[2022] KEHC 14893 (KLR)

Erastus v NK (Suing as the legal representative and administrator of the estate of the late BJK- (Deceased) (Civil Appeal E003 of 2021) [2022] KEHC 14893 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14893 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Civil Appeal E003 of 2021

CM Kariuki, J

November 3, 2022

Between

Kingori Munene Erastus

Appellant

and

NK

Respondent

Suing as the legal representative and administrator of the estate of the late BJK- (Deceased

(Being an appeal from a judgment/decree of Hon Charles Obulutsa (Chief Magistrate) in Nyahururu CMCC No 18 of 2019 delivered on the 25th February 2021)

Judgment

1. The Respondent sued the Appellant for special and general damages regarding BK's death due to a road traffic accident involving the Appellant's motor vehicle, Registration Number KCB 396H and the deceased, who was a pedestrian. After hearing the matter, the trial court held the appellant 100% liable and, after considering the authorities cited by the Respondent and appellant sides, made awards as follows –a.----KSH 100,000 for pain and suffering.b.….. Ksh 200,000/= on account of Loss of expectation of life.c.----KSH 2,400,000 For loss of dependency.d.…. Specials ksh 705. e.----plus costs and interest.

2. The Appellant was aggrieved and thus filed an instant appeal and set out grounds of appeal 1-8, namely;i.That the learned Magistrate erred in law and fact in failing to properly evaluate the evidence adduced on the issue of liability and quantum, thereby rendering judgment unsound in principle and not reflective of the evidence adduced.ii.That the learned trial Magistrate erred in law and found the Appellants wholly liable for the accident where there was evidence of negligence on the part of the Respondent/Respondentiii.Thet the Magistrate erred in law and fact in failing to appreciate that there are two versions of events, thereby arriving at a finding in liability that is unsupported by the evidence adduced.iv.That the learned trial Magistrate erred in law and in the prince in making an award of Kshs 200,00/= on account of pain and suffering contrary to the principles and law governing the making of such an award and in the absence of evidence to justify such an inordinately high award under the said head.v.That the learned trial Magistrate erred in law and principle in making an award of Kshs 200,00/= on account of Loss of expectation of life contrary to the principles and law governing the making of such an award and in the absence of evidence to justify such an inordinately high award under the said head.vi.That the learned Magistrate erred in law and principle in making an award of Kshs 2,400,000/= on account of Loss of dependency contrary to the principles and law governing making such an award more specifically with regards to a minor who, in the instant case, was only 7sevenyears of age.vii.The learned Magistrate erred in law and principle by issuing double awards under the Fatal Accident Act and the Law Reform Act despite the beneficiaries being the same and thus contrary to the principles and laws governing making awards under the said Acts.viii.That the learned trial Magistrate erred in law and in the prince in failing to appreciate the Appellants’/Appellants’ submissions and the recent comparable cases cited therein and Thu, thus the prejudicial award to the Respondent/Respondent as against the Appellant/Appellant.

3. Parties were directed to canvass appeal applications that they filed and exchanged.

Summary of evidence 4. The brief evidence tendered was that PW1 NK, in her plaint, witness statement, and testimony in court, stated that she was from church with her daughter and alighted from a vehicle. As they waited to cross the road, a motor vehicle came speeding and, while evading a pothole, veered off the road and hit the child as they tried to run away. The child was rushed to the hospital and passed on. After that, that was made to the police, and abstracts were issued. They obtained letters of administration and a certificate of death before a demand letter was sent to the Appellant, who is tr of the motor vehicle.

5. During cross-examination the res, the Respondent said there was a bus stop. The motor vehicle was speeding and swerved because of the potholes on the road and hit the child. She said the same thing that hit her and took the child to the hospital before the child passed on after one day. She was a student in class III.

6. PW2 Ken Cheboiywo relied on his witness statement. He said he was also from church and alighted at this stage, and as they waited to cross the road, a vehicle appeared at high speed in Kinamba heading to Nyahururu and veered off the road to where they were. They ran, but the vehicle still hit a child, injuring her. The vehicle was stopped and took the child and her mother to the hospital. As a neighbor, he learned that the child had passed on.

7. During cross-examination, he said they were about ½ m from the tarmac waiting to cross when the vehicle veered off the road.

8. PW3 PC Charles Kayuba of the police station said the accident was reported at the police station involving the said vehicle KCB 396H and a pedestrian. He produced an abstract that was issued thereof.

9. During cross-examination, he said he was not investigating officer and did not have the police file or Occurrence Book. However, he said the old tract shows that the case was still pending investigation.

10. The DW1 Erastus Kingori Munene, driver of the motor subject, relied on his statements herein and testified that he had slowed down where there were bumps when a girl dashed into the road. He applied brakes, but the girl hit the vehicle. He took the girl and her mother to the hospital and reported to the police, who had the motor vehicle inspected. After the girl died, an inquest was done, and he testified he did not know the results.

11. During cross-examination, he said a matatu was in front before the off-road bumps, but he did not take down the number. He was at a speed of about 50kph and applied brakes but did not swerve.

Appellant submissions On liability, 12. The Appellant submits that being a minor does not mean one cannot be held liable for contributory negligence. As such, the trial Magistrate erred in both law and fact, holding that the deceased could not have contributed to the accident since she was a minor. Reliance is made in Butt v Khan, as cited with approval by the Court of Appeal in Tayab v Kinanu. And MM (suing through" the next of kin CMN) v Boniface Ngaruya Kagiri & another.

13. On Quantum, The Appellant has faulted the trial court for awarding Kshs 100,000/= on Spain's pandering, Kshs 200,000/= on the extension of life, and Kshs 2,400,000/= on account of Loss of dependency. Concerning the limb of pain and suffering, the Appellant submits there was no evidence that the minor was in great pain before she met her death. As such, a conventional award of Ksh 10,000/= was appropriate in the circumstances.

14. Thus, as regards limb of Loss of expectation of life, the trial court made an award of Kshs 200,000/= indicating that it had considered the age of the deceased, and authorities cited.

15. It is contended that the trial court only considered and relied upon the authorities cited by the Respondent in awarding the sum of Kshs 200. 000/=. Had the trial court considered the authorities relied upon by the Appellant and, in particular, Esther Nkudate v Touring & Sporting Cars Ltd & another, the court would have appreciated the dictum of Platt J, as he then was) in which the learned judge opined succinctly as follows"-“The loss of expectation of the child ought to be lower than the ceiling" (Emphasis ours)

16. It is urged that the conventional award for Loss of expectation of life is usually between Kshs 60,000/= to Kshs 100,000/= as was held in the case ofEasy Coach Bus Services & Another v Henry Charles Tsuma. Thus, the award of Kshs 200,000/= under this head was excessive and above the ceiling, and the court is urged to reduce the award to Kshs 80,000/=.

17. About the limb of Loss of dependency, it is submitted that PW1 stated that the minor was in standard three at [Pariculars Withheld] Primary School and that she was doing well and was number 4 in the class. PW1 admitted that she had no report form to prove her allegations. It is also noteworthy that PW1 adduced no evidence hoof whether the minor used to assist her at home. Reliance is made on the case of PIV, Zena Roses Limited & Another

18. It is the Appellant's submission that the object of an award of damages is to compensate the Respondent for his Loss and not to punish the Appellant for his wrongdoing court in Anthony Konde Fondo & Another v RMC (The representative of FC (deceased) held as follows: -“While compensation is the epitome of civil suits and indeed a form of healing balm on the wounds occasioned by the death of a minor, it is prudent for courts to retrain from "While compensation is the epitome of civil suits and indeed a form of healing balm on the warding outrageously great general damages that can only be assumed to be punitive on the part of the Appellants. Therefore, it is considered that the total award of Kshs 2,000,000/= a loss of dependency was excessive." (Emphasis ours).

19. The sum of Kshs 200,000/= for Loss of dependency is fair and reasonable. Further, in making this conventional award of Kshs 200,000/=, the court is urged to be guided by the case ofEsther Nkudate v Touring & Sporting Cars Ltd & another (supra).

20. This Court of Appeal articulated on principle in Kemfro v (AM Lubia) & Olive Lubia where it stated as follows: -“The net benefit inherited by the dependents under the Law Reform Act must be taken into account for the damages awarded under the FatalAccidents Act because the loss suffered under the latter Act must be offset by the gain from the estate under the former Act."

21. The learned trial Magistrate failed to consider the issue of double awards under the Accident Act and the Law Reform Act despite the beneficiaries being the same, which was against the principle and laws governing awards under the said Acts.

Respondent's Submissions. On the liability 22. It is submitted that, whereas the victim of the accident was a minor aged seven years old, the question that begs an answer is whether there is any contributory negligence attributed to the minor/victim in the circumstances of this case based on the evidence presented.

23. Case of Edward Wasamba Onyango (Suing as the next friend of a minor COW) v Chairman Board of Governors Ayoro Yombe Secondary School [2018] eKLR, where the court cited the celebrated case of Gough v Thorne [1066] WLR 1387 Lord Denning stated that: -“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if they are of such an age as to be expected to take precautions for their safety, and then they are only to be found guilty if blame is attached to them. A child has not the road sense of their elder. They are not to be found guilty unless they are blameworthy.) Emphasis mine)

24. See also Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 88] IKAR {1981} KLR 349.

25. The late BJK could not do so. She was only aged seven years old and was beside the road with other people who were adults. She lacked the mental capacity, physical muscle to avoid the accident, speed to run away from the scene, and the general ability and prophecy to know that the accident would be happening at that particular time to enable her to appreciate the danger and take precautions early enough before the occurrence of the accident, to avoid.

26. The driver of motor vehicle registration number KCB 396H admitted in his evidence (witness statement) that he was driving at 50 km/hr. When he was at Muthengera Shopping Centre, a young girl dashed into the road abruptly, and he knocked her down. Any other witness did not corroborate their evidence on the exact point of impact. He, however, did not challenge and rebut the evidence of PW1 and PW2, the eyewitnesses, on the precise moment of impact.

27. Having admitted that the accident happened at a shopping Centre and that he attempted to avoid it, it could not clearly indicate that he was driving at high speed. He was expected to be more cautious in such an environment considering the human traffic and human behavior which is not certain. Reliance is made on the case ofSavannah Hardware v EOO (suing as the representative of SO (deceased) [2019] eKLR.

28. By his testimony, the Appellant's driver saw a vehicle dropping school children ahead of him. He failed to exercise caution and void the accident; he was reckless and negligent in managing his motor vehicle and taking any crucial steps to avoid the accident, specifically involving the late Brigit Jepkorir Kimutai, a child of tender age. The Appellant was wholly to blame for the accident involving the minor; therefore, the trial court did not err in holding the Appellant 100% liable.

On quantum 29. Respondent supports an award of Kshs 100,000/= for pain and suffering. The Appellant has proposed an award of Kshs 10,000/= in his submissions to this appeal. It is submitted that the award of damages for pain and suffering is under the head of general damages. It is a discretionary jurisdiction to be exercised by the court based on the evidence presented in court and sound legal principles. It must always focus on compensatory and aimed at restoring the losers.

30. The accident happened on the evening of 31st January 2016, and she passed on two days after. The minor went through excruciating pain while undergoing treatment for her fatal wounds. This was confirmed by the post-mortem report dated 4th March 2016, produced as P. Exhibit No 8. The report confirms that the minor died while undergoing treatment at Nyahururu sub-county hospital. The cause of her death, as per the doctor's report, was intracranial hemorrhage secondary to severe head injury." It is clear from the said report that the minor sustained severe injuries and went through lots of pain.

31. Reliance is made in the case ofSukari Industries Limited v Cylde Machimbo Jiuma [2016] eKLR.

32. In the case of Anthony Konde Fondo & another v RMC (the legal representative of FC (deceased) [2020] eKLR, HC Civil appeal at Malindi, the High Court did not disturb an award of Kshs 100,000/= given in the lower court. See also the case of Techard Steam & Power Limited v Mution Muli & Mutua Ngao ]2019] eKLR at HCCA, Machakos, the learned judge awarded a sum of Kshs 100,000/- for pain and suffering.

33. The Appellant is also faulting an award of Kshs 200,000/= due to Loss of expectation of life. The Appellant submitted that since PW1, the mother of the minor, did not avail a report to demonstrate her performance in school and she failed to show how the little assisted her at home, proposed an award of Kshs 80,000/= to replace the trial court award of Kshs 200,000/=. We oppose the proposal and submit it as hereunder

34. That the minor expected to live her life and enjoy it until she encounters her natural death. However, her life was cut short because of injuries sustained in the accident. She is therefore entitled to be compensated for the Loss of expectation of life. Reliance is made on the case ofMMG v Muchemi Teresa [2015] eKLR, Anthony Konde Fondo & another v RMC (the legal representative of FC (deceased) [2020] eKLR, West Kenya Sugar Co Limited v Phillip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya Sumba) – Civil Appeal No 7 of 2017 at HCCA Kakamega the High Court.The minor victim was just seven years old; she still had a long journey of life to live and enjoy; the trial court appreciated that fact which is well founded in law and principle, and the court made an award of Kshs 200,000/= damages for Loss of expectation of life.

35. On Loss of dependency, the Appellant, in his submissions, proposes an award of Kshs 200,000/=. Respondent opposes and submits that Loss of dependency is damages awarded under the Fatal Accident Act. It is not in dispute that the minor was in school and that she was performing well in school at position 4 in standard 3. The failure to avail a report from the school does not mean the minor was not doing well. PW1 is the mother, and she knows her child's potential well. She lived with her, and being a girl; she must have been assisting in house chores as per the Kenya society Practices. The trial court was convinced by the Respondent's evidence of the minor's performance, her role at home, and her importance to her mother. Reliance is made on the case of Chen Wembo & 2 Others v IKK & Another (suing as the legal representatives and administrators of the estate of CRK (deceased)[2017] eKLR.

36. It is argued that a global approach is a correct approach adopted by the trial court, and respondents pray that the system is confirmed. Reliance is made on the case of Domitila Wangui Karugu & another v Dagu Hidris Haide [2020] eKLR, Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another quoted by Koome, J in Albert Odawa v Gichimu Githinji Nakuru HCCA No 15 of 2003 [ 2007]eKLR.

37. In the case of MMG v Muchemi Teresa [2015] eKLR, the court used a multiplier method to award damages for Loss of dependency and awarded a sum of Kshs 3,600,000/= for a minor who was aged 12 years at the time of his demise.

38. In the case of China National Aero-Technology International Engineering Corporation v RL (suing as the legal representative of the estate of the Late SL[2020] eKLR HCCA Nyahururu the court confirmed an award given by the lower court at Kshs 1,400,000/= for Loss of dependency.

39. In the case of Kenya Red Cross v IDS (suing as the legal representative of the estate of MDR (deceased) [2020] eKLR, HCCA Garissa, the court in appeal confirmed the lower court decision that has awarded a sum of Kshs 1,500,000/= as damages for Loss of dependency.

40. Given the preceding authorities, this court is urged to consider the time lapse since the awards were made and maintain the award of Kshs 2,400,000/= being damages for Loss of dependency and dismiss ground 6 of the Appellant's memorandum of appeal.

41. On ground 7 of the Appellant's memorandum of appeal, the Appellants submits that double awards under the Fatal Accident Act and Law Reform Act has been made contrary to the principles and laws governing the making of distinctions. Therefore, section 4 (2) of the Fatal Accident Act does not warrant deducting the sums awarded under Law Reform Act from the sum awarded in the FatalAccident Act as submitted by the Appellants.

42. Reliance was made on in the case of West Kenya Sugar Co Limited v Phillip Sumba Juley (suing as the administrator and personal representative of the estate of James Julaya Sumba) – Civil Appeal No 7 of 2017 at HCCA.

43. In the Act, "to be taken account "does not mean to offset; it simply implies that in awarding damages under the Fatal Accident Act, the trial court considers the award made under the Law Reform Act. Accordingly, the trial court took account of the awards he had made under the Law Reform Act when he awarded damages under the Fatal Accidents Act. The trial court was entitled to make awards under the Law Reform Act and the Fatal Accidents Act.

44. On ground 8 of the memorandum of appeal, the Appellant submits that their submissions were not considered, and subsequently, the court arrived at a wrong decision. On page 155 of the appeal record, the trial court judgment read as follows: -"……The court has considered the proposals of pain and suffering. The submissions by the Appellant that there is no proof of pain and suffering are not supported

Issue, Analysis, and determination. 45. After going through the evidence, pleadings, and submissions on record, I find the issues are whether the finding on liability is erroneous in apportionment. Were awards in damages inordinately high and legally unjustified? What are the orders on costs?

46. A first appellate court is empowered to subject the whole of the evidence to fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hear the witnesses firsthand. (See Selle & another v Associated Motor Boat Co. Ltd.& others1)

47. From what is presented, it is not in dispute that the Appellant is the registered owner and was the one driving the motor vehicle KCB 396H at the time. It is also not an argument that there was an accident involving the said vehicle and Brigit Kimutai, a pedestrian. It is also admitted that she sustained injuries and was rushed to hospital by the Appellant in the exact vehicle and that she passed away after that.

48. The Respondent's case is that the Appellant was speeding and, on reaching where the potholes veered off the road and hit the deceased. The post-mortem form shows that the deceased had a cut and sutured wound on the left frontal region of the head, cut wounds on the upper and lower lips, and bruises on the right maxillary area. The cause of death was said to be intracranial hemorrhage secondary to severe head injury

49. The accident occurred on 31st January 2016, and she passed on the next day, on 1st February 2016.

50. The Respondent and her witness blame the Appellant for driving at high speed and veering off the road before hitting the girl. The Appellant, on his part, says that the girl was at fault for suddenly running into the street. When the police officer testified, he told the abstract indicated that the case was still pending an investigation. When the Appellant testified, he said an inquest had been opened into the accident. Though he testified, he didn't know the outcome of the inquest.

51. The inquest mentioned is unknown, and if the case was still pending an investigation, the police station is for this court to make its assessment and finding.

52. The testimony of the Appellant had been considered in light of the testimony of the mother of the deceased, and an eye witness was called. Whereas the Appellant says the child was on the road, the Respondent and witnesses say that the motor vehicle left the road and hit a child.

53. The minor could not have contributed to the accident when she was off the road. The trial court's reasoning on that issue was not based on the victim being a minor but rather on the evidence tendered, which proved that there was no contribution from the victim to the accident. Even if the victim was an adult, in this case, negligence could not have been attributed to them, as they were all standing beside the road.

54. The Respondent's testimony and the eyewitnesses are credible and consistent; the driver was at fault for veering off the road and causing the accident. The deceased was a minor and could not have contributed to the accident. On a balance of probability, the trial court was satisfied that liability was proved against the Appellant, the driver, and the owner of the said motor vehicle. Thus, this court upholds the trial court finding.

55. On quantum, the Appellant submitted that since PW1, the mother of the minor did not avail a report to demonstrate her performance in school, and her failure to show how the minor assisted her at home proposed an award of Kshs 80,000/= to replace the trial court award of Kshs 200,000/=. The age of the deceased is vital as her assistance of her parents will benefit from the longevity of life were it not cut short by this ultimately death.

56. The dependency and contribution of the deceased are not diminished or abrogated completely. See the decision of the court of appeal on this aspect in the cases of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015] eKLR; Palm Oil Transporters & Another v WWN [2015] eKLR; Regina Wambui Njenga v R/.K. Obura & Another [2009] eKLR and Put Sarajevo Gen. Eng. Co. Ltd v Esther W. Njeri & 2 Others [2015] eKLR. In all these cases, I have considered a global sum of between kshs. 250,000/- to kshs. 1,000,000/- on the Loss of dependency. I am persuaded, therefore, that a sum of kshs. 1,000,000/- for Loss of dependency is most reasonable. I am alive to the fact that a life was lost, but it is important to note that courts can never adequately compensate for a life that has been lost.

57. The Court of Appeal observed in Denshire Muteti Wambua v Kenya Power and Lighting Co. Ltd [2013] eKLR that: Monetary awards can never adequately compensate a litigant for what they have lost in bodily function, especially where this is a permanent disability. But awards have to make sense and regard the context in which they are made. They cannot be too high or too low, but they have to strike a chord of fairness. Accordingly, substitute an award of Ksh 2,400,000 under this head.

58. Appellant faults the trial court award of Kshs 100,000/= for pain and suffering. He proposed an award of Kshs 10,000/= in his submissions to this appeal. The Respondent opposes the proposal by the Appellant because the award of damages for pain and suffering is an award under the head of general damages, which is a discretionary jurisdiction to be exercised by the court based on the evidence presented in court and sound legal principles. It must always focus on compensatory and aimed at restoring the losers.

59. The accident happened on the evening of 31st January 2016, and the deceased minor was rushed to Nyahururu Hospital for treatment and passed on the next day. The child went through excruciating pain while undergoing treatment for her fatal wounds.

60. She was treated, admitted, and later referred to Nakuru Provincial General Hospital the following day, on 1st February 2016. At Nakuru, she was treated and discharged, and re-admitted at Nyahururu Hospital, eventually succumbing to her injuries. This was evidenced by PW1, the mother who had accompanied her all through.

61. In the persuasive case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR, the court observed: -"The generally accepted principle, therefore, is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for Loss of expectation of life is Ksh. 100,000/- while for pain and suffering, the awards range from Ksh. 10,000/= to Ksh. 100,000/= with greater damages if the pain and suffering were prolonged before death."

62. on the above case, I uphold the award of Ksh 100,000 for pain and suffering. The minor expected to live her life and enjoy it until she encountered her natural death; however, her life was cut short because of injuries sustained in the accident. She is therefore entitled to be compensated for the Loss of expectation of life.

63. In the case of MMG v Muchemi Teresa [2015] eKLR where the court held thus: -“The deceased was 12 years when he died. He had his whole life before him. All human life is precious, but when a young life is snuffed out as the deceased was, there is that much pain and Loss felt. It would not have been the same as, for instance, the Loss of a 70 years old person who has had nearly his entire natural life. Therefore, I will award Kshs 150,000/= for Loss of expectation of life".

64. There is no justification for interfering with the trial court award as it is not inordinately high but within the range of the cited cases.

65. The Appellant further submits that the trial court did double award under the Fatal Accident Act and Law Reform Act contrary to the principles and laws governing making distinctions.Therefore, section 4 (2) of the Fatal Accident Actdoes not warrant deducting the sums awarded under Law Reform Act from the sum awarded in the FatalAccident Act as submitted by the Appellants.

66. It was held in the case of West Kenya Sugar Co Limited v Phillip Sumba Juley (suing as the administrator and personal representative of the estate of James Julaya Sumba) – Civil Appeal No 7 of 2017 at HCCA Kakamega as follows: -"…This Court has explained the concept of double compensation in several decisions, and, surprisingly, 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. 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 theLaw Reform Act. Hence the issues of duplication do not arise. The words 'to be taken into account and 'to deduct' are two different things. The words in section 4 (2) of the Fatal Accidents Act are 'taken into account. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the lower court's judgment shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary Loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction."

67. In the Act, "to be considered "does not mean to offset; it simply implies that in awarding damages under the Fatal Accident Act, the trial court considers the award made under the Law Reform Act. Accordingly, the trial court took account of the awards he had made under the Law Reform Act when he awarded damages under the Fatal Accidents Act.

68. The trial court was entitled to make awards under the Law Reform Act and theFatal Accidents Act. The upshot is that all awards save on dependency, which has been reduced from Ksh5 2,400,000. Thus, the court makes the orders;i.The appeal is allowed to the extent that dependency is reduced from Ksh 2,400 000 to Ksh 1,000,000; the other awards remain intact.ii.Parties to bear their costs.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 3RD DAY OF NOVEMBER, 2022. ..................CHARLES KARIUKIJUDGE