https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7979

Owili v Achieng (Suing as personal representatives of the Estate of George Ochieng Okun) & 2 others (Civil Appeal E092 of 2021) [2026] KEHC 7979 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 7979 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E092 of 2021 OA Sewe, J May 8, 2026 Between Enosh Owili Appellant and Emily Rachael Achieng (Suing As Personal Representatives Of The Estate Of George Ochieng Okun) 1st Respondent David Oguny Obonyo 2nd Respondent Ali Cars Limited 3rd Respondent (Being a Cross Appeal from the whole of the Judgment delivered by the Honourable T. A Obutu on 22nd September 2021 in Homa Bay CMCC No. 68 of 2019) Judgment 1.This appeal arises from the judgment delivered by Hon. T.A Obutu, Principal Magistrate, on 22nd September 2021 in Homa Bay CMCC No. 68 of 2019: Emily Rachael Achieng (suing as the administrator of the estate of George Ochieng Okun v Enosh Owili and 2 others, whereby a global sum of Kshs. 2,000,000/= for loss of dependency was awarded to the Plaintiff (the respondent herein) as well as Kshs. 20,000/= for pain and suffering, Kshs. 100,000 for loss of expectation of life and special damages of Kshs. 56,700/=. The net amount awarded was Kshs. 1,088,350/=, taking into account contributory negligence apportioned at 50% against the deceased. 2.Being aggrieved by that decision, the appellants filed their appeal vide the Memorandum of Appeal dated 29th September 2021 on the following grounds;(a)The learned magistrate erred in law and misdirected himself when he failed to consider the appellants’ submissions on both points of law and facts.(b)The learned magistrate’s decision was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of law.(c)The learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in the Insurance (Motor Vehicles Third Party Risks) (Amendment) Act, 2013.(d)The learned magistrate erred in law and fact in finding the appellants 50% liable in view of the evidence adduced before the lower court.(e)The learned magistrate erred in law and fact in awarding the estate damages for pain and suffering without considering that the deceased passed away on the same day.(f)The learned magistrate erred in law and fact by awarding the estate of the deceased damages for loss of expectation of life when the estate was not entitled to such an award.(g)The learned magistrate erred in law and fact by awarding the estate Kshs. 2,000,000/= for loss of dependency when the estate was not entitled to such an award; and which award was so excessive as to amount to an erroneous estimate of the loss or damage suffered by the estate of the deceased.(h)The learned magistrate erred in law and fact in failing to consider the appellants’ submissions on liability and quantum and the authorities relied on in support thereof.(i)The learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant, without addressing his mind to the circumstances of the case.(j)The learned magistrate erred in law and fact in failing to consider conventional awards in cases of similar nature. 3.Accordingly, the appellants prayed that the appeal be allowed with costs; that the judgment dated 22nd September 2021 be set aside and that the suit before the lower court be dismissed with costs. In the alternative, they prayed that this Court reconsiders the apportionment of liability and damages payable. 4.The plaintiff before the lower court who is the respondent in the appeal was also aggrieved by the decision of the lower court apportioning liability at 50:50. Consequently, she filed a cross-appeal dated 20th January 2022 on the following grounds:(a)The learned magistrate erred in law and fact when he apportioned liability at the ratio of 50:50% as between the cross- appellant and the respondents in the cross appeal.(b)The learned magistrate erred in law and in fact when he awarded the quantum of damages of Kshs. 1,088,350/=, a sum inordinately so low as to amount to a miscarriage of justice.(c)The learned magistrate erred in law and in fact when he adopted a global figure of Kshs. 2,000,000/= to calculate the award under the Fatal Accidents Act in disregard of the evidence of the deceased’s earnings on record.(d)The learned magistrate erred in law and fact when he disregarded the principles and precedents of assessing damages under the Fatal Accidents Act and particularly the calculation of the award of loss of dependency.(e)The learned magistrate erred when he awarded Kshs. 56,700/= as special damages in disregard of the evidence on record. 5.Hence, the respondent prayed that her cross-appeal be allowed with costs and that the Court do re-evaluate the evidence and arrive at its own decision on liability and quantum. For the purposes of this Judgment the parties will simply be referred to as the appellants and the respondent on the basis of the main appeal. 6.A perusal of the record of the Court shows that both the appeal and the cross-appeal were dismissed for want of prosecution on 15th November 2023. However, the respondent thereafter moved the Court for the setting aside of the dismissal order. Her application dated 7th February 2024 was allowed on 16th May 2024 and the cross-appeal was accordingly reinstated to hearing for a determination on its merits. Directions were thereafter given that the appeal be canvassed by way of written submissions. 7.In her written submissions dated 16th October 2024, the respondent contended that, taking into account the evidence presented before the lower court, the respondents ought to have been held 100% liable. On quantum, the respondent proposed the following adjustments:(a)Pain and suffering from Kshs. 20,000/= to 30,000/= acknowledging that the deceased died instantly;(b)Loss of expectation of life – Kshs. 100,000/=;(c)Loss of dependency- Kshs. 7,868,000/= applying a multiplier of 12 years and a multiplicand of Kshs. 83,000/= instead of the global award of Kshs. 2,000,000/=; and(d)Special damages Kshs. 500,000/= and funeral expenses of Kshs. 350, 000/=. 8.The respondent argued that she presented sufficient evidence before the lower court to demonstrate that the deceased was 47 years old at the time, and that he was a contractor with an income of about Kshs. 1,000,000/= per annum, which translated to Kshs. 83,000/= per month. The respondent further contended that she adduced evidence to prove that the deceased’s motor vehicle Registration No. KBR 835H Toyota Probox, was damaged beyond repair in the said accident; that she valued the car at Kshs. 500,000/=; and that, in addition to the log book, she produced receipts for the purchase of the motor vehicle. 9.The respondent relied on the following authorities in support of her arguments and proposals:(a)Mombasa HCCC No. 324 of 2002: Jennipher Odhiambo Aloo & another v Elizabeth Mbuka Adam & another;(b)Kisumu HCCC No. 330 of 2000: Mereza Adhiambo v Agnes Susan Wairimu & another;(c)Nakuru HCCC No. 210 of 2003: Pauline Wangare v Benedict Raymond Kutondo & another. 10.The appellants, on their part, submitted that the trial court did not consider the probative value and weight of the evidence presented by the respondent, which was essentially hearsay evidence. They urged the Court to note that the alleged eye witness indicated that he was 10 metres away, and that the accident happened around 7-8 pm when it was already dark. They further submitted that the Police did not avail any motor vehicle inspection report or sketch maps to indicate exactly how the accident occurred. 11.The appellants also pointed out that the alleged eye witness did not record any statement at the police station and was therefore not listed in the Police Abstract as a witness. They further impugned the evidence of PW2 who indicated that his duty was to only produce the police abstract, which merely proved the occurrence of the accident. In their submissions the respondent utterly failed to demonstrate that they were to blame for the accident as the matter was still pending under investigations. 12.Regarding their evidence before the lower court, the appellants submitted that credible evidence was adduced to demonstrate that the deceased was trying to overtake a sugar-cane laden trailer when his motor vehicle collided head on with Motor Vehicle Registration No. KCG 591U. They therefore urged the Court to find that their driver was on his correct lane when the accident occurred. 13.The appellants relied on the following authorities in their written submissions dated 10th December 2024:(a)Margaret Kannes Muyanga v Jamal Abdulkarim Musa [2020] eKLR in which it was held that a statement appearing on a police abstract, despite the abstract having not been objected to, ought to be interrogated and should not be taken at face value; and that the police ought to have shed some light as to the point of impact and show to what extent the drivers were to blame for the accident.(b)HCCA No. 3720 of 1995: Farida Kimotho v Ernest Maina in which the court held that the happening of an accident is not prima facie evidence of negligence; and that the plaintiff must ordinarily give affirmative evidence of negligence on the part of the defendants.(c)Fredrick Wichenje Ikutwa v Florence Mwikali [2020] KEHC 7298 (KLR) in support of the proposition that in civil cases, the burden of proof was on the respondent. 14.On quantum, it was the submission of the appellants that the respondent failed to prove income, for instance, by way of production of pay slip; and therefore there was no basis for the awards made by the lower court. The appellants further submitted that no document was produced to indicate that indeed the deceased was a professional contractor. They relied on Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, in which it was held that the general method of approach for assessing damages is that comparable injuries should be compensated by comparable awards. 15.The appellant also submitted that an appellate court should be slow to interfere with the discretion of the trial court in the award of damages unless the trial court is shown to have acted on wrong principles of the law, in that it took into account an irrelevant factor or failed to take into account a relevant factor; or that the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. They relied on Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A M M. Lubia & another [1982-88] 1 KAR 777. 16.While conceding that an award of Kshs. 100,000/= was not unreasonable in the circumstances, the appellants submitted that there was double award under the Law Reform Act and the Fatal Accidents Act. Accordingly, they relied on Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR among other authorities in urging the Court to find that there is no indication in the judgment of the lower court to demonstrate that the learned magistrate took into account or considered the award under the Fatal Accidents Act vis-a-vis the award under the Law Reform Act. 17.In respect of the special damages awarded by the lower court, the appellants submitted that no assessment report or valuation report was produced by the respondent in proof of her assertion that the deceased’s motor vehicle was written off or that it was valued at Kshs. 500,000/= as was alleged by her. They urged the Court to find that there was no basis for the award of special damages made by the lower court. They therefore prayed for the dismissal of the cross-appeal with costs. 18.This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..." 19.I have given careful consideration to the evidence placed before the lower court in the light of the pleaded injuries. The respondent testified on 13th January 2021 and adopted her witness statement dated 29th October 2019 as part of her evidence. She stated that she is the widow of the deceased, George Ochieng Okun, and the administrator of his estate. She further testified that the deceased died on 11th November 2018 as a result of injuries sustained in a road traffic accident. The respondent added that she just received information that her husband had been involved in a road traffic accident and that on going to the scene she was told he had been taken to Kendu Bay Adventist Hospital. He confirmed that the deceased succumbed to his injuries. 20.It was the evidence of the respondent that the deceased was 47 years old at the time of his demise; and that he was then working as a registered general building contractor, operating under the name of Cemteck Engineering. She further testified that the deceased’s annual income was Kshs. 1,000,000/=, translating into net income of Kshs. 100,000/= per month. She added that they have 3 children, all minors, and that the family entirely depended on the deceased for their livelihood. 21.The respondent also testified that the deceased owned a motor vehicle Registration No. KBR 835H which he was driving at the time of the accident. It was her evidence that the motor vehicle was damaged beyond repair. She accordingly asked to be awarded Kshs. 500,000/= being the pre-accident value of the said motor vehicle as well as Kshs. 500,000/=, being funeral expenses incurred by the family. In support of her evidence, the respondent produced a letter from the area chief, the Grant of Letters of Administration Ad Litem confirming her as the administrator of the estate of the deceased, a Certificate of Death and Police Abstract in proof of the accident, and the death of the deceased. 22.In addition to the foregoing documents, the respondent exhibited documents to prove that the deceased was earning a living as a building contractor and was the director of Cemteck Engineering Limited. Among those documents were audited accounts for the year 2017 and an award of contract dated 20th November 2013. The last batch of documents were in connection with Motor Vehicle Registration No. KBR 835H. They include a copy of the records maintained by National Transport and Safety Authority, log book and the post-accident photographs of the motor vehicle. 23.The respondent called PC Kiplagat Cheboi (PW2) a police officer attached to Kendu Bay Police Station as her witness. He testified before the lower court on 4th March 2021 as PW2 and confirmed that a road traffic accident occurred on the 11th November 2018 at Seka area along the Kendu Bay-Katito Road involving Motor Vehicles Registration Numbers KCG 591U, Toyota Hiace Matatu, and KBR 835H, Toyota Probox. PW2 further stated that the case was still pending under investigation and therefore nobody had been charged or prosecuted for any offence. He produced the Police Abstract as an exhibit. 24.PW3 was Zedekiah Ochieng, a resident of Seka. He testified that he witnessed the accident from a distance of about 10 metres. He stated that the accident occurred at Seka area along the Kendu Bay-Katito Road at about 7.00 to 8.00 p.m. and that it involved Motor Vehicles Numbers KCG 591U and KBR 835H; and that the latter vehicle was hit by the Matatu. He further testified that the driver of Probox vehicle was injured and was taken to hospital for treatment. He later learnt that he had died. 25.The appellants also called PC Kiplangat Cheboi (DW1) who had earlier testified as the respondent’s witness. In addition to his earlier evidence, DW1 stated that the investigations revealed that the deceased, as the driver of Motor Vehicle KBR 835H was in the process of overtaking a trailer hauling sugar cane when he collided head-on with the Matatu which was heading towards the opposite direction. He further stated that the file was forwarded to the Office of the Director of Public Prosecutions to be finalized by way of inquest after the investigations failed to ascertain who was to blame for the accident. 26.The foregoing being the summary of the evidence presented before the lower court, the single issue for determination is whether the respondent proved her case in all its aspects to the requisite standard. Undoubtedly, the legal burden of proof was on the respondent, for Section 107(1) of the Evidence Act, CAP 80, is explicit that: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. 27.Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) held:We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…” 28.Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, held:The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 29.Consequently, having alleged negligence at paragraph 4 of their Plaint, it was for the respondent to prove the link between the actions of the appellants and the collision that caused the death of the deceased. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…” 30.Likewise, in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 the Court of Appeal held that:…There is as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence…” 31.In this instance, it is manifest that the accident occurred at night and therefore, PW2 stated that though he witnessed the occurrence, he was unable to tell who was at fault. The police officer who was tasked with the investigation of the matter testified before the lower court and said they were unable to tell who was to blame and therefore the matter was still pending under investigations. Accordingly, the lower court did not have any basis for finding either driver more culpable than the other. He therefore held both equally liable and stated as follows at paragraphs 13, 14 and 15 of the Judgment dated 22nd September 2021: 13.In the present case the plaintiff produced a witness, PW3, who testified that he witnessed the accident and blamed the driver of the matatu registration number KCG 591U for the accident. The credibility of PW3 is however in question since he is not listed as a witness in the Police Abstract tendered as evidence in court as PEXH 3 and he did not record any statement at the police station. 14.In as much as the credibility of PW3 is challenged, no evidence was adduced by the defendants to challenge or contradict the evidence given by PW3. Accidents do not happen in the normal cause of events unless someone is responsible for the same. 15.In view of the foregoing, I hereby apportion liability in the ratio of 50:50 against the parties.” 32.It is manifest therefore that the learned magistrate applied his mind correctly in resolving the issue of liability. He sought guidance from the case of Sally Kibii & another v Francis Ogaro [2012] eKLR in apportioning liability on the basis of the evidence presented and the applicable law. 33.In the case of Abbay Abubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd [1984] KECA 14 (KLR), the court relied on the case of Lakhamshi v Attorney General, (1971) E A 118, 120 where it was held:…A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident. 34.There was therefore nothing intrinsically wrong with the apportionment of liability at 50:50 by the learned magistrate. The point was aptly made by Madan, J. (as he then was) as follows in Welch v Standard Bank Limited [1970] EA 115:When there is no material to generate actual persuasion in the court’s mind, still the court cannot unconcernedly refuse to perform its allotted task of reaching a determination. The collision is a fact. Any one of the alternatives mentioned may provide the right answer as to how it happened. The court’s sense of impartiality prevents the choosing of the alternatives of individual blame against either driver. It would be just to say, and it is as likely the explanation that both drivers were to blame equally as that only one of them was wholly to blame. Accidents do not happen but they are caused. It is an explanation which offers a solution of impartial practicability. Every day, proof of collision is held to be sufficient to call on the two defendants to answer. Never do they both escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence enabling the court to draw a distinction between them, they must both be held to blame, and equally to blame…Justice must not be denied because the proceedings before the court fail to conform to conventional rules provided, in its judgment, the court is able to discern that which is right owing to it being fair and just in the circumstances, without jeopardizing the vital task of doing justice. Provided there is no transgression of this sacred duty, the court will act justly in coming to a decision even if there is no evidence capable of procreating actual persuasion…There being nothing to enable the court to draw a distinction between the two drivers, it is consonant with probabilities, and it is not repugnant aesthetically to a logical judicial mind, to hold that both were to blame, and equally to blame. The court does hold so in this case.” 35.Indeed, in Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR, the Court of Appeal quoted with approval the following passage from the judgment of Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681:To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.” 36.The Court of Appeal proceeded to upset the High Court’s apportionment of liability at 80:20 in favour of 50:50 on the basis that both drivers were blameworthy. It held:…there were specific acts of negligence pleaded by both parties in their pleading and the onus was on them to prove those allegations on a balance of probabilities…The case largely turns on assessment on recorded evidence since the issue of credibility of two crucial witnesses did not arise. As stated earlier, Kloss and Sabine were not before the superior court and therefore their demeanour could not be assessed. There was evidence that both drivers were driving at speeds of 80-90 Kmph shortly before the collision. Neither side suggests that the speed was excessive in the circumstances. There is evidence that Kloss applied emergency brakes and was stationary at impact while David, on his own admission, made no effort to slow down or brake. There is evidence that the road was straight, clear and dry although it was narrow and unmarked. There was evidence that both sides of the road were similarly clear and there was reason therefore for either of the drivers to swerve away from each other before it was too late, if they were exercising due care and attention. In failing to do so, both drivers must share the blame equally. We find no valid basis for apportioning higher liability against Kloss in the circumstances of this case. To his credit, he applied brakes to slow down on sensing danger, though he took no evasive action when it was open for him to do so, if his evidence is to be believed that he saw the offending vehicle at a considerable distance on his side of the road. The nearest other vehicle on that road was more than 200m away. We would accordingly interfere with the apportionment of liability and set aside the apportionment of 80% and 20% against Kloss and David respectively and substitute therefor 50% and 50% respectively for both drivers. 37.On quantum, the contest appears to be on whether the learned magistrate erred by applying the global approach. The general position at law was well summarized in Albert Odawa v Gichimu Githenji [2007] eKLR as follows:The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation. Where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.” 38.Similarly, in Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (supra) it was held: 23.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. 24. 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.” 39.The same approach was taken in Moses Mairua Muchiri v Cyprus Maina Macharia (supra) as follows:…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.” 40.In Homa Bay High Court Civil Appeal No. E036: Third Engineering Bureau of China City Construction Limited v Francis O Mobegi & Naomi Kaleji (suing as legal Administrators of the Estate of SIMON ACHIRA MOBEGI) & others, this court assessed damages for loss of expectation of life at Kshs. 2,000,000 in an appeal where the lower court had awarded Kshs. 4,500,000/= for loss of dependency. The deceased was similarly a contractor and was a director of a limited liability company. The plaintiff sought to rely on the company documents in proof of the deceased’s income. 41.In this case the respondent alleged that the deceased was a contractor earning about Kshs. 100,000/= per month, but provided no evidence to support that assertion. Her proposal on appeal for the application of the multiplier approach with a multiplicand of Kshs. 85,000/= therefore lacked foundation. I find no basis for faulting the decision of the lower court in adopting the global approach. 42.The other awards were, by and large, not disputed, save for special damages. The respondent claimed Kshs. 500.000/= for the damaged vehicle and Kshs. 350,000 for funeral expenses. 43.I have looked at the evidence before court and I agree with the finding of the trial magistrate that the appellant did not produce any evidence to prove that the deceased’s motor vehicle was damaged beyond repair or its value at the time. There was therefore no basis for the learned magistrate to award the sum claimed under the head of special damages of Kshs. 500,000/=. It is trite that special damages must not only be specifically pleaded but also proved. 44.As for funeral expenses, I note that the learned magistrate was guided by Premier Dairy Limited v Amrjit Singh Sagoo & another, Civil Appeal 312 of 2009, in which the Court of Appeal held that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping; yet he awarded only Kshs. 56,700/= on the basis that that was the amount supported by receipts exhibited by the respondent. In my view, that was a misdirection by the learned magistrate as it was, in effect, a negation of the principle set in Premier Dairy Limited. I hereby set aside that aspect and award the respondent the full amount claimed for funeral expenses, Kshs. 350,000/=. 45.The appellant complained of double compensation and submitted that the learned magistrate did not take into account and deduct the sums awarded under the Law Reform Act from the amounts awarded under the Fatal Accidents Act. Section 4(2) of the Fatal Accidents Act does not provide for such deduction, but simply for the “taking into account” of any sums awarded for lost years under the Law Reform Act. Accordingly, in the Hellen Waruguru Waweru Case (supra), it was held that:...learned counsel for KSSL, Mr. C.K. Kiplagat was of the view that Hellen could not claim damages under both the LRA and FAA because there would be double compensation since the dependants are the same. He therefore supported the two courts below who deducted the entire sum awarded under the LRA from the amount awarded under the FAA. With respect, that approach was erroneous in law. This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased's estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise." (emphasis added) 46.The deduction was thus reversed by the Court of Appeal on the basis that the words "to be taken into account" used in Section 4(2) of the Fatal Accidents Act and "to be deducted" are two different things; and that what is to be taken into account is not necessarily deducted. I therefore find no merit in that ground of appeal. 47.Save as indicated above, the cross appeal fails and is hereby dismissed. Each party to bear own costs thereof.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MAY 2026.………………………….OLGA SEWEJUDGE