https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12375

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E060 OF 2024** **JAMES WAMBUGU KIBUI........................................................... APPELLANT** **VERSUS** **JANE NJERI KIMIRI (Suing as the Legal Representative of the Estate of SAMUEL KIMOTHO KIMURI– Deceased) ................................... RESPONDENT** ***(Being appeal from the judgement by the Hon.J.Irura in the Chief Magistrate’s Court at Kigumo Delivered on 8TH April 2024 in Kigumo CMCC No.E011 of 2022)*** **JUDGMENT** 1. This is an appeal from the Judgment and Decree of the Hon. J. Irura, Senior Principal Magistrate, delivered on 18th April 2024 in Kigumo Chief Magistrate's Court Civil Suit No. E011 of 2022. The Respondent (then Plaintiff) sued the Appellant (then Defendant) for general and special damages arising from a fatal road traffic accident that occurred on 23rd June 2021 along Kenol-Sagana Road at Shell Petrol Station area. 2. The Appellant filed this appeal on 9th July 2024 listing seven (7) grounds of appeal. The appeal is solely on liability — the Appellant does not challenge the quantum of damages awarded by the trial court. The Appellant seeks that the judgment in regard to the findings on liability be set aside and the Respondent's suit be dismissed with costs. 3. The Appellant's grounds of appeal, as distilled in the Appellant's Written Submissions dated 25th November 2024 and filed by K. Itonga & Co. Advocates, raise the following issues: i. Who is to blame for the accident and to what extent? ii. Whether the learned trial magistrate considered all the evidence, submissions and precedents tendered in reaching his final determination on liability? iii. Whether the trial court judgment should be interfered with? 4. The Respondent filed Written Submissions dated 24th October 2025, drawn and filed by Shem Kebongo & Co. Advocates, opposing the appeal and seeking its dismissal with costs. 5. The suit subject of this appeal arose from an accident that occurred on 23rd June 2021 involving the Appellant's vehicle registration number KCG 977K Isuzu lorry and the deceased who was a pedestrian along the accident road. 6. The Respondent, Jane Njeri Kimiri, filed suit in her capacity as the Legal Representative of the Estate of Samuel Kimotho Kimuri (Deceased) seeking general and special damages under the Fatal Accidents Act, Cap 32 Laws of Kenya, and the Law Reform Act, Cap 26 Laws of Kenya. The deceased sustained fatal injuries following the accident which occurred along Kenol-Sagana Road at Shell Petrol Station area, which the Respondent contended was caused due to negligence on the Appellant's part. 7. The Appellant, James Wambugu Kibui, entered an appearance and filed a defence denying the particulars of negligence and the occurrence of the accident as pleaded. He contended that if any accident happened, it was caused solely by the negligence of the deceased. 8. The matter proceeded to full hearing before the Senior Principal Magistrate's Court at Kigumo. In her judgment delivered on 18th April 2024, the Learned Trial Magistrate found the Appellant 100% liable for the accident and awarded the Respondent damages as follows: - General damages for pain and suffering: Kshs 40,000/= - General damages for loss of expectation of life: Kshs 100,000/= - General damages for loss of dependency: Kshs 2,000,000/= - Special damages: Kshs 89,880/= - Costs of the suit and interest Total Award: Kshs 2,229,880/= 9. Being aggrieved with the finding on liability, the Appellant filed this appeal by way of Memorandum of Appeal dated 9th July 2024. 10. Directions were taken for the canvassing of the appeal by way of written submissions. Both sides have complied. The Appellant filed written submissions dated 25th November 2024. The Respondent filed written submissions dated 24th October 2025. **The Respondent's Case** 11. The Respondent called three (3) witnesses in support of her case: PW1 – PC Philip Otieno (Police Officer) 12. PW1, a male adult Christian, number 77875 PC Philip Otieno, attached at Makuyu Police Station. He had produce a police Abstract issued vide OB No. 36/23/6/2021. It was issued to one Jane Njeri Kimiri. It was in respect of an accident involving motor vehicle KCG 977K. The said motor vehicle hit a pedestrian by the name Samuel Kimotho and the pedestrian was injured. He was rushed to hospital where he succumbed to the injuries. He produced the police Abstract in court as an exhibit — Exhibit 7. 13. Under cross-examination by Waweru advocate, PW1 stated that he was not the investigating officer in the said case. The accident occurred on 23/6/2021. The accident occurred at 8:15 p.m. The accident occurred on a public road. He was familiar with the road. It is a highway. There is no pedestrian crossing at the scene of the accident. There is a bridge behind the scene of the accident. It is not a pedestrian bridge. The Abstract does not confirm who was blamed. The matter is still pending under investigation. There was an inquest file opened. What is reflected in the police Abstract is what is in the occurrence book. He did not avail the sketch plans before court as he was not asked to avail them. PW2 – Edward Njenga (Eye Witness) 15. PW2, a male adult Christian, was sworn and testified in Swahili. He stated that he was Edward Njenga. He stayed in Kenol. He was a foreman in a construction site. His ID Number was 4697084. He was in court because he witnessed a road accident which occurred on 23/6/2021. They had come from work at night as there was work going on at the site. They finished the work around 9:00 p.m. – 10:00 p.m. They left the site and he was in company of Samuel Kimotho Kimuri(deceased). 16. He blamed the driver of motor vehicle KCG 977K as he was driving the said lorry he hit a bump and as a result the vehicle veered off the road and hit the deceased. 17. Under cross-examination by Waweru advocate. The accident occurred at around 9:30 p.m. – 10:00 p.m. They were many people as they were coming from the site. He was with Samuel. He knows the other people he was with but he does not know where they are. There were street lights. The vehicle was coming from Kenol heading towards Sagana. The road had two lanes. The lorry was on the outer lane. The lorry lost control and veered off the road and hit the deceased. He managed to escape from being hit by the said vehicle. 18. He further stated that some parts of the highway have guard rails. The scene of the accident did not have guard rails. He was about 2 metres from the road. The police officers came to the scene and took Samuel. He does not know where they took him. He did not record a statement with the police. The vehicle was driven at a high speed. He does not know the speed. The driver was to blame as he hit a bump and lost control. He did not indicate in his statement that the vehicle hit a bump and lost control. He does not recall if there was curfew at the said time. He had a permit to be outside at that time. The permit permit them to work at night. They were doing some repairs on the building. He knew Samuel; someone employed him. He did not know where he came from. The murder vehicle that hit the deceased was white in color or creamish. 19. Under re-examination, PW2 stated that he witnessed the accident. The vehicle was moving at a high speed. It hit the deceased off the road. The deceased was taken to Thika level five hospital. PW3 – Jane Njeri Kimiri (Respondent) 20. A female adult Christian, was sworn and testified in Swahili. She stated that she was Jane Njeri Kimiri. She comes from Karira in Mangu. She does casual work. The deceased is her son. He was her first born. She had four children but the first born died. Her husband is also deceased. She recorded a statement at her advocate's office which she would like the court to rely on. 21. Under cross-examination, she stated that on the day of the accident the deceased had gone to look for his friend who was calling him for a job. The deceased had left home at midday to go look for work. Her son was not having constant income was assisting her in various ways. My son was not having any mental problem. 22. Under re-examination, nothing was adduced. **The Appellant's Case** 23. The Appellant called one witness: DW1 – John Maina Kibui 24. DW1, a male adult Christian, was sworn and testified in Swahili. He stated that he was John Maina Kibui. He was a driver. He had 30 years driving experience. He recorded a statement at his advocate's office which he adopted to produce as his evidence in chief. He also filed some documents in court through his advocate's office which relied on in this case. 25. He produced the documents as per the list — Exhibit 1. He stated that it was not true that he was driving the vehicle at high speed. The vehicle was being driven at a speed of between 50 – 60 kp/h and it has a speed governor of 80 KP/H allowed for a highway. He was not in a hurry to get home. The vehicle veered off the road to the right. Where the accident occurred, there are guard rails on the left side. He was driving on the left lane on the outer lane. After the petrol station there are guard rails. Where the accident occurred there is no pedestrian crossing. There is no bump on the said road. He was very careful while driving the vehicle. The pedestrian crossed then jumped towards the vehicle. He was all alone in the vehicle. While at the scene some two people came and requested that they remove the deceased from the road. He was not blamed for the accident. He blamed the deceased for the said accident for he jumped on the vehicle he was driving. 26. Under cross-examination by Miss Msafiri, DW1 stated that he had been a driver for 30 years. He was not having the driving licence in court. The deceased jumped onto the vehicle and he was hit. **ISSUES FOR DETERMINATION** 27. Having considered the Record of Appeal, the Appellant's Written Submissions dated 25th November 2024, and the Respondent's Written Submissions dated 24th October 2025, I find that the following issues arise for determination: Issue 1:Whether the Learned Trial Magistrate erred in finding the Appellant 100% liable for the accident; Issue 2: Whether the Learned Trial Magistrate considered all the evidence, submissions and precedents tendered in reaching his final determination on liability; Issue 3: Whether the trial court judgment should be interfered with. **ANALYSIS AND DETERMINATION** 28. Before addressing the specific issues raised, it is necessary to set out the general principles that govern this Court's jurisdiction as a first appellate court. These principles are well settled and have been consistently applied by the Kenyan courts. 29. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123,** the Court of Appeal for Eastern Africa held that:"…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court … is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must 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…" 30. Similarly, in **Peters v Sunday Post Limited[1985] EA 424,** the Court stated:"It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…" 32. The appropriate standard of review on first appeal can be stated in three complementary principles: a) First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b) In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and c) It is not open to the first appellate Court to review the findings of a trial Court simply because it would have reached different results if it were hearing the matter for the first time. **Issue 1: Whether the Learned Trial Magistrate Erred in Finding the Appellant 100% Liable for the Accident** 49. The Appellant has urged this Court to find that the Respondent failed to discharge her evidential burden under Section 107 of the Evidence Act. He contends that the deceased was solely to blame for the accident, having jumped onto his moving vehicle. 50. The Appellant submits that PW2's evidence was full of inconsistencies, contradictions and evidentiary gaps. He points out that PW2 never recorded in his statement that he was with the deceased and other people at the time of the accident. He did not indicate in his statement that the vehicle had hit a bump and lost control. He did not record a statement with the police. He did not even have a permit to be outside at that hour whilst curfew regulations were in place. 51. The Appellant further submits that PW2 was not a credible witness and was a witness of convenience playing to the Respondent's tune in trying to sanitize the deceased's negligent actions. He submits that PW2's testimony fell short of the test for direct evidence as it left a lot of room for speculation and was marred with inconsistencies and contradictions. He was simply not a credible witness and was a witness of convenience. 52. The Appellant relies on **China Henan International Co-operation v Brian & 2 others (Civil Appeal E099 of 2023) [2025] KEHC 1753 (KLR) (25 February 2025),** citing Nadwa v Kenya Kazi Lt(1988) eKLR, for the proposition that: ***"In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the defendant."*** 53. The Appellant also relies on **Kamau v Kimani & another (Civil Appeal 159 of 2019) [2023] KECA 187 (KLR) (17 February 2023),** in support of his contention that the Respondent failed to demonstrate on a balance of probabilities that the Appellant's actions directly caused the accident. 54. The Respondent submits that the trial court did not err in apportioning liability at 100% against the Appellant. She relies on **Selle v Associated Motor Boat Company Ltd [1968] EA 123 and Peters v Sunday Post Limited [1985] EA 424** on the standard of appellate review. 55. The Respondent further submits that the trial magistrate justifiably apportioned liability. She relies on **Anne Wambui Ndiritu v Joseph Kiprono Ropkoi [2005] 1 EA 334** on the burden of proof under Sections 107, 109 and 112 of the Evidence Act. 56. The Respondent also relies on **Chepnyangoi & another v Mwangi [2024] KEHC 11020 (KLR) and Chao v Dhanjal Brothers Ltd [1990] KLR 482** on the doctrine of \*res ipsa loquitur\*. 57. I have carefully considered the evidence adduced before the trial court. The undisputed evidence is that on the material night along Kenol-Sagana Road, the deceased was a pedestrian while the Appellant was the driver of the accident vehicle. Further undisputed evidence is that an accident occurred between them with the deceased sustaining fatal injuries despite the Appellant having testified it was the deceased who caused the accident. 58. The Appellant's version, as testified by DW1, is that the deceased crossed the road then jumped towards the vehicle. DW1 stated: "The pedestrian crossed then jumped towards the vehicle." He further stated: "I blame the deceased for the said accident for he jumped on the vehicle I was driving." This version is not supported by any credible evidence. 59. The post mortem report indicated that the deceased was 175 cm tall. The Appellant was unable to explain how the deceased, who was 175 cm according to the post mortem report, was able to jump onto the accident lorry's windscreen thus damaging it. This version is physically implausible and contradicts the physical evidence. 60. The Appellant's own witness, DW1, testified that the vehicle veered off the road to the right. He admitted that his windscreen got damaged. These admissions are consistent with the Respondent's version of events and inconsistent with the Appellant's theory that the deceased jumped onto the vehicle. 61. PW2, the eye witness, gave a consistent account that the vehicle veered off the road after hitting a bump and struck the deceased. PW2 testified: ***"I blame the driver of motor vehicle KCG 977K as he was driving the said lorry and hit a bump as a result the vehicle veered off the road and hit the deceased." In cross-examination, he stated: "The lorry lost control and veered off the road and hit the deceased."*** 62. While the Appellant points to inconsistencies in PW2's evidence — namely that he never recorded in his statement that he was with the deceased and other people at the time of the accident, and he did not indicate in his statement that the vehicle had hit a bump and lost control — these inconsistencies do not go to the root of his testimony. 63. The core of PW2's evidence, that the Appellant's vehicle veered off the road and hit the deceased, remained consistent and was corroborated by: - The physical evidence of the damaged windscreen; - The Appellant's own admission that the vehicle veered off the road; - The undisputed fact that the deceased sustained fatal injuries; - The police abstract confirming the accident occurred at the stated location. 64. PW2's position at the scene is also significant. He testified that he was about 2 metres from the road. This proximity gave him a clear view of the accident. His evidence that the lorry was on the outer lane, lost control, and veered off the road is consistent with the physical evidence. 65. The Appellant's contention that PW2's evidence should be disregarded because he did not have a curfew permit is a red herring. PW2 testified that he had a permit to be outside at that time. The permit gave them permission to work at night as they were doing some repairs on the building. Whether or not PW2 had a curfew permit does not affect the credibility of his testimony regarding the circumstances of the accident. 66. The Appellant also admitted in cross-examination that he did not have his driving licence at the time. DW1 stated: "I have not brought the driving licence." While this does not per se establish negligence, it is a relevant factor in assessing the credibility of the Appellant's testimony and his adherence to traffic regulations. 67. The police abstract, produced by PW1, while not conclusive evidence of liability, supports the Respondent's case that the accident occurred as alleged. PW1 testified that the motor vehicle KCG 977K hit a pedestrian by the name Samuel Kimotho. However, PW1 was not the investigating officer and could not provide credible evidence on the aspect of negligence. As this Court held in **Warutumo v Kinyua & another [2024] KEHC 16257 (KLR):** "A police abstract, really does not show who is to blame. It is the police officer's preliminary view on the cause of accident." 68. The Appellant's attempt to blame the deceased for jumping onto a moving lorry is not only physically improbable but also unsupported by any independent witness or documentary evidence. The investigation report (pages 84-85 of the Record of Appeal) does not support the Appellant's version that the deceased jumped onto the vehicle. 69. Applying the doctrine of res ipsa loquitur, the circumstances of the accident give rise to an inference of negligence on the part of the Appellant. A vehicle veering off the road and striking a pedestrian gives rise to a presumption of negligence on the part of the driver. The Appellant has failed to displace this presumption. His explanation that the deceased jumped onto his vehicle is not only improbable but also unsupported by credible evidence. 70. In **Noreen v Beatha (Civil Appeal E924 of 2022) [2025] KEHC 1373 (KLR) (27 February 2025),** this Court, **citing Samuel Munyanzi Mugendo v Wickliffe Omboto [2021] eKLR,** held: "I am obviously not persuaded by the argument that because the police abstract did not apportion liability then both parties must be found equally liable. This is because causation is an issue of fact which must be proved through evidence. It cannot be presumed. It is my finding that the respondent proved negligence against the appellant on a balance of probabilities and in the absence of evidence to attribute contributory negligence to the respondent I must agree with the trial magistrate's finding that the appellant was wholly to blame." 71. Similarly, **in Karoli v Sang (Civil Appeal E042 of 2023) [2025] KEHC 8517 (KLR) (29 April 2025)**, this Court upheld the trial court's finding of 100% liability where the appellant failed to demonstrate how the respondent's conduct contributed to the accident. 72. In **Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR) (9 May 2025),** the Court of Appeal upheld a finding of 100% liability where the appellant failed to maintain a safe distance and take evasive action, stating: "The appellant, as a driver, owed a duty of care to the respondent and all other road users. His failure to maintain a safe distance from the respondent's vehicle was a breach of this duty…The appellant admitted to hitting the respondent's vehicle from behind, and there was no compelling evidence that the third-party vehicle's actions were the primary cause of the accident. Therefore, the trial court's decision to hold the appellant solely liable was justified." 73. In the present case, the Appellant, as a driver, owed a duty of care to the deceased and all other road users. His failure to keep the vehicle on the road and avoid striking a pedestrian was a breach of this duty. The Appellant has offered no reasonable explanation for why his vehicle veered off the road. His explanation that the deceased jumped onto the moving vehicle is implausible and unsupported. 74. The Learned Trial Magistrate found that the Appellant was unable to prove how the deceased contributed to the accident and his own death. I agree with this finding. The Appellant's evidence was self-serving, contradictory, and failed to displace the Respondent's prima facie case of negligence. 75. In the circumstances, I find that the Learned Trial Magistrate did not err in finding the Appellant 100% liable for the accident. **Issue 2: Whether the Learned Trial Magistrate Considered All the Evidence, Submissions and Precedents Tendered** 76. The Appellant contends that the Learned Trial Magistrate failed to consider the Appellant's evidence and that of his witnesses on liability and submissions on proof of negligence. He submits that the Learned Trial Magistrate erred and misdirected herself in law and in fact and misapplied the evidence of parties on how the accident giving rise to the primary suit occurred. 77. I have reviewed the record of appeal and the trial court's judgment. The Learned Trial Magistrate duly considered the parties' pleadings, both oral and written adduced by them and their written submissions. The court considered the evidence of PW1, PW2, PW3, and DW1. The court evaluated the credibility of the witnesses and the consistency of their evidence. 78. The Learned Trial Magistrate noted that PW1 appeared not conversant at all on the circumstances of the accident as regards the description of the scene of the accident. Nonetheless, the court found that the plaintiff did avail an eye witness (PW2) who testified he was with the deceased at the time of the accident and he described how the accident vehicle veered off the road to the right. The court also considered the Appellant's evidence and found it lacking in credibility. 79. The Learned Trial Magistrate considered the relevant legal principles on burden of proof and the standard of proof in civil cases. The finding that the Appellant was 100% liable was based on a proper evaluation of the evidence on a balance of probabilities. 80. The Appellant has not demonstrated that the Learned Trial Magistrate failed to consider any material evidence or submissions. The judgment reflects a careful consideration of all the evidence adduced by both parties. 81. I therefore find that the Learned Trial Magistrate did not err in considering all the evidence, submissions and precedents tendered in reaching his final determination on liability. **Issue 3: Whether the Trial Court Judgment Should Be Interfered With** 82. The principles guiding an appellate court in interfering with a trial court's judgment were succinctly stated in **Kemfro Africa Limited t/a "Meru Express Services" & Another v A.M. Lubia & Another (No. 2) [1985] eKLR,** where the Court of Appeal held:"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage." 83. Similarly, in **Butt v Khan [1977] eKLR, Law, J.A.** laid out the principles as follows: ***"An Appellate Court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low."*** 84. In **Mariga v Musila [1984] KLR 251** at page 252, it was held: ***"…The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower court judge acted on wrong principles…"*** 85. Since the Appellant has not challenged the quantum of damages, I need only consider whether the trial court's finding on liability should be interfered with. Having reconsidered the evidence and evaluated it myself, I am satisfied that the Learned Trial Magistrate properly directed herself on the law and correctly applied the evidence to arrive at the finding that the Appellant was 100% liable for the accident. 86. The Appellant has failed to establish that the Learned Trial Magistrate acted on wrong principles, misapprehended the evidence, or made a wholly erroneous finding on liability. The trial court's judgment should not be interfered with. **THE AWARD ON DAMAGES (FOR COMPLETENESS)** 87. Although the Appellant has not challenged the quantum of damages, I shall briefly address the awards for completeness, given that this is a fatal accident case. **(a) Pain and Suffering** 88. The trial court awarded Kshs 40,000/= for pain and suffering. The deceased died on the same day of the accident. However, the evidence showed that he did not die instantly at the scene but sustained fatal injuries and must have experienced pain before his death. 89. In **TB v MOO & another (Civil Appeal 79 of 2021) [2025] KEHC 3520 (KLR) (6 March 2025),** this Court held: "Award of pain and suffering depends on whether the deceased died on the spot or after some time. That is, damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. Where a deceased died on the spot, courts have taken the approach that minimal damages should be granted, unlike in a case where a deceased dies later on." 90. In **Chege & another v Jeremy & another (Civil Appeal E340 of 2023) [2025] KEHC 4055 (KLR) (20 February 2025),** this Court, citing **Mosonik & Another v Cheruiyot (Civil Appeal 113 of 2019) [2022] KEHC 11823 (KLR) (29 July 2022),** observed: "…In common law jurisprudence of which Kenya is part, the courts have evolved two principles, loss of expectation of life and pain and suffering by the deceased, for award of damages under the Fatal Accidents Act for pain and suffering ***…..... determined what is commonly referred to as a conventional sum which has increased over the years from Kshs.10,000/= to Kshs.100,000/= currently. The basis of the increase has basically been based upon the increase of life expectancy from 45 years to run 60 years currently, that life itself was, until cut short by the accident worth something to the estate. The generally accepted principle is that very nominal damages will be awarded on this head claim if death followed immediately after the accident. Higher damages will be awarded if the pain and suffering was prolonged before death…."*** 91. The award of Kshs 40,000/= is reasonable and in line with comparable awards where the deceased died on the same day but not instantaneously at the scene. **(b) Loss of Expectation of Life** 92. The trial court awarded Kshs 100,000/= for loss of expectation of life. The deceased was 26 years old and in good health. 93. In **Chege v Jeremy [2025] KEHC 4055 (KLR),** this Court upheld the conventional amount of Kshs 100,000/= for loss of expectation of life, noting that this is the generally accepted conventional award. 94. This award is conventional and not excessive. **(c) Loss of Dependency** 95. The trial court awarded Kshs 2,000,000/= as general damages for loss of dependency. The deceased was 26 years old at the time of his death. He worked as a mason earning Kshs 30,000/= per month. The Respondent had urged the court to adopt the multiplier method proposing 34 as the multiplier and 2/3 as the dependency ratio. 96. The Learned Trial Magistrate, however, found that the multiplier approach was not suitable in this case as many illiterate Kenyans do not keep records for their earnings. The court found the proposal to adopt a minimum wage would be speculative and instead adopted a global sum approach, awarding Kshs 2,000,000/= under this head. 97. I have considered the authorities cited by both parties. In **Stanmwel Holdings Limited & Another v Rachel Haluku Emanuel & Another [2020] eKLR, Ringera J** (as he then was) stated: "The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma. Can and must be abandoned where facts do not facilitate its application. It is plain that it is useful and practical method where factors such as age of the deceased, the amount or annual or monthly dependency and the expected length of dependency are known or are knowable without undue speculation, where that is not possible to insist on the multiplier approach would be to sacrifice justice on the altar of methodology something a court should never do." 98. This reasoning was adopted in **Mary Khayesi Awalo & Another v Mwilu Malungu & Another Eld HCCC No. 19 of 1997 [1999] eKLR**, where Nambuye J. stated: "As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books." 99. In **China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] eKLR,** the court stated: "On review of the evidence it may be just on the facts of this particular case to adopt the global sum assessment approach. Where the trial court considers that a particular case justice would be better served by applying a global sum approach instead of a multiplier to substantially dispose off the assessment of damages. There can be no misdirection for that procedure." 100. In the present case, the deceased was a casual labourer working as a mason. His earnings were not formally documented. The Respondent testified that he earned Kshs 30,000/= per month but could not produce documentary evidence of his income. In such circumstances, the Learned Trial Magistrate was justified in adopting the global sum approach rather than the multiplier method, which would have been speculative. 101. The award of Kshs 2,000,000/= for loss of dependency in respect of a 26-year-old deceased who was a mason and had dependants including his mother and siblings is not inordinately high. It represents a fair and reasonable compensation considering the deceased's age, earning capacity, and the number of dependants. **(d) Special Damages** 102. The trial court awarded Kshs 89,880/= as special damages. The Respondent had pleaded and proved special damages comprising: - Death Certificate: Kshs 150/= - Letters of Administration: Kshs 1,000/= - Funeral Expenses: Kshs 106,290/= - Motor vehicle search: Kshs 550/= - Succession cost: Kshs 40,000/= 103. The Learned Trial Magistrate found that the Respondent was able to plead and prove Kshs 89,880/= as special damages. This finding is supported by the evidence and the receipts produced. (e) Double Compensation 104. For completeness, I note that the Appellant has not raised the issue of double compensation. However, it is well established that awards under the Law Reform Act (pain and suffering, loss of expectation of life) and the Fatal Accidents Act (loss of dependency) are not duplicative. 105. In Hellen Waruguru Waweru (suing as the legal representative of **Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Limited [2015] eKLR,** the Court of Appeal 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. **CONCLUSION** 106. In the upshot, having carefully reconsidered and re-evaluated all the evidence on record, and having considered the submissions of both parties and the authorities cited, I make the following orders: a) The appeal on liability is DISMISSED. The finding that the Appellant was 100% liable for the accident is UPHELD. b) The awards on general damages for pain and suffering (Kshs 40,000/=), loss of expectation of life (Kshs 100,000/=), loss of dependency (Kshs 2,000,000/=), and special damages (Kshs 89,880/=) are UPHELD. c) The total award of Kshs 2,229,880/= is UPHELD, together with costs of the suit and interest as awarded by the trial court. d)The Appellant shall pay the costs of this appeal to the Respondent. e) Interest shall accrue on the decretal sum at court rates from the date of the trial court's judgment until payment in full. h) Right of Appeal 14 days. **DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 17TH DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angog’a/Velma Ms. Rono for the Appellant present online. Shem Kebengo for the Respondent absent. MS RONO: I pray for 30 days stay of execution. COURT: 30 days stay of execution is granted.