[2025] KEHC 17063 (KLR)

Commercial Builders v Mwangi (Suing as the legal representative of the Estate of Dennis Wilson Murage) (Civil Appeal E029 of 2023) [2025] KEHC 17063 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 17063 (KLR)

Republic of Kenya

In the High Court at Nyandarua

Civil Appeal E029 of 2023

CM Kariuki, J

February 6, 2025

Between

Commercial Builders

Appellant

and

Pauline Wamaitha Mwangi (Suing as the legal representative of the Estate of Dennis Wilson Murage)

Respondent

(Being an Appeal from the Judgement/Decree of Hon. D. Nyaboke Sure, Senior Principal Magistrate in Engineer SPMC No. E192 of 2021 delivered on 22nd March 2023)

Judgment

1. The Appellant herein, being aggrieved by the judgment/decree of Hon. D Nyaboke Sure delivered on 22nd March 2023 in Engineer SPMC No. E192 of 2021, hereby appeals against the whole of the judgment on the following grounds: -I.That the learned Magistrate erred in law and in fact by finding the Defendant 50% liable for the accident.II.That the learned Magistrate erred in law and in fact in finding that the Plaintiff had proved his case on a balance of probability.III.That the learned Magistrate erred in law and fact by failing to consider the evidence by the police officer and Defendant's driver on the circumstances of the accident thereby arriving at an erroneous conclusion on liability.IV.That the learned Magistrate ventured into the realm of speculation on how the accident occurred in total regard to the facts and the evidence placed before her.V.That the learned trial Magistrate erred in law and in fact in failing to accord due regard to the Appellants' submissions on liability and the evidence on record hence arriving at an erroneous conclusion.VI.That the learned Magistrate erred in law and in fact by awarding an inordinately high quantum of damages for loss of expectation under the Fatal Accidents Act.VII.That the learned Magistrate erred in law and in fact by using an erroneous multiplier and an exaggerated multiplicand thus arriving at an inordinately high quantum of damages for loss of dependency under the Fatal Accidents Act.

2. Reasons wherefore, it is proposed to ask this Honorable Court for orders that:I.This Appeal be allowed with costs.II.The judgment of the trial court delivered on 22nd March, 2023 on both liability and quantum aside and a reasonable judgment/award be given.III.The costs of the appeal be borne by the Respondent.IV.Any other orders this Honourable Court may deem fit to grant.

Appellant’s Written Submissions 3. Whether the trial court's finding on liability was justified and whether the award of Kshs 4. 536,000 for general damages for loss of dependency under the Fatal Accidents Act was manifestly excessive

4. The Appellant contends that there was enough evidence to infer negligence on the part of the deceased and why he should have borne greater responsibility for the accident instead of 50. 50 as per the court's finding

5. b. Proof of Negligence 6. The Appellant stated that it was the Respondent’s case that the Appellant's driver negligently and recklessly rode motor vehicle registration KCF 153X permitting the same to hit and ram on the deceased rider of motor cycle A15353 from behind while overtaking However, this account of the accident was not confirmed by PVW 3 PC Thomas Mosoti who reading from the police file stated that both the motor vehicle and the motor cycle were heading in the same direction and it was the deceased rider who hit the right rear of motor vehicle registration number KCF 153X at a sharp bend at Kanyamwe area.

7. It was asserted that the police officer's account of the accident corroborates the Appellant's driver's account all the way from his Witness Statement dated 11th February, 2022 and his oral testimony in court 15th February, 2023 i.e.

8. PW2 & 3 confirmed that the both the Appellant's driver and the deceased rider were heading to Ol-Kalou town general direction.

9. PW 3 confirmed that motor vehicle registration number KCF 153 X was ahead of the deceased rider at the time of the accident.

10. PW 3 confirmed that motor vehicle registration number KCF 153X was hit on the rear right and the motorcycle was damaged at the front.

11. PW 3 confirmed that he found the deceased rider on the right side of the road as you face Ol-Kalau, and the motor vehicle was on the left lane as you face Ol-Kalou.

12. Additionally, it was asserted that the Appellant's driver account is corroborated by cogent circumstantial evidence, in proof of the point of impact, he produced photographs marked as D. Exh 2 that he took from the scene on the material day of the accident. The photograph confirms the color of motor vehicle registration KCF 153X and places a numberless motor cycle A15353 at the scene which PW 3 PC Thomas Mosoti later confirms is registered as KMFD 610T. Although, the probative value of the photographs was hotly contested during trial, we submit that even if circumstantial, the photographs further corroborate the Appellant's and the police account that the motorcycle was found on the right side of the road facing Ol-Kalou direction and motor vehicle registration KCF 153X was further left.

13. The Appellant stated that the Respondent will try to convince the court that the accident scene was interfered with but that remains unproved. The police officer said the scene might have been interfered with he was not categorical that it was. In any event, if the scene was tampered with, wouldn't there have been trail of blood from the supposed initial place the body was moved from? We behoove the court to re-look the photographs adduced in court and confirm even circumstantially where the two vehicles were after the accident considering the direction they were headed to.

14. Secondly, in proof of their case the Respondent called PW 2 Kennedy Njuguna who adopted his statement dated 19th September 2022 It was this witness who introduced the issue of overtaking that was not initially pleaded neither was it confirmed from the police investigations. Furthermore, Kennedy Njuguna's name was not indicated in the police abstract issued at Ol-Kalou Police Station and neither was it in the list of statements in the police file during trial My Lord, while the Respondent contended in her submissions that there were other eye witnesses at the scene who were at liberty to later record statements with the police, no explanation was given as to why Kennedy Njuguna's name was not in the list of witnesses confirmed by PW 3 PC Thomas Mosoti (who attended court with the physical police file) during trial even after stating in his statement and I quote:a."Later, I went and recorded my statement and left my contacts at the police station. I was later called by the firm of Muchiri Gatheca & Co. Advocates to record this statement."

15. It was asserted that the Respondent's took issue with the fact that the police officer only had statements of the Appellant's driver, tum boy and deceased’s father but no independent eyewitnesses. First of all, that already confirms that PW-3 lied about reporting the matter to the police even after being asked to re-confirm in cross- examination-we are at pains not to conclude that he was not there at all. It was stated that as per the record (page 141 of the Record of Appeal) both parties confirm that there were other people at the scene, and it is therefore not strange that the police was also told what happened by the people at the scene

16. It was submitted that the fact that the deceased had died and could not defend himself does not absolve the Administrators of their burden of proof and/or insinuate that the Appellant's account of accident is partisan and therefore untrue. The court was expected to consider the totality of the circumstances of the case and infer negligence and we contend that the evidence led by the Appellant shows that the rider had a greater duty of care

17. That perchance this court is inclined to find that the police officer's account was hearsay, we further submit that the allegation that the deceased rider of motorcycle A15353 was hit from behind is not plausible in the present circumstances for the following reasons: -

18. The Inspection Report produced as D. Exh 3 shows that motorcycle registration number A15353 was damaged on the front parts, i.e. front fender and knee guard. It would be expected that if the impact was that bad, the motorcycle would have visible damage to the back. How come the back side remains unscathed if the deceased was truly violently hit from behind and he died on the spot?

19. If the Appellant's driver was overtaking as alleged, it would be expected that the motorcycle would be found on the left side of the road facing Ol-Kalou direction after being hit but that was not the case. From the record, (page 134 of the Record of Appeal), PW 2 stated that the lorry was at a high speed and unstable. It overtook the motorcycle, but it veered off and hit it. Which begs the following questions:i.How could the Appellant's driver have overtaken completely and still be said to be behind the rider?ii.Alternatively, if it veered off to the rider's side (which is left of the motor vehicle) in the process of overtaking, what was the motorcycle doing on the opposite side (right side) as you face Ol-Kalou after the accident?

20. The lorry did not have any visible damage, and the point of impact was on the rear right side at the angle line.

21. The scene could have been tampered with (which is denied) as contended by the Respondent but that remains mere speculation.

22. It was averred that the requirement for cogent corroboration of facts from an independent party in a case with varied eyewitness accounts was discussed in Evans Osuga Mboi v James Lesaaya & Another [2021] eKLR Similarly, in Mercy Ben & Another v Mt Kenya Distributors & Another (2022] eKLR

23. It was submitted that PW 3. PC Thomas Mosoti was the investigating officer in this matter who visited the scene of the accident and based his testimony on conclusive police investigations recorded in the police file which had the sketch map, OB extract, statements from DW 1, other eye witnesses and the inspection reports weighty enough to assist this court make an Inference of who was to blame for the accident. Although the police officer was not at the scene of the accident, it was confirmed during trial that the police station is 700 metres from the scene of the accident, and it did not take them long to arrive at the scene.

24. They also contended that the only plausible explanation for the deceased rider hitting the rear right of motor vehicle registration number KCF 153X at the sharp bend is that he was either over-speeding or trying to overtake from behind. It is therefore rather unfortunate that the learned Magistrate in analyzing the evidence before her ventured into the realm of speculation as to what could have happened and ignored the plausible explanation based on the evidence presented i.e.

25. Page 144 of the Record of Appeal paragraph 2, the learned Magistrate seems to agree that the motorcycle fell on the right but speculates on how it could have happened, she stated: -“I have considered the above and I generally agree that in the order of things, nature does not react the way it is expected. In this case, the lorry did not acquire any damages for PW 3 to state with certainty its point of impact. He relied on what DW 1 told him that it was rear right. He further relied on DW 1 evidence that the lorry was not overtaking."

26. Therefore, it does not follow that if something was not damaged, then it was not hit. The Plaintiff needed to controvert the Defendant's evidence which was not done. They simply say that just because the Defendant says it then it's a lie.

27. Page 144 of the Record of Appeal paragraph 3, the learned Magistrate takes the place of the witness from the bench and speculates thus“I have reminded myself that the accident occurred at 7p.m, and PW 3 stated that visibility was not good. Further, DW 1 stated that his parking lights were on as well. It is, therefore, possible that PW-2's observation may have been impaired but ultimately, he saw the lorry try to veer and it ended up colliding with the motorcycle.'

28. It was stated that PW 2 introduced the issue of overtaking but as demonstrated earlier even outside the police account the same is not plausible considering where the vehicles landed and the Inspection Report produced.

29. Paragraph 1 page 145 of the Record of the Appeal, the leaned Magistrate ventures into the realm of speculation again thus:

30. "I have looked at the motorcycle's inspection report and the damages were on the front fender and the knee guard The Defendant stated that this is an indication of the motorcycle colliding with the lorry, but I have looked at his photograph and the motor cycle fell on its side where I am told it was pushed by impact. What are the possibilities that these damages occurred when the motorcycle fell and was pushed to the right side of the road by impact?

31. I tend to agree with the Plaintiff that the person who would have given an alternative account of what happened is deceased, but he is not present to tell us what happened.

32. It was stated that it is interesting that the learned Magistrate attaches weight to the photographs but refuses to see what is right there. It is not strange that the rider fell on the side, how else was he supposed to fall if it hit the lorry on the rear right angle?

33. Paragraph 3 page 145 of the Record of the Appeal, the learned Magistrate erred in accepting that the scene was tampered with, without evidence. Your Lordship, no evidence was adduced to show the alleged tampering or how it fundamentally affected where the two vehicles fell. They submitted that it does not follow that attempts by members of the public to assist the deceased meant that the deceased had fallen elsewhere.

34. Page 146 of the Record of Appeal paragraph 3, the learned Magistrate erred by placing a higher burden on the Appellant's driver to see the rider if he was truly behind. She stated thus: -

35. PW 3 conceded that the deceased was wearing a helmet and reflector jacket. I am further convinced that before the collision, DW 1 ought to have noted a vehicle behind it and the reflector jacket and this is if the deceased was truly riding behind the lorry.

36. The Appellant averred that they are at pains to understand what this higher duty was supposed to achieve What was the Appellant's driver to do even if he saw the rider behind him? Both parties conceded that they were negotiating a sharp corner and more care was expected from road users.

37. Even if the court was to agree with the Respondent's submission in the lower court that the Appellant's driver had over 10 years' driving experience and should have used his side mirror, it was the deceased who was behind a huge lorry and better placed to appreciate the dangers of over-speeding and/or overtaking at a sharp bend We submit that the deceased rider could not have been driving at a slow speed and in control the motor cycle for him to ram onto the rear right of the Appellant's motor vehicle and lose his life.

38. From the foregoing, the Appellant pray that this court re-looks at the evidence adduced and find that this is not a case of contributory negligence as alluded to by the learned Magistrate The learned Magistrate should not be heard to say it cannot decide and/or is not sure who caused the accident when there is overwhelming evidence to show that the rider was the one who rammed onto the rear of motor vehicle registration number KCF 153X Mitsubishi FX and lost his life. The 50. 50 finding does not reflect the true circumstances of the case, the rider should be found totally liable or bear the greatest responsibility as submitted in the lower court

39. Quantum: 40. On the computation of the appropriate quantum of damages, they placed reliance and pray that this court be guided by the following case laws that enunciate on the matter of determining quantum. Lord Morris of Borth-y-Gest in H. West (H) & Son Ltd v Shepherd [1964] AC. 326,345, Joseph Musee Mua v Julius Mbogo Mugi &3 others [2013] eKLR

41. It is with this in mind that we submit an alternative suitable amount calculated as hereunder-Under the Law Reform Act, Cap 26 Laws of KenyaLoss of Expectation of Life

42. The deceased is said to have died at the age of 29 years and his life prospects cut short by the accident. Reliance was placed on Benham v Gambling (1941) AC 157, Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLRUnder the Fatal Accidents Act, Cap 32 Laws of Kenya

43. Loss of Dependency 44. In assessing damages under the Fatal Accidents Act, the court must be guided by the age of the deceased, life expected vicissitudes of life and the acceleration of the lump sum payment. In the instant case the deceased was an electrician who died at the age of 29. We submit that the sum of Kshs. 840,000/= is more than sufficient under this head computed as follows

45. Net pay (Kshs: 28. 000) X 1/4 X 12 X 10 = Kshs. 840,000/=

46. They urged the court to view a multiplier of 10 years favorably considering life's uncunning and unpredictable circumstances that would lower the deceased’s chances of survival. Reliance was placed on the case of James Gakinya Karienye & Another (suing as the legal representative of the estate of David Kelvin Gakinya (deceased) v Perminus Kariuki Githinji [2015] eKLR

47. Secondly, according to the Chief's Letter dated 21 June 2022, the deceased was only survived by his father Peter Mwangi Murage, who later passed on 22nd February 2022. The Administrator did not provide any explanation as to why her name and Rahab Wangari Ngugi's was not included in the letter as the step- mother and mother respectively. It is also not automatic that if the deceased and relatives, then he financially supported them.

48. It was therefore submitted that the learned Magistrate erred in law and in fact in assuming that all Kenyan children give "black tax". Reliance was placed on Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR

49. It was contended that the dependency ratio adopted by the trial court was unjustifiably high in the circumstances. If the court is inclined to reject our proposal for %, we still posit that ½ is high and 1/3 is a much reasonable middle ground.

50. Thirdly, it was stated that the deceased’s pay slip shows that he used to earn a net salary of Kshs 28,000/=, we submit that the gross salary of Kshs. 30,000/= used by the learned Magistrate was erroneous. For the above reasons we urge this court to review the award at a quantum downwards.

51. Respondent’s Submissions a. Liability 52. It is not in dispute that he alleges must prove; in this case the Respondent instituted the claim and in support of his case, called three witnesses, including the investigating officer and an eyewitness who was present at the scene. On the part of the Appellant, they relied on the testimony of the driver of KCF 153 X.

53. It was stated that it is apparent that the Appellant questions the veracity of the eyewitness (PW-2) who testified that he was present at the scene alongside other people at the scene and he gave his statement being that the deceased's father was known to him.

54. It was asserted that the eyewitness did state that the accident occurred when it was dark and rendered his testimony in accordance with what he saw. It was the police officer’s (PW3) and the driver’s (DW1’s) evidence that there were a lot of people at the scene, that he volunteered to give his statement of accounts on what he saw on behalf of the deceased The police officer confirmed that he only took the statement of the the driver DW-1 and that of his turnboy not of the other witnesses at the scene, the witness cannot be faulted for that.

55. The Respondent did confirm that the accident occurred, he confirmed that there were many people on the site of the accident and that the scene was tampered with and more so that he was yet to prefer any charges as he could not establish who was to blame. He further confirmed that he only took the statement of DW1 and that of his turnboy but he did not take the statement of the other witnesses at the scene hence the conformity on the sequence of events, calling the court to disregard the evidence of an independent eye witness just because the sequence of events does not conform to their witnesses narration is prejudicial to say the least.

56. The trial court in its judgment considered the probabilities adduced from the hearing and submissions of the parties, she considered the fact that the investigating officer as an expert witness testified that he could not apportion blame from his investigation, he forwarded the file to the ODPP for their opinion to which a recommendation to open an inquest file was made. Reliance was placed on the case of George Ndiritu Kariamburi-vs- Joseph Kiprono Ropkoi

57. It was stated that the court had to render its judgement based on evidence before it and the statements before court and based on that apportioned liability in the ratio of 50:50. For the Appellants to state that the trial court went into a realm of speculation yet it had to consider all the testimonies and statements before it is farfetched and does not warrant the interference of this Appellate court.

Loss of expectations of life 58. It was stated that the Appellant submits that the award of Kshs 200,000/= is too exorbitant and finds an award of Kshs 100,000/= to be sufficient placing reliance on a decision rendered 5 years ago. The court in awarding the sum of Kshs. 200,000/- under this head considering the age of the deceased who was 29 years at the time and considering the fact that the deceased was employed, with a steady source of income thus had a fruitful future. Reliance was placed on Kakamega Civil Appeal E88 of 2022(2024) Loss of Dependency

Multiplicand

59. It was averred that the multiplicand of Kshs. 28,000/- is not contested.

60. ii. Multiplier 61. The Respondent averred that the deceased died at the age of 29 and that as per the government regulations, retirement age is sixty years so the deceased would have worked for at least 31 years give or take considering the vicissitudes of life. The deceased was working in the private sector and would probably have worked beyond the sixty-year period. Prior to his death, the deceased enjoyed good health. The Respondent contended that they cannot task the trial court to determine and explore the imponderables, it is therefore the court's duty to apply the common retirement age in our country i.e. 60 years. they placed reliance on the case of Crown Bus Services & 2 others-vs- Jamilla Nyongesa and another where the court on appeal adopted a multiplier of 35 years where the deceased was aged 21 years, was in good health before his death land was working in the private industry. The Respondents in their submissions took into account that life is uncertain and thus submitted a multiplied of 27 to be acceptable. There was no evidence of the vicissitudes of life or any illnesses that would have significantly shortened the deceased's life span to only 10 years as opined by the Appellant. The Appellants cite a 2015 case in support of the multiplier of 10 years, lord considering passage of time and the inflationary trends the cited caselaw is punitive.

62. They therefore urged the court to uphold the trial courts finding on the multiplier of 27 years as the same was in line with the facts and cited caselaw quoted above.

63. iii. Dependancy Ratio 64. It was stated that the Appellant contends that the deceased was survived by his late father only, however upon the demise of the father to the plaintiff who was earlier issued with a grant ad litem, the stepmother to the deceased made an application to be issued with a grant ad litem to enable this matter to be concluded. The application was allowed, and the plaintiff was accordingly substituted. It was the plaintiff's testimony that she is a mother to the deceased, albeit not being the biological mother. She further testified that they looked up to the deceased as he was the backbone of their business. The court in its judgment did consider that when determining the dependency ratio; the court did not make an assumption; rather she opined that it is the norm to have the children take care of their parents once they come of age just as PW-1 had intimated. The court did consider the facts in this specific case when making its finding and the cited case of Lucy Wambui Kihoro(Suing as the personal representative of the Estate of Douglas Kinyua)-vs- Elizabeth Obuong, hence they submit that the dependency ratio as adopted by the trial court ought not be disturbed.

65. On whether the trial Magistrate erred in law and in fact in failing to accord due to the Appellant’s submissions and authorities on quantum on applicable principles for assessment of damages, it was contended that the trial court had all the evidence, submissions and authorities presented to it and it must have considered all these when making its decision.

66. It was stated that it is not proper for the Appellant to allege that the trial court did not accord due regard to their submissions and authorities in the absence of cogent evidence to support such allegations. That there is enough proof that the trial court considered the evidence, submissions and authorities before it when making its decision as seen in its judgment notes at pages 4, 5, 6, 7, 8, 11, 15, 18, 19, 20 and 22 of the record of appeal.

67. Analysis and Determination 68. This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.

69. In Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, the Court of Appeal stated that: -“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”

70. Additionally, in Peters vs Sunday Post Ltd [1958] EA 424, the Court held that:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”

71. Similarly, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the same stated with regard to the duty of the first appellate court.This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

72. The appeal herein emanates from a road traffic accident claim in Engineer CMCC E192 of 2021, where it was the plaintiff’s case that there was a road traffic accident on 2nd February 2021 along Ndundori-Olkalou Road between motor vehicle registration number KCF 153X (the lorry) and motorcycle registration number A15353 (the motorcycle) ridden by the deceased who sustained fatal injuries. The trial magistrate found that the plaintiff has on a balance of probability proven as against the defendants whom she held 50% liable. The plaintiff was awarded Kshs. 100,000/- for pain and suffering, Kshs. 200,000/- for loss of expectation of life, kshs. 4,536,000/- for loss of dependency and Kshs. 2,500/- as special damages subject to contribution.

73. In the instant appeal, the issue of liability and quantum is contested. The Appellant contended that this is not a case of contributory negligence as alluded to by the learned magistrate and that there is overwhelming evidence to show that the rider was the one who rammed onto the rear of motor vehicle registration number KCF 153X Mitsubishi FX and lost his life. it was stated that the 50. 50 finding does not reflect the true circumstances of the case, the rider should be found totally liable or bear the greatest responsibility as submitted in the lower court.

74. The trial magistrate analysed the evidence of both parties as to how the accident occurred and who was to blame for the same and concluded that in this case DW1 and the deceased were heading to Olkalou. That it was not clear if the deceased was behind the lorry or in front of the lorry but a collision occurred at a sharp corner. The deceased was wearing a reflector jacket and DW1 ought to have noted his presence, similarly, the deceased ought to have noted the presence of the lorry but for reasons unknown, a collision occurred and it caused the deceased’s death.

75. In Jones v Livox Quarries Ltd [1952] 2 QB608 the Court stated that: -“An appellate court will generally only interfere with a finding of contributory negligence in the event of a substantial misjudgment of the factual basis of the apportionment by the trial court. In such circumstances the Appellant Court may reassess the apportionment if it is satisfied that the assessment made by the Judge was plainly incorrect”

76. Having analyzed the trial court record and the Appellant’s and Respondent’s submissions in the present appeal, I am inclined to agree with the trial magistrate. Both parties offered varying accounts as to how the accident occurred and PW3, who was the investigating officer did not offer any conclusive evidence as to who was to blame for the accident. As correctly asserted by the trial magistrate, the deceased was not alive to offer his side of the story and perhaps shed light as to what happened on the material day.

77. Despite the Appellant’s assertions that the deceased was to blame for the accident and the arguments he advanced on the same and that the trial magistrate ventured into speculation as to the same, I agree with the trial magistrate that there were two possibilities as to how the accident may have occurred. It appears that either DW1 was overtaking the motorcycle, and it collided with it or the deceased hit the lorry. The trial magistrate correctly relied on the case of Amani Kazungu Karema vs. Jackmash Auto Limited & Another [2021] eKLR and Lakhamshi vs. Attorney General (1971) EA 118, 120 when making her determination on liability. I am of the considered view that the trial magistrate’s finding on liability that is apportioning liability in the ratio of 50:50 does not warrant the interference of this Appellate court.

78. On quantum, the Court of Appeal’s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, held that:-“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance, they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it was held as per Law, J.A that:‘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.”

79. The Appellant contended that under loss of expectation of life, the deceased is said to have died at the age of 29 years and his life prospects cut short by the accident. That the court should deem kshs. 100,000/- as appropriate under this head as there is no basis for the award of kshs. 200,000/- which the trial magistrate awarded.

80. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court stated as follows-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

81. Consequently, I Find that an award of Kshs. 200,000 was inordinately high and find that an award of Kshs. 100,000/- would have been more appropriate under the circumstances. Therefore, I substitute the award under loss of expectation of life from Kshs 200,000/= to Kshs 100,000/-

82. Under loss of dependency, the Appellant asserted that in assessing damages under the Fatal Accidents Act the court must be guided by the age of the deceased, life expected vicissitudes of life and the acceleration of the lump sum payment. In the instant case the deceased was an electrician who died at the age of 29. The sum of Kshs. 840,000/= is more than sufficient under this head computed as follows

83. Net pay (Kshs: 28,000) X 1/4 X 12 X 10 = Kshs. 840,000/=

84. They urged the court to view a multiplier of 10 years favorably considering life's uncunning and unpredictable circumstances that would lower the deceased’s chances of survival. Moreover, they argued that according to the Chief's Letter dated 21 June 2022, the deceased was only survived by his father Peter Mwangi Murage, who later passed on 22nd February 2022. The Administrator did not provide any explanation as to why her name and Rahab Wangari Ngugi's was not included in the letter as the step- mother and mother respectively. It is also not automatic that if the deceased and relatives, then he financially supported them.

85. It was contended that the dependency ratio adopted by the trial court was unjustifiably high and that 1/3 is a much reasonable middle ground. Additionally, it was stated that the deceased pay slip shows that he used to earn a net salary of Kshs 28,000/=, we submit that the gross salary of Kshs. 30,000/= used by the learned Magistrate was erroneous.

86. The deceased was a 29-year-old electrician who was gainfully employed as an electrician and earning a salary, facts that were not disputed by both parties. The trial magistrate asserted that in Kenya, employed people are expected to work up to the retirement age of 60 years and therefore adopted 27 years as the multiplier. It is my considered opinion that the statutory retirement age in Kenya is 60 years and therefore it is my considered opinion that the deceased had around 31 years of his active working life left. The award of 10 years suggested by the Appellant is inordinately low. Accordingly, I find that that the award of 27 years as the multiplier by the trial court was appropriate in the circumstances.

87. The multiplicand awarded was kshs. 28,000/- and not kshs. 30,000/- as contended by the Appellant.

88. On the dependency ratio, the learned Magistrate applied a dependency ratio of ½ , which in my view is reasonable. Accordingly, I find no basis for interfering with the finding of the learned Magistrate in this regard. Accordingly, the trial magistrate awarded kshs. 4,536,000/- under this head calculated as follows: -

89. Kshs. 28,000 x 27 x 12 x ½ + kshs. 4,536,000/-The upshot is that the Appeal partially succeeds. The learned Magistrate’s finding on liability is upheld at 50:50 and award as follows: -I.Pain and suffering kshs. 100,000/-II.Loss of expectation of life kshs. 100,000/-III.Loss of dependency kshs. 4,536,000/-IV.Special damages kshs. 2,500/-V.The award for damages is made by less 50% contribution.VI.Each party shall bear its own costs.VII.The interest at court rates applies.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 6TH DAY OF FEBRUARY, 2025. ..............CHARLES KARIUKIJUDGE