(Being an Appeal from the judgment of Hon. J. Mutimba, delivered on 22nd day of December 2023 in Msambweni Magistrates Court Civil Suit No. E054 of 2023)
1. The appellants bring this appeal through a memorandum of appeal dated 15/1/2024. The record of appeal was filed on 30/5/2024. This appeal is restricted to the award of general damages under the head of loss of dependency. It arises from the judgment of the trial court dated 22/12/2023 in a suit by the appellants against the respondents claiming compensation under the Law Reform Act and the Fatal Accidents Act in general and special damages for fatal injuries sustained by Samuel Muli Mwai arising out of a road traffic accident on 12/11/2022.
2. The case was not defended. It proceeded by way of formal proof. The appellants called one witness, PW 1, Moris Nzyoka Mulu, the 2nd plaintiff in the case. He adopted his witness statement and also made oral testimony.
3. After PW 1 had testified, learned counsel for the plaintiff’s informed the court that he had one more witness present but her evidence was similar to that of PW 1 and if the court could adopt her witness statement as her evidence. The trial court recorded that the witness written statement is adopted as evidence. That was an unconventional way of recording evidence. The court should have asked that the witness takes the witness stand and formally adopts her written witness statement upon being duly sworn or affirmed.
4. It was the appellant’s case through their pleadings, witness statements adopted as evidence in court and testimony of Moris Nzyoka Mulu (PW 1) in court that the deceased who was a pedestrian along Likoni-Ukunda road at Kona Beach area on 12/11/2022 at around 05:00 Hours was knocked down by the respondent’s motor vehicle registration number KCN 613S causing him fatal injuries to which he succumbed on 18/11/2022 while undergoing treatment at Msambweni hospital.
5. The evidence was that the deceased was aged 54 years at the time of accident. He had a wife and six children, all adults. He was in sound health and earning a living as a “boda boda” or motorcycle taxi operator and fending for the family. The deceased’s income was however not disclosed either in the pleadings, the witness statements or the witness testimony in court.
6. After trial the learned trial magistrate found on the issue of dependency that the same had not been proved and awarded nil damages for loss of dependency. The learned magistrate found that the appellants had not provided documentary evidence such as certificate of marriage or chief’s letter for Ruth Nduku Mateli, the 1st appellant’s marriage to the deceased as well as certificates of birth or chief’s letter to prove paternity of the children by the deceased. The learned magistrate relied on the case of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) where the High Court upon considering section 4(1) of the Fatal Accidents Act (Cap. 32) Laws of Kenya determining a similar issue said that in order to prove dependency, the plaintiff, if a wife of the deceased must prove marriage to the deceased either by customary marriage or by production of marriage certificate or by any other acceptable manner, by a letter from the Chief confirming that the plaintiff is a wife of the deceased and that the children are children of the deceased in the absence of birth of certificates or any other documents such as baptismal certificates or school certificates to confirm the same. The High Court found that in the absence of such evidence dependency had not been proved, and therefore no award on loss of dependency could be made.
7. The appellant was dissatisfied with that decision and now appeals to this court on the following grounds:
a. the learned magistrate erred in law and in fact by holding that the appellants did not discharge the burden of proof or prove their case on a balance of probabilities with respect to loss of dependency.
b. the learned magistrate erred in law and in fact in delivering a judgment in total disregard of provisions of law.
c. the learned magistrate erred in law and in fact by using wrong principles in law on the assessment of damages.
d. the trial court erred in law and in fact by failing to appreciate the law and authorities cited by the appellant.
e. the trial court erred in considering facts largely beneficial to the respondent over facts beneficial to the appellant.
f. the trial court erred in failing to apply the cogent facts raised by the appellants pleadings and submissions on the face of the court’s record.
g. the learned magistrate failed to properly and/or at all evaluate the evidence on record cumulatively and hence reached a wrong decision on loss of dependency in view of the evidence on record.
h. in all the circumstances of the case, the court failed to do justice.
8. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 22/12/2023 with respect to loss of dependency and substitute the same with a determination of its own.
9. The appeal was canvassed by way of written submissions filed by learned counsel for the appellant.
10. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
11. Learned counsel for the appellant raised the following issues for this court’s determination:
a. whether the plaintiff discharged the burden of proving dependency.
b. whether the learned magistrate failed to properly and/or at all evaluate the evidence on record cumulatively and hence reached a wrong decision on dependency.
c. whether in the circumstances the court failed to do justice.
Analysis and Determination
12. The issues raised by learned counsel for the appellant can be summed up into one, that is, whether the learned trial magistrate was right in dismissing the appellant’s claim for loss of dependency considering the evidence tendered.
13. The issue of proof of marriage and paternity for purposes of dependency under the Fatal Accident’s Act has received varied opinions from the High Court. So far, I have not found a decision on the issue from the Court of Appeal. Some High Courts find that the issue has to be strictly proved by production of documentary evidence while others are flexible to find that where the plaintiff’s oral evidence is not challenged the same is sufficient.
14. In the first line of cases are for instance the one relied on by the learned trial magistrate of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) and Cherotich v Anzal Communications Ltd [2024] KEHC 2175 (KLR) where the courts found that dependency had not been proved due to lack of documentary evidence.
15. The other line of authorities has the cases of Esther Chemutai Kibet (Suing as the Legal Representative of the Estate of the Late Joseph Malakwen Bett) v Carbacid (C02) Limited & another [2017] KEHC 7474 (KLR) where the cases of Agnes Bosibori Ogega-vs- Tea Research Foundation & Another (2016) e KLR, and Ann Wangare Mwombe & 2 Others -vs- Peter Mukiri Gateri (2014) eKLR which followed the reasoning that unchallenged oral evidence of marriage and paternity is sufficient to prove dependency. More recently, the High Court following the same reasoning in Nation Media Group Limited v Thuo & another (Suing as the Administrators of the Estate of Josephat Nduati Kungu – Deceased) [2024] KEHC 4058 (KLR) stated thus:
“In the absence of any explanation by the Magistrate, I am at a loss as to how she arrived at her concluding statement that the deceased was unmarried. To me, my independent review of the evidence leads me to the finding that sufficient evidence was presented to support a finding that, apart from his parents, the deceased also left behind a wife and a son and that all four qualified as his “dependents” within the meaning envisioned under Section 4 of the Fatal Accidents Act earlier cited. With due respect, and unless the Appellant’s Counsel does not live in this very society, his submission that evidence of marriage was not proved simply because no marriage certificate was produced cannot be a serious one. The same goes to the allegation that paternity of the 1-year-old son was not proved simply because no birth certificate or notification of birth were produced. In any event, it must always be recalled that in civil cases, unlike in criminal proceedings, proof is not on a beyond reasonable doubt basis, but on the basis of balance of probabilities.”
16. The learned trial magistrate relied on the reasoning in the former line of cases while the learned counsel for the appellants herein has brought up the reasoning in the later line of cases. The issue could not have been envisaged by learned counsel at the trial and so they did not make the authorities available to the learned trial magistrate. Perhaps learned counsel should have filed a review application before the trial court and brought the later authorities to its attention.
17. I am persuaded to follow the later school of reasoning for the reason that in civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
18. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
19. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
20. The appellants presented evidence by way of witness statements and testimony that the 1st appellant was married to the deceased and that the he had six children whose names were provided all who were depended on him, was not challenged. As was held in the Esther Chemutai Kibet case I am persuaded to hold that the 1st appellant was a wife of the deceased and the six children stated in the plaint and in her written statement are dependents, as envisaged under Section 4 of the Fatal Accidents Act, and therefore entitled to an award of damages for loss of dependency.
21. I therefore, with respect, set aside the finding of the learned trial magistrate on that issue.
22. Learned counsel for the appellants has urged this court to make its on assessment of damages for loss of dependency. That would have been appropriate if the trial court had not done so. Even upon dismissing the claim for loss of dependency, the learned trial magistrate all the same assessed the damages she would have awarded. I agree with her. That was the correct approach.
23. The learned magistrate considered the submissions by learned counsel for the appellants to use the multiplier approach and said she would have adopted the global sum approach given that there was no proof of the deceased’s income and awarded a sum of KShs 600,000/=. This approach and the proposed award are not challenged by the appellant. This court will not interfere.
24. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
25. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
26. Consequently, I find that this is not a suitable case for this Court to exercise its discretion and interfere with the trial court’s proposed finding on damages for loss of dependency for the reasons that the quantum that was proposed to be awarded was not so manifestly high or low in view of similar cases so as to represent an erroneous estimate. Although the learned magistrate did not indicate the cases she relied upon, her estimate was not out of touch with reality. In the case of Mbidyo v Wambua & another (Suing as the Personal Representatives of the Estate of Leonard Wambua Nzioka) [2023] KEHC 23569 (KLR) the High Court on appeal set aside and substituted the judgment of the trial court with the sum of Kshs 700,000/= as a global award for loss of dependency where from the evidence it was discernible that the deceased, a boda boda rider who income was not proved and was aged 54 years at the time of his death. In that case, the High Court referred to the following cases where similar awards were made:
a. Moses Maina Waweru v. Esther Wanjiru Githae (Suing as the Personal Representative of the Estate of the Late David Githae Kiririo Taiti [2022] eKLR where the appellate court reduced a global award of 2 million to 800,000/= for a deceased who was 68 years old and was survived by a widow and adult children;
b. Dora Mwawandu Samuel (Suing on her behalf and on the behalf of the Estate of Samuel Muweliani Jumamosi (Deceased) v. Shabir M. Hassan [2021] eKLR where the court awarded a global sum of Kshs. 400,000/= for a deceased farmer who was 59-year-old and was survived by 11 dependent children.
c. Rishi Hauliers Limited v. Josiah Boundi Onyancha [2015] eKLR the appellate court reduced a global award of kshs 800,000/= to 500,000/= for a deceased who was 50 years old and was survived by 5 children under the age of 18 years.
27. Consequently, the trial court’s proposed award of KShs. 600,000/= in damages for loss of dependency is affirmed. For clarity the awards for pain and suffering KShs 100,000/=, loss of expectation of life KShs 100,000/= and special damages KShs 85,550/= which were not challenged shall remain as awarded.
28. The total award to the appellant is therefore KShs 885,550/=.
29. The appellants shall bear their own costs of the appeal.
30. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 18th of December 2024.
ANDAYI W. F.
JUDGE
In the presence of:
No appearance for Appellants.
No appearance for the Respondent.
Etropia Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
1. The appellants bring this appeal through a memorandum of appeal dated 15/1/2024. The record of appeal was filed on 30/5/2024. This appeal is restricted to the award of general damages under the head of loss of dependency. It arises from the judgment of the trial court dated 22/12/2023 in a suit by the appellants against the respondents claiming compensation under the Law Reform Act and the Fatal Accidents Act in general and special damages for fatal injuries sustained by Samuel Muli Mwai arising out of a road traffic accident on 12/11/2022.
2. The case was not defended. It proceeded by way of formal proof. The appellants called one witness, PW 1, Moris Nzyoka Mulu, the 2nd plaintiff in the case. He adopted his witness statement and also made oral testimony.
3. After PW 1 had testified, learned counsel for the plaintiff’s informed the court that he had one more witness present but her evidence was similar to that of PW 1 and if the court could adopt her witness statement as her evidence. The trial court recorded that the witness written statement is adopted as evidence. That was an unconventional way of recording evidence. The court should have asked that the witness takes the witness stand and formally adopts her written witness statement upon being duly sworn or affirmed.
4. It was the appellant’s case through their pleadings, witness statements adopted as evidence in court and testimony of Moris Nzyoka Mulu (PW 1) in court that the deceased who was a pedestrian along Likoni-Ukunda road at Kona Beach area on 12/11/2022 at around 05:00 Hours was knocked down by the respondent’s motor vehicle registration number KCN 613S causing him fatal injuries to which he succumbed on 18/11/2022 while undergoing treatment at Msambweni hospital.
5. The evidence was that the deceased was aged 54 years at the time of accident. He had a wife and six children, all adults. He was in sound health and earning a living as a “boda boda” or motorcycle taxi operator and fending for the family. The deceased’s income was however not disclosed either in the pleadings, the witness statements or the witness testimony in court.
6. After trial the learned trial magistrate found on the issue of dependency that the same had not been proved and awarded nil damages for loss of dependency. The learned magistrate found that the appellants had not provided documentary evidence such as certificate of marriage or chief’s letter for Ruth Nduku Mateli, the 1st appellant’s marriage to the deceased as well as certificates of birth or chief’s letter to prove paternity of the children by the deceased. The learned magistrate relied on the case of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) where the High Court upon considering section 4(1) of the Fatal Accidents Act (Cap. 32) Laws of Kenya determining a similar issue said that in order to prove dependency, the plaintiff, if a wife of the deceased must prove marriage to the deceased either by customary marriage or by production of marriage certificate or by any other acceptable manner, by a letter from the Chief confirming that the plaintiff is a wife of the deceased and that the children are children of the deceased in the absence of birth of certificates or any other documents such as baptismal certificates or school certificates to confirm the same. The High Court found that in the absence of such evidence dependency had not been proved, and therefore no award on loss of dependency could be made.
7. The appellant was dissatisfied with that decision and now appeals to this court on the following grounds:
a. the learned magistrate erred in law and in fact by holding that the appellants did not discharge the burden of proof or prove their case on a balance of probabilities with respect to loss of dependency.
b. the learned magistrate erred in law and in fact in delivering a judgment in total disregard of provisions of law.
c. the learned magistrate erred in law and in fact by using wrong principles in law on the assessment of damages.
d. the trial court erred in law and in fact by failing to appreciate the law and authorities cited by the appellant.
e. the trial court erred in considering facts largely beneficial to the respondent over facts beneficial to the appellant.
f. the trial court erred in failing to apply the cogent facts raised by the appellants pleadings and submissions on the face of the court’s record.
g. the learned magistrate failed to properly and/or at all evaluate the evidence on record cumulatively and hence reached a wrong decision on loss of dependency in view of the evidence on record.
h. in all the circumstances of the case, the court failed to do justice.
8. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 22/12/2023 with respect to loss of dependency and substitute the same with a determination of its own.
9. The appeal was canvassed by way of written submissions filed by learned counsel for the appellant.
10. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
11. Learned counsel for the appellant raised the following issues for this court’s determination:
a. whether the plaintiff discharged the burden of proving dependency.
b. whether the learned magistrate failed to properly and/or at all evaluate the evidence on record cumulatively and hence reached a wrong decision on dependency.
c. whether in the circumstances the court failed to do justice.
Analysis and Determination
12. The issues raised by learned counsel for the appellant can be summed up into one, that is, whether the learned trial magistrate was right in dismissing the appellant’s claim for loss of dependency considering the evidence tendered.
13. The issue of proof of marriage and paternity for purposes of dependency under the Fatal Accident’s Act has received varied opinions from the High Court. So far, I have not found a decision on the issue from the Court of Appeal. Some High Courts find that the issue has to be strictly proved by production of documentary evidence while others are flexible to find that where the plaintiff’s oral evidence is not challenged the same is sufficient.
14. In the first line of cases are for instance the one relied on by the learned trial magistrate of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) and Cherotich v Anzal Communications Ltd [2024] KEHC 2175 (KLR) where the courts found that dependency had not been proved due to lack of documentary evidence.
15. The other line of authorities has the cases of Esther Chemutai Kibet (Suing as the Legal Representative of the Estate of the Late Joseph Malakwen Bett) v Carbacid (C02) Limited & another [2017] KEHC 7474 (KLR) where the cases of Agnes Bosibori Ogega-vs- Tea Research Foundation & Another (2016) e KLR, and Ann Wangare Mwombe & 2 Others -vs- Peter Mukiri Gateri (2014) eKLR which followed the reasoning that unchallenged oral evidence of marriage and paternity is sufficient to prove dependency. More recently, the High Court following the same reasoning in Nation Media Group Limited v Thuo & another (Suing as the Administrators of the Estate of Josephat Nduati Kungu – Deceased) [2024] KEHC 4058 (KLR) stated thus:
“In the absence of any explanation by the Magistrate, I am at a loss as to how she arrived at her concluding statement that the deceased was unmarried. To me, my independent review of the evidence leads me to the finding that sufficient evidence was presented to support a finding that, apart from his parents, the deceased also left behind a wife and a son and that all four qualified as his “dependents” within the meaning envisioned under Section 4 of the Fatal Accidents Act earlier cited. With due respect, and unless the Appellant’s Counsel does not live in this very society, his submission that evidence of marriage was not proved simply because no marriage certificate was produced cannot be a serious one. The same goes to the allegation that paternity of the 1-year-old son was not proved simply because no birth certificate or notification of birth were produced. In any event, it must always be recalled that in civil cases, unlike in criminal proceedings, proof is not on a beyond reasonable doubt basis, but on the basis of balance of probabilities.”
16. The learned trial magistrate relied on the reasoning in the former line of cases while the learned counsel for the appellants herein has brought up the reasoning in the later line of cases. The issue could not have been envisaged by learned counsel at the trial and so they did not make the authorities available to the learned trial magistrate. Perhaps learned counsel should have filed a review application before the trial court and brought the later authorities to its attention.
17. I am persuaded to follow the later school of reasoning for the reason that in civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
18. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
19. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
20. The appellants presented evidence by way of witness statements and testimony that the 1st appellant was married to the deceased and that the he had six children whose names were provided all who were depended on him, was not challenged. As was held in the Esther Chemutai Kibet case I am persuaded to hold that the 1st appellant was a wife of the deceased and the six children stated in the plaint and in her written statement are dependents, as envisaged under Section 4 of the Fatal Accidents Act, and therefore entitled to an award of damages for loss of dependency.
21. I therefore, with respect, set aside the finding of the learned trial magistrate on that issue.
22. Learned counsel for the appellants has urged this court to make its on assessment of damages for loss of dependency. That would have been appropriate if the trial court had not done so. Even upon dismissing the claim for loss of dependency, the learned trial magistrate all the same assessed the damages she would have awarded. I agree with her. That was the correct approach.
23. The learned magistrate considered the submissions by learned counsel for the appellants to use the multiplier approach and said she would have adopted the global sum approach given that there was no proof of the deceased’s income and awarded a sum of KShs 600,000/=. This approach and the proposed award are not challenged by the appellant. This court will not interfere.
24. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
25. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
26. Consequently, I find that this is not a suitable case for this Court to exercise its discretion and interfere with the trial court’s proposed finding on damages for loss of dependency for the reasons that the quantum that was proposed to be awarded was not so manifestly high or low in view of similar cases so as to represent an erroneous estimate. Although the learned magistrate did not indicate the cases she relied upon, her estimate was not out of touch with reality. In the case of Mbidyo v Wambua & another (Suing as the Personal Representatives of the Estate of Leonard Wambua Nzioka) [2023] KEHC 23569 (KLR) the High Court on appeal set aside and substituted the judgment of the trial court with the sum of Kshs 700,000/= as a global award for loss of dependency where from the evidence it was discernible that the deceased, a boda boda rider who income was not proved and was aged 54 years at the time of his death. In that case, the High Court referred to the following cases where similar awards were made:
a. Moses Maina Waweru v. Esther Wanjiru Githae (Suing as the Personal Representative of the Estate of the Late David Githae Kiririo Taiti [2022] eKLR where the appellate court reduced a global award of 2 million to 800,000/= for a deceased who was 68 years old and was survived by a widow and adult children;
b. Dora Mwawandu Samuel (Suing on her behalf and on the behalf of the Estate of Samuel Muweliani Jumamosi (Deceased) v. Shabir M. Hassan [2021] eKLR where the court awarded a global sum of Kshs. 400,000/= for a deceased farmer who was 59-year-old and was survived by 11 dependent children.
c. Rishi Hauliers Limited v. Josiah Boundi Onyancha [2015] eKLR the appellate court reduced a global award of kshs 800,000/= to 500,000/= for a deceased who was 50 years old and was survived by 5 children under the age of 18 years.
27. Consequently, the trial court’s proposed award of KShs. 600,000/= in damages for loss of dependency is affirmed. For clarity the awards for pain and suffering KShs 100,000/=, loss of expectation of life KShs 100,000/= and special damages KShs 85,550/= which were not challenged shall remain as awarded.
28. The total award to the appellant is therefore KShs 885,550/=.
29. The appellants shall bear their own costs of the appeal.
30. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 18th of December 2024.
ANDAYI W. F.
JUDGE
In the presence of:
No appearance for Appellants.
No appearance for the Respondent.
Etropia Court Assistant.
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