https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8895

Anytime Ltd & another v Ombewa (Suing as the legal representative of the Estate of Isaac Otieno Owiti - Deceased) (Civil Appeal E099 of 2023) [2026] KEHC 8895 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 8895 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E099 of 2023 OA Sewe, J May 21, 2026 Between Anytime Limited 1st Appellant Asl Credit Limited 2nd Appellant and Silas Owiti Ombewa (Suing as the legal representative of the Estate of Isaac Otieno Owiti - Deceased) Respondent (Being an Appeal from the Judgment and Decree of Hon. C. Okore, PM, in Oyugis MCCC No. 168 of 2022 dated 2nd November 2023) Judgment 1.The appellants were the defendants before the lower court in Oyugis Senior Principal Magistrate’s Civil Suit No. 168 of 2022: Silas Owiti Ombewa (suing as the Legal Representative of the Estate of Isaac Otieno Owiti, Deceased) v Anytime Limited & another. They had been sued in connection with a road traffic accident that occurred on or about the 20th May 2022. The deceased was said to have been a lawful pedestrian walking along the Homa Bay-Kendu Bay Road when he was knocked down by Motor Vehicle Registration No. KCM 186Y. 2.The respondent alleged negligence on the part of the driver of the appellant’s Motor Vehicle Registration No. KCM 186Y. He further averred that the deceased was 11 years old and was in perfect health; and that, as a result of the accident, his life had been unduly cut short. The respondent had further contended that the estate of the deceased had suffered loss and damage for which he blamed the appellants. Accordingly, the respondent claimed general and special damages, interest and costs against the appellants. 3.The appellants denied the respondent’s allegations vide their Statement of Defence dated 4th November 2022. They denied that they were the owners of Motor Vehicle Registration No. KCM 186Y; that the deceased was a lawful pedestrian along the Homa Bay-Kendu Bay road or that he was knocked and injured as alleged. In particular, the appellants denied the allegations of negligence and special damage as set out in the Plaint. In the alternative, the appellants averred that if an accident occurred, then the same was due to the sole and/or contributory negligence of the deceased. The particulars of the alleged negligence were supplied by the appellants at paragraph 12 of their Statement of Defence. 4.The parties entered into a consent before the lower court on liability at the ratio of 90:10; which consent was adopted as an order of the lower court on 24th August 2023. The learned magistrate thereafter assessed general damages at Kshs. 1,200,000/= and special damages at Kshs. 70,140/=. Accordingly, judgment was entered for the respondent in the net sum of Kshs. 1,143,126/= together with interest thereon and costs of the suit. 5.Being aggrieved by that decision, the appellants filed this appeal on the following grounds:(a)That the learned magistrate grossly misdirected herself in treating the evidence and the submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.(b)That the learned magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submission presented and filed by the appellant.(c)The learned magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent (if any) and failed to apply precedents and tenets of law applicable.(d)The learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.(e)The learned magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law. 6.Hence, the appellants prayed that their appeal be allowed with costs and that the judgment of the learned magistrate be set aside. 7.The appeal was urged by way of written submissions; directions to that effect having been given on 30th September 2025. The appellants relied on their written submissions dated 14th October 2024. They addressed the Court on the duty of an appellate court as discussed in Selle v Associated Motor Boat Co. Ltd 1968 EA 123 and on the applicable principles for re-assessment of quantum of damages in line with Butt v Khan 1978 KLR 343. The appellants also reiterated their written submissions before the lower court as appear at pages 42 to 115 of the Record of Appeal. 8.In the submission of the appellants, the learned magistrate relied on the wrong principles, resulting in an inordinately high award. They relied on Osman Mohammed & another v Saluro Bundit Mohammed, Civil Appeal No. 30 of 1987 in which the Court of Appeal held that damages must be within the limits set out by decided cases and also within limits the Kenyan economy can afford. The appellants also relied on Millicent Atieno Ochwonyo v Katola Richard 2015 eKLR for the submission that comparable injuries ought to attract comparable awards. Accordingly, the appellants proposed the following issues for determination:(a)Whether the assessment of damages under the Law Reform Act was properly conducted;(b)Whether the award of damages for loss of dependency under the Fatal Accidents Act was excessive.(c)Whether the learned magistrate erred in not deducting overlapping awards;(d)Whether the sum awarded for special damages was strictly proved. 9.In respect of the first issue, the appellants submitted that the lower court ought to have struck a balance between endeavouring to award a just amount and entering the realm of very high awards which can only have a deleterious effect in the end. Accordingly, under the Law Reform Act, the appellants proposed a nominal award of Kshs. 10,000/= on the authority of Sukari Industries Ltd v Clyde Michimbo Juma 2016 eKLR and James Gakinya Karienye & another v Perminus Kariuki Githinji 2015 eKLR. 10.Under the head of loss of expectation of life, the appellants submitted that the learned magistrate ought to have taken into account the age of the deceased at the time of death and comparable awards made in the past in similar circumstances. They relied on Hyder Nthenya Musili & another v China Wu Yi Ltd & another 2017 eKLR and Chen Wembo & others v K K K & another 2014 in which a nominal award of Kshs. 80,000/= was made for a 12-year-old minor. 11.On loss of dependency, the appellants submitted that the sum of Kshs. 1,200,000/= awarded by the lower court was not only excessive, but was also lacked cogent justification. In their submission, no basis was disclosed in the judgment of the lower court to justify the award nor were comparable authorities discussed by the learned magistrate. They therefore urged the Court to find that the award was arbitrary. 12.In the appellants’ proposal, an amount of Kshs. 600,000/= would suffice under this head. They relied on H. Young & Co. Ltd and another v James Gichana Orangi, Kisii High Court Civil Appeal No. 207 of 2009 in which Kshs. 300,000/= was awarded in respect of a minor aged 11 years. They also relied on Chen Wembo (supra) in which an award of Kshs. 600,000/= was made. They posited that it was necessary for the respondent to demonstrate that the deceased was in school and her level of abilities or future prospect. 13.The appellants also faulted the lower court for failing to deduct overlapping awards. They relied on Kemfro v A M Lubia & Olive Lubia 1982-1988 KAR 727 and proposed that the sum of Kshs. 100,000/= be deducted from the award made under the Fatal Accidents Act. 14.Lastly, the appellants submitted that it was imperative for the respondent to specifically prove the special damages component of his claim. They placed reliance of Hahn v Singh 1985 eKLR for the principle that special damages must not only be specifically pleaded but also proved. They pointed out that, since the receipts presented by the respondent were computer-generated and therefore not stamped for purposes of the Stamp Duty Act, they were of no evidential value for the purpose of specifically proving the respective expenditures stated thereon. They relied on Leonard Nyongesa v Derrick Ngula Righa 2014 eKLR for the proposition that a receipt for which payment of stamp duty is required under the Stamp Duty Act is admissible in evidence on condition that the person issuing the person issuing it takes it for stamp duty assessment before the court can attach any probative value to it. 15.Similarly, the appellants urged the Court to award only what is reasonable as funeral expenses. They relied on Momanyi Otwoma & another (suing as the legal representative of the estate of A M O, deceased) 2025 KEHC 2971 (KLR). 16.The respondent relied on his written submissions dated 25th June 2025 and reiterated the factual background of the suit that gave rise to this appeal; including the fact that the parties recorded a consent on liability. On quantum, the respondent submitted that the deceased was aged 11 years at the time of his demise; that he was vigorous, vibrant and healthy and that he had good prospects of life ahead of him before his life was cut short. In the respondent’s submission, the learned magistrate’s global award for loss of dependency was fair and just in the circumstances. He urged the Court to uphold that award and not interfere with the exercise of discretion by the lower court. 17.The respondent made reference to the following authorities to support his submissions:(a)Mbogo & another v Shah 1968 EA(b)Buttler v Buttler 1984 KLR(c)Mariga v Musila 1984 KLR 18.On the basis of the foregoing, the respondent urged the Court to find that the appellant failed to demonstrate that the learned magistrate applied or acted on the wrong principles, or awarded sums so excessive that no reasonable court would award; or even that the lower court took into consideration matters which it ought not to have considered or never took into consideration matters it ought to have considered and as a result arrived at a wrong decision. He urged for the dismissal of the appeal with costs. 19.The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. 1968 EA 123 where the Court of Appeal held:The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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, the 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.” 20.The record of the lower court shows that the only witness before the lower court was the respondent. He adopted his witness statement dated 28th September 2022. He stated that the deceased was his son; and that he was a lawful pedestrian along Homa Bay-Kendu Bay road when he was knocked down by Motor Vehicle Registration No. KCM 186Y. He further testified that the deceased died on the spot and his body was taken to the mortuary. PW1 also mentioned that, at the time of his death, the deceased was 11 years old, in perfect health and led a vigorous life. He produced several documents in proof of his case, including funeral expenses. 21.The appeal is limited to the aspect of quantum and therefore, the single issue for determination is whether the lower court erred in assessing the quantum of damages payable to the estate of the deceased. It is notable that the learned magistrate applied the global approach and awarded an amount of Kshs. 1,200,000/= under the general head of general damages without any distinction for pain and suffering, loss of expectation of life or loss of dependency. As a matter of fact, in the circumstances of this case, the global approach ought to have been applied in respect of loss of dependency under the Fatal Accidents Act, granted that it would have been speculative to apply the multiplier approach. 22.In the premises, the learned magistrate having steered clear of the heads approach, the appellants’ submissions in respect of the judgment and decree of the lower court impugning awards for pain and suffering and loss of expectation of life are misguided, noting that no cross-appeal was filed in that regard. My evaluation is therefore limited to the global award of general damages in the sum of Kshs. 1,200,000/= as well as the award for special damages in the sum of Kshs. 70,140/=. 23.It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard 1964 AC 326, for instance, it was held that:...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 not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment." 24.Similarly, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited 2015 eKLR, the Court of Appeal held that:As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages." (Also see Butt v Khan 1981 KLR 349) 25A perusal of the proceedings and judgment of the lower court confirms that the deceased was a young boy aged 11 years and although there was no indication as to what his future would have been, the presumption is that school-going children would ultimately enter the labour force in their adulthood and support their parents and siblings. Hence, in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others 1986 eKLR the Court of Appeal held:...in the context of Kenya, and that is the relevant context, parents of a deceased young man who would have been preparing himself for a career with a view to looking after his parents in their old age suffer real economic loss. The financial assistance relative to the ability of the deceased which is normally expected and readily provided is obliterated by the death. The cost of bringing up the deceased ... are extinguished. Now, almost all assistance of this kind would in the conditions of Kenya be almost wholly economic in substance. So much so that the loss caused by the death could never be adequately compensated in monetary terms. No question of a windfall to the parents can therefore reasonably arise." 26.Similarly in Kenya Breweries Ltd v Saro 1991 eKLR, the Court of Appeal held:...in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four year old one who has not been to school and whose abilities are yet not ascertained...But the issue of some damages being payable in both cases is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and do invariably take care of their aged parents...In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is not evidence of pecuniary contribution...we reject the ground of appeal that the learned judge erred in holding that the respondent was entitled to claim damages under the Fatal Accidents Act. The respondent was entitled to do so under section 3 and 4(1) of that Act and under the authorities to which we have referred..." 27.The appellants proposed an award of Kshs. 600,000/= for loss of dependency. It is also noteworthy that in the decisions relied on by the appellants, separate awards were made for pain and suffering and loss of expectation of life. As has been pointed out hereinabove, the learned magistrate did not make that distinction in her award. Secondly, the Court is duty bound to take into account the inflationary trends and the effect thereof on the value of the Kenya Shilling. I therefore find no basis for upsetting the award made by the learned magistrate on general damages. 28.I have also given consideration to the appellants’ arguments that the learned magistrate erred in failing to deduct the overlapping awards. This argument is untenable because the sum awarded was global for purposes of both the Law Reform Act and the Fatal Accidents Act. There is no overlap to speak of granted that what was awarded was a global sum. Moreover, in Kenfro Africa Ltd t/a Meru Express Services 1976 & Another v Lubia & Another (No. 2) 1987 KLR 30, the Court of Appeal explained that:8.The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.” 29.The deduction was thus reversed by the Court of Appeal on the basis that the words "to be taken into account" used in Section 4(2) of the Fatal Accidents Act and "to be deducted" are two different things; and that what is to be taken into account is not necessarily deducted. However, as pointed out hereinabove, no award was made for loss of expectation of life, and therefore the issue of double compensation does not arise. 30.As for special damages, the lower court’s award was impugned on the ground that the receipts relied on were not generated by an electronic tax register and therefore were inadmissible were of no probative value. The appellants relied on the case of Leonard Nyongesa v Derick Ngula Righa 2013 eKLR, wherein Hon. Kasango, J. was of the opinion that:... a receipt for which payment of stamp duty is required under the Stamp Duty Act is admissible in evidence on condition that the person issuing the same takes it for stamp duty assessment before the court can attach any probative value to it. In my opinion, if that is not done, the court cannot award any damages based on such a receipt..." 31.However, the Court of Appeal, in Paul N. Njoroge v Abdul Sabuni Sabuni 2015 eKLR was of a contrary view. It held that:The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A 2007 eKLR..." 32.The Court proceeded to reiterate it position on the matter by emphasizing the position earlier adopted by Law J. (as he then was) in Suderji Nanji Limited v Bhaloo 1958 EA 762 that:...before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty ... The appellant has never been given the opportunity to pay the requisite stamp and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2nd Defendant/Respondent and he must be given the opportunity...We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported non-compliance with the Stamp Duty Act. At all events, the act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof..." 33.In this case there is no indication that the receipts were ever objected to before the lower court; and therefore the lower court had no opportunity to express itself on their admissibility. In any case, it is untenable in view of the Court of Appeal decision aforementioned. 34.On funeral expenses, I am guided by the Court of Appeal decision in Premier Dairy Limited v Amarjit Singh Ssagoo & another 2013 eKLR thatWe do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with the issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved.” 35.It is noteworthy that the learned magistrate only awarded what was proved. In his Particulars of Special Damages, the respondent asked for Kshs. 90,000/= out of which only Kshs. 70,140/= was awarded. That amount cannot be said to be unreasonable. 36.In the result, the appeal fails and is hereby dismissed with costs to the respondent.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2026.............................HON. OLGA SEWEJUDGE