https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7533

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL APPEAL NO E012 OF 2024** **ACHELIS MATERIAL HANDLING……………………………..….1ST APPELLANT** **NICHOLAS NZUNGU WILLIAM…………………………………...2ND APPELLANT** **VERSUS** **WILSON ANYANDA SAWE & ENOS KIGUDWA** **(suing as the Legal Administrators of the Estate** **of BESO ARUDA alias BENSON BESO ALUDA (Deceased))…………………….…………………………………….RESPONDENTS** **(Being an appeal from the Judgment and Decree of Hon B. Omollo (SRM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E079 of 2023 on** **27th February 2024)** **JUDGMENT** **INTRODUCTION** 1. In her decision of 7th August 2024, the Learned Trial Magistrate, Hon P. Karimi**,** apportioned liability at 80%-20% in favour of the Respondents herein. She entered judgment in favour of the Respondent against the Appellants, jointly and severally, in the following terms:- **Pain and suffering Kshs 50,000/=** **Loss of expectation of life Kshs 100,000.00** **Loss of dependency Kshs 1,560,000.00** **1/3 x 15000 x 12 x26** **Special damages Kshs 110,000.00** **Kshs 1,820,000.00** **Less 15% contribution Kshs 273,000.00** **Kshs 1,547,000.00** **Plus costs of the suit and interest on the general damages from the date of judgment until payment in full.** 1. Being aggrieved by the said decision, on 23rd March 2024, the Appellants herein filed a Memorandum of Appeal dated 20th March 2024. They relied on five (5) grounds of appeal. 2. Their Written Submissions were dated and filed on 6th August 2025, while those of the Respondent were dated 20th August 2025 and filed on 12th September 2025. The Judgment herein is based on the said aforesaid Written Submissions, which the parties herein relied upon in their entirety. **LEGAL ANALYSIS** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 2. This was aptly stated in the case of **Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123** where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 3. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were whether or not the quantum that was awarded was excessive in the circumstances, warranting interference by this court. Apportionment of liability was uncontested. 4. The court deemed it prudent to address the issues under the following distinct and separate heads. * + 1. **DAMAGES UNDER THE LAW REFORM ACT** 5. **PAIN AND SUFFERING** 6. The Appellants referred this court to the case of **Kakiki vs Abdo & 2 Others KLR [1990]**which was quoted in **Re Estate of Susan Mboga Mandu (Deceased) [2011]eKLR** , where it was held that the damages were not intended to compensate the deceased for the pain and suffering he succumbed to, but rather the same was a windfall to the survivors and, hence, tortfeasors were not to be permitted to benefit from the wrong doing merely because the victim died. 7. They also relied on the case of **Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLR**, where the court therein observed that the damages for pain and suffering ranged from Kshs 10,000/= to Kshs 100,000/= with the higher amount being awarded if there had been prolonged pain before death. 8. They further placed reliance on the cases of **James Gakinya Karienye & Another (** **(Suing as the Legal Administrators of the Estate of David Kelvin Gakinya( Deceased) vs Perminus Kariuki Githinji [2015] eKLR** and **Harjeet Sinh** (sic) **Pandal vs Hellen Aketch Okudho [2018] eKLR**, where the courts therein awarded Kshs 10,000/= for pain and suffering where the deceased died immediately after the accident. 9. They argued that since the deceased died on the spot, the Trial Court ought to have awarded a conventional sum of Kshs 10,000/=. They, therefore, urged this court to set aside the award of Kshs 50,000/= for pain and suffering. 10. The Respondents relied on the case of **Sukari Industries Limited vs Clyde Machimbo Juma Homabay HCCA No 68 of 2015 [2016] eKLR**, where the court therein awarded Kshs 50,000/= for pain and suffering. They asked this court not to interfere with the sum awarded by the Trial Court for pain and suffering. 11. Taking into account the inflationary trends and similar cases, this court found and held that a sum of Kshs 50,000/= for pain and suffering was reasonable. In arriving at the said conclusion, this court had due regard to the following cases:- 12. **Premier Diary Limited vs Amarjit Singh Sagoo & Another [2013]eKLR** The court upheld an award of Kshs 75,000/= where the deceased died instantly at the scene of the accident. 13. **Abdullahi t/a Wajir Fresh Vegetables Enterprises vs Kagendo (Suing as the legal representative of the Estate of David Muchiri Nyaki-Deceased) & another [2025] KEHC 3249 (KLR) 29** The court therein awarded a sum of Kshs 50,000/= despite the death having been instant, as there must have been some pain. 1. **Makoko (Suing as the wife and personal representative of the Estate of Emmanuel Robert Mbinda - Deceased) vs Fuga Feeds Kenya Limited & Another [2022] KEHC 15087 (KLR)** The court therein awarded a sum of Kshs 40,000/= for pain and suffering. 1. **Kiptanui & Another vs Maina (Suing as a personal representative of the Estate of Sarah Wangui (Deceased) [2024] KEHC 765 (KLR)** The court therein awarded a sum of Kshs 50,000/= for pain and suffering where the deceased died on the same day of the accident. 1. Thus, the court left the award of Kshs 50,000/= for pain and suffering undisturbed. 2. **LOSS OF EXPECTATION OF LIFE** 3. Although the Appellants did not contest the figure that was awarded by the Trial Court under this head, together with the Respondents, they submitted on the same. 4. The Appellants relied on the case of **Gachuki Gathuri ( Suing as the Legal Representative of the Estate of James Kinyua Gachoki (Deceased) vs John Ndiga Njagi Timothy & 2 Others [2015] eKLR**, where the court awarded a sum of Kshs 100,000/= under this head. 5. On their part, the Respondents relied on the case of **Joseph Gatone Karanja vs John Okumu Soita & Another (Suing as the Legal Representative of the Estate of Benard Soita Nyongesa (Deceased) Eldoret HCA** (sic) **No 172 of 2019**, where the court therein awarded a sum of Kshs 150,000/= for loss of expectation of life. 6. Without belabouring the point, bearing in mind the inflationary trends and the comparable awards, this court found the award of Kshs 100,000/= that was awarded by the Trial Court for loss of expectation of life to have been reasonable. 7. In arriving at the said conclusion, this court had due regard to the following cases:- 8. **Abdulaziz v Odhiambo & Another (Suing as legal representative of the Estate of Phili Ondago) [2026] KEHC 4349 (KLR)** The Court of Appeal declined to disturb an award of Kshs100,000/= for loss of expectation of life. 1. **Mutiso vs Kimuyu [2023] KEHC 760 (KLR)** The appellate court declined to disturb an award of Kshs 120,000/= for loss of expectation of life. * + - 1. **FATAL ACCIDENTS ACT** 1. **MULTIPLICAND** 2. The Appellants relied on the case of **Sukari Industries Limited vs Ismael Ombaka Omar & Another [2017] eKLR**, where it was held that a witness could not just pluck a figure from the air without laying a basis for the same, and that in the absence of any proof of income, the best guide was the statutory minimum wage. 3. They also placed reliance on the cases of **Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the estate of the Estate of Samwel Kiprotich Tanui (Deceased)) vs Mogogosiek Tea Factory Co Limited** **& Another [2018] eKLR** and **Mombasa Civil Appeal No 53 of 2013 Abdalla Rubeya Hemed vs Kajumwa Mvurya & Another (Suing as the Legal representative of the Estate of Jumaa Mvurya Mwamtutu ( Deceased))** (KLR citation not given), where the courts therein adopted a statutory minimum wage where there was no proof of income. 4. They thus urged this court to adopt the sum of Kshs 8,109.90 for unskilled employees as a multiplicand herein. 5. On their part, the Respondents submitted that the Trial Court correctly adopted Kshs 15,000/= as the multiplicand because the deceased died on 7th January 2023, in which case the applicable Order was Regulation of Wages (General) (Amendment) Order 2022. They argued that the boda boda riders ought to be placed in the category of vehicle service workers, with a minimum wage of Kshs 15,043/=. 6. Despite having plied their trade for many years, boda boda riders were not exclusively provided for in the Regulation of Wages (General) (Amendment) Order 2022. They were neither general labourers nor vehicle service workers. Failure to specifically provide for boda boda riders in the Regulation of Wages (General) (Amendment) Order 2022 led this court not to categorise them as general labourers or vehicle service workers. They were somewhere in between. 7. Be that as it may, this court noted that when he was cross-examined, Wilson Anyanda Sawe stated that the deceased used to do casual jobs. For that reason, this court found and held that there was no legal basis to have adopted a multiplicand of Kshs 15,000/=. This court, therefore, set aside the sum of Kshs 15,000/=,which was awarded by the Trial Court, and replaced it with a multiplicand of Kshs 8,109.90 for unskilled employees. 8. **DEPENDENCY RATIO** 9. The Appellant pointed out that the deceased was not married, in which case, a dependency ratio of one-third (1/3) ought to be applied herein. He invoked Section 4 of the Fatal Accidents Act, which recognised the wife, husband, parent, and child of the deceased as the dependents. The Respondent did not have a problem with the dependency ratio. It was not necessary to analyse the submissions the Appellant and the Respondents had filed in this regard, as the Trial Court adopted a dependency ratio of one-third (1/3). 10. Suffice it to state that the dependency ratio was fair, as the only dependant of the deceased under Section 4 of the Fatal Accidents Act Cap 32 (Laws of Kenya) was the deceased’s father as siblings were not deemed to be dependants of a deceased. 11. **MULTIPLIER** 12. The Appellants submitted that the right approach to determining the multiplier was to consider the age of the deceased, the balance of his earning life, the age of the dependents, the life expectancy, the vicissitudes of life and the accelerated payment of a lumpsum as was held in the case of **Hannah Wanaturi Moche & Another vs Nelson Muya Nairobi HCCC No 4533 of 1993** (KLR citation not given). 13. They also referred this court to the case of **Swan Carrier Limited vs Damaris Wambui ( Suing as the Legal representative of the Estate of the Late Maritim Mwangi Ngirigasha 2019] eKLR**, where the court therein affirmed a multiplier of thirteen (13) years where the deceased died at thirty-seven (37) years. 14. In this regard, the Appellants urged this court to adopt a multiplier of fifteen (15) years herein. 15. On their part, the Respondents submitted that in the case of **Joseph Gatone Karanja vs John Okumu Soita & Another (Suing as the Legal Representative of the Estate of Benard Soita Nyongesa (Deceased)** (Supra), the court adopted a multiplier of twenty-six (26) years where the deceased was thirty-four (34) years at the time of his death. 16. The Trial Court adopted a multiplier of twenty-six (26) years on the ground that life was shrouded in mystery and the deceased would have retired at sixty (60) years. 17. This court had due regard to the case of **Board of Governors of Kangubiri Girls High School & another vs Jane Wanjika & Another NYR CA Civil Appeal No 35 of 2014 [2014] eKLR**, where it was stated that the choice of a multiplier was a matter of the court's discretion, which discretion had to be exercised judiciously with a reason. 18. As seen hereinabove, there was no clear-cut formula for assessing the appropriate multiplier. However, courts generally considered the vicissitudes and vagaries of life, and the time left for a deceased to work. In doing so, they were guided by comparable cases to arrive at conclusions that were not so wide apart as to cause inconsistency and confusion to those relying on the decisions. 19. This court had due regard to the following cases:- * + 1. **Nanline Company Limited vs Owino & another (Being Sued as Legal Representative of the Estate of Henry Ouma Owino) [2022] KEHC 17260 (KLR)** The court upheld thirty (30) years where the deceased was twenty-five (25) years old. * + - 1. **Khandasi (Suing as the Administrator of the Estate of Humphrey Adongo Khisa - Deceased) vs Butali Sugar Mills Ltd (Civil Appeal E121 of 2024) [2025] KEHC 8574 (KLR)** The High Court reviewed the multiplier of twenty (25) years to thirty-five (35) years for a deceased who was twenty-five (25) years old. * + - 1. **James Njiiri & 2 Others vs FPU & Another [2019] eKLR** The deceased therein was aged twenty-nine (29) years at the time of his death. The appellate court therein adopted a multiplier of thirty-one (31) years. 1. The deceased was aged thirty -four (34) years at the time of his death. Taking into account all the past decisions relating to the issue of a multiplier, this court found the multiplier of twenty-six (26) years to have been on the higher side. It was the view of this court that a multiplier of twenty (20) years was more reasonable because there was a possibility of vicissitudes and vagaries of life interfering with the deceased’s ability to work the entire remaining period of twenty-six (26) years. * + 1. **DOUBLE COMPENSATION** 2. The Appellants submitted that since the dependants were the same under both the Law Reform Act and Fatal Accidents Act, the award under the Law Reform Act should be subtracted from the award under the Fatal Accidents Act because failure to do so would mean that there would be double compensation. They cited the case of **Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited Nyeri CA Civil Appeal No 22 of 2014 (2015) eKLR**, where it stated that duplication occurred when the beneficiaries of the deceased's estate under the Law Reform Act and dependants under the Fatal Accidents Act were the same, meaning the claim for lost years and dependency would go to the same persons. 3. They added that in the same case, the Court of Appeal was clear thatit did not mean that a claimant under the Fatal Accidents Act ought to be denied damages for pain and suffering and loss of expectation of life, as these were only awarded under the Law Reform Act. 4. They also placed reliance on the case of **Kemfro vs A.M Lubia & Olive Lubia (1982-1988) KAR 727** where it was stated that the net benefit would be inherited by the same dependants under the Law Reform Act which had to be taken into account in the damages that were awarded under the Fatal Accidents Act because the loss suffered under the latter Act had to be offset by the gain from the estate under the former Act **(sic)**. 5. They thus urged this court to deduct the award under the Law Reform Act from the award under the Fatal Accident Act, since the dependants were the same, because failure to do so would mean that there would be double compensation. 6. The understanding of this court was that it was only required to take note of the damages under the Fatal Accidents Act, but not deduct the award for pain and suffering and loss of expectation of life from the award under the Fatal Accidents Act. Indeed, there was no duplication as the damages under the Law Reform Act were made in respect of the estate of a deceased, while the damages under the Fatal Accidents Act were to be made to the dependants of the deceased. It was for that reason that a plaintiff would not be paid damages under the Law Reform Act if letters of administration had not been taken out, but could be paid damages under the Fatal Accidents Act. In the mind of this court, the damages were distinct and separate, and hence this court did not agree with the Appellant’s submissions in this regard. 7. Accordingly, this court was not persuaded that it should deduct the damages under the Law Reform Act from the damages that were awarded under the Fatal Accidents Act as the Appellants had proposed. **DISPOSITION** 1. For the foregoing reason, the upshot of this court’s decision was that the Appellants Appeal that was dated 20th March 2024 and lodged in court on 23rd March 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon B. Omollo (SRM) delivered at Vihiga in the Principal Magistrate’s Court **Civil Case No E079 of 2023** on 27th February 2024 be and is hereby varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 772,473.20made up as follows:- **Loss of expectation of life Kshs 100,000.00** **Pain and suffering Kshs 50,000.00** **Loss of dependency Kshs 648,792.00** **1/3 x 8,109.90 x 12 x 20** **Special damages Kshs 110,000.00** **Kshs 908,792.00** **Less 15% contributory negligence Kshs 136,318.80** **Kshs 772,473.20** **Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on special damages will accrue from the date of filing suit until payment in full, while interest on damages under the Law Reform Act and the Fatal Accidents Act will accrue from the date of judgment of the Trial Court until payment in full.** 1. As the Appellant was partly successful in its appeal, it is hereby directed that each party will bear its own costs of this Appeal. 2. It is so ordered. **DATED** and **SIGNED** at **VIHIGA** this **3rd** day of **June** 2026 **J. KAMAU** **JUDGE**