Marandi & another (Suing as the administrators of the Estate of Peter Ngugi Mburu - Deceased) v Nyang'ori & another (Civil Appeal E072 of 2021) [2026] KEHC 9989 (KLR) (8 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO E072 OF 2021** **ELISPHER WANJIKU MARANDI** **MICHAEL MARANDI KIBE (Suing as the administrators of the estate of PETER NGUGI MBURU (DECEASED).** **-VERSUS-** **TIMOTHY MAKORI NYANG'ORI....** **THE UNIVERSITY OF EASTERN AFRICA BARATON** **JUDGMENT** 1. The appellants herein are challenging the quantum of damages that was awarded in the judgement and decree that was delivered in SPMCC 142 of 2018 Kigumo on 24th November, 2021. 2. In their Memorandum of appeal dated 15th December,2021 the appellants raised the following grounds; 3. THAT the learned trial magistrate erred in law by failing to award the estate of the deceased an award for loss of expectation of life under the Law Reforms Act. 4. THAT the learned trial magistrate erred in fact by disregarding the uncontroverted evidence of the deceased being a teacher employed by Teachers Service Commission and arriving at a wrong estimate of the multiplicand. 5. THAT the trial magistrate erred in law by using a multiplicand of Kshs. 5,436.90/= being the minimum wage for the deceased despite the Plaintiffs availing the deceased's payslips and TSC number to buttress the fact that he was a salaried teacher his last net salary in November,2016 being Kshs.34,161.30/=. 6. THAT the trail magistrate erred in law in failing to dispense with the Appellant's application for reviewing the judgement where there was an apparent error on the face of the record pertaining to the date of the accident being 22nd December,2016 and not 22nd February,2016 as in the judgement and pronouncing that the Court was functus officio. 7. THAT the trial magistrate erred in law by failing to consider the Plaintiffs application for review for the Plaintiffs' to be afforded the opportunity to produce evidence which could not be produced prior to the judgement. 8. THAT the trial magistrate erred in allowing Defendants to challenge the Plaintiffs' uncontroverted evidence on the deceased income in submissions after failing to do so during trial. 9. According to the appellants, on quantum the **Court of Appeal in Bashir Ahmed Butt V Uwais Ahmed Khan [1982-881 KAR5 held 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". 10. It is their case that a claim under the Law Reform Act is for the benefit of the estate of the deceased while a claim under the Fatal Accidents Act is brought on behalf of the dependents of the deceased. 11. They submit that the trial Magistrate misconstrued the purpose of these awards. 12. They claim that the Estate of the deceased herein is entitled to the award for loss of expectation of life which should be a conventional award of Kshs.100,000/=. 13. On the multiplicand they submit that PW 3 testified that the deceased was a secondary school teacher at Mutitu secondary school.She produced an introductory letter from the Teachers" Service Commission dated 10th May,2018 as exhibit 5.She also produced the deceased's pay slips for the month of September, October and November 2016 as exhibit 6(a), 6(b) and 6(c). 14. They are troubled because the trial Magistrate in her judgement concurred with the Respondent's submissions and termed the Appellants' evidence as contradictory since it could not be ascertained when the deceased died. She stated that the deceased could have died in 22nd February,2016 or 22nd December, 2016. She then erroneously adopted a minimum wage of 2015 for an unskilled laborer as a multiplicand for the deceased. 15. They submit that in order to cure the lapses, after the judgement was delivered, they filed an application dated 26th November,2021 seeking to review the judgement arguing that there was an error apparent on the face of the Court's record and the same had been translated in the judgement. The Learned magistrate dismissed the application for review. 16. It is their case that there overwhelming evidence which was never controverted during trial that the accident occoured on 22nd December,2016 and the deceased died from that accident at around 2000 hours. 17. They submit that there was no inconsistency on the evidence adduced as to the date of the accident and the death of the deceased. 18. They submit that the trial Magistrate erred in disregarding the evidence adduced in trial on the deceased's occupation and earnings. 19. The deceased's pay slip for the month of November,2016 should guide the Court in arriving at the reasonable multiplicand. The deceased earned Kshs. 34,161.30/= in the month of November,2016 before he passed on in 22nd December,2016. 20. They seek the following reliefs; 21. This Appeal be allowed and the Judgment of the learned trial magistrate on quantum is set aside. 22. This Honourable Court does reevaluate the evidence and that was tendered and renders a judgment on the issue of quantum. 23. The costs of this appeal are awarded to the Appellants. 24. The appeal is vehemently opposed by the Respondent who submits that the appellant had filed an application dated 26th November 2021 for an order or review of the Judgement raising the same grounds that they are raising in the appeal. 25. The application, according to them the appellant, cannot appeal on the same grounds. 26. They submit that the trial magistrate did not fall into any error. **Analysis and determination** 1. Following are the issues or determination; 2. Whether the appeal has merit. 3. Who shall bear the costs. 4. The appellants argued that the trial court misappreciated their evidence and arrived at an erroneous quantum of general damages and that the court failed in disregarding the uncontested fact that the deceased was employed by the Teacher Service Commission. 5. They argued that the trial court also applied the wrong multiplicand. 6. They further argued that the trial court failed to determine the application for a review. The court holds a different view. From the judgment it is clear that on 1.12.21 the trial court determined the appellants’ application for review in the following terms, *“The application, although seeking review of an error apparent on the record, a perusal of the same in fact seeks to reintroduce evidence on the proof of death date for the deceased and eventually award of more damages to the Plaintiff. In effect, the applicant is asking the court to retry the case and relook at the evidence and then arrive at a different decision which is tantamount to the court sitting on appeal of its decision and that is not procedural. I will direct that instead an appeal is filed at the HC.* *The application dated 26/11/2021 will therefore not be heard by this court since the court is funtus officio.”* 1. Thereafter on 14.12.21 the appellants lodged the instant appeal through the Memorandum of Appeal dated 14th December 2021. 2. This Court is satisfied that the Appellants cannot approach this court on appeal after failing to persuade the court to allow the application for review dated 26th November 2021. 3. This amounts to an abuse of the court. Section 80 of the [Civil Procedure Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3) provides that, *“ Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”.* 1. Order 45 rule 1 (1) provides as follows: *“Any person considering himself aggrieved:(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay".* 1. The appellants cannot apply to review a judgment and then lodge an appeal. 2. From the record of appeal it is clear that in order to support the application for review the applicants raised the same issues that they are advancing in this appeal. 3. The appellants argued that the Plaintiffs documents were all produced during trial. The Defendants did not cross-examine the Plaintiffs on their documents. The Plaintiffs were unable to respond to issues emerging in submissions as they were never served. 4. They wanted the judgement delivered on 24th December,2021 to be reviewed by the trial court on the grounds of the apparent error on the face of the record and for the Plaintiffs to be afforded the opportunity to produce evidence which could not be produced prior to the Defendants raising the issues in their submissions to adequately respond to. 5. The appellant had raised the issues of the multicand, compensation under the head of the Law Reform Act in the application for review and they are relitigating the same grounds in the appeal. 6. The Learned magistrate dismissed the application for review. 7. In the case of In the case of **Serephen Nyasani Menge v. Rispah Onsanse [2018] eKLR, the court stated as follows*:-*** *“ In my view a proper reading of Section 80 of the Act and Order 45 Rules 1 and 2 makes it abundantly clear that a party cannot apply for review and appeal from the same decree or order. In the present case, the applicant exhausted the process of review up to appeal and now wishes to go back to the same order she sought review of and failed and to try her luck with an appeal. The applicant wants to have a second bite of the cherry. She cannot be permitted to do so. Her instant application constitutes an abuse of the process of the court and the same must surely fail. The applicant had her day in court when she chose to seek a review of the order that she now wishes to appeal against. Litigation somehow must come to an end and for the applicant, the end came when she applied for review and appealed the decision made on the review application. Litigation cannot be conducted on the basis of trial and error. That is why there are provisions of the law and the procedure to be adhered to. The applicant invoked the provisions of the law and the procedure thereto and the court rendered itself on the basis of the law and the evidence.”* 8. The court finds that the grounds raised in the review application that was dismissed are the same grounds that are raised as grounds of appeal herein. **Determination**; 1. The appeal is devoid of merit. **Costs**: 1. The Supreme Court in the case of **Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,** ”*In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…”* 2. The appellants shall shoulder costs. **Order**; 1. The appeal struck out with costs. **Dated, Signed and Delivered in court at Eldoret this 8th Day of July 2026.** **…………………………** **JOHN CHIGITI (SC)** **JUDGE**