https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10310

Mbuba v Waweru & another (Civil Appeal E089 of 2025) [2026] KEHC 10310 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10310 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E089 of 2025 EM Muriithi, J July 9, 2026 Between Jane Kagendi Mbuba Appellant and Margaret Waithira Waweru 1st Respondent Patrick Gathumbi Wachira 2nd Respondent (Being an appeal from the judgment and decree of Hon. D.M Ireri (P.M) delivered on 29/11/2024 at Baricho CMCC No. E119 of 2023) Judgment 1.By Plaint dated 31/7/2023, the Respondents (the Plaintiffs in the trial court) sued the Appellant (the Defendant) for damages under the Fatal Accidents Act and the Law Reform Act, special damages of Ksh. 216,000 and costs of the suit plus interest. They pleaded that on or about 27/10/2021, Julius Waweru Wachira, the deceased herein, was riding motor cycle Registration No. KMEQ 148 V along Sagana-Kerugoya Road, when the Appellant, her drover, servant or agent so negligently drove, managed and controlled motor vehicle registration number KCE 043 U that it collided with the motor cycle, as a result of which the deceased sustained fatal injuries. At the time of his death, the deceased was aged 40 years, enjoying good health, living a happy life and earning Ksh. 40,000 per month. As a result of his death, his dependants suffered loss and damage. 2.The Appellant denied the suit vide her statement of defence dated 15/8/2023 and prayed for its dismissal. 3.Upon full hearing of the case, the trial court found the Appellant to have been wholly liable for the accident and awarded Ksh. 50,000 for pain and suffering, Ksh. 100,000 for loss of expectancy, Ksh. 3,000,000 for loss of dependency and special damages of Ksh. 206,200 together with costs and interests. The Appeal 4.On appeal, the Appellant filed her memorandum of appeal dated 16/1/2025, raising 4 grounds as follows:1.The learned trial magistrate gravely erred in law by awarding General damages that were inordinately high.2.The learned trial magistrate gravely erred in law by finding that the Plaintiff is entitled to Damages of K.Shs. 3,356,200/=.3.The Learned trial magistrate gravely erred in law by finding that the Plaintiff is entitled to general damages for loss of dependency of K.Shs. 3,000,000/=.4.The Learned Judge gravely misdirected himself in law in failing to consider and analyze the Appellants’ closing written submissions. Duty of the Court 5.This being a first appeal, this court is duty bound to delve at some length 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. (See Selle v Associated Motor Boat Co. & others [1968] E.A. 123). Evidence 6.PW1 P.C Daisy Cherono from Sagana Traffic Base produced the police abstract as an exhibit in court. She testified that, “I am here on behalf of the Base Commander. The accident was on 27/10/2021 at about 21.30 hours along Sagana-Kerugoya road near Kangai junction. It involved motor vehicle KCE 043 U and Motor cycle No. KMEQ 148 V ridden by Julius Waweru. According to the O.B No. 35 of 27/10/2021 the drive was heading towards Sagana while the motor cycle was heading towards Kerugoya direction on reaching the scene of accident the vehicle driver lost control and crossed to the opposite lane and collided head on with the motor cycle. The rider had fractures on both legs and was taken to the hospital in a critical condition. Later the rider succumbed to the injuries on the same date at night while undergoing treatment. The motor vehicle driver was one Jane Kagendi. The file was compiled and taken to ODPP who recommend that the motor vehicle driver be charged with causing death by dangerous driving. I do not know whether the driver was charged. I was paid Kshs. 5,000/= for my attendance today.” 7.On cross examination, she stated that, “I am not the investigating officer. I did not visit the scene. I saw the motor vehicle and motor cycle at the police station. The maize farm is on the right-side facing direction here the motor vehicle landed after the impact. The driver was driving from Kerugoya towards Sagana direction. I am not aware whether there were 2 motor cycles at the scene. The accident was at night. The weather was clear. There is no indication whether it had rained. I do not know whether the driver was charged with a traffic offence.” 8.PW2 Margaret Waithira Waweru, the 1st Respondent herein adopted her statement dated 31/7/23 as her evidence in chief and produced her list of documents dated 31/7/23 as my exhibits. She testified that, “I pray for compensation.” 9.On cross examination, she stated that, “I received a call after the accident around 9.30 p.m. I received the call from someone who I do not know. I went to Kerugoya. I did not visit the scene. I do not know how the accident occurred. There was no rain that day. The motor cycle had no blinking lights. Deceased was aged 40 years and was not suffering from the liver. I have the M-pesa statement to show that deceased was growing butternut, bananas and vegetable. I applied for police abstract. The accident was along Kagio-Kutus road near Kangai junction. I do not know whether the deceased was joining a feeder road.” 10.PW3 James Muriithi Muriuki, adopted his statement dated 31/7/23 as his evidence in chief. 11.On cross examination, he stated that, “The accident was at 9.00 p.m. I was heading to Kutus from Kagio. I had my motor cycle. Deceased was ahead of me. There is a junction at the scene of accident. The motor vehicle hit the deceased from the front of the motor cycle. The motor vehicle was from Kutus while the deceased was from Kagio. The motor vehicle went to the side of the motor cycle and hit deceased. The motor vehicle landed into a farm. Both the motor cycle and motor vehicle were damaged. The rider had a helmet and reflector jacket. The helmet was crushed by motor vehicle.” 12.In re-examination, he stated that, “The motor cycle had passed the junction.” 13.DW1 Jane Kagendi Mbua, the Appellant herein adopted her statement dated 25/8/2023 as her evidence in chief. 14.On cross examination, she stated that, “I am the defendant. The motor vehicle No. KCE 043 U belongs to me. I was heading from Kutus towards Sagana while the motor bike was coming from the opposite direction. I now say that I only saw the motor cycle turn and then started coming towards me. At the time of the impact the motor cycle came to my lane and hit my right tyre leading to a tyre burst. My visibility was significantly impaired due to heavy rain and flickering lights of the motor cycle. I was driving at 40 Km/hour. I had stopped and later continued with my journey after the rain had subsided. After the accident I lost control and I rolled. The motor vehicle went into a nearby maize farm which was on the right side. If the motor cycle did not come to my lane I could not have lost control. I did not go to the motor cycle lane prior to the accident. I have not been charged with any traffic offence.” 15.In re-examination, she stated that, “Visibility was not clear. I was driving at 40Kph. The motor cycle hit my right side tyre leading to a tyre burst and I then lost control. The motor cycle came at high speed. I tried to hoot and brake. It was raining and my vehicle had mud. I blame the motor cycle. I have not been charged in any court with a traffic offence.” Submissions 16.The Appellant urges the court to apply the minimum wage of Ksh. 8596.49 for a general labourer, as no evidence was tendered in support of the deceased’s earnings, a multiplier of 10 years and a dependency ratio of 2/3. She relies on Juma Kigambwi v Loise Kahenya [2017] eKLR, Board of Governors of Kangubiri Girls High School & Another - Jane Wanjiku & Another (2014) eKLR, Muthike Muciimi Nyaga (Suing as Administrator of the Estate of James Githinji Muthike (Deceased)) v Dubai Super hardware[2021] eKLR, Oyugi Judith & Another v Fredrick Odhiambo Ongong & 3 others [2014] eKLR and Multiple Hauliers (EA) Limited & another v William Abiero Ogeda (Suing as the Representative of Christine Arglera Abiero (Deceased)) & 2 others [2016] eKLR to buttress her submissions. She urges that the award of Ksh. 3,150,000 was inordinately high to amount to an error, and cites Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenya) v Kiarie Shore Stores Limited [2015] eKLR. 17.The Respondents urge that in light of the fact that there was no documentary evidence to paint a picture of the income that the deceased was earning, the best approach was the global award method, and cite Jane Wambaire Chege & another v Rachel Chepkoech Koech [2019] KEHC 519 (KLR) and Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] KEHC 4971 (KLR). They urge that the award of Kshs. 3,356, 200 was totally justified, and cite Ndungu & another v Munene [2022] KEHC 3023 (KLR). Analysis and Determination 18.After considering the grounds of appeal raised by the Appellant, the issues for determination are whether the awards made by the trial court under the various heads were inordinately high and whether the Appellant’s submissions and authorities were considered. Inordinately high damages 19.The principles on when an appellate court would interfere with the findings of fact by the trial court on quantum are now trite as settled by the Court of Appeal in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR 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 by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985] KLR 470).” Pain and Suffering 20.PW1 testified that the deceased had fractures on both legs and was rushed to the hospital in critical condition, but he unfortunately succumbed later on. The accident occurred on 27/10/2021 and the deceased died the following day on 28/10/2021, as per the death certificate. The 1st Respondent recorded in her statement that the deceased was rushed to Kerugoya Medical Hospital, but he died in the early hours of 28/10/2021. 21.This court is minded that the deceased endured prolonged pain before he succumbed to his injuries, and the award of Ksh. 50,000 made by the trial court under this head was fair. Loss of expectation of life 22.It is trite law that the conventional figure awardable under this head is Ksh. 100,000, which is what the trial court awarded. Loss of dependency 23.Dependency is a matter of fact and must be proved by evidence. The court agrees that if there is no evidence from which dependency may be proved or inferred, a claim in dependency should fail. 24.The 1st Respondent recorded in her statement dated 31/7/2023 that, “My husband was only 40 years and a very enterprising business man and a farmer. He was the bread winner for me and my three young children. My husband used to grow vegetables on a large scale like tomatoes, butternut and bananas. He used to buy and sell fresh products at Kagio and Makutano Market and also used to supply to Nairobi. He would sell at the market four times a week which was sixteen times a month and would make about Kenya Shillings Forty Thousand (kshs. 40,000) per month. My children and I have lost his support as a result of the accident.” 25.Evidently, the deceased was engaged in some income generating ventures to support his wife, the 1st Respondent herein and their 3 school going children. The fact that no documentary evidence of income was led cannot be the only reason to decline awarding damages where loss and support from the deceased is proved. The Mpesa statements have not demonstrated a consistent pattern of remittances from the deceased to his wife, the 1st Respondent herein, so as to constitute proof of income, and the trial court properly resorted to the global sum approach, in view of that difficulty. 26.In awarding the global sum of Ksh. 3,000,000, the trial court relied on Jane Wambaire Chege & another v Rachael Chepkoech Koech (2019) eKLR, where the estate of the deceased, aged 41 years, survived by a wife and 2 children, was awarded Ksh. 6,000,000. With respect, the facts in that case are distinguishable from the one at hand, as the deceased in that case owned Ragwaro Security Services Limited, Nyamira Resort Bar and Restaurant and was an aspiring member of parliament for Kitutu Chache constituency, having been cleared to vie under the Jubilee party. The deceased was the sole director of Ragwaro Security Services Limited and made between Ksh. 600,000 and Ksh. 1,000,000, as evinced by bank statements, and Nyamira Resort Bar and Restaurant was valued at Ksh. 21,500,000. 27.As held by the Court of Appeal in Jacob Ayiga Maruja & anor v Simeon Obayo (2005) eKLR, the absence of proof of the deceased earnings in form of receipts cannot be construed to mean he was not working for gain. 28.In Ntiritu & another v Raiboni & another (Suing as the legal representatives of the Estate of Wilson Gikundi M’Mbijiwe (Deceased)) [2023] KEHC 18068 (KLR), this court upheld the trial court’s award for loss of dependency of Ksh.2,000,000 for a deceased who was aged 42 years and survived by a wife and 2 children. 29.Similarly, in Khalif v M’Kirea & another (Suing as the legal representative of the estate of JMM (deceased)) [2022] KEHC 15932 (KLR), this court upheld the trial court’s award for loss of dependency of Ksh.2,000,000 for a deceased who was aged 35 years and survived by his parents and 2 children. 30.The court is minded that, the vicissitudes of life notwithstanding, the award of Ksh. 3,000,000 was excessive, and considers an award of Ksh.2,000,000 reasonable. 31.On special damages, the Respondents duly pleaded the pre-accident value of the motor vehicle of Ksh. 125,000 and produced receipts for funeral expenses amounting to Ksh. 91,200. The trial court took into consideration the salvage of Ksh. 10,000, and therefore the amount of Ksh. 206,200 was properly awarded. Consideration of the Appellant’s submissions and authorities 32.The Appellant accuses the trial court of failing to consider her submissions and authorities, a fault which is manifestly unfounded as the trial court properly weighed the Appellant’s submissions together with the authorities relied on alongside the Respondents’, before arriving at the impugned decision. Orders 33.Accordingly, for the reasons set out above, the court finds the Appellant’s appeal to be merited and it is hereby allowed in the following terms:1.The award of Ksh. 3,000,000 for loss of dependency is set aside and substituted with Ksh. 2,000,000.2.The other awards remain unchanged. 34.There shall be no orders as to costs in the appeal as the appeal has only partially succeeded.Order accordingly. DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.EDWARD M. MURIITHI.JUDGEAPPEARANCES:Mr. Ontita for the Appellant.Mrs. Waweu for the Respondent.