'
(Being an appeal from the judgment of the Honourable B.S Khapoya (Principal Magistrate) at Kithimani Law Courts delivered on 3rd May 2023.)
Background
1. The appellant seeks to overturn the decision delivered on 3rd May 2023 in Kithimani SPMCC No. 186 of 2021 on the basis that the learned magistrate awarded inordinately high damages to the respondent, erred in determining liability and delivered a contradictory judgment.
2. The background to this matter is that the respondent herein instituted a cause of action via Plaint dated 4th October 2021 under the Law Reform Act and the Fatal Accident Act. She claimed that on 16th April 2021, the appellant herein, along Kisiki Road in Matuu, controlled Motor vehicle Registration KCA 927U carelessly and dangerously causing it to hit the deceased and who suffered fatal injuries.
3. She claimed that the accident was caused solely by the negligence of the appellant. She prayed for general damages under the Law Reform Act and Fatal Accidents Act, Special Damages amounting to Ksh 290,075 and costs and interest of suit from the date of filing till payment in full.
4. The appellant denied the contents of the Plaint and put the respondent to strict proof thereof in his Defence dated 8th November 2021.
5. By a judgment dated 3rd May 2023, the trial court awarded Ksh 50,000 for pain and suffering, Ksh 100,000 for loss of expectation of life, a global sum of Ksh. 2,000,000 for Loss of Dependency and Ksh 291,255 in Special Damages.
6. Still in the same judgement, the trial court concluded by entering judgment in favour of the respondent herein as against the appellant jointly and severally by apportioning liability of 100 per cent in favour of the respondent as against the appellant. The learned Magistrate further concluded by awarding Ksh. 50,000 for pain and suffering, Ksh 1,900,000 for Loss of Dependency, Ksh 291,255 in Special Damages amounting to a total of Ksh 2,241,255. He also awarded costs of the suit with interest to the respondent. He held that interest on general damages would accrue from date of the judgment and on special damages from date of filing suit.
The appeal
7. This decision has triggered the appeal before me. The appellant filed this appeal vide the Memorandum of Appeal dated 29th May 2023 on twelve (12) grounds reproduced verbatim as follows:
(1) That the learned trial Magistrate erred in awarding Kshs. 1,900,000 for Loss of Dependency on the basis of speculation and assumption and in the absence of any evidence to support the award in respect of a seven (7) year old deceased minor.
(2) That the learned trial Magistrate erred in giving an award which in the circumstances is inordinately high, that it amounts to a wholly erroneous estimate of the damages suffered by the respondent.
(3) That the learned trial Magistrate erred in giving an award which is altogether disproportionate and is not in keeping with other comparable awards made in respect to similar injuries.
(4) That the learned trial Magistrate misapprehended the evidence and misapplied and or overlooked the correct Legal Principles and Judicial Precedent that he made an award for Loss of Dependency that was inordinately high.
(5) That the learned trial Magistrate erred in Law and in fact by awarding a sum of Kshs. 50,000/= for pain and suffering which was excessive and not supported by the evidence on record for a deceased who died instantly.
(6) That the learned trial Magistrate erred in fact and Law in holding the defendant wholly (100 per cent) liable whereas it was clear that the parents and or guardians of the minor were also negligent in leaving her unguided and unguarded to play next to a busy road.
(7) That the learned Magistrate erred in fact and law by not apportioning liability between the defendant and the parent/guardian of the deceased.
(8) That the learned Magistrate erred in fact and law in awarding damages for Loss of Expectation of Life which award was inordinately high.
(9) That the learned trial Magistrate erred in Law and in fact when awarding Special damages of Kshs. 291,255/= whereas the respondent had not proved all the special damages by way of receipt.
(10) That the learned trial Magistrate erred in Law and in fact by failing to take into account that an award Under Loss of Expectation of Life must be deducted from the total sum of damages payable to avoid double compensation.
(11) That the learned trial Magistrate erred in Law and in fact in failing to accord due regard to the appellant''s Submissions on Loss Dependency and the authorities applicable and the principles on Multiplier and Multiplicand in the assessment of damages.
(12) That the learned trial Magistrate misdirected himself on all points of law and fact.
8. Consequently, the appellant prays: that the judgment of the trial court delivered on 3rd May 2023 and all consequential orders arising therefrom be set aside, that this appeal is allowed, that the Orders of lower court be reversed and for the respondent to pay the costs of this appeal and of the lower court.
9. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 13th November 2024 to supports its appeal. The respondents filed written submissions dated 7th April 2025 in rebuttal. I have summarised these submissions below.
Appellant’s submissions
10. On grounds 1,2,3 and 4 of the appeal, the appellant submits that the learned trial Magistrate erred in law and in when in assessing damages for Loss of Dependency under the Fatal Accident Act. It is submitted that at the tender age of the deceased, it was impossible to prove that she would have become a doctor as alleged and that this piece of evidence was completely speculative.
11. The appellant also faults the trial court for awarding contradictory sums of Loss of Dependency. It is submitted that by awarding either Ksh 1,900,000 or Ksh 2,000,000 for Loss of Dependency, the learned trial Magistrate erred because there was no credible evidence tendered before him to support such an award. The decision in Anthony Konde Fondo & Another V RMC (The Representative of FC (Deceased)2020 eKLR is cited to buttress this assertion to urge that Ksh 900,000 is a reasonable award for the 7-year-old minor.
12. On ground 5, it is submitted that the learned trial Magistrate erred when he failed to appreciate the fact that the death was instant and therefore with minimal pain. The decision in Peter Ngigi Kurua V Thomas Ondili Naivasha HCCA NO. 47 OF 2016 is relied on where Ksh 5,000 was awarded for pain and suffering where the deceased died instantly. It is submitted that the correct award under this head is Ksh 5,000 and not Ksh 50,000.
13. On grounds 6 & 7, it is submitted that the learned trial Magistrate erred in holding the defendant 100per cent and failing to apportion any liability to the parents or guardians of the deceased minor. It is urged that the adults left a minor of 7 years to play by herself, unguided an unsupervised near a very busy road and that this was extremely careless and negligent. It is submitted that the trial court was in error when he failed to apportion liability at 50-50 between the respondent and the minor''s parents/guardian.
14. On ground 9, it is submitted that the respondent’s claim for special damages of Kshs 290,075 was highly exaggerated and not fully proved contrary to the dicta in Julius Kariuki Kimani V. Evanson Kariuki [2021] eKLR. It is submitted that all the receipts provided by the respondent amounted to Ksh 228,380.
15. It is submitted that a reasonable amount of not more than Kshs. 97,000 would be adequate compensation as special damages.
16. On ground 12, it is submitted that learned trial Magistrate delivered a shallow and substandard judgment which was confusing and contradictory.
17. It is submitted that after setting down the evidence as presented by the parties in the case, the trial Magistrate had a duty to analyze the evidence and give reasons as to how he arrives at his judgment. The decisions in Kiarie Wamutu vs. Mungai Kiarie & another (1982) KLR 481 and Mufrank Builders Limited vs. Kiriti Women Transport and Housing Cooperative society (2015) eKLR are relied on for this contention. He prayed that the court allows the appeal as prayed.
Respondent’s submissions
18. The respondent submits that superior courts have approached the issue of Loss of Dependency differently. It is submitted that while some courts opt to apply the global award others opt to apply the multiplier approach. It is urged that the reasoning of the trial court was on point as there is no definitive or fixed method that must be applied and that the court elected to apply one of the formulas and hence cannot be faulted as it could chose to go either way.
19. It is the respondent’s case that there is no fixed formula or benchmark for calculating damages for pain and suffering. It is urged that each case will normally be assessed individually taking in to account the unique circumstances. It is contended that the award of Ksh 50,000 for pain and suffering was not high as alleged by the appellant. It is submitted that courts have awarded as high as Ksh 100,000 for this head hence the appellants challenge is unmerited. The decision in Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR is relied on to buttress this assertion.
20. It is submitted that the appellant had the duty to prove contributory negligence on the part of the parents or the deceased and none of this was done. It is urged that the appellant had no explanation as to how he managed to hit the deceased who was far from the tarmac road. It is submitted that there is no proof of negligence on the part of the deceased or the parents to enable this court apportion a 50/50 between the appellant and the minor''s parents as suggested by the appellant. It is urged that the appellant did not plead contributory negligence and cannot be allowed to introduce the same at this stage.
21. It is submitted that special damages were clearly pleaded in the respondent''s Plaint dated 4th October 2021. It is urged that the appellant has not raised any ground to warrant this court to interfere with the Judgement of the trial court. The decisions in Ken Odondi & 2 Others v James Okoth Omburah T/A Okoth Omburah & CO. Advocates (2013) eKLR, and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR are cited to buttress this contention.
Analysis and determination
22. I have considered the grounds of appeal, read through the record of appeal and the submissions of the parties. It is clear that this appeal is against both the quantum of damages and the liability apportioned at the ratio of 100per cent in favour of the respondent against the appellant. Therefore, the issues that present themselves for determination are (i) whether the award of pain and suffering, Loss of Dependency and special damages granted by the trial court were erroneous or unjustified and/or excessive in the circumstances of this case and (ii) whether the trial court erroneously apportioned liability at the ratio of 100 per cent in favour of the respondent against the appellant.
23. This is a first appeal. As enunciated in Selle v. Associated Motor Boat Co. Ltd [1968] EA, this first appellate court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis but bearing in mind the fact that this court did not have an opportunity to see and hear the witnesses first hand.
Liability
24. On whether the trial Magistrate erred by apportioning liability at the ratio of 100per cent in favour of the respondent against the appellant, I note that the legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that; “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
25. In addition, 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”.
26. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR observed:
“In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie interference that the accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiffs favour unless the defendant’s evidence provides some answer adequate to displace that interference.”
27. From the record, the appellant stated that he was driving at a bend and a steep slope. In his witness statement he indicated that he attempted breaking and the breaks completely failed. On sensing danger, he swerved off the road where there was a heap of sand and ballast alongside a shop, in an attempt to make the vehicle stop. Unfortunately, he hit the deceased and caused her death. Bearing in mind that the appellant drove of the tarmac and hit the deceased who was not near the tarmac but playing near the shop, I do not consider that the appellant tendered any credible evidence so as to prove contributory negligence.
28. Bearing this in mind, I proceed with the issue on damages for pain and suffering. The trial court awarded the Ksh 50,000 for pain and suffering. The appellant contends that because the deceased died fifteen minutes after the accident occurred, the learned magistrate erred by failing to find that the death was instant and therefore with minimal pain and suffering and thus ought to have awarded Ksh 5,000. The respondent contends that the award of Ksh 50,000 was not excessive because courts have awarded as high as Ksh 100,000 under this head.
29. Unfortunately, in this case, the learned Magistrate did not give a reasoned judgement. In my considered opinion, this type of judgment is unacceptable and falls short of the requisite standards of a judgment as stipulated in Order 21 Rule 4 of the Civil Procedure Rules.
30. Nevertheless, to do justice in this appeal, I am guided by the Court of Appeal where it held in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR that:
“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 that 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.”
31. Similarly in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 on wrong principles or that he misapprehended the evidence in some material respect, and so arrive at a figure which was either inordinately high or low.”
32. What therefore emerges is that the principles on which an appellate court will disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages.
33. As such, the question that arises is whether the trial court’s award of Ksh 50,000 was excessive and unjustified. In Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), the court held at paragraph 23:
“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.”
34. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh 50,000.00 for pain and suffering, the appellate court stated:
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
35. I have read the decision of my brother judge referred to by the appellant where the award of Ksh 5,000 was awarded for pain and suffering. In that decision the trial court had not awarded any damages and dismissed the suit. On appeal the appellant prayed for Ksh 5,000 which was granted. I note that the facts of that case were distinct and are not pari materia or even persuasive in the instant case.
36. In the instant case, it is evident from the post mortem report that the body was found at 1145 hours while the accident took place at 1100hrs. Thus, to me, the deceased did not died immediately after the accident and a legal presumption can be made that she suffered some form of pain.
37. As such, considering that the various decisions of the High Court range from Ksh, 10,000 to Ksh, 100,000 over the last 20 years for the award of pain and suffering, I do not find the award by the trial court in this case excessive. Therefore, I find no reason to interfere with the trial court’s award of Ksh 50,000 for pain and suffering.
38. On the award of 1,900,000 for Loss of Dependency, the appellant submits that an award of Kshs 900,000/- is appropriate under this head for a 7-year-old minor while the respondent agrees with the award made by the trial court on the basis that there is no definitive or fixed formula for the award of Loss of Dependency.
39. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act provides:
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought;..”
40. Evidence before the trial court was that the deceased was a student aged 7 years old at the time of her death looking to earn a place in the medical profession in the future.
41. It is worth noting that the exercise of awarding damages in respect of a deceased minor always poses a challenge to the courts. Some courts tabulate the loss of dependancy using a multiplier and some award a global sum. Indeed, in Oshivji Kuvenji & Another -Vs- James Mohammed Ongenge [2012] eKLR, Ngenye J observed in that;
“It is clear that neither the High Court nor the Court of Appeal has adopted a uniform principle on how to tabulate general damages where the deceased is a minor”.
42. The Court of Appeal lends guidance by observing in Kenya Breweries Ltd v Saro [1991] KECA 12 (KLR) that:
“In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is not evidence of pecuniary contribution.”
43. In that case, the the general view that, in assessing general damages, the age of a deceased child must be taken into account. In this regard they said:-
“We would respectfully agree with Mr Pandya that in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen-year-old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four-year-old one who has not been to school and whose abilities are yet not ascertained. That, we think, is a question of common sense rather than law.”
44. In the instant case as earlier noted, it is clear that trial court did not make any reference to previously decided cases with similar circumstance before arriving at its assessment of damages. In as much as there are differences on what approach a trial court will take to award damages it is prudent for the courts to have a semblance of consistent decision making with regard to this matter. Finding that the trial magistrate did not reference any authorities when he awarded the sum of Kshs.1,900,000 on Loss of Dependency, I am duty bound to examine what other trial courts have awarded in circumstances similar to this case.
45. In the decision cited by the appellant, Anthony Konde Fondo & another v RMC (The Representative of FC (Deceased) [2020] KEHC 2864 (KLR), the court reduced the award for loss of dependency from Ksh 2,000,000 to Ksh 900,000 for a 7-year-old deceased minor. This was five years ago.
46. In Nairobi Bottlers Ltd & another v MW (Suing as the legal representative of the estate of KM W) [2021] KEHC 2142 (KLR), the court in varying the trial court’s award from Ksh 1,752,800 to Ksh 1,000,000 observed:
“The advocates for the appellant suggested a global award of Kshs. 200,000/- while relying on the case of Kenya Breweries Ltd Vs Saro, Msa HCCA NO. 144 Of 1990 [1991] eKLR and M.N. Vs Paul Kiptoo ELD HCCA 75B of 2009 where a lump sum award of Kshs 280,000/= was made for a deceased aged 6 years.
34. The authorities cited by the appellant are old and are distinguishable from the circumstances of this case.
35. I am content to cite more recent cases. See S.M.K v Josephat Nkari Makaga Civil Appeal No. 66 of 2011 where an award of Kshs. 800,000/= was made on appeal under the head of loss of dependency in 2017 for a child aged 6 years and Civil Appeal No. 18 of 2014 Daniel Mwangi Kimemi & 2 others v JGM & SMM where a ward of Kshs.1, 530,000/= given for a 9-year-old was revised downwards on appeal to Kshs.1, 000,000/= in 2019. See also Anthony Konde Fondo & another v RMC (The Representative of FC (Deceased) [2020] eKLR the court awarded Kshs. 900,000/= for a child aged 7 years.
36. Based on these decided case, I award a global sum of Kshs. 1,000,000/= as reasonable compensation on lost years or dependency.”
47. In the instant case, I note that the future of the deceased was yet to unfold at this point in time. Therefore, it would be difficult to ascertain her earnings as to do so would be merely speculative. In the circumstances of this case therefore, and noting the recent decisions of parallel jurisdiction on Loss of dependency, I am of the considered view that a global award of Ksh 1,200,000 would be most appropriate.
48. On the award of special damages, the Trial Court awarded Ksh 291,255. The appellant argue that the receipts proved by the respondent amount to Ksh 228, 380.
49. It is now firmly established that special damages must not only be specifically pleaded but also strictly proved, before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
50. I have thoroughly analysed the record and noted that the receipts attached to the record are: Ksh 580 for Motor vehicle search, Ksh 7,000 for the Mortuary, Ksh 15,000 for the Coffin, Ksh 13,800 Barely visible), Ksh 41,000 for the tents, Ksh 115,000 for catering expenses and Ksh 34,000 for fuel costs. All these sum upto to Ksh 226, 380. I therefore find that the actual receipts of payments specifically pleaded and proving loss or economic injury amount to Ksh 226, 380. As such, the learned trial Magistrate erred by awarding Ksh 291,255 as special damages.
51. The upshot of all the above is that the trial magistrate’s judgment is set aside and varied in the following terms;
i. Pain & Suffering Ksh 50,000
ii. Special Damages Ksh 226, 380
iii. Loss of Dependency Ksh 1,200,000
NET Ksh 1,476,380
52. Since the appeal partially succeeds, each party will bear its own costs.
It is so ordered.
Delivered, Dated and Signed this 9th day of October 2025
'
(Being an appeal from the judgment of the Honourable B.S Khapoya (Principal Magistrate) at Kithimani Law Courts delivered on 3rd May 2023.)
Background
1. The appellant seeks to overturn the decision delivered on 3rd May 2023 in Kithimani SPMCC No. 186 of 2021 on the basis that the learned magistrate awarded inordinately high damages to the respondent, erred in determining liability and delivered a contradictory judgment.
2. The background to this matter is that the respondent herein instituted a cause of action via Plaint dated 4th October 2021 under the Law Reform Act and the Fatal Accident Act. She claimed that on 16th April 2021, the appellant herein, along Kisiki Road in Matuu, controlled Motor vehicle Registration KCA 927U carelessly and dangerously causing it to hit the deceased and who suffered fatal injuries.
3. She claimed that the accident was caused solely by the negligence of the appellant. She prayed for general damages under the Law Reform Act and Fatal Accidents Act, Special Damages amounting to Ksh 290,075 and costs and interest of suit from the date of filing till payment in full.
4. The appellant denied the contents of the Plaint and put the respondent to strict proof thereof in his Defence dated 8th November 2021.
5. By a judgment dated 3rd May 2023, the trial court awarded Ksh 50,000 for pain and suffering, Ksh 100,000 for loss of expectation of life, a global sum of Ksh. 2,000,000 for Loss of Dependency and Ksh 291,255 in Special Damages.
6. Still in the same judgement, the trial court concluded by entering judgment in favour of the respondent herein as against the appellant jointly and severally by apportioning liability of 100 per cent in favour of the respondent as against the appellant. The learned Magistrate further concluded by awarding Ksh. 50,000 for pain and suffering, Ksh 1,900,000 for Loss of Dependency, Ksh 291,255 in Special Damages amounting to a total of Ksh 2,241,255. He also awarded costs of the suit with interest to the respondent. He held that interest on general damages would accrue from date of the judgment and on special damages from date of filing suit.
The appeal
7. This decision has triggered the appeal before me. The appellant filed this appeal vide the Memorandum of Appeal dated 29th May 2023 on twelve (12) grounds reproduced verbatim as follows:
(1) That the learned trial Magistrate erred in awarding Kshs. 1,900,000 for Loss of Dependency on the basis of speculation and assumption and in the absence of any evidence to support the award in respect of a seven (7) year old deceased minor.
(2) That the learned trial Magistrate erred in giving an award which in the circumstances is inordinately high, that it amounts to a wholly erroneous estimate of the damages suffered by the respondent.
(3) That the learned trial Magistrate erred in giving an award which is altogether disproportionate and is not in keeping with other comparable awards made in respect to similar injuries.
(4) That the learned trial Magistrate misapprehended the evidence and misapplied and or overlooked the correct Legal Principles and Judicial Precedent that he made an award for Loss of Dependency that was inordinately high.
(5) That the learned trial Magistrate erred in Law and in fact by awarding a sum of Kshs. 50,000/= for pain and suffering which was excessive and not supported by the evidence on record for a deceased who died instantly.
(6) That the learned trial Magistrate erred in fact and Law in holding the defendant wholly (100 per cent) liable whereas it was clear that the parents and or guardians of the minor were also negligent in leaving her unguided and unguarded to play next to a busy road.
(7) That the learned Magistrate erred in fact and law by not apportioning liability between the defendant and the parent/guardian of the deceased.
(8) That the learned Magistrate erred in fact and law in awarding damages for Loss of Expectation of Life which award was inordinately high.
(9) That the learned trial Magistrate erred in Law and in fact when awarding Special damages of Kshs. 291,255/= whereas the respondent had not proved all the special damages by way of receipt.
(10) That the learned trial Magistrate erred in Law and in fact by failing to take into account that an award Under Loss of Expectation of Life must be deducted from the total sum of damages payable to avoid double compensation.
(11) That the learned trial Magistrate erred in Law and in fact in failing to accord due regard to the appellant''s Submissions on Loss Dependency and the authorities applicable and the principles on Multiplier and Multiplicand in the assessment of damages.
(12) That the learned trial Magistrate misdirected himself on all points of law and fact.
8. Consequently, the appellant prays: that the judgment of the trial court delivered on 3rd May 2023 and all consequential orders arising therefrom be set aside, that this appeal is allowed, that the Orders of lower court be reversed and for the respondent to pay the costs of this appeal and of the lower court.
9. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 13th November 2024 to supports its appeal. The respondents filed written submissions dated 7th April 2025 in rebuttal. I have summarised these submissions below.
Appellant’s submissions
10. On grounds 1,2,3 and 4 of the appeal, the appellant submits that the learned trial Magistrate erred in law and in when in assessing damages for Loss of Dependency under the Fatal Accident Act. It is submitted that at the tender age of the deceased, it was impossible to prove that she would have become a doctor as alleged and that this piece of evidence was completely speculative.
11. The appellant also faults the trial court for awarding contradictory sums of Loss of Dependency. It is submitted that by awarding either Ksh 1,900,000 or Ksh 2,000,000 for Loss of Dependency, the learned trial Magistrate erred because there was no credible evidence tendered before him to support such an award. The decision in Anthony Konde Fondo & Another V RMC (The Representative of FC (Deceased)2020 eKLR is cited to buttress this assertion to urge that Ksh 900,000 is a reasonable award for the 7-year-old minor.
12. On ground 5, it is submitted that the learned trial Magistrate erred when he failed to appreciate the fact that the death was instant and therefore with minimal pain. The decision in Peter Ngigi Kurua V Thomas Ondili Naivasha HCCA NO. 47 OF 2016 is relied on where Ksh 5,000 was awarded for pain and suffering where the deceased died instantly. It is submitted that the correct award under this head is Ksh 5,000 and not Ksh 50,000.
13. On grounds 6 & 7, it is submitted that the learned trial Magistrate erred in holding the defendant 100per cent and failing to apportion any liability to the parents or guardians of the deceased minor. It is urged that the adults left a minor of 7 years to play by herself, unguided an unsupervised near a very busy road and that this was extremely careless and negligent. It is submitted that the trial court was in error when he failed to apportion liability at 50-50 between the respondent and the minor''s parents/guardian.
14. On ground 9, it is submitted that the respondent’s claim for special damages of Kshs 290,075 was highly exaggerated and not fully proved contrary to the dicta in Julius Kariuki Kimani V. Evanson Kariuki [2021] eKLR. It is submitted that all the receipts provided by the respondent amounted to Ksh 228,380.
15. It is submitted that a reasonable amount of not more than Kshs. 97,000 would be adequate compensation as special damages.
16. On ground 12, it is submitted that learned trial Magistrate delivered a shallow and substandard judgment which was confusing and contradictory.
17. It is submitted that after setting down the evidence as presented by the parties in the case, the trial Magistrate had a duty to analyze the evidence and give reasons as to how he arrives at his judgment. The decisions in Kiarie Wamutu vs. Mungai Kiarie & another (1982) KLR 481 and Mufrank Builders Limited vs. Kiriti Women Transport and Housing Cooperative society (2015) eKLR are relied on for this contention. He prayed that the court allows the appeal as prayed.
Respondent’s submissions
18. The respondent submits that superior courts have approached the issue of Loss of Dependency differently. It is submitted that while some courts opt to apply the global award others opt to apply the multiplier approach. It is urged that the reasoning of the trial court was on point as there is no definitive or fixed method that must be applied and that the court elected to apply one of the formulas and hence cannot be faulted as it could chose to go either way.
19. It is the respondent’s case that there is no fixed formula or benchmark for calculating damages for pain and suffering. It is urged that each case will normally be assessed individually taking in to account the unique circumstances. It is contended that the award of Ksh 50,000 for pain and suffering was not high as alleged by the appellant. It is submitted that courts have awarded as high as Ksh 100,000 for this head hence the appellants challenge is unmerited. The decision in Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR is relied on to buttress this assertion.
20. It is submitted that the appellant had the duty to prove contributory negligence on the part of the parents or the deceased and none of this was done. It is urged that the appellant had no explanation as to how he managed to hit the deceased who was far from the tarmac road. It is submitted that there is no proof of negligence on the part of the deceased or the parents to enable this court apportion a 50/50 between the appellant and the minor''s parents as suggested by the appellant. It is urged that the appellant did not plead contributory negligence and cannot be allowed to introduce the same at this stage.
21. It is submitted that special damages were clearly pleaded in the respondent''s Plaint dated 4th October 2021. It is urged that the appellant has not raised any ground to warrant this court to interfere with the Judgement of the trial court. The decisions in Ken Odondi & 2 Others v James Okoth Omburah T/A Okoth Omburah & CO. Advocates (2013) eKLR, and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR are cited to buttress this contention.
Analysis and determination
22. I have considered the grounds of appeal, read through the record of appeal and the submissions of the parties. It is clear that this appeal is against both the quantum of damages and the liability apportioned at the ratio of 100per cent in favour of the respondent against the appellant. Therefore, the issues that present themselves for determination are (i) whether the award of pain and suffering, Loss of Dependency and special damages granted by the trial court were erroneous or unjustified and/or excessive in the circumstances of this case and (ii) whether the trial court erroneously apportioned liability at the ratio of 100 per cent in favour of the respondent against the appellant.
23. This is a first appeal. As enunciated in Selle v. Associated Motor Boat Co. Ltd [1968] EA, this first appellate court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis but bearing in mind the fact that this court did not have an opportunity to see and hear the witnesses first hand.
Liability
24. On whether the trial Magistrate erred by apportioning liability at the ratio of 100per cent in favour of the respondent against the appellant, I note that the legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that; “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
25. In addition, 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”.
26. The Court of Appeal in Nadwa -vs- Kenya Kazi Ltd (1988) eKLR observed:
“In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie interference that the accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiffs favour unless the defendant’s evidence provides some answer adequate to displace that interference.”
27. From the record, the appellant stated that he was driving at a bend and a steep slope. In his witness statement he indicated that he attempted breaking and the breaks completely failed. On sensing danger, he swerved off the road where there was a heap of sand and ballast alongside a shop, in an attempt to make the vehicle stop. Unfortunately, he hit the deceased and caused her death. Bearing in mind that the appellant drove of the tarmac and hit the deceased who was not near the tarmac but playing near the shop, I do not consider that the appellant tendered any credible evidence so as to prove contributory negligence.
28. Bearing this in mind, I proceed with the issue on damages for pain and suffering. The trial court awarded the Ksh 50,000 for pain and suffering. The appellant contends that because the deceased died fifteen minutes after the accident occurred, the learned magistrate erred by failing to find that the death was instant and therefore with minimal pain and suffering and thus ought to have awarded Ksh 5,000. The respondent contends that the award of Ksh 50,000 was not excessive because courts have awarded as high as Ksh 100,000 under this head.
29. Unfortunately, in this case, the learned Magistrate did not give a reasoned judgement. In my considered opinion, this type of judgment is unacceptable and falls short of the requisite standards of a judgment as stipulated in Order 21 Rule 4 of the Civil Procedure Rules.
30. Nevertheless, to do justice in this appeal, I am guided by the Court of Appeal where it held in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR that:
“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 that 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.”
31. Similarly in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 on wrong principles or that he misapprehended the evidence in some material respect, and so arrive at a figure which was either inordinately high or low.”
32. What therefore emerges is that the principles on which an appellate court will disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages.
33. As such, the question that arises is whether the trial court’s award of Ksh 50,000 was excessive and unjustified. In Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), the court held at paragraph 23:
“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.”
34. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh 50,000.00 for pain and suffering, the appellate court stated:
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
35. I have read the decision of my brother judge referred to by the appellant where the award of Ksh 5,000 was awarded for pain and suffering. In that decision the trial court had not awarded any damages and dismissed the suit. On appeal the appellant prayed for Ksh 5,000 which was granted. I note that the facts of that case were distinct and are not pari materia or even persuasive in the instant case.
36. In the instant case, it is evident from the post mortem report that the body was found at 1145 hours while the accident took place at 1100hrs. Thus, to me, the deceased did not died immediately after the accident and a legal presumption can be made that she suffered some form of pain.
37. As such, considering that the various decisions of the High Court range from Ksh, 10,000 to Ksh, 100,000 over the last 20 years for the award of pain and suffering, I do not find the award by the trial court in this case excessive. Therefore, I find no reason to interfere with the trial court’s award of Ksh 50,000 for pain and suffering.
38. On the award of 1,900,000 for Loss of Dependency, the appellant submits that an award of Kshs 900,000/- is appropriate under this head for a 7-year-old minor while the respondent agrees with the award made by the trial court on the basis that there is no definitive or fixed formula for the award of Loss of Dependency.
39. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act provides:
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought;..”
40. Evidence before the trial court was that the deceased was a student aged 7 years old at the time of her death looking to earn a place in the medical profession in the future.
41. It is worth noting that the exercise of awarding damages in respect of a deceased minor always poses a challenge to the courts. Some courts tabulate the loss of dependancy using a multiplier and some award a global sum. Indeed, in Oshivji Kuvenji & Another -Vs- James Mohammed Ongenge [2012] eKLR, Ngenye J observed in that;
“It is clear that neither the High Court nor the Court of Appeal has adopted a uniform principle on how to tabulate general damages where the deceased is a minor”.
42. The Court of Appeal lends guidance by observing in Kenya Breweries Ltd v Saro [1991] KECA 12 (KLR) that:
“In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is not evidence of pecuniary contribution.”
43. In that case, the the general view that, in assessing general damages, the age of a deceased child must be taken into account. In this regard they said:-
“We would respectfully agree with Mr Pandya that in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen-year-old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four-year-old one who has not been to school and whose abilities are yet not ascertained. That, we think, is a question of common sense rather than law.”
44. In the instant case as earlier noted, it is clear that trial court did not make any reference to previously decided cases with similar circumstance before arriving at its assessment of damages. In as much as there are differences on what approach a trial court will take to award damages it is prudent for the courts to have a semblance of consistent decision making with regard to this matter. Finding that the trial magistrate did not reference any authorities when he awarded the sum of Kshs.1,900,000 on Loss of Dependency, I am duty bound to examine what other trial courts have awarded in circumstances similar to this case.
45. In the decision cited by the appellant, Anthony Konde Fondo & another v RMC (The Representative of FC (Deceased) [2020] KEHC 2864 (KLR), the court reduced the award for loss of dependency from Ksh 2,000,000 to Ksh 900,000 for a 7-year-old deceased minor. This was five years ago.
46. In Nairobi Bottlers Ltd & another v MW (Suing as the legal representative of the estate of KM W) [2021] KEHC 2142 (KLR), the court in varying the trial court’s award from Ksh 1,752,800 to Ksh 1,000,000 observed:
“The advocates for the appellant suggested a global award of Kshs. 200,000/- while relying on the case of Kenya Breweries Ltd Vs Saro, Msa HCCA NO. 144 Of 1990 [1991] eKLR and M.N. Vs Paul Kiptoo ELD HCCA 75B of 2009 where a lump sum award of Kshs 280,000/= was made for a deceased aged 6 years.
34. The authorities cited by the appellant are old and are distinguishable from the circumstances of this case.
35. I am content to cite more recent cases. See S.M.K v Josephat Nkari Makaga Civil Appeal No. 66 of 2011 where an award of Kshs. 800,000/= was made on appeal under the head of loss of dependency in 2017 for a child aged 6 years and Civil Appeal No. 18 of 2014 Daniel Mwangi Kimemi & 2 others v JGM & SMM where a ward of Kshs.1, 530,000/= given for a 9-year-old was revised downwards on appeal to Kshs.1, 000,000/= in 2019. See also Anthony Konde Fondo & another v RMC (The Representative of FC (Deceased) [2020] eKLR the court awarded Kshs. 900,000/= for a child aged 7 years.
36. Based on these decided case, I award a global sum of Kshs. 1,000,000/= as reasonable compensation on lost years or dependency.”
47. In the instant case, I note that the future of the deceased was yet to unfold at this point in time. Therefore, it would be difficult to ascertain her earnings as to do so would be merely speculative. In the circumstances of this case therefore, and noting the recent decisions of parallel jurisdiction on Loss of dependency, I am of the considered view that a global award of Ksh 1,200,000 would be most appropriate.
48. On the award of special damages, the Trial Court awarded Ksh 291,255. The appellant argue that the receipts proved by the respondent amount to Ksh 228, 380.
49. It is now firmly established that special damages must not only be specifically pleaded but also strictly proved, before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
50. I have thoroughly analysed the record and noted that the receipts attached to the record are: Ksh 580 for Motor vehicle search, Ksh 7,000 for the Mortuary, Ksh 15,000 for the Coffin, Ksh 13,800 Barely visible), Ksh 41,000 for the tents, Ksh 115,000 for catering expenses and Ksh 34,000 for fuel costs. All these sum upto to Ksh 226, 380. I therefore find that the actual receipts of payments specifically pleaded and proving loss or economic injury amount to Ksh 226, 380. As such, the learned trial Magistrate erred by awarding Ksh 291,255 as special damages.
51. The upshot of all the above is that the trial magistrate’s judgment is set aside and varied in the following terms;
i. Pain & Suffering Ksh 50,000
ii. Special Damages Ksh 226, 380
iii. Loss of Dependency Ksh 1,200,000
NET Ksh 1,476,380
52. Since the appeal partially succeeds, each party will bear its own costs.
It is so ordered.
Delivered, Dated and Signed this 9th day of October 2025
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