JUDGEMENT
1. This Appeal arises from the judgment and decree delivered on the 13th day of July, 2023, by Hon. M. W. Kurumbu, Principal Magistrate, in Thika Chief Magistrate’s Court Civil Case No. 682 of 2021.
2. In the said judgment, the Learned Trial Magistrate entered judgment in favour of the Plaintiffs (now the Respondents) as against the Defendants (now the Appellants), and awarded damages under the following head:
Loss of dependency – Kshs 2,040,000/=
Loss of expectation of life – Kshs 100,000/=
Pain and suffering – Kshs 50,000/=
Special damages – Kshs 194,245/=
Subtotal – Kshs 2,384,245/=
Take away 20% contribution – Kshs 476,849/=
Award Payable – Kshs 1,907,396/=
3. The Appellant was dissatisfied with the judgment on quantum and consequently lodged the present appeal by way of a Memorandum of Appeal dated 4th August 2024. The Appeal is premised on the following four (4) grounds:
a) THAT the learned trial magistrate erred in law and in fact in the manner that she assessed damages under the Fatal Accidents Act.
b) THAT the learned trial magistrate erred in law and in fact in making an award of Kshs. 2,040,000/ = as Loss of Dependency despite the Respondents failing to prove dependency as required by Section 4 (1) of the Fatal Accidents Act.
c) THAT the learned trial magistrate erred in law and fact in awarding the estate of the deceased damages on loss of dependency which were excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased and incongruent with the evidence that had been led and the relevant law governing assessment of damages for loss of dependency.
d) THAT the learned trial magistrate erred in law and in fact in failing to consider the Appellants’ submissions and the authorities that had been tendered and in so doing she arrived at an erroneous assessment of Loss of Dependency.
4. The Appeal was scheduled under the Rapid Results Initiative (RRI) and directions were issued for the parties to file written submissions. Upon compliance by both parties, the matter was reserved for judgment. This Court has duly considered the written submissions filed by the parties — namely, the Appellants’ submissions dated 23rd August 2024 and the Respondent’s submissions dated 3rd September 2024 — together with the authorities cited therein. The Court commends learned counsel for their diligence and industry in the research and presentation of their respective cases. The Court also apologises to the parties due to the delay in the delivery of this decision. The delay is regrettable and was not intended. It was caused by pressure of work and exigencies of life.
Brief Facts
5. The Plaintiffs, now the Respondents, filed the suit on behalf of the estate of Cecilia Mbula Masila (deceased), who tragically lost her life in a road traffic accident on or about 2nd September 2019. At the time of the accident, the deceased was lawfully and carefully traveling as a fare-paying passenger aboard motor vehicle registration number KCN 856K along the Thika–Nairobi Superhighway. During the journey, motor vehicle registration number KBP 627Q, which was allegedly being driven in a negligent and/or careless manner, violently collided with the vehicle in which the deceased was traveling. As a result of the collision, Cecilia Mbula Masila sustained fatal injuries and passed away.
6. The Plaintiffs, now the Respondents, claimed that the accident was solely caused by the negligence of the driver of KBP 627Q. The Plaintiffs, now the Respondents, detailed several particulars of negligence, including: driving at an excessively high speed, driving without due care and attention, operating the vehicle in a dangerous and reckless manner with no regard for other road users (particularly the deceased), and violating traffic rules. Additionally, the Plaintiffs, now the Respondents, alleged that the driver failed to take reasonable steps to avoid the accident, such as slowing down, stopping, or swerving. It was also claimed that the vehicle was defective, and that its condition contributed to the occurrence of the accident. They claimed damages under the Law Reform Act Cap 26 and under the Fatal Accidents Act Cap 32 of the Laws of Kenya.
7. The Appellants in their statement of defense dated the 20th January 2022 denied liability for the accident that led to the death of Cecilia Mbula Masila. They contended that the accident was either solely caused by or was substantially contributed to by the negligence of the deceased herself, or the driver of motor vehicle KCN 856K, in which the deceased was a passenger. The Appellants listed various particulars of negligence attributed to both the deceased and the driver of the matatu, including: failure to use seat belts, failure to adhere to adhere to traffic regulations on passenger safety, knowingly boarding a public service vehicle as an excess passenger and standing in a moving motor vehicle.
8. The Appellants also faulted the driver of motor vehicle KBP 627Q, claiming he acted negligently by failing to take evasive measures, driving recklessly, and using a defective vehicle. They argued that, in the event they were found liable, they would seek to initiate Third Party proceedings against the driver and/or owner of motor vehicle KCN 856K.
9. Furthermore, the Appellants relied on statutory provisions under the Traffic Act, Highway Code, and common law doctrines such as volenti non fit injuria (voluntary assumption of risk) and violent non fit injuria to deny liability. They emphasized that the deceased either voluntarily assumed the risk or contributed to the accident, and therefore, they should not bear responsibility.
10. Finally, the Appellants asserted that the suit as filed disclosed no reasonable cause of action, and that the Plaintiffs failed to provide the particulars of dependency and loss. They therefore sought to have the suit struck out for being fatally defective, or alternatively, to be granted leave to enjoin a Third Party for contribution or indemnity.
11. The parties herein recorded a consent on liability on 6th October 2022, apportioning liability at the ratio of 80:20 in favour of the Respondents as against the Appellants. Consequently, the only issue left for determination before the Trial Court was that of quantum. The Learned Trial Magistrate proceeded to award the sum of Kshs. 2,040,000/= under the head of loss of dependency. The Appellants contend that the said award was manifestly excessive in the circumstances and not supported by the evidence on record, thereby necessitating the present appeal.
Issues For Determination
12. From the foregoing analysis of the respective cases advanced by the parties, the singular issue that arise for determination in this Appeal are as follows:
a) Whether the claim for loss of dependency was sufficiently proved.
Analysis
13. This being a first appeal, this Honourable Court is under a duty to re-evaluate and reassess the evidence afresh and draw its own independent conclusions. In doing so, the Court must, however, bear in mind that the Trial Court had the distinct advantage of seeing and hearing the witnesses, and thus was better placed to assess their demeanour and credibility.
14. The applicable legal principle was succinctly stated in Mbogo and Another v Shah [1968] EA 93, where the Court held:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
15. The duty of a first appellate court was definitively settled in the locus classicus case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal (per Clement De Lestang, V-P, Duffus and Law JJ.A) laid down the guiding principle in the following oft-cited passage:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
16. In undertaking its duty, this Court is mindful of the fact that it neither saw nor heard the witnesses who testified before the Trial Court. That advantage rested solely with the Trial Court, which was best placed to assess the demeanour and credibility of the witnesses. However, with respect to documentary evidence, the Appellate Court is in as good a position as the Trial Court to evaluate such materials, since documents speak for themselves and no party may import into them matters that are extrinsic to their contents.
17. The duty of a first appellate court was further restated by the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336, where it held:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
18. The same principle was echoed in the case of Peters v Sunday Post Limited [1958] EA 424, where the Court held as follows:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. The principles governing the Appellate Court’s duty in matters relating to the assessment of damages were authoritatively settled in the case of Butt v Khan, Civil Appeal No. 43 of 1983 (1984) KLR, where the Court of Appeal held as follows:
“In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”
20. In determining whether to interfere with the quantum of damages awarded by the Trial Court, this Court is mindful of the limits of its appellate jurisdiction in matters of discretion. The assessment of damages is an exercise of judicial discretion, and appellate intervention is only warranted where it is shown that the Trial Court acted on wrong principles, misapprehended the evidence, or made an award that is so inordinately high or low as to amount to an erroneous estimate of the loss suffered. The Court is guided by the holding of the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982–88] KAR 5, where the Court stated:
“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 arrived at a figure which was either inordinately high or low”
21. The Court of Appeal succinctly restated the principles governing Appellate interference with awards of damages in Kemfro Africa Ltd t/a Meru Express Service & Another v A. M. Lubia & Another [1987] KLR 30, where it held as follows:
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.”
22. The foregoing principles were aptly restated by Sir Kenneth O’Connor, P., in reaffirming the common law position earlier enunciated by the Privy Council in the case of Nance v British Columbia Electric Railway Co. Ltd [1951] AC 601, and subsequently cited with approval in Henry H Ilanga v M Manyoka [1961] EA 705, 713 where the learned Judge expressed himself as follows with regard to appellate interference with awards of damages:
“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”
23. It is trite law that for this Court to interfere with the award of damages made by the Trial Court, it is not sufficient to merely demonstrate that the award is high or that had this Court been the Trial Court, it might have arrived at a different figure.
24. The Appellate Court’s duty in reviewing an award on quantum is threefold:
a) To ascertain whether the Trial Court took into account irrelevant factors or failed to consider relevant ones;
b) To determine whether the award is so inordinately high or low as to amount to a wholly erroneous estimate of the loss suffered; and
c) To evaluate whether the award is unsupported by, or inconsistent with, the evidence on record.
25. In undertaking this task, the Court must also consider comparable awards for similar injuries or losses, take into account the prevailing economic conditions, and ensure consistency with established legal principles on the assessment of damages. Ultimately, for an Appellate Court to interfere with an award, it must be demonstrated that the Trial Court’s discretion was exercised injudiciously. It is not enough to merely show that the award appears high or low, or that the Appellate Court might have awarded a different sum had it been seized of the matter at first instance.
Pain and Suffering
26. The Death Certificate produced in evidence confirms that the Deceased died on the same day the accident occurred. It is well established in law that where death occurs instantaneously or within a very short time after the accident, the award under the head of pain and suffering ought to be on the lower end of the scale.
27. In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR, where the deceased died immediately following the accident, the late Hon. Justice David Majanja held as follows:
“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 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 Kshs. 10,000/- to Kshs. 100,000/- over the last 20 years hence I cannot say that that the sum of Kshs. 50,000/- awarded under the head is unreasonable.”
28. The evidence on record confirms that the deceased died on the spot. There is no indication that she endured a prolonged or agonizing death. Accordingly, the Court finds no justification to interfere with the Trial Court’s award of Kshs. 50,000/= under the head of pain and suffering, and therefore upholds the same.
Loss of Expectation of Life
29. On the head of Loss of Expectation of Life, it is now settled that the conventional award is Kshs. 100,000, as affirmed in numerous authorities including Hyder Nthenya Musili & Another v China Wuyi Limited & Another [2017] eKLR. The Court therefore upholds the award of Kshs. 100,000 as granted by the Learned Trial Magistrate under this head.
Loss of dependency
30. An award under Loss of Dependency is made pursuant to the Fatal Accidents Act. The guiding principles in the assessment of such damages were clearly articulated by Ringera J. (as he then was) in Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another – Nairobi HCCC No. 1638 of 1988 (unreported), where the learned judge stated:
“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”
31. With respect to the assessment of damages under the head of loss of dependency, the Court of Appeal in Chunibhai J. Patel & Another v P. F. Hayes & Others [1957] EA 748 at 749 laid down the applicable legal principles as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.
32. Section 4(1) of the Fatal Accident Act Cap 32, Laws of Kenya provides that
4. (1) 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; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:
Provided that not more than one action shall lie for and in respect of the same subject-matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.”
33. In assessing the award for loss of dependency, the Trial Court took into account that the deceased was a businesswoman engaged in the informal food vending trade selling at a Kibanda/Food kiosk—commonly referred to as “Mama Kibanda”. The Court further considered that the deceased was survived by her mother and three children, two of whom were adults—one being a student—while the youngest was a 14-year-old son who, at the material time, was in Class 7. In the absence of documentary proof of daily earnings, the Trial Court accepted a monthly income of Kshs. 15,000 as a reasonable estimate for a person engaged in such economic activity. The Learned Trial Magistrate then adopted a two-thirds (2/3) dependency ratio and applied a multiplier of 17 years, based on the standard retirement age in Kenya of 60 years.
34. This Court is further guided by the decision in Arembe v Fadhalmula & Another (Civil Appeal E116 of 2018) [2023] KEHC 2009 (KLR) (24 February 2023) (Judgment), where the High Court considered the average earnings of informal traders and businesswomen of a similar economic cadre as the deceased. In that decision, the Court stated as follows:
“Further, the court treated the deceased as unemployed. The deceased was not unemployed. She was a business lady in Nakuru. She had a single business permit for which she paid Kshs 4,250/=. The Death certificate indicated that she was a business lady. The deceased could not be said told to have work when she was running a business which was licensed by the county by the County Government of Nakuru. It is however easy to establish her earning. No bank statements were produced or income statements from the business. However, we are guided from the amount of licence fee she paid that she must have had a small business in Nakuru Municipality. She was potentially an employer. From the authorities I have seen as analyzed below, a small business person in Nakuru can earn a net of about 15,000-30,000/=.”
35. The Court in West Build General Contractors Ltd v Njeru (Suing as the Legal Representative and/or Administrator of the Estate of Michael Mutembei Ntwiga – Deceased) (Civil Appeal E025 of 2021) [2023] KEHC 20714 (KLR) (21 July 2023) (Judgment) aptly restated the applicable standard in assessing loss of dependency where formal proof of income is lacking. The Court observed as follows:
“In the impugned judgment, the trial court noted that there was indeed no proof of income that was produced in support of the figure proposed by the Respondent. It thus held that an award of Kshs. 15,000/= as the deceased’s monthly earnings was reasonable. On the deceased’s income, it is true that no proof was tendered to support the claim by the Respondent that the deceased was a butcher. However, it is now trite that it is not always that proof of income must be by production of documents. Makau J in David Kimathi Kaburu -vs- Gerald Mworobia Murungi (Suing as legal representative of the estate of James Mwenda Mworobia (deceased) (2004) eKLR held that;
“The court is alive of the fact that in Kenya Society, that most of the individual’s earnings need not be proved by production of documents such as banking statements or payment vouchers or pay slips. Further to the above with modern technology in whichever payments are to be offered through use of mobile phones or by cash without requirement of payments by cheques........is not necessary to produce documentary proof...””
36. The Court is persuaded by the foregoing authority, and is of the considered view that it is not always necessary to prove earnings through the production of documentary evidence. This is particularly more so where the claimant is engaged in informal or subsistence-level economic activities. In the circumstances of this case, the Court finds that the Trial Court's adoption of a monthly income of Kshs. 15,000 was reasonable and within acceptable judicial discretion.
37. The High Court in Muchiri & Another v Richu & Another (Suing as the Legal Representatives of the Estate of Nicholas Ng’ang’a Gitau – Deceased) (Civil Appeal E081 of 2023) [2024] KEHC 14221 (KLR) (15 November 2024) (Judgment) aptly affirmed this position, holding that:
“The decision by the trial court to use the multiplier approach is purely a discretionary one. Jurisprudence by the courts reveal that either the multiplier approach or an award of a global figure is applicable when it comes to assessing loss of dependency. In the case of Mwanzia vs Nagalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji [2007] eKLR the court gave guidance on when to use the multiplier approach as follows:-
” The multiplier approach is just a method of assessing damages. It is not a principle of law of a dogma. It can, and must be abandoned, where the facts do no facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of Justice should never do.”
38. In the case of Ponderosa Logistics Limited v Wesley Cheptoo Arap Chelagat & Alex Cheptoo (suing as the legal representatives of the estate of Mark Too (Deceased)) [2020] eKLR, the Court affirmed that either the multiplier method or the global (lump sum) approach may be appropriately applied in assessing loss of dependency, depending on the circumstances of the case. The Court stated:
“These submissions left me with the choice between the multiplier method and the global award method. It is a discretion that I am obligated to exercise judiciously. In my mind both methods are brought with misgivings. In the multiplier one the court has to form an opinion based on the facts before it that this person could have lived and worked for this number of years, this person would have earned so much money, and supported them to a certain extent. Similarly, with the global approach the court again is expected to form an opinion as to value placed on the life lost. In each the court has a way of knowing what vicissitudes that life would have been faced with. Neither is better that the other. It all depends on the facts. Hence in principle there was nothing wrong with the trial court choosing the multiplier approach.”
39. In George Kirianki Laichena vs Michael Mutwiri, (2011) (eKLR) The Court rendered itself as follows:-
“It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated in H west & Son Ltd vs Shepherd [1964] AC 326 at page 353:-
'The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought.
In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does however not proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”
40. The Court finds that the Trial Court was well within its discretion to apply the multiplier approach in assessing loss of dependency, as opposed to adopting a global or lump sum figure. The method was justified in the circumstances, and the Court finds no reason to interfere with the assessment. Accordingly, the Court upholds the award of Kshs. 2,040,000/= under the head of loss of dependency.
Special damages
41. With respect to special damages, it is a well-settled principle that such damages must be specifically pleaded and strictly proved. In Okulu Gondi v South Nyanza Sugar Company Limited [2018] eKLR, the Court emphatically stated:
“Special damages must be specifically pleaded and proved with a degree of certainty and particularity”
42. Having reviewed the record, the Court is satisfied that the claim for special damages was properly pleaded and substantiated by documentary evidence. Consequently, the Court upholds the Trial Court’s award of Kshs. 194,245/= under this head.
43. The Court notes that even in the Apellants submissions filed herein, they lay emphasis on the issue of dependency only. The other heads of damages did not come under any challenge.
44. Finally, the Court finds no merit in this Appeal. The judgment and decree delivered on 13th day of July, 2023 at the Thika Chief Magistrate’s Court in Civil Suit No. 682 of 2021 is hereby confirmed and upheld in its entirety.
45. As to costs, the same follow the event and lie at the discretion of this Honourable Court. The Court sees no reason to deny the successful Respondents the costs of this Appeal.
Determination
46. This Appeal is dismissed in its entirely for lack of merits for the reasons set out herein above.
47. The costs of the Appeal are awarded to the Respondents.
48. It is so ordered.
DATED, SIGNED AND DELIVERED AT THIKA THIS 7TH DAY OF AUGUST, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Wanjiru holding brief for Mr. Kariuki for the Appellants.
Mr. Khafumi for the Respondents.
Susan Nzioka – Court Assistant
1. This Appeal arises from the judgment and decree delivered on the 13th day of July, 2023, by Hon. M. W. Kurumbu, Principal Magistrate, in Thika Chief Magistrate’s Court Civil Case No. 682 of 2021.
2. In the said judgment, the Learned Trial Magistrate entered judgment in favour of the Plaintiffs (now the Respondents) as against the Defendants (now the Appellants), and awarded damages under the following head:
Loss of dependency – Kshs 2,040,000/=
Loss of expectation of life – Kshs 100,000/=
Pain and suffering – Kshs 50,000/=
Special damages – Kshs 194,245/=
Subtotal – Kshs 2,384,245/=
Take away 20% contribution – Kshs 476,849/=
Award Payable – Kshs 1,907,396/=
3. The Appellant was dissatisfied with the judgment on quantum and consequently lodged the present appeal by way of a Memorandum of Appeal dated 4th August 2024. The Appeal is premised on the following four (4) grounds:
a) THAT the learned trial magistrate erred in law and in fact in the manner that she assessed damages under the Fatal Accidents Act.
b) THAT the learned trial magistrate erred in law and in fact in making an award of Kshs. 2,040,000/ = as Loss of Dependency despite the Respondents failing to prove dependency as required by Section 4 (1) of the Fatal Accidents Act.
c) THAT the learned trial magistrate erred in law and fact in awarding the estate of the deceased damages on loss of dependency which were excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased and incongruent with the evidence that had been led and the relevant law governing assessment of damages for loss of dependency.
d) THAT the learned trial magistrate erred in law and in fact in failing to consider the Appellants’ submissions and the authorities that had been tendered and in so doing she arrived at an erroneous assessment of Loss of Dependency.
4. The Appeal was scheduled under the Rapid Results Initiative (RRI) and directions were issued for the parties to file written submissions. Upon compliance by both parties, the matter was reserved for judgment. This Court has duly considered the written submissions filed by the parties — namely, the Appellants’ submissions dated 23rd August 2024 and the Respondent’s submissions dated 3rd September 2024 — together with the authorities cited therein. The Court commends learned counsel for their diligence and industry in the research and presentation of their respective cases. The Court also apologises to the parties due to the delay in the delivery of this decision. The delay is regrettable and was not intended. It was caused by pressure of work and exigencies of life.
Brief Facts
5. The Plaintiffs, now the Respondents, filed the suit on behalf of the estate of Cecilia Mbula Masila (deceased), who tragically lost her life in a road traffic accident on or about 2nd September 2019. At the time of the accident, the deceased was lawfully and carefully traveling as a fare-paying passenger aboard motor vehicle registration number KCN 856K along the Thika–Nairobi Superhighway. During the journey, motor vehicle registration number KBP 627Q, which was allegedly being driven in a negligent and/or careless manner, violently collided with the vehicle in which the deceased was traveling. As a result of the collision, Cecilia Mbula Masila sustained fatal injuries and passed away.
6. The Plaintiffs, now the Respondents, claimed that the accident was solely caused by the negligence of the driver of KBP 627Q. The Plaintiffs, now the Respondents, detailed several particulars of negligence, including: driving at an excessively high speed, driving without due care and attention, operating the vehicle in a dangerous and reckless manner with no regard for other road users (particularly the deceased), and violating traffic rules. Additionally, the Plaintiffs, now the Respondents, alleged that the driver failed to take reasonable steps to avoid the accident, such as slowing down, stopping, or swerving. It was also claimed that the vehicle was defective, and that its condition contributed to the occurrence of the accident. They claimed damages under the Law Reform Act Cap 26 and under the Fatal Accidents Act Cap 32 of the Laws of Kenya.
7. The Appellants in their statement of defense dated the 20th January 2022 denied liability for the accident that led to the death of Cecilia Mbula Masila. They contended that the accident was either solely caused by or was substantially contributed to by the negligence of the deceased herself, or the driver of motor vehicle KCN 856K, in which the deceased was a passenger. The Appellants listed various particulars of negligence attributed to both the deceased and the driver of the matatu, including: failure to use seat belts, failure to adhere to adhere to traffic regulations on passenger safety, knowingly boarding a public service vehicle as an excess passenger and standing in a moving motor vehicle.
8. The Appellants also faulted the driver of motor vehicle KBP 627Q, claiming he acted negligently by failing to take evasive measures, driving recklessly, and using a defective vehicle. They argued that, in the event they were found liable, they would seek to initiate Third Party proceedings against the driver and/or owner of motor vehicle KCN 856K.
9. Furthermore, the Appellants relied on statutory provisions under the Traffic Act, Highway Code, and common law doctrines such as volenti non fit injuria (voluntary assumption of risk) and violent non fit injuria to deny liability. They emphasized that the deceased either voluntarily assumed the risk or contributed to the accident, and therefore, they should not bear responsibility.
10. Finally, the Appellants asserted that the suit as filed disclosed no reasonable cause of action, and that the Plaintiffs failed to provide the particulars of dependency and loss. They therefore sought to have the suit struck out for being fatally defective, or alternatively, to be granted leave to enjoin a Third Party for contribution or indemnity.
11. The parties herein recorded a consent on liability on 6th October 2022, apportioning liability at the ratio of 80:20 in favour of the Respondents as against the Appellants. Consequently, the only issue left for determination before the Trial Court was that of quantum. The Learned Trial Magistrate proceeded to award the sum of Kshs. 2,040,000/= under the head of loss of dependency. The Appellants contend that the said award was manifestly excessive in the circumstances and not supported by the evidence on record, thereby necessitating the present appeal.
Issues For Determination
12. From the foregoing analysis of the respective cases advanced by the parties, the singular issue that arise for determination in this Appeal are as follows:
a) Whether the claim for loss of dependency was sufficiently proved.
Analysis
13. This being a first appeal, this Honourable Court is under a duty to re-evaluate and reassess the evidence afresh and draw its own independent conclusions. In doing so, the Court must, however, bear in mind that the Trial Court had the distinct advantage of seeing and hearing the witnesses, and thus was better placed to assess their demeanour and credibility.
14. The applicable legal principle was succinctly stated in Mbogo and Another v Shah [1968] EA 93, where the Court held:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
15. The duty of a first appellate court was definitively settled in the locus classicus case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal (per Clement De Lestang, V-P, Duffus and Law JJ.A) laid down the guiding principle in the following oft-cited passage:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
16. In undertaking its duty, this Court is mindful of the fact that it neither saw nor heard the witnesses who testified before the Trial Court. That advantage rested solely with the Trial Court, which was best placed to assess the demeanour and credibility of the witnesses. However, with respect to documentary evidence, the Appellate Court is in as good a position as the Trial Court to evaluate such materials, since documents speak for themselves and no party may import into them matters that are extrinsic to their contents.
17. The duty of a first appellate court was further restated by the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336, where it held:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
18. The same principle was echoed in the case of Peters v Sunday Post Limited [1958] EA 424, where the Court held as follows:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. The principles governing the Appellate Court’s duty in matters relating to the assessment of damages were authoritatively settled in the case of Butt v Khan, Civil Appeal No. 43 of 1983 (1984) KLR, where the Court of Appeal held as follows:
“In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”
20. In determining whether to interfere with the quantum of damages awarded by the Trial Court, this Court is mindful of the limits of its appellate jurisdiction in matters of discretion. The assessment of damages is an exercise of judicial discretion, and appellate intervention is only warranted where it is shown that the Trial Court acted on wrong principles, misapprehended the evidence, or made an award that is so inordinately high or low as to amount to an erroneous estimate of the loss suffered. The Court is guided by the holding of the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982–88] KAR 5, where the Court stated:
“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 arrived at a figure which was either inordinately high or low”
21. The Court of Appeal succinctly restated the principles governing Appellate interference with awards of damages in Kemfro Africa Ltd t/a Meru Express Service & Another v A. M. Lubia & Another [1987] KLR 30, where it held as follows:
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.”
22. The foregoing principles were aptly restated by Sir Kenneth O’Connor, P., in reaffirming the common law position earlier enunciated by the Privy Council in the case of Nance v British Columbia Electric Railway Co. Ltd [1951] AC 601, and subsequently cited with approval in Henry H Ilanga v M Manyoka [1961] EA 705, 713 where the learned Judge expressed himself as follows with regard to appellate interference with awards of damages:
“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”
23. It is trite law that for this Court to interfere with the award of damages made by the Trial Court, it is not sufficient to merely demonstrate that the award is high or that had this Court been the Trial Court, it might have arrived at a different figure.
24. The Appellate Court’s duty in reviewing an award on quantum is threefold:
a) To ascertain whether the Trial Court took into account irrelevant factors or failed to consider relevant ones;
b) To determine whether the award is so inordinately high or low as to amount to a wholly erroneous estimate of the loss suffered; and
c) To evaluate whether the award is unsupported by, or inconsistent with, the evidence on record.
25. In undertaking this task, the Court must also consider comparable awards for similar injuries or losses, take into account the prevailing economic conditions, and ensure consistency with established legal principles on the assessment of damages. Ultimately, for an Appellate Court to interfere with an award, it must be demonstrated that the Trial Court’s discretion was exercised injudiciously. It is not enough to merely show that the award appears high or low, or that the Appellate Court might have awarded a different sum had it been seized of the matter at first instance.
Pain and Suffering
26. The Death Certificate produced in evidence confirms that the Deceased died on the same day the accident occurred. It is well established in law that where death occurs instantaneously or within a very short time after the accident, the award under the head of pain and suffering ought to be on the lower end of the scale.
27. In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR, where the deceased died immediately following the accident, the late Hon. Justice David Majanja held as follows:
“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 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 Kshs. 10,000/- to Kshs. 100,000/- over the last 20 years hence I cannot say that that the sum of Kshs. 50,000/- awarded under the head is unreasonable.”
28. The evidence on record confirms that the deceased died on the spot. There is no indication that she endured a prolonged or agonizing death. Accordingly, the Court finds no justification to interfere with the Trial Court’s award of Kshs. 50,000/= under the head of pain and suffering, and therefore upholds the same.
Loss of Expectation of Life
29. On the head of Loss of Expectation of Life, it is now settled that the conventional award is Kshs. 100,000, as affirmed in numerous authorities including Hyder Nthenya Musili & Another v China Wuyi Limited & Another [2017] eKLR. The Court therefore upholds the award of Kshs. 100,000 as granted by the Learned Trial Magistrate under this head.
Loss of dependency
30. An award under Loss of Dependency is made pursuant to the Fatal Accidents Act. The guiding principles in the assessment of such damages were clearly articulated by Ringera J. (as he then was) in Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another – Nairobi HCCC No. 1638 of 1988 (unreported), where the learned judge stated:
“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”
31. With respect to the assessment of damages under the head of loss of dependency, the Court of Appeal in Chunibhai J. Patel & Another v P. F. Hayes & Others [1957] EA 748 at 749 laid down the applicable legal principles as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.
32. Section 4(1) of the Fatal Accident Act Cap 32, Laws of Kenya provides that
4. (1) 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; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:
Provided that not more than one action shall lie for and in respect of the same subject-matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.”
33. In assessing the award for loss of dependency, the Trial Court took into account that the deceased was a businesswoman engaged in the informal food vending trade selling at a Kibanda/Food kiosk—commonly referred to as “Mama Kibanda”. The Court further considered that the deceased was survived by her mother and three children, two of whom were adults—one being a student—while the youngest was a 14-year-old son who, at the material time, was in Class 7. In the absence of documentary proof of daily earnings, the Trial Court accepted a monthly income of Kshs. 15,000 as a reasonable estimate for a person engaged in such economic activity. The Learned Trial Magistrate then adopted a two-thirds (2/3) dependency ratio and applied a multiplier of 17 years, based on the standard retirement age in Kenya of 60 years.
34. This Court is further guided by the decision in Arembe v Fadhalmula & Another (Civil Appeal E116 of 2018) [2023] KEHC 2009 (KLR) (24 February 2023) (Judgment), where the High Court considered the average earnings of informal traders and businesswomen of a similar economic cadre as the deceased. In that decision, the Court stated as follows:
“Further, the court treated the deceased as unemployed. The deceased was not unemployed. She was a business lady in Nakuru. She had a single business permit for which she paid Kshs 4,250/=. The Death certificate indicated that she was a business lady. The deceased could not be said told to have work when she was running a business which was licensed by the county by the County Government of Nakuru. It is however easy to establish her earning. No bank statements were produced or income statements from the business. However, we are guided from the amount of licence fee she paid that she must have had a small business in Nakuru Municipality. She was potentially an employer. From the authorities I have seen as analyzed below, a small business person in Nakuru can earn a net of about 15,000-30,000/=.”
35. The Court in West Build General Contractors Ltd v Njeru (Suing as the Legal Representative and/or Administrator of the Estate of Michael Mutembei Ntwiga – Deceased) (Civil Appeal E025 of 2021) [2023] KEHC 20714 (KLR) (21 July 2023) (Judgment) aptly restated the applicable standard in assessing loss of dependency where formal proof of income is lacking. The Court observed as follows:
“In the impugned judgment, the trial court noted that there was indeed no proof of income that was produced in support of the figure proposed by the Respondent. It thus held that an award of Kshs. 15,000/= as the deceased’s monthly earnings was reasonable. On the deceased’s income, it is true that no proof was tendered to support the claim by the Respondent that the deceased was a butcher. However, it is now trite that it is not always that proof of income must be by production of documents. Makau J in David Kimathi Kaburu -vs- Gerald Mworobia Murungi (Suing as legal representative of the estate of James Mwenda Mworobia (deceased) (2004) eKLR held that;
“The court is alive of the fact that in Kenya Society, that most of the individual’s earnings need not be proved by production of documents such as banking statements or payment vouchers or pay slips. Further to the above with modern technology in whichever payments are to be offered through use of mobile phones or by cash without requirement of payments by cheques........is not necessary to produce documentary proof...””
36. The Court is persuaded by the foregoing authority, and is of the considered view that it is not always necessary to prove earnings through the production of documentary evidence. This is particularly more so where the claimant is engaged in informal or subsistence-level economic activities. In the circumstances of this case, the Court finds that the Trial Court's adoption of a monthly income of Kshs. 15,000 was reasonable and within acceptable judicial discretion.
37. The High Court in Muchiri & Another v Richu & Another (Suing as the Legal Representatives of the Estate of Nicholas Ng’ang’a Gitau – Deceased) (Civil Appeal E081 of 2023) [2024] KEHC 14221 (KLR) (15 November 2024) (Judgment) aptly affirmed this position, holding that:
“The decision by the trial court to use the multiplier approach is purely a discretionary one. Jurisprudence by the courts reveal that either the multiplier approach or an award of a global figure is applicable when it comes to assessing loss of dependency. In the case of Mwanzia vs Nagalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji [2007] eKLR the court gave guidance on when to use the multiplier approach as follows:-
” The multiplier approach is just a method of assessing damages. It is not a principle of law of a dogma. It can, and must be abandoned, where the facts do no facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of Justice should never do.”
38. In the case of Ponderosa Logistics Limited v Wesley Cheptoo Arap Chelagat & Alex Cheptoo (suing as the legal representatives of the estate of Mark Too (Deceased)) [2020] eKLR, the Court affirmed that either the multiplier method or the global (lump sum) approach may be appropriately applied in assessing loss of dependency, depending on the circumstances of the case. The Court stated:
“These submissions left me with the choice between the multiplier method and the global award method. It is a discretion that I am obligated to exercise judiciously. In my mind both methods are brought with misgivings. In the multiplier one the court has to form an opinion based on the facts before it that this person could have lived and worked for this number of years, this person would have earned so much money, and supported them to a certain extent. Similarly, with the global approach the court again is expected to form an opinion as to value placed on the life lost. In each the court has a way of knowing what vicissitudes that life would have been faced with. Neither is better that the other. It all depends on the facts. Hence in principle there was nothing wrong with the trial court choosing the multiplier approach.”
39. In George Kirianki Laichena vs Michael Mutwiri, (2011) (eKLR) The Court rendered itself as follows:-
“It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated in H west & Son Ltd vs Shepherd [1964] AC 326 at page 353:-
'The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought.
In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does however not proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”
40. The Court finds that the Trial Court was well within its discretion to apply the multiplier approach in assessing loss of dependency, as opposed to adopting a global or lump sum figure. The method was justified in the circumstances, and the Court finds no reason to interfere with the assessment. Accordingly, the Court upholds the award of Kshs. 2,040,000/= under the head of loss of dependency.
Special damages
41. With respect to special damages, it is a well-settled principle that such damages must be specifically pleaded and strictly proved. In Okulu Gondi v South Nyanza Sugar Company Limited [2018] eKLR, the Court emphatically stated:
“Special damages must be specifically pleaded and proved with a degree of certainty and particularity”
42. Having reviewed the record, the Court is satisfied that the claim for special damages was properly pleaded and substantiated by documentary evidence. Consequently, the Court upholds the Trial Court’s award of Kshs. 194,245/= under this head.
43. The Court notes that even in the Apellants submissions filed herein, they lay emphasis on the issue of dependency only. The other heads of damages did not come under any challenge.
44. Finally, the Court finds no merit in this Appeal. The judgment and decree delivered on 13th day of July, 2023 at the Thika Chief Magistrate’s Court in Civil Suit No. 682 of 2021 is hereby confirmed and upheld in its entirety.
45. As to costs, the same follow the event and lie at the discretion of this Honourable Court. The Court sees no reason to deny the successful Respondents the costs of this Appeal.
Determination
46. This Appeal is dismissed in its entirely for lack of merits for the reasons set out herein above.
47. The costs of the Appeal are awarded to the Respondents.
48. It is so ordered.
DATED, SIGNED AND DELIVERED AT THIKA THIS 7TH DAY OF AUGUST, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Wanjiru holding brief for Mr. Kariuki for the Appellants.
Mr. Khafumi for the Respondents.
Susan Nzioka – Court Assistant