https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8721

Big Road Enterprises v Masain & another (Suing as the Legal Administrators of the Estate of Robert Nyambane Ogega – Deceased) (Civil Appeal E120 of 2024) [2026] KEHC 8721 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8721 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E120 of 2024 KL Kandet, J June 19, 2026 Between Big Road Enterprises Appellant and Fridah Chepkemoi Masain 1st Respondent Kevin Ogega 2nd Respondent Suing as the Legal Administrators of the Estate of Robert Nyambane Ogega – Deceased (Being an appeal from the judgment of Hon. P.M. Mugure, Principal Magistrate, delivered on 29th May 2024 in Limuru CMCC No. E611 of 2021) Judgment 1.The Appellant, Big Road Enterprises, challenges the whole judgment of the trial court delivered on 29th May 2024. The trial court found the Appellant 100% liable for a fatal road traffic accident that occurred on 8th July 2021 along the Narok, Mai-Mahiu High way. The court awarded the Respondents (the deceased’s legal administrators) damages as follows:i.Pain and suffering: Kshs.50,000/-ii.Loss of expectation of life: Kshs.150,000/-iii.Loss of dependency: Kshs.3,366,096/-iv.Special damages: Kshs.40,700/-Total: Kshs.3,606,096/- plus costs and interest. 2.The Appellant contests both liability and quantum. The Appellant argues that the deceased substantially contributed to the accident, that the trial court used the wrong multiplicand (minimum wage), and that the multiplier of 30 years was excessive. Background Facts 3.On 8th July 2021, the deceased, Robert Nyambane Ogega, was riding motorcycle registration number KMFG 112M along the Narok-Mai Mahiu Highway at Mutarakwa area. He was involved in a collision with motor vehicle registration number KCH 792E/ZF 4742 Trailer owned by the Appellant and driven by DW1. The deceased died on the spot. 4.The Respondents called two witnesses. PW1 (the deceased’s widow) testified that she was informed the Appellant’s trailer was being driven at high speed, lost control, veered off its lane, and hit the deceased. PW2 (a police officer) produced the police abstract showing the matter was pending investigations. 5.DW1 (the driver) testified that the deceased was attempting to overtake another vehicle (KCV 044M), lost control, hit that vehicle, and then went under the trailer. DW1 admitted he saw the motorcycle before the accident but did nothing to avoid it. He produced no sketch plan, no photographs, no inspection certificate, and did not join the driver of KCV 044M as a third party. Issues for Determination 6.The appeal raises the following issues:i.Whether the trial court erred in finding the Appellant 100% liable.ii.Whether the trial court erred in adopting a multiplicand of Kshs.14,025.40 (the 2022 minimum wage for a general labourer) instead of the 2018 minimum wage of Kshs.7,240.95.iii.Whether the multiplier of 30 years was reasonable.iv.Whether the trial court failed to consider the Appellant’s submissions and authorities. Liability 7.The Appellant argues that DW1’s evidence, that the deceased caused the accident remained uncontroverted because the Respondent’s called no eye witness. 8.First, the trial court had the advantage of hearing and observing the witnesses. DW1’s testimony was internally inconsistent. He admitted it was drizzling and the road was wet, yet he did not know his speed and did not slow down. He saw the motorcycle but did nothing to avert the accident. He alleged the motorcycle first hit another vehicle, but he called no witness from that vehicle and did not enjoin its driver as a third party. 9.Second, the trial court correctly noted that the Appellant produced no sketch plan, photographs, or certificate of inspection to prove the alleged point of impact or to support the defence version of events. 10.Third, the principle in Kiema Mutuku v Kenya Hauliers Service Limited (no liability without fault) does not assist the Appellant. The evidence on record shows fault on the part of DW1.He failed to keep a proper lookout, failed to slow down in wet conditions, and failed to take evasive action despite seeing the motorcycle ahead. As held in Blyth v Birmingham Water Works Co. and Mary Njeri Murigi v Peter Macharia & another, a driver of a motor vehicle owes a duty of care to other road users, and that duty includes avoiding excessive speed, keeping a good lookout, and controlling the vehicle to stop safely when the circumstances demand. 11.The assertion that the deceased was to blame for attempting to overtake another motor vehicle was not proved. No independent eye witness was called by the defence to corroborate that evidence. The trial court was entitled to find the Respondents’ version that the Appellant’s trailer was being driven carelessly. 12.Accordingly, I find no error in the trial court’s finding of 100% liability against the Appellant. The ground of appeal on liability fails. Quantum – Multiplicand 13.The Appellant argues that the trial court ought to have used the minimum wage under the Regulation of Wages (General) (Amendment) Order, 2018 (Kshs.7,240.95 for a general labourer in other areas) rather than the minimum wage under the Kenya Gazette Supplement No. 114 of 1st July 2022 (Kshs.14,025.40). 14.I agree with the Appellant in part. The deceased died on 8th July 2021. The applicable minimum wage for a general labourer at the time of death is the 2018 Order, not the 2022 Order. The trial court erred by applying a wage regulation that came into effect a year after the deceased’s death. 15.However, the Respondents pleaded that the deceased was a security officer/rider earning Kshs.45,000/- per month. That was not proved. The Respondents produced no letter of employment, pay slip, or bank statement in support of the deceased’s earnings as at the time of the accident. In the absence of proof of actual earnings, the court properly falls back on the statutory minimum wage applicable at the date of death. 16.The correct minimum wage for a general labourer (other areas) under the Regulation of Wages (General) (Amendment) Order, 2018 is Kshs.7,240.95 per month. I adopt that as the multiplicand. Quantum – Multiplier 17.The deceased was aged 29 years at the date of death. The trial court adopted a multiplier of 30 years, which would take the deceased to age 59 years. The Appellant proposed 25 years, citing James Gakinya Karienye (deceased aged 28 and a multiplier 25 was adopted) and Jeremiah Njuguna (deceased aged 27 and a multiplier of 25 was granted). 18.I note from the Appellant’s own submissions (page 4 of the Record of Appeal) that it proposed a multiplier of 25 years. The Respondents cited SMM v Chairman Board of Governors Boys High School where a multiplier of 27 years was upheld for a deceased aged 28 years. 19.In the authorities attached by both parties (e.g Crown Bus Services Ltd v Jamilla Nyongesa – multiplier of 30 years for a 21‑year‑old reduced on other grounds; South Sioux Farms Ltd v Selina Robi Mwita – multiplier reduced from 30 to 27 years for a 28‑year‑old; Kenya Wildlife Services v Geoffrey Gichuru Mwaura – multiplier of 20 years for a 21‑year‑old not accepted, but 33 years was used in West Kenya Sugar Co. Ltd v Falantina Adungosi Odionyi for a 21‑year‑old). 20.I find that a multiplier of 30 years for a 29‑year‑old is on the higher side but not wholly unreasonable. Considering the vagaries of life (illness, accident, economic changes), a conservative multiplier is appropriate. I shall adopt a multiplier of 27 years which I find just and reasonable. This aligns with the approach in South Sioux Farms Ltd (supra) and balances the deceased’s expected working life with the uncertainties of life. 21.The trial court used a dependency ratio of 2/3. The deceased was married to PW1 (the widow) and had children. The ratio of 2/3 is just and reasonable. I uphold it. 22.Noting the above finding on the multiplicand, multiplier and dependency ratio, the workings will be as hereunder:Loss of dependency7,240.95 × 12 months × 27 × 2/3 = Kshs.1,564,045.20/- Pain and Suffering 23.The trial court awarded Kshs.50,000/-for pain and suffering. This figure falls within acceptable based on recent awards under this head. I uphold the same Loss of Expectation of Life 24.The award of Kshs.150,000/- for loss of expectation of life is within the conventional rate and I uphold the same. The Appellant did not seriously challenge these amounts, though it argued for a lower award in its submissions. Special Damages 25.The trial court awarded Kshs.40,700/- for special damages. The Appellant did not specifically challenge this figure, and it was pleaded and proved. The same is uphold. Disposition 26.The trial court’s finding on liability at 100% against the Appellant is upheld. For the reasons stated hereinabove the awards under the specific heads on quantum are allowed and or varied as follows:Pain and suffering50,000/-Loss of expectation of life150,000/-Loss of dependency1,564,045.20/-Special damages40,700/-Total1,806,045,45.20 27.In the end, judgment is hereby entered for the Respondents against the Appellant for Kshs.1,806,045.20/- together with interest on special damages at court rates from the date of filing the suit (20th December 2021) and interest on general damages at court rates from the date of the trial court’s judgment (29th May 2024). 28.On costs, the appeal has partially succeeded. In the circumstances I direct that each party bears own costs of this appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Waithaka For The AppellantNo Appearance For The RespondentCourt Assistant: Jael Nosim