REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO. E040 OF 2024
MALANG KOTIK BUSINESS MERCHANTS…………..……….1ST APPELLANT
KELVIN RUTO……………………………………………….……....2ND APPELLANT
WILLIAM KOMEN SOMOKWO………………………..….………3RD APPELLANT
=VERSUS=
DERRICK OBOTE MANAGU & ALLAN KINAGU MUNAVO (Suing as the
Legal Representatives of the Estate of HENRY OBOTE GALO
(DECEASED)…………………………………………………………1st RESPONDENT
EZEKIEL MWANIKI………………….……….…………………..2ND RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J. A. Agonda (SPM)
delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No
189 of 2016 on 16th July 2024)
Coram: Justice R. Nyakundi
M/S Peter M. Karanja Advocate
M/S Kimondo Gachoka & Company Advocates
JUDGMENT
INTRODUCTION
1. This is an appeal arising out of the Judgment delivered and pronounced on
16th July 2024 in Vihiga PMCC No. 189 of 2016. In that Judgment arising
out of the plaint dated 22nd November 2016 the Claimant pleaded as follows:
On or about the 21st April, 2016, the deceased was lawfully travelling
abode motor vehicle registration number KAS 427 M Toyota Matatu as a
passenger which motor vehicle was moving along Kapsabet-Chavakali
road while keeping to its left/correct lane and moving towards Chavakaii
HCCA NO E040 OF 2024 2
direction when at Shaviringa bridge the 1st & 2nd defendants' motor
vehicle registration number KBJ 603 D which was approaching from the
opposite direction i.e. from Chavakali to Kapsabet was so carelessly,
negligently and/or recklessly driven, managed and/or controlled by the
3d defendant that it was caused to lose control, move in a zig zag manner
on the road and eventually swerve/veer to its right onto the
opposite/wrong lane and collide with motor vehicle registration number
KAS 427 M causing the two motor vehicles to fall off the road as a result
of which accident the deceased suffered fatal injuries to which he
succumbed and died the same day thereby causing the deceased's
estate and dependants loss and damages. The defendants are thus
being held vicariously and directly, wholly liable for the said loss and
damages.
2. The claim at the trial Court was based on particulars of negligence of the 3rd
Defendant alleging as follows:
a) Swerving/Veering carelessly to the opposite/wrong lane of an oncoming
motor vehicle no. KAS 427 M.
b) Driving the said Motor Vehicle KBJ 603D on the wrong side of the road.
c) Losing control of motor vehicle Reg No. KBJ 603D
d) Driving motor vehicle reg. no. KBJ 603 in a zig zag manner
e) Driving the said Motor Vehicle KBJ 603 D without any attention or care
at all.
f) Over speeding in the circumstances
g) Driving Motor vehicle registration No. KBJ 603 D without brakes or with
defective brakes.
h) Driving a defective/un roadworthy motor vehicle.
i) Failing to keep proper look out for the deceased, m/v registration number
KAS 427M and other road users.
j) Failing to exercise sufficient care, skill or prudence or at all in driving m/v
KBJ 603D.
k) Failing to stop, slow down, apply brakes, swerve or in any other way act
so as to, manage and/or control motor vehicle registration No. KBJ 603
D so as to avoid the accident.
HCCA NO E040 OF 2024 3
l) Driving carelessly and at a high speed without due regard to the
condition of the road and the condition of the vehicle.
m) Allowing a defective motor vehicle to be driven on a busy road.
3. The particulars of claim were under the Fatal Accidents Act.
4. The hearing proceeded in earnest before the trial Court and at the end of it all
the Learned Trial Magistrate held as follows:
That on 21" April, 2016, the deceased was lawful fare paying passenger
in motor vehicle KAS 427M that was on its rightful lane along KapsabetChavakali road, when the driver of motor vehicle registration number KBJ
603D that was driven from opposite direction was carelessly, negligently
and or recklessly driven that it collided with the vehicle he was boarding
that was also driven at high speed as a result the deceased died on the
spot. To this end PWL maintained that he received information that the
deceased was involved in road accident and the bodies were taken to
Vihiga County Referral hospital where he identified the body of the
deceased. stated that the driver would have averted the occurrence of
this accident by swerving and even applying brakes but it was not
possible because of the high speed the motor vehicle was driven.
5. The learned trial Magistrate having heard the evidence made a positive finding
on liability and assessment of quantum as against the Defendants now the
Appellants to this appeal crafted as follows:
Pain and Suffering Kshs 50,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 640,000/=
Special Damages Kshs 15, 830/=
Total Kshs 805,830/=
6. Being aggrieved with the said decision, on 15th August 2024, the Appellants
herein filed a Memorandum of Appeal with the following grounds in situ; Thus:
(a) The quantum of general damages in respect of lost dependency is
inordinately high erroneous, oppressive and punitive and amounts to a
miscarriage of justice.
HCCA NO E040 OF 2024 4
(b) The Learned Trial Magistrate ignored and/or paid lip service to the
parties' submissions on the multiplicand which she did not analyze or
consider at all.
(c) The learned Trial magistrate erred in law when she applied the
multiplicand of Kshs10,000.00 without any basis for such a sum, nor
any finding as to what the deceased did and earned, and without any
analysis of the issue of the multiplicand, and thus applied a multiplicand
unsupportable on the evidence and submissions and simply plucked
from the air, thereby reaching an unreasonably high, capricious and
arbitrary, unjust award.
(d) The Learned Magistrate erred in Law and fact in completely ignoring the
submissions made by the appellants and the 1st Respondent that the
applicable multiplicand was Kshs 5,844.00 and proceeding to hold,
without any evidence or precedent, that the multiplicand was Kshs
10,000.00.
(e) The Learned Trial Magistrate failed to take into account all relevant
considerations and principles in assessing the quantum of damages.
(f) Other grounds as may be argued with the leave of the court
Reasons Wherefore the Appellants pray that the Appeal be allowed and:-
a) The judgment of the Honourable trial magistrate on general damages for
loss of dependency be set aside, varied and or be substituted with a
suitable award.
b) THAT costs of the appeal be paid by the 1st Respondent to the Appellants
7. As at the time of writing this Judgment, the Appellants had not filed their
Written Submissions. The 1st Respondent’s Written Submissions were dated
and filed on 11th November 2025 and filed on 24th February 2025. In their
submissions learned Counsel relied on the following cases: Selle & Another vs
Associated Motor Boat Co. Ltd. & Others [1968] EA 123, Abdul Hammed Saif v
Ali Mohamed Sholan (1955), 22 E.A.C.A 270, Butt v Khan (1977) KAR 1, Bashir
Ahmed butt vs Uwais Ahmed Khan (1982-88) KAR, Gitobu Imanyara & 2 Others
vs Attorney General [2016] KAR, Shabani V City Council of Nairobi (1985) KLR
516, Kigaragari v Aya [1985] KLR 273.
HCCA NO E040 OF 2024 5
8. It was the contention of the Learned Counsel that there are no grounds upon
which this appeal’s Court can appear with the decision of the trial Court both
on liability and general damages.
Analysis and Determination
9. It is settled law that the duty of a first appellate Court is to evaluate afresh
the evidence adduced before the trial Court in order to arrive at its own
independent conclusion but bearing in mind that it neither saw nor heard the
witnesses testify.
10.This was aptly stated in the case of Selle & Another vs Associated Motor
Boat Co. Ltd. & Others [1968] EA 123 where the Court therein held that the
appellate Court was not bound by the findings of fact of the trial Court but
that in re-considering and re-evaluating the evidence so as to draw its own
conclusions, it always had to bear in mind that it neither saw nor heard the
witnesses and thus make due allowance in that respect.
11.Having looked at the Grounds of Appeal and the 1st Respondent’s Written
Submissions, it appeared to this Court that the only issue that had been
placed before it for determination was whether or not the quantum in respect
of damages under the loss of dependency that was awarded by the Trial Court
was excessive in the circumstances warranting interference by this Court.
12.The law on standard of proof under Section 107(1), 108, 109 & 112 of the
Evidence Act it is for the Magistrate to establish whether the Plaintiffs now
Respondents to this appeal proved their case on a balance of probabilities.
13.What is required to prove negligence? Learned Author Clerk and Lindsell on
Torts has concisely set out the requirements which a claimant or Plaintiff
must prove to establish a defendant’s negligence as:
(a) The existence in law of a duty of care situation;
(b) Careless behaviour by the defendant;
(c) A causal connection between the defendant's careless conduct and the
damage;
(d) Foreseeability that such conduct would have inflicted on the particular
claimant the particular damage of which he complains; (Once (a) to (d)
HCCA NO E040 OF 2024 6
are satisfied, the defendant is liable in negligence and only then the next
two factors arise);
(e) The extent of the responsibility for the damage to be apportioned to the
defendant where others are also held responsible;
(f) The monetary estimate of that extent of damage.
14.In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA
334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap
80, the legal burden of proof lies upon the party who invokes the aid of
the law and substantially asserts the affirmative of the issue. There is
however the evidential burden that is case upon any party the burden of
proving any particular fact which he desires the court to believe in its
existence which is captured in Sections 109 and 112 of the Act.”
It follows that the initial burden of proof lies on the Plaintiff, but the same may
shift to the Defendant, depending on the circumstances of the case. In Evans
Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party
who invokes the aid of the law and substantially asserts the affirmative
of the issue. That is the purport of Section 107 (i) of the Evidence Act,
Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast
upon any party, the burden of proving any particular fact which he
desires the court to believe in its existence. That is captured in Section
109 and 112 of law that proof of that fact shall lie on any particular
person…The appellant did not discharge that burden and as Section 108
of the Evidence Act provides the burden lies in that person who would
fail if no evidence at all were given as either side.”
15.In determining this appeal, the measure and threshold issues raised in the
memorandum of appeal must be tested within the substratum of the guiding
principles on standard and burden of proof on a balance of probabilities as
construed with the guidelines on the appellate jurisdiction of this Court as
outlined in Peters vs Sunday Post Limited [1958] EA 424.
HCCA NO E040 OF 2024 7
16.The bond of contention in this matter is on assessment of general damages
under the Fatal Accidents Act. In the case of David Gachiri Gatheru v Mary
Wangui Mathenge, Nakuru High Court Civil Appeal Number 90 of 2001
where the Court held as follows:
General damages are such as the law will presume to be direct natural
probable consequence of the act complained of. The character of the acts
themselves, which produce the damage, the circumstance under which
these acts are done, must regulate the degree of certainty and
particularity with which the damage done ought to be stated and proved.
As much certainty and particularity must be insisted on, both in pleading
and proof of damage, as is reasonnable, having regard to the
circumstance and to the nature of the acts themselves by which the
damage is done. To insist upon less would be to relax old and intelligible
principles and to insist upon more would the vainest pedantry See
Storms Bruks Aktie Bolay v John and Peter Hatarison [1905] AC
515; Ouma v Nairobi City Council [1976] KLR 298.
17. This is a fatal accident claim as shown from the pleadings and the evidence
and hence predominant Statutes upon which the Court must exercise
discretion remain to be the Law Reform Act and the Fatal Accident Act. The
principles on which damages for lost years under the Law Reform Act is what
the deceased would have likely to have made available to save, spend or
distribute after meeting the costs of his living at a standard which his job and
career prospects at the time of death would suggest was reasonably likely they
must on events or Contingencies for life, which he will not live, are out of place.
The Judge must make the best estimate based on the known facts and his
prospects at the time of death. See Gammel v Wilson [1981] 1 All ER 578 at
593.
[d]It is not true that as a matter of practice the Courts have established the
appropriate multiplier to be applied to different age groups of victims of
accidents since what is reasonable multiplier is a question of facts to be
determined from the peculiar circumstances of each case. The extent to which
a family is being supported must depend on the circumstances of each case,
and to ascertain it, the Judge will analyze the available evidence as to how
HCCA NO E040 OF 2024 8
much the deceased earned and how much he spent on his wife and family. See
Boru v Onduu [1988-92] KAR299.
[e]Where the working life of a living plaintiff has been shortened by injury he
suffers loss of prospective earnings and is entitled to an award for the "lost
years" being the period which he could have worked had he not suffered the
injuries and in such a case the plaintiff's living expenses are not deducted from
his net salary in assessing the appropriate multiplier. See Mariga v Musila
[1984] KLR251; [1982] LLR 69 (CAK).
[f]Conversely in computing a deceased's loss of earnings in the lost years both
under the Fatal Accidents Act and the Law Reform Act, the deceased's
estimated living expenses in the lost years are deducted for the reason that
they cannot constitute part of the deceased's estate. See Pickett v British Rail
Engineering Limited [1980] All ER 136; Gammel v Wilson [1981] 1 All ER 578;
Hassan v Nathan Mwangi Kamau Transporters [1985] LLR 250 (CAK); Muka v
Halale and another High Court civil case number 1870 of 1984. (See also
Odunga’s Digest on Civil Case Law and Procedure 3rd Edition Vol. 5.
18.The trial Court dealt with the said issue under the following separate and
distinct heads.
Damages Under the Fatal Accidents Act
(i) Loss of Dependency
(a) Dependency Ratio
19.The dependency ratio was not contested. This Court did not disturb the Trial
Court’s dependency ratio of 2/3 as the deceased was married and had two (2)
children.
(b) Multiplier
20.The multiplier was also not contested. This Court, therefore, did not disturb
the Trial Court’s multiplier of eight (8) years considering the age of the
deceased, that was reasonable in the circumstances.
(c) Multiplicand
21.This was the only issue that was contested under loss of dependency. The 1st
Respondents placed reliance on the cases of Mercy Kirito Mugeti vs Beatrice
HCCA NO E040 OF 2024 9
Nkatha Nyaga & 2 Others [2013]eKLR and Selle & Another vs Associated
Motor Boat Co Ltd & Others (Supra) on the duty of the first appellate Court
and the cases of Butt vs Khan (1977) KAR 1 , Bashir Ahmed Butt vs Uwais
Ahmed Khan (1982)-88) and Gitobu Imanyara & 2 Others vs Attorney
General [2016]eKLR where the common thread was that an appellate Court
could only interfere with an award of damages if the aggrieved party satisfies
that the trial Court took into account irrelevant factors or left out relevant
factors and that the amount of damages was so inordinately high or low that
the quantum awarded must be a wholly erroneous estimate of damages.
22.They argued that the Trial Court took into account the relevant factors being
the pleadings, evidence on record and the submissions by parties and
correctly awarded them damages under loss of dependency which was
commensurate with the age and earnings of the deceased at the time of the
accident.
23.They also cited the case of Kigaragari vs Aya [1985] KLR 273 where it was
held that in awarding damages for personal injury, the Courts should
consider that there is need to develop consistency in the awards and that the
awards should be within the limits of decided cases and avoid the effect of
making insurance cover and fees unaffordable for the public.
24.They pointed out that the Trial Court considered the age of the deceased, the
nature of the work he engaged in, age of the referenced authorities and the
rate of inflation in adopting the multiplicand of Kshs 10,000/=. They asserted
that in reaching the said conclusion the Trial Court relied on the case of
Martha Ndiro Odero (Suing as the administrator and personal
representative of the estate of Willy Patrick Ochieng Ndiro (Deceased) vs
Come Cons Africa Limited 2015 where the Court therein adopted a
multiplicand of Kshs 10,000/= for a deceased who died aged 32 years old and
was working with Kenya Army.
25.They were emphatic that the Trial Court took into account relevant principles
in arriving at the figure of Kshs 640,000/= under this head and that the same
was not excessive in the circumstances. They urged this Court to uphold the
same and dismiss the Appellant’s appeal herein with costs.
HCCA NO E040 OF 2024 10
26.So as to determine what was the appropriate multiplicand in this matter, this
Court had due regard to the case of Jacob Ayiga Maruja & Another vs
Simeon Obayo [2005] eKLR where the Court of Appeal rendered itself on the
question of failure to adduce proof of income. It stated that it did not subscribe
to the view that the only way to prove the profession of a person had to be by
the production of certificates and that the only way of proving earnings was
by production of documents as this would occasion a lot of injustice to very
many Kenyans who were illiterate and kept no records yet they earned their
livelihood in various ways.
27.In that case, the Court of Appeal found that the evidence of the Respondent
therein and the widow coupled with the production of school reports was
sufficient material to amount to strict proof for the damages claimed.
28.In the instant case, the Respondents pleaded in their Amended Plaint filed on
30th March 2017 that the deceased used to operate a retail shop earning Kshs
10,000/= per month. They claimed that he used the said earnings to educate
and maintain his family and dependants and that his estate had, therefore,
suffered loss and damages.
29.In the absence of any contrary evidence from the Appellants, this Court was
persuaded to believe the Respondents’ testimony that the deceased was
manned a retail shop. However, as there was no documentation to prove that
he actually earned Kshs 30,000/=, the Kshs 10,000/= that was awarded by
the Trial Court was not unreasonable estimation in the circumstances. The
Appellant’s Kshs 5,844.00 was on the lower side and they failed to explain
how they had arrived at the said figure.
30.On the other hand, the Trial Court had relied on the case of Martha Ndiro
Odero (Suing as the administrator and personal representative of the
estate of Willy Patrick Ochieng Ndiro (Deceased) vs Come Cons Africa
Limited [2015] eKLR where the Court therein adopted a multiplicand of Kshs
10,000/= for a deceased who died aged 32 years old and was working with
Kenya Army.
31.Courts are guided by comparable cases to arrive at conclusions that are not
so wide apart as to cause inconsistency and confusion to those relying on the
decisions. In the circumstances foregoing, Grounds of Appeal Nos (1), (2), (3),
HCCA NO E040 OF 2024 11
(4) and (5) of the Memorandum of Appeal were not merited and the same be
and are hereby dismissed.
DISPOSITION
32.From the evaluation of the memorandum of appeal, the submissions by the
Appellant as weighed with the impugned judgment I am guided by the
following principles in the case of Tahir sheikh Said Transporters (K)
Limited and Another v Charles Mugabo, CA 273 of 1998 in which the Court
held as follows:
“That the appellate Court only interferes with the award of damages if the
trial Judge has applied wrong principles e.g. taking into account irrelevant
factors or failing to take into account a relevant factor or misapplying or
not understanding the correct law or not appreciating the evidence
adduced or short of this that the damages awarded are so inordinately
high or low that some error of principle must be assumed.
33.For those reasons the appeal be and is hereby dismissed with costs to the
Respondent. It is so ordered.
DATED AND DELIVERED SIGNED AT VIHIGA THIS 30TH DAY OF
APRIL 2026
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO. E040 OF 2024
MALANG KOTIK BUSINESS MERCHANTS…………..……….1ST APPELLANT
KELVIN RUTO……………………………………………….……....2ND APPELLANT
WILLIAM KOMEN SOMOKWO………………………..….………3RD APPELLANT
=VERSUS=
DERRICK OBOTE MANAGU & ALLAN KINAGU MUNAVO (Suing as the
Legal Representatives of the Estate of HENRY OBOTE GALO
(DECEASED)…………………………………………………………1st RESPONDENT
EZEKIEL MWANIKI………………….……….…………………..2ND RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J. A. Agonda (SPM)
delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No
189 of 2016 on 16th July 2024)
Coram: Justice R. Nyakundi
M/S Peter M. Karanja Advocate
M/S Kimondo Gachoka & Company Advocates
JUDGMENT
INTRODUCTION
1. This is an appeal arising out of the Judgment delivered and pronounced on
16th July 2024 in Vihiga PMCC No. 189 of 2016. In that Judgment arising
out of the plaint dated 22nd November 2016 the Claimant pleaded as follows:
On or about the 21st April, 2016, the deceased was lawfully travelling
abode motor vehicle registration number KAS 427 M Toyota Matatu as a
passenger which motor vehicle was moving along Kapsabet-Chavakali
road while keeping to its left/correct lane and moving towards Chavakaii
HCCA NO E040 OF 2024 2
direction when at Shaviringa bridge the 1st & 2nd defendants' motor
vehicle registration number KBJ 603 D which was approaching from the
opposite direction i.e. from Chavakali to Kapsabet was so carelessly,
negligently and/or recklessly driven, managed and/or controlled by the
3d defendant that it was caused to lose control, move in a zig zag manner
on the road and eventually swerve/veer to its right onto the
opposite/wrong lane and collide with motor vehicle registration number
KAS 427 M causing the two motor vehicles to fall off the road as a result
of which accident the deceased suffered fatal injuries to which he
succumbed and died the same day thereby causing the deceased's
estate and dependants loss and damages. The defendants are thus
being held vicariously and directly, wholly liable for the said loss and
damages.
2. The claim at the trial Court was based on particulars of negligence of the 3rd
Defendant alleging as follows:
a) Swerving/Veering carelessly to the opposite/wrong lane of an oncoming
motor vehicle no. KAS 427 M.
b) Driving the said Motor Vehicle KBJ 603D on the wrong side of the road.
c) Losing control of motor vehicle Reg No. KBJ 603D
d) Driving motor vehicle reg. no. KBJ 603 in a zig zag manner
e) Driving the said Motor Vehicle KBJ 603 D without any attention or care
at all.
f) Over speeding in the circumstances
g) Driving Motor vehicle registration No. KBJ 603 D without brakes or with
defective brakes.
h) Driving a defective/un roadworthy motor vehicle.
i) Failing to keep proper look out for the deceased, m/v registration number
KAS 427M and other road users.
j) Failing to exercise sufficient care, skill or prudence or at all in driving m/v
KBJ 603D.
k) Failing to stop, slow down, apply brakes, swerve or in any other way act
so as to, manage and/or control motor vehicle registration No. KBJ 603
D so as to avoid the accident.
HCCA NO E040 OF 2024 3
l) Driving carelessly and at a high speed without due regard to the
condition of the road and the condition of the vehicle.
m) Allowing a defective motor vehicle to be driven on a busy road.
3. The particulars of claim were under the Fatal Accidents Act.
4. The hearing proceeded in earnest before the trial Court and at the end of it all
the Learned Trial Magistrate held as follows:
That on 21" April, 2016, the deceased was lawful fare paying passenger
in motor vehicle KAS 427M that was on its rightful lane along KapsabetChavakali road, when the driver of motor vehicle registration number KBJ
603D that was driven from opposite direction was carelessly, negligently
and or recklessly driven that it collided with the vehicle he was boarding
that was also driven at high speed as a result the deceased died on the
spot. To this end PWL maintained that he received information that the
deceased was involved in road accident and the bodies were taken to
Vihiga County Referral hospital where he identified the body of the
deceased. stated that the driver would have averted the occurrence of
this accident by swerving and even applying brakes but it was not
possible because of the high speed the motor vehicle was driven.
5. The learned trial Magistrate having heard the evidence made a positive finding
on liability and assessment of quantum as against the Defendants now the
Appellants to this appeal crafted as follows:
Pain and Suffering Kshs 50,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 640,000/=
Special Damages Kshs 15, 830/=
Total Kshs 805,830/=
6. Being aggrieved with the said decision, on 15th August 2024, the Appellants
herein filed a Memorandum of Appeal with the following grounds in situ; Thus:
(a) The quantum of general damages in respect of lost dependency is
inordinately high erroneous, oppressive and punitive and amounts to a
miscarriage of justice.
HCCA NO E040 OF 2024 4
(b) The Learned Trial Magistrate ignored and/or paid lip service to the
parties' submissions on the multiplicand which she did not analyze or
consider at all.
(c) The learned Trial magistrate erred in law when she applied the
multiplicand of Kshs10,000.00 without any basis for such a sum, nor
any finding as to what the deceased did and earned, and without any
analysis of the issue of the multiplicand, and thus applied a multiplicand
unsupportable on the evidence and submissions and simply plucked
from the air, thereby reaching an unreasonably high, capricious and
arbitrary, unjust award.
(d) The Learned Magistrate erred in Law and fact in completely ignoring the
submissions made by the appellants and the 1st Respondent that the
applicable multiplicand was Kshs 5,844.00 and proceeding to hold,
without any evidence or precedent, that the multiplicand was Kshs
10,000.00.
(e) The Learned Trial Magistrate failed to take into account all relevant
considerations and principles in assessing the quantum of damages.
(f) Other grounds as may be argued with the leave of the court
Reasons Wherefore the Appellants pray that the Appeal be allowed and:-
a) The judgment of the Honourable trial magistrate on general damages for
loss of dependency be set aside, varied and or be substituted with a
suitable award.
b) THAT costs of the appeal be paid by the 1st Respondent to the Appellants
7. As at the time of writing this Judgment, the Appellants had not filed their
Written Submissions. The 1st Respondent’s Written Submissions were dated
and filed on 11th November 2025 and filed on 24th February 2025. In their
submissions learned Counsel relied on the following cases: Selle & Another vs
Associated Motor Boat Co. Ltd. & Others [1968] EA 123, Abdul Hammed Saif v
Ali Mohamed Sholan (1955), 22 E.A.C.A 270, Butt v Khan (1977) KAR 1, Bashir
Ahmed butt vs Uwais Ahmed Khan (1982-88) KAR, Gitobu Imanyara & 2 Others
vs Attorney General [2016] KAR, Shabani V City Council of Nairobi (1985) KLR
516, Kigaragari v Aya [1985] KLR 273.
HCCA NO E040 OF 2024 5
8. It was the contention of the Learned Counsel that there are no grounds upon
which this appeal’s Court can appear with the decision of the trial Court both
on liability and general damages.
Analysis and Determination
9. It is settled law that the duty of a first appellate Court is to evaluate afresh
the evidence adduced before the trial Court in order to arrive at its own
independent conclusion but bearing in mind that it neither saw nor heard the
witnesses testify.
10.This was aptly stated in the case of Selle & Another vs Associated Motor
Boat Co. Ltd. & Others [1968] EA 123 where the Court therein held that the
appellate Court was not bound by the findings of fact of the trial Court but
that in re-considering and re-evaluating the evidence so as to draw its own
conclusions, it always had to bear in mind that it neither saw nor heard the
witnesses and thus make due allowance in that respect.
11.Having looked at the Grounds of Appeal and the 1st Respondent’s Written
Submissions, it appeared to this Court that the only issue that had been
placed before it for determination was whether or not the quantum in respect
of damages under the loss of dependency that was awarded by the Trial Court
was excessive in the circumstances warranting interference by this Court.
12.The law on standard of proof under Section 107(1), 108, 109 & 112 of the
Evidence Act it is for the Magistrate to establish whether the Plaintiffs now
Respondents to this appeal proved their case on a balance of probabilities.
13.What is required to prove negligence? Learned Author Clerk and Lindsell on
Torts has concisely set out the requirements which a claimant or Plaintiff
must prove to establish a defendant’s negligence as:
(a) The existence in law of a duty of care situation;
(b) Careless behaviour by the defendant;
(c) A causal connection between the defendant's careless conduct and the
damage;
(d) Foreseeability that such conduct would have inflicted on the particular
claimant the particular damage of which he complains; (Once (a) to (d)
HCCA NO E040 OF 2024 6
are satisfied, the defendant is liable in negligence and only then the next
two factors arise);
(e) The extent of the responsibility for the damage to be apportioned to the
defendant where others are also held responsible;
(f) The monetary estimate of that extent of damage.
14.In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA
334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap
80, the legal burden of proof lies upon the party who invokes the aid of
the law and substantially asserts the affirmative of the issue. There is
however the evidential burden that is case upon any party the burden of
proving any particular fact which he desires the court to believe in its
existence which is captured in Sections 109 and 112 of the Act.”
It follows that the initial burden of proof lies on the Plaintiff, but the same may
shift to the Defendant, depending on the circumstances of the case. In Evans
Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party
who invokes the aid of the law and substantially asserts the affirmative
of the issue. That is the purport of Section 107 (i) of the Evidence Act,
Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast
upon any party, the burden of proving any particular fact which he
desires the court to believe in its existence. That is captured in Section
109 and 112 of law that proof of that fact shall lie on any particular
person…The appellant did not discharge that burden and as Section 108
of the Evidence Act provides the burden lies in that person who would
fail if no evidence at all were given as either side.”
15.In determining this appeal, the measure and threshold issues raised in the
memorandum of appeal must be tested within the substratum of the guiding
principles on standard and burden of proof on a balance of probabilities as
construed with the guidelines on the appellate jurisdiction of this Court as
outlined in Peters vs Sunday Post Limited [1958] EA 424.
HCCA NO E040 OF 2024 7
16.The bond of contention in this matter is on assessment of general damages
under the Fatal Accidents Act. In the case of David Gachiri Gatheru v Mary
Wangui Mathenge, Nakuru High Court Civil Appeal Number 90 of 2001
where the Court held as follows:
General damages are such as the law will presume to be direct natural
probable consequence of the act complained of. The character of the acts
themselves, which produce the damage, the circumstance under which
these acts are done, must regulate the degree of certainty and
particularity with which the damage done ought to be stated and proved.
As much certainty and particularity must be insisted on, both in pleading
and proof of damage, as is reasonnable, having regard to the
circumstance and to the nature of the acts themselves by which the
damage is done. To insist upon less would be to relax old and intelligible
principles and to insist upon more would the vainest pedantry See
Storms Bruks Aktie Bolay v John and Peter Hatarison [1905] AC
515; Ouma v Nairobi City Council [1976] KLR 298.
17. This is a fatal accident claim as shown from the pleadings and the evidence
and hence predominant Statutes upon which the Court must exercise
discretion remain to be the Law Reform Act and the Fatal Accident Act. The
principles on which damages for lost years under the Law Reform Act is what
the deceased would have likely to have made available to save, spend or
distribute after meeting the costs of his living at a standard which his job and
career prospects at the time of death would suggest was reasonably likely they
must on events or Contingencies for life, which he will not live, are out of place.
The Judge must make the best estimate based on the known facts and his
prospects at the time of death. See Gammel v Wilson [1981] 1 All ER 578 at
593.
[d]It is not true that as a matter of practice the Courts have established the
appropriate multiplier to be applied to different age groups of victims of
accidents since what is reasonable multiplier is a question of facts to be
determined from the peculiar circumstances of each case. The extent to which
a family is being supported must depend on the circumstances of each case,
and to ascertain it, the Judge will analyze the available evidence as to how
HCCA NO E040 OF 2024 8
much the deceased earned and how much he spent on his wife and family. See
Boru v Onduu [1988-92] KAR299.
[e]Where the working life of a living plaintiff has been shortened by injury he
suffers loss of prospective earnings and is entitled to an award for the "lost
years" being the period which he could have worked had he not suffered the
injuries and in such a case the plaintiff's living expenses are not deducted from
his net salary in assessing the appropriate multiplier. See Mariga v Musila
[1984] KLR251; [1982] LLR 69 (CAK).
[f]Conversely in computing a deceased's loss of earnings in the lost years both
under the Fatal Accidents Act and the Law Reform Act, the deceased's
estimated living expenses in the lost years are deducted for the reason that
they cannot constitute part of the deceased's estate. See Pickett v British Rail
Engineering Limited [1980] All ER 136; Gammel v Wilson [1981] 1 All ER 578;
Hassan v Nathan Mwangi Kamau Transporters [1985] LLR 250 (CAK); Muka v
Halale and another High Court civil case number 1870 of 1984. (See also
Odunga’s Digest on Civil Case Law and Procedure 3rd Edition Vol. 5.
18.The trial Court dealt with the said issue under the following separate and
distinct heads.
Damages Under the Fatal Accidents Act
(i) Loss of Dependency
(a) Dependency Ratio
19.The dependency ratio was not contested. This Court did not disturb the Trial
Court’s dependency ratio of 2/3 as the deceased was married and had two (2)
children.
(b) Multiplier
20.The multiplier was also not contested. This Court, therefore, did not disturb
the Trial Court’s multiplier of eight (8) years considering the age of the
deceased, that was reasonable in the circumstances.
(c) Multiplicand
21.This was the only issue that was contested under loss of dependency. The 1st
Respondents placed reliance on the cases of Mercy Kirito Mugeti vs Beatrice
HCCA NO E040 OF 2024 9
Nkatha Nyaga & 2 Others [2013]eKLR and Selle & Another vs Associated
Motor Boat Co Ltd & Others (Supra) on the duty of the first appellate Court
and the cases of Butt vs Khan (1977) KAR 1 , Bashir Ahmed Butt vs Uwais
Ahmed Khan (1982)-88) and Gitobu Imanyara & 2 Others vs Attorney
General [2016]eKLR where the common thread was that an appellate Court
could only interfere with an award of damages if the aggrieved party satisfies
that the trial Court took into account irrelevant factors or left out relevant
factors and that the amount of damages was so inordinately high or low that
the quantum awarded must be a wholly erroneous estimate of damages.
22.They argued that the Trial Court took into account the relevant factors being
the pleadings, evidence on record and the submissions by parties and
correctly awarded them damages under loss of dependency which was
commensurate with the age and earnings of the deceased at the time of the
accident.
23.They also cited the case of Kigaragari vs Aya [1985] KLR 273 where it was
held that in awarding damages for personal injury, the Courts should
consider that there is need to develop consistency in the awards and that the
awards should be within the limits of decided cases and avoid the effect of
making insurance cover and fees unaffordable for the public.
24.They pointed out that the Trial Court considered the age of the deceased, the
nature of the work he engaged in, age of the referenced authorities and the
rate of inflation in adopting the multiplicand of Kshs 10,000/=. They asserted
that in reaching the said conclusion the Trial Court relied on the case of
Martha Ndiro Odero (Suing as the administrator and personal
representative of the estate of Willy Patrick Ochieng Ndiro (Deceased) vs
Come Cons Africa Limited 2015 where the Court therein adopted a
multiplicand of Kshs 10,000/= for a deceased who died aged 32 years old and
was working with Kenya Army.
25.They were emphatic that the Trial Court took into account relevant principles
in arriving at the figure of Kshs 640,000/= under this head and that the same
was not excessive in the circumstances. They urged this Court to uphold the
same and dismiss the Appellant’s appeal herein with costs.
HCCA NO E040 OF 2024 10
26.So as to determine what was the appropriate multiplicand in this matter, this
Court had due regard to the case of Jacob Ayiga Maruja & Another vs
Simeon Obayo [2005] eKLR where the Court of Appeal rendered itself on the
question of failure to adduce proof of income. It stated that it did not subscribe
to the view that the only way to prove the profession of a person had to be by
the production of certificates and that the only way of proving earnings was
by production of documents as this would occasion a lot of injustice to very
many Kenyans who were illiterate and kept no records yet they earned their
livelihood in various ways.
27.In that case, the Court of Appeal found that the evidence of the Respondent
therein and the widow coupled with the production of school reports was
sufficient material to amount to strict proof for the damages claimed.
28.In the instant case, the Respondents pleaded in their Amended Plaint filed on
30th March 2017 that the deceased used to operate a retail shop earning Kshs
10,000/= per month. They claimed that he used the said earnings to educate
and maintain his family and dependants and that his estate had, therefore,
suffered loss and damages.
29.In the absence of any contrary evidence from the Appellants, this Court was
persuaded to believe the Respondents’ testimony that the deceased was
manned a retail shop. However, as there was no documentation to prove that
he actually earned Kshs 30,000/=, the Kshs 10,000/= that was awarded by
the Trial Court was not unreasonable estimation in the circumstances. The
Appellant’s Kshs 5,844.00 was on the lower side and they failed to explain
how they had arrived at the said figure.
30.On the other hand, the Trial Court had relied on the case of Martha Ndiro
Odero (Suing as the administrator and personal representative of the
estate of Willy Patrick Ochieng Ndiro (Deceased) vs Come Cons Africa
Limited [2015] eKLR where the Court therein adopted a multiplicand of Kshs
10,000/= for a deceased who died aged 32 years old and was working with
Kenya Army.
31.Courts are guided by comparable cases to arrive at conclusions that are not
so wide apart as to cause inconsistency and confusion to those relying on the
decisions. In the circumstances foregoing, Grounds of Appeal Nos (1), (2), (3),
HCCA NO E040 OF 2024 11
(4) and (5) of the Memorandum of Appeal were not merited and the same be
and are hereby dismissed.
DISPOSITION
32.From the evaluation of the memorandum of appeal, the submissions by the
Appellant as weighed with the impugned judgment I am guided by the
following principles in the case of Tahir sheikh Said Transporters (K)
Limited and Another v Charles Mugabo, CA 273 of 1998 in which the Court
held as follows:
“That the appellate Court only interferes with the award of damages if the
trial Judge has applied wrong principles e.g. taking into account irrelevant
factors or failing to take into account a relevant factor or misapplying or
not understanding the correct law or not appreciating the evidence
adduced or short of this that the damages awarded are so inordinately
high or low that some error of principle must be assumed.
33.For those reasons the appeal be and is hereby dismissed with costs to the
Respondent. It is so ordered.
DATED AND DELIVERED SIGNED AT VIHIGA THIS 30TH DAY OF
APRIL 2026