https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7309

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CIVIL APPEAL NO. E075 of 2024** **EQUITORIAL NUTS PROCESSORS LIMITED .......………… APPELANT** **VERSUS** **CHARLES MWANGI GICHIMU (Suing as the** **legal representative of the estate of the late** **DAVID MWANGI GICHIMU - deceased)…………………….. RESPONDENT** **JUDGMENT** 1. This is an appeal from the Judgment and decree given in Murang’a CMCC No. 83 of 2020 delivered on 2.8.2024 by Hon. Susan N. Mwangi (PM). The Appellant was the defendant in the lower court while the Respondent is the legal representative of the estate of David Mwangi Gichimu (deceased) who was the plaintiff. After hearing the parties, the court entered judgment as follows: 2. Liability - against the Appellant at 100% 3. Pain and suffering – Kshs. 100,000/= 4. Loss of expectation of life – Kshs. 100,000/= 5. Damages under Fatal Accidents Act – Ksh. 1,800,000/= 6. Special damages – Ksh. 295,190/=. 7. Costs and interest of the suit until payment in full. 8. The Appellant was aggrieved by the finding and filed the Memorandum of Appeal on 14.08.2024 on the following grounds: 9. The learned magistrate erred in law in awarding liability at 100% against the appellant despite the evidence on record in support of the appellant’s case. 10. That the learned magistrate erred in law in awarding general damages for loss of dependency at Kes. 1,800,000/= which amount is manifestly excessive and high in the circumstances. 11. That the learned magistrate erred in law and in fact in failing to consider the written submissions of the appellant on record and the authorities annexed therein in support of the appellant’s case while arriving at the award in general damages. 12. That the learned magistrate misdirected herself by using wrong principles and failing to consider other conventional awards in the assessment of damages payable. 13. That the judgment of the learned trial magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis. 14. The appellant stated that the finding on liability was wrong. Further, that the award on damages was inordinately high as to amount to erroneous estimate of damages. Pleadings 1. The Respondent filed suit via a plaint dated 06.06.2020, claiming damages arising from a fatal traffic accident involving the deceased who was the driver of motor vehicle registration number KCK 627A along Murang’a-Kenol road on 4.12.2019, when the appellant’s agent drove motor vehicle registration number KBW 842A carelessly, resulting in the death of the deceased. Particulars of negligence were set out and the respondent averred that the appellant was vicariously liable. 2. The deceased was 32 years old with two dependents, a father and mother. Ages are not given in the plaint. He averred that he earned Ksh. 45,000/= as a driver with Kamuma Sacco. He claimed damages under the Fatal Accident Act and Law Reform Act. He pleaded a sum of Ksh. 295.190/= as funeral expenses with Ksh 150,000/= being used for food and beverages under the heading funeral expenses. 3. The appellant filed defence on 12.08.2020. It was pleaded that the accident was caused by the deceased’s negligence in particular in his manner of driving motor vehicle registration number KBW 842A. Evidence 1. The respondent testified as PW1. He stated that he was a farmer and reiterated his statement dated 6.6.2020 and produced exhibits 1-10. The statement reiterated the plaint. He produced a death certificate showing that the deceased was a driver who died at the age of 32 at Murang’a District Hospital. He produced letters of administration ad litem granting him powers to file suit. He stated that the deceased was a driver and he did not know how much the deceased was earning. He stated that the deceased used to help the sister who is still in school. 2. PW2 was PC(W) Wambui of Murang’a Police Station. She stated that motor vehicle registration number KBW hit their vehicle on the right. He was rushed to Murang’a Level 5 hospital with a hand hanging due to the accident. The driver died on 4.12.2019 while undergoing treatment. 3. DW1 was James Kaara Muchira. He adopted his statement. On cross examination he stated that he was informed that the Nissan lost control and hit the lorry. He was not at the scene of accident. Lower Court Submissions 1. The Respondent submitted for a multiplier of 38 years, multiplicand of Ksh 45,000/= giving a total award of Ksh. 1,897,296/=. They prayed that a minimum wage of a medium sized vehicle is Ksh. 23,717.20. 2. The Appellant submitted that there is no liability without fault. No eye witness was called. They prayed that both parties be held 50:50 to blame. It was submitted that a sum of Ksh 10,000/= will suffice as damages for pain and suffering. They submitted that a sum of Ksh 100,000/= will suffice under the Law Reform Act. They submitted for sum of Ksh 800,000/= for loss of dependency. On special damages they prayed that the submissions be strictly provided. Submissions 1. The court herein gave directions that the matter proceeds by way of written submissions. 2. The Appellant filed submissions dated 07.05.2025, where they reiterated the duty of the first appellate court as settled long ago, in the locus classicus case of **Selle and another Vs Associated Motor Board Company and Others [1968]EA 123,** where the Judges, in their usual gusto, held as follows: - .. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally. 1. On liability they submitted that the police abstract did not indicate who is to blame. They submitted that it is motor vehicle registration number KCK 627A that was speeding, left its lane and hit the deceased without stopping. The deceased drove off the said motor vehicle. Reliance was placed on the Court of Appeal decision in **Michael Hubert Kloss & Another V David Seroney & 5 Others [2009] eKLR**, where it was held: *The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: 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.* 1. They submitted that the case should be dismissed. They urged the court to critically weigh the evidence. Reliance was placed on the case of **Sally Kibii & Another v Francis Ogaro [2012] eKLR**. They submitted that the court has vast powers to apportion liability. It was stated that *resp isa loquitor* becomes automatically applicable when the evidence of the plaintiff is disputed in cross examination. On liability they relied on the case of [**Postal Corporation of Kenya & another v Dickens Munayi [2014] KEHC 1569 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/1569/eng%402014-11-11), where, G. W. Ngenye – Macharia J, as she then was, stated as follows: For the foregoing reasons, I am clear in my mind, that it is difficult to tell the extent to which each party (Respondent and Appellants' driver) contributed to the accident. And as rightly submitted by counsel for the Appellants, when the court is in doubt on the extent of contribution by either party, the most prudent thing to do is to apportion the contribution at a ratio of 50% :50%. I therefore entirely concur with the findings in the cited cases of Haji -Vs- Marair Freight Agencies Ltd (1984) KLR, 139 in which the Court of Appeal held; Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable contribution the blame can be apportioned equally on each …... In the NDERITU -VS- ROPKOI & ANOTHER case (Supra) the Court of Appeal at Nyeri observed that the court had been provided with scanty evidence of how the accident had occurred. It arrived at a finding that both the driver of the motor vehicle and the cyclist were to blame by failing to exercise the degree of care and skill expected of them on a public road. It then proceeded to apportion liability at 50:50%. A similar scenario was presented as in the case of Mohamed Dahir (Suing though his duly authorized Attorney) Omar Mohamed Dahir v Mahat Osman Bered & 6 others [2015] eKLR The best comparison fits in the case of Valley Bakery Ltd & Another -Vs- Mathew Musyoki 2005 KEHC3029(KLR in which the court (L. Kimaru) stated; The evidence on record in respect of what actually took place on the material day is thus contradictory and completely at variance with each other. This court will resolve the contradiction apparent in the evidence adduced by the 2nd Appellant and the Respondent by apportioning liability on a 50:50 basis.(emphasis and disambiguation added) 1. The Appellant posited that the deceased was largely to blame. Reliance was placed on the case of [**Beatrice Anyango Okoth v Rift Valley Railways (Kenya) Limited & another [2018] KEHC 543 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/543/eng%402018-12-06)**,** where the court, P J O Otienoposited as follows: 60. Having considered the entirety of the evidence I do find that each of the parties contributed to the accident. I find the plaintiff to have contributed by being too close to the rail track but that was necessitated by unsafe and risky environment created by the second defendant’s breach of statutory duty and aggravated by the 1st defendant’s employees’ act of moving the locomotive blindly. I apportion to the plaintiff 20% of the liability and to the defendants 80% jointly and severally. 1. On general damages they posited that the sum of Ksh 1,800,000/= was inordinately excessive. They stated that no documentation was tendered on the allegation of damages. Reliance was placed on the case of **Mwanzia & another** (Suing on their behalf and on behalf of the Estate of the Late Sammy Mwanzia) v Agility Logistics & another (Civil Appeal E037 of 2020) [2023] KEHC 2 (KLR), where the court, O. Sewe, posited as follows: Where, as in this case, there was no proof of the deceased’s monthly income, the best course would be for the lower court to award a global sum. In this regard, the decision of Hon. Ringera, J. in Mwanzia v Ngalali Mutua & Kenya Bus Service (Msa) Ltd & another, (as quoted by Koome J., (as she then was) in Albert Odawa v Gichimu Gichenji [2007] eKLR), is instructive. The learned Judge took the view, with which I agree entirely, that: 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. 1. It was submitted that although the court applied the global sum approach, the amount awarded was too high. Reliance was placed on the case of **Joseph Kyalo Maundu v Moses Musau Mulela & another (2019) eKLR** and the case of **Butter Vs Butter** Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appeal held as follows: 2. In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration. 3. The appellant relied on several other authorities on quantum. Due to economy of space, I may not set then herein in full. I shall subsume them in the analysis. 4. The respondent filed submissions dated 4.11.2025. They addressed the duty of the first appellate court. They relied on the case of [**Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/208/eng%402013-10-11)**,** where the court of appeal [EM Githinji, RN Nambuye, MK Koome] stated as follows: This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that: On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence. 1. In regard to disturbing an award of damages, the court will only interfere if the decision is based on wrong principles. On this they relied on a persuasive case of **Ayoti Distributors Ltd v Auma (Civil Appeal E093 of 2021) [2024] KEHC 3881(KLR).** 2. They submitted that the burden of proof was on the party alleging based on a balance of probabilities and burden of proof as discussed by Kimaru, J in **William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526**. It was submitted that the burden for proving contributory negligence of the deceased lay with the appellant. They submitted that the court analyzed the evidence of PW1 and gave it its proper weigh. 3. DW1 admitted that he was not the driver of the subject motor vehicle KBW 842A. He went to the scene after the accident. This evidence they classified it as inadmissible hearsay. This was buttressed by the case of [**Republic v Felix Munyao Kioko & 3 others [2017] KEHC 3041 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3041/eng%402017-08-03), where P Nyamweya J, as she then was, stated as follows: The rules on the admissibility of hearsay evidence were enunciated in **Kinyatti vs Republic (1985) KLR 562**, where the Court of Appeal held that the rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact. The Court went on to hold that the evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. Therefore, evidence of the fact that the witnesses did talk with Wilfred is admissible on this account. 1. They submitted that there was no evidence tendered to show that DW1’s evidence was brought towards the exceptions to the general rule against hearsay as enunciated by section 33 of the Evidence Act and as stated in the case of [**Dickson Mbeya Marende alias Dickie & another v Republic [2017] KECA 86 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/86/eng%402017-12-15). The quote therein does not relate to the case. 2. The respondent reminded the court, for the umpteenth time, its duty as set out in the persuasive case of **Dete vs Mirieri (2025) KEHC 3337 KLR**, where the court stated as follows: The Court must remember that it has neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as that of the lower court, as parties cannot read into those documents matters extrinsic to them. 1. On the other hand, they reiterated their evidence as uncontroverted. It was their case that the appellate failed to avail its driver to give evidence on the occurrence of the accident. They submitted that the post mortem report showed the nature of the injuries. They relied on the case of **North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] eKLR**. 2. On quantum, they relied on the case of **Loice Wanjiku Kagunda v. Julius Gachau Mwangi Civil Appeal No. 142 of 2003**) on when a first appellate court should interfere with an award of damages. They submitted that the deceased still had a sister who was still going to school and an amount of Ksh.1,800,000/= was not excessive. Analysis 1. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of **Mbogo and Another vs.Shah [1968] EA 93** the Court stated: …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. 1. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In the case of **Peters vs Sunday Post Limited [1958] EA 424**, the court therein rendered itself as follows: *It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…* Liability 1. The evidence of the two respondents was that the report was to the effect that the appellant caused the accident herein. The police evidence was that the Appellant’s vehicle hit the deceased’s vehicle. The appellant’s evidence was of no use. The person who testified did not witness. The court can only rely on the doctrine of *res ipsa loqutor.* The evidence from the report made to the police station was that it is the lorry that hit the appellant’s vehicle. This evidence was not rebutted. 2. The appellant’s vehicle and the deceased’s motor vehicle were the only ones on the road. This is a case where *res ipsa loquitor* comes in. In the case of [*David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi* & Charles Michieka Nyoungo [2019] KECA 434 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/434/eng%402019-07-31), the court of appeal [Asike-Makhandia, Kiage & Otieno-Odek, JJA)addressed res *ipsa loquitor* as follows: 6. In Ogol – v- Murithi, [1985] KLR 359, it was held that in a road traffic accident, in the absence of any explanation to show that a respondent was on the balance of probabilities not negligent, a finding of negligence is inevitable once it is shown that the doctrine of *res ipsa loquitor* applies. That is not to say a respondent has to prove how and why the accident happened; it would suffice if he is able to show he was not personally negligent even if the accident remained inexplicable. (See *Woods – v- Duncan [1946] AC 401).* 1. The question of res ipsa loquitor was also addressed as follows: 27. The appellants did not call any evidence to challenge the respondent’s testimony or enjoin the driver of the second motor vehicle registration number KBA 334M. I am convinced that the doctrine of res ipsa loquitor applies in this case. In the case of Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Anor. (2010) eKLR it was held inter alia: “It is trite law that the mere fact that an accident occurs does not follow that a particular person has driven negligently and/or negligence ipso facto must be inferred. So that it is always absolutely necessary and vital that a party who sues for damages on the basis of negligence must prove such negligence with cogent and credible evidence as he who asserts must prove. In this case the 1st respondent was minded to prove that the accident was caused by the negligence of the appellants, or 2nd respondent and or both.” 28. The application of the doctrine of *res ipsa loquitor* was discussed in the case of Esther Nduta Mwangi & Another vs. Hussein Dairy Transporters Limited Machakos HCCC No. 46 of 2007 inter alia as follows: “Although the defendant denied the accident but pleaded in the alternative that the accident was as a result of negligence on the part of the deceased, the defendant chose to call no evidence whatsoever, and that being the case the particulars of negligence on the part of the deceased were not proved and are mere allegations. The plaintiff, on the other hand pleaded the doctrine of res ipsa loquitor and produced documents including police abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine of res ipsa loquitor was pleaded, the burden of proof was shifted to the defendant to disprove the particulars of negligence attributed to him.” 29. In the circumstances of this case, I am satisfied that the learned trial magistrate correctly applied the doctrine of res ipsa loquitor hence the appeal as against liability fails. 1. Though not necessary to plead, the Respondent herein pleaded. The facts point congruence of negligence between the deceased and the appellant. Contributory negligence was addressed succinctly in the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 that; - “In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”. 1. The appellant did not rebut the evidence at all. The driver did not testify. Therefore, the court must make adverse inference. 2. In the case of **Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR**, Justice G V Odunga as then he was stated as doth: 41. Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows: “Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make the adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 1. The court below therefore exercised its discretion properly. Appeal on liability is therefore dismissed. 2. General damages are usually at large. They are not known or known in advance. They have to be estimated with all factors in consideration. In **Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others** (2019) eKLR DAS Majanja J, held as follows: **General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.** 1. In the case of **Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] KECA 252 (KLR**), the Court of Appeal stated as follows: We agree that this court will not ordinarily interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled 1. In deciding whether to disturb quantum given by the lower court, the court should beaware of its limits. Being an exercise of discretion, the exercise should be done judiciously, considering the circumstances, to ensure that the award is not too high or too low as to be an erroneous estimate of damages. The Court of Appeal pronounced itself succinctly on these principles in **Kemfro Africa Ltd Vs Meru Express Service. A.M Lubia & Another 1957 KLR 27** as follows: The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages. 1. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is **Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713** at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: - **The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…** 1. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. So, my duty as the appellate court is threefold regarding quantum of damages: 1. *To ascertain whether the Court applied irrelevant factors or left out relevant factors.* 2. *To ascertain whether the award is too high as to amount to an erroneous assessment of damages.* 3. *To ascertain whether the award is simply not justified from evidence.* 2. To be able to do this, I need to consider similar injuries, take into consideration inflation, and other comparable awards. The appellant contended that the court erred both in law and fact by finding that the loss of dependency was not proved. 3. The court will deal with the three limbs in the inverse order, that is, pain and suffering, special damages, loos of dependency. 4. In respect to pain and suffering, it is conceded that the death was on the spot; in such a case, only nominal damages are granted. They range between 10,000/= to 100,000/= depending on the length of suffering and the excruciating nature of pain. The damages for pain and suffering were addressed in the case of **Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR,** where the court, Justice W. Musyoka stated as doth: 13. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Kshs. 50,000.00 for pain and suffering, the appellate court captured the spirit of the law on the issue when it stated: [5] 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 before 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 hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable. 1. Thus, having regard that this amount was nominal damages, an award of Ksh 100,000/= is not excessive. The deceased suffered excruciating pain where his hand was traumatically amputated. They cannot be said to be so inordinately high as to amount to an erroneous estimate of damages. The appeal on this limb is therefore dismissed. 1. There was no appeal on loss of expectation of life, special damages and funeral expenses. The appeal was on general damages only. 2. The next issue is the elephant in the room, award of damages for loss of dependency. It must be remembered that the Fatal Accidents Act does not limit the age of the dependants but the character. Section 2 of the Fatal Accidents Act defines a parent means a father, mother, grandfather, grandmother, stepfather or stepmother. The deceased had two dependants. The alleged sister was not a dependant and was not listed. Section 4(1) of the Fatal Accidents Act provides as follows: **4. (1)** Every action brought by virtue of the provisions of this Act shall be for the benefit of the **wife, husband, parent and child** of the person whose death was so caused; and shall be brought by and in the name of the **executor or administrator** of the person deceased; and in every such action the court may give such damages as it may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the persons entitled in such shares as the court by its judgment shall find and direct. 1. The question of dependency by parents and the dependency of children has been addressed. There is no need to have actual proof of dependency. In the case of **China Civil Engineering & Another vs Mwanyoha Kazungu Mweni & Another** 2019 eKLR and **Moses Maina Waweru vs Esther Wanjiru Githae** **(Suing as the personal representative of the estate of the late David Githae Kiriro Taiti (2022))** eKLR the court addressed this aspect more successfully. While addressing children who have no income at all, the High Court in the case of [**Joshua Muriungi Ng’anatha v Benson Kataka Lemureiyani** [2016] KEHC 2367 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/2367/eng%402016-10-25) stated as follows: 54. In the case of **Kenya Breweries Ltd vs Saro (1981) KLR 408,** the Court of Appeal sitting in Mombasa stated as follows:- In the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a variable asset which the parents are proud of and are entitled to keep intact. 55. Kneller, JA (as he then was) in **Hassan –Vs- Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457** made similar observation when he stated that:- The fact of the matter is, however, that today parents and children in most Kenyan families do expect their children when adults to help their parents if they need it and, in my view, that should be encouraged and not fulminated against as a system of genontocracy (sic)at its worst. 1. There is no evidence of the age of the parents. The loss of dependency depends on both the age of the deceased and the beneficiaries. The deceased was 32 years old. The age of the parents being unknown, means that there are difficulties in arriving at an appropriate multiplier. However, the deceased could have married and the dependency shifted to the wife. The parents then cannot expect payment into perpetuity as if the dependency will always be there. In [**Waihenya v Kariuki (Suing as the Legal Representative of the Estate of the Late Nicholus Wachira Kariuki (Deceased)) [2024] KEHC 14237 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14237/eng%402024-11-14) it wastated as follows: The documents produced do no show support for the dependants, further they are all adults. Applying the multiplier is as such not a proper measure as it goes more into the realm of conjecture and surmise. The multiplier of 15 is equally too long for adult children aged 18-23. The best method is thus to have either nominal dependency, which in this case could be 5 years. However, there will be a hurdle on proof of income. Having business turnover or contracts is not evidence of income. And even where it were, each of the children should prove dependency. They did not. This is where a global award comes in. 57.Ringera J’s observation was based on the principles for assessment of dependency in Kenya developed in the 1957 case of Peggy Frances Hayes and Others v. Chunibhai J. Patel and Another cited by the Court of Appeal for Eastern Africa in Radhakrishen M. Khemaney v. Mrs Lachaba Murlidhar (1958) E.A. 268, 269 (per Air Owen Corrie Ag. JA with whom Briggs, V-P and Forbes, JA agreed) as follows:“I have no doubt as to the principles which are to be applied to this appeal. In Civil Case No. 173 of 1956, delivered on March 26, 1957, in the Supreme Court of Kenya in an action brought by Peggy Prances Hayes and others against Chunibhai J. Patel and another, the principles applied by the learned chief justice, as he then was, were as follows: "The court should find the age and expectation of working life of the deceased, and consider the wages and expectations of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase. The multiplier will bear a relation to the expectation of earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the re-marriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum the court should apportion among the various dependants."Upon an appeal against this judgment this court held ([1957] RA. 748 (C.A.):"That the method of assessment of damages adopted by the learned chief justice was correct."” Courts are not compelled to adopt the multiplier method in cases where the exercise is groping in the dark, speculation on the important aspects of lost years, or dependency. 1. Given that the deceased was a driver and his income can be known from the minimum wage, then the court erred in using the global award for a single 32-year-old driver. There was proof of income from the deceased. However, he was a driver in Murang’a. Consequently, I find the court was plainly wrong in applying the global award. The lump sum given is appropriate if the deceased was married. The deceased being single, 1/3 is the conventional dependency ratio used. Odunga J (as he then was) in **J W N v Kassam Hauliers Limited [2020] eKLR** stated: *17. Conventionally Courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ratio of 2/3. On the other had they have taken unmarried people to spend more on themselves more than their dependants more so parents hence have apportioned a dependency ratio of 1/3 which has over time been enhanced to 1/2. In this case it was submitted that as the deceased was married with 3 children he spent more on his family than self hence a dependency ratio of 2/3 would suffice.* 1. In the case of **Roger Dainty v Mwinyi Omar Haji & another [2004] KECA 147 (KLR),** the Court of Appeal [R. S. C. Omolo, E. M. Githinji and J. W. Onyango Otieno] stated as follows: The court rejected the rule and re-asserted that dependency is a question of fact. Hancox CJ said in part at page 291: The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyse the available evidence as to how much deceased earned and how much he spent on his wife and family. There can be no rule or principle of law in such a situation. To ascertain the reasonable multiplier in each case the court would have to consider such relevant factors as the income of the deceased, the kind of work deceased was doing, the prospects of promotion and his expectation of working life. 1. The Court in **Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported**), Ringera J, as he then was, held at page 248 that: The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature. 1. The deceased was a driver on Nairobi–Murang’a road. The minimum wage is therefore Ksh. 18,379.50/= for a driver for the light vehicles. The driver was aged 32 years. A multiplier of 12 years will suffice. This works out as follows: Ksh. 18,379.50/= x 12 x 12 x 1/3 = Ksh.882,216/=. 1. The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 1. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: **It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of **Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR**, as follows: - [18] It emerges that the award of costs would normally be guided by the principle that costs follow the event: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. Determination 1. The upshot of the foregoing is that I make the following orders: 2. The appeal on liability is dismissed. 3. Appeal on loss of dependency is allowed. The award of general damages for loss of dependency of Ksh. 1,800,000/= is set aside and substituted with a sum of Ksh. Ksh. 882,216/=. 4. This works out as follows: 1. 100% liability against the Appellant 2. General damages for loss of dependency Ksh.882,216/= 3. Loss of expectation of life of Ksh. 100,000/= 4. Special damages Ksh. 295,190/= 5. Pain and suffering Ksh. 100,000/= **Total Ksh. 1,377,436/=** 1. Costs and interest of the suit in the lower court shall go to the Respondent. 2. Each party to bear its own costs in the appeal. 3. 30 days stay of execution. 4. 14 days right of appeal. 5. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **21st** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **Represented by:-** J.K. Kibicho & Co. Advocates for the Appellant S. Matu Ngeru & Co. Advocates for the Respondent Court Assistant – Martin