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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E150 OF 2023.
MARY NABANGALA SITAWA (Suing as the legal &
personal representative of the estate of
THOMAS WABOMBA SIMIYU(DCD)………………………..APPELLANT
VERSUS
WALELA SIFUMA SHABAN…………………………..…….RESPONDENT
(Being an Appeal against the judgement and decree of the Hon. C. Maundu (CM), in the Chief Magistrate’s Court in Bungoma delivered on 15th August 2023, in Bungoma CMCC No. 264 of 2021)
JUDGEMENT
1. Vide a Plaint dated 27th September 2021, and filed in Court on 30th September 2021, the Appellant herein (Plaintiff in the trial Court) brought up a claim against the Respondent (Defendant in the trail Court) at the lower Court in her capacity as an Administrator of the estate of the deceased herein seeking recovery of general and special damages after the deceased was fatally knocked off the motor vehicle (tractor) registration number KAT 033H and hauling trailer registration number ZA 4545 New Holland he was travelling in as a passenger and run over by the Respondent’s driver, agent and/or servant as a result of his negligence, recklessness and careless driving of motor vehicle (tractor) registration number KAT 033H and hauling trailer registration number ZA 4545 New Holland.
2. Vide a Statement of Defence dated 21st October 2021, and filed in Court on 25th October 2021, the Respondent denied ownership of the alleged motor vehicle (tractor) registration number KAT 033H and hauling trailer registration number ZA 4545 New Holland and the particulars of negligence attributed to him and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent and urged this Court to dismiss the suit.
3. On 13th June 2023, the parties herein recorded a consent before the trial Court agreeing on liability at 70:30 in favour of the Appellant herein and that the issue of assessment of quantum was dispensed by way of viva voce evidence.
4. Thereafter the trial magistrate vide a judgement delivered 15th August 2023, assessed damages as follows;
a) Pain and suffering Kshs. 200,000/=
b) Loss of expectation of life Kshs.100,000/=
c) Loss of dependency Kshs.1,122,032/=
d) Special damages Kshs.50,000/=
Total Kshs. 1, 292,032/=
e) Less 30% contributory negligence Kshs. 387,609.6/=
Net Total Kshs. 904,422.40/
Appeal
5. The Appellant was aggrieved by the award and filed the instant appeal preferring the following five (5) amended grounds:
a. The trial magistrate erred in law and facts by giving a multiplicand of 10 years instead of 43 years hence arriving at a wrong decision.
b. The trial magistrate erred in law and facts by failing to give reasons why he chose a multiplicand of 10 years.
c. The trial magistrate erred in law and facts by subjecting special damages to liability hence arriving at a wrong decision.
d. The trial magistrate erred in law by not awarding interest on special damages which should run from the date of filing the suit.
e. The trial magistrate erred in law and facts by subjecting special damages to liability hence arriving at a wrong decision.
6. The Appellant prayed for orders inter alia that: the appeal be allowed and the subordinate Court’s judgement be set aside and substituted with a multiplicand of 43 years instead of 10 years in calculation of damages; this appeal be allowed with costs to the Appellant.
7. The appeal was canvassed by way of written submissions wherein the firm of M/S Robert Wamalwa & Co. Advocates appeared for the Appellant while the firm of M/S Wattangah & Co Advocates represented the Respondent. Both parties complied with the Court directives.
Analysis and Determination
8. This is the first appeal to the High Court. As such, it is an appeal on both facts and the law. As the first appellate court, I am duty-bound to re-evaluate and reconsider the evidence adduced before the trial Court in order to draw my own independent conclusions remembering that, unlike the trial Court, I did not have the benefit of seeing or hearing the witnesses and give due allowance for that disadvantage. See Selle V Associated Motor Boat Company ltd (1968) EA 123; Williamson Diamond Ltd V Brown (1970) EA 1.
9. I have considered the evidence tendered before the trial Court, the judgment, the amended grounds of appeal and the rival submissions filed by the parties both in the lower Court and this Court inclusive of all the authorities cited.
10. The Appellant herein impugns the quantum given that the issue of liability was settled by consent of the parties. The Appellant is specifically aggrieved by the quantum of damages under the head of loss of dependency and to be precise on the multiplier.
11. It is important to set out the principles that guide an appellate Court in deciding whether or not to interfere with the damages awarded by the trial Court. In the celebrated case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another V Lubia & Another (No. 2) (1985) eKLR, the Court of Appeal expressed itself as follows; -
“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 to be that; it must be satisfied that either that 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…”.
12. In Mariga vs Musila (1984) KLR 251 the same Court also stated as follows:
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower court judge acted on the wrong principles...”
13. It is trite law in Kenya that general damages must be compensatory. When one looks at the impugned Judgment, it must be reasonable and commensurate to the nature of injuries suffered by the Claimant and in tandem with decided cases of comparative injuries. It has been held, times without number that money cannot adequately compensate a buttered human frame nor cannot it bring back to life a person who has, as in this instance, sustained fatal injuries. All that the awards in damages do is to assuage the pain and suffering of the claimant.
14. It is the gist of this appeal that the trial Court ought to have used a multiplier of 43 years instead of 10 years. As per the certificate of death serial number 0875798, the deceased died at the age of 42. The trial Court applied a multiplier of 10 years and a multiplicand of Kshs. 14, 025.40/= according to the Minimum Wages Guidelines for a casual labourer.
15. The choice of a multiplier is at the discretion of the Court. The same must however be exercised judiciously, premised on reason and devoid of caprice. In Cornelia Elaine Wamba vs Shreeji Enterprises Ltd & Others (2012) eKLR, the Court stated that:
“The choice of a multiplier or multiplicand is a matter of the Court''s discretion which discretion has to be exercised judiciously and with a reason. Some of the factors to be taken into consideration by a court in the exercise of its mandate on the choice of the two are the age of the deceased, nature of the profession he was engaged in, possibility of retirement from employment where the profession engaged in provides for a retirement age and, lastly, possibility of death through natural causes and departure for greener pastures elsewhere.”
16. In applying a multiplier of 10 years, the trial Court in this matter held that the same was fair. In my scrutiny of the Appellant’s trial Court written submissions, she had proposed a multiplier of 43 years while the Respondent in his trial Court written submissions argued that a multiplier of 10 years was appropriate.
17. It is appropriate for this Court to assume that the deceased herein would have worked up to the retirement age of 60 years if it were not for the accident. The Court in determining the multiplier is required to factor in imponderables of human life. In case of Sarah Naitore M’ikunyua v Geofrey Mwangi Bor & another [2021] eKLR, the Court used a multiplier of 13 years for a deceased who died at the age of 43 years. Similarly, in Samuel Kuria Kuhunya v Laura Wangui Kahuho & another [2020] eKLR, the Court adopted a multiplier of 15 years where the deceased died at the age of 43. I am convinced that had the trial Court considered such comparative cases on multiplier, it would not have adopted a multiplier of 10 years for a 43-year-old. The multiplier adopted by the trial Court was inordinately low as to warrant this Court to interfere with it. I consider a multiplier of 15 years to be appropriate in this case.
18. In view of the foregoing observations, it is my finding that the Appellant’s appeal has merit. The same is allowed. The trial Court’s judgement is interfered with at the award of loss of dependency as the same will be increased by a sum of Kshs. 561,016/=. (Kshs. 14,025.40×12×10×2/3- Kshs. 14,025.40×12×15×2/3)
19. Accordingly, for the reasons set out above, this Court makes the following orders: -
I. The Appellant’s appeal is allowed to the extent that the multiplier of 10 years used by the trial Court is set aside and replaced with a multiplier of 15 years.
II. Pursuant to order I above, the damages of Ksh 904,422.40/= awarded by the trial Court is substituted with damages of Ksh. 1,312,133.60/= arrived at as follows: -
a. Pain and suffering Kshs. 20,000/=
b. Loss of expectation of life Kshs. 100,000/=
c. Loss of Dependency Kshs. 1,683,048/=
Sub-total Kshs. 1,803,048/=
Less 30% contributory negligence Kshs. 540,914.40/=
d. Special damages Kshs. 50,000/=
TOTAL Kshs. 1,312,133.60/=
e. Plus, costs and interest.
20. The costs of the appeal are awarded to the Appellant.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
MR. ANGIMA H/B FOR MR.ROBERT WAMALWA FOR APPELLANT
MR. WATTANGA FOR RESPONDENT
PETER MACHONI…………….COURT ASSISTANT
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E150 OF 2023.
MARY NABANGALA SITAWA (Suing as the legal &
personal representative of the estate of
THOMAS WABOMBA SIMIYU(DCD)………………………..APPELLANT
VERSUS
WALELA SIFUMA SHABAN…………………………..…….RESPONDENT
(Being an Appeal against the judgement and decree of the Hon. C. Maundu (CM), in the Chief Magistrate’s Court in Bungoma delivered on 15th August 2023, in Bungoma CMCC No. 264 of 2021)
JUDGEMENT
1. Vide a Plaint dated 27th September 2021, and filed in Court on 30th September 2021, the Appellant herein (Plaintiff in the trial Court) brought up a claim against the Respondent (Defendant in the trail Court) at the lower Court in her capacity as an Administrator of the estate of the deceased herein seeking recovery of general and special damages after the deceased was fatally knocked off the motor vehicle (tractor) registration number KAT 033H and hauling trailer registration number ZA 4545 New Holland he was travelling in as a passenger and run over by the Respondent’s driver, agent and/or servant as a result of his negligence, recklessness and careless driving of motor vehicle (tractor) registration number KAT 033H and hauling trailer registration number ZA 4545 New Holland.
2. Vide a Statement of Defence dated 21st October 2021, and filed in Court on 25th October 2021, the Respondent denied ownership of the alleged motor vehicle (tractor) registration number KAT 033H and hauling trailer registration number ZA 4545 New Holland and the particulars of negligence attributed to him and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent and urged this Court to dismiss the suit.
3. On 13th June 2023, the parties herein recorded a consent before the trial Court agreeing on liability at 70:30 in favour of the Appellant herein and that the issue of assessment of quantum was dispensed by way of viva voce evidence.
4. Thereafter the trial magistrate vide a judgement delivered 15th August 2023, assessed damages as follows;
a) Pain and suffering Kshs. 200,000/=
b) Loss of expectation of life Kshs.100,000/=
c) Loss of dependency Kshs.1,122,032/=
d) Special damages Kshs.50,000/=
Total Kshs. 1, 292,032/=
e) Less 30% contributory negligence Kshs. 387,609.6/=
Net Total Kshs. 904,422.40/
Appeal
5. The Appellant was aggrieved by the award and filed the instant appeal preferring the following five (5) amended grounds:
a. The trial magistrate erred in law and facts by giving a multiplicand of 10 years instead of 43 years hence arriving at a wrong decision.
b. The trial magistrate erred in law and facts by failing to give reasons why he chose a multiplicand of 10 years.
c. The trial magistrate erred in law and facts by subjecting special damages to liability hence arriving at a wrong decision.
d. The trial magistrate erred in law by not awarding interest on special damages which should run from the date of filing the suit.
e. The trial magistrate erred in law and facts by subjecting special damages to liability hence arriving at a wrong decision.
6. The Appellant prayed for orders inter alia that: the appeal be allowed and the subordinate Court’s judgement be set aside and substituted with a multiplicand of 43 years instead of 10 years in calculation of damages; this appeal be allowed with costs to the Appellant.
7. The appeal was canvassed by way of written submissions wherein the firm of M/S Robert Wamalwa & Co. Advocates appeared for the Appellant while the firm of M/S Wattangah & Co Advocates represented the Respondent. Both parties complied with the Court directives.
Analysis and Determination
8. This is the first appeal to the High Court. As such, it is an appeal on both facts and the law. As the first appellate court, I am duty-bound to re-evaluate and reconsider the evidence adduced before the trial Court in order to draw my own independent conclusions remembering that, unlike the trial Court, I did not have the benefit of seeing or hearing the witnesses and give due allowance for that disadvantage. See Selle V Associated Motor Boat Company ltd (1968) EA 123; Williamson Diamond Ltd V Brown (1970) EA 1.
9. I have considered the evidence tendered before the trial Court, the judgment, the amended grounds of appeal and the rival submissions filed by the parties both in the lower Court and this Court inclusive of all the authorities cited.
10. The Appellant herein impugns the quantum given that the issue of liability was settled by consent of the parties. The Appellant is specifically aggrieved by the quantum of damages under the head of loss of dependency and to be precise on the multiplier.
11. It is important to set out the principles that guide an appellate Court in deciding whether or not to interfere with the damages awarded by the trial Court. In the celebrated case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another V Lubia & Another (No. 2) (1985) eKLR, the Court of Appeal expressed itself as follows; -
“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 to be that; it must be satisfied that either that 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…”.
12. In Mariga vs Musila (1984) KLR 251 the same Court also stated as follows:
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower court judge acted on the wrong principles...”
13. It is trite law in Kenya that general damages must be compensatory. When one looks at the impugned Judgment, it must be reasonable and commensurate to the nature of injuries suffered by the Claimant and in tandem with decided cases of comparative injuries. It has been held, times without number that money cannot adequately compensate a buttered human frame nor cannot it bring back to life a person who has, as in this instance, sustained fatal injuries. All that the awards in damages do is to assuage the pain and suffering of the claimant.
14. It is the gist of this appeal that the trial Court ought to have used a multiplier of 43 years instead of 10 years. As per the certificate of death serial number 0875798, the deceased died at the age of 42. The trial Court applied a multiplier of 10 years and a multiplicand of Kshs. 14, 025.40/= according to the Minimum Wages Guidelines for a casual labourer.
15. The choice of a multiplier is at the discretion of the Court. The same must however be exercised judiciously, premised on reason and devoid of caprice. In Cornelia Elaine Wamba vs Shreeji Enterprises Ltd & Others (2012) eKLR, the Court stated that:
“The choice of a multiplier or multiplicand is a matter of the Court''s discretion which discretion has to be exercised judiciously and with a reason. Some of the factors to be taken into consideration by a court in the exercise of its mandate on the choice of the two are the age of the deceased, nature of the profession he was engaged in, possibility of retirement from employment where the profession engaged in provides for a retirement age and, lastly, possibility of death through natural causes and departure for greener pastures elsewhere.”
16. In applying a multiplier of 10 years, the trial Court in this matter held that the same was fair. In my scrutiny of the Appellant’s trial Court written submissions, she had proposed a multiplier of 43 years while the Respondent in his trial Court written submissions argued that a multiplier of 10 years was appropriate.
17. It is appropriate for this Court to assume that the deceased herein would have worked up to the retirement age of 60 years if it were not for the accident. The Court in determining the multiplier is required to factor in imponderables of human life. In case of Sarah Naitore M’ikunyua v Geofrey Mwangi Bor & another [2021] eKLR, the Court used a multiplier of 13 years for a deceased who died at the age of 43 years. Similarly, in Samuel Kuria Kuhunya v Laura Wangui Kahuho & another [2020] eKLR, the Court adopted a multiplier of 15 years where the deceased died at the age of 43. I am convinced that had the trial Court considered such comparative cases on multiplier, it would not have adopted a multiplier of 10 years for a 43-year-old. The multiplier adopted by the trial Court was inordinately low as to warrant this Court to interfere with it. I consider a multiplier of 15 years to be appropriate in this case.
18. In view of the foregoing observations, it is my finding that the Appellant’s appeal has merit. The same is allowed. The trial Court’s judgement is interfered with at the award of loss of dependency as the same will be increased by a sum of Kshs. 561,016/=. (Kshs. 14,025.40×12×10×2/3- Kshs. 14,025.40×12×15×2/3)
19. Accordingly, for the reasons set out above, this Court makes the following orders: -
I. The Appellant’s appeal is allowed to the extent that the multiplier of 10 years used by the trial Court is set aside and replaced with a multiplier of 15 years.
II. Pursuant to order I above, the damages of Ksh 904,422.40/= awarded by the trial Court is substituted with damages of Ksh. 1,312,133.60/= arrived at as follows: -
a. Pain and suffering Kshs. 20,000/=
b. Loss of expectation of life Kshs. 100,000/=
c. Loss of Dependency Kshs. 1,683,048/=
Sub-total Kshs. 1,803,048/=
Less 30% contributory negligence Kshs. 540,914.40/=
d. Special damages Kshs. 50,000/=
TOTAL Kshs. 1,312,133.60/=
e. Plus, costs and interest.
20. The costs of the appeal are awarded to the Appellant.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
MR. ANGIMA H/B FOR MR.ROBERT WAMALWA FOR APPELLANT
MR. WATTANGA FOR RESPONDENT
PETER MACHONI…………….COURT ASSISTANT
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