REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO E060 OF 2023
MARY WAIRIMU MUCHIRI ----------------------------------- APPELLANT
-VERSUS-
REUBEN BOIYO CHEMAYEK & JUDITH NAKUMICHA LUMBASI (Suing as the Legal Representatives and Administrators of the Estate of DORINE CHEPKEMBOI CHEMAYEK – Deceased) ------ 1 ST RESPONDENT
PEPALS INVESTMENT --------------------------------- 2 ND RESPONDENT
(Being an Appeal from the Judgment of the Senior Principal Magistrate’s Court in Sirisia SPMCC No. E083 of 2022 delivered by the Hon. J.O Manasses, Resident Magistrate on 25 th May 2023.)
JUDGMENT
1. The Respondents herein were the Plaintiffs in the trial court where they sued the Appellant and the 2 nd Respondent jointly and severally for: -
(a) General Damages
(b) Special Damages in the sum of Kshs. 229,550/=
(c) Costs of the suit
(d) Interests on (a) and (b) at 14% per annum.
2. The Plaintiff’s case was that on or about 26th May 2022, the deceased was lawfully aboard lorry Registration No. KDA 060Y along Chwele-Kipsigon road, particularly at Mukhuyu area, when the driver of the said lorry negligently drove or managed it, causing it to lose control, roll, and overturn. As a result, she sustained serious injuries and subsequently succumbed.
3. The Appellant entered appearance and filed her statement of defence dated 24 th November 2022 where she denied the contents of the Plaint and attributed the negligence to the deceased.
4. On 13th April 2023, the parties recorded a consent in court where liability was apportioned at a ratio of 70:30 in favour of the Plaintiff against the 2nd Defendant/Appellant. The matter proceeded to hearing, and Reuben Boiyo Chemayek testified as PW1 before the Plaintiff’s case was closed. The defence also concluded its case.
5. Judgment was rendered on 25 th May 2023 as follows: -
Liability at 70%: 30% in favour of the Plaintiff
Damages for Pain and Suffering – Kshs. 50,000/=
Loss of Expectation of life – Kshs. 300,000/=
General Damages – Kshs. 3,840,000/=
Special Damages – Kshs. 229,550/=
Total – Kshs. 4,419,550/=
Less 30% liability – Kshs. 1,325,865/=
Net Award – Kshs. 3,093,685/=
Costs of the suit – Kshs. 148,967.25/=
6. Aggrieved by this decision, the Appellant filed the present appeal via Memorandum of Appeal dated 14th June 2013, seeking the following orders:
(a) That the Appeal be allowed in its entirety.
(b) The judgment in Sirisia Principal Magistrate’s Court, Civil Suit No. E083 of 2022 between Reuben Boiyo Chemayek and Judith Nakhumicha Lumbasi suing as the Legal Representatives and the Administrators of the Estate of Dorine Chepkemboi Chemayek vs. Penpals Investment and Mary Wairimu Muchiri which judgment was delivered on 25 th May 2023 be set aside.
(c) The honourable court be pleased to make its own decision and assessment in regard to damages.
(d) Any other relief that the court deems fit and just to grant.
(e) Costs of the Appeal.
7. The Appellant raised the following grounds of Appeal: -
(1) THAT the learned Trial Magistrate erred in law and in fact in making an award of damages under loss of dependency at Kshs. 3,840,000/= which was manifestly excessive under the circumstances.
(2) THAT the learned Trial Magistrate erred in law and in fact by failing to take into account the vicissitudes and vagaries of life in respect of a 30-year-old woman and therefore made an award of Kshs. 3,840,000/= for loss of dependency which amount was manifestly excessive.
(3) THAT the learned Trial Magistrate erred in law and in fact in using a multiplicand of Kshs. 16,000/= when there was no evidence to support the same causing a miscarriage of justice.
(4) THAT the learned Trial Magistrate erred in law and in fact in finding the minimum wage was Kshs. 18,319.50/= when no such evidence was adduced causing a miscarriage of justice.
(5) THAT the learned Trial Magistrate erred in law and in fact in using a multiplier of 30 years without considering the vicissitudes and vagaries of life causing miscarriage of justice.
(6) THAT the learned Trial Magistrate erred in law and in fact in awarding Special Damages of Kshs. 229,550/= when the same had not been strictly proved.
(7) THAT the learned Trial Magistrate erred in law and in fact in using the wrong principles in the assessment of damages under loss of expectation of life and thereby arriving at an excessive figure.
8. The Appeal was canvass by way of written submissions.The duty of a first appellate court was aptly explained by the Court of Appeal in Kisumu in the case of Patrick Analo & another vs. Republic [2019] KECA 162 (KLR) thus: -
“To the extent that we are dealing with a first appeal, we are obliged to re-evaluate the evidence and come to our own independent conclusion. This Court expressed that duty as follows in Attorney General & 2 Others v. IPOA & 2 Others, CA. No. 324 of 2014:-
“On our part, as a first appellate court, it is not lost on us that we have the duty, and responsibility to re-evaluate the evidence adduced before the High Court and arrive at our own independent decision. This re-evaluation is not merely a rehashing of the evidence or findings of the trial court. It entails reconsidering the evidence afresh with a clear mind devoid of any influence from the findings of the trial court. This is as required of us under Rule 29(1) (a) of this Court’s Rules and as we have variously stated in a litany of decided cases.”
9. Having considered the trial record and the grounds of appeal against the law, the only issue for my determination is quantum and whether this Court can interfere with the trial court’s assessment of it.
ANALYSIS AND DETERMINATION
10. The principles an appellate court must consider when deciding whether to interfere with the assessment of quantum were restated in the case of Kivati v. Coastal Bottlers Ltd, Civil Appeal No. 69 of 1984, as follows: -
“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate.”
11. In a fatal accidents claim, the estate of a deceased person is entitled to damages under the Law Reform (Miscellaneous Provisions) Act, comprising damages for pain and suffering and loss of expectation of life, and under the Fatal Accidents Act, which includes loss of dependency.
(i) Damages under the Law Reform Act
12. In this case, the Appellant challenged the assessment of damages under the Law Reform Act, arguing that they were excessive. They cited the case of West Kenya Sugar Company Limited v. Philip Sumba Julaya (Suing as the Administrator and Personal Representative of the Estate of James Julaya Sumba – Deceased) (2019) eKLR and Hyder Nthenya Musili & Another v. China Wu Yi Limited & Another (2017) eKLR, where it was held that the generally accepted principle is that very nominal damages will be awarded on the two heads if death followed immediately after the accident. It was proposed that the award of Kshs. 300,000/= under loss of expectation of life be reviewed to Kshs. 100,000/=.
13. The 1st Respondent submitted through counsel that the award for loss of expectation of life was appropriate because it was based on the court’s discretion and was also a conventional award. They relied on the case of Daniel Kuria v Nairobi City Council (2013) eKLR, where this Court awarded Kshs. 300,000/=.
14. I have considered the submissions above and find that, in cases of loss of expectation of life, a conventional award of Kshs. 100,000/= has often been awarded in the claims under the Law Reform Act. Therefore, I reduce the award from Kshs. 300,000/= to Kshs. 100,000/=.
(ii) Damages under the Fatal Accidents Act
15. Under the Fatal Accidents Act, the court evaluates damages for dependency loss. Two methods are used: the Multiplier approach or the Global Sum approach. In this case, the trial court used the multiplier method and awarded damages of Kshs. 3,840,000/=
16. In her submissions, the Appellant argued that the award of Kshs. 3,840,000/= was clearly excessive because the trial court applied an incorrect multiplier and multiplicand instead of using the Regulation of Wages (General) (Amendment) Order 2022 in determining the multiplicand. Counsel referred to the established principles for considering whether to interfere with the award of damages as outlined in the case of Ufrah Motors Bazaar & Another vs. Kibe, Civil Appeal No. 39 of 2021 (2023) KEHC 1285 KLR, and Jane Chelagat Bor vs. Andrew Otieno Onduu (1988-92) 2 KAR 288 (1990-94) E.A. 47.
17. It was submitted that the trial court failed to consider the vicissitudes of life, taking into account the deceased’s line of work. Counsel cited the case of Crown Bus Services Ltd & 2 Others v. Jamilla Nyongesa and Amida Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala – Deceased) (2020) eKLR, where the court held that it was wrong for the trial court to neglect the vicissitudes of life even though the deceased enjoyed good health. Finally, on this point, it was argued that the multiplicand of Kshs. 16,000/= was not supported by evidence.
18. On their part, the 1st Respondent argued that the retirement age for civil servants in Kenya is 60, and since the deceased was 30 years old and in good health with no underlying or existing medical conditions, it was expected she would continue managing her business and farming beyond the age of 60. Therefore, the trial court was correct in adopting a multiplier of 30 years. It was also submitted that the court should not interfere with the multiplicand of Kshs. 16,000/= because, although there was no proof of these earnings provided, the Court of Appeal in Jacob Ayiga Makokha & Another vs. Simeon Obayo (2005) eKLR held that documentation was the only way to establish proof of earnings.
19. I note from the trial record that PW1, the 1st Respondent herein, testified that his daughter was a businesswoman who earned Kshs. 60,000/= monthly. However, no documentation or other proof of income was presented by the Plaintiff to support this assertion to the Court. It was also unclear whether, as a businesswoman, she would consistently earn Kshs. 60,000/= each month.
20. Likewise, having died at 30 years of age, despite being reported to enjoy good health and having no medical conditions, the court found it difficult to confidently conclude that she would have lived until she was 60. At the same time, as a businesswoman, it was not proper to conclude that she would have retired from her business at age 60. Additionally, it was unclear why the trial court used a minimum wage of Kshs. 16,000/=.
21. Considering all the above, I conclude that the multiplier method was unsuitable for this case's circumstances. I base this finding on the case of Moses Mairua Muchiri v. Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR), where the court held as follows: -
“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
22. I therefore set aside the award of damages in this respect and re-evaluate it using the Global Sum approach. In doing so, I have considered these decided cases as follows:
(a) In Stanwel Holdings Limited & another vs. Racheal Haluku Emanuel & another [2020] eKLR, the appellate court reduced a global sum award by the trial court of Kshs. 2,000,000/= to Kshs 1,000,000/= for Loss of Dependency where the deceased was 23-years-old.
(b) In Oyugi Judith & another vs. Fredrick Odhiambo Ongong & 3 others [2014] eKLR , the court awarded Kshs. 700,000/= to each plaintiff for loss of dependency where the deceased persons were aged between 18 and 30 years old.
(c) In Onserio vs. Munyotu (Civil Appeal E001 of 2023) [2024] KEHC 5655 (KLR), Gikonyo J. set aside an award of Kshs 8.9 Million by the trial court and awarded Kshs 2,000,000/= for loss of dependency.
23. Taking into account the above cases and the fact that the deceased was survived by two sons under the age of 10 and was the sole breadwinner for her father and mother, I find that an award of Kshs. 2,000,000/= would be appropriate under the circumstances.
24. Regarding the issue of Special Damages, Counsel submitted on behalf of the Appellant that the award should have been Kshs. 159,415/= because the receipts dated 2/6/2020 for Kshs. 13,000/= and 2/2/2020 for Kshs. 60,000/= were never produced and should never have been admitted. The 1st Respondent stated at paragraph 6 of the Plaint as follows: -
(1) Limited Grant – Kshs. 50,000/=
(2) Transport - Kshs. 72,000/=
(3) Coffin – Kshs. 45,000/=
(4) Mortuary Expenses – Kshs. 11,865/=
(5) General Funeral Expenses – Kshs. 62,000/=
(6) Copy of Records – Kshs. 550
TOTAL – Kshs. 229,550/=
25. It is noteworthy to state that the above particulars for Special Damages amount to Kshs. 241,415/= and not Kshs. 229,550/= as indicated in the Plaint. This notwithstanding, it is well established that special damages must be specifically pleaded and proved.
26. In this case, I note that the Plaintiff only produced the following receipts: -
(1) Limited Grant – 50,000/=
(2) Transport – Hearse – Kshs. 42,000/=
(3) Coffin – Kshs. 45,000/=
(4) Mortuary Expenses – Kshs. 11,865/=
TOTAL – 148,865/=
27. They also produced a receipt for the sum of Kshs. 10,000/= along with other ineligible receipts, but these were not pleaded in the Plaint and therefore cannot be awarded.
28. Regarding general funeral expenses, although not substantiated by receipts, I am guided by the principle pronounced by the Court of Appeal in the case of Premier Diary Limited vs. Amarjit Singh Sagoo & Another [2013] eKLR, where it was held that:
“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000/= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”
(See also the Court of Appeal in Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] eKLR and the High Court decision in J N K (Suing as the Legal representative of the Estate of MMM (Deceased) vs. Chairman Board of Governors [...] Boys High School [2018] KEHC 7003 (KLR)
29. Since the Plaintiff claimed general funeral expenses of Kshs. 62,000/=, I find the amount reasonable and will award it.
30. In the final analysis, I set aside the judgment of the trial court and enter judgment as follows: -
Liability at 70:30 in favour of the 1 st Respondent
Damages under the Law Reform Act
(i) Damages for Pain and Suffering – Kshs. 50,000/=
(ii) Loss of expectation of life – Kshs. 100,000/=
Damages under the Law Reform Act
(i) Loss of dependency – Global sum of Kshs. 2,000,000/=
Total – Kshs. 2,150,000/=
Less 30% Liability – (Kshs. 645,000/=)
Total Damages – 1,505,000/=
Add Special Damages
Limited Grant – 50,000/=
Transport – Hearse – Kshs. 42,000/=
Coffin – Kshs. 45,000/=
Mortuary Expenses – Kshs. 11,865/=
General Funeral Expenses – Kshs. 62,000
GRAND TOTAL – Kshs. 1,715,865/=
31. The Appellant shall have half the costs of the appeal. Orders accordingly.
Dated, signed and delivered at Bungoma this 13 th Day of March 2026.
R. OUGO
JUDGE
In the presence of :
Mr. Makokha - For the Appellant
Miss Akinyi -For the Respondent ; Wilkister - C/A
HCCA NO. 60 OF 2023- JUDGMENT 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO E060 OF 2023
MARY WAIRIMU MUCHIRI ----------------------------------- APPELLANT
-VERSUS-
REUBEN BOIYO CHEMAYEK & JUDITH NAKUMICHA LUMBASI (Suing as the Legal Representatives and Administrators of the Estate of DORINE CHEPKEMBOI CHEMAYEK – Deceased) ------ 1 ST RESPONDENT
PEPALS INVESTMENT --------------------------------- 2 ND RESPONDENT
(Being an Appeal from the Judgment of the Senior Principal Magistrate’s Court in Sirisia SPMCC No. E083 of 2022 delivered by the Hon. J.O Manasses, Resident Magistrate on 25 th May 2023.)
JUDGMENT
1. The Respondents herein were the Plaintiffs in the trial court where they sued the Appellant and the 2 nd Respondent jointly and severally for: -
(a) General Damages
(b) Special Damages in the sum of Kshs. 229,550/=
(c) Costs of the suit
(d) Interests on (a) and (b) at 14% per annum.
2. The Plaintiff’s case was that on or about 26th May 2022, the deceased was lawfully aboard lorry Registration No. KDA 060Y along Chwele-Kipsigon road, particularly at Mukhuyu area, when the driver of the said lorry negligently drove or managed it, causing it to lose control, roll, and overturn. As a result, she sustained serious injuries and subsequently succumbed.
3. The Appellant entered appearance and filed her statement of defence dated 24 th November 2022 where she denied the contents of the Plaint and attributed the negligence to the deceased.
4. On 13th April 2023, the parties recorded a consent in court where liability was apportioned at a ratio of 70:30 in favour of the Plaintiff against the 2nd Defendant/Appellant. The matter proceeded to hearing, and Reuben Boiyo Chemayek testified as PW1 before the Plaintiff’s case was closed. The defence also concluded its case.
5. Judgment was rendered on 25 th May 2023 as follows: -
Liability at 70%: 30% in favour of the Plaintiff
Damages for Pain and Suffering – Kshs. 50,000/=
Loss of Expectation of life – Kshs. 300,000/=
General Damages – Kshs. 3,840,000/=
Special Damages – Kshs. 229,550/=
Total – Kshs. 4,419,550/=
Less 30% liability – Kshs. 1,325,865/=
Net Award – Kshs. 3,093,685/=
Costs of the suit – Kshs. 148,967.25/=
6. Aggrieved by this decision, the Appellant filed the present appeal via Memorandum of Appeal dated 14th June 2013, seeking the following orders:
(a) That the Appeal be allowed in its entirety.
(b) The judgment in Sirisia Principal Magistrate’s Court, Civil Suit No. E083 of 2022 between Reuben Boiyo Chemayek and Judith Nakhumicha Lumbasi suing as the Legal Representatives and the Administrators of the Estate of Dorine Chepkemboi Chemayek vs. Penpals Investment and Mary Wairimu Muchiri which judgment was delivered on 25 th May 2023 be set aside.
(c) The honourable court be pleased to make its own decision and assessment in regard to damages.
(d) Any other relief that the court deems fit and just to grant.
(e) Costs of the Appeal.
7. The Appellant raised the following grounds of Appeal: -
(1) THAT the learned Trial Magistrate erred in law and in fact in making an award of damages under loss of dependency at Kshs. 3,840,000/= which was manifestly excessive under the circumstances.
(2) THAT the learned Trial Magistrate erred in law and in fact by failing to take into account the vicissitudes and vagaries of life in respect of a 30-year-old woman and therefore made an award of Kshs. 3,840,000/= for loss of dependency which amount was manifestly excessive.
(3) THAT the learned Trial Magistrate erred in law and in fact in using a multiplicand of Kshs. 16,000/= when there was no evidence to support the same causing a miscarriage of justice.
(4) THAT the learned Trial Magistrate erred in law and in fact in finding the minimum wage was Kshs. 18,319.50/= when no such evidence was adduced causing a miscarriage of justice.
(5) THAT the learned Trial Magistrate erred in law and in fact in using a multiplier of 30 years without considering the vicissitudes and vagaries of life causing miscarriage of justice.
(6) THAT the learned Trial Magistrate erred in law and in fact in awarding Special Damages of Kshs. 229,550/= when the same had not been strictly proved.
(7) THAT the learned Trial Magistrate erred in law and in fact in using the wrong principles in the assessment of damages under loss of expectation of life and thereby arriving at an excessive figure.
8. The Appeal was canvass by way of written submissions.The duty of a first appellate court was aptly explained by the Court of Appeal in Kisumu in the case of Patrick Analo & another vs. Republic [2019] KECA 162 (KLR) thus: -
“To the extent that we are dealing with a first appeal, we are obliged to re-evaluate the evidence and come to our own independent conclusion. This Court expressed that duty as follows in Attorney General & 2 Others v. IPOA & 2 Others, CA. No. 324 of 2014:-
“On our part, as a first appellate court, it is not lost on us that we have the duty, and responsibility to re-evaluate the evidence adduced before the High Court and arrive at our own independent decision. This re-evaluation is not merely a rehashing of the evidence or findings of the trial court. It entails reconsidering the evidence afresh with a clear mind devoid of any influence from the findings of the trial court. This is as required of us under Rule 29(1) (a) of this Court’s Rules and as we have variously stated in a litany of decided cases.”
9. Having considered the trial record and the grounds of appeal against the law, the only issue for my determination is quantum and whether this Court can interfere with the trial court’s assessment of it.
ANALYSIS AND DETERMINATION
10. The principles an appellate court must consider when deciding whether to interfere with the assessment of quantum were restated in the case of Kivati v. Coastal Bottlers Ltd, Civil Appeal No. 69 of 1984, as follows: -
“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate.”
11. In a fatal accidents claim, the estate of a deceased person is entitled to damages under the Law Reform (Miscellaneous Provisions) Act, comprising damages for pain and suffering and loss of expectation of life, and under the Fatal Accidents Act, which includes loss of dependency.
(i) Damages under the Law Reform Act
12. In this case, the Appellant challenged the assessment of damages under the Law Reform Act, arguing that they were excessive. They cited the case of West Kenya Sugar Company Limited v. Philip Sumba Julaya (Suing as the Administrator and Personal Representative of the Estate of James Julaya Sumba – Deceased) (2019) eKLR and Hyder Nthenya Musili & Another v. China Wu Yi Limited & Another (2017) eKLR, where it was held that the generally accepted principle is that very nominal damages will be awarded on the two heads if death followed immediately after the accident. It was proposed that the award of Kshs. 300,000/= under loss of expectation of life be reviewed to Kshs. 100,000/=.
13. The 1st Respondent submitted through counsel that the award for loss of expectation of life was appropriate because it was based on the court’s discretion and was also a conventional award. They relied on the case of Daniel Kuria v Nairobi City Council (2013) eKLR, where this Court awarded Kshs. 300,000/=.
14. I have considered the submissions above and find that, in cases of loss of expectation of life, a conventional award of Kshs. 100,000/= has often been awarded in the claims under the Law Reform Act. Therefore, I reduce the award from Kshs. 300,000/= to Kshs. 100,000/=.
(ii) Damages under the Fatal Accidents Act
15. Under the Fatal Accidents Act, the court evaluates damages for dependency loss. Two methods are used: the Multiplier approach or the Global Sum approach. In this case, the trial court used the multiplier method and awarded damages of Kshs. 3,840,000/=
16. In her submissions, the Appellant argued that the award of Kshs. 3,840,000/= was clearly excessive because the trial court applied an incorrect multiplier and multiplicand instead of using the Regulation of Wages (General) (Amendment) Order 2022 in determining the multiplicand. Counsel referred to the established principles for considering whether to interfere with the award of damages as outlined in the case of Ufrah Motors Bazaar & Another vs. Kibe, Civil Appeal No. 39 of 2021 (2023) KEHC 1285 KLR, and Jane Chelagat Bor vs. Andrew Otieno Onduu (1988-92) 2 KAR 288 (1990-94) E.A. 47.
17. It was submitted that the trial court failed to consider the vicissitudes of life, taking into account the deceased’s line of work. Counsel cited the case of Crown Bus Services Ltd & 2 Others v. Jamilla Nyongesa and Amida Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala – Deceased) (2020) eKLR, where the court held that it was wrong for the trial court to neglect the vicissitudes of life even though the deceased enjoyed good health. Finally, on this point, it was argued that the multiplicand of Kshs. 16,000/= was not supported by evidence.
18. On their part, the 1st Respondent argued that the retirement age for civil servants in Kenya is 60, and since the deceased was 30 years old and in good health with no underlying or existing medical conditions, it was expected she would continue managing her business and farming beyond the age of 60. Therefore, the trial court was correct in adopting a multiplier of 30 years. It was also submitted that the court should not interfere with the multiplicand of Kshs. 16,000/= because, although there was no proof of these earnings provided, the Court of Appeal in Jacob Ayiga Makokha & Another vs. Simeon Obayo (2005) eKLR held that documentation was the only way to establish proof of earnings.
19. I note from the trial record that PW1, the 1st Respondent herein, testified that his daughter was a businesswoman who earned Kshs. 60,000/= monthly. However, no documentation or other proof of income was presented by the Plaintiff to support this assertion to the Court. It was also unclear whether, as a businesswoman, she would consistently earn Kshs. 60,000/= each month.
20. Likewise, having died at 30 years of age, despite being reported to enjoy good health and having no medical conditions, the court found it difficult to confidently conclude that she would have lived until she was 60. At the same time, as a businesswoman, it was not proper to conclude that she would have retired from her business at age 60. Additionally, it was unclear why the trial court used a minimum wage of Kshs. 16,000/=.
21. Considering all the above, I conclude that the multiplier method was unsuitable for this case's circumstances. I base this finding on the case of Moses Mairua Muchiri v. Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR), where the court held as follows: -
“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
22. I therefore set aside the award of damages in this respect and re-evaluate it using the Global Sum approach. In doing so, I have considered these decided cases as follows:
(a) In Stanwel Holdings Limited & another vs. Racheal Haluku Emanuel & another [2020] eKLR, the appellate court reduced a global sum award by the trial court of Kshs. 2,000,000/= to Kshs 1,000,000/= for Loss of Dependency where the deceased was 23-years-old.
(b) In Oyugi Judith & another vs. Fredrick Odhiambo Ongong & 3 others [2014] eKLR , the court awarded Kshs. 700,000/= to each plaintiff for loss of dependency where the deceased persons were aged between 18 and 30 years old.
(c) In Onserio vs. Munyotu (Civil Appeal E001 of 2023) [2024] KEHC 5655 (KLR), Gikonyo J. set aside an award of Kshs 8.9 Million by the trial court and awarded Kshs 2,000,000/= for loss of dependency.
23. Taking into account the above cases and the fact that the deceased was survived by two sons under the age of 10 and was the sole breadwinner for her father and mother, I find that an award of Kshs. 2,000,000/= would be appropriate under the circumstances.
24. Regarding the issue of Special Damages, Counsel submitted on behalf of the Appellant that the award should have been Kshs. 159,415/= because the receipts dated 2/6/2020 for Kshs. 13,000/= and 2/2/2020 for Kshs. 60,000/= were never produced and should never have been admitted. The 1st Respondent stated at paragraph 6 of the Plaint as follows: -
(1) Limited Grant – Kshs. 50,000/=
(2) Transport - Kshs. 72,000/=
(3) Coffin – Kshs. 45,000/=
(4) Mortuary Expenses – Kshs. 11,865/=
(5) General Funeral Expenses – Kshs. 62,000/=
(6) Copy of Records – Kshs. 550
TOTAL – Kshs. 229,550/=
25. It is noteworthy to state that the above particulars for Special Damages amount to Kshs. 241,415/= and not Kshs. 229,550/= as indicated in the Plaint. This notwithstanding, it is well established that special damages must be specifically pleaded and proved.
26. In this case, I note that the Plaintiff only produced the following receipts: -
(1) Limited Grant – 50,000/=
(2) Transport – Hearse – Kshs. 42,000/=
(3) Coffin – Kshs. 45,000/=
(4) Mortuary Expenses – Kshs. 11,865/=
TOTAL – 148,865/=
27. They also produced a receipt for the sum of Kshs. 10,000/= along with other ineligible receipts, but these were not pleaded in the Plaint and therefore cannot be awarded.
28. Regarding general funeral expenses, although not substantiated by receipts, I am guided by the principle pronounced by the Court of Appeal in the case of Premier Diary Limited vs. Amarjit Singh Sagoo & Another [2013] eKLR, where it was held that:
“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000/= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”
(See also the Court of Appeal in Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] eKLR and the High Court decision in J N K (Suing as the Legal representative of the Estate of MMM (Deceased) vs. Chairman Board of Governors [...] Boys High School [2018] KEHC 7003 (KLR)
29. Since the Plaintiff claimed general funeral expenses of Kshs. 62,000/=, I find the amount reasonable and will award it.
30. In the final analysis, I set aside the judgment of the trial court and enter judgment as follows: -
Liability at 70:30 in favour of the 1 st Respondent
Damages under the Law Reform Act
(i) Damages for Pain and Suffering – Kshs. 50,000/=
(ii) Loss of expectation of life – Kshs. 100,000/=
Damages under the Law Reform Act
(i) Loss of dependency – Global sum of Kshs. 2,000,000/=
Total – Kshs. 2,150,000/=
Less 30% Liability – (Kshs. 645,000/=)
Total Damages – 1,505,000/=
Add Special Damages
Limited Grant – 50,000/=
Transport – Hearse – Kshs. 42,000/=
Coffin – Kshs. 45,000/=
Mortuary Expenses – Kshs. 11,865/=
General Funeral Expenses – Kshs. 62,000
GRAND TOTAL – Kshs. 1,715,865/=
31. The Appellant shall have half the costs of the appeal. Orders accordingly.
Dated, signed and delivered at Bungoma this 13 th Day of March 2026.
R. OUGO
JUDGE
In the presence of :
Mr. Makokha - For the Appellant
Miss Akinyi -For the Respondent ; Wilkister - C/A
HCCA NO. 60 OF 2023- JUDGMENT 2