'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E044 OF 2023
P.N. MASHRU LIMITED…….……………….……………..APPELLANT
VERSUS
ABRAHAM MUSE SITUMA (suing as the legal representative
and administrator of the estate of
Nancy JEBET CHELAGAT (DCD)…………..……………..RESPONDENT
(Being an appeal from the judgment and order of the Senior Principal Magistrate in Chief Magistrate’s Law Courts at Bungoma in Civil Case No.18 of 2019 delivered by Hon. C.A.S Mutai (SPM) on 6th January 2023).
JUDGMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on liability and quantum. The Appellant seeks that the appeal be allowed and judgment of the lower Court be set aside in its entirety, the costs of the appeal and of the Court below.
2. Vide an amended Plaint dated 14th March 2022, in Bungoma Chief Magistrate’s Court No. 18 of 2019, the Respondent herein (Plaintiff in the trial Court) sued the Appellant herein (Defendant in the trial Court) for general damages for pain and suffering, special damages of Kshs. 97,000/=, loss of amenities, costs of the suit, and interest at Court’s rate for the severe bodily injuries that lead to the instant death of the deceased herein out of a road accident that occurred on 10th December 2018, along Bungoma-Malaba road particularly at Nang’eni shopping centre.
3. The Respondent claimed that the deceased was lawfully travelling as a passenger aboard motor vehicle registration number KCE 484 W when the Appellant’s agent’s, servant and/or driver so negligently drove and/or managed motor vehicle registration bodily injuries as number KBU 164 K which was hauling trailer registration number ZE 2000 that the container fell off and landed on the matatu motor vehicle registration number KCE 484 W that the deceased was aboard and resulted in her sustaining serious bodily injuries resulting to her instant death.
4. In It’s response, the Appellant denied the ownership of the alleged Motor Vehicle Registration Number KBU 164 K hauling trailer registration number ZE 2000 and the particulars of negligence attributed to it and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent. The Appellant averred that no notice of intention to institute a suit and/or demand had ever been issued to it and urged the subordinate Court to dismiss the suit.
5. During the hearing, only the Respondent testified but did not call any witness, while the Appellant did not testify or call any witness.
6. After hearing and an in-depth analysis of the evidence before Court, the trial Court found the Appellant wholly liable for the said accident as per the holding of the trial Court in the test suit, Bungoma CMCC 27 of 2019-Daisy Mackema Nyongesa (Suing as the next friend and mother of Rasin Nyongesa a minor) vs P.N Mashru Limited and Winslaus Wamalwa Buchunju and that the issue of assessment of quantum was dispensed with via written submissions.
7. Under pain and suffering, the Respondent submitted that the deceased died a few hours after the accident while undergoing treatment. The post-mortem form which was produced as PEXH 3 indicated that the deceased died as a result of critical head injury due to severe brain injury. This is a clear indication that the deceased suffered pain prior to succumbing to her injuries. Placing reliance on the case of Machakos HCCA No. 56 of 2014-Beatice Mukulu Kang’uta & Another vs Silverstone Quarry Limited & Another (2016) eKLR wherein Justice P. Nyamweya (as she was then) awarded the Plaintiff Kshs. 200,000/= in which case the deceased died hours after the accident as he awaited treatment, circumstances similar this case. The Respondent submitted that there is no painless death and urge the Court to award the Respondent Kshs. 200,000/= for pain and suffering.
8. Under loss of expectation of life, the Respondent submitted that the deceased herein was 25 years old at the time of her demise leaving behind a young family and that she showed no signs of ill health. Placing reliance of the case of West Kenya Sugar Co. Ltd vs Philip Sumba Julaya (suing as the Administrator and personal representative of the estate of James Julaya Sumba (2019) eKLR wherein the Court held that an award of Kshs. 200,000/= was not excessive to the deceased’s estate for loss of expectation of life. In line with this decision and considering the lapse of time and inflation, the Respondent proposed an award of Kshs. 300,000/= under this heading.
9. Under loss of dependency, the Respondent submitted that the deceased died at the age of 25 years as per the death certificate and that she was a trained P1 teacher as per PEXH 7. He told the Court that the deceased could have worked up to the age of 60 years, but proposed a multiplier of 35 years. He placed reliance on the case of Alexander Okinda Anagwe (Suing as the Administrator of the estate of Patricia Kezia Anagwe (Deceased) vs Ruben Muriuki Kahuha, City Hopper Limited, Micheal A. Craig & Ruben Kamande Mburu (2015) eKLR wherein Justice R.E Ougo used a multiplier of 32 years for the deceased who was aged 25 years at the time of death. The Respondent proposed a multiplier of 35 years as civil servants retire at the age of 60 years.
On the multiplicand, the Respondent submitted that the deceased had completed a teaching course at Moi Teachers College in Baringo and she was expected to earn an estimated income of Kshs. 30,000/=per month upon gaining employment. He placed reliance on the case of Kisii HCCA No. 229 of 2010 Samwel Kimutai Koriri (Suing as the Administrator of the estate of the estate of Chelangat Silevia (Deceased) vs Nyanchwa Adventist Secondary School & Another (2016) eKLR wherein Justice W. Okwany upheld the lower Court’s decision that had applied the use of accelerated income (multiplicand) of Kshs. 20,000/= for a deceased who was a P1 trainee teacher at Nyanchwa Adventist College. The Respondent submitted that the decision relied upon was delivered 6 years ago and considering the lapse of time and inflation, he urged this Court to adopt a minimum of Kshs. 30,000/=as the deceased person’s monthly income.
On dependency ration, the Respondent submitted that the deceased is survived by a widower and a child as per PEXH 6 who were dependent on her for financial, emotional and material support. He also submitted that it was normal in African households for parents to provide for their children and spouses and urged the trial Court to adopt a dependency ratio of 2⁄3.
Therefore, the Respondent urged the Court to adopt a computation of Kshs. 30,000×12 ×35×2/3=8,400,0000/= which amount he proposed as a figure for loss of dependency.
10. On special damages, the Respondent submitted that they produced the following documents as proof:
a. Receipts for limited grant (PEXH 3)-Kshs. 20,000/=
b. Receipt for mortuary expenses (PEXH 10)-Kshs. 18, 450/=
c. Receipt for transport (PEXH 9)-Kshs. 30,000/=
d. Receipt for conffin (PEXH 8)-Kshs. 28,000/=
e. Receipt for copy of record (PEXH 12)-Kshs. 1,100/=
TOTAL Kshs. 97,550/=
The Respondent submitted that only special damages that have been specifically proved and pleaded are awardable. He urged the trial Court to award the Respondent Kshs. 97,550/= as prayed
11. The Respondent proposed the final award to be as follows:
i. Pain and Suffering Kshs. 200,000/=
ii. Loss of expectation of life Kshs. 300,000/=
iii. Loss of dependency Kshs. 8,400,000/=
iv. Special damages Kshs. 97,550/=
TOTAL Kshs. 8,997, 550/=
v. Plus costs and interest.
12. On the other hand, the Appellant submitted that the issue of liability, this being part of a series of those files the parties had consented that liability in Bungoma Civil Case No. 27 of 2019 do apply in all the files, the Appellant urged the trial Court to adopt the holding of liability in Bungoma Civil Case No. 27 of 2019 in this suit as well.
13. On quantum, the Appellant submitted under the Law Reforms Act and the Fatal Accidents Act.
14. On damages under the Law Reforms Act, the Appellant submitted under two headings pain and suffering and loss of expectation of life. Under pain and suffering, it submitted that awards under this head are all determined by the level of pain the deceased endured prior to succumbing to the fatal injuries. It submitted that a conventional figure of Kshs. 10,000/= under this heading will suffice and placed reliance on the case of Elizabeth Chelagat Tanui & Another vs Arthur Mwangi Kanyua (2013) eKLR wherein the Court awarded the Plaintiff Kshs. 10,000/= for pain and suffering where the deceased died sometime after being taken to the hospital.
15. Under loss of expectation of life, the Appellant submitted that the deceased was allegedly 25 years at the time of her demise as per the death certificate and factoring the contingencies of life and risks involved, the Appellant submitted that there was no guarantee that the deceased would have lived to the life expectancy age in Kenya today and that an award of Kshs. 30,000/= will suffice as adequate compensation under this head. The Appellant relied on the case of Leonard O. Ekisa & Another vs Major K. Birech (2025) eKLR wherein the Court made an award of Kshs. 30,000/= under this head.
16. The Appellant submitted that the amount should be deducted from the award under the Fatal Accidents Act as it is an accepted principle of law that a deceased’s estate should not benefit twice from the same accident by awarding both damages under the Law Reform Act as well as the Fatal Accidents Act where the benefits will be inherited by the same dependents. The Appellant relied on the decision of Kemfro vs A.M. Lubia and Olivie Lubia (1982-1988) KAR 727.
17. Under that Fatal Accidents Act, damages are usually made for loss of dependency that the deceased’s estate suffered and the same is made under the following sub-heads: multiplier, multiplicand and dependency ratio. According to the Appellant, he deceased herein died aged 25 years old and adoption of the multiplier approach would not help the Court to articulate the issue at hand with accuracy and there was no proof that the deceased was a farmer and earned the claimed amount. The Appellant argued that the deceased was dependent on her parents with no evidence of marriage between the Respondent and the deceased availed. The deceased was yet to secure a job to sustain herself and her child, and if this Court was to establish that the deceased was married to the Respondent, she was fully dependent on the Respondent. The Appellant submitted that the Court ought to adopt a global award approach when making compensation under this head as the Respondent failed to prove loss of dependency. The Appellant relied on the case of Mwanzia vs Ngalali Mutua & Kenya Bus Services (MSA) Ltd & Another quoted in Albert Odawa vs Gichimu Githenji NKR HCCA No. 15 of 2003 (2007) eKLR which was quoted in Oyugi Judith & Another vs Fredrick Odhiambo Ongong & 3 Other (2014) eKLR wherein the Court held that the multiplier approach is just a method of assessment of damages and it can and must be abandoned where the facts do not facilitate adoption. The same is useful in cases where age of the deceased, amount of annual or monthly dependency and the expected length of the dependency are known without undue speculation.
The Appellant submitted that no evidence was availed before this Court to establish that the deceased helped the Respondent in any way and since loss of dependency was pleaded, the Respondent was under duty to discharge the burden of proof. The Appellant relied on the case of Meshack Olang and Eric HCC Nairobi No. 2371 of 1990 wherein Justice Mwera established that it is trite to put in evidence to support what has been pleaded as any award or relief is all dependent on what had been pleaded and proved. The Appellant submitted that the Respondent failed to prove that he was a dependent and his claim for dependency must fail.
The Appellant urged the trial Court to make a global award of Kshs. 700,000/= placing reliance to the case of Oyugi Judith & Another vs Fredrick Odhiambo Ongongo & 3 Others (2014) eKLR where the Court made a global award of Kshs. 700,000/= each
As general damages to 2 deceased persons who died at the age of 28 years and 30 years respectively.
18. On special damages, the Appellant submitted that the same must be strictly pleaded and proved, and that the Respondent ought to be awarded only that which they strictly pleaded and proved which was transport, coffin and mortuary as the Respondent availed receipts of the same.
19. In conclusion, the Appellant submitted that the Respondent failed to prove his case on a balance of probabilities and the same ought to be dismissed with costs and if the trial Court is of a different opinion the, it should make the following award:
i. Under Fatal Accidents Act
General damages of global sum of Kshs. 700,000/=
Less damages under Law Reforms Act
ii. Under Law Reforms Act
Pain and Suffering Kshs. 10,000/=
Loss of Expectation Kshs. 30,000/=
Sub-Total Kshs 40,000/=
iii. Special damages Nil
Sub-Total Kshs. 740,000/=
Less award under Law Reforms Act Kshs. 40,000/=
TOTAL Kshs. 700,000/=
20. The trial court issued a judgment on quantum and which was as follows:
i. Pain and Suffering Kshs.35, 000/=
ii. Loss years Kshs.7, 680,000/=
iii. Special damages Kshs. 97,550 /=
Total Kshs.7, 812,550/=
iv. Plus, costs and interest.
The Appeal
21. Aggrieved by the judgment of the trial Court, the Appellant filed its memorandum of appeal dated 6th April 2023, on 11th April 2023. The grounds are essentially:
i. That the learned magistrate erred in law and fact in awarding general damages which were not consistent with the injuries sustained, submissions for all parties and the legal precedents.
ii. That the learned magistrate erred in law and fact in making his findings on liability contrary to the weight of the evidence that was before the Court.
iii. That the learned magistrate erred in law and fact in failing to consider judicial and failing to appreciate the doctrine of causation and blame worthiness hence arriving at a wrong decision on negligence and liability.
iv. That the learned magistrate erred in law and fact in assessing damages under Law Reform Act vis-à-vis loss of dependency and lost years under Fatal Accident Act by failing to apply the correct principles in determining the same hence arriving at an erroneous assessment or estimation of damages.
v. That the learned magistrate erred in law and fact in the assessment of damages for dependency, loss of expectation of life and pain and suffering that were inordinately high representing an entire erroneous estimate.
vi. That the learned magistrate erred in law and fact in misapprehending the evidence and misapplied, misunderstood and/or overlooked at the correct legal principle and judicial precedent and submissions by the Appellant and/or parties that he made an award under the Law Reform Act and the Fata Accidents Act that was inordinately high hence the erroneous estimate of damages which the deceased and the estate suffered.
vii. That the learned magistrate erred in law and fact in failing to take into account the fact that the beneficiaries both under the Law Reform Act and the Fatal Accident Act were the same while assessing damages under both heads.
viii. That the learned magistrate erred in law and fact in failing to consider the submissions tendered by the Appellant.
22. The Appellant prayed for orders inter alia: the subordinate Court’s judgement be set aside and this appeal be allowed with costs to the Appellant.
23. Vide the directions of this Court dated 21st August 2024, the appeal was to be canvassed by way of written submissions. Both parties duly filed and exchanged submissions.
24. I have duly perused, analyzed and considered the record of the lower Court as well as the submissions filed herein.
Analysis and determination
25. 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.
26. In this appeal, it is clear from the Appellants’ submissions that the Appellant is challenging the holding to the trial Court on both liability and quantum of damages.
27. On the issue of liability, it is clear from both parties lower Court submissions that, Bungoma CMCC 27 of 2019-Daisy Mackema Nyongesa (Suing as the next friend and mother of Rasin Nyongesa a minor) vs P.N Mashru Limited and Winslaus Wamalwa Buchunju was selected as a test suit in all the related matters. That fact is acknowledged by the parties in their respective submissions before the trial Court. In the test suit the Appellant was found 100% liable. The Appellant and the Respondent did address the issue in their respective submissions before the trial Court dated 25th July 2022 and 28th September 2022 respectively. While the Appellant did acknowledge the outcome of the test suit, in this appeal it prays for a different outcome by this Honourable Court.
28. So what is the purpose and effect of selection of a test suit? I will first look at the legal provisions. Order 38 Rules 1 and 2 of the Civil Procedure Rules (CPR) provides as follows;-
Order 38 – Selection of Test Suit
1.Staying several suits against the same defendant [Order 38, rule 1.] Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.
2.Staying similar suits upon application by defendant [Order 38, rule 2.] Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.
29. A test suit is thus a convenient mode of treatment of multiple suits between the same parties where similar issues of law and fact arise.
30. In Samwel Kariuki Nyangishi vs John Disilberger [2002] eKLR the Court explained the reasons for selecting a test suit as follows;
“The reasons why we have a test suit is because the said case would not be an embarrassment to the court and parties where several courts decide on liability arriving at a different proportion from that of the first court trying the matter.”
31. Therefore, having selected Bungoma CMCC 27 of 2019-Daisy Mackema Nyongesa (Suing as the next friend and mother of Rasin Nyongesa a minor) vs P.N Mashru Limited and Winslaus Wamalwa Buchunju as the test suit, once liability was determined, the parties ought to have adopted that finding on liability. The Appellant affected by the finding on liability in the test suit before the trial Court. If dissatisfied by the said finding they ought to have filed an appeal on the same. It is my holding that as long as we have no contrary decision on liability on the test appeal to warrant a departure from the finding of the test suit, this Court uphold that finding of the trial Court in the test suit.
32. On the issue of quantum of damages, I have considered the evidence tendered before the trial Court, the learned trial magistrate’s brief judgment, the grounds of appeal, the submissions filed by the parties and all the authorities cited. 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…”.
33. In Mariga V 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...”.
34. It is the law in Kenya that general damages must be compensatory. When one looks at the impugned Judgment, it must be fair in the sense of what the claimant suffered. In my view, whether at the trial Court or on appeal, Claimants should not aspire to a perfect compensation. They should take what has reasonably been found by the court as a fair compensation since the said award cannot by any chance replace a damaged part of a human body but that the same suffices as the tortfeasor’s earnest response (sorry) for the accident.
35. Guided by the above principles, I now proceed to determine whether the learned trial magistrate erred in the assessment of damages. I will start with the damages awarded under the Law Reform Act. It is important to point out at this juncture that general damages under the Law Reform Act are awarded for the benefit of the deceased’s estate in two categories only namely for pain and suffering and secondly, for loss of expectation of life.
36. At this stage, I also wish to point out in passing that only dependants recognized under the Fatal Accidents Act are supposed to benefit from damages awarded for loss of dependency. Section 4(1) of the Fatal Accidents Act defines dependants as the wife, husband, parent and child of the deceased person.
37. I do stand guided by the principle that there is no golden rule in the assessment of damages in respect of a deceased. The heads, global or mixed approaches have been applied in the superior Courts. What is beyond doubt is that irrespective of the age of a deceased, and whether or not there is evidence of her pecuniary contribution, damages are payable to his parents/dependents.
38. Under the heading of pain and suffering, the trial Court held that the deceased died on arrival at the hospital and she therefore underwent some excruciating pain although the same was not prolonged and made the award of Kshs. 35,000/=. I do note that the Appellant has contention with this award and urged this Court to make an award of Kshs. 10,000/= as the deceased person’s suffering was not prolonged. The Respondent submitted that the same was modest. In West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR the Court observed that-
“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”
39. Evidence adduced (PW1) confirm that the deceased died at the scene of the accident and was declared dead on arrival at the hospital. In view of the above cited authority, it is clear that nominal damages should be awarded when the victim dies on the spot. I am of the view that an award of Kshs.35,000/= is reasonable in the circumstances herein. I, therefore, uphold the award by the trial magistrate.
40. In respect to loss of expectation of life the Court in the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, stated as follows-
“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. 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.” (emphasis added).
41. I do note that the Appellant did not submit on this while the Respondent submitted that the same was proper and that this Court ought to uphold the same. I note that the trial Court made an award of Kshs.200,000/= under this heading and noted that the same figure shall remain deducted at the tail end of the judgment. This Court shall assume that the Appellant has no contention with this award. I, therefore, uphold the award by the trial magistrate.
42. Under the heading of loss of dependency, the trial Court held that the deceased was aged 25 years and that she was a trainer P1 teacher estimating her earnings at Kshs. 30,000/= per month with a multiplier of 32 years, a 2/3 dependency ratio. The Respondent submitted that urged the Court to uphold the decision of the lower Court under this heading arguing that the same was not inordinately high nor excessive to warrant this Court’s interference. The Appellant on the other hand, submitted that the deceased herein was a P1 trained teacher yet to be employed and there was no evidence that the deceased had completed her training as the Respondent only availed a school identification card which expired on 8th August 2017 and since the accident occurred on 20th December 2018 and with no production of the deceased person’s admission letter and academic transcripts or certificate of completion the Respondent failed to prove earnings by way of pay slips and that from the evidence the deceased was yet to graduate as a primary school teacher. The Appellant argued that the deceased was a student without any job meaning she used to rely on her parents for maintenance and with no proof of marriage she also depended on the Respondent. Relying on the case of Jospeh Wachira Main a & Another vs Mohammed Hassan (2006) eKLR where the Court held that dependency has to be proved by evidence, the Appellant urged this Court to adopt a global sum of approach and proposed an award of Kshs. 1,000,000/=.
43. On the issue of dependency ratio, the guiding factor in determining the dependency ratio where the deceased is unmarried is the re-statement by the Court of Appeal in Dickson Taabu Ogutu that:
“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyze the available evidence as to how much the deceased earned and how much he spent on his family. There can be no rule or principle in such a situation.”
44. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that;
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
The evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act as follows;
“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
112.in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
45. From the evidence on record, it is clear that this Court cannot ascertain exactly if the deceased person herein completed her training for the P1 teacher role from Moi Teachers College Baringo. On my examination of the availed evidence availed Respondent it is clear that she was a student but with a student identification card (PEXH IV) that had already expired at the date of the accident, 20th December 2018. The Respondent did not avail any certificate of completion of training or transcripts to show that she was done with her training, implying that might still have been a student at the time of her demise.
46. The adoption of a global figure is an accepted method of assessment of damages which has been adopted by various Courts. Mabeya J in Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri [2020] eKLR stated as follows on dealing with situations where proof of income is not presented to the Court;
“25. All that documentary eviden
[...truncated]
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E044 OF 2023
P.N. MASHRU LIMITED…….……………….……………..APPELLANT
VERSUS
ABRAHAM MUSE SITUMA (suing as the legal representative
and administrator of the estate of
Nancy JEBET CHELAGAT (DCD)…………..……………..RESPONDENT
(Being an appeal from the judgment and order of the Senior Principal Magistrate in Chief Magistrate’s Law Courts at Bungoma in Civil Case No.18 of 2019 delivered by Hon. C.A.S Mutai (SPM) on 6th January 2023).
JUDGMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on liability and quantum. The Appellant seeks that the appeal be allowed and judgment of the lower Court be set aside in its entirety, the costs of the appeal and of the Court below.
2. Vide an amended Plaint dated 14th March 2022, in Bungoma Chief Magistrate’s Court No. 18 of 2019, the Respondent herein (Plaintiff in the trial Court) sued the Appellant herein (Defendant in the trial Court) for general damages for pain and suffering, special damages of Kshs. 97,000/=, loss of amenities, costs of the suit, and interest at Court’s rate for the severe bodily injuries that lead to the instant death of the deceased herein out of a road accident that occurred on 10th December 2018, along Bungoma-Malaba road particularly at Nang’eni shopping centre.
3. The Respondent claimed that the deceased was lawfully travelling as a passenger aboard motor vehicle registration number KCE 484 W when the Appellant’s agent’s, servant and/or driver so negligently drove and/or managed motor vehicle registration bodily injuries as number KBU 164 K which was hauling trailer registration number ZE 2000 that the container fell off and landed on the matatu motor vehicle registration number KCE 484 W that the deceased was aboard and resulted in her sustaining serious bodily injuries resulting to her instant death.
4. In It’s response, the Appellant denied the ownership of the alleged Motor Vehicle Registration Number KBU 164 K hauling trailer registration number ZE 2000 and the particulars of negligence attributed to it and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent. The Appellant averred that no notice of intention to institute a suit and/or demand had ever been issued to it and urged the subordinate Court to dismiss the suit.
5. During the hearing, only the Respondent testified but did not call any witness, while the Appellant did not testify or call any witness.
6. After hearing and an in-depth analysis of the evidence before Court, the trial Court found the Appellant wholly liable for the said accident as per the holding of the trial Court in the test suit, Bungoma CMCC 27 of 2019-Daisy Mackema Nyongesa (Suing as the next friend and mother of Rasin Nyongesa a minor) vs P.N Mashru Limited and Winslaus Wamalwa Buchunju and that the issue of assessment of quantum was dispensed with via written submissions.
7. Under pain and suffering, the Respondent submitted that the deceased died a few hours after the accident while undergoing treatment. The post-mortem form which was produced as PEXH 3 indicated that the deceased died as a result of critical head injury due to severe brain injury. This is a clear indication that the deceased suffered pain prior to succumbing to her injuries. Placing reliance on the case of Machakos HCCA No. 56 of 2014-Beatice Mukulu Kang’uta & Another vs Silverstone Quarry Limited & Another (2016) eKLR wherein Justice P. Nyamweya (as she was then) awarded the Plaintiff Kshs. 200,000/= in which case the deceased died hours after the accident as he awaited treatment, circumstances similar this case. The Respondent submitted that there is no painless death and urge the Court to award the Respondent Kshs. 200,000/= for pain and suffering.
8. Under loss of expectation of life, the Respondent submitted that the deceased herein was 25 years old at the time of her demise leaving behind a young family and that she showed no signs of ill health. Placing reliance of the case of West Kenya Sugar Co. Ltd vs Philip Sumba Julaya (suing as the Administrator and personal representative of the estate of James Julaya Sumba (2019) eKLR wherein the Court held that an award of Kshs. 200,000/= was not excessive to the deceased’s estate for loss of expectation of life. In line with this decision and considering the lapse of time and inflation, the Respondent proposed an award of Kshs. 300,000/= under this heading.
9. Under loss of dependency, the Respondent submitted that the deceased died at the age of 25 years as per the death certificate and that she was a trained P1 teacher as per PEXH 7. He told the Court that the deceased could have worked up to the age of 60 years, but proposed a multiplier of 35 years. He placed reliance on the case of Alexander Okinda Anagwe (Suing as the Administrator of the estate of Patricia Kezia Anagwe (Deceased) vs Ruben Muriuki Kahuha, City Hopper Limited, Micheal A. Craig & Ruben Kamande Mburu (2015) eKLR wherein Justice R.E Ougo used a multiplier of 32 years for the deceased who was aged 25 years at the time of death. The Respondent proposed a multiplier of 35 years as civil servants retire at the age of 60 years.
On the multiplicand, the Respondent submitted that the deceased had completed a teaching course at Moi Teachers College in Baringo and she was expected to earn an estimated income of Kshs. 30,000/=per month upon gaining employment. He placed reliance on the case of Kisii HCCA No. 229 of 2010 Samwel Kimutai Koriri (Suing as the Administrator of the estate of the estate of Chelangat Silevia (Deceased) vs Nyanchwa Adventist Secondary School & Another (2016) eKLR wherein Justice W. Okwany upheld the lower Court’s decision that had applied the use of accelerated income (multiplicand) of Kshs. 20,000/= for a deceased who was a P1 trainee teacher at Nyanchwa Adventist College. The Respondent submitted that the decision relied upon was delivered 6 years ago and considering the lapse of time and inflation, he urged this Court to adopt a minimum of Kshs. 30,000/=as the deceased person’s monthly income.
On dependency ration, the Respondent submitted that the deceased is survived by a widower and a child as per PEXH 6 who were dependent on her for financial, emotional and material support. He also submitted that it was normal in African households for parents to provide for their children and spouses and urged the trial Court to adopt a dependency ratio of 2⁄3.
Therefore, the Respondent urged the Court to adopt a computation of Kshs. 30,000×12 ×35×2/3=8,400,0000/= which amount he proposed as a figure for loss of dependency.
10. On special damages, the Respondent submitted that they produced the following documents as proof:
a. Receipts for limited grant (PEXH 3)-Kshs. 20,000/=
b. Receipt for mortuary expenses (PEXH 10)-Kshs. 18, 450/=
c. Receipt for transport (PEXH 9)-Kshs. 30,000/=
d. Receipt for conffin (PEXH 8)-Kshs. 28,000/=
e. Receipt for copy of record (PEXH 12)-Kshs. 1,100/=
TOTAL Kshs. 97,550/=
The Respondent submitted that only special damages that have been specifically proved and pleaded are awardable. He urged the trial Court to award the Respondent Kshs. 97,550/= as prayed
11. The Respondent proposed the final award to be as follows:
i. Pain and Suffering Kshs. 200,000/=
ii. Loss of expectation of life Kshs. 300,000/=
iii. Loss of dependency Kshs. 8,400,000/=
iv. Special damages Kshs. 97,550/=
TOTAL Kshs. 8,997, 550/=
v. Plus costs and interest.
12. On the other hand, the Appellant submitted that the issue of liability, this being part of a series of those files the parties had consented that liability in Bungoma Civil Case No. 27 of 2019 do apply in all the files, the Appellant urged the trial Court to adopt the holding of liability in Bungoma Civil Case No. 27 of 2019 in this suit as well.
13. On quantum, the Appellant submitted under the Law Reforms Act and the Fatal Accidents Act.
14. On damages under the Law Reforms Act, the Appellant submitted under two headings pain and suffering and loss of expectation of life. Under pain and suffering, it submitted that awards under this head are all determined by the level of pain the deceased endured prior to succumbing to the fatal injuries. It submitted that a conventional figure of Kshs. 10,000/= under this heading will suffice and placed reliance on the case of Elizabeth Chelagat Tanui & Another vs Arthur Mwangi Kanyua (2013) eKLR wherein the Court awarded the Plaintiff Kshs. 10,000/= for pain and suffering where the deceased died sometime after being taken to the hospital.
15. Under loss of expectation of life, the Appellant submitted that the deceased was allegedly 25 years at the time of her demise as per the death certificate and factoring the contingencies of life and risks involved, the Appellant submitted that there was no guarantee that the deceased would have lived to the life expectancy age in Kenya today and that an award of Kshs. 30,000/= will suffice as adequate compensation under this head. The Appellant relied on the case of Leonard O. Ekisa & Another vs Major K. Birech (2025) eKLR wherein the Court made an award of Kshs. 30,000/= under this head.
16. The Appellant submitted that the amount should be deducted from the award under the Fatal Accidents Act as it is an accepted principle of law that a deceased’s estate should not benefit twice from the same accident by awarding both damages under the Law Reform Act as well as the Fatal Accidents Act where the benefits will be inherited by the same dependents. The Appellant relied on the decision of Kemfro vs A.M. Lubia and Olivie Lubia (1982-1988) KAR 727.
17. Under that Fatal Accidents Act, damages are usually made for loss of dependency that the deceased’s estate suffered and the same is made under the following sub-heads: multiplier, multiplicand and dependency ratio. According to the Appellant, he deceased herein died aged 25 years old and adoption of the multiplier approach would not help the Court to articulate the issue at hand with accuracy and there was no proof that the deceased was a farmer and earned the claimed amount. The Appellant argued that the deceased was dependent on her parents with no evidence of marriage between the Respondent and the deceased availed. The deceased was yet to secure a job to sustain herself and her child, and if this Court was to establish that the deceased was married to the Respondent, she was fully dependent on the Respondent. The Appellant submitted that the Court ought to adopt a global award approach when making compensation under this head as the Respondent failed to prove loss of dependency. The Appellant relied on the case of Mwanzia vs Ngalali Mutua & Kenya Bus Services (MSA) Ltd & Another quoted in Albert Odawa vs Gichimu Githenji NKR HCCA No. 15 of 2003 (2007) eKLR which was quoted in Oyugi Judith & Another vs Fredrick Odhiambo Ongong & 3 Other (2014) eKLR wherein the Court held that the multiplier approach is just a method of assessment of damages and it can and must be abandoned where the facts do not facilitate adoption. The same is useful in cases where age of the deceased, amount of annual or monthly dependency and the expected length of the dependency are known without undue speculation.
The Appellant submitted that no evidence was availed before this Court to establish that the deceased helped the Respondent in any way and since loss of dependency was pleaded, the Respondent was under duty to discharge the burden of proof. The Appellant relied on the case of Meshack Olang and Eric HCC Nairobi No. 2371 of 1990 wherein Justice Mwera established that it is trite to put in evidence to support what has been pleaded as any award or relief is all dependent on what had been pleaded and proved. The Appellant submitted that the Respondent failed to prove that he was a dependent and his claim for dependency must fail.
The Appellant urged the trial Court to make a global award of Kshs. 700,000/= placing reliance to the case of Oyugi Judith & Another vs Fredrick Odhiambo Ongongo & 3 Others (2014) eKLR where the Court made a global award of Kshs. 700,000/= each
As general damages to 2 deceased persons who died at the age of 28 years and 30 years respectively.
18. On special damages, the Appellant submitted that the same must be strictly pleaded and proved, and that the Respondent ought to be awarded only that which they strictly pleaded and proved which was transport, coffin and mortuary as the Respondent availed receipts of the same.
19. In conclusion, the Appellant submitted that the Respondent failed to prove his case on a balance of probabilities and the same ought to be dismissed with costs and if the trial Court is of a different opinion the, it should make the following award:
i. Under Fatal Accidents Act
General damages of global sum of Kshs. 700,000/=
Less damages under Law Reforms Act
ii. Under Law Reforms Act
Pain and Suffering Kshs. 10,000/=
Loss of Expectation Kshs. 30,000/=
Sub-Total Kshs 40,000/=
iii. Special damages Nil
Sub-Total Kshs. 740,000/=
Less award under Law Reforms Act Kshs. 40,000/=
TOTAL Kshs. 700,000/=
20. The trial court issued a judgment on quantum and which was as follows:
i. Pain and Suffering Kshs.35, 000/=
ii. Loss years Kshs.7, 680,000/=
iii. Special damages Kshs. 97,550 /=
Total Kshs.7, 812,550/=
iv. Plus, costs and interest.
The Appeal
21. Aggrieved by the judgment of the trial Court, the Appellant filed its memorandum of appeal dated 6th April 2023, on 11th April 2023. The grounds are essentially:
i. That the learned magistrate erred in law and fact in awarding general damages which were not consistent with the injuries sustained, submissions for all parties and the legal precedents.
ii. That the learned magistrate erred in law and fact in making his findings on liability contrary to the weight of the evidence that was before the Court.
iii. That the learned magistrate erred in law and fact in failing to consider judicial and failing to appreciate the doctrine of causation and blame worthiness hence arriving at a wrong decision on negligence and liability.
iv. That the learned magistrate erred in law and fact in assessing damages under Law Reform Act vis-à-vis loss of dependency and lost years under Fatal Accident Act by failing to apply the correct principles in determining the same hence arriving at an erroneous assessment or estimation of damages.
v. That the learned magistrate erred in law and fact in the assessment of damages for dependency, loss of expectation of life and pain and suffering that were inordinately high representing an entire erroneous estimate.
vi. That the learned magistrate erred in law and fact in misapprehending the evidence and misapplied, misunderstood and/or overlooked at the correct legal principle and judicial precedent and submissions by the Appellant and/or parties that he made an award under the Law Reform Act and the Fata Accidents Act that was inordinately high hence the erroneous estimate of damages which the deceased and the estate suffered.
vii. That the learned magistrate erred in law and fact in failing to take into account the fact that the beneficiaries both under the Law Reform Act and the Fatal Accident Act were the same while assessing damages under both heads.
viii. That the learned magistrate erred in law and fact in failing to consider the submissions tendered by the Appellant.
22. The Appellant prayed for orders inter alia: the subordinate Court’s judgement be set aside and this appeal be allowed with costs to the Appellant.
23. Vide the directions of this Court dated 21st August 2024, the appeal was to be canvassed by way of written submissions. Both parties duly filed and exchanged submissions.
24. I have duly perused, analyzed and considered the record of the lower Court as well as the submissions filed herein.
Analysis and determination
25. 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.
26. In this appeal, it is clear from the Appellants’ submissions that the Appellant is challenging the holding to the trial Court on both liability and quantum of damages.
27. On the issue of liability, it is clear from both parties lower Court submissions that, Bungoma CMCC 27 of 2019-Daisy Mackema Nyongesa (Suing as the next friend and mother of Rasin Nyongesa a minor) vs P.N Mashru Limited and Winslaus Wamalwa Buchunju was selected as a test suit in all the related matters. That fact is acknowledged by the parties in their respective submissions before the trial Court. In the test suit the Appellant was found 100% liable. The Appellant and the Respondent did address the issue in their respective submissions before the trial Court dated 25th July 2022 and 28th September 2022 respectively. While the Appellant did acknowledge the outcome of the test suit, in this appeal it prays for a different outcome by this Honourable Court.
28. So what is the purpose and effect of selection of a test suit? I will first look at the legal provisions. Order 38 Rules 1 and 2 of the Civil Procedure Rules (CPR) provides as follows;-
Order 38 – Selection of Test Suit
1.Staying several suits against the same defendant [Order 38, rule 1.] Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.
2.Staying similar suits upon application by defendant [Order 38, rule 2.] Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.
29. A test suit is thus a convenient mode of treatment of multiple suits between the same parties where similar issues of law and fact arise.
30. In Samwel Kariuki Nyangishi vs John Disilberger [2002] eKLR the Court explained the reasons for selecting a test suit as follows;
“The reasons why we have a test suit is because the said case would not be an embarrassment to the court and parties where several courts decide on liability arriving at a different proportion from that of the first court trying the matter.”
31. Therefore, having selected Bungoma CMCC 27 of 2019-Daisy Mackema Nyongesa (Suing as the next friend and mother of Rasin Nyongesa a minor) vs P.N Mashru Limited and Winslaus Wamalwa Buchunju as the test suit, once liability was determined, the parties ought to have adopted that finding on liability. The Appellant affected by the finding on liability in the test suit before the trial Court. If dissatisfied by the said finding they ought to have filed an appeal on the same. It is my holding that as long as we have no contrary decision on liability on the test appeal to warrant a departure from the finding of the test suit, this Court uphold that finding of the trial Court in the test suit.
32. On the issue of quantum of damages, I have considered the evidence tendered before the trial Court, the learned trial magistrate’s brief judgment, the grounds of appeal, the submissions filed by the parties and all the authorities cited. 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…”.
33. In Mariga V 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...”.
34. It is the law in Kenya that general damages must be compensatory. When one looks at the impugned Judgment, it must be fair in the sense of what the claimant suffered. In my view, whether at the trial Court or on appeal, Claimants should not aspire to a perfect compensation. They should take what has reasonably been found by the court as a fair compensation since the said award cannot by any chance replace a damaged part of a human body but that the same suffices as the tortfeasor’s earnest response (sorry) for the accident.
35. Guided by the above principles, I now proceed to determine whether the learned trial magistrate erred in the assessment of damages. I will start with the damages awarded under the Law Reform Act. It is important to point out at this juncture that general damages under the Law Reform Act are awarded for the benefit of the deceased’s estate in two categories only namely for pain and suffering and secondly, for loss of expectation of life.
36. At this stage, I also wish to point out in passing that only dependants recognized under the Fatal Accidents Act are supposed to benefit from damages awarded for loss of dependency. Section 4(1) of the Fatal Accidents Act defines dependants as the wife, husband, parent and child of the deceased person.
37. I do stand guided by the principle that there is no golden rule in the assessment of damages in respect of a deceased. The heads, global or mixed approaches have been applied in the superior Courts. What is beyond doubt is that irrespective of the age of a deceased, and whether or not there is evidence of her pecuniary contribution, damages are payable to his parents/dependents.
38. Under the heading of pain and suffering, the trial Court held that the deceased died on arrival at the hospital and she therefore underwent some excruciating pain although the same was not prolonged and made the award of Kshs. 35,000/=. I do note that the Appellant has contention with this award and urged this Court to make an award of Kshs. 10,000/= as the deceased person’s suffering was not prolonged. The Respondent submitted that the same was modest. In West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR the Court observed that-
“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”
39. Evidence adduced (PW1) confirm that the deceased died at the scene of the accident and was declared dead on arrival at the hospital. In view of the above cited authority, it is clear that nominal damages should be awarded when the victim dies on the spot. I am of the view that an award of Kshs.35,000/= is reasonable in the circumstances herein. I, therefore, uphold the award by the trial magistrate.
40. In respect to loss of expectation of life the Court in the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, stated as follows-
“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. 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.” (emphasis added).
41. I do note that the Appellant did not submit on this while the Respondent submitted that the same was proper and that this Court ought to uphold the same. I note that the trial Court made an award of Kshs.200,000/= under this heading and noted that the same figure shall remain deducted at the tail end of the judgment. This Court shall assume that the Appellant has no contention with this award. I, therefore, uphold the award by the trial magistrate.
42. Under the heading of loss of dependency, the trial Court held that the deceased was aged 25 years and that she was a trainer P1 teacher estimating her earnings at Kshs. 30,000/= per month with a multiplier of 32 years, a 2/3 dependency ratio. The Respondent submitted that urged the Court to uphold the decision of the lower Court under this heading arguing that the same was not inordinately high nor excessive to warrant this Court’s interference. The Appellant on the other hand, submitted that the deceased herein was a P1 trained teacher yet to be employed and there was no evidence that the deceased had completed her training as the Respondent only availed a school identification card which expired on 8th August 2017 and since the accident occurred on 20th December 2018 and with no production of the deceased person’s admission letter and academic transcripts or certificate of completion the Respondent failed to prove earnings by way of pay slips and that from the evidence the deceased was yet to graduate as a primary school teacher. The Appellant argued that the deceased was a student without any job meaning she used to rely on her parents for maintenance and with no proof of marriage she also depended on the Respondent. Relying on the case of Jospeh Wachira Main a & Another vs Mohammed Hassan (2006) eKLR where the Court held that dependency has to be proved by evidence, the Appellant urged this Court to adopt a global sum of approach and proposed an award of Kshs. 1,000,000/=.
43. On the issue of dependency ratio, the guiding factor in determining the dependency ratio where the deceased is unmarried is the re-statement by the Court of Appeal in Dickson Taabu Ogutu that:
“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyze the available evidence as to how much the deceased earned and how much he spent on his family. There can be no rule or principle in such a situation.”
44. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that;
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
The evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act as follows;
“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
112.in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
45. From the evidence on record, it is clear that this Court cannot ascertain exactly if the deceased person herein completed her training for the P1 teacher role from Moi Teachers College Baringo. On my examination of the availed evidence availed Respondent it is clear that she was a student but with a student identification card (PEXH IV) that had already expired at the date of the accident, 20th December 2018. The Respondent did not avail any certificate of completion of training or transcripts to show that she was done with her training, implying that might still have been a student at the time of her demise.
46. The adoption of a global figure is an accepted method of assessment of damages which has been adopted by various Courts. Mabeya J in Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri [2020] eKLR stated as follows on dealing with situations where proof of income is not presented to the Court;
“25. All that documentary eviden
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