https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6885

Ayongah v Osimbo & another (Suing as the Legal Representatives of the Estate of Richard Osimbo Nganyi - Deceased) (Civil Appeal E017 of 2023) [2026] KEHC 6885 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 6885 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E017 of 2023 S Mbungi, J May 18, 2026 Between James Opeywah Ayongah Appellant and Stanley Sambayi Osimbo 1st Respondent Leah Anyoso Osimbo 2nd Respondent Suing as the Legal Representatives of the Estate of Richard Osimbo Nganyi - Deceased (Being an appeal from the judgment and decree of Hon. Z.J. Nyakundi delivered on 10th January 2023 in Butali SPMCC No. E072 of 2022.) Judgment 1.This appeal arises from the judgment and decree of Hon. Z.J. Nyakundi delivered on 10th January 2023 in Butali SPMCC No. E072 of 2022. 2.The Respondents had sued the Appellant seeking damages under the Law Reform Act and the Fatal Accidents Act following a road traffic accident which occurred on 21st August 2021 involving motor vehicle registration number KBZ 265A belonging to the Appellant. 3.The trial court entered judgment in favour of the Respondents and awarded damages as follows:I.Loss of dependency……………………Kshs. 1,431,168/=II.Less loss of expectation of life……Kshs. 100,000/=III.Pain and suffering……………………Kshs. 20,000/=IV.Special damages………………………Kshs. 81,450/=V.Total……………………………………….Kshs. 1,431,168/= 4.Aggrieved by the award on quantum, the Appellant lodged the present appeal. 5.This being a first appeal, this Court is obligated to re-evaluate the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. 6.In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court held that a first appellate court is duty bound to reconsider the evidence, evaluate it itself and draw its own conclusions. 7.In Kemfro Africa Ltd t/a Meru Express Service & Another v Lubia & Another [1982-88] 1 KAR 727, the Court held that an appellate court may only interfere where: the trial court took into account an irrelevant factor; failed to take into account a relevant factor; or the award is so inordinately high or low as to represent an entirely erroneous estimate. Issues for Determination 8.The appeal raises the following issues:a.Whether the trial court applied the correct principles in assessing damages for loss of dependency;b.Whether the award for loss of dependency was excessive;c.Whether the awards under pain and suffering and special damages were proper; andd.What orders should issue. Whether the Trial Court Applied the Correct Principles in Assessing Loss of Dependency 9.The Appellant contests the multiplicand, multiplier, and dependency ratio adopted by the trial court. 10.The evidence before the subordinate court was that the deceased was aged 61 years and was a farmer earning between Kshs. 45,000/= and Kshs. 50,000/= monthly. No documentary proof of income was produced. 11.The trial court adopted the minimum wage of Kshs. 11,926.40 as the multiplicand and a multiplier of 15 years with a dependency ratio of 2/3. 12.The Court has considered whether those figures were proper. 13.In Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR, the Court of Appeal held that failure to produce documentary evidence of earnings does not disentitle a claimant from compensation because many Kenyans working in the informal sector do not maintain formal records. 14.The trial court was therefore entitled to resort to minimum wage guidelines. However, the multiplier adopted must reflect the uncertainties of life. 15.In Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR, the Court held that the choice of multiplier is a matter of judicial discretion guided by the age of the deceased, nature of work, and life expectancy. 16.The deceased herein was aged 61 years at the time of death. Considering the advanced age of the deceased and the uncertainties of life, this Court finds that the multiplier of 15 years was excessive. 17.Courts have generally adopted lower multipliers for persons aged above 60 years. 18.In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR, the Court emphasized that multipliers should not be speculative and must remain realistic. 19.This Court finds that a multiplier of 8 years would be reasonable in the circumstances. 20.The multiplicand of Kshs. 11,926.40 and dependency ratio of 2/3 were reasonable and are upheld. 21.The award for loss of dependency is therefore recalculated as follows:Kshs. 11,926.40 × 12 × 8 × 2/3 = Kshs. 763,289.60Rounded off = Kshs. 763,290/= Whether the Award for Loss of Dependency Was Excessive 22.The trial court awarded Kshs. 1,431,168/= before deduction of loss of expectation of life.Given the deceased’s age of 61 years, this Court finds that the multiplier adopted by the trial court resulted in an inordinately high award. 23.Accordingly, this Court is satisfied that interference with the award is justified under the principles set out in Kemfro Africa Ltd t/a Meru Express Service & Another v Lubia & Another [1982-88] 1 KAR 727. 24.The award under loss of dependency is hereby set aside and substituted with Kshs. 763,290/=. Whether the Awards for Pain and Suffering and Special Damages Were Proper 25.The trial court awarded Kshs. 20,000/= for pain and suffering.The evidence showed that the deceased died following the accident after suffering fatal burn injuries. 26.In West Kenya Sugar Co. Ltd v Philip Aroko Manono [2013] eKLR, the Court held that awards for pain and suffering depend on the period the deceased survived after the accident and the pain endured.The award of Kshs. 20,000/= was reasonable and this Court sees no basis for interference. 27.On special damages, the Respondents specifically pleaded and proved funeral expenses amounting to Kshs. 81,450/= through receipts produced at trial. It is settled law that special damages must not only be pleaded but must also be strictly proved as stated in Hahn v Singh [1985] KLR 716. 28.The award of Kshs. 81,450/= is therefore upheld. 29.Accordingly, the appeal partially succeeds on quantum. 30.The judgment of the subordinate court is varied as follows:i.Loss of dependency-Kshs. 763,290/=ii.Pain and suffering-Kshs. 20,000/=iii.Special damages-Kshs. 81,450/=iv.Subtotal-Kshs. 864,740/=v.Less loss of expectation of life-Kshs. 100,000/=vi.Total Award-Kshs. 764,740/= 31.The award of the subordinate court is hereby set aside and substituted with judgment in favour of the Respondents in the sum of Kshs. 764,740/= together with interest from the date of judgment of the trial court. 32.As the appeal has partially succeeded, each party shall bear its own costs of the appeal. 33.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 18TH DAY OF MAY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/Velma