https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12147

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT THIKA*** ***CIVIL APPEAL NO. E056 OF 2025*** ***PETER KAMAU KIMANI……………………………………..….1ST APPELLANT*** ***HARJ CONSTRUCTION COMPANY LIMITED……………….2ND APPELLANT*** ***-VERSUS-*** ***JAMES NDUNGU MBUGUA & TERESIA*** ***W. NG’ANG’A(suing as the Legal*** ***Representatives of the estate of*** ***MARY NJERI MBUGUA(deceased)……………..……………….RESPONDENT*** *(Being an Appeal from the Judgement of Hon. C.A Asuna (P.M) delivered on 14th February, 2025 in Ruiru MCCC No. E404 of 2023****)*** ***REPUBLIC OF KENYA*** ***IN THE CHIEF MAGISTRATE’S COURT AT RUIRU*** ***CIVIL CASE NO. E404 OF 2023*** ***JAMES NDUNGU MBUGUA and*** ***TERESIAH W. NG’ANG’A (suing as the*** ***Ad litem Administrators of the estate of*** ***MARY NJERI MBUGUA(Deceased)…………………………………….……..PLAINTFF*** ***-VERSUS-*** ***PETER KAMAU KIMANI…………………………..……………………1ST DEFENDANT*** ***HARJ CONTRUCTION COMPANY LIMITED………………….…….2ND DEFENDANT*** ***NIC BANK KENYA PLC……………………………………………………..3RD DEFENDANT*** ***JUDGMENT*** **Introduction.** 1. The Respondents, as Administrators of the estate of Mary Njeri Mbugua (deceased), sued the Appellants in ***Ruiru MCCC No. E404 of 2023*** for damages arising from a fatal road traffic accident. 2. At the hearing, the Respodents had called 3 witnesses. The Appellant had not called any witness but had filed a defence. Upon the conclusion of the hearing, the trial court found the Appellants to100% liable and awarded, inter alia, damages of Kshs.3,388,024/- for loss of dependency, Kshs.50,000/- for pain and suffering, Kshs.100,000/- for loss of expectation of life and Kshs.54,000/- for special damages. **Trial Court Evidence** 1. During trial, one of the Appellants’ witnesses, a police officer who produced a police abstract, testified that the driver of the motor vehicle that caused the accident was overtaking a fleet of vehicles and in the process had a head on collision with a tuk tuk that was carrying the deceased. It was testified that the 1st Appellant drove carelessly thereby causing the fatal accident. 2. Further evidence was that the deceased died as a result of the impact and her body was taken to KU Referral Hospital Mortuary. According to the evidence on record, the deceased was survived by her parents and two children. 3. As stated earlier, the Appellants had filed a defence but did not call any witnesses. 4. The Appellant being dissatisfied with the trial court’s judgement, filed the instant appeal on the following grounds as set out in their Memorandum of Appeal dated 28/2/2025:- “*1. THAT the Learned Trial Magistrate erred in law and in fact in awarding damages that were manifestly and grossly excessive and out of sync with comparable awards.* *2. THAT the Learned Trial Magistrate erred in law and in fact.in awarding excessive damages for loss of dependency.* *3. THAT the Learned Magistrate erred in law and in fact in her findings as to the appropriate multiplicand.* *4. THAT the Learned Trial Magistrate erred in law and in fact in his application and consideration of the vicissitudes and vagaries of life.* *5. THAT consequently, the Learned Trial Magistrate erred in* *law and in fact in his exercise of judicial discretion in assessment of damages*.” 1. Based on the foregoing, the Appellants prayed to have the judgement reviewed, vacated and/or set aside. The Appellants further sought an order of the court to re-assess the award on loss of dependency. **Appellants’ Submissions** 1. The Appellants filed submissions dated 28/4/2026 and submitted that the only issue for determination was whether the trial court awarded excessive damages for loss of dependency. They argued that although the trial court correctly found that the Respondents had failed to prove that the deceased was a tailor earning Kshs.20,000/= per month, it nevertheless erred by adopting the minimum wage of a tailor (Kshs.21,175.15/=) as the multiplicand. They contended that, in the absence of proof of the deceased's occupation and earnings, the court ought to have applied the minimum wage for an unskilled worker in accordance with the principles in ***Butt v Khan, Catholic Diocese of Machakos & Another v Janei Munaa Mutua & Another [2021] eKLR*** and ***Albert Odawa v Gichimu Gichenji***. They submitted that the applicable minimum wage for an unskilled worker in Ruiru was Kshs.6,736.30/=, resulting in an award for loss of dependency of Kshs.1,083,197.04/= (Kshs. 6,736.30 × 12 × 20 × 2/3). They therefore urged the court to set aside the award under that head and substitute it with the recalculated amount. **Respondents’ Submissions** 1. The Respondents filed submissions dated 23/3/2026 and submitted that the trial court properly assessed damages for loss of dependency and that there was no basis for appellate interference. They argued that the multiplicand of Kshs.21,175.15/= was justified by the uncontroverted evidence that the deceased was a tailor working in Ruiru, as corroborated by the death certificate, and that documentary proof of earnings was not mandatory. They further contended that the multiplier of 20 years was reasonable, having already accounted for the vicissitudes of life by reducing the deceased's potential 27-year working life by seven years, and that the dependency ratio of 2/3 was appropriate given the evidence that the deceased supported her two young children. They maintained that the resulting award of Kshs.3,388,024/= was mathematically sound and consistent with comparable awards in similar cases, urging the court to uphold the trial court's assessment of damages. **Analysis and Determination** 1. This being a first appeal, this court is duty bound to delve into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. This was appreciated in ***Abok James Odera t/a A.J. Odera & Associates vs John Patrick Machira******& Co. Advocates [2013] eKLR***where the duty of a first appellate court was summarized 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.”*** 1. **Further, in *Kenya Ports Authority vs Kuston (Kenya) Limited [2009] 2 EA 212* 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 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. I have considered the grounds of appeal and submissions filed by the parties, I will distill the following issue for determination: ***whether the trial court awarded excessive damages for loss of dependency.*** 2. Before delving into this issue, I find it important to emphasize that an appellate court seldom interferes with a trial court’s award of damages as assessment is an exercise of discretion unless it is inordinately high or low thereby constituting an erroneous estimate. This was held in the Court of Appeal case of ***Butt vs Khan [1978] eKLR***. Further in ***Njoroge v Gichuki [2025] KEHC 9458 (KLR)****,* Nzioka J stated:- **“In *that regard, I note that, the law is settled that, while assessing damages at the appeal stage, the appellate court will not interfere with the trial court’s decision on quantum unless in exercising that discretion the court misdirected itself in some matters and arrived at an erroneous decision, or was clearly wrong in the exercise of that judicial discretion which resulted into injustice***.” 1. It was the Appellants' contention that the Learned Magistrate applied the wrong basic minimum monthly wage of Kshs.21,175.15/= in the computation of the award for loss of dependency. The Appellants submitted that there was no evidence to establish that the deceased was a tailor in order to apply the monthly wage of Kshs.21,175.15/= and therefore the trial court ought to have applied the minimum wage of an unskilled worker in assessment of the award for loss of dependency. 2. In the impugned judgement, the court relied on the testimony of the PW1 and PW2 to conclude that the deceased worked as a tailor. There was no other evidence of occupation or even training as a tailor, or even a single business permit to show that the deceased was running a tailoring business or even testimony of an employer, to show that this was the trade and business of the deceased. 3. Even records of the tailoring business were not available. There was no evidence to ascertain that tailoring was the occupation of the deceased. Further there was no evidence as to the earnings of the deceased. 4. In the case of ***Catholic Diocese of Machakos &Another v Janei Munaa Mutua & Another [2021]eKLR*** the court cited with approval the case of ***Albert Odawa vs Gichimu Gichenji Nakuru HCCA No. 15 of 2003***,where it was held:- “***On the issue of loss of dependency, no evidence whatsoever was adduced before the trial court on the deceased's earnings and thus the multiplicand of Kshs.8,100.00/= was without basis. In the absence of evidence of actual earnings of the deceased, the correct approach would have been to assess the deceased's income by applying the basic salary which is paid to unskilled workers*.”** 1. As stated hereinabove, the trial court relied only on the testimonies of the Respondent’s witnesses to conclude that the deceased was a tailor and there was no evidence to ascertain this to be a fact. My finding is that there was no sufficient evidence to prove that the deceased was a tailor and how much she earned out of the said tailoring. 2. The trial court therefore erred in adopting the wage of a tailor without evidence. It ought to have been guided by the minimum monthly wage of an unskilled worker in a municipality in assessing the award on loss of dependency. According to Regulation of Wages (General Amendment Order) 2018, which was in force in 2021, the minimum wage of an unskilled worker was Kshs.6,736.30/=. I will therefore adopt this as the multiplicand. For the Multiplier, I will maintain 20 years and a dependency ratio of 2/3 since the deceased had children. Thus, the loss of dependency will be as follows: - 6,736.30 × 12 × 20 × 2/3 = Kshs.1,083,197.04. 3. Although the Appellant stated that the trial court erred in her consideration of the vicissitudes and vagaries of life, they did not prosecute the same in their written submissions. The Appellant only argued on the issue of wages earned by the deceased. I find that they abandoned the particular ground. 4. In the upshot, the court finds merit in the present appeal and allows the same and substituted the trial court’s award of damages for Loss of Dependency with the amount of Kshs.1,083,197.04/= as calculated hereinabove. 5. Each party shall bear its own costs on the Appeal, **Judgment** delivered, dated and signed virtually at **Nairobi** this **31st** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** Leady*s* – Court Assistant N/A for the Appellant. Ms. Langat for the Respondent.