https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10650

Karanja v Wachira (Suing as the Legal Representative and Administrator of the Estate of Manasse Mwaniki Wachira – Deceased) (Civil Appeal E090 of 2024) [2026] KEHC 10650 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 10650 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E090 of 2024 EM Muriithi, J May 14, 2026 Between David Maimba Karanja Appellant and Irene Wambui Wachira (Suing as the Legal Representative and Administrator of the Estate of Manasse Mwaniki Wachira – Deceased) Respondent (Being an Appeal from the Judgment and Order of Honorable Martha Opanga (P.M) delivered on 16/7/2024 at Wang’uru PMCC No. E061 of 2022) Judgment 1.By a plaint dated 25/3/2022, the Respondent sued the Appellant, seeking general damages under the Law Reform Act and Fatal Accidents Act, special damages of Ksh. 54,750 and costs of the suit plus interest. The Respondent pleaded that on or about 25/11/2021 along Embu- Mwea road at Gwakafuko stage area in Gwakarifa Gathoge stretch, the deceased was a lawful pedestrian when the Appellant’s authorized driver drove motor vehicle registration number KCU 717 J recklessly and negligently that it lost control and hit the deceased thereby occasioning him fatal injuries. 2.The Appellant denied the claim vide his statement of defence dated 13/7/2022 and prayed for the Respondent’s suit to be dismissed with costs. 3.Upon full hearing, the trial court found the Appellant to have been 100% liable and awarded general damages for pain and suffering of Ksh. 30,000, Ksh. 200,000 for Loss of Expectation of Life, Ksh. 3,000,000 for Loss of Dependency and special damages of Ksh. 54,750 together with costs and interest. The appeal 4.On appeal, the Appellant vide his memorandum of appeal on 5/8/2024 set out 13 grounds as follows:a.The Learned trial Magistrate erred in fact and law in failing to consider conventional awards in cases of similar nature thereby awarding exorbitant and inordinately high general damages without regard to the laid down principles and without giving any legal basis for the sums awarded under the various heads.b.The learned Magistrate erred in both law and fact in assessing general damages for loss of dependency at Kshs. 3,000,000/=, which assessment when viewed against the evidence adduced and the pleadings in general, is manifestly excessive and inordinately high so as to amount to a miscarriage of justice.c.The learned Magistrate erred in both law and fact in assessing general damages for loss of expectation of life at Kshs. 200,000/=, which assessment when viewed against the evidence adduced, is manifestly excessive and inordinately high so as to amount to a miscarriage of justice.d.The Learned trial Magistrate erred in failing to adequately consider all the evidence before him and the written submissions filed by counsel for the applicant.e.The Learned trial Magistrate erred in law and fact in assessing the claim for loss of dependency/loss of life and awarding Kshs. 3,000,000/= without giving any adequate reason or reasons for doing so.f.The Learned trial Magistrate erred in law and fact in awarding damages under the Law Reform Act as well as under the Fatal Accidents Act against the well laid down principles of law requiring the deduction of damages awarded under the Law Reform Act from the total award.g.The Learned trial Magistrate erred in law by not deducting the awarded sum of Kshs. 200,000/= under loss of expectation of life from the figure awarded under loss of dependency, Kshs. 3,000,000/=.h.The Learned trial Magistrate erred in making exorbitantly high awards under the various heads by failing to take into account that the general damages awarded to the plaintiff would be invested to earn interest. If the Learned trial Magistrate had borne that factor in mind it is reasonably possible that he would have awarded a lesser amount to the plaintiff under each head.i.The Learned Trial Magistrate erred in law and fact by failing:(i).To appreciate the significance of the various factors that emerged from the evidence of the plaintiff’s witnesses.(ii).To consider or properly consider all the evidence before them and or;(iii).To make any or any proper findings on the aspect of quantum of damages on the evidence before them.j.The learned Magistrate erred in law in holding that the Respondent had proved dependency when indeed there was no evidence supporting dependency either as found by the learned Magistrate or at all.k.The trial magistrate erred in law and fact in awarding a global sum of Kshs. 3,000,000/= for pain and suffering for a 9-year-old deceased, whereas the same is manifestly excessive and inordinately high considering similar case law awards.l.The said assessment and award of general damages is out of keeping with other Kenyan awards for comparable/similar fatal claims.m.There was no good or proper basis for the said assessment of damages. Duty of the Court 5.This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Oral Evidence 6.PW1 PC David Ngumu, attached to Wang’uru traffic accident, produced the police abstract as exhibit 1. He testified that, “I am here to produce police abstract in respect of fatal Road traffic accident which occurred on 25/11/2021 along Embu-Mwea at 1630 hours at gwaafuko stage area. It involved motor vehicle registration KCU 717 J Toyota probox driven by Martin Wangata Wambua and a juvenile pedestrian. The abstract was issued in respect of deceased Manaseh Mwaniki. The initial investigating officer PC Marambi and Kinyua went away on transfer. Driver of motor vehicle was to blame for accident. I have the OB report. Deceased was aged (8) years. Motor vehicle was form Mwea heading to Embu general direction. As a result of the accident the juvenile who was approaching the road was hit. He died on the spot. The driver Martin was charged vide TR E072/23 as per the ODPP recommendation of offence of causing death by dangerous driving. Matter is coming up for hearing on 29/4/2024.” 7.PW2 Irene Wambui Wachira, testified that, “I come from Githaraini. I am a farmer. I wrote witness statement which I rely on as my evidence in chief. I also filed documents. I request my statement to be adopted as testimony in chief and documents produced as Exhibit 1-10. On the material date four children went to the shamba they had to cross the road. They crossed on reaching yellow line miraa motor vehicle hit him. I ran to the road. I found he had died. I went to Difathas police post and reported. Manaseh was my last born. He was nine years. He went to Ichangi primary school. He was not sick. He was in grade 3. I blame driver for accident. He failed to apply brakes to allow children cross. The weather was clear. It had not rained. I testified in the traffic case. I pray for damages as per plaint.” 8.PW3 Mary Wamboi from Kanjura, testified that, “I am a farmer. I wrote witness statement. I am an eye witness. I wrote witness statement which I rely on. I was looking for cow food. I saw children pass by. They reached near the road. They stopped two of them. Suddenly I heard sound of a motor vehicle hit something. I saw the child in the air. I didn’t hear the brake sound. I screamed and fell down. I saw the motor vehicle well. I knew the child. I got up and went to where the child fell. I found his mother calling him. I told her the child had died. I told her what to do. I called for help. Police came. I blame motor vehicle for the accident. The driver failed to apply brakes.” 9.The Appellant’s case was closed with calling any witnesses. Submissions 10.The Appellant cites Selle v Associated Motor Boat Co. Ltd [1968] EA, on the duty of the first appellate court. He urges that the award of Ksh. 200,000 for loss of expectation of life was manifestly excessive and inordinately high. He beseeches the court to award the conventional figure of Ksh. 100,000 under this head, and cites Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR), Rose v Ford, (1937) AC 826 and Benham v Gamıbling (1941) AC 157. He urges that the most appropriate award for loss of dependency ought to be in the region of between Ksh. 500,000 and Ksh. 700,000, and cites Okello (Suing as representative and administrator of the Estate of Clinton Okumu Okello - Deceased) v Koech (Civil Appeal E018 of 2024) [2025] KEHC 18826(KLR) (15 December 2025) (Judgment) and Kenya Power & Lighting Company v Tabale & another (Suing on behalf of the Estate of Frida Khabai Tabale) (Civil Appeal E145 of 2024) [2025] KEHC 17834 (KLR) (21 November 2025) (Judgment). 11.The Respondent cites Selle v Associated Motor Boat Co. Ltd [1968] EA, Ilanga v Manyoka (1961) EA 705, 709, 713 9 CA-T), Lukenya Ranching And Farming Co-Operative Society Ltd v Kavoloto (1979) EA 414 and Kemfro Africa Ltd T/A Meru Express Services v Lubia & Another, No.2 [1987] KLR 30 on the duty of the first appellate court. She urges that the awards under the various heads were proper, supported by precedents, and cites David Kahuruka Gitau & Anor v Nancy Ann Wathithi Gitau & Anor [2016] eKLR, Vincent Kipkorir Tanui (Suing as the Administrator and/or personal Representative of the Estate of Samuel Kiprotich Tanui (Deceased) v Mogogosiek Tea Factory Co. Ltd & Anor [2018] KEHC 6409 (KLR), Benham v Gambing (1941) AC 157, Kenya Breweries Ltd v Saro (1991) eKLR, Abdi Kadir Mohammed & Another v John Wakaba Mwangi (2009) eKLR, Ephantus Mwangi & Another v Duncan Mwangi Wambugu (1982) 1 KAR 278, Kenya Power & Lighting Company v Dbo (Suing as the Next Friend and Father To DM (Deceased) Civil Appeal No. E028 OF 2023 (2024) KEHC 15436 and Makueni Courts Limited & Another v Felistus Kanini Ndunda (The Personal Representative of The Estate of AMK (Deceased) 2020 eKLR. Analysis and determination 12.From the grounds of appeal as framed, the sole issue for determination is whether the awards made were excessive. 13.Before delving into the merits of the appeal, the court must preliminarily address the issue whether the award for loss of expectation of life ought to be deducted from that of loss of dependency. 14.The concept of double compensation was discussed by this court in KBT HCCA No. 1 of 2018, (Formerly NAKURU HCCA No. 147 of 2015) David Kenei Julius Cheretei v Zipporah Chepkonga (suing as the Legal Representative of the estate of Wesley Chepkonga Chebii - Deceased), as follows:“ 7.It is therefore clarified by the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v. Kiarie Shoe Stores Limited (supra), which binding on this Court, that that there is no requirement for the trial court to discount or reduce the damages in Fatal accidents Act with the awarded recovered under the Law Reform Act. The submission by the appellant that the trial court “the trial magistrate erred by failing to deduct the award [under the Law reform Act of Ksh. 100,000 for loss of expectation of life and Ksh. 50000/- for pain and suffering] and thus made a double award is therefore erroneous.” 15.On the merits, this court has previously considered the principles for appellate interference with an award of damages by a trial court in Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR as follows:“The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P. and Newbold, J.A. agreed) in Henry H. Ilanga v. M. Manyoka [1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v Lovell, [1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601.” Loss of Expectation of Life 16.This court finds no justification for derogating from the conventional figure of Ksh. 100,000, particularly for a minor who was 9 years old. Pain and suffering 17.The fact that the deceased herein died on the spot cannot be construed to mean that he did not suffer any pain. The court notes the persuasive case of Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR, where the court (D.S Majanja J) espoused that:“It is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation.” 18.This court is minded that even where the death is instantaneous, some form of pain is still endured. Therefore, the award of Ksh. 30,000 made by the trial court under this head was fair. Loss of Dependency 19.The Respondent maintains that the award of Ksh. 3,000,000 was reasonable whilst the Appellant is of the view that an award of Ksh. 500,000 to 700,000 would be adequate recompense. 20.The court is counseled by the Court of Appeal in Kenya Breweries Limited v Saro (1991) (eKLR) that:“…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. That, we think, is a question of common sense rather than law. 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.” 21.The record is clear that the deceased was a healthy 9 year old boy, whose parents expected, and reasonably so, would successfully commence and complete his education journey, enter the job market and support them in their old age. Nonetheless, the court finds that the award of Ksh.3,000,000 for loss of dependency was inordinately excessive, for a 9 year old child, bearing in mind the vicissitudes and vagaries of life. 22.This court in Adan Huka Halake v Priscilla Kendi Alias Priscila Kendi (Suing as the Administrator of the Estate of Brenda Gachui Mwiti (Deceased) Meru Civil Appeal No. E147 of 2021, upheld the trial court’s award of Ksh.1,400,000 for loss of dependency for a PP2 pupil aged 9 years. 23.This court in 2024 Tomson Onkendi Ondimu t/a Victorian Academy v DK & FM (Suing as the Legal Representative of LK - Deceased) [2024] KEHC 417 (KLR), substituted the trial court’s award of Ksh.1,500,000 with Ksh.1,000,000 for loss of dependency where the deceased was 6 years. 24.In the 2016 case of Daniel Mwangi Kimemi & 2 others v J G M & another (the personal representatives of the estate of N K (DCD) [2016] KEHC 6171 (KLR), the court (F. Gikonyo J) awarded Ksh. 1,000,000/= for loss of dependency for a deceased aged 9 years. 25.This court finds that an award of Ksh.1,500,000 would be sufficient compensation for a child aged 9 years bearing in mind the continuous loss the value of money. 26.The special damages awarded were not only specifically pleaded but also strictly proved.Consideration of the Appellant’s submissions and authorities 27.The trial court is faulted for failing to consider the Appellant’s submissions and authorities. That fault is misconceived because submissions cannot take the place of pleadings, and their consideration and/or lack thereof cannot in itself be a basis to overturn a trial court’s decision. 28.Besides, the fact that the trial court was dissuaded by the submissions of the Appellant together with the authorities he cited cannot be construed to mean that they were disregarded altogether. Orders 29.Accordingly, for the reasons set out above, the court finds the Appellant’s appeal is merited and it is allowed in the following terms:a.The award of Ksh.3,000,000 for loss of dependency is hereby set aside and substituted with an award of Ksh.1,500,000.b.The award of Ksh.200,000 for loss of expectation of life is set aside and substituted with an award of Ksh. 100,000.c.The other awards remain unchanged. 30.There shall be no orders as to costs.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Maroa for the Appellant.Mr. Gitari for the Respondents.