this court to set aside the judgment of the trial court award of damages for pain and suffering, loss of expectation of life and loss of dependency and substitute the same with an assessment of a much lower amount “commensurate with the injuries sustained by the respondent” (sic) and that interest to run on the reduced award from the date of this judgment and costs of this appeal and the lower court be awarded to the appellants.
Submissions
6. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
7. Learned counsel for the appellant submits that the entirety of the award of damages is challenged but from the submissions, in fact, only some aspects of the award of damages are challenged. The submissions by the appellants are more extensively set out and considered in the analysis following.
8. Learned counsel for the respondent submits that this court can only interfere with the award of the trial court if it is satisfied that the trial court was clearly wrong in its findings and for him there is no reason to do so.
9. Learned counsel submits further that the appellants appear to be giving evidence in this appeal through their submissions which they did not do at the trial and that should not be countenanced.
10. Learned counsel submits that prior to filing the suit herein, the respondent filed Baricho Succession Cause No. 27 of 2018 in which he was issued with a limited grant Ad litem where he and the three children were named as dependents of the deceased. That the respondent did not question dependency in the lower court and should not raise the issue now including the issue of failure to produce certificates of birth for the children.
Duty of appellate court on a first appeal
11. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
12. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
13. The respondent was the only witness who testified at the trial.
14. It was the respondent’s case through his pleadings, witness statement adopted as evidence in court and testimony of Josphat Kinyua Ngundo (PW 1) in court that the deceased who was a pedestrian along the Kagio-Baricho road on 12/11/2022 was walking along the path designated for pedestrians when she was knocked down by the appellants’ motor vehicle registration number KBH 347W Mazda Premacy causing her fatal injuries to which she succumbed the same day.
15. The respondent said that the deceased was his wife, aged 32 years. That they were married under Kikuyu customary law and that they had three minor children who he named in his statement. Although in cross-examination he said that he had produced the certificate of marriage and the chief’s letter, I have not seen the same among the exhibits produced. In examination in chief, he said he was producing the documents as per his list filed alongside the plaint and these two documents are not among them. With respect to certificates of birth for his children, he said that he had them but he had not produced them.
16. After trial the learned trial magistrate awarded KShs 50,000/= general damages for pain and suffering, KShs 100,000/= for loss of expectation of life and KShs 1,213,722/= general damages for loss of dependency. The trial court found on the issue of dependency that the respondent was the deceased’s husband and that they had three children despite the fact that no certificates of birth were produced. The court also found that the respondent and their children dependent on the deceased and thus apportioned the dependency ratio at 2/3.
Analysis
17. The issues for determination are whether the learned trial magistrate was right in assessment of general damages for pain and suffering, loss of expectation of life and his finding that the respondent had proved loss of dependency and if not whether the same are for setting aside.
18. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
19. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“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 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.”
20. Learned counsel submits on the award of pain and suffering that the trial court ought to have awarded KShs 10,000/= and not 50,000/= because the certificate of death shows that the deceased died on the same day. Further that the respondent did not make reference to any authority that would have acted as a guide to the court.
21. The fact that the respondent did not provide any authority to the trial court to guide it did not mean that the trial court could not, without such assistance, determine the issue. Authorities are usually provided to the court within submissions to persuade the court to determine the case one way or the other. Many times, parties provide very divergent authorities on the same issue. It is upon the court to sift through, find the ones relevant to the case and apply them and the ones which are not, discard. If neither party’s authorities are persuasive on the issue, or if the court requires further or better guidance, it is upon it to look for appropriate authorities that will assist it make a fair decision in the matter just as where no authorities are provided at all.
22. In the case of Ngang’a & Another vs Owiti & Another (2008) 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
23. In this case, the failure by the respondent to provide authorities on the issue of damages awarded for pain and suffering did not prejudice either of the parties. The court did not find the authority cited to it by the appellants to award KShs 10,000/= persuasive because there were other authorities that persuaded it to follow. The learned trial magistrate cited two cases of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 others [2013] KEHC 1206 (KLR) where the deceased died on the spot and Jane Waithera Kimemia (Suing as the legal representative in the estate of Stephen Thuo – deceased) where the High Court had awarded KShs 50,000/= general damages for pain and suffering, where the deceased died on the same day. He was therefore appropriately guided.
24. Learned counsel has submitted herein that there was a certificate of death as exhibited at page 39 of the record of appeal showing that the deceased died on the same day. The respondent testified at the trial and said the deceased died on the same day. That was evidence sufficient to prove the issue on a balance of probability. Therefore, the submission that there was neither evidence led nor any document given to support the trial court’s finding cannot be true.
25. For loss of expectation of life, the appellants had proposed an award of KShs 80,000/= and the learned trial magistrate awarded KShs 100,000/= after considering two authorities submitted to him by the appellants on the issue of loss of expectation of life. In Devshibhai & Sons Limited v Lule Kaluve Nyamai & another (suing as the Legal representatives of Francis Kilonzo Lelu (Deceased) [2019] KEHC 2663 (KLR) the High Court on appeal sustained an award of KShs 100,000/= and in Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] KEHC 4971 (KLR) the High Court on appeal sustained an award of KShs 90,000/=. The learned trial magistrate considered that this award is usually a conventional sum. Learned counsel submits herein that this court should not shy away from reducing this award without offering an reason why. I find no reason to do so.
26. I am satisfied that in awarding the KShs 50,000/= for pain and suffering and KShs 100,000/= for loss of expectation of life the learned trial magistrate was appropriately guided and exercised his discretion based on authority. The awards are within the range of awards made by courts in similar cases. This court finds no reason to interfere with that decision on award of damages for pain and suffering and loss of expectation of life. That ground of appeal therefore fails.
27. Learned counsel for the appellants submits that the respondent did not prove loss of dependency as he did not prove that he was married to the deceased either by way of certificate of marriage, letter from the chief and that there were no certificates of birth for the children.
28. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:-
“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”
29. The issue of proof of marriage and parentage for purposes of dependency under the Fatal Accident’s Act has received varied opinions from the High Court. So far, I have not found a decision on the issue from the Court of Appeal. Some High Courts find that the issue has to be strictly proved by production of documentary evidence while others are flexible to find that where the plaintiff’s oral evidence is not challenged the same is sufficient.
30. In the first line of cases are for instance the one relied on by the learned trial magistrate of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) and Cherotich v Anzal Communications Ltd [2024] KEHC 2175 (KLR) where the courts found that dependency had not been proved due to lack of documentary evidence.
31. The other line of authorities has the cases of Esther Chemutai Kibet (Suing as the Legal Representative of the Estate of the Late Joseph Malakwen Bett) v Carbacid (C02) Limited & another [2017] KEHC 7474 (KLR) where the cases of Agnes Bosibori Ogega-vs- Tea Research Foundation & Another (2016) eKLR, and Ann Wangare Mwombe & 2 Others -vs- Peter Mukiri Gateri (2014) eKLR which followed the reasoning that unchallenged oral evidence of marriage and parentage is sufficient to prove dependency. More recently, the High Court following the same reasoning in Nation Media Group Limited v Thuo & another (Suing as the Administrators of the Estate of Josephat Nduati Kungu – Deceased) [2024] KEHC 4058 (KLR) stated thus:
“In the absence of any explanation by the Magistrate, I am at a loss as to how she arrived at her concluding statement that the deceased was unmarried. To me, my independent review of the evidence leads me to the finding that sufficient evidence was presented to support a finding that, apart from his parents, the deceased also left behind a wife and a son and that all four qualified as his “dependents” within the meaning envisioned under Section 4 of the Fatal Accidents Act earlier cited. With due respect, and unless the Appellant’s Counsel does not live in this very society, his submission that evidence of marriage was not proved simply because no marriage certificate was produced cannot be a serious one. The same goes to the allegation that paternity of the 1-year-old son was not proved simply because no birth certificate or notification of birth were produced. In any event, it must always be recalled that in civil cases, unlike in criminal proceedings, proof is not on a beyond reasonable doubt basis, but on the basis of balance of probabilities.”
32. The learned trial magistrate relied on the reasoning in the later line of cases while the learned counsel for the appellants herein has brought up the reasoning in the former line of cases.
33. I am persuaded to follow the later school of reasoning followed by the learned trial magistrate for the reason that in civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
34. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
35. Now, going by the evidence adduced by the respondent that he had obtained letters of administration ad litem to the estate of the deceased, it must be assumed that he produced the chief’s letter in the succession cause as this is a requirement of law to be satisfied before the grant ad litem is issued. He said in re-examination that he was issued with the letter by the chief upon the demise of his wife. That letter would show that he was a husband of the deceased. He also said that he had certificates of birth for his children. Those certificates would also corroborate his evidence that the deceased was the mother of the children and he was their father. It is unfortunate that perhaps due to lack of diligence on the part of the respondent’s counsel, the respondent was not asked to make available these documents which he said he had and which would have corroborated his evidence. That notwithstanding, and without more, I am satisfied that for purposes of proof of dependency under the Law Reform Act and not any other law such as the law of marriage and divorce or division of matrimonial property or maintenance, the respondent’s evidence on oath which was not controverted was sufficient proof that he together with his named children were dependents of the deceased.
36. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
37. As was held in the Esther Chemutai Kibet case (supra) I am persuaded to hold that the respondent proved on a balance of probability that he was a husband of the deceased and the three children stated in the plaint and in his written statement are dependents, as envisaged under section 4 of the Fatal Accidents Act, and therefore entitled to an award of damages for loss of dependency.
38. I therefore, with respect, do not agree with learned counsel for the appellants that the trial court was wrong to find that issue of dependency had been proved. I am satisfied that the learned trial court made the correct decision thereon and the same is affirmed.
39. The appellants also submit that the assertion by the respondent that the deceased was a casual worker cum farmer was not proved. That issue was clearly and fully addressed by the learned trial magistrate who then finding no proof of earnings, relied on the minimum wage guidelines for a general worker as the multiplicand in this case. There was no dispute that the deceased was in good health and fending for her family at the time she met her death. In fact, the appellant’s submitted at the trial that this was the correct way to go and even proposed a sum of KShs 6,896.15 going by the Regulation of Wages (General)(Amendment) Order, 2017, which was in form at the time the deceased died.
40. From the foregoing analysis, I am satisfied that the trial court’s assessment of the quantum of damages for loss of dependency was correct and is therefore affirmed. The trial court’s award of KShs. 1,213,722/= general damages for loss of dependency is affirmed as the same was not inordinately high. The appeal on this ground fails.
Determination
41. Consequently, I find that this is not a suitable case for this court to interfere with the trial court’s finding on damages for the reason that the quantum awarded was not so manifestly high so as to represent an erroneous estimate. The trial court’s judgment on assessment of damages is affirmed in its entirety.
42. I find the appeal herein to lack merit and the same is dismissed with costs to the respondent.
43. Dated, signed and delivered on the Virtual Platform, Teams this 9th of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
... for Appellants.
... for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
JUDGMENT
Background
1. The appellants bring this appeal through a memorandum of appeal dated 29/11/2022. The record of appeal was filed on 21/9/2023. This appeal seeks to challenge the trial court’s award of general damages under the heads of pain and suffering and loss of dependency. Although in the grounds of appeal the appellants also mentioned special damages as another head of award with which they were not satisfied, they did not submit on the same and I take it that they abandoned it and for good cause. For special damages, the appellants submitted that a sum of KShs 22,700/= could be awarded as having been proved subject to compliance with the requirements of the Stamp Duty Act (Cap. 480) Laws of Kenya. The trial court considered the issue and relying on authorities awarded that amount.
2. The appeal arises from a decree issued on 12/7/2023 arising from a judgment of the trial court dated 5/10/2022 in a suit by the respondent against the appellants claiming compensation under the Law Reform Act (Cap. 26) Laws of Kenya and the Fatal Accidents Act (Cap. 410) in general and special damages for fatal injuries sustained by Judy Wairimu Kinyua (deceased) arising out of a road traffic accident on 6/11/2017.
3. After trial the court awarded KShs 50,000/= general damages for pain and suffering and also found that the respondent had proved loss of dependency on account of being the husband of the deceased and having three minor children with her and applying the multiplier/multiplicand approach and relying on minimum wage guidelines awarded KShs 1,213,722/=.
Grounds of appeal
4. The appellants were dissatisfied with that decision and now appeal to this court on the following grounds:
a. the learned magistrate’s award of general damages for pain and suffering, loss of expectation of life and loss of dependency is so manifestly excessive as to amount to an erroneous estimate of the loss suffered by the deceased and/or the estate of the deceased.
b. the learned magistrate erred in both fact and law by making an award under loss of dependency yet the same was not strictly proved as required by law as to amount to an erroneous estimate of the loss suffered by the deceased and/or the estate of the deceased.
c. the learned magistrate erred in both fact and law by ignoring the authorities cited by the appellant.
d. the learned trial magistrate’s award of special damages was erroneous as the same was not strictly proved as required by law.
5. The appellant therefore prays to this court to set aside the judgment of the trial court award of damages for pain and suffering, loss of expectation of life and loss of dependency and substitute the same with an assessment of a much lower amount “commensurate with the injuries sustained by the respondent” (sic) and that interest to run on the reduced award from the date of this judgment and costs of this appeal and the lower court be awarded to the appellants.
Submissions
6. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
7. Learned counsel for the appellant submits that the entirety of the award of damages is challenged but from the submissions, in fact, only some aspects of the award of damages are challenged. The submissions by the appellants are more extensively set out and considered in the analysis following.
8. Learned counsel for the respondent submits that this court can only interfere with the award of the trial court if it is satisfied that the trial court was clearly wrong in its findings and for him there is no reason to do so.
9. Learned counsel submits further that the appellants appear to be giving evidence in this appeal through their submissions which they did not do at the trial and that should not be countenanced.
10. Learned counsel submits that prior to filing the suit herein, the respondent filed Baricho Succession Cause No. 27 of 2018 in which he was issued with a limited grant Ad litem where he and the three children were named as dependents of the deceased. That the respondent did not question dependency in the lower court and should not raise the issue now including the issue of failure to produce certificates of birth for the children.
Duty of appellate court on a first appeal
11. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
12. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
13. The respondent was the only witness who testified at the trial.
14. It was the respondent’s case through his pleadings, witness statement adopted as evidence in court and testimony of Josphat Kinyua Ngundo (PW 1) in court that the deceased who was a pedestrian along the Kagio-Baricho road on 12/11/2022 was walking along the path designated for pedestrians when she was knocked down by the appellants’ motor vehicle registration number KBH 347W Mazda Premacy causing her fatal injuries to which she succumbed the same day.
15. The respondent said that the deceased was his wife, aged 32 years. That they were married under Kikuyu customary law and that they had three minor children who he named in his statement. Although in cross-examination he said that he had produced the certificate of marriage and the chief’s letter, I have not seen the same among the exhibits produced. In examination in chief, he said he was producing the documents as per his list filed alongside the plaint and these two documents are not among them. With respect to certificates of birth for his children, he said that he had them but he had not produced them.
16. After trial the learned trial magistrate awarded KShs 50,000/= general damages for pain and suffering, KShs 100,000/= for loss of expectation of life and KShs 1,213,722/= general damages for loss of dependency. The trial court found on the issue of dependency that the respondent was the deceased’s husband and that they had three children despite the fact that no certificates of birth were produced. The court also found that the respondent and their children dependent on the deceased and thus apportioned the dependency ratio at 2/3.
Analysis
17. The issues for determination are whether the learned trial magistrate was right in assessment of general damages for pain and suffering, loss of expectation of life and his finding that the respondent had proved loss of dependency and if not whether the same are for setting aside.
18. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
19. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“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 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.”
20. Learned counsel submits on the award of pain and suffering that the trial court ought to have awarded KShs 10,000/= and not 50,000/= because the certificate of death shows that the deceased died on the same day. Further that the respondent did not make reference to any authority that would have acted as a guide to the court.
21. The fact that the respondent did not provide any authority to the trial court to guide it did not mean that the trial court could not, without such assistance, determine the issue. Authorities are usually provided to the court within submissions to persuade the court to determine the case one way or the other. Many times, parties provide very divergent authorities on the same issue. It is upon the court to sift through, find the ones relevant to the case and apply them and the ones which are not, discard. If neither party’s authorities are persuasive on the issue, or if the court requires further or better guidance, it is upon it to look for appropriate authorities that will assist it make a fair decision in the matter just as where no authorities are provided at all.
22. In the case of Ngang’a & Another vs Owiti & Another (2008) 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
23. In this case, the failure by the respondent to provide authorities on the issue of damages awarded for pain and suffering did not prejudice either of the parties. The court did not find the authority cited to it by the appellants to award KShs 10,000/= persuasive because there were other authorities that persuaded it to follow. The learned trial magistrate cited two cases of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 others [2013] KEHC 1206 (KLR) where the deceased died on the spot and Jane Waithera Kimemia (Suing as the legal representative in the estate of Stephen Thuo – deceased) where the High Court had awarded KShs 50,000/= general damages for pain and suffering, where the deceased died on the same day. He was therefore appropriately guided.
24. Learned counsel has submitted herein that there was a certificate of death as exhibited at page 39 of the record of appeal showing that the deceased died on the same day. The respondent testified at the trial and said the deceased died on the same day. That was evidence sufficient to prove the issue on a balance of probability. Therefore, the submission that there was neither evidence led nor any document given to support the trial court’s finding cannot be true.
25. For loss of expectation of life, the appellants had proposed an award of KShs 80,000/= and the learned trial magistrate awarded KShs 100,000/= after considering two authorities submitted to him by the appellants on the issue of loss of expectation of life. In Devshibhai & Sons Limited v Lule Kaluve Nyamai & another (suing as the Legal representatives of Francis Kilonzo Lelu (Deceased) [2019] KEHC 2663 (KLR) the High Court on appeal sustained an award of KShs 100,000/= and in Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] KEHC 4971 (KLR) the High Court on appeal sustained an award of KShs 90,000/=. The learned trial magistrate considered that this award is usually a conventional sum. Learned counsel submits herein that this court should not shy away from reducing this award without offering an reason why. I find no reason to do so.
26. I am satisfied that in awarding the KShs 50,000/= for pain and suffering and KShs 100,000/= for loss of expectation of life the learned trial magistrate was appropriately guided and exercised his discretion based on authority. The awards are within the range of awards made by courts in similar cases. This court finds no reason to interfere with that decision on award of damages for pain and suffering and loss of expectation of life. That ground of appeal therefore fails.
27. Learned counsel for the appellants submits that the respondent did not prove loss of dependency as he did not prove that he was married to the deceased either by way of certificate of marriage, letter from the chief and that there were no certificates of birth for the children.
28. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:-
“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”
29. The issue of proof of marriage and parentage for purposes of dependency under the Fatal Accident’s Act has received varied opinions from the High Court. So far, I have not found a decision on the issue from the Court of Appeal. Some High Courts find that the issue has to be strictly proved by production of documentary evidence while others are flexible to find that where the plaintiff’s oral evidence is not challenged the same is sufficient.
30. In the first line of cases are for instance the one relied on by the learned trial magistrate of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) and Cherotich v Anzal Communications Ltd [2024] KEHC 2175 (KLR) where the courts found that dependency had not been proved due to lack of documentary evidence.
31. The other line of authorities has the cases of Esther Chemutai Kibet (Suing as the Legal Representative of the Estate of the Late Joseph Malakwen Bett) v Carbacid (C02) Limited & another [2017] KEHC 7474 (KLR) where the cases of Agnes Bosibori Ogega-vs- Tea Research Foundation & Another (2016) eKLR, and Ann Wangare Mwombe & 2 Others -vs- Peter Mukiri Gateri (2014) eKLR which followed the reasoning that unchallenged oral evidence of marriage and parentage is sufficient to prove dependency. More recently, the High Court following the same reasoning in Nation Media Group Limited v Thuo & another (Suing as the Administrators of the Estate of Josephat Nduati Kungu – Deceased) [2024] KEHC 4058 (KLR) stated thus:
“In the absence of any explanation by the Magistrate, I am at a loss as to how she arrived at her concluding statement that the deceased was unmarried. To me, my independent review of the evidence leads me to the finding that sufficient evidence was presented to support a finding that, apart from his parents, the deceased also left behind a wife and a son and that all four qualified as his “dependents” within the meaning envisioned under Section 4 of the Fatal Accidents Act earlier cited. With due respect, and unless the Appellant’s Counsel does not live in this very society, his submission that evidence of marriage was not proved simply because no marriage certificate was produced cannot be a serious one. The same goes to the allegation that paternity of the 1-year-old son was not proved simply because no birth certificate or notification of birth were produced. In any event, it must always be recalled that in civil cases, unlike in criminal proceedings, proof is not on a beyond reasonable doubt basis, but on the basis of balance of probabilities.”
32. The learned trial magistrate relied on the reasoning in the later line of cases while the learned counsel for the appellants herein has brought up the reasoning in the former line of cases.
33. I am persuaded to follow the later school of reasoning followed by the learned trial magistrate for the reason that in civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
34. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
35. Now, going by the evidence adduced by the respondent that he had obtained letters of administration ad litem to the estate of the deceased, it must be assumed that he produced the chief’s letter in the succession cause as this is a requirement of law to be satisfied before the grant ad litem is issued. He said in re-examination that he was issued with the letter by the chief upon the demise of his wife. That letter would show that he was a husband of the deceased. He also said that he had certificates of birth for his children. Those certificates would also corroborate his evidence that the deceased was the mother of the children and he was their father. It is unfortunate that perhaps due to lack of diligence on the part of the respondent’s counsel, the respondent was not asked to make available these documents which he said he had and which would have corroborated his evidence. That notwithstanding, and without more, I am satisfied that for purposes of proof of dependency under the Law Reform Act and not any other law such as the law of marriage and divorce or division of matrimonial property or maintenance, the respondent’s evidence on oath which was not controverted was sufficient proof that he together with his named children were dependents of the deceased.
36. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
37. As was held in the Esther Chemutai Kibet case (supra) I am persuaded to hold that the respondent proved on a balance of probability that he was a husband of the deceased and the three children stated in the plaint and in his written statement are dependents, as envisaged under section 4 of the Fatal Accidents Act, and therefore entitled to an award of damages for loss of dependency.
38. I therefore, with respect, do not agree with learned counsel for the appellants that the trial court was wrong to find that issue of dependency had been proved. I am satisfied that the learned trial court made the correct decision thereon and the same is affirmed.
39. The appellants also submit that the assertion by the respondent that the deceased was a casual worker cum farmer was not proved. That issue was clearly and fully addressed by the learned trial magistrate who then finding no proof of earnings, relied on the minimum wage guidelines for a general worker as the multiplicand in this case. There was no dispute that the deceased was in good health and fending for her family at the time she met her death. In fact, the appellant’s submitted at the trial that this was the correct way to go and even proposed a sum of KShs 6,896.15 going by the Regulation of Wages (General)(Amendment) Order, 2017, which was in form at the time the deceased died.
40. From the foregoing analysis, I am satisfied that the trial court’s assessment of the quantum of damages for loss of dependency was correct and is therefore affirmed. The trial court’s award of KShs. 1,213,722/= general damages for loss of dependency is affirmed as the same was not inordinately high. The appeal on this ground fails.
Determination
41. Consequently, I find that this is not a suitable case for this court to interfere with the trial court’s finding on damages for the reason that the quantum awarded was not so manifestly high so as to represent an erroneous estimate. The trial court’s judgment on assessment of damages is affirmed in its entirety.
42. I find the appeal herein to lack merit and the same is dismissed with costs to the respondent.
43. Dated, signed and delivered on the Virtual Platform, Teams this 9th of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
... for Appellants.
... for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE