https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8395

Ngatia v Wairimu & another (Suing as personal representatives of the Estate of John Kaniaru Mindia) (Civil Appeal E079 of 2021) [2026] KEHC 8395 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8395 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E079 of 2021 DKN Magare, J June 11, 2026 Between Daniel Ndoria Ngatia Appellant and Mercy Wanjiru Wairimu & Wilfred Mundia Macharia (Suing as personal representatives of the Estate of John Kaniaru Mindia) Respondent Judgment 1.The appeal arises from the Judgment and decree of Honourabe V.S. Kosgei (Resident Magistrate) delivered in Karatina PMCC No. 27 of 2029 on 14.12.2021 in favour of the Respondents as follows:a.Liability 50:50b.Pain and suffering – Kshs. 50,000/=c.Loss of expectation of life – Ksh. 100,000/=d.Loss of dependency – Ksh. 3,000,000/=e.Special damages – Ksh. 28,080/=f.Costs of the suit and interest 2.The Appellant being aggrieved by the award lodged the Memorandum of Appeal dated 17.12.2021. The Memorandum of Appeal raises only one substantive issue, that is:The leaned magistrate erred in properly appraising the evidence and the law regarding the assessment of damages and so arrived and an erroneous and excessive award of damages. 3.The appeal is against the quantum of general damages only. Pleadings 4.The Respondent instituted the suit in the lower court vide the Plaint dated 21.3.2019 claiming damages for an accident that occurred on 14.3.2018 involving the deceased as pedestrian walking along Ngorano-Kiamariga road when the Appellant’s driver or agent drove motor vehicle Registration Number KCJ 642C so negligently causing it to knock down the deceased. The Respondent set forth particulars of negligence and pleaded special damages as well as general damages. 5.The Appellant filed a defence and denied liability while also blaming the accident on the deceased. Evidence 6.PW1 was Wilfred Mundia. He relied on his witness statement dated 23.3.2019 and produced his bundle of documents of the same date. On cross examination, he did not witness the accident. He had 4 children and had chased them away with their mother. He had no birth certificates. 7.PW2 was No. 82326 PC Gabriel Chemosi. According to him, the accident occurred at 1930 hrs. The deceased was crossing the road when he was hit. PC Owino visited the scene. The matter was pending under investigation. He produced the police abstract. 8.The Appellant closed case without calling a witness. The parties did not file submissions. Analysis 9.This being a first appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. 10.Except, however, it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon 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 demeanour of a witness is inconsistent with the evidence in the case generally.” 11.Circumstances in which an appellate court will interfere with the quantum of damages awarded by a trial court were clearly laid out in the case of Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows:“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.” 12.This appeal being on quantum only, the principles guiding this Court as the first appellate court have crystalized. This is in recognition that the award of damages is discretionary. The Court of Appeal pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR as follows:The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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 low or so inordinately high that it must be a wholly erroneous estimate of the damage. 13.The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance v British Columbia Electric Co Ltd, in the decision of Henry Hilanga v Manyoka 1961, 705, 713 at paragraph c, where the learned judge ably pronounced himself as doth regarding disturbing quantum 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.' 14.Larger sums impede service to the community as premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. The words of Lord Denning in the West (H) & Son Ltd (1964) A.C. 326 at page 341 on excessive awards on damages are important to replicate herein thus:“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a National Health Service. But the health authorities cannot stand huge sums without impending their service to the community.The funds available come out of the pockets of the taxpayers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.” 15.The mid-point is that the award of general damages must not be on the runway but should be contained to be commensurate with the injuries suffered. The words of Lord Denning were reiterated by Nyarangi, JA. in Kigaragari v Aya [1985] eKLR thus:“I would express firmly the opinion that awards made in this type of cases or in any other similar ones must be seen not only to be within the limits set by decided cases but also to be within what Kenya can afford. That must bear heavily upon the court. The largest application should be given to that approach. As large amounts are awarded, they are passed on to members of the public, the vast majority of whom cannot just afford the burden, in the form of increased costs for insurance cover (in the case of accident cases) or increased fees.” 16.The estimate of damages is objective and this court will intervene only if the award by the lower court was inordinately high in the circumstances. In the case of Kilda Osbourne v George Barned and Metropolitan Management Transport Holdings Ltd & another Claim No. 2005 HCV 294 being guided by the principles enunciated by both Lord Morris and Lord Devlin in H. West & Sons Ltd v Shephard {1963} 2 ALL ER 625 Sykes J stated as follows:“The principles are that assessment of damages in personal injury cases has objective and subjective elements which must be taken into account. The actual injury suffered is the objective part of the assessment. The awareness of the claimant and the knowledge that he or she will have to live with this injury for quite sometime is part of the subjective portion of the assessment. The interaction between the subjective and the objective elements in light of other awards for similar injuries determines the actual award made to a particular claimant.” 17.It is thus common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that:…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation.In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…..” 18.With the above guide, if the award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. For the Appellate Court to interfere with the award, it is not enough to show that the award is high or had I handled the case in the Subordinate Court I would have awarded a different figure. 19.The court awarded Ksh. 50,000/= under the head for pain and suffering. In Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased) paragraph 21 the Hon. Odunga J (as he then was) observed: -“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness… a distinction ought to be made between a case where the deceased passes away instantly and where the death takes place some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.” (Emphasis mine). 20.The above case law points to the fact that the award of pain and suffering depends on whether the deceased died on the spot or after some time. That is, 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. Where a deceased died on the spot, courts have taken the approach that minimal damages should be granted unlike in a case where a deceased die later on. In this case, the deceased passed away immediately after the accident. The amount that the court awarded of Ksh. 50,000/= was not inordinately low or high and I uphold it. 21.On loss of expectation of life, I do not think Ksh. 100,000/= was inordinately high. There was no evidence that the deceased was of ill health and Ksh. 100,000/= was within the conventional award. In Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR it was observed that:“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 award range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” 22.Under dependency ratio, to interfere with the finding of the lower court on loss of dependency, this court has to find basis. The deceased herein was 68 years. It was pleaded that he had one daughter who was adult. PW1 testified on other children said to have gone with their mother but there was not much evidence on this. 23.The court appears to have applied the global sum approach in awarding Ksh. 3,000,000/= as general damages though this was not stated in the judgment. In the absence of proof of income and the source of income, the global approach method would be most suitable in assessing loss of dependency. I am fortified by the reasoning of the court in the case of China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] eKLR as follows;On review of the evidence it may be just on the facts of this particular case to adopt the global sum assessment approach. Where the trial court considers that a particular case justice would be better served by applying a global sum approach instead of a multiplier to substantially dispose off the assessment of damages. There can be no misdirection for that procedure. To put simply one cannot even rule out that the deceased income generating activities entitled him to monthly income of Kshs.18,000 per month. Had the deceased continued for longer he was to provide for the dependents. I find no reason to take a different view of from the learned trial magistrate with regard to an assessment on loss of dependency under the Fatal Accidents Act. 24.In the circumstances, the sum of Ksh. 3,000,000/= awarded by the lower court was grossly excessive. The deceased was 68 years old and there was no evidence that he had a child or wife or parent who depended on him, except a 28 year old daughter. Award of nominal damages will suffice. In this case, a global sum of Ksh. 700,000/= would in my view be adequate compensation for the deceased herein in respect to damages under loss of dependency under the Fatal Accidents Act. 25.On special damages, the Respondents pleaded Ksh. 28,080/= and which the court awarded as the amount that was proved. In the absence of basis to question the receipts produced in evidence which I note the court’s award arose from, I will not disturb this finding. 26.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 27.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 28.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 29.In the circumstances of this case, each of the parties to bear their own costs. Determination 30.In the upshot, I make the following orders: -a.The appeal is merited and is allowed.b.The Judgment of the lower court on the award of general damages for loss of dependency is set aside and substituted thereof with Ksh. 700,000/=.c.Each party to bear its costs. DELIVERED, DATED AND SIGNED AT NYERI THIS 11TH DAY OF JUNE THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -No appearance for partiesCourt Assistant – Martin