Background
1. This appeal arises from a road traffic accident that occurred on 13th September 2020 along the Kiambu-Limuru Road at Kwanganga area. Bridgette Nyambura Muiruri, then aged 21 years, was travelling as a passenger in motor vehicle registration number KBS 603Y when it collided with another motor vehicle. She sustained fatal injuries and died at Nazareth Hospital.
2. The respondent, suing as administrator of the deceased’s estate, instituted Limuru CMCC No. E281 of 2022 against the appellants seeking damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs and interest.
3. At the trial, the respondent testified as PW1. He stated that the deceased was his daughter and was a student at Strathmore University. He admitted in cross-examination that he did not witness the accident and that, at the time of her death, he was not receiving financial support from her.
4. PW2, Police Constable Mohammed Sheikh of Tigoni Traffic Base, testified from the police records. He stated that the second appellant, while driving motor vehicle registration number KBS 603Y towards Kiambu, failed to keep to his proper lane while negotiating a sharp bend, swerved to the right and collided head-on with the oncoming vehicle. He further testified that the second appellant was charged with causing death by dangerous driving and careless driving and was convicted after pleading guilty.
5. PW3, Stella Mwangi, an officer from Strathmore University, confirmed that the deceased was pursuing a Bachelor of Commerce degree. She had successfully completed about 30 units out of the approximately 50 units required for graduation and had more than one year of study remaining. She was, however, on course to complete her studies.
6. The appellants closed their case without calling any witness.
7. In the judgment delivered on 30th June 2025, the trial court found the appellants 100% liable and made the following awards:
a) Loss of dependency – KShs. 5,000,000;
b) Pain and suffering – KShs. 100,000;
c) Loss of expectation of life – KShs. 100,000; and
d) Special damages – KShs. 95,550.
The total award was KShs. 5,295,550, together with costs and interest.
The appeal
8. Aggrieved by that decision, the appellants lodged the present appeal on the following grounds:
a) That the learned trial magistrate failed properly to consider, evaluate and analyse the evidence;
b) That the learned trial magistrate erred in finding the appellants 100% liable;
c) That the award of KShs. 5,000,000 for loss of dependency was inordinately high; and
d) That special damages were awarded without strict proof.
e) The appeal was canvassed by written submissions.
Appellants’ submissions
9. The appellants submitted that none of the respondent’s witnesses witnessed the accident. They contended that PW2 was not the investigating officer, did not visit the scene and did not produce the sketch plan, investigation diary or Occurrence Book extract.
10. According to the appellants, the second appellant’s conviction in the traffic proceedings was insufficient, without further evidence, to establish civil liability. They relied on Lilian Birir & another v Ambrose Leamon [2016] KEHC 7116 (KLR) , Akamba Public Road Services Limited & another v Jacinta Ndinda Mutisya & 2 others [2015] KEHC 7272 (KLR) and Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR 492 .
11. In the alternative, the appellants urged the Court to attribute 40% contributory negligence to the deceased for allegedly failing to fasten her seat belt. They relied on Dismas Muhami Wainarua v Sopon Kasirimo Maranta [2021] eKLR .
12. On quantum, the appellants accepted that the global award approach was appropriate but argued that KShs. 5,000,000 was excessive. They proposed KShs. 1,500,000 and relied on Kinuthia v Kiugu (Suing as the Legal Representative of the Estate of Oscar Muthomi Kithinji – Deceased) [2024] KEHC 9515 (KLR) , Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another [2020] KEHC 573 (KLR) and Teresia Wanjiru Githinji v Lucy Kanana M’Rukaria & another [2021] KEHC 8795 (KLR) .
Respondent’s submissions
13. The respondent supported the finding on liability. He submitted that the deceased was a lawful passenger and that the second appellant was convicted on his own plea of guilty. He relied on section 47A of the Evidence Act and Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR 492 .
14. The respondent further submitted that the seat-belt allegation was neither pleaded nor proved and could not properly be raised for the first time on appeal. He emphasised that the appellants called no witness to rebut the evidence presented at the trial.
15. On quantum, the respondent submitted that the deceased was a young university student with promising professional prospects and that the award of KShs. 5,000,000 was within the permissible range. Reliance was placed on Rosemary Mwasya v Steve Tito Mwasya & another [2018] KECA 822 (KLR) , Muchiri & another v Richu & another [2024] KEHC 14221 (KLR) and Bash Hauliers Limited v Wathuu & others [2023] KEHC 2386 (KLR) .
Issues for determination
16. Having reconsidered the record, the grounds of appeal and the parties’ submissions, the following issues arise for determination:
a) Whether the trial court erred in finding the appellants 100% liable;
b) Whether contributory negligence should be attributed to the deceased for allegedly failing to wear a seat belt;
c) Whether the award of KShs. 5,000,000 for loss of dependency was inordinately high;
d) Whether the award of special damages should be disturbed; and
e) What orders should issue on costs.
Duty of a first appellate court
17. This being a first appeal, the Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. That duty was stated in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 .
18. In Peters v Sunday Post Ltd [1958] EA 424 , the court cautioned that although a first appellate court has jurisdiction to review the evidence, it should exercise that jurisdiction with care, particularly where the trial court’s findings depend upon the credibility and demeanour of witnesses.
Liability
19. Sections 107, 108 and 109 of the Evidence Act place the burden of proving negligence upon the party alleging it. The respondent was therefore required to establish, on a balance of probabilities, that the accident was caused by the negligence of the appellants or their authorised driver.
20. It is not disputed that the deceased was a passenger in the second appellant’s vehicle. PW2 testified from the police file that, while negotiating a bend, the second appellant failed to keep to his proper lane, swerved to the right and collided head-on with an oncoming vehicle.
21. PW2 was not the investigating officer and did not visit the scene. Those limitations affected the weight to be attached to portions of his testimony. His evidence must, however, be considered together with the traffic proceedings and the second appellant’s conviction.
22. Section 47A of the Evidence Act provides that a final judgment of a competent court declaring a person guilty of a criminal offence shall, after the time limited for an appeal has expired or after any appeal has been determined, be taken as conclusive evidence that the person convicted was guilty of that offence.
23. The second appellant was convicted after pleading guilty. The conviction was therefore admissible and constituted conclusive evidence of his guilt for the traffic offences. It did not necessarily foreclose proof of contributory negligence by another road user, but it could not be disregarded as being of no evidential value.
24. In Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR 492 , the Court of Appeal recognised that a traffic conviction does not invariably settle the entire issue of civil apportionment because more than one person may have contributed to an accident. That principle, however, presupposes the existence of evidence from which contributory negligence may properly be inferred.
25. In the present case, the appellants called no witness. The second appellant did not testify to explain why his vehicle crossed into the opposing lane or otherwise give an account of the circumstances preceding the collision. There was consequently no evidential basis upon which blame could be attributed to the driver of the other vehicle.
26. The decisions in Lilian Birir & another v Ambrose Leamon [2016] KEHC 7116 (KLR) and Akamba Public Road Services Limited & another v Jacinta Ndinda Mutisya & 2 others [2015] KEHC 7272 (KLR) are therefore distinguishable. The respondent’s case was not founded upon police abstract alone. There was evidence from the police file, the traffic proceedings, the second appellant’s plea of guilty and the resulting conviction. That evidence remained uncontroverted.
27. Upon an independent reconsideration of the evidence, I find no basis for interfering with the trial court’s conclusion that the accident was caused by the negligence of the second appellant, for which the appellants were liable. The finding of 100% liability is accordingly upheld.
28. The appellants alternatively urged the Court to attribute 40% contributory negligence to the deceased because she was allegedly not wearing a seat belt.
29. Contributory negligence is a matter that must be pleaded and proved. A party is generally bound by its pleadings, and a court should not determine a case on an unpleaded issue unless the parties have, by their conduct, left no doubt that the issue was fully canvassed.
30. The alleged failure by the deceased to wear a seat belt was not pleaded as a particular of contributory negligence. Neither was it developed through evidence before the civil trial court. It was principally drawn from the testimony of a witness in the traffic proceedings.
31. Further, failure to wear a seat belt could not have caused the collision. At most, it could have aggravated the resulting injuries. For such a finding to be made, there had to be credible evidence establishing a causal connection between the absence of a seat belt and the fatal injuries.
32. No medical witness testified that wearing a seat belt would probably have prevented the fatal head injury or reduced its severity. The proposed apportionment of 40% would therefore be speculative.
33. Dismas Muhami Wainarua v Sopon Kasirimo Maranta [2021] eKLR is distinguishable because the finding in that case was grounded upon evidence from which the court could connect the failure to wear a seat belt with the extent of the injuries. No comparable evidential foundation was laid in the present case.
34. The invitation to attribute contributory negligence to the deceased is therefore rejected.
Loss of dependency
35. The principles governing appellate interference with an award of damages are settled. In Kemfro Africa Ltd t/a Meru Express Service & another v A.M. Lubia & another [1982–1988] 1 KAR 727 , the Court of Appeal held that an appellate court may interfere where the trial court took into account an irrelevant factor, omitted a relevant factor, or made an award so inordinately high or low that it represented an entirely erroneous estimate.
36. Similarly, in Butt v Khan [1981] KLR 349 , the Court of Appeal emphasised that an appellate court should not disturb an award merely because it would have awarded a different amount. Intervention is justified where the award is founded on a wrong principle or is manifestly excessive or inadequate.
37. The deceased was 21 years old. She was unmarried and had not commenced employment. PW3 confirmed that she was pursuing a Bachelor of Commerce degree at Strathmore University and had completed 30 out of approximately 50 units. She had more than one year of study remaining. No academic transcript was produced.
38. The respondent testified that he was not receiving financial support from the deceased at the time of her death. That admission did not, by itself, defeat the claim. A parent may have a reasonable expectation of future support from a child who is still pursuing education. Such prospective dependency must, however, be assessed cautiously and cannot rest upon conjecture.
39. The respondent invited the trial court to assume that the deceased would graduate, become an accountant, obtain public-sector employment and progress from an entry-level position to the senior-most accounting grade. Those possibilities were not certainties. They depended upon numerous contingencies, including completion of the degree, professional qualification, availability of employment, career choice, taxation, personal expenditure and future family commitments.
40. The trial magistrate properly appreciated the uncertainty surrounding the deceased’s prospective income and adopted the global award approach. That approach is appropriate where income is unknown or where applying a multiplicand and multiplier would require the court to engage in excessive speculation. See Mary Khayesi Awalo & another v Mwilu Malungu & another [1999] eKLR and Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi [2020] eKLR .
41. The choice of the global approach was therefore proper. The difficulty lies in the amount awarded. The trial magistrate awarded KShs. 5,000,000 without identifying comparable awards or explaining how that figure accommodated the uncertainties surrounding completion of the deceased’s education, future employment, earnings and dependency.
42. Comparable awards are intended to promote consistency, although each case must ultimately be decided on its particular facts. In Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another [2020] KEHC 573 (KLR) , the High Court reduced a global award of KShs. 2,000,000 to KShs. 1,000,000 for a deceased aged 23 years.
43. In Teresia Wanjiru Githinji v Lucy Kanana M’Rukaria & another [2021] KEHC 8795 (KLR) , a global award of KShs. 1,500,000 was made in respect of a 26-year-old university graduate.
44. More recently, in Kinuthia v Kiugu (Suing as the Legal Representative of the Estate of Oscar Muthomi Kithinji – Deceased) [2024] KEHC 9515 (KLR) , the deceased was a 24-year-old university student pursuing actuarial science. His academic results were produced. The High Court found a global award of KShs. 3,000,000 excessive and substituted it with KShs. 2,000,000.
45. The authorities relied upon by the respondent, including Rosemary Mwasya v Steve Tito Mwasya & another [2018] KECA 822 (KLR) and Muchiri & another v Richu & another [2024] KEHC 14221 (KLR) , involved structured multiplier calculations supported by salary surveys and comparatively stronger evidence concerning the deceased persons’ probable careers and earnings. Bash Hauliers Limited v Wathuu & others [2023] KEHC 2386 (KLR) concerned a 30-year-old deceased and a materially different dependency situation.
46. Taking into account the deceased’s young age, her confirmed university education and reasonable future prospects, but balancing those considerations against the fact that she had not completed her degree, had no proved income, had not commenced employment and was not supporting the respondent at the time of death, I find that the award of KShs. 5,000,000 was inordinately high.
47. Nevertheless, an award of KShs. 1,500,000 proposed by the appellants would not sufficiently account for the deceased’s demonstrated educational progress, her future professional prospects and the passage of time since some of the cited awards were made.
48. In my assessment, a global award of KShs. 2,500,000 is fair and reasonable. It recognises the deceased’s prospects while avoiding the speculative assumptions inherent in treating an uncompleted degree and an anticipated career as established income.
49. The award of KShs. 5,000,000 for loss of dependency is consequently set aside and substituted with an award of KShs. 2,500,000.
Pain and suffering and loss of expectation of life
50. The awards of KShs. 100,000 for pain and suffering and KShs. 100,000 for loss of expectation of life were not substantively challenged. They were within the range of comparable awards and disclose no error warranting appellate interference. They are accordingly upheld.
Special damages
51. The appellants’ fourth ground challenged the award of special damages, but that ground was not developed in their written submissions.
52. It is settled that special damages must be specifically pleaded and strictly proved. See Hahn v Singh [1985] KLR 716 . The respondent pleaded special damages and produced documentary evidence in support of the claim. The trial court found that KShs. 95,550 had been proved.
53. The appellants have not identified the particular items that were unproved or demonstrated any error in the trial court’s assessment. There is therefore no basis for interfering with the award of KShs. 95,550.
Disposition
54. The appeal succeeds only in respect of the award for loss of dependency. The finding on liability and the remaining awards are upheld.
55. For clarity, the award is recomputed as follows:
a) Loss of dependency – KShs. 2,500,000;
b) Pain and suffering – KShs. 100,000;
c) Loss of expectation of life – KShs. 100,000; and
d) Special damages – KShs. 95,550.
Total – KShs. 2,795,550.
56. I accordingly make the following orders:
a) The appeal on liability is dismissed, and the finding that the appellants are 100% liable is upheld.
b) The appeal on quantum succeeds to the extent that the award of KShs. 5,000,000 for loss of dependency is set aside and substituted with an award of KShs. 2,500,000.
c) The awards of KShs. 100,000 for pain and suffering, KShs. 100,000 for loss of expectation of life and KShs. 95,550 as special damages are upheld.
d) The total award is consequently reduced from KShs. 5,295,550 to KShs. 2,795,550.
e) The substituted award shall attract interest at court rates from the date of the judgment of the trial court.
f) The respondent shall retain the costs awarded by the trial court.
g) As the appeal has succeeded only partially, each party shall bear its own costs of the appeal.
57. For the avoidance of doubt, any clerical discrepancy in the judgment or decree describing the award for loss of expectation of life or special damages as KShs. 95,500 is corrected. The correct awards are KShs. 100,000 for loss of expectation of life and KShs. 95,550 as special damages.
It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU- JUDGE
In the presence of: -
Mr. Kariuki for the Appellant.
Mr. Kungu for Respondent.
Court Assistant- Mr. Kibet.
30 days stay granted.
2 | Page KIAMBU CIVIL APPEAL NO.E113 OF 2025
1. This appeal arises from a road traffic accident that occurred on 13th September 2020 along the Kiambu-Limuru Road at Kwanganga area. Bridgette Nyambura Muiruri, then aged 21 years, was travelling as a passenger in motor vehicle registration number KBS 603Y when it collided with another motor vehicle. She sustained fatal injuries and died at Nazareth Hospital.
2. The respondent, suing as administrator of the deceased’s estate, instituted Limuru CMCC No. E281 of 2022 against the appellants seeking damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs and interest.
3. At the trial, the respondent testified as PW1. He stated that the deceased was his daughter and was a student at Strathmore University. He admitted in cross-examination that he did not witness the accident and that, at the time of her death, he was not receiving financial support from her.
4. PW2, Police Constable Mohammed Sheikh of Tigoni Traffic Base, testified from the police records. He stated that the second appellant, while driving motor vehicle registration number KBS 603Y towards Kiambu, failed to keep to his proper lane while negotiating a sharp bend, swerved to the right and collided head-on with the oncoming vehicle. He further testified that the second appellant was charged with causing death by dangerous driving and careless driving and was convicted after pleading guilty.
5. PW3, Stella Mwangi, an officer from Strathmore University, confirmed that the deceased was pursuing a Bachelor of Commerce degree. She had successfully completed about 30 units out of the approximately 50 units required for graduation and had more than one year of study remaining. She was, however, on course to complete her studies.
6. The appellants closed their case without calling any witness.
7. In the judgment delivered on 30th June 2025, the trial court found the appellants 100% liable and made the following awards:
a) Loss of dependency – KShs. 5,000,000;
b) Pain and suffering – KShs. 100,000;
c) Loss of expectation of life – KShs. 100,000; and
d) Special damages – KShs. 95,550.
The total award was KShs. 5,295,550, together with costs and interest.
The appeal
8. Aggrieved by that decision, the appellants lodged the present appeal on the following grounds:
a) That the learned trial magistrate failed properly to consider, evaluate and analyse the evidence;
b) That the learned trial magistrate erred in finding the appellants 100% liable;
c) That the award of KShs. 5,000,000 for loss of dependency was inordinately high; and
d) That special damages were awarded without strict proof.
e) The appeal was canvassed by written submissions.
Appellants’ submissions
9. The appellants submitted that none of the respondent’s witnesses witnessed the accident. They contended that PW2 was not the investigating officer, did not visit the scene and did not produce the sketch plan, investigation diary or Occurrence Book extract.
10. According to the appellants, the second appellant’s conviction in the traffic proceedings was insufficient, without further evidence, to establish civil liability. They relied on Lilian Birir & another v Ambrose Leamon [2016] KEHC 7116 (KLR) , Akamba Public Road Services Limited & another v Jacinta Ndinda Mutisya & 2 others [2015] KEHC 7272 (KLR) and Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR 492 .
11. In the alternative, the appellants urged the Court to attribute 40% contributory negligence to the deceased for allegedly failing to fasten her seat belt. They relied on Dismas Muhami Wainarua v Sopon Kasirimo Maranta [2021] eKLR .
12. On quantum, the appellants accepted that the global award approach was appropriate but argued that KShs. 5,000,000 was excessive. They proposed KShs. 1,500,000 and relied on Kinuthia v Kiugu (Suing as the Legal Representative of the Estate of Oscar Muthomi Kithinji – Deceased) [2024] KEHC 9515 (KLR) , Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another [2020] KEHC 573 (KLR) and Teresia Wanjiru Githinji v Lucy Kanana M’Rukaria & another [2021] KEHC 8795 (KLR) .
Respondent’s submissions
13. The respondent supported the finding on liability. He submitted that the deceased was a lawful passenger and that the second appellant was convicted on his own plea of guilty. He relied on section 47A of the Evidence Act and Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR 492 .
14. The respondent further submitted that the seat-belt allegation was neither pleaded nor proved and could not properly be raised for the first time on appeal. He emphasised that the appellants called no witness to rebut the evidence presented at the trial.
15. On quantum, the respondent submitted that the deceased was a young university student with promising professional prospects and that the award of KShs. 5,000,000 was within the permissible range. Reliance was placed on Rosemary Mwasya v Steve Tito Mwasya & another [2018] KECA 822 (KLR) , Muchiri & another v Richu & another [2024] KEHC 14221 (KLR) and Bash Hauliers Limited v Wathuu & others [2023] KEHC 2386 (KLR) .
Issues for determination
16. Having reconsidered the record, the grounds of appeal and the parties’ submissions, the following issues arise for determination:
a) Whether the trial court erred in finding the appellants 100% liable;
b) Whether contributory negligence should be attributed to the deceased for allegedly failing to wear a seat belt;
c) Whether the award of KShs. 5,000,000 for loss of dependency was inordinately high;
d) Whether the award of special damages should be disturbed; and
e) What orders should issue on costs.
Duty of a first appellate court
17. This being a first appeal, the Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. That duty was stated in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 .
18. In Peters v Sunday Post Ltd [1958] EA 424 , the court cautioned that although a first appellate court has jurisdiction to review the evidence, it should exercise that jurisdiction with care, particularly where the trial court’s findings depend upon the credibility and demeanour of witnesses.
Liability
19. Sections 107, 108 and 109 of the Evidence Act place the burden of proving negligence upon the party alleging it. The respondent was therefore required to establish, on a balance of probabilities, that the accident was caused by the negligence of the appellants or their authorised driver.
20. It is not disputed that the deceased was a passenger in the second appellant’s vehicle. PW2 testified from the police file that, while negotiating a bend, the second appellant failed to keep to his proper lane, swerved to the right and collided head-on with an oncoming vehicle.
21. PW2 was not the investigating officer and did not visit the scene. Those limitations affected the weight to be attached to portions of his testimony. His evidence must, however, be considered together with the traffic proceedings and the second appellant’s conviction.
22. Section 47A of the Evidence Act provides that a final judgment of a competent court declaring a person guilty of a criminal offence shall, after the time limited for an appeal has expired or after any appeal has been determined, be taken as conclusive evidence that the person convicted was guilty of that offence.
23. The second appellant was convicted after pleading guilty. The conviction was therefore admissible and constituted conclusive evidence of his guilt for the traffic offences. It did not necessarily foreclose proof of contributory negligence by another road user, but it could not be disregarded as being of no evidential value.
24. In Philip Keipto Chemwolo & another v Augustine Kubende [1986] KLR 492 , the Court of Appeal recognised that a traffic conviction does not invariably settle the entire issue of civil apportionment because more than one person may have contributed to an accident. That principle, however, presupposes the existence of evidence from which contributory negligence may properly be inferred.
25. In the present case, the appellants called no witness. The second appellant did not testify to explain why his vehicle crossed into the opposing lane or otherwise give an account of the circumstances preceding the collision. There was consequently no evidential basis upon which blame could be attributed to the driver of the other vehicle.
26. The decisions in Lilian Birir & another v Ambrose Leamon [2016] KEHC 7116 (KLR) and Akamba Public Road Services Limited & another v Jacinta Ndinda Mutisya & 2 others [2015] KEHC 7272 (KLR) are therefore distinguishable. The respondent’s case was not founded upon police abstract alone. There was evidence from the police file, the traffic proceedings, the second appellant’s plea of guilty and the resulting conviction. That evidence remained uncontroverted.
27. Upon an independent reconsideration of the evidence, I find no basis for interfering with the trial court’s conclusion that the accident was caused by the negligence of the second appellant, for which the appellants were liable. The finding of 100% liability is accordingly upheld.
28. The appellants alternatively urged the Court to attribute 40% contributory negligence to the deceased because she was allegedly not wearing a seat belt.
29. Contributory negligence is a matter that must be pleaded and proved. A party is generally bound by its pleadings, and a court should not determine a case on an unpleaded issue unless the parties have, by their conduct, left no doubt that the issue was fully canvassed.
30. The alleged failure by the deceased to wear a seat belt was not pleaded as a particular of contributory negligence. Neither was it developed through evidence before the civil trial court. It was principally drawn from the testimony of a witness in the traffic proceedings.
31. Further, failure to wear a seat belt could not have caused the collision. At most, it could have aggravated the resulting injuries. For such a finding to be made, there had to be credible evidence establishing a causal connection between the absence of a seat belt and the fatal injuries.
32. No medical witness testified that wearing a seat belt would probably have prevented the fatal head injury or reduced its severity. The proposed apportionment of 40% would therefore be speculative.
33. Dismas Muhami Wainarua v Sopon Kasirimo Maranta [2021] eKLR is distinguishable because the finding in that case was grounded upon evidence from which the court could connect the failure to wear a seat belt with the extent of the injuries. No comparable evidential foundation was laid in the present case.
34. The invitation to attribute contributory negligence to the deceased is therefore rejected.
Loss of dependency
35. The principles governing appellate interference with an award of damages are settled. In Kemfro Africa Ltd t/a Meru Express Service & another v A.M. Lubia & another [1982–1988] 1 KAR 727 , the Court of Appeal held that an appellate court may interfere where the trial court took into account an irrelevant factor, omitted a relevant factor, or made an award so inordinately high or low that it represented an entirely erroneous estimate.
36. Similarly, in Butt v Khan [1981] KLR 349 , the Court of Appeal emphasised that an appellate court should not disturb an award merely because it would have awarded a different amount. Intervention is justified where the award is founded on a wrong principle or is manifestly excessive or inadequate.
37. The deceased was 21 years old. She was unmarried and had not commenced employment. PW3 confirmed that she was pursuing a Bachelor of Commerce degree at Strathmore University and had completed 30 out of approximately 50 units. She had more than one year of study remaining. No academic transcript was produced.
38. The respondent testified that he was not receiving financial support from the deceased at the time of her death. That admission did not, by itself, defeat the claim. A parent may have a reasonable expectation of future support from a child who is still pursuing education. Such prospective dependency must, however, be assessed cautiously and cannot rest upon conjecture.
39. The respondent invited the trial court to assume that the deceased would graduate, become an accountant, obtain public-sector employment and progress from an entry-level position to the senior-most accounting grade. Those possibilities were not certainties. They depended upon numerous contingencies, including completion of the degree, professional qualification, availability of employment, career choice, taxation, personal expenditure and future family commitments.
40. The trial magistrate properly appreciated the uncertainty surrounding the deceased’s prospective income and adopted the global award approach. That approach is appropriate where income is unknown or where applying a multiplicand and multiplier would require the court to engage in excessive speculation. See Mary Khayesi Awalo & another v Mwilu Malungu & another [1999] eKLR and Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi [2020] eKLR .
41. The choice of the global approach was therefore proper. The difficulty lies in the amount awarded. The trial magistrate awarded KShs. 5,000,000 without identifying comparable awards or explaining how that figure accommodated the uncertainties surrounding completion of the deceased’s education, future employment, earnings and dependency.
42. Comparable awards are intended to promote consistency, although each case must ultimately be decided on its particular facts. In Stanwel Holdings Limited & another v Racheal Haluku Emanuel & another [2020] KEHC 573 (KLR) , the High Court reduced a global award of KShs. 2,000,000 to KShs. 1,000,000 for a deceased aged 23 years.
43. In Teresia Wanjiru Githinji v Lucy Kanana M’Rukaria & another [2021] KEHC 8795 (KLR) , a global award of KShs. 1,500,000 was made in respect of a 26-year-old university graduate.
44. More recently, in Kinuthia v Kiugu (Suing as the Legal Representative of the Estate of Oscar Muthomi Kithinji – Deceased) [2024] KEHC 9515 (KLR) , the deceased was a 24-year-old university student pursuing actuarial science. His academic results were produced. The High Court found a global award of KShs. 3,000,000 excessive and substituted it with KShs. 2,000,000.
45. The authorities relied upon by the respondent, including Rosemary Mwasya v Steve Tito Mwasya & another [2018] KECA 822 (KLR) and Muchiri & another v Richu & another [2024] KEHC 14221 (KLR) , involved structured multiplier calculations supported by salary surveys and comparatively stronger evidence concerning the deceased persons’ probable careers and earnings. Bash Hauliers Limited v Wathuu & others [2023] KEHC 2386 (KLR) concerned a 30-year-old deceased and a materially different dependency situation.
46. Taking into account the deceased’s young age, her confirmed university education and reasonable future prospects, but balancing those considerations against the fact that she had not completed her degree, had no proved income, had not commenced employment and was not supporting the respondent at the time of death, I find that the award of KShs. 5,000,000 was inordinately high.
47. Nevertheless, an award of KShs. 1,500,000 proposed by the appellants would not sufficiently account for the deceased’s demonstrated educational progress, her future professional prospects and the passage of time since some of the cited awards were made.
48. In my assessment, a global award of KShs. 2,500,000 is fair and reasonable. It recognises the deceased’s prospects while avoiding the speculative assumptions inherent in treating an uncompleted degree and an anticipated career as established income.
49. The award of KShs. 5,000,000 for loss of dependency is consequently set aside and substituted with an award of KShs. 2,500,000.
Pain and suffering and loss of expectation of life
50. The awards of KShs. 100,000 for pain and suffering and KShs. 100,000 for loss of expectation of life were not substantively challenged. They were within the range of comparable awards and disclose no error warranting appellate interference. They are accordingly upheld.
Special damages
51. The appellants’ fourth ground challenged the award of special damages, but that ground was not developed in their written submissions.
52. It is settled that special damages must be specifically pleaded and strictly proved. See Hahn v Singh [1985] KLR 716 . The respondent pleaded special damages and produced documentary evidence in support of the claim. The trial court found that KShs. 95,550 had been proved.
53. The appellants have not identified the particular items that were unproved or demonstrated any error in the trial court’s assessment. There is therefore no basis for interfering with the award of KShs. 95,550.
Disposition
54. The appeal succeeds only in respect of the award for loss of dependency. The finding on liability and the remaining awards are upheld.
55. For clarity, the award is recomputed as follows:
a) Loss of dependency – KShs. 2,500,000;
b) Pain and suffering – KShs. 100,000;
c) Loss of expectation of life – KShs. 100,000; and
d) Special damages – KShs. 95,550.
Total – KShs. 2,795,550.
56. I accordingly make the following orders:
a) The appeal on liability is dismissed, and the finding that the appellants are 100% liable is upheld.
b) The appeal on quantum succeeds to the extent that the award of KShs. 5,000,000 for loss of dependency is set aside and substituted with an award of KShs. 2,500,000.
c) The awards of KShs. 100,000 for pain and suffering, KShs. 100,000 for loss of expectation of life and KShs. 95,550 as special damages are upheld.
d) The total award is consequently reduced from KShs. 5,295,550 to KShs. 2,795,550.
e) The substituted award shall attract interest at court rates from the date of the judgment of the trial court.
f) The respondent shall retain the costs awarded by the trial court.
g) As the appeal has succeeded only partially, each party shall bear its own costs of the appeal.
57. For the avoidance of doubt, any clerical discrepancy in the judgment or decree describing the award for loss of expectation of life or special damages as KShs. 95,500 is corrected. The correct awards are KShs. 100,000 for loss of expectation of life and KShs. 95,550 as special damages.
It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU- JUDGE
In the presence of: -
Mr. Kariuki for the Appellant.
Mr. Kungu for Respondent.
Court Assistant- Mr. Kibet.
30 days stay granted.
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