https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9742

Ngugi v Nzivo (Civil Appeal E296 of 2023) [2026] KEHC 9742 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9742 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E296 of 2023 AN Ongeri, J June 25, 2026 Between Alice Ngugi Appellant and Patrick Nzivo Respondent (Being an appeal from the Judgment of HON. KHAPOYA S. BENSON (SPM) in KITHIMANI SPMCC NO. E184 of 2021 delivered on 18/10/2023) Judgment 1.The first and second respondents, suing as the legal representatives of the estate of the deceased, Patrick Mutua Nzivo, instituted a suit against the appellant following a fatal road traffic accident that occurred on or about March 20, 2021, along the Matuu-Mwingi road at the Kivandini area. 2.The respondents alleged that the appellant's authorized driver, servant, or agent negligently managed a motor vehicle, registration number KCH 286N, causing it to lose control, veer off the road, and hit a motorcycle, registration number KMDD 672G, which was being ridden by the deceased. 3.Consequently, the respondents sought general damages under both the Fatal Accidents Act and the Law Reform Act, special damages totalling Ksh. 33,025/-, as well as the costs of the suit and interest. 4.In response, the appellant denied the claims in their entirety and raised a defence of contributory negligence, contending that the accident was substantially caused by the deceased's own negligent riding. 5.In closing submissions, the appellant argued that the respondents failed to discharge their burden of proof due to the lack of an eyewitness to corroborate the circumstances, noting that the police abstract indicated the matter was still pending investigations. 6.The appellant proposed that liability should be apportioned at a 50:50 ratio, citing relevant judicial precedents. 7.Furthermore, the appellant maintained that no award should be made for the loss of dependency since the deceased left behind no immediate family, suggesting alternatively that a multiplicand based on a general laborer's minimum wage of Ksh. 7,240/= with a 20-year multiplier be applied if dependency was found, and that pain and suffering be capped at Ksh. 10,000/-. 8.During the trial, the court gathered evidence from two key witnesses. The first witness, Police Constable Evangeline Kendi, testified that the appellant's vehicle failed to keep to its proper lane, drove into the oncoming lane, and struck the deceased, explicitly blaming the driver of the vehicle for the accident. 9.The second witness, David Maingi Nzivo, who was the brother of the deceased, adopted his witness statement and produced crucial documentation, including the death certificate, police abstract, and letters of administration. 10.He testified that his 32-year-old brother was a carpenter who had been providing financial support to the family. 11.Upon considering the pleadings, evidence, and submissions, the Senior Principal Magistrate at Kithimani Law Courts, delivered the judgment. 12.The court rejected the appellant's push for a dismissal or an equal split in liability, instead apportioning liability at 70% against the appellant and 30% against the deceased rider. 13.In assessing damages, the court awarded Ksh. 100,000/- for pain and suffering, Ksh. 100,000/- for the loss of expectation of life, and Ksh. 1,565,200/= for the loss of dependency. 14.After deducting 30% for contributory negligence, which amounted to a reduction of Ksh. 469,560/=, and adding the funeral expenses of Ksh. 33,025/=, the trial court entered a final judgment in favor of the respondents for a total sum of Ksh. 1,328,665/=. 15.The trial court also granted the respondents the costs of the suit, with interest to accrue at court rates, from the date of filing for special damages and from the judgment date for general damages. 16.The appellant appealed against the said judgment on the following grounds;i.That the learned Trial magistrate erred in law and facts by failing to properly scrutinize and evaluate the evidence tendered and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of Quantum and compensation to the Respondent.ii.That the learned Trial Magistrate erred both in law and fact by making an award on loss of Dependency which was against the weight of the evidence before the court and was without any consideration to the submissions of the Appellant.iii.That The Learned Trial Magistrate erred both in law and fact in making an award on quantum which is too high and was not supported by relevant authorities, guided by the doctrine of precedent, case law of similar facts and guided by the laws of natural justice and or commensurate with similar awards by the other courts on similar facts.iv.That the learned Trial Magistrate erred in both law and fact by awarding Kshs 1,565,200/= under Loss of Dependency without any reason as to how the said figure was arrived at either through evidence or case law.v.That the learned Trial Magistrate erred in law and fact by ignoring previous precedents awards in similar cases and therefore arrived at an award that was erroneous in the circumstances. 17.The parties filed written submissions as follows; The appellant, Alice Ngugi, submitted that she has filed an appeal against the judgment and decree of the Senior Principal Magistrate at Kithimani Law Courts delivered on 18th October 2023, which found her 70% liable for a fatal road traffic accident. 18.The trial court awarded the respondents general damages under the Fatal Accidents Act and the Law Reform Act, including Kshs. 100,000 for pain and suffering, Kshs. 100,000 for loss of expectation of life, Kshs. 1,565,200 for loss of dependency, and special damages of Kshs. 33,025, all subject to a 30% reduction for liability. 19.The appellant challenges only the quantum of damages, arguing that the trial magistrate applied wrong principles in assessing damages, and relies on the principles set out in Purity Wambui Murithii v Highlands Mineral Water Co. Ltd [2015] eKLR, which reiterated the test from Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M Lubia & Olive Lubia (1982-88) 1 KAR 727. 20.The said test was that an appellate court can only disturb an award if the trial judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately high or low as to be a wholly erroneous estimate. 21.The appellant also cites Kenya Tea Development Agency v Augustine Gori Makori [2014] eKLR and Kipkebe Ltd v Moses Kauni Masaki, Kisii High Court Civil Appeal No. 127 of 2004, and the case of Butt v Khan [1977] 1 KAR 1, which similarly hold that an appellate court should not interfere unless the award is inordinately high or low. 22.The appellant contends that the trial court erred by failing to find that the income of the deceased was not proved, as required by the Evidence Act, Section 107, and the case of Authur Nyawate Omutondi v United Millers Limited and 2 others (2009) eKLR, which held that proof of income is basic to a claim for loss of dependency. 23.The appellant further argues that relying on a death certificate to prove occupation is insufficient, as stated in Mba (Suing as the Legal Representative of the Estate of Koome Mba - Deceased) v Mugambi (Sued as the Legal Representative of the Estate of Duncan Mwaga Micheni - Deceased) [2024] KEHC 3376 (KLR). 24.In the absence of proof of income, the appellant urges the court to adopt a global sum award, as endorsed by the High Court in Mark Mwenda v Bernard Mugambi and Another, Nairobi HCCC No. 2343 of 1997, where it was held that the multiplier approach is not a principle of law but a method to be abandoned where facts do not facilitate its application. 25.The appellant proposes a global award of Kshs. 900,000 for loss of dependency, citing John Mwanai Macharia v Jeniffer Keiya Muteqi [2020] eKLR, where a global sum of Kshs. 900,000 was awarded to an 18-year-old boda boda rider, and Ngila & another v Musili & another (Suing as Legal Representative of the Estate of the late Isika Musili) (Civil Appeal 67 of 2019) [2022] KEHC 12991 (KLR), where the court substituted an award of Kshs. 2,640,000 with Kshs. 900,000 for a 22-year-old deceased. 26.In the alternative, the appellant proposes using the multiplier approach with a multiplier of 20 years, citing VZL & another v Chrispine Agunja Omoga [2014] eKLR, where a 20-year multiplier was adopted for a 37-year-old deceased, and Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another, NYR CA Civil Appeal No. 35 of 2014 [2014] eKLR, which states that the choice of a multiplier is a matter of judicial discretion. 27.The appellant further submits that the trial court should have applied the minimum wage for a general labourer in 2018, which was Kshs. 7,240 outside Nairobi, as held in Catholic Diocese of Machakos & another v Janet Munaa Mutua & another [2021] eKLR and Phillip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR. 28.Using this wage, the appellant calculates loss of dependency as Kshs. 7,240 x 20 x 12 x 1/3 = Kshs. 579,200. 29.The appellant therefore urges the court to set aside the award of Kshs. 1,565,200 for loss of dependency and substitute it with a fairer sum, subject to the 30% apportionment of liability, and to allow the appeal with costs 30.The respondents submit that the appeal, filed by Alice Ngungi, should be dismissed with costs, as it challenges the trial magistrate's award of Kshs. 1,565,200 under loss of dependency, which was reduced by 30% liability. 31.The respondents argue that the trial court properly exercised its judicial discretion in making the award, and an appellate court should not interfere with such discretion unless it is demonstrated that the trial court applied a wrong principle of law, took into account irrelevant factors, omitted relevant ones, or misapprehended the evidence, resulting in an award that is manifestly excessive or inadequate. 32.In support of this position, the respondents cite the principle established in Catholic Diocese of Kisumu versus Sophia Achieng Tete (2004) 2 EKLR 55, as reiterated in Samuel Mwaura Waweru versus Bonafide Clearing and Forwarding Company Ltd and Another, Court of Appeal at Nairobi Civil Appeal No. E506 of 2023, which holds that an appellate court is not justified in substituting its own figure for that of the trial court merely because it would have awarded a different amount. 33.The respondents further submit that the deceased left dependants who relied on him for upkeep, and the trial court correctly applied section 4(1) of the Fatal Accidents Act, which allows for damages to be awarded proportioned to the injury suffered by the dependants, namely the wife, husband, parent, and child of the deceased. 34.The respondents rely on the Court of Appeal decision in Albert Kubai Mbogori versus Violet Jeptum Rahedi, Civil Appeal No. 125 of 2015, where the court upheld an award for loss of dependency using a 2/3 dependency ratio and a 15-year multiplier for a 44-year-old deceased, and argue that in the present case, the trial court's use of a 2/3 ratio and a 20-year multiplier was reasonable and within acceptable bounds. 35.The respondents invoke the doctrine of stare decisis, asserting that the Albert Kubai Mbogori(supra) decision is binding on the High Court. 36.Consequently, the respondents conclude that the appeal lacks merit and ought to be dismissed with costs. 37.The issues for determination in this appeal are as follows;i.Whether the trial court's award of Kshs. 1,565,200/= for loss of dependency was excessive and not supported by evidence.ii.Whether the trial court applied the correct principles in assessing the loss of dependency claim under the Fatal Accidents Act. 38.The appellant's appeal is against the quantum of damages only, specifically the award under the Fatal Accidents Act. 39.The principles governing an appellate court's interference with an award of damages are well settled. 40.An appellate court will not disturb an award of damages unless it is satisfied that the trial court applied the wrong principles, took into account irrelevant factors, left out relevant factors, or arrived at an award that is so inordinately high or low as to represent a wholly erroneous estimate. 41.These principles were established in the cases of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A.M. Lubia & Olive Lubia (supra) and Catholic Diocese of Kisumu v Sophia Achieng Tete (supra). 42.On this basis, the appellant must demonstrate that the trial court's award was based on an error of principle or is manifestly excessive. 43.The appellant's main contention is that the deceased's income was not proved, making the use of the multiplier approach inappropriate. 44.The evidence on record indicated that the deceased was a 32-year-old carpenter who provided financial support to his family. 45.The trial court applied the multiplier approach, adopting a multiplicand of Kshs. 10,000 per month, a dependency ratio of 2/3, and a multiplier of 20 years. 46.While it is true that proof of income is crucial for the multiplier method, the courts have held that the multiplier approach is not a principle of law but a method of assessment and can be abandoned where the facts do not facilitate its application. 47.This was stated in Mark Mwenda v Bernard Mugambi and Another(supra), as cited by the appellant. In the present case, the deceased's occupation was established, and the trial court made an estimate of his monthly earnings. 48.In making such an estimate, the court is not required to achieve mathematical certainty, but must make the best estimate based on the evidence. 49.This is consistent with the decision in Albert Kubai Mbogori v Violet Jeptum Rahedi(supra), where the Court of Appeal upheld the trial court's estimate of the deceased's income when there was no clear evidence. 50.The appellant proposes using the minimum wage for a general labourer in 2018 of Kshs. 7,240, while the respondents argue that the trial court's use of a 2/3 dependency ratio and a 20-year multiplier was reasonable. 51.The respondent's position finds support in the Albert Kubai Mbogori case(supra), where a dependency ratio of 2/3 and a 15-year multiplier for a 44-year-old deceased were upheld. 52.However, the deceased in that case was 44 years old, whereas here the deceased was only 32 years old, which would justify a longer multiplier. 53.The trial court's adoption of a 20-year multiplier for a 32-year-old deceased is within the realm of reasonable judicial discretion, as it aligns with the potential working years remaining. 54.The multiplier approach was appropriate here as the deceased's age and occupation were known, allowing for a reasonable estimate of the dependency. 55.Upon review, the trial court considered the evidence, including the testimony of the deceased's brother and the documentation produced. 56.The court did not act on a wrong principle by using the multiplier method and the resultant award of Kshs. 1,565,200/= for loss of dependency, when considered against the background of the deceased's age and likely earnings, is not so inordinately high as to be a wholly erroneous estimate. 57.The other awards, such as Kshs. 100,000 for pain and suffering and Kshs. 100,000 for loss of expectation of life, are also conventional and reasonable in the circumstances. 58.The trial court's deduction of 30% for contributory negligence was properly applied. Therefore, the appeal fails. 59.The final decision is that the appeal is dismissed with costs to the respondents. 60.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026HON. A. N. ONGERIJUDGEIn the presence ofMr Gaya for the AppellantNo appearance for the RespondentChrispin- Court Assistant