https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10986

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E238 OF 2024** **EVERLINE AKINYI OTIENO &** **WILSON ABWAWO AORA (Suing as personal** **Rep. and legal admin of estate of Hezron Odiyo)…...APPELLANT** **-VERSUS-** **KENYA POWER & LIGHTING CO. LTD……….…….…RESPONDENT** ***(****Being an Appeal against part of the Judgement and Decree of Hon. F RASHID (P.M) delivered on 25th October 2024 in Kisumu CMCC NO. E047 OF 2022)* ***JUDGMENT*** **Introduction** 1. The Appellants instituted a suit against the Defendant in CMCC NO. E047 of 2022 seeking general damages under the Fatal Accidents Act, special damages of Kshs.447,470/-, costs and interest. 2. The Respondent filed a defence denying liability. Following a full hearing, the trial court found the Respondent 100% liable and awarded Kshs.40,000/- for pain and suffering, Kshs.100,000/- for loss of expectation of life, Kshs.1,402,560/- for loss of dependency and Kshs.196,975/- as special damages, making a total award of Kshs.1,739,535/-. 3. Aggrieved by the quantum of damages awarded, the Appellant lodged the instant Appeal on the following grounds:- 1. *THAT the Learned Trial Magistrate erred in law and in fact in making the award on loss of dependency, loss of expectation of life and pain and suffering thereby arriving at an erroneous and grossly low award.* 2. *THAT the Learned Trial Magistrate erred in law and in fact in failing to completely evaluate the appellant's general evidence on quantum contrary to the facts and evidence adduced by the appellant.* 3. *THAT the award by the Learned Trial Magistrate on loss of dependency, loss of expectation of life and pain and suffering is contrary to legal tenets existing established and prevailing judicial precedents.* 4. *THAT the Learned trial magistrate completely disregarded the appellants' submission on quantum thereby arriving at low award.”* 4. Based on the foregoing, the Appellants prayed to have the appeal allowed with costs and the judgement of the trial court set aside. The Appellant further prayed for a re-assessment of the quantum of general damages. **Trial Courts Evidence** 1. The Appellant’s case was that the deceased was a driver employed Nadir (K) Ltd. He died due to electrocution which occurred while he was loading the Respondent’s electric poles to a lorry using a crane that lifts poles. PW1, the deceased’s wife, testified during the trial that she received information of the deceased electrocution on 4/5/2021 at around 5:30pm and after a few minutes she received information from the deceased friends that he had been taken to Jaramogi Oginga Odinga Teaching and Referral Hospital. She testified that she immediately rushed to the hospital after receiving the information where she found that he had already passed away. 2. The Appellant’s witness Lidon Okoth Odeny testified that he was on duty with the deceased when the accident occurred. He testified that after the electrocution occurred, he rushed the deceased to St. Consolata Hospital for first aid and treatment and immediately thereafter, they were referred to Jaramogi Oginga Odinga Teaching and Referral Hospital. He stated that the deceased died on the way to the hospital at around 5:30pm. **Appellants’ Submissions.** 1. The Appellants filed submissions dated 18/3/2026 in support of the appeal. It was submitted that the trial Magistrate erred in the assessment of damages under the heads of pain and suffering, loss of dependency and loss of expectation of life. 2. On pain and suffering, the Appellant argued that the deceased did not die instantly but approximately three hours after the accident, having first been treated at St. Consolata Hospital before being transferred to Jaramogi Oginga Odinga Teaching and Referral Hospital. It was submitted that the post-mortem confirmed severe electrocution injuries and that the award of Kshs.40,000/- was inordinately low. 3. On loss of dependency, the Appellant submitted that the trial court erred in treating the deceased as a general labourer despite uncontroverted evidence that he was employed as a driver/heavy machine operator. It was contended that although the employer’s letter did not disclose the deceased’s salary, it sufficiently established his occupation. The Appellant further argued that the court wrongly relied on the repealed Regulation of Wages (General) (Amendment) Order, 2015 instead of the Regulation of Wages (General) (Amendment) Order, 2018 (Legal Notice No. 2 of 2019), under which the applicable minimum wage for a heavy commercial vehicle driver was Kshs.30,627.45/-. The Appellant proposed a multiplier of 38 years and urged the Court to award Kshs.9,310,744.80/- for loss of dependency. 4. On loss of expectation of life, the Appellant submitted that the award of Kshs.30,000/- failed to reflect the deceased’s age, good health and the fact that he left behind a young child and dependent parents. It was argued that the deceased, aged 22 years, had a long productive life ahead of him and that the trial court’s acknowledgment of this was inconsistent with the modest award made. 5. The Appellant therefore urged the Court to set aside the awards made by the trial court under the three heads of damages and substitute them with the enhanced awards sought. **Respondent’s Submissions.** 1. The Respondent opposed the appeal through submissions dated 24th March 2026. The Respondent submitted that the trial court properly assessed the awards for pain and suffering, loss of expectation of life and loss of dependency, and that there was no basis for interference. 2. On pain and suffering, the Respondent submitted that the deceased died on the same day of the accident and did not endure prolonged pain and that an award of Kshs.10,000/- was appropriate. 3. On loss of expectation of life, the Respondent submitted an award of Kshs.80,000/- was reasonable, relying on Charles Masoso Barasa & Another v Chepkoech Rotich & Another\* [2014] eKLR. 4. On loss of dependency, the Respondent argued that although the deceased was employed as a driver, there was no evidence of his earnings or that he was a heavy machine operator. It was submitted that the employer’s letter showed he worked on a casual, need-to-need basis and therefore fell within the definition of a casual employee under sections 2 and 37 of the Employment Act. The Respondent further contended that the deceased held a Class C1 driving licence authorizing him to drive light trucks and was not qualified to operate the telelogger. It therefore urged the Court to adopt a daily wage applicable to a casual medium vehicle driver under the Regulation of Wages (Amendment) Order, 2018, yielding a monthly income of Kshs.5,544/-. The Respondent proposed a multiplier of 25 years and a dependency ratio of 2/3, resulting in an award of Kshs.1,108,800/-. 5. The Respondent therefore urged the Court to dismiss the appeal with costs. **Analysis and Determination** 1. This being the first Appellate court, its duty is as summarized by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123**: which is "… to 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…’’ 2. I have considered the record of Appeal and the submissions by the parties. The only issue for determination is ***whether the trial Magistrate erred in the assessment of damages for pain and suffering, loss of dependency and loss of expectation of life.*** 3. On pain and suffering, it is not in dispute that the deceased died from electrocution which occurred while he was loading the Respondent’s electric poles to a lorry using a crane that lifts poles. The deceased’s wife, testified during the trial that she received information of the deceased electrocution on 4/5/2021 at around 5:30pm and after a few minutes she received information from the deceased friends that he had been taken to Jaramogi Oginga Odinga Teaching and Referral Hospital. She testified that she immediately rushed to the hospital after receiving the information where she found that he had already passed away. 1. The Appellant also relied on the witness statement of Lidon Okoth Odeny who testified that he was on duty with the deceased when the accident occurred. He testified that after the electrocution occurred, he rushed the deceased to the St. Consolata Hospital for first aid and treatment and immediately after they were referred to Jaramogi Oginga Odinga Teaching and Referral Hospital. However, he stated that the deceased died on the way to the hospital around 5:30pm. 1. The trial court awarded Kshs.40,000/- for pain and suffering stated that the deceased died instantly. I have considered this finding and my view is that the deceased died in a few minutes. The PW1 stated that she was informed of the electrocution at about 5:30pm and then she rushed to JOOTRH and found the deceased had passed away. The witness, Lidon Okoth also confirmed in his statement that the deceased died when they were on the way to JOOTRH at 5:30pm. My finding is that the deceased passed away, not instantly but after some time considering that they had gone to St. Consolata hospital before starting the journey to JOOTRH. 2. In **Sukari Industries Limited vs. Clyde Machimbo Juma [2016] eKLR**the Court held as follows:- **“... *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*.”** 1. Guided by the authority above, I find that the award of Kshs.40,000/- is within the accepted range for not so prolonged duration of pain and suffering and I find no reason to interfere with the award by the trial court. 2. On loss of dependency, the assessment of damages must be founded on the evidence adduced before the Court. It was pleaded that the deceased was employed as a driver and heavy machine operator. Although the evidence on record (P exhibit 13) indicates that he was hired as a driver, there was nothing to show that he worked as a heavy machine operator or disclose the income he earned in that capacity. The evidence on record is that he was driving a lorry that lifts cranes. 3. Further the P exhibit 13 produced in court indicated that the deceased was hired as a driver and held a driving license class C1. According to NTSA, Class C1 allows the driver to drive light trucks of up to 7,500 kg. Evidence on record is that the deceased was actually driving a lorry that is used to lift cranes. I will take it that the lorry was a light truck as permitted by the class on the deceased’s driving license. According to the Regulation of Wages (General) (Amendment) Order, 2018, this would be a driver (cars and light vans) where the minimum wage in Kisumu Kshs.18,319.50/-. I will therefore adopt this figure as the monthly earnings of the deceased. 4. The argument by the Respondent that the deceased was a casual, would not hold on the face of a letter indicating that he was a hired as a driver. 5. The trial court also erred in using the Regulation of Wages (General) (Amendment) Order, 2015, since the cause of action arose in 2021 when the Regulation of Wages (General) (Amendment) Order, 2018 was already in force. 6. With regard to the multiplier, the Appellant proposed the use of 38 years. Comparable decisions have adopted lower multipliers for deceased persons of a similar age. In ***Kenya Power & Lighting Company Ltd v James Muli Kyalo & Agnes Mwongeli Kimilu (Suing as the Personal Representatives of the Estate of Stanlous Kimilu Kyalo (Deceased)) [2018] eKLR***, the Court adopted a multiplier of 20 years for a deceased aged 29 years, while in ***Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] KEHC 1362 (KLR***), a multiplier of 25 years was adopted for a deceased aged 28 years. 7. In the present case, the trial court considered that the deceased died at the age of 22 and also took into account the vagaries of life in adopting a multiplier of 30 years. My finding is that this was a reasonable multiplier considering the comparable decisions mentioned herein above. 1. On loss of expectation of life, the trial court awarded the sum of Kshs.100,000/-. I am guided by the case of ***Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eK*LR**, Odunga J. (as he then was) held:- **“….t*he conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs,10,000/- to Kshs.100,000/- with higher damages being awarded if the pain and suffering was prolonged*.”** 1. In this case, I find no reason to interfere with the trial court’s conventional award of Kshs.100,000/= for loss of expectation of life. 2. **In the end, I find that the Appeal herein partially succeeds, on the loss of dependency. I make the following orders:-** 3. **Pain and suffering: I retain the award damages of Kshs.40,000/- as given by the trial court.** 4. **Loss of dependency: I award damages of Kshs.4,396,680/- calculated as Kshs.18,319.50 x 12 x 30x ⅔ and set aside the trial court’s award of Kshs.1,402,560/-** 5. **Loss of expectation of life: I Confirm the trial court’s award of Kshs.100,000/-** **JUDGMENT** delivered, dated and signed virtually at Nairobi This **17th** day of **July**, 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court assistant Miss for the Appellant. Mr. Oduor for the Respondent