https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10096

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT KIAMBU** **CIVIL APPEAL NO. E144 OF 2025** **JOEL MBURU KIMANI APPELLANT.** **VERSUS** **MOUREEN WANJIKU MUIGAI (Suing as the legal administrator of the Estate of EZEKIEL GITEHI NG’ANG’A RESPONDENT.** ***(Being an appeal from the Judgment and Decree of Honourable Lillian Kwamboka delivered on 31ST July 2025 in Kikuyu Chief Magistrate’s Court Civil Case No. E 490 of 2024)*** **JUDGMENT** 1. Before this Court is the Memorandum of Appeal dated 15th August 2025 by which the Appellants sought the following orders:- ***(a)That this Appeal be allowed and that the judgment of the Learned Trial Magistrate be set aside with costs.*** 2. The appeal was canvassed by way of written submissions. The appellant filed the written submissions dated 11th May 2026 whilst the Respondent relied upon their written submissions dated 2nd June 2026. **Background** 3. This appeal arises from a road traffic accident which occurred on 21st January 2024. It is alleged that the deceased was lawfully riding Motor Cycle KMEU 540 E along Naivasha- Nairobi Highway near Zambezi area, when the defendants motor vehicle Registration number KCW 880K, veered off its lane and violently ram into motor cycle Registration number KMEU 540 E. As a consequence of the accident, the deceased sustained fatal injuries. 4. Following the accident the wife filed a suit in the Lower Court seeking General and Special damages. The suit was heard and a judgment delivered in favour of the respondent in the following terms:- ***a) Liability – by consent 90:10 in favour of the plaintiff against the defendant.*** ***b) Pain and suffering –kshs 50,000.*** ***c) Loss of expectation of Life –Ksh 100,000.*** ***d) Loss of Dependency -Ksh 5,292,664.*** ***e) Special damages – Ksh 161,550.*** 5. The appellant being dissatisfied with the judgment on quantum and decree of the learned magistrate has appealed the whole judgment on the grounds that:- ***i. That the learned magistrate erred in fact and law by adopting a multiplier that was excessive in light of the deceased age of 34 years and failed to adequately account for the fact that the respondent did not attach a letter of employment to show whether he was employed on permanent and pensionable terms or whether he was employed contractual basis and failed to consider the uncertainties and contingencies of life, thereby inflating the award under the Fatal Accidents Act*** ***ii. That the learned magistrate misdirected herself by awarding damages under both the Fatal Accidents Act and the Law Reform Act without addressing the resulting duplication, contrary to binding precedent and settled principles of law.*** ***iii. That the learned magistrate erred in law by awarding a global sum that is manifestly excessive and disproportionate when compared to awards made in similar cases involving deceased persons with similar dependants and income levels.*** ***iv. That the learned magistrate failed to offer sufficient justification for the awards made under pain and suffering and loss of expectation of life, resulting in an unjustified escalation of the total award and potential overlap with other heads of damages.*** ***v. That the learned magistrate erred in her assessment of the totality of the evidence, including the prevailing socioeconomic circumstances, by making an award that imposes an unduly harsh financial burden on the defendant despite liability not being contested.*** **Analysis and Determination** 6. I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 7. This is a first appeal and in this regard I take cognizance of the holding in *Imanyara & 2 others v Attorney General [2016] KECA 557(KLR)* in which the Court of Appeal stated as follows:- “This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is 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 allowances in this respect. see Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v Brown [1970] E.A. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:- “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” **On Liability.** 8. Parties recorded a consent on apportionment of liability in the ratio of 90:10 in favour of the respondents herein. *9.*I have duly considered the evidence tendered at the trial court, the decision of the trial magistrate, and the grounds of appeal for both parties and the rival submissions made on behalf of each party. The pertinent issue for determination that arise herein are as follows: i***) Whether the trial court erred in assessing the quantum of damages*** **Whether the trial court erred in assessing the quantum of damages.** 10. The deceased according to the documents filed by the respondent die at the age of 34. He was a heathy man at the time of his death, married and a father of two children. He was employed by the Ministry of Interior and National Administration, State Department for Immigration and Citizen Services where he served as a clerical officer. The deceased used to earn a Gross Salary of Ksh 41,650, and a net earning of Ksh 33,079. Though he was stationed at the accounts section CRS Headquarters, he had been deployed to East Leigh Huduma Centre in November 2023, where upon deployment he received an additional Ksh 15,000 termed as monthly Extraneous Allowance. The deceased supported the welfare of his wife as well as his two children. 11. On the issue of quantum, am guided by the case of *Kemfro Africa Limited T/A Meru Express Services & Another -vs- Lubia & Another [1987] KLR 30* where the court observed that: - “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 to be that; it must be satisfied that either 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 …” **On pain and suffering,** 12. The generally accepted principle is that very nominal damages will be awarded on this head of pain and suffering if death follow immediately. Higher damages will be awarded if the pain and suffering was prolonged before death. The same sentiments were expressed in the case of *Hyder Nthenya Musili & Another Vs China Wu Yi Limited & Another [2017] eKLR,* where the Court stated as follows: “As regards damages awarded under the Law Reform Act, the principle is that 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…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/=while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/=with higher damages being awarded if the pain and suffering was prolonged before death.” 13. In this case the deceased died the same day but he had to be rushed to hospital for medical assistance. Chances are that he suffered before he finally succumbed to his injuries. The Respondents have failed to demonstrate that the trial magistrate, in arriving at the sum of Kshs. 50,000/= took into account irrelevant factors or that the award was inordinately high. I am therefore hesitant to interfere with the trial magistrate’s discretion over the same. I find that a sum of Kshs 50,000/= was rightfully awarded. **On the loss of expectation of life**. 14. The trial court awarded Kshs.100,000/- for loss of expectation of life, and I find no reason to disturb the same. **Fatal accidents Act.** 15. The appellant s submissions are that the trial court fell into error when it failed to discharge its burden of proof that the deceased was public servant at the time of his death. That no bank statements or proper books of accounts were tendered before the trial court for the court to consider and reach a just decision. The appellant urged the court to award a global sum of Ksh 1,000,000. 16. In the alternative, the appellant submitted that the trail magistrate ought not to have applied a multiplier of 26 years. That this is supported by the fact that the respondent did not attach an appointment letter to prove whether he was employed on contract or on contract basis. The appellant urged the court to adopt a multiplier of 10-15 years. Reliance was placed on the following authorities:- a. In Njue Gitonga Nthiga v Edward Nyamu Kibunyu (Suing as the Legal Rep. of the Estate of Peter Njinju Nyamu) [2015] eKLR, the Appellate Court substituted the trial court’s multiplier of 30 years with 25 years for a deceased who died at the age of 28 years. b. In Alex Koech & another v Patrick K. Ngugi (suing as the Administrator of the estate of John Muya, Deceased) [2018] eKLR, the Appellate Court upheld the multiplier of 20 years for a deceased who died at the age of 24 years. c. In Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR, the court was of the following view: “On the question of multiplier of 36 years used by the trial court, I am persuaded by the contention by the Appellant that using a multiplier of 36 was a bit high. The deceased was aged 19 years old and it is true that with time he would marry and the s support extended to his parents would gradually reduce as that of his new family increased. There is very slim possibility or probability that he would have supported his parents until his expected retirement age of 60 years. I am persuaded that a multiplier of 20 years would have been more realistic and reasonable and I am satisfied that it was fair to use a multiplier of 20 years.” 17. The principles which ought to guide a court in awarding damages in fatal accident claims under the head of loss of dependency was dealt with by Ringera, J (as he then was) in *Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989* where it was held that: “The court must find out as a fact what the annual loss of dependency is and in doing so, it must bear in mind that the relevant income of the deceased is not the gross earnings but the net earnings. There is no conventional fractions to be applied, as each case must depend on its own facts. When a court adopts any fraction that must be taken as its finding of fact in the particular case and in considering the reasonable figure, commonly known as the multiplier, regard must be considered in the personal circumstances of both the deceased and the defendant such as the deceased’s age, his expectation of working years, the ages of the dependants and the length of the dependant’s expectation of dependency. The chances of life of the deceased and the dependants should also be borne in mind. The capital sum arrived at after applying the annual multiplicand to the multiplier should then be discounted by a reasonable figure to allow for legitimate concerns such as the widow’s probable remarriage and the fact that the award will be received in a lump sum and if otherwise invested, good returns can be expected.” 18. On the dependency ratio, the appellant submitted that the trial court should have adopted a dependency ratio of 1/3 which has been applied in numerous comparable authorities. An instructive authority is the case of Joseph Gatone Karanja v John Okumu Soita & Esther Chepkorir (Suing as admin of the estate of Benard Soita Nyongesa (DCD) [2022] eKLR. 19. On the other hand, the respondents position in their submissions was that taking into account the age of the deceased, being that the retirement age would be when the deceased attained the age of 60 years, an that he had dependants being his wife and two children, the court ought to have adopted a multiplier of 26 years and awarded the respondent as follows;- 2/3 x 48,097x 12 x 26 years = Ksh 10,000,423/= 20. The respondent urged the court to revise the award as the award by the trial magistrate is too low. 21. In Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), the court held at page 248 that: “The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years’ purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.” 64. It therefore follows that the method followed in awarding loss of dependency is the multiplicand (annual net income) multiplied by a suitable multiplier (expected working life lost by the deceased by the premature death), and further by a dependency ratio (ratio of the deceased’s income utilized on her dependents). 23. However, the above approach works well where the deceased’s earnings can be ascertained. Where there is no proof of earnings, the courts normally adopt the global/lump sum approach. 24. The earnings of the deceased in this case are ascertained and were proved in evidence. The respondent produced in court letters form the employer to demonstrate that the deceased was working in the Ministry of Interior as a clerical officer. The appellant further argued that there was no evidence provided by the respondents to show that the deceased was employed on permanent basis. I have perused the list of documents provided by the respondent and produced as evidence in court. At page 45 of the record of appeal, the appellant attached a copy of the deceased pays lip for the month of December 2023, which indicated that the deceased was employed on Permanent and Pensionable (P &P) basis. 25. It is expected that as a civil servant, the respondent would have retired at the age of 60 years. No evidence was produced to prove otherwise. 24. Section 4 of the Fatal Accidents Act limits the beneficiaries of a deceased to the wife, husband, parent and child.On whether the learned Magistrate erred in law and in fact in adopting a multiplier of 26 years, the appellants submitted that the multiplier of 26 years applied by the learned trial magistrate was not reasonable and that the trial court did not take into account the facts and evidence. 25. The deceased died at the age of 34 years as per the death certificate. 26. *In Millicent Kimuli & Anor v Mbisi Linah Catherine & another [2015] eKLR,* the Court adopted a multiplier of 30 years for a deceased who died at the age of 30. 27. The appellant herein has not stated in what manner the Trial Court misapprehended the evidence. I uphold the multiplier of 26 years awarded by the Trial Court in this case for being fair and reasonable. The application of 2/3 dependency ratio was not challenged, thus the award of damages for loss of dependency is upheld. 28. The court finds that the trial Magistrate did not fall into error in this header and I find no reason to disturb the finding. **The special damages** 31. For special damages of KES 161,550.00, we submit that the Kshs. 100,000.00 awarded as legal fees for obtaining the letters of administration was outside the scope of the trial court as it related to a different cause. It should have been noted that the Respondent’s Advocates on record were the same Advocates in the succession cause and therefore it ought to have been demonstrated that the fees were actually incurred by the Respondent availing proof of payment. In any case, the trial court ought to have considered that as per the Advocates Remuneration Order 2014, the legal fees for such matters are capped at KES 15,000.00. 32. The Court of Appeal in the case of Capital Fish Kenya Limited v The Kenya Power &Lighting Company Limited (2016) eKLR which held that:- “... it is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit” 33. The respondents produced a receipt of Ksh 100,000 on account of legal fees. The production of the said, which is reflected at page 40 of the Record of Appeal was not objected to. This being a claim for special damages, which was specifically pleaded and proved, I find no reason to disturb the same. ***Costs.*** 34. In *Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR* Odunga, J. thus observed:- “…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 35. The Appellant shall bear the cost of this appeal. **Orders.** ***i) The appeal is without merit and is dismissed.*** ***ii) The appellant shall bear the costs of the appeal, and the costs in the lower court.*** ***iii) 30 days stay of execution granted.*** ***iv) Right of appeal.*** **DELIVERED, DATED AND SIGNED ON THIS 8th JULY, 2026.** **JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **JUDGE.** In the presence of:- Miss Kiiru for the Appellant. No appearance for the respondent. Court Assistant – Mr. Kibet.