https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12983

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E117 OF 2024** **EDWIN NJERU WANJIRU…………..…….…………........………………...APPELLANT** **VERSUS** **MIRIAM MUGECHI MUCHOKI & ESTHER WANJIRA MUCHOKI (Suing as the legal representatives for and on behalf of the estate of Nicholas Muchoki Mwangi – Deceased)……………………………….............................…………..…….RESPONDENTS** ***(Being an appeal from the judgment and decree of Hon. D.M Ireri (P.M) delivered on 17/11/2023 at Baricho PMCC No. 139 of 2022)*** **JUDGMENT** 1. By Plaint dated 2/9/2020, the Respondents (the Plaintiffs in the trial court) sued the Appellant (the 1st Defendant) for general damages under the Fatal Accidents Act and the Law Reform Act, special damages and costs of the suit plus interest. They pleaded that on or about 2/11/2018 at about 10:30 P.m. at Kibirigwi along the Sagana-Karatina road, the deceased, Nicholus Muchoki Mwangi, was lawfully travelling as a passenger aboard motor vehicle registration number KBR 784 A-Toyota Premio when it collided with motor vehicle registration number KXG 468 A-Leyland lorry, as a result of which the deceased sustained fatal injuries. 2. At the time of his death, the deceased was a mason, supervisor, and contractor at construction sites, earning between Ksh.60,000 and Ksh.90,000, which he applied to support himself and his family as the sole breadwinner. 3. The Appellant denied the suit vide his statement of defence dated 28/2/2023 and prayed for its dismissal. 4. The parties recorded a consent judgment on liability at the ratio of 80:20 in favour of the Respondents against the Appellant, and upon full hearing on quantum, the trial court awarded Ksh.2,000,000 for loss of dependency, Ksh.100,000 for loss of expectation of life, Ksh.50,000 for pain and suffering and special damages of Ksh.80,350 less 20% contribution = Ksh.1,784,280 together with costs and interest. ***The Appeal*** 1. On appeal, the Appellant filed his memorandum of appeal dated 22/10/2025, raising 8 grounds as follows: 1. *The learned trial Magistrate erred in fact and law by failing to consider all the averments made in the Appellant’s pleadings in response to the Plaint, thereby reaching wrong conclusions of law and fact.* 2. *The learned trial Magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities which were binding upon the Court vide the principle of judicial precedents and the doctrine of stare decisis on quantum cited in the written submissions presented and filed by the Appellant.* 3. *The learned trial Magistrate erred in law and fact in awarding the plaintiff a sum of Kshs. 2,000,000/= as loss of dependency when neither evidence of employment nor income was adduced before court nor the award went against the weight of the evidence.* 4. *The learned trial magistrate erred in law and fact by failing to provide a basis for his award of 2,000,000/= for loss of dependency in the circumstances.* 5. *The learned trial magistrate erred in awarding a sum in respect of general damages which are painfully punitive, excessive and/or inordinately high in the circumstance thus occasioning miscarriage of justice.* 6. *The trial Magistrate erred in law and fact in failing to accord due regard to the Appellant’s submissions and authorities the issue of quantum of damages on applicable principles for assessment of damages.* 7. *The learned Magistrate erred in fact in failing to exercise his discretion judiciously and proceeded to arbitrarily award damages that were inordinately too high in the circumstances of the case.* 8. *The learned trial Magistrate erred and misdirected himself in fact and in law in failing to consider conventional awards in cases of similar nature and misapplied the decision in the case of Yaf Japan Motors Limited & 2 Others v Wambugha & Another (Civil Appeal E025 of 2022) [2023] KEHC, thereby arriving at an irregular and unconventional award for damages on the issue of loss of dependency.* **Duty of the Court** 1. 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 v Associated Motor Boat Co. & others [1968] E.A. 123*). **Evidence** 1. PW1 Esther Wanjira Muchoki, one of the Respondents herein, adopted her statement as her evidence in chief and produced the lists of documents dated 2/9/2022 and 11/10/2022 as exhibits. She testified that, *“Deceased was my husband. Miriam Mugechi is my daughter. We had five children 2 of whom are young. Deceased was a Mason. I pray for compensation.”* 2. On cross examination, she stated that, *“Deceased was aged 51 years old at the time of death. Deceased was a Mason, and he had a certificate. Deceased used to earn between Kshs. 60,000 - 90,000/=. Deceased died on the spot. Grace is aged 37 years, Miriam is aged 33 years, Mary is aged 29 years old. Susan has just attained 18 years old. I am a farmer. Grace is married. Miriam and Mary are also married. I paid Kshs. 10.000/= and Kshs.26,000/= for the limited grant.”* 3. In re-examination, she stated that, *“I have deceased’s job card.”* 4. The Appellant closed his case without calling any witnesses. **Submissions** 1. The Appellant urges the court to apply the minimum wage of Ksh. 8366.35 for a mason, as no evidence was tendered in support of the deceased’s earnings, a multiplier of 9 years and a dependency ratio of 2/3, and relies on *Kemfro Africa Limited v Lubia and Anor No. 2) 1987 KLR 30*, on the principles that guide appellate interference with quantum of damages awarded by a trial court. 2. The Respondents did not file any submissions. **Analysis and Determination** 1. After considering the grounds of appeal raised by the Appellant, the issues for determination are *whether the award of Ksh. 2,000,000 for loss of dependency was inordinately high and whether the Appellant’s submissions and authorities were considered.* *Inordinately high damages* 1. The principles on when an appellate court would interfere with the findings of fact by the trial court on quantum are now trite as settled by the Court of Appeal in the case of *Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR* in the following terms: *“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985] KLR 470).”* 1. Dependency is a matter of fact and must be proved by evidence. The court agrees that if there is no evidence from which dependency may be proved or inferred, a claim in dependency should fail. 2. One of the Respondents recorded in her statement dated 31/7/2023 that, *“My husband was only 40 years and a very enterprising business man and a farmer. He was the bread winner for me and my three young children. My husband used to grow vegetables on a large scale like tomatoes, butternut and bananas. He used to buy and sell fresh products at Kagio and Makutano Market and also used to supply to Nairobi. He would sell at the market four times a week which was sixteen times a month and would make about Kenya Shillings Forty Thousand (kshs. 40,000) per month. My children and I have lost his support as a result of the accident.”* 3. The deceased herein was 51 years old, enjoying a happy and healthy life. He was a Construction Site Supervisor as evinced by the job card produced by the Respondents. The record is clear that he was survived by his wife and 5 children, one of whom is a minor. It was urged that 3 of his children were married, and in the absence of evidence to the contrary, it may reasonably be inferred that they were no longer financially dependent on him. The Respondents pleaded that the deceased earned between Ksh. 60,000 and 90,000, but no evidence was tendered to substantiate that assertion. In those circumstances, the trial court properly declined to speculate on the deceased’s alleged earnings and instead adopted the global approach. 4. In ***Amazon Energy Limited v Josephine Martha Musyoka & another*** *[2019] KEHC 6359 (KLR),* the court *(Korir J.)* substituted an award of Ksh. 2,500,000 for loss of dependency with Ksh. 1,200,000 for the reason that the deceased was 56 years old and his only child was in college. 5. This court in ***Maina & another (Suing on their behalf and as the personal representatives of the Estate of Lucy Wanjira Kamondo – Deceased) v Kenya Forest Service*** *[2026] KEHC 12196 (KLR)*, awarded Ksh.1,122,032 for loss of dependency where the computation was based on 2/3 dependency ration on a minimum wage of 14,025.40 with a multiplier of 10 years for a deceased aged 53 years and survived by 3 school going children. 6. There was no evidence of the salary earned by the deceased and on the global award approach, the Court considers that the award of Ksh.2,000,000 was excessive, and would substitute an award of Ksh.1,200,000 as reasonable compensation for loss of dependency. ***Consideration of the Appellant’s submissions and authorities*** 1. The Appellant faults the trial court for disregarding his submissions and authorities. That fault is misconceived because submissions, however persuasive, cannot take the place of pleadings, and their non-consideration cannot in itself be a basis to overturn a trial court’s decision; and the mere fact that the trial court was unpersuaded by the submissions of the Appellant together with the authorities he cited does not imply that they were not considered. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the Appellant’s appeal herein is merited, and it is allowed in the following terms: 1. The award of Ksh.2,000,000 for loss of dependency is set aside and substituted with Ksh.1,200,000. 2. The other awards remain unchanged. 2. As the appeal has only partially succeeded, there shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 20TH DAY OF AUGUST 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES**: Mr. Omondi instructed by M/S Irungu Kang’ata & Co. for the Appellant.