[2022] KEHC 15823 (KLR)

(Dcd & another v Maritim & 4 others (Civil Appeal 5 of 2019) [2022] KEHC 15823 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15823 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 5 of 2019

RL Korir, J

December 1, 2022

Between

Of The Estate Of Mary Chepkorir Tembur (Dcd

1st Appellant

Samuel Kikorir Mibei (Suing as the Administrator of the Estate of Mary Chepkorir Tembur (DCD)

2nd Appellant

and

Fredrick Kiprotich Maritim

1st Respondent

Alfred Soi

2nd Respondent

Jane Mbugua

3rd Respondent

Fredrick Kiprotich Maritim

4th Respondent

Jane Mbugua

5th Respondent

((Being an Appeal from the Judgment of the Principal Magistrate, B. Omwansa dated 28th February 2019 in the Magistrate’s Court at Sotik, Civil Suit Number 61B of 2015)

Judgment

1. The Appellant (then Plaintiff) as the Administrator of the estate of the deceased, sued the Respondents (then Defendants) for General and Special Damages that arose when the deceased was allegedly knocked down by Motor Vehicle Registration Number KCG 767Q that belonged to the 1st and 3rd Respondents.

2. The Appellant requested for Judgment against the 3rd Respondent as she had neither entered appearance nor filed a Defence. Interlocutory Judgment was entered against the 3rd Respondent pending formal proof hearing.

3. In the Judgment dated 28th February 2019, the trial court dismissed the suit stating that the Plaintiff (Appellant) had not proved its case.

4. Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 22nd March 2019 and relied on the grounds reproduced verbatim as follows:-i.THAT the learned Magistrate erred in law and in fact in his analysis on facts on liability thereby arriving at a wrong conclusion to the prejudice of the Appellant.ii.THAT the learned Magistrate erred in law and fact in his analysis of evidence before him on facts manifesting bias against the Appellant’s case from the onset of the Judgment to his conclusion thereby crucial oral and documentary evidence adduced at the hearing and causing his judgment to fall short of establishment principles of a judgment. (sic!)iii.THAT the learned Magistrate erred in law and fact in finding that the Appellant did not prove his case against the Respondents on liability despite the Appellant’s overwhelming and unchallenged evidence in his testimony and in the Police Abstract that the deceased died as a result of a fatal road accident caused by the 2nd Respondent and that the 1st and 3rd Respondents were vicariously liable for the accident.iv.THAT the learned magistrate erred in law and fact in misapprehending the principle of Res Ipsa Loquitor despite there being overwhelming evidence that the accident happened way outside the road the Respondent’s motor vehicle was in the normal circumstances supposed to be travelling in thereby arriving at a wrong decision.v.THAT the learned Magistrate erred in law and in fact in basing his findings on irrelevant issues not supported by evidence adduced or the applicable law, as clearly captured in his judgment.vi.THAT the learned trial Magistrate’s decision is against the weight of evidence and the law applicable in the circumstances.

THE PLaintiff’s/appellant’s Case 5. Through the Plaint and his evidence in the trial court, the Appellant stated that on 26th May 2016 his mother was hit by Motor Vehicle Registration Number KCG 767Q as she headed home from a posho mill along Mogogosiek-Litein road. That he heard people screaming and ran to the scene only to find his mother lying on the ground. It was the Appellant’s case that his mother was taken to the hospital in a police vehicle where she was pronounced dead on arrival.

6. The Appellant stated that the 2nd Respondent being the driver of the 1st and 3rd Respondent was negligent in causing the accident and particularized the negligence in paragraph 5 of the Plaint. It was the Appellant’s further case that the deceased had dependants and the said dependants were listed in paragraph 8 of the Plaint.

7. It was the Appellant’s case that at the time of the death of the deceased, she was aged 68 years and that her life was considerably shortened and as a result, her estate suffered loss and damage.

8. The Appellant’s claim against the 1st and 2nd Respondents was for Special and General Damages under the Law Reform Act and Fatal Accidents Act.

The Appellant’s Submissions. 9. The Appellant submitted that despite him not calling a police officer, he produced the Police Abstract to prove that the accident occurred and the Post Mortem Report to prove that the death of the deceased was due to the accident. That the legal basis for the burden of proof was contained in Section 107 of the Evidence Act.

10. It was the Appellant’s submission that he had proved his case to the required standard. It was his further submission that the 1st and 2nd Respondents did not call any witness to challenge his case and therefore his evidence was uncontroverted. He relied on the case of North End Trading Company Limited (carrying on the business under the registered name of) Kenya Refuse Handlers Limited Vs CITY Council Of Nairobi (2019) eKLR to support this submission.

11. The Appellant submitted that he pleaded the doctrine of Res Ipsa Loquitor to prove negligence on the part of the Respondents. He relied on the case of Susan Kanini Mwangangi & Another Vs Patrick Mbithi Kavita (2019) eKLR to support this submission.

12. It was the Appellant’s submission that the 1st and 2nd Respondents did not call any witness or adduce any evidence to demonstrate to the court that there was no negligence on their part. He relied on the case of Uchumi Supermarket Limited & Another Vs Boniface Ouma Were (2021) eKLR to support this submission.

The 1st And 2Nd Defendant’s/respondent’s Case. 13. The 1st Respondent denied that it was the registered owner of Motor Vehicle Registration Number KCG 767Q and the 2nd Respondent denied that the said Motor Vehicle was under his management and control.

14. The 1st and 2nd Respondents (hereinafter referred to as the Respondents) denied the particulars of negligence levelled against them. That if any accident happened, it was caused solely by the negligence of the deceased. They particularized the negligence in paragraph 6 of the Defence.

15. The Respondents challenged the applicability of the doctrine of res ipsa loquitor in the present case and they stated that they would rely on the doctrine of volenti non fit injuria to prove that the deceased put her life at risk.

16. The Respondents did not call any witness or file any documents in aid of their case in the trial court.

The Respondents’ Submissions. 17. The Respondents submitted that the burden of proof lay squarely on the Appellant. That that burden did not shift even if the Respondents chose to remain silent. They relied on the cases of Susan Kanini Mwangangi (Supra) And Nickson Muthoka Mutavi Vs Kenya Agricultural Research Institute (2016) eKLR to support this submission.

18. It was the Respondents submission that the Appellant did not witness the accident. That the Appellant did not see the offending Motor Vehicle that had knocked down his mother. It was the Respondent’s further submission that the Appellant could not attest to the circumstances of the accident thus his claim that the 2nd Respondent was to blame for the accident was baseless and unfounded.

19. The Respondents submitted that the Appellant failed to call the police officer who would have shed light on the investigation conducted and who was to blame for the accident. That the Appellant did not reveal whether a traffic charge was preferred against the driver of the subject Motor Vehicle. They relied on the case of Chase Bank (Kenya) Ltd Vs Cannon Assurance (K) Limited (2019) eKLR.

20. It was the Respondent’s submission that the Appellant produced a Police Abstract that he neither authored nor called its author. That the Police Abstract could not be held as conclusive proof of liability against the Respondents. They relied on the case of Kennedy Nyangoya Vs Bash Haulires (2016) eKLR to support this submission.

21. The Respondents submitted that the Appellant failed to demonstrate that the 2nd Respondent was to blame for the accident. That the Appellant had not demonstrated the circumstances leading to the accident. It was the Respondents’ further submission that the Appellant failed to demonstrate the conclusion of the investigation of the alleged accident.

22. On the doctrine of Res Ipsa Loquitor, they relied on the cases of Jeremiah Maina Kagema Vs Kenyab Power And Lighting Company Limited (1991) eKLR, Obed Mutua Kinyili Vs West Fargo & Another (2014) Eklr And Nandwa Vs Kenya Kazi Limited (1988) eKLR.

23. The duty of the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the Court of Appeal case of Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR.

24. I have read through and considered the Memorandum of Appeal dated 22nd March 2019, the Appellant’s Written Submissions dated 29th September 2022 and the Respondent’s Written Submissions dated 5th August 2022. Two issues arise for my determination as follows:-i.Whether the Appellant proved his case to the required standard.ii.If the answer in (i) is in the affirmative, what damages are payable.i.Whether the Appellant proved his case to the required standard.

25. It is trite law that the burden of proof in civil cases is on a balance of probabilities. Section 107 of the Evidence Act describes the burden of proof as follows:-(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

26. In the case of Mbuthia Macharia Vs Annah Mutua Ndwiga & Another (2017) eKLR Court of Appeal stated that:-“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”See also Ahmed Mohammed Noor vs Abdi Aziz Osman (2019) eKLR)

27. In regard to proving negligence against the 1st and 2nd Respondents, the Appellant pleaded the doctrine of Res Ipsa Loquitor and submitted that it was applicable in the present case. Black’s Law Dictionary, 10th Edition at page 1503 describes Res Ipsa Loquitor as:-“The doctrine providing, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence that establishes a prima facie case; specif., the doctrine whereby when something that has caused injury or damage is shown to be under the management of the party charged with negligence, and the accident is such that in the ordinary cause of things it would not happen if those who have the management use proper care, the very occurrence of the accident affords reasonable evidence, in the absence of the explanation by the parties charged, that it arose from the want of proper care.”

28. In the case Of Susan Kanini Mwangangi & Another Vs Patrick Mbithi Kavita (2019) eKLR, Odunga J. (as he then was) quoted the East African Court of Appeal’s decision in Embu Public Road Services Ltd. v Riimi (1968) EA 22 thus:-“The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant. The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence of his part; or that the accident was due to the circumstances not within his control……………”

29. Further in Mary Ayo Wanyama & 2 Others Vs. Nairobi City Council (UR), the Court of Appeal held that:-“It is not right to describe res ipsa loquitor as a doctrine as it is no more than a common sense approach not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It is implicit in the proposition that the happening itself was prima facie evidence of negligence and the onus lay on the defendant to rebut that prima facie case. It means the plaintiff prima facie establishes negligence where on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety…Res ipsa loquitor applies where on assumption that a submission of no case to answer is then made, would, the evidence, as it stands, enable the plaintiff to succeed because, although the precise cause of the accident cannot be established, the proper inferences on balance of probability is that the cause, whatever it may have been, involved a failure by the defendant to take due care for the plaintiff’s safety……………….”(See also Mary Ambeva Kadiri suing as the administrators of estate of Saleh Juma Kadiri (Deceased) vs Country Motor Limited (2017) eKLR)

30. The authorities above show that for the doctrine of Res Ipsa Loquitor to apply, the Plaintiff’s evidence should demonstrate aptly the circumstances surrounding and leading to the accident. That even in the absence of a rebuttal or testimony from a defendant, a court of law should be satisfied that the accident occurred in the manner pleaded and due to the negligence of the Defendant.

31. The Appellant testified that an accident occurred on 26th May 2016 between the deceased and Motor Vehicle Registration Number KCG 767Q. The same was reported to Konoin Police Station. PW1 produced a Police Abstract marked as P.Exh 2 which confirmed the occurrence of the accident which involved Motor Vehicle Registration Number KCG 767Q and the deceased. It is salient to note that the Respondents did not challenge the veracity of the Police Abstract and it therefore remained prima facie evidence of the occurrence of the accident.

32. The Respondents submitted that the Appellant did not produce the author of the Abstract thus the Police Abstract could not be held as conclusive proof. I have read the Record and observed that the Defendant/Appellant did not object to the production of the Abstract. The law allows documents to be produced by the author or any other person depending on the circumstances of each case. I am persuaded by the case of Steve Mwasya & Another Vs Rosemary Mwasya (2015) eKLR where Sergon J. that:-“Under the provisions of the Evidence Act, the maker of the documents is required to produce as exhibits in evidence these documents. However, the law is not cast in stone. The court is given a wide discretion to waive that requirement in certain circumstances and allow another person other than the maker to produce those documents…’’

33. It is my finding that the Police Abstract produced as P.Exh 2 is admissible and proved the occurrence of the accident.

34. It was not in dispute that the deceased suffered fatal injuries after an alleged accident. PW1 produced a Post Mortem Report marked as P. Exh 1 which indicated the cause of death as multiple major trauma secondary to road accident.

35. The issue in contention was who was liable for the accident. The Appellant had to show that injuries suffered by the deceased in the accident were as a result from the Respondents’ negligence. Without proof of causation, negligence cannot be actionable or sustainable. This was addressed by Visram J (as he was then) in the case of Elijah Ole Kool Vs George Ikonya Thuo (2001) eKLR, where he stated:-“When will an act or omission be said to be the cause of the Plaintiff’s injuries” a defendant will only be held liable for negligence if his act or omission is either the sole effective cause of the Plaintiff’s injury or the act or omission is so connected with it as to be a cause materially contributing to it. The first case will rarely raise contentions”.

36. In the case of Anastassios Thomos Vs Occidental Insurance Company Limited (2017) eKLR Njuguna J stated that:-“In the work of Charles worth & Peray on Negligence, 7th Edition, it is state as follows;“Evidence of causation must be given on behalf of the plaintiff. Before a case can be considered, either direct or circumstantial evidence must be called on behalf of the plaintiff. Whatever evidence is so called, it must tend to show how the accident happened and how, as a result, he sustained his personal injuries or suffered his damage. Such evidence also must show that on a balance of probabilities, the most likely cause of the damage was the negligence or breach of duty of the defendant, his servant or agent and not solely the negligence of some other person. If he fails to establish that the defendant caused the harm, of which he complains, or some part of it, then his action will fail. Such a failure will result whether this happens to be expressed in terms of lack of result or for reasons of remoteness.It is a question of law, whether the evidence adduced allows a reasonable finding of causation, but it is a question of fact, whether any particular head of damages is so caused by a defendant’s negligence or breach of duty”.

37. PW1 testified that his mother died as a result of being knocked down by Motor Vehicle Registration Number KCG 767Q. It was his further testimony that when he heard people screaming, he ran to the scene and found his mother lying on the ground. That she was later on taken to the hospital using a police vehicle where she was pronounced dead on arrival. He produced her death certificate (P Exh.3) and Post-Mortem report (P Exh. 1) which showed that the cause of death was ‘multiple major trauma secondary to road traffic accident.’

38. Upon cross examination, PW1 stated that he was not present when the accident occurred and that he came to know of the offending Motor Vehicle’s Registration Number through the police officers. The Police Abstract indicated that Motor Vehicle Registration Number KCG 767Q was involved in the accident and that the 1st Respondent was the driver.

39. I find that the Plaintiff proved the occurrence of the accident in which the deceased was killed. He also proved the motor vehicle involved and its ownership thereof. The Plaintiff/appellant however, did not show how the accident happened or who between the motorist and the pedestrian was to blame. In the case of Farah Vs Lento Agencies (2006) 1 Klr 124,125, the Court of Appeal held that;“Where there is no concrete evidence to determine who is to blame between the two drivers, both should be held equally to blame. As no side could establish the fault of the opposite party, liability for the accident could be equally on both the drivers. Therefore, each driver was to blame”.

40. In the absence of a clear explanation of circumstances surrounding the accident, I find that the driver (1st Respondent) and the deceased were equally to blame for the accident. I therefore apportion liability at 50:50.

41. The Appellant has argued that the Respondents did not call any evidence rebut his case. It is the law however that the Appellant’s burden of proof was not affected by the Respondent’s failure to adduce evidence or call witnesses. In the case of Charterhouse Bank Limited (Under Statutory Management) Vs Frank N. Kamau (2016) eKLR, the Court of Appeal clearly underscored the law thus:-“In Karugi & Another v. Kabiya & 3 Others [1987] KLR 347, this Court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof.We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant.”

42. In Lucy Njeri Vs Isaac Wangoya Mwangi & Another (2018) eKLR Eboso J. observed quite correctly that:-“The appellant submitted at length that since the 1st defendant did not call any evidence, her evidence remained unchallenged and that the trial court ought therefore to have allowed her claim as sought in the plaint. This proposition is incorrect because it is trite law that even where no evidence is called in rebuttal, the plaintiff’s burden to prove her case on a balance of probabilities by adducing credible evidence remains.”

43. I have, on a keen evaluation of the evidence come to the conclusion that the Appellant discharged his burden of proof. Though his task was made easier by lack of rebuttal, he proved his case on a balance of probability as required by law.

QUANTUM 44. In dealing with quantum, I am guided by the principles restated by the Court of Appeal in the case of Johnson Evan Gicheru Vs Andrew Morton & Another (2005) eKLR, thus:-“In order to justify reversing the trial judge on the question of the amount of damages it was generally necessary that the court of appeal should be convinced that either the judge acted upon some wrong principle of law or, that the amount awarded was so extremely high or so very small as to make it, in the judgement of the court, an entirely erroneous estimate of the damage to which the appellant was entitled”.

45. In the case of TAYAB VS KINANU(1983) eKLR, the Court of Appeal held as follows:-“I would commend to trial judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:“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.”

46. In this case, the trial court awarded Kshs 30,000 pain and suffering. The trial court stated that the basis of the award was that the deceased died at the scene and in the process of dying she must have felt some excruciating pain. In the case of in Acceler Global Logistics Vs. Gladys Nasambu Waswa & Another (2020) eKLR, Mativo J. (as he was then) observed:-“It is settled law that the personal representative of a deceased person can recover damages that the deceased could have recovered had he survived and which were a liability on the wrong doer at the date of death. This was enunciated in the celebrated decision of Lord Green in Rose vs. Ford.It is not in dispute that the deceased sustained serious injuries and that the deceased died on the spot. This raises a fundamental question of what each unit of pain and suffering is worth. This question has in my view been authoritatively discussed in an article in the International Review of Law and Economics entitled "Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards" by W. Kip Viscussi who argues that:-"Pain and suffering is generally recognized as being legitimate component of compensation but one for which we have no accepted procedure of measurement ... Pain and suffering is by no means a negligible component of awards ... The general implication is that pain and suffering awards are not entirely random or capricious."The position laid down in Rose vs. Ford is that where the period of suffering is short, only nominal damages are awarded…………”

47. In the case of Sukari Industries Limited Vs Clyde Machimbo Jumba (2016) eKLR Majanja J. held:-“On the first issue, I hold 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. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged after death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years………”

48. PW1 testified that the deceased was knocked down by Motor vehicle Registration Number KCG 767Q and was declared dead upon arrival at the hospital. He produced a Post Mortem Report and Death Certificate that were marked as P. Exh 1 and P.Exh 3 respectively which indicated that the deceased died on 26th May 2016, the same day the accident occurred. The Respondents did not controvert the evidence tendered by PW1. It is therefore my finding that the award of Kshs 30,000/= was reasonable.

49. On the issue of the deceased’s life expectation, I am persuaded by the case of Mercy Muriuki & Another Vs Samuel Mwangi Nduati & Another (Suing As The Legal Administrator Of The Estate Of The Late Robert Mwangi) (2019) eKLR where Muchemi J. stated:-“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”.

50. The courts have overtime adopted the figure of Kshs 100,000/= for loss of expectation of life. It is my finding Kshs 100,000 would be sufficient. The trial court’s award of Kshs 50,000 is substituted with the award of Kshs 100,000/= under this head.

51. On of loss of dependency, Section 4 of the Fatal Accidents Act provides as follows-(4)Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct”.

52. The claim for loss of dependence constitutes the multiplicand, the dependency ratio and the multiplier. (See Melbrimo Investment Company Limited vs Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR).

53. In the case of Moses Mairua Muchiri Vs Cyrus Maina Macharia (Suing As The Personal Representative Of The Estate Of Mercy Nzula Maina (Deceased) (2016) eKLR, Ngaah J. held as follows:-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

54. In Frankline Kimathi Maariu & Another Vs Philip Akungu Mitu Mborothi (Suing As Administrator And Personal Representative Of Antony Mwiti Gakungu Deceased (2020) eKLR the court dealing with a similar issue stated:-“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

55. The Appellant did not plead the income of the deceased and there was nothing on record to indicate what the deceased earned. From the pleadings and evidence on record, the deceased died at the age of 68 years and it was unknown whether she was employed or engaged in a business for sustenance. It was however not in doubt that she took care of the domestic chores of her family. Indeed she was knocked down on her way to the posho mill. Due to her advanced age, I find the award of Kshs 500,000 as reasonable for loss of dependency.

56. With regard to Special Damages, Section 6 of the Fatal Accidents Act makes provision for funeral expenses as follows:-(6)In an action brought by virtue of the provisions of this Act the court may award, in addition to any damages awarded under the provisions of subsection (1) of section 4, damages in respect of the funeral expenses of the deceased person, if those expenses have been incurred by the parties for whom and for whose benefit the action is brought.

57. The Respondent stated that he had incurred a cumulative Kshs 88,700 being charges for the preparation of the Limited Grant of Letters of Administration, search of Motor Vehicle, funeral expenses and coffin, Police Abstract charges and Demand letter charges. These were Special Damages that ought to be proved.

58. The Appellant produced receipts from NTSA for the Motor Vehicle Search marked as P.Exh 4 (a), a receipt from Mutai J.K & Company Advocates as charges for the preparation of the Limited Grant of Letters of Administration and the same was marked as P.Exh 6. The Appellant also produced a receipt from Mutai J.K & Company Advocates as charges for the drafting of a Demand Letter and the same was marked as P.Exh 7(b). It is salient to note that the veracity of the aforementioned receipts was not challenged or tested in cross examination.

59. Section 6 of the Fatal Accidents Act makes provision for funeral expenses. In the case of Premier Dairy Limited Vs Amarjit Singh Sagoo (2013) eKLR , the Court of Appeal stated that;“We do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with the issue of record keeping when their primary concern is that a close relative has died”.

60. Further , in the case of Jacob Ayiga Vs Simon Obayo (2005) eKLR, court held that:-“We agreed and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. We however must not be understood to be laying down any law that in subsequent cases Kshs 60,000 must be given as reasonable funeral expenses. Those items are and must remain subject to proof in each and every case and the Kshs 60,000 awarded herein apply strictly to the circumstances of this case”.

61. Flowing from the above, it is my finding that the trial magistrate erred in not awarding Kshs 65,000 for the coffin and funeral expenses. The Appellant had proved that he incurred Kshs 20,000 for the preparation of the Limited Grant of letters of Administration, Kshs 500 for the Motor Vehicle Search and Kshs 3,000 for the drafting of the Demand Letter. Therefore award of Special Damages of Kshs 88,500/=.

62. In the final analysis, I set aside the judgment of the trial court and enter judgment for the Appellant with the award as follows:a.Pain and Suffering Kshs 30,000b.Loss of expectation of life Kshs 100,000c.Loss of dependency Kshs 500,000Kshs 630,000Less 50% Contribution Kshs 315,000Kshs 315,000Add Special Damages Kshs 88,500

TOTAL Kshs 403,500 63. The Appeal dated 22nd March 2019 is allowed. The Appellant having succeeded is awarded costs of the suit in the lower court and on this appeal.

64. Orders accordingly.

Judgement delivered, dated and signed at Bomet this 1stday of December, 2022. ...........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr. Kadet for the Appellant, and Kiprotich (Court Assistant) and in the absence of the RespondentsJudgment emailed to parties at:xxxx.com for the Appellantxxxxco.ke for the Respondents