https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12575

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CIVIL APPEAL NO E026 OF 2025 GENERALCARGO SERVICES LTD…………………………………………………………..…APPELLANT VERSUS LORNA KHANJILA & DAVID LAZARUS MONYANI (Suing on behalf of the estate of RASTO DAUDI HOIDI……………………………………………………………………..1ST RESPONDENT AISHA ABDULAZIZ………………………………………………………………………..2ND RESPONDENT **JUDGMENT** 1. This is an appeal from the judgment of Y.A Shikanda Senior Principal Magistrate in Makindu SPMCC No. 169 of 2008. The appeal is against the assessment of quantum of damages in a fatal claim. 2. The background of the case is that the 1st respondent sued the appellant and 2nd respondent claiming damages under the Fatal Accident Act and Law Reform Act following the death of Rasto Daudi Hoidi in a road traffic accident which occurred on 5th November, 2007. The deceased was a fare paying passenger in motor vehicle registration KAU 399Y belonging to the 2nd respondent which was involved in an accident with motor vehicle KAM 072B belonging to the appellant. 3. Liability was apportioned by consent as between the appellant and 2nd respondent with the 2nd respondent bearing 10% and appellant 90%. 4. The matter proceeded primarily on the assessment of damages. The trial court after considering the matter proceeded and awarded damages in favour of the 1st respondent as follows: 5. *Damages for pain and suffering ………………………………………Kshs. 100,000/=* 6. *Damages for loss of expectation of life ………………………… Kshs. 150,000/=* 7. *Damages for loss of dependency…………………………………. Kshs. 1,000,000/=* 8. *Special damages…………………………………………………………………..Kshs. 50/=* 9. *Funeral expenses……………………………………………………………. Kshs. 150,000/=* 10. The appellant aggrieved by the assessment of quantum of damages lodged this appeal. The appellant raised 9 grounds of appeal. The appeal was disposed by way of written submissions. I have read the appellant’s submissions dated 29th October, 2025 and those of the 1st respondent sated 11th November, 2025. The appellant primarily contests the award of damages under the Fatal Accident Act on loss of dependency. 11. The appellant submitted that 1st respondent did not prove dependency as no evidence adduced to show that she was the wife of the deceased and they were blessed with seven children. It is also submitted that the 1st respondent did not adduce evidence to show the work the deceased was doing. In short the appellant submit that the 1st respondent did not prove dependency. 12. The appellant argued that in the event the court finds that dependency was proved, the award of Kshs. 1,000,000/= by the trial court was on the higher side. The appellant suggested an award of Kshs. 220,000/= global sum. 13. The 1st respondent contested the appeal. The 1st respondent supported the award of damages for loss of dependency. 14. This being a first appeal, this court has a duty to subject the whole of evidence adduced before the trial court to a fresh and exhaustive scrutiny and make my own conclusions, bearing in mind that I did not have the advantage of the hearing and seeing the witnesses testify in court. ***(See Selle & Another vs Associated Motor Boat Ltd & Others (1968) E.A 123).*** 15. The first issue for determination in this appeal is whether the plaintiff proved dependency. The appellant contention is that dependency was not proved as required. Section 4(1) of the Fatal Accident Act provides as follows: ***“Every action brought by virtue of the provision of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was caused, and shall, subject to the provision section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such certain action the court may award such damages as it may think proportioned to the injury resulting from the death to persons respectively for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct.”*** 1. From the foregoing provision, the wife and the children of the deceased under the Fatal Accident Act are entitled to benefit in an action brought under the Act. 2. It is trite that loss of dependency is a matter of fact as argued by the appellant. The same must be proved especially where the dependent or dependents do not fall under the category listed under the Act. In this case the argument by the appellant is that the plaintiff did not prove that she was wife of the deceased. 3. I have examined the evidence adduced and particularly the oral evidence of the plaintiff where she categorically stated that she was wife of the deceased. There was also a letter from the chief confirming the same. In my view, the plaintiff proved on a balance of probability that the deceased was survived by her and the seven children. I am satisfied that the 1st respondent and the seven children were dependents of the deceased. 4. The appellant main ground in this appeal is award of damages for loss of dependency. The appellant suggested multiplier multiplicand approach and urged the court to adopt a multiplicand of Kshs. 2772/= in line with the Legal Notice No. 38 of 2006. The appellant also suggested a multiplier of 10 and award a sum of Kshs. 221,680/= and substitute the global award of Kshs. 1,000,000/= awarded by the trial court. 5. What the appellant is as calling upon this court to do is to interfere with the award of damages. The circumstances under which an appellate court can interfere with an award of damages were stated in the case of ***Catholic Diocese of Kisumu vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 (2004) 2 KLR*** in the following terms: ***“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at figure so inordinately high or low as to represent an entirely erroneous estimate.”*** 1. In the instant case I have reviewed the judgment of the trial court. The trial court appreciated that no evidence of earnings was presented by the 1st respondent as to the earnings of the deceased before he passed on. 2. Further the trial court reviewed previous decisions of this Court and Court of Appeal. The court found that the deceased was not permanently employed and found that the multiplier approach inappropriate in the circumstances and thus adopted the global sum approach. 3. The uncontroverted evidence was that the deceased was aged 46 years at the time of his death. According to the 1st respondent the deceased was an automotive artisan. There was no proof of his earnings. Both the 1st respondent and the appellant in their submissions urged the court to adopt a multiplier multiplicand approach. 4. The trial court found the multiplier approach inappropriate as the same would be speculative. The courts have often applied global approach method where the income and profession of a deceased cannot be accurately ascertained. In the case of ***Moses Mairua Muchiri vs Cyrus Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) (2016) e KLR*** it was held: ***“It has been held elsewhere that 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 an award that will always be subject to the circumstances of each particular case.”*** 1. Guided by the foregoing decision and having noted from the trial court record that there was no proof of the deceased earnings, the trial court correctly applied the global sum approach in assessing the damages. 2. The next issue for consideration is whether the damages awarded by the trial court were manifestly high. The trial court in awarding the sum of Kshs. 1,000,000/= considered the applicable principles in assessment of damages having reviewed several decisions of this Court and Court of Appeal. In the circumstances I have no reason to disturb the award by the trial court for loss of dependency. 3. The appellant further faulted the trial court for failing to take into account the award under the Law Reform in awarding damages under the Fatal Accident Act. The trial court duly acknowledged that the 1st respondent has already been awarded damages under the Law Reform Act in arriving at an award of Kshs. 1,000,000/= loss of dependency. 4. In any case the requirement in Law Reform is to “take into account” the award under the statute when making an award under the Fatal Accident Act and not deduct the same. This position was explained by the Court of Appeal in the case of ***Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (deceased) vs Kiarie Shoes Limited (2015) e KLR*** where it held: ***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. The confusion appears to have arisen because of different reporting of the Kenfro case (supra) which was heavily relied on by Mr. Kiplagat. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the ratio decidendi. The same case, however, is more fully reported in [1987] KLR 30 as Kenfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decindendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that: -*** ***An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words 'to be taken into account' and 'to be deducted' 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 judgment of the lower court 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.” The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damages. We observe that the High Court reduced even further the figure of Sh. 100,000 awarded for Loss of life expectation to Sh. 70,000 despite confirmation in its judgment that there was no dispute on the award. Mr. Kiplagat attempted to justify the reduction by the argument that it would be beneficial to Hellen because less amount would be deducted from the FAA award. With respect, that argument is misguided since there is no compulsion in law to make the deduction.”*** 1. In view of the foregoing, I find that the trial court did not fall to error by not deducting the award under the Law Reform Act from the award under the Fatal Accident Act. 2. Consequently, I find that the appeal is without merit and dismissed with costs. **Dated, signed and delivered virtually this 6th day of August, 2026.** **Francis Kyambia** **Judge of the High Court.**