(Being an appeal from the judgment and decree of Hon. S. O. Ongeri, Senior Principal Magistrate, delivered on 29th February 2024 in Oyugis Civil Suit No. E152 of 2022)
JUDGMENT
A. Introduction
1. This is a first appeal against the judgment of Hon. S. O. Ongeri, Senior Principal Magistrate, delivered on 29th February 2024 in Oyugis Civil Suit No. E152 of 2022. The trial court entered judgment for the Respondents against the Appellant in the sum of Kshs. 4,395,000, together with costs and interest.
2. The appeal is confined to the quantum of damages.
B. Background
3. By a plaint dated 17th September 2022, the Respondents, suing as administrators ad litem of the deceased's estate, sought general damages, special damages, costs and interest.
4. They pleaded that on 28th August 2022 at about 2.00 p.m., motor vehicle registration number KBR 187Y, a Mitsubishi lorry, was driven so carelessly and recklessly by the Appellant's driver, servant or agent that it lost control, swerved off the road at Pala in Homa Bay County, and fatally injured the deceased, who was then a lawful pedestrian. A copy of records from the National Transport and Safety Authority, produced at the trial, confirmed that the Appellant was the vehicle's registered owner.
5. The Respondents pleaded that the deceased was aged 30 years and worked as an Early Childhood Development Education teacher. She was survived by her husband, the 1st Respondent, and seven children. Three of the children were minors, while the other four, although adults, were still in secondary school and were not self-supporting.
6. The Appellant entered appearance and filed a statement of defence dated 15th October 2022. It denied negligence and, in the alternative, attributed contributory or sole negligence to the deceased. The Appellant did not call any witness at the trial.
7. The Respondents called three witnesses: PW1, No. 83155 Corporal Jefferson Munyiki, a traffic police officer attached to Kendu Bay Police Station, who produced the police abstract; PW2, Daniel Onyango Akumu, the deceased's husband and the 1st Respondent; and PW3, Marceline Awuor Oluoch, an eyewitness who was at Pala Market when the accident occurred.
C. The trial court's judgment
8. On liability, the trial court found, on the uncontroverted evidence of PW1 and PW3, that the Appellant was wholly liable for the accident. That finding is not challenged in this appeal.
9. On quantum, the trial court made the following awards:
Pain and suffering
Kshs. 30,000
Loss of expectation of life
Kshs. 100,000
Loss of dependency (17,000 x 12 x 30 x 2/3)
Kshs. 4,080,000
Special damages
Kshs. 185,000
TOTAL
Kshs. 4,395,000
D. The appeal
10. Aggrieved by the judgment, the Appellant filed a memorandum of appeal dated 16th March 2024. The Appellant contends that the learned trial magistrate:
(a) grossly misdirected himself by treating the evidence and submissions on quantum superficially and consequently reached the wrong conclusion;
(b) ignored the principles governing the assessment of damages and the relevant authorities cited in the Appellant's written submissions;
(c) proceeded on wrong principles in assessing damages and failed to apply the applicable precedents and tenets of law;
(d) awarded damages that were so inordinately high as to represent an entirely erroneous estimate; and
(e) failed to evaluate adequately the evidence and exhibits tendered on quantum and thereby reached a decision that is unsustainable in law.
E. The parties' submissions
11. The Appellant submitted that Kshs. 10,000 would adequately compensate pain and suffering because the deceased died at the scene, and that Kshs. 80,000 would be adequate for loss of expectation of life. It further argued that the multiplicand for loss of dependency should have been the proved contractual salary of Kshs. 5,000 per month, rather than the pleaded but unproved figure of Kshs. 30,000 or the trial court's unexplained figure of Kshs. 17,000.
12. The Appellant also proposed a multiplier of 13 years and a dependency ratio of one-third. It argued that the Respondents had not produced birth or marriage certificates for the alleged dependants. It further submitted that the special damages should have been rejected because the receipts were unstamped and were not generated through an Electronic Tax Register. Finally, it contended that the awards under the Law Reform Act should be deducted from the award under the Fatal Accidents Act to avoid double compensation.
13. The Respondents supported the trial court's award. They submitted that the multiplier approach was properly applied; that a multiplicand of Kshs. 17,000, or alternatively a global award of Kshs. 3,000,000, was justified despite the absence of documentary proof of the pleaded monthly salary of Kshs. 30,000; and that a dependency ratio of two-thirds was warranted by the size of the deceased's family. They also maintained that special damages of Kshs. 185,000 were specifically pleaded and strictly proved.
F. Duty of the Court and issues for determination
14. As a first appellate court, this Court must reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. See Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
15. An appellate court will interfere with an award of damages only where the trial court acted on a wrong principle, took into account an irrelevant factor, omitted a relevant factor, or made an award that is so inordinately high or low as to represent an entirely erroneous estimate. See Kemfro Africa Ltd t/a Meru Express Service & Another v A. M. Lubia & Another [1982-1988] 1 KAR 727.
16. Since liability is not in issue, the following questions arise for determination:
(a) whether the award for pain and suffering was excessive;
(b) whether the award for loss of expectation of life should stand;
(c) whether the award for loss of dependency proceeded on a wrong principle or was inordinately high; and
(d) whether the award of special damages was properly made.
G. Analysis and determination
(i) Pain and suffering
17. Damages under this head compensate for the pain and suffering endured by the deceased between injury and death. The award ordinarily depends on the period for which the deceased remained alive and the nature of the injuries sustained. In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] KEHC 3063 (KLR), the Court recognised a range of Kshs. 10,000 to Kshs. 100,000, with higher awards being appropriate where death was not immediate.
18. The deceased died at the scene. The award of Kshs. 30,000 nevertheless falls within the accepted range and cannot be said to be so inordinately high as to amount to an erroneous estimate. I therefore decline to interfere with it.
(ii) Loss of expectation of life
19. The conventional award for loss of expectation of life is Kshs. 100,000. That is also the amount reflected in the trial court's final disposition. I find no basis for interference and affirm the award of Kshs. 100,000.
(iii) Loss of dependency
20. The first question concerns the multiplicand. The trial court adopted Kshs. 17,000 per month, a figure materially below the pleaded and oral evidence of Kshs. 30,000. The judgment referred generally to a minimum wage but did not identify the applicable wage order, occupation or locality.
21. The evidence included an expired contract showing a monthly salary of Kshs. 5,000 in 2018. That historical figure could not, without more, establish the deceased's earnings at the date of her death in 2022. Conversely, the alleged monthly earnings of Kshs. 30,000 were unsupported by documentary evidence. Although documentary proof is not the only means by which earnings may be established, the Court must assess the cogency of the evidence placed before it. See Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR.
22. The evidence was that the deceased taught, farmed and traded in charcoal, but no educational certificates or reliable evidence of her earnings from those activities was produced. In those circumstances, it is appropriate to apply the statutory minimum wage for a general worker. The minimum monthly wage applicable in 2022 to areas other than cities and former municipalities was Kshs. 8,109.90. I therefore find that the multiplicand of Kshs. 17,000 was excessive and substitute it with Kshs. 8,109.90.
23. The trial court adopted a multiplier of 30 years, representing the period from the deceased's age of 30 years to the conventional retirement age of 60 years. In selecting a multiplier, a court must consider the deceased's age, the vicissitudes of life, the nature of the occupation and the period during which the deceased would probably have remained economically active. The assessment remains an exercise of judicial discretion. See Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another [2014] eKLR.
24. I have also considered Francis Muga & Another v Rachel Asiko Malanda & Another (suing as administrators and personal representatives of the Estate of Joseph Okanga Njeri) [2019] KEHC 1743 (KLR). In the circumstances of this case, the multiplier of 30 years is not so excessive or unreasonable as to justify appellate interference. I affirm it.
25. As to the dependency ratio, the deceased was survived by her husband and seven children. PW2 testified that three of the children were minors and that the four adult children were still in secondary school and were not self-supporting. In view of that evidence and the size of the household, I am not persuaded that the trial court misdirected itself by adopting a dependency ratio of two-thirds. I affirm that ratio.
26. Loss of dependency is therefore assessed as follows:
Kshs. 8,109.90 x 12 x 30 x 2/3
Kshs. 1,946,376
27. The Appellant urged the Court to deduct the awards for pain and suffering and loss of expectation of life from the award for loss of dependency on the ground of double compensation. The submission misconceives the principle. The court is required to take an award under the Law Reform Act into account; it is not required to deduct that award arithmetically from damages under the Fatal Accidents Act. See Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR). I therefore decline to make the proposed deduction.
(iv) Special damages
28. It is trite law that Special damages must be specifically pleaded and strictly proved. At paragraph 7 of the plaint, the Respondents pleaded and itemised special damages of Kshs. 185,000, comprising expenses for the coffin, post-mortem examination and hospital charges, other funeral purchases, transport and professional fees incurred in obtaining the limited grant. Receipts supporting the claim were produced by consent and without objection. The Appellant called no evidence.
29. The Appellant contends for the first time on appeal that the receipts were unstamped and were not generated through an Electronic Tax Register. An objection to the mode of proof or admissibility of a document should ordinarily be made when the document is tendered at the trial. Further, reasonable funeral expenses may be awarded even where every item is not supported by a receipt. See Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR. I find no basis for disturbing the award of Kshs. 185,000 and affirm it.
H. Conclusion and orders
30. The awards are therefore reassessed as follows:
Pain and suffering
Kshs. 30,000
Loss of expectation of life
Kshs. 100,000
Loss of dependency
Kshs. 1,946,376
Special damages
Kshs. 185,000
TOTAL
Kshs. 2,261,376
31. Liability was assessed, and remains, at 100% against the Appellant. No further apportionment is therefore required.
32. The appeal partially succeeds. The trial court's findings on liability, the multiplier of 30 years and the dependency ratio of two-thirds are affirmed.
33. The trial court's judgment on quantum is set aside and substituted with judgment for the Respondents against the Appellant in the sum of Kshs. 2,261,376, together with costs of the suit and interest at court rates from the date of the judgment of the subordinate court until payment in full.
34. As the Appellant has partially succeeded in the appeal, it is awarded one-half of the costs of the appeal. The trial court's order on the costs of the suit is undisturbed.
It is so ordered.
T. A. ODERA
JUDGE
9TH SEPTEMBER 2026
DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON 9TH SEPTEMBER 2026 IN THE PRESENCE OF P. KUGAT, COURT ASSISTANT; OTIENO NJOGA FOR THE APPELLANT; AND MISS KUKE EVERLYNE FOR THE RESPONDENTS.
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JUDGMENT
A. Introduction
1. This is a first appeal against the judgment of Hon. S. O. Ongeri, Senior Principal Magistrate, delivered on 29th February 2024 in Oyugis Civil Suit No. E152 of 2022. The trial court entered judgment for the Respondents against the Appellant in the sum of Kshs. 4,395,000, together with costs and interest.
2. The appeal is confined to the quantum of damages.
B. Background
3. By a plaint dated 17th September 2022, the Respondents, suing as administrators ad litem of the deceased's estate, sought general damages, special damages, costs and interest.
4. They pleaded that on 28th August 2022 at about 2.00 p.m., motor vehicle registration number KBR 187Y, a Mitsubishi lorry, was driven so carelessly and recklessly by the Appellant's driver, servant or agent that it lost control, swerved off the road at Pala in Homa Bay County, and fatally injured the deceased, who was then a lawful pedestrian. A copy of records from the National Transport and Safety Authority, produced at the trial, confirmed that the Appellant was the vehicle's registered owner.
5. The Respondents pleaded that the deceased was aged 30 years and worked as an Early Childhood Development Education teacher. She was survived by her husband, the 1st Respondent, and seven children. Three of the children were minors, while the other four, although adults, were still in secondary school and were not self-supporting.
6. The Appellant entered appearance and filed a statement of defence dated 15th October 2022. It denied negligence and, in the alternative, attributed contributory or sole negligence to the deceased. The Appellant did not call any witness at the trial.
7. The Respondents called three witnesses: PW1, No. 83155 Corporal Jefferson Munyiki, a traffic police officer attached to Kendu Bay Police Station, who produced the police abstract; PW2, Daniel Onyango Akumu, the deceased's husband and the 1st Respondent; and PW3, Marceline Awuor Oluoch, an eyewitness who was at Pala Market when the accident occurred.
C. The trial court's judgment
8. On liability, the trial court found, on the uncontroverted evidence of PW1 and PW3, that the Appellant was wholly liable for the accident. That finding is not challenged in this appeal.
9. On quantum, the trial court made the following awards:
Pain and suffering
Kshs. 30,000
Loss of expectation of life
Kshs. 100,000
Loss of dependency (17,000 x 12 x 30 x 2/3)
Kshs. 4,080,000
Special damages
Kshs. 185,000
TOTAL
Kshs. 4,395,000
D. The appeal
10. Aggrieved by the judgment, the Appellant filed a memorandum of appeal dated 16th March 2024. The Appellant contends that the learned trial magistrate:
(a) grossly misdirected himself by treating the evidence and submissions on quantum superficially and consequently reached the wrong conclusion;
(b) ignored the principles governing the assessment of damages and the relevant authorities cited in the Appellant's written submissions;
(c) proceeded on wrong principles in assessing damages and failed to apply the applicable precedents and tenets of law;
(d) awarded damages that were so inordinately high as to represent an entirely erroneous estimate; and
(e) failed to evaluate adequately the evidence and exhibits tendered on quantum and thereby reached a decision that is unsustainable in law.
E. The parties' submissions
11. The Appellant submitted that Kshs. 10,000 would adequately compensate pain and suffering because the deceased died at the scene, and that Kshs. 80,000 would be adequate for loss of expectation of life. It further argued that the multiplicand for loss of dependency should have been the proved contractual salary of Kshs. 5,000 per month, rather than the pleaded but unproved figure of Kshs. 30,000 or the trial court's unexplained figure of Kshs. 17,000.
12. The Appellant also proposed a multiplier of 13 years and a dependency ratio of one-third. It argued that the Respondents had not produced birth or marriage certificates for the alleged dependants. It further submitted that the special damages should have been rejected because the receipts were unstamped and were not generated through an Electronic Tax Register. Finally, it contended that the awards under the Law Reform Act should be deducted from the award under the Fatal Accidents Act to avoid double compensation.
13. The Respondents supported the trial court's award. They submitted that the multiplier approach was properly applied; that a multiplicand of Kshs. 17,000, or alternatively a global award of Kshs. 3,000,000, was justified despite the absence of documentary proof of the pleaded monthly salary of Kshs. 30,000; and that a dependency ratio of two-thirds was warranted by the size of the deceased's family. They also maintained that special damages of Kshs. 185,000 were specifically pleaded and strictly proved.
F. Duty of the Court and issues for determination
14. As a first appellate court, this Court must reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. See Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
15. An appellate court will interfere with an award of damages only where the trial court acted on a wrong principle, took into account an irrelevant factor, omitted a relevant factor, or made an award that is so inordinately high or low as to represent an entirely erroneous estimate. See Kemfro Africa Ltd t/a Meru Express Service & Another v A. M. Lubia & Another [1982-1988] 1 KAR 727.
16. Since liability is not in issue, the following questions arise for determination:
(a) whether the award for pain and suffering was excessive;
(b) whether the award for loss of expectation of life should stand;
(c) whether the award for loss of dependency proceeded on a wrong principle or was inordinately high; and
(d) whether the award of special damages was properly made.
G. Analysis and determination
(i) Pain and suffering
17. Damages under this head compensate for the pain and suffering endured by the deceased between injury and death. The award ordinarily depends on the period for which the deceased remained alive and the nature of the injuries sustained. In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] KEHC 3063 (KLR), the Court recognised a range of Kshs. 10,000 to Kshs. 100,000, with higher awards being appropriate where death was not immediate.
18. The deceased died at the scene. The award of Kshs. 30,000 nevertheless falls within the accepted range and cannot be said to be so inordinately high as to amount to an erroneous estimate. I therefore decline to interfere with it.
(ii) Loss of expectation of life
19. The conventional award for loss of expectation of life is Kshs. 100,000. That is also the amount reflected in the trial court's final disposition. I find no basis for interference and affirm the award of Kshs. 100,000.
(iii) Loss of dependency
20. The first question concerns the multiplicand. The trial court adopted Kshs. 17,000 per month, a figure materially below the pleaded and oral evidence of Kshs. 30,000. The judgment referred generally to a minimum wage but did not identify the applicable wage order, occupation or locality.
21. The evidence included an expired contract showing a monthly salary of Kshs. 5,000 in 2018. That historical figure could not, without more, establish the deceased's earnings at the date of her death in 2022. Conversely, the alleged monthly earnings of Kshs. 30,000 were unsupported by documentary evidence. Although documentary proof is not the only means by which earnings may be established, the Court must assess the cogency of the evidence placed before it. See Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR.
22. The evidence was that the deceased taught, farmed and traded in charcoal, but no educational certificates or reliable evidence of her earnings from those activities was produced. In those circumstances, it is appropriate to apply the statutory minimum wage for a general worker. The minimum monthly wage applicable in 2022 to areas other than cities and former municipalities was Kshs. 8,109.90. I therefore find that the multiplicand of Kshs. 17,000 was excessive and substitute it with Kshs. 8,109.90.
23. The trial court adopted a multiplier of 30 years, representing the period from the deceased's age of 30 years to the conventional retirement age of 60 years. In selecting a multiplier, a court must consider the deceased's age, the vicissitudes of life, the nature of the occupation and the period during which the deceased would probably have remained economically active. The assessment remains an exercise of judicial discretion. See Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another [2014] eKLR.
24. I have also considered Francis Muga & Another v Rachel Asiko Malanda & Another (suing as administrators and personal representatives of the Estate of Joseph Okanga Njeri) [2019] KEHC 1743 (KLR). In the circumstances of this case, the multiplier of 30 years is not so excessive or unreasonable as to justify appellate interference. I affirm it.
25. As to the dependency ratio, the deceased was survived by her husband and seven children. PW2 testified that three of the children were minors and that the four adult children were still in secondary school and were not self-supporting. In view of that evidence and the size of the household, I am not persuaded that the trial court misdirected itself by adopting a dependency ratio of two-thirds. I affirm that ratio.
26. Loss of dependency is therefore assessed as follows:
Kshs. 8,109.90 x 12 x 30 x 2/3
Kshs. 1,946,376
27. The Appellant urged the Court to deduct the awards for pain and suffering and loss of expectation of life from the award for loss of dependency on the ground of double compensation. The submission misconceives the principle. The court is required to take an award under the Law Reform Act into account; it is not required to deduct that award arithmetically from damages under the Fatal Accidents Act. See Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR). I therefore decline to make the proposed deduction.
(iv) Special damages
28. It is trite law that Special damages must be specifically pleaded and strictly proved. At paragraph 7 of the plaint, the Respondents pleaded and itemised special damages of Kshs. 185,000, comprising expenses for the coffin, post-mortem examination and hospital charges, other funeral purchases, transport and professional fees incurred in obtaining the limited grant. Receipts supporting the claim were produced by consent and without objection. The Appellant called no evidence.
29. The Appellant contends for the first time on appeal that the receipts were unstamped and were not generated through an Electronic Tax Register. An objection to the mode of proof or admissibility of a document should ordinarily be made when the document is tendered at the trial. Further, reasonable funeral expenses may be awarded even where every item is not supported by a receipt. See Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR. I find no basis for disturbing the award of Kshs. 185,000 and affirm it.
H. Conclusion and orders
30. The awards are therefore reassessed as follows:
Pain and suffering
Kshs. 30,000
Loss of expectation of life
Kshs. 100,000
Loss of dependency
Kshs. 1,946,376
Special damages
Kshs. 185,000
TOTAL
Kshs. 2,261,376
31. Liability was assessed, and remains, at 100% against the Appellant. No further apportionment is therefore required.
32. The appeal partially succeeds. The trial court's findings on liability, the multiplier of 30 years and the dependency ratio of two-thirds are affirmed.
33. The trial court's judgment on quantum is set aside and substituted with judgment for the Respondents against the Appellant in the sum of Kshs. 2,261,376, together with costs of the suit and interest at court rates from the date of the judgment of the subordinate court until payment in full.
34. As the Appellant has partially succeeded in the appeal, it is awarded one-half of the costs of the appeal. The trial court's order on the costs of the suit is undisturbed.
It is so ordered.
T. A. ODERA
JUDGE
9TH SEPTEMBER 2026
DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON 9TH SEPTEMBER 2026 IN THE PRESENCE OF P. KUGAT, COURT ASSISTANT; OTIENO NJOGA FOR THE APPELLANT; AND MISS KUKE EVERLYNE FOR THE RESPONDENTS.
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