(Being an appeal from the decree arising from the judgment of Hon. Martha Opanga (Principal Magistrate) delivered on 8/8/2023 in Wang’uru Magistrates Court Civil Case No. 127 of 2021)
Background
1. The appellant filed this appeal through a memorandum of appeal dated 29/8/2023. The record of appeal was filed on 7/9/2023. This appeal challenges the trial court’s award of general damages under the heads of pain and suffering, loss of expectation of life and loss of dependency.
2. The appeal arises from a judgment of the trial court dated 8/8/2023 in a suit by the respondent against the appellant claiming compensation under the Law Reform Act (Cap. 26) Laws of Kenya and the Fatal Accidents Act (Cap. 410) in general and special damages for fatal injuries sustained by Anna Muthoni Kamau (deceased) arising out of a road traffic accident that occurred on 15/7/2021 along Makutano-Embu road involving the deceased as a pedestrian and the appellant’s motor vehicle registration number KCP 990E.
3. Liability was agreed by consent of the parties in the ratio 80:20 in favour of the respondent.
4. After trial the court awarded KShs 30,000/= general damages for pain and suffering, KShs 200,000/= for loss of expectation of life and KShs 3,600,000/= loss of dependency.
Grounds of appeal
5. The appellant was dissatisfied with that decision and now appeals to this court on the principal ground that the awards made for general damages for pain and suffering, for loss of expectation of life and loss of dependency are inordinately high and the learned trial magistrate failed to apply the correct legal principles and also failed to take into account conventional awards in assessing the damages.
6. The appellant therefore prays to this court to set aside the judgment of the trial court on the award of general damages for pain and suffering, loss of expectation of life and loss of dependency and substitute the same with a reassessment, the court to adjudicate and determine this matter and enter a just judgment on the evidence on record or alternatively the court to order a retrial.
Submissions
7. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
8. The submissions by the learned counsels are more extensively set out and considered in the analysis following.
Duty of appellate court on a first appeal
9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
10. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
11. The respondent Giting’a Dorothy Muringo was the only witness who testified at the trial.
12. It was the respondent’s case through her pleadings, witness statement adopted as evidence in chief and testimony in court that the deceased was her mother. That the deceased was a pedestrian along the Makutano-Nairobi highway road on 15/7/2021 when she was involved in the accident with the appellant’s motor vehicle registration number KCP 990E and succumbed to the injuries the same day.
13. The respondent said that the deceased was aged 42 years and had three children. The respondent produced certificates of birth for all the children. She said their father died in 2007. The respondent said she was a student at Ndia Technical Vocational Training Institute in 1st year undertaking a course in plumbing. She was issued with grant Ad litem for purposes of the suit on 6/9/2021. She produced police abstract in evidence in which the owner of the vehicle was blamed for the accident.
14. After trial the court awarded KShs 30,000/= general damages for pain and suffering, finding that there was no evidence to show when the deceased died but it could be supposed that she died on the spot, KShs 200,000/= for loss of expectation of life and KShs 3,600,000/= loss of dependency.
15. The trial court found on the issue of dependency that the deceased had three children which was proved by certificates of birth produced as exhibits. The respondent was the first borne aged 22 years, the second borne was 18 years and the last born 8 years. The court also found that the respondent and her siblings dependent on the deceased and thus apportioned the dependency ratio at 2/3.
16. The learned trial court then found that in spite of there being no evidence to help determine the deceased’s earnings, the fact that she was able to provide for her three children’s basic needs including taking them to school, she would compute her earnings at KShs 25,000/= per month even though she did not expressly indicate so in the judgment other than the computation of the same as a monthly income.
17. She adopted a multiplier of 18 years after considering the retirement age to be 60 years.
Analysis
18. The issues for determination are whether the learned trial magistrate was right in assessment of general damages for pain and suffering, loss of expectation of life and loss of dependency and if not whether the same are for setting aside.
19. . Since this appeal is on the award of damages made by the trial court, this court is guided by the decision of the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 which set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
20. The same principles are also stated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, by Kneller J.A. thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
21. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
22. Learned counsel for the appellant submits on the award of pain and suffering that the trial court ought to have awarded KShs 10,000/= and not 30,000/= because the certificate of death shows that the deceased died on the same day.
23. Evidence from the police abstract showed that the accident was fatal with respect to the deceased and the certificate of death also showed the place of death to be along Nairobi-Embu road. These two documents show that the deceased died on the road. The learned trial magistrate was therefore correct to find that the deceased most likely died on the spot.
24. In this appeal, learned counsel for the appellant relies on the cases of Joseph Kivati Wambua v SMM & another (Suing as the Legal Representatives of the Estate of EMM-Deceased) [2021] KEHC 9632 (KLR) where the High Court observed that:
“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness. In the instant case, there was no cross-examination of the witnesses in order to bring out this evidence. A distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.”
25. I am satisfied that the learned trial magistrate correctly guided herself on the issue of assessment of general damages for pain and suffering as per the above decision in finding that the generally accepted principle is that very nominal damages will be awarded under this head. She proceeded as per the decision cited by learned counsel for the appellant herein of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) where the High Court, Odunga, J. (as he then was) held as follows:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
26. The learned trial magistrate was presented with two authorities with different awards on the assessment of damages for pain and suffering for a deceased who died on the spot or shortly after the accident. In the case of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 others [2013] KEHC 1206 (KLR) provided by learned counsel for the respondent the court awarded KShs 50,000/= while in the case of Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative and Administrator of the Estate of Phineas Murithi (deceased) [2020] KEHC 4679 (KLR) provided by learned counsel for the appellant the High Court awarded KShs 10,000/=.
27. Authorities are usually provided to the court within submissions to persuade the court to determine the case one way or the other. Many times, parties provide very divergent authorities on the same issue. It is upon the court to sift through, find the ones relevant to the case and apply them and the ones which are not, discard. If neither party’s authorities are persuasive on the issue, or if the court requires further or better guidance, it is upon it to look for appropriate authorities that will assist it make a fair decision in the matter just as where no authorities are provided at all.
28. In this case the trial court was presented with two authorities from the High Court with different awards of damages for pain and suffering for death occurring shortly after the accident. The trial court made an award midway of the ones made in the two authorities. Awards do not have to be exactly the same as in previous cases but within the acceptable range of awards in similar cases. In the present case, I find that the award of KShs 30,000/= for pain and suffering was reasonable and based on authority as it was within the range of awards cited to the court. I find no reason to upset that assessment. The appeal on that ground fails.
29. On loss of expectation of life, the trial court awarded a sum of KShs 200,000/=. Learned counsel for the appellant had proposed a sum of KShs 100,000/= based on the case of Mercy Muriuki & Another v Samuel Mwangu Nduati & another (Suing as the Legal administrator of the Estate of the Late Robert Mwangi [2019] eKLR. Learned counsel for the respondent on his part proposed an award of KShs 200,000/= and cited the case of Kericho HCCA No. 48 of 2014 - Vincent Kipkorir Tanui (suing as the administrator and/or personal representative of the Estate of Samwel Kiprotich Tanui (deceased) v Magogosiek Tea Factory Company Ltd & another. A copy of this decision was however not provided to the trial court and I have not been able to find it on the Kenyalaw reports website.
30. Many decisions, including that of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR)(supra) have held that an award under the head of loss of expectation of life is a conventional award and in recent times, the figure has been KShs 100,000/=. The learned trial magistrate in departing from the authorities which had held that the conventional award under this head is usually KShs 100,000/= justified her increase of that award due to what she termed as the rate of inflation. That may be so, but she did not provide the rate at which inflation had grown between the time the award in the decisions she cited were made and the current one so as to justify that figure. In the circumstances, I find that her assessment was not based on sound principle and the same is subject to be upset by this court. I find that the award of KShs 200,000/= was inordinately high in the circumstances. I therefore set aside the same and substitute it with an award of KShs 100,000/=.
31. On loss of dependency, the respondents proposed before the trial court and before this court in this appeal that the court adopts the multiplier/multiplicand approach. The respondent also proposed the same. I will therefore proceed in the same line and not the global sum approach.
32. It is correct as submitted by learned counsel for the appellant that the respondent was not clear on what the deceased, her mother’s earnings were, guessing that it could have been between KShs 500/= and KShs 1,000/= per day. She was however clear that the deceased was a business person. The learned trial magistrate found that the deceased was able to fend for her three children including meeting their educational needs. Indeed, the respondent said that she was at the time in college an indication that her mother was meeting the educational needs of her children. I agree with that finding of the learned trial magistrate that the deceased was engaged in business and was taking care of her three children.
33. The appellant proposed that the court adopts the earning of a general labourer under the Regulation of Wages (General) (Amendment) Order, 2018 which was in force at the time where the minimum monthly wage for a general laborer was KShs 7,240.95.
34. The respondent proposed that the trial court adopts a sum of KShs 25,000/= as the deceased’s income per month.
35. The learned magistrate however adopted a sum of KShs 25,000/= without any explanation. It is not clear why she did not follow the Minimum Wage Guidelines as proposed by learned counsel for the appellant seeing that the deceased’s income was not established with certainty. My approach is that in order to arrive at a justifiable figure of income for the deceased, following the Minimum Wage Guidelines would have been the correct way to pursue and then find that the scale of a general labourer was not appropriate for the deceased given evidence of the responsibilities she had of taking care of her three children alone as the children’s father had died earlier. In the circumstances I would place her income in the bracket of Machine attendant, sawmill sawyer, machine assistant, mass production machinist, shoe cutter, bakery worker, bakery assistant, tailor’s assistant. This is a category of workers who possess basic technical skills for carrying out these jobs but not on a highly specialized basis. A business person like the deceased herein would be in possession of basic skills for conducting business such as knowledge of the products for sale, cash handling and customer relations. I am inclined to find that in both categories, the skills required are beyond those of a general worker. In the circumstances, the basic income for the deceased would be KShs 11,602.90 based on the Regulation of Wages (General) (Amendment) Order, 2018.
36. The deceased had three children all schooling and in that case, the conventional approach would be to apply a dependency ratio of 2/3 as adopted by the trial court and not 1/3 as proposed by learned counsel for the appellant.
37. Both learned counsels cited the case of Joan Gacheri v Sabina Mwomburi [2018] eKLR where the High Court adopted a multiplier of 18 years for a deceased who died at the age of 42 years. Interestingly, learned counsel then asked the court and he does in this appeal again, to adopt a multiplier of 13 years without offering any justification for departing from the decision he had cited. I reject that submission of 13 years as a multiplier and find that the learned trial magistrate was correct in adopting a multiplier of 18 years as she was appropriately guided by authority.. That is maintained herein.
38. In summary therefore, the loss of dependency would work out to be:
KShs 11,602.90 x 12 x 18 x 2/3 = 1,670,817.60
39. In the final analysis, I find that this is a suitable case for this Court to exercise its discretion and interfere with the trial court’s finding on damages for loss of expectation of life and loss of dependency for the reasons that the quantum that was awarded was so manifestly high view of similar cases so as to represent an erroneous estimate.
40. The trial court’s award on these two heads of general damages is therefore set aside and substituted with the awards above. However, the damages for pain and suffering and special damages will remain as awarded by the trial court.
41. Consequently, the trial court’s judgment is set aside and substituted with a judgment in the following terms:
a. Pain and suffering KShs 30,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 1,670,817.60
d. Special damages KShs 53,700/=
Total Kshs 1,854,527.60
Less 20% contributory negligence KShs 1,483,614.08
42. Judgment shall be entered for the respondent against the appellant in the lower court in the sum of KShs 1,483,614.08 together with costs and interest at the lower court.
43. The costs of this appeal shall be borne by each party on its own.
44. Orders accordingly.
45. Dated, signed and delivered on the Virtual Platform, Teams this 8th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mulaku for Appellants.
Mugandi for the Respondent.
Job: Court Assistant.
Background
1. The appellant filed this appeal through a memorandum of appeal dated 29/8/2023. The record of appeal was filed on 7/9/2023. This appeal challenges the trial court’s award of general damages under the heads of pain and suffering, loss of expectation of life and loss of dependency.
2. The appeal arises from a judgment of the trial court dated 8/8/2023 in a suit by the respondent against the appellant claiming compensation under the Law Reform Act (Cap. 26) Laws of Kenya and the Fatal Accidents Act (Cap. 410) in general and special damages for fatal injuries sustained by Anna Muthoni Kamau (deceased) arising out of a road traffic accident that occurred on 15/7/2021 along Makutano-Embu road involving the deceased as a pedestrian and the appellant’s motor vehicle registration number KCP 990E.
3. Liability was agreed by consent of the parties in the ratio 80:20 in favour of the respondent.
4. After trial the court awarded KShs 30,000/= general damages for pain and suffering, KShs 200,000/= for loss of expectation of life and KShs 3,600,000/= loss of dependency.
Grounds of appeal
5. The appellant was dissatisfied with that decision and now appeals to this court on the principal ground that the awards made for general damages for pain and suffering, for loss of expectation of life and loss of dependency are inordinately high and the learned trial magistrate failed to apply the correct legal principles and also failed to take into account conventional awards in assessing the damages.
6. The appellant therefore prays to this court to set aside the judgment of the trial court on the award of general damages for pain and suffering, loss of expectation of life and loss of dependency and substitute the same with a reassessment, the court to adjudicate and determine this matter and enter a just judgment on the evidence on record or alternatively the court to order a retrial.
Submissions
7. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
8. The submissions by the learned counsels are more extensively set out and considered in the analysis following.
Duty of appellate court on a first appeal
9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
10. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
11. The respondent Giting’a Dorothy Muringo was the only witness who testified at the trial.
12. It was the respondent’s case through her pleadings, witness statement adopted as evidence in chief and testimony in court that the deceased was her mother. That the deceased was a pedestrian along the Makutano-Nairobi highway road on 15/7/2021 when she was involved in the accident with the appellant’s motor vehicle registration number KCP 990E and succumbed to the injuries the same day.
13. The respondent said that the deceased was aged 42 years and had three children. The respondent produced certificates of birth for all the children. She said their father died in 2007. The respondent said she was a student at Ndia Technical Vocational Training Institute in 1st year undertaking a course in plumbing. She was issued with grant Ad litem for purposes of the suit on 6/9/2021. She produced police abstract in evidence in which the owner of the vehicle was blamed for the accident.
14. After trial the court awarded KShs 30,000/= general damages for pain and suffering, finding that there was no evidence to show when the deceased died but it could be supposed that she died on the spot, KShs 200,000/= for loss of expectation of life and KShs 3,600,000/= loss of dependency.
15. The trial court found on the issue of dependency that the deceased had three children which was proved by certificates of birth produced as exhibits. The respondent was the first borne aged 22 years, the second borne was 18 years and the last born 8 years. The court also found that the respondent and her siblings dependent on the deceased and thus apportioned the dependency ratio at 2/3.
16. The learned trial court then found that in spite of there being no evidence to help determine the deceased’s earnings, the fact that she was able to provide for her three children’s basic needs including taking them to school, she would compute her earnings at KShs 25,000/= per month even though she did not expressly indicate so in the judgment other than the computation of the same as a monthly income.
17. She adopted a multiplier of 18 years after considering the retirement age to be 60 years.
Analysis
18. The issues for determination are whether the learned trial magistrate was right in assessment of general damages for pain and suffering, loss of expectation of life and loss of dependency and if not whether the same are for setting aside.
19. . Since this appeal is on the award of damages made by the trial court, this court is guided by the decision of the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 which set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
20. The same principles are also stated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, by Kneller J.A. thus:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
21. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
22. Learned counsel for the appellant submits on the award of pain and suffering that the trial court ought to have awarded KShs 10,000/= and not 30,000/= because the certificate of death shows that the deceased died on the same day.
23. Evidence from the police abstract showed that the accident was fatal with respect to the deceased and the certificate of death also showed the place of death to be along Nairobi-Embu road. These two documents show that the deceased died on the road. The learned trial magistrate was therefore correct to find that the deceased most likely died on the spot.
24. In this appeal, learned counsel for the appellant relies on the cases of Joseph Kivati Wambua v SMM & another (Suing as the Legal Representatives of the Estate of EMM-Deceased) [2021] KEHC 9632 (KLR) where the High Court observed that:
“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness. In the instant case, there was no cross-examination of the witnesses in order to bring out this evidence. A distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.”
25. I am satisfied that the learned trial magistrate correctly guided herself on the issue of assessment of general damages for pain and suffering as per the above decision in finding that the generally accepted principle is that very nominal damages will be awarded under this head. She proceeded as per the decision cited by learned counsel for the appellant herein of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) where the High Court, Odunga, J. (as he then was) held as follows:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
26. The learned trial magistrate was presented with two authorities with different awards on the assessment of damages for pain and suffering for a deceased who died on the spot or shortly after the accident. In the case of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 others [2013] KEHC 1206 (KLR) provided by learned counsel for the respondent the court awarded KShs 50,000/= while in the case of Moses Koome Mithika & another v Doreen Gatwiri & another (Suing as the legal representative and Administrator of the Estate of Phineas Murithi (deceased) [2020] KEHC 4679 (KLR) provided by learned counsel for the appellant the High Court awarded KShs 10,000/=.
27. Authorities are usually provided to the court within submissions to persuade the court to determine the case one way or the other. Many times, parties provide very divergent authorities on the same issue. It is upon the court to sift through, find the ones relevant to the case and apply them and the ones which are not, discard. If neither party’s authorities are persuasive on the issue, or if the court requires further or better guidance, it is upon it to look for appropriate authorities that will assist it make a fair decision in the matter just as where no authorities are provided at all.
28. In this case the trial court was presented with two authorities from the High Court with different awards of damages for pain and suffering for death occurring shortly after the accident. The trial court made an award midway of the ones made in the two authorities. Awards do not have to be exactly the same as in previous cases but within the acceptable range of awards in similar cases. In the present case, I find that the award of KShs 30,000/= for pain and suffering was reasonable and based on authority as it was within the range of awards cited to the court. I find no reason to upset that assessment. The appeal on that ground fails.
29. On loss of expectation of life, the trial court awarded a sum of KShs 200,000/=. Learned counsel for the appellant had proposed a sum of KShs 100,000/= based on the case of Mercy Muriuki & Another v Samuel Mwangu Nduati & another (Suing as the Legal administrator of the Estate of the Late Robert Mwangi [2019] eKLR. Learned counsel for the respondent on his part proposed an award of KShs 200,000/= and cited the case of Kericho HCCA No. 48 of 2014 - Vincent Kipkorir Tanui (suing as the administrator and/or personal representative of the Estate of Samwel Kiprotich Tanui (deceased) v Magogosiek Tea Factory Company Ltd & another. A copy of this decision was however not provided to the trial court and I have not been able to find it on the Kenyalaw reports website.
30. Many decisions, including that of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR)(supra) have held that an award under the head of loss of expectation of life is a conventional award and in recent times, the figure has been KShs 100,000/=. The learned trial magistrate in departing from the authorities which had held that the conventional award under this head is usually KShs 100,000/= justified her increase of that award due to what she termed as the rate of inflation. That may be so, but she did not provide the rate at which inflation had grown between the time the award in the decisions she cited were made and the current one so as to justify that figure. In the circumstances, I find that her assessment was not based on sound principle and the same is subject to be upset by this court. I find that the award of KShs 200,000/= was inordinately high in the circumstances. I therefore set aside the same and substitute it with an award of KShs 100,000/=.
31. On loss of dependency, the respondents proposed before the trial court and before this court in this appeal that the court adopts the multiplier/multiplicand approach. The respondent also proposed the same. I will therefore proceed in the same line and not the global sum approach.
32. It is correct as submitted by learned counsel for the appellant that the respondent was not clear on what the deceased, her mother’s earnings were, guessing that it could have been between KShs 500/= and KShs 1,000/= per day. She was however clear that the deceased was a business person. The learned trial magistrate found that the deceased was able to fend for her three children including meeting their educational needs. Indeed, the respondent said that she was at the time in college an indication that her mother was meeting the educational needs of her children. I agree with that finding of the learned trial magistrate that the deceased was engaged in business and was taking care of her three children.
33. The appellant proposed that the court adopts the earning of a general labourer under the Regulation of Wages (General) (Amendment) Order, 2018 which was in force at the time where the minimum monthly wage for a general laborer was KShs 7,240.95.
34. The respondent proposed that the trial court adopts a sum of KShs 25,000/= as the deceased’s income per month.
35. The learned magistrate however adopted a sum of KShs 25,000/= without any explanation. It is not clear why she did not follow the Minimum Wage Guidelines as proposed by learned counsel for the appellant seeing that the deceased’s income was not established with certainty. My approach is that in order to arrive at a justifiable figure of income for the deceased, following the Minimum Wage Guidelines would have been the correct way to pursue and then find that the scale of a general labourer was not appropriate for the deceased given evidence of the responsibilities she had of taking care of her three children alone as the children’s father had died earlier. In the circumstances I would place her income in the bracket of Machine attendant, sawmill sawyer, machine assistant, mass production machinist, shoe cutter, bakery worker, bakery assistant, tailor’s assistant. This is a category of workers who possess basic technical skills for carrying out these jobs but not on a highly specialized basis. A business person like the deceased herein would be in possession of basic skills for conducting business such as knowledge of the products for sale, cash handling and customer relations. I am inclined to find that in both categories, the skills required are beyond those of a general worker. In the circumstances, the basic income for the deceased would be KShs 11,602.90 based on the Regulation of Wages (General) (Amendment) Order, 2018.
36. The deceased had three children all schooling and in that case, the conventional approach would be to apply a dependency ratio of 2/3 as adopted by the trial court and not 1/3 as proposed by learned counsel for the appellant.
37. Both learned counsels cited the case of Joan Gacheri v Sabina Mwomburi [2018] eKLR where the High Court adopted a multiplier of 18 years for a deceased who died at the age of 42 years. Interestingly, learned counsel then asked the court and he does in this appeal again, to adopt a multiplier of 13 years without offering any justification for departing from the decision he had cited. I reject that submission of 13 years as a multiplier and find that the learned trial magistrate was correct in adopting a multiplier of 18 years as she was appropriately guided by authority.. That is maintained herein.
38. In summary therefore, the loss of dependency would work out to be:
KShs 11,602.90 x 12 x 18 x 2/3 = 1,670,817.60
39. In the final analysis, I find that this is a suitable case for this Court to exercise its discretion and interfere with the trial court’s finding on damages for loss of expectation of life and loss of dependency for the reasons that the quantum that was awarded was so manifestly high view of similar cases so as to represent an erroneous estimate.
40. The trial court’s award on these two heads of general damages is therefore set aside and substituted with the awards above. However, the damages for pain and suffering and special damages will remain as awarded by the trial court.
41. Consequently, the trial court’s judgment is set aside and substituted with a judgment in the following terms:
a. Pain and suffering KShs 30,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 1,670,817.60
d. Special damages KShs 53,700/=
Total Kshs 1,854,527.60
Less 20% contributory negligence KShs 1,483,614.08
42. Judgment shall be entered for the respondent against the appellant in the lower court in the sum of KShs 1,483,614.08 together with costs and interest at the lower court.
43. The costs of this appeal shall be borne by each party on its own.
44. Orders accordingly.
45. Dated, signed and delivered on the Virtual Platform, Teams this 8th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mulaku for Appellants.
Mugandi for the Respondent.
Job: Court Assistant.