https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10653

Wamutitu v Ariemo (The Administratix in the Estate of Erick Nyangate Obaga (Deceased)) (Civil Appeal E1527 of 2024) [2026] KEHC 10653 (KLR) (Civ) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10653 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1527 of 2024 NM Orina, J July 16, 2026 Between John P Gitau Wamutitu Appellant and Mary Kwamboka Ariemo (The Administratix in the Estate of Erick Nyangate Obaga (Deceased)) Respondent (Being an appeal from the judgment and decree of Hon. L.B Koech (Mrs) (SPM) delivered on 21 August 2024 in Milimani CMCC No. 924 of 2020) Judgment Background 1.This appeal arises from a fatal road traffic accident that occurred on 21 January 2018 along the Northern Bypass near Marurui Area within Nairobi County. The Respondent, Mary Kwamboka Ariemo, suing as the Administratrix of the Estate of Erick Nyangate Obaga (Deceased), instituted Milimani CMCC No. E924 of 2020 against the Appellant, John P. Gitau Wamutitu, seeking general damages under the Fatal Accidents Act and the Law Reform Act, special damages in the sum of Kshs. 236,350/=, together with costs of the suit and interest. 2.Before the trial court, the Respondent's case was that the deceased was lawfully standing at a bus stage along the Northern Bypass when the Appellant negligently drove motor vehicle registration number KCD 706D at an excessive speed, lost control, veered off the roadway and knocked the deceased while he was off the carriageway, thereby occasioning fatal injuries from which he died. 3.The Appellant denied liability in toto. It was his case that the accident was solely caused by the negligence of the deceased, who he alleged attempted to recklessly cross the highway at a point where there was no designated pedestrian crossing despite the Appellant hooting and taking reasonable measures to avoid the collision. The Appellant contended that the deceased failed to exercise due care for his own safety and was therefore wholly to blame for the occurrence of the accident. 4.Upon hearing the parties, the learned trial magistrate found the Appellant 100% liable for the accident and entered judgment in favour of the Respondent. The trial court awarded damages amounting to Kshs. 2,132,650/=, comprising damages under the Fatal Accidents Act, damages under the Law Reform Act and special damages, together with costs of the suit and interest. Being dissatisfied with both the finding on liability and the assessment of damages, the Appellant lodged the present appeal. The Appeal 5.Vide a Memorandum of Appeal dated 10 December 2024, the Appellant raises the following grounds of appeal:a.That the learned trial magistrate erred in law and in fact by holding the Appellant wholly liable for the accident.b.That the learned trial magistrate erred in law and in fact by failing to find that the deceased substantially or wholly contributed to the occurrence of the accident.c.That the learned trial magistrate erred in law and in fact by finding that the Appellant was driving at an excessive speed without sufficient evidence.d.That the learned trial magistrate erred in law and in fact by failing to find that the deceased was unlawfully crossing a highway at a point where there was no zebra crossing.e.That the learned trial magistrate disregarded the evidence of the police officer, thereby arriving at an erroneous finding on liability.f.That the learned trial magistrate erred in law and in fact by adopting a multiplier of thirteen (13) years without proper consideration of the uncertainties and vicissitudes of life.g.That the learned trial magistrate erred in law and in fact by adopting a multiplicand of Kshs. 17,100/= without sufficient proof of the deceased's earnings.h.That the learned trial magistrate erred in law and in fact by awarding special damages which had not been strictly proved.i.That the judgment offended the provisions of Order 21 Rules 4 and 5 of the Civil Procedure Rules, 2010 and ought to be set aside.j.That the learned trial magistrate failed to properly consider the Appellant's evidence and written submissions, thereby arriving at an erroneous decision. 6.Pursuant to the directions of the Court, the appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 31 October 2025, while the Respondent filed written submissions dated 9 March 2026. The Appellant’s Case 7.The Appellant's submissions are centred on two principal issues, namely liability and quantum of damages. On liability, the Appellant submits that the learned trial magistrate erred in holding him wholly liable for the accident. He argues that the accident occurred along a highway where the applicable speed limit under Section 42 of the Traffic Act as read together with the Traffic (Speed Limits) Rules permits a maximum speed of 80 kilometres per hour for the class of motor vehicle involved. It is submitted that there was no evidence proving that the Appellant exceeded the prescribed speed limit. 8.The Appellant further contends that the deceased failed to exercise reasonable care for his own safety by attempting to cross the highway at a point where there was no designated pedestrian crossing. According to the Appellant, the deceased ignored basic road safety precautions expected of pedestrians, including ensuring that it was safe to cross before entering the carriageway. Reliance is placed on Board of Trustees Diocese of Embu Kairu Parish v Antony Njeru Ngugi & Another [2020] KEHC 2367 (KLR) and Kuria & Another v Mwangi (Civil Appeal No. E357 of 2021) [2024] KEHC 10545 (KLR) in support of the proposition that pedestrians equally owe a duty of care for their own safety. The Appellant accordingly urges this Court to set aside the finding of 100% liability and substitute it with liability apportioned equally between the parties at 50:50. 9.On quantum, the Appellant challenges the award made under the head of loss of dependency. It is submitted that although the deceased was aged 47 years at the time of death, the learned trial magistrate adopted an excessive multiplier of thirteen (13) years without adequately considering the uncertainties and contingencies of life. The Appellant argues that a multiplier of seven (7) years would have been appropriate, relying on Kuria & Another (suing as the personal representatives of the Estate of Peter Mwangi Kuria) v Mwangi [2024] eKLR, where a multiplier of five years was upheld for a deceased aged forty-nine years. 10.The Appellant further submits that the learned trial magistrate erred in adopting a multiplicand of Kshs. 17,100.00. It is argued that while documentary evidence established that the deceased earned a monthly salary of Kshs. 13,100.00 from Ideal Security Limited, the alleged additional earnings of Kshs. 4,000.00 per month from Faith House Ministries of Africa were not supported by documentary evidence and therefore ought not to have been considered. Consequently, the Appellant proposes that the Court adopts a multiplicand of Kshs. 13,100.00, resulting in an award for loss of dependency computed as: Kshs. 13,100.00 × 12 × 7 × 2/3 = Kshs. 733,600.00 11.Regarding special damages, the Appellant submits that although Kshs. 236,350.00 was pleaded, only Kshs. 27,700.00 was strictly proved by production of receipts. The Appellant therefore contends that the trial court erred in awarding the entire amount pleaded. 12.Consequently, the Appellant prays that the appeal be allowed, the judgment of the trial court be set aside to the extent challenged, liability be apportioned appropriately, the award of damages be reassessed, and the costs of both the appeal and the proceedings before the trial court be awarded to the Appellant. The Respondent's Case 13.The Respondent opposes the appeal and urges the Court to uphold the judgment of the trial court in its entirety. It is submitted that the learned trial magistrate properly evaluated both the evidence and the applicable law before arriving at the impugned decision. 14.On liability, the Respondent submits that the finding of 100% liability against the Appellant was fully supported by the evidence on record. It is argued that three independent eyewitnesses (PW2, PW3 and PW4) consistently testified that the Appellant's motor vehicle was being driven at a high speed before veering off the road and striking the deceased, who was standing at a bus stage off the carriageway. The Respondent submits that this evidence remained unshaken during cross-examination and was properly accepted by the trial court. 15.The Respondent further submits that an appellate court ought not to interfere with findings of fact unless it is demonstrated that the trial court misapprehended the evidence or applied the wrong legal principles. Reliance is placed on Kiruga v Kiruga & Another [1988] KLR 348, Masembe v Sugar Corporation & Another [2002] 2 EA 434, and Stephen Omondi Juma v Awuor Rabote [2023] eKLR. It is therefore urged that the finding on liability be upheld. 16.On quantum, the Respondent maintains that the award under the head of loss of dependency was justified and supported by the evidence. It is submitted that the deceased was in active employment and there was sufficient evidence establishing both his primary income and additional earnings. The Respondent therefore argues that the multiplicand of Kshs. 17,100.00 and the multiplier of thirteen (13) years were appropriate and consistent with comparable judicial awards. 17.The Respondent further submits that the awards for pain and suffering and loss of expectation of life were reasonable and were not seriously contested on appeal. Reliance is placed on Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR for the principle that damages in fatal accident claims should fairly compensate the dependants for the pecuniary loss occasioned by the death. 18.On special damages, the Respondent submits that the claim was specifically pleaded and strictly proved through documentary evidence produced before the trial court and that the learned magistrate properly awarded the sum of Kshs. 236,350.00. 19.In conclusion, the Respondent prays that the appeal be dismissed with costs for want of merit and that the judgment of the trial court be upheld in its entirety. Analysis And Determination 21.I have carefully considered the Record of Appeal, the judgment of the learned trial magistrate, the grounds of appeal, the rival written submissions and the applicable law. This being a first appeal, this Court is obligated to subject the entire evidence tendered before the trial court to a fresh, exhaustive and independent evaluation and thereafter draw its own conclusions. In doing so, however, the Court must remain alive to the fact that it neither saw nor heard the witnesses testify and must therefore accord due allowance to the findings of the trial court on matters of demeanour. 22.This duty has long been settled and there is no contestation on what it entails. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the former Court of Appeal for East Africa held that:I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of a 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif vs. Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)” 21.Similarly, in Kiruga v Kiruga & Another [1988] KLR 348, the Court of Appeal held that an appellate court will not ordinarily interfere with findings of fact unless they are based on no evidence at all, are founded on a misapprehension of the evidence, or it is demonstrated that the trial court acted on wrong principles in arriving at those findings. 22.Guided by the foregoing principles and upon consideration of the trial record and the rival submissions, the following issues are discernible for determination:i.Whether the learned trial magistrate erred in finding the Appellant 100% liable for the accident;ii.Whether the learned trial magistrate erred in the assessment of damages under the Fatal Accidents Act, the Law Reform Act and special damages; andiii.Who should bear the Costs of the appeal. i. Whether the learned trial magistrate erred in finding the Appellant 100% liable for the accident 25.Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya provides that, “whoever desires any court to give judgment as to any legal right or liability dependent upon the existence of facts which he asserts must prove that those facts exist.” Section 108 places the burden of proof upon the party who would fail if no evidence were adduced, while Section 109 places the burden of proving particular facts upon the person who wishes the court to believe in their existence. Consequently, the Respondent bore the legal burden of proving that the accident occurred through the negligence of the Appellant, while the Appellant equally bore the evidential burden of proving the particulars of contributory negligence attributed to the deceased. 26.It is equally settled that every road user owes a reciprocal duty of care to other users of the road. A motorist owes a duty to drive at a speed and in a manner that is reasonable and prudent in the prevailing circumstances and to maintain proper control of his motor vehicle. Likewise, a pedestrian is expected to exercise reasonable care for his or her own safety. The duty imposed upon motorists, however, is higher because a moving motor-vehicle poses significant risk of severe injury to other road users. 27.The Appellant submits that the learned trial magistrate erred in holding him wholly liable because the deceased allegedly attempted to cross the highway at an undesignated point and thereby failed to exercise reasonable care for his own safety. Reliance was placed on Board of Trustees Diocese of Embu Kairu Parish v Antony Njeru Ngugi & Another [2020] KEHC 2367 (KLR) and Kuria & Another v Mwangi [2024] KEHC 10545 (KLR) for the proposition that pedestrians equally owe a duty of care and may be found contributorily negligent where they negligently enter the roadway. 28.There can be no quarrel with the proposition that pedestrians are expected to exercise reasonable care while using a road. Indeed, courts have consistently held that a pedestrian who suddenly enters a roadway without taking reasonable precautions may properly shoulder a measure of responsibility for an ensuing accident. However, each case must ultimately be determined on its own peculiar facts and the existence of a duty of care upon a pedestrian does not automatically translate into contributory negligence. What must be demonstrated is that the pedestrian's negligent conduct materially contributed to the occurrence of the accident. 29.Upon my own evaluation of the record, I am unable to agree with the Appellant that such contributory negligence was established. 30.The Respondent called four witnesses before the trial court. PW2, PW3 and PW4 were eyewitnesses to the accident. Their evidence was remarkably consistent on the material aspects of the occurrence. Each testified that the Appellant's motor vehicle was travelling at a high speed before losing control, veering off the carriageway and striking the deceased at the bus stage where he had been standing. Their evidence was consistent that the deceased was not crossing the road but was off the carriageway waiting at the designated bus stage when the accident occurred. Significantly, nothing material emerged during cross-examination to impeach the credibility of these witnesses or to expose any material contradictions in their respective accounts. Their testimony remained coherent, mutually corroborative and consistent with the manner in which the accident was pleaded by the Respondent. 31.On the other hand, the Appellant (DW1) maintained that the deceased attempted to cross the Northern Bypass at an undesignated point. He testified that there was no zebra crossing at the locus in quo and that there existed a footbridge approximately six hundred (600) metres from the scene of the accident, which the deceased ought to have utilized. In support of his testimony, the Appellant produced photographic evidence depicting a bridge which he described as a pedestrian footbridge, together with photographs extracted from Google Maps intended to demonstrate the location of the alleged crossing point and the proximity of the bridge to the scene of the accident. 32.I have carefully considered the said photographic evidence together with the oral testimony of DW1. While the photographs depict the existence of a raised road structure in the general vicinity of the accident, they do not, in my view, conclusively establish that the structure is a pedestrian footbridge or that it was situated approximately six hundred (600) metres from the point of impact as alleged by the Appellant. More importantly, the photographs do not demonstrate that the deceased was in the process of crossing the road at the time he was struck or that the point of impact was on the carriageway. The photographs, on their own, are incapable of proving the circumstances under which the accident occurred. 33.The Appellant's evidence regarding the alleged footbridge was directly contradicted by the testimony of PW3, Police Constable John Ouko, who was investigating the accident. PW3 testified that there was no pedestrian footbridge at or near the scene of the accident. He explained that the structure shown by the Appellant was, in fact, an overpass situated as one approaches Roysambu from Mirema Drive, approximately two (2) to two and a half (2½) kilometres from the locus in quo. According to PW3, the overpass was constructed to facilitate vehicular movement between the Northern Bypass and the Roysambu Roundabout and was not intended for pedestrian use. This evidence was corroborated by PW4, who similarly testified that there was no pedestrian footbridge at the scene of the accident but there is an overpass towards Mirema which is about two (2) kilometers away. 34.Upon independently evaluating the entire evidence, I find the testimony of PW3 and PW4 on this issue to be more credible and persuasive. The photographic evidence produced by the Appellant does not negate their testimony. If anything, it confirms the existence of an elevated road structure but does not establish that the structure is a pedestrian footbridge or rebut the evidence that it is a vehicular overpass situated a considerable distance from the accident scene. Consequently, the Appellant's contention that the deceased failed to utilize a nearby footbridge is unsupported by the evidence on record. 35.Even assuming, arguendo, that the deceased intended to cross the road, the evidence before this Court does not establish that there existed a reasonably accessible pedestrian crossing facility at or near the locus in quo. The law imposes upon every road user a duty to exercise reasonable care, but that duty must be assessed against the factual circumstances prevailing at the time. In the absence of a pedestrian footbridge in the immediate vicinity, it would be speculative to conclude that the deceased acted negligently merely because he did not use a structure that the evidence demonstrates was a vehicular overpass located a substantial distance away. In any event, this line of argument is defeated by the cogent and consistent testimony of PW2, PW3 and PW4, which this Court accepts, that the deceased was not crossing the road at all but was standing at a bus stage off the carriageway when the Appellant's motor vehicle lost control, veered off the road and struck him. 36.The Appellant has also faulted the trial magistrate for allegedly disregarding the evidence of the police officer. I have reconsidered that evidence. The investigating officer did not witness the accident. His testimony was derived from investigations conducted after the occurrence and the contents of the police file. While such evidence is admissible, it cannot supersede credible direct eyewitness testimony unless compelling reasons exist for doing so. It is trite that where direct eyewitness evidence is available, such evidence ordinarily carries greater probative value than reconstruction evidence by an investigating officer who never witnessed the accident. 37.I have equally considered the Appellant's argument that there was no evidence proving that he was driving above the statutory speed limit prescribed under Section 42 of the Traffic Act and the Traffic (Speed Limits) Rules. This argument, unfortunately, proceeds on a misconception of the law. Negligence is not determined solely by whether a driver exceeded the prescribed statutory speed limit. Compliance with the maximum speed permitted by law does not absolve a motorist from the duty to maintain proper control of his vehicle or to drive in a manner consistent with the prevailing road conditions. A driver travelling within the prescribed speed limit may nonetheless be negligent if, through want of due care, he loses control of the vehicle and causes injury to other road users. 38.In the present case, the evidence accepted by the trial court and which I have no reason to disturb was that the Appellant's vehicle veered off the road and struck a pedestrian who was standing away from the carriageway at a bus stage. A motor vehicle properly driven and under effective control would ordinarily remain upon the roadway. The fact that the vehicle left the carriageway and entered an area reserved for pedestrians leads to a reasonable inference that the Appellant failed to exercise reasonable care in the management and control of his vehicle. 39.More importantly, the Appellant did not offer any plausible explanation as to what caused his motor vehicle to leave the carriageway and veer into the bus stage where the deceased was standing. The certificate of examination and test of the motor vehicle produced through DW2 established that the vehicle had no pre-accident mechanical defects, with its braking system, steering mechanism and all other critical components found to be intact and in good working condition. The defence therefore cannot be attributed to mechanical failure or any latent defect in the motor vehicle. Equally, there was no evidence of any sudden emergency, obstruction, or other intervening circumstance beyond the Appellant's control that would have caused him to lose control of the vehicle. Indeed, the Appellant's own evidence was that upon allegedly seeing the deceased, he merely hooted, swerved and applied the brakes. The only explanation advanced by the Appellant for the occurrence of the accident was that the deceased had attempted to cross the road at an undesignated point. However, as already found, that assertion is not supported by the evidence on record and is inconsistent with the cogent and credible testimony of PW2, PW3 and PW4, which this Court accepts, that the deceased was standing at the bus stage off the carriageway when the Appellant lost control of his motor vehicle and struck him. 40.I have also considered whether the learned trial magistrate misdirected herself in preferring the evidence of the Respondent's witnesses over that of the Appellant. Having independently re-evaluated the record, I find no such misdirection. The trial court had the singular advantage of observing the demeanour of the witnesses and assessing their credibility firsthand. Nothing has been demonstrated before this Court to justify departing from those findings. The learned magistrate analysed the evidence presented by both parties, gave reasons for accepting the Respondent's version of events, and correctly rejected the Appellant's unsupported assertion that the deceased was crossing the highway. 41.Ultimately, the Appellant has not demonstrated that the findings of the trial court were based on no evidence, were founded upon a misapprehension of the evidence, or were reached upon application of wrong legal principles. On the contrary, the finding that the Appellant lost control of his motor vehicle, veered off the road and struck the deceased who was standing at the bus stage is fully supported by the consistent and credible testimony of the eyewitnesses. 42.Consequently, I find no basis upon which this Court can interfere with the learned trial magistrate's finding on liability. The evidence on record overwhelmingly establishes, on a balance of probabilities, that the accident occurred solely as a result of the Appellant's negligence. The allegation of contributory negligence on the part of the deceased was not proved by any credible evidence and remains purely speculative. I therefore find and hold that the learned trial magistrate properly directed herself on both the facts and the law in holding the Appellant wholly for the accident. Accordingly, Grounds (a), (b), (c), (d), (e), (i) and (j) of the Memorandum of Appeal fail and are hereby dismissed. ii. Whether the learned trial magistrate erred in the assessment of damages under the Fatal Accidents Act, the Law Reform Act and Special Damages 43.The Appellant has impugned the learned trial magistrate's assessment of damages principally on three fronts. First, that the learned trial magistrate adopted an excessive multiplier of thirteen (13) years. Secondly, that the multiplicand of Kshs.17,100/= was not supported by the evidence on record, particularly the additional monthly income of Kshs.4,000/= allegedly earned from Faith House Ministries of Africa. Thirdly, that the award of special damages in the sum of Kshs.236,350/= was not strictly proved. 44.Before considering each of the foregoing complaints, it is necessary to restate the principles governing the circumstances under which an appellate court may interfere with an award of damages made by a trial court. The law in this regard is well settled. In Butt v Khan [1981] KLR 349, the Court of Appeal held that an appellate court should not disturb an award of damages merely because it would have awarded a different figure had it tried the case itself. Interference is only justified where it is shown that the trial court acted on an erroneous principle of law, misapprehended the evidence in some material respect, took into account an irrelevant factor, failed to consider a relevant one, or where the award is so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered. 45.The foregoing principle was restated by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR), where the Court held 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 judge were held by the former Court of Appeal for Eastern Africa 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 high or so inordinately low that it must be a wholly erroneous estimate of the damage. 47.Guided by the foregoing principles, this Court must determine whether the learned trial magistrate exercised her discretion judiciously in assessing the damages payable to the Respondent. a. Pain and Suffering 49.The trial court awarded the estate Kshs.30,000/= for pain and suffering. This award has not been specifically challenged by the Appellant, nor has any submission been advanced demonstrating that the amount was excessive or founded on wrong principles. 50.Under the Law Reform Act, damages for pain and suffering are awarded to compensate the estate of a deceased person for the physical pain endured between the occurrence of the injury and death. The quantum depends on the period the deceased survived after the accident and the degree of suffering endured before death. 51.From the trial record, the deceased sustained severe injuries following the accident and succumbed thereafter. Considering comparable awards made by superior courts in similar circumstances, I am satisfied that the award of Kshs.30,000/= was reasonable and falls within the range of conventional awards. No basis has therefore been established to warrant interference. b. Loss of Expectation of Life 52.The learned trial magistrate awarded Kshs.100,000/= under the head of loss of expectation of life. 53.This head of damages is also recoverable under the Law Reform Act and represents a nominal award of damages to the estate for the shortening of the deceased's normal expectation of life. Courts have consistently awarded a conventional sum of between Kshs.100,000/= and Kshs.200,000/=, depending on the circumstances of each case. 54.The award of Kshs.100,000/= made by the trial court is consistent with long-standing judicial practice and cannot be said to be excessive or based on any wrong principle. I therefore find no justification for interfering with that award. c. Loss of Dependency 55.The principal complaint under this head concerns the multiplicand and the multiplier adopted by the trial court. 56.Damages under the Fatal Accidents Act, Cap. 32 Laws of Kenya, are intended to compensate the dependants of a deceased person for the pecuniary benefit they would reasonably have expected to continue receiving from the deceased had death not intervened. The object is not to enrich the dependants but to fairly compensate them for the actual financial loss suffered. 57.In determining loss of dependency, courts have generally adopted the multiplicand/multiplier approach. Although this approach is not a principle of law but merely a convenient method of assessment, it has consistently been applied because it provides a methodologically transparent basis for calculating pecuniary loss. This position was explained by the Court of Appeal in Board of Governors of Kangubiri Girls High School & another v Jane Wanjiku Muriithi & another [2014] KECA 224 (KLR), where the Court adopted the following finding in Cornelia Eliane Wamba-v- Shreeji Enterprises Ltd. & Others- H.C.C.C No. 754 of 2005:-This court has given due consideration to the aforeset out rival arguments on the issue of choice of a multiplier and in its opinion the following are the guiding principles:-a.The choice of a multiplier is a matter of the courts discretion which discretion has to be exercised judiciously and with a reason.b.It is common ground that since the deceased was not permanently employed in an establishment with a retirement age bracket for its staff it is not possible to fix a retirement age.c.The nature of the profession engaged in also counts. Herein it is common ground that there is no fixed retirement age in the profession of journalism. One can work as long as he wished.d.Death through natural causes and departure for greener pastures elsewhere is also a factor. (i) The Multiplicand 58.The Appellant contends that the learned trial magistrate ought to have adopted a multiplicand of Kshs.13,100/=, being the salary earned by the deceased from Ideal Security Limited. According to the Appellant, the alleged additional income of Kshs.4,000/= per month from Faith House Ministries of Africa was not proved. 59.I have carefully re-evaluated the evidence produced before the trial court. The record reveals that the Respondent produced documentary evidence confirming not only the deceased's formal employment with Ideal Security Limited but also his additional engagement with Faith House Ministries of Africa. 60.In particular, the Respondent produced a letter dated 27 February 2020 issued by Faith House Ministries of Africa confirming that the deceased worked as a casual employee every Tuesday at a daily wage of Kshs.1,000/=, translating to approximately Kshs. 4,000/= per month. The Respondent further produced a second letter dated 27 December 2020 from the same institution confirming that the deceased had served the Ministry as a casual worker between 2016 and 2018. Both documents bear the official stamp of the institution and were produced as exhibits before the trial court. 61.Documentary evidence constitutes primary evidence within the meaning of the Evidence Act. Once such evidence is admitted without objection and no contrary evidence is tendered to impeach its authenticity, the court is entitled to attach appropriate probative value to it. The Appellant neither challenged the authenticity of the two letters nor called any evidence to rebut the contents thereof. 62.The Appellant further contends that the additional monthly income of Kshs.4,000/= allegedly earned from Faith House Ministries was not proved because no payslips were produced. I am not persuaded by that argument. From the certified record, the defence, during the cross-examination of PW1, confined its challenge to the payslips issued by Ideal Security Limited and did not challenge the deceased's engagement with Faith House Ministries or the authenticity of the documentary evidence relating thereto. Indeed, no rebuttal evidence was tendered to controvert the Respondent's assertion that the deceased undertook casual work at Faith House Ministries in addition to his formal employment. The learned trial magistrate considered the evidence on record and was satisfied that the deceased earned an additional Kshs.4,000/= per month from his casual engagement with Faith House Ministries. In my view, the absence of payslips alone was not fatal to that finding. Casual employment does not invariably attract the issuance of monthly payslips as remuneration may lawfully be made on a daily basis, whether in cash or through electronic means. In the absence of any evidence impeaching the deceased's casual employment or demonstrating that the learned trial magistrate misapprehended the evidence or acted on a wrong principle, this Court finds no basis for disturbing that finding. 63.Consequently, I find that the learned trial magistrate properly evaluated the evidence placed before the court in concluding that the deceased earned an additional Kshs.4,000/= per month from his casual engagement with Faith House Ministries of Africa, over and above his monthly salary from Ideal Security Limited. The Appellant has not demonstrated any error of fact or law that would warrant interference with that finding. 64.Accordingly, the multiplicand of Kshs.17,100/= adopted by the learned trial magistrate was supported by the evidence on record and was arrived at upon the proper application of the relevant legal principles. I therefore find no justification for interfering with the multiplicand adopted by the trial court. (ii) The Multiplier 64.The Appellant further contends that the multiplier of thirteen (13) years adopted by the learned trial magistrate was excessive and urges this Court to substitute it with a multiplier of seven (7) years. 65.The assessment of a multiplier is not an exact science but an exercise of judicial discretion, informed by the age of the deceased, the nature and stability of his employment, his probable remaining working life, the contingencies and vicissitudes of life, and the circumstances of each case. The evidence before the trial court established that the deceased was 47 years old at the time of his demise, and the learned trial magistrate adopted a multiplier of thirteen (13) years, effectively taking the view that the deceased would probably have remained economically productive until the age of sixty years. 66.I find the multiplier adopted by the learned trial magistrate to be consistent with established principles governing assessment of damages. In Muhoro & Sons v Kimanthi & 4 Others (Civil Appeal E070 of 2021) [2024] KEHC 8205 (KLR), the Court upheld a multiplier that projected the deceased's working life to the retirement age of sixty (60) years, observing that the deceased, who was aged 37 years, was in good health and would have worked for a further twenty-three (23) years. In the present case, the post-mortem report dated 23 January 2018, prepared by Dr. Oduor Johansen, similarly indicated that the deceased was in good health prior to the accident. At the time of his death, the deceased was 47 years old and the multiplier of thirteen (13) years adopted by the learned trial magistrate likewise projected his productive working life to the retirement age of sixty (60) years. In the absence of evidence demonstrating any illness or other circumstance likely to curtail his remaining working life, I find that the multiplier of thirteen (13) years was reasonable, supported by the evidence, and consistent with the applicable legal principles. I therefore decline to interfere with it. (iii) Dependency Ratio 67.The dependency ratio of two-thirds (2/3) adopted by the trial court was not challenged. In any event, the evidence established that the deceased supported his family and the ratio adopted is consistent with conventional awards in similar circumstances. I therefore uphold it. (d) Special Damages 68.The final sub-issue relates to the award of Kshs.236,350/= as special damages. The Appellant submits that only Kshs.27,700/= was strictly proved by receipts and that the balance, having been supported by handwritten acknowledgements and payment notes rather than formal receipts, ought to have been disallowed. 69.The law regarding special damages is well settled. Such damages must not only be specifically pleaded but must also be strictly proved. This principle has consistently been affirmed by the Court of Appeal, including in Hahn v Singh [1985] KLR 716. The same Court reaffirmed the principle in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR, while at the same time recognizing the limited relaxation applicable to funeral expenses, observing that:We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein did not fall in that class. 70.That relaxation was authoritatively recognized by the Court of Appeal in Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, where the Court acknowledged the practical reality that bereaved families do not ordinarily preserve documentary receipts for every expense incurred during funeral arrangements. Consequently, while the general rule requiring strict proof remains intact, a court may, in appropriate circumstances, award reasonable funeral expenses notwithstanding the absence of formal receipts for every item claimed. 71.In the present case, the impugned special damages comprised expenses incurred towards the deceased's post-mortem examination, mortuary charges, the purchase of a coffin, transport and food during the funeral arrangements. The Respondent tendered documentary material, including handwritten acknowledgements and payment records, in support of those expenditures. Although the documents were not conventional receipts, they nevertheless constituted documentary evidence which the learned trial magistrate was entitled to evaluate together with the oral testimony adduced. The learned trial magistrate expressly acknowledged that not every item had been supported by formal receipts but, guided by the holding in Premier Dairy Limited, considered the totality of the evidence before allowing reasonable funeral expenses. 72.I find no error in that approach. The learned trial magistrate neither disregarded the settled principle that special damages must be strictly proved nor awarded damages in the absence of evidence. Rather, she evaluated the documentary material placed before the court, appreciated the nature of the expenses claimed, and correctly applied the binding jurisprudence of the Court of Appeal relating to funeral expenses. In the circumstances, the award of Kshs.236,350/= cannot be said to have been arbitrary, excessive, or founded on an erroneous principle of law. Consequently, I find no basis upon which this Court can interfere with the award of Kshs.236,350/= as special damages. 73.Having independently reconsidered the entire award, I am satisfied that the learned trial magistrate properly directed herself on the applicable legal principles and correctly evaluated the evidence presented by the parties. The Appellant has failed to demonstrate that the trial court misapprehended the evidence, took into account irrelevant considerations, omitted relevant considerations, or arrived at awards that were so inordinately high as to represent wholly erroneous estimates of the damages suffered. Accordingly, the awards made under the Law Reform Act, the Fatal Accidents Act, and under the head of special damages are hereby upheld. iii. Who should bear the costs of the Appeal 74.The final issue for determination concerns the costs of this appeal. The general principle governing the award of costs is found in Section 27(1) of the Civil Procedure Act, Cap. 21 Laws of Kenya, which provides that costs shall follow the event unless the court or judge, for good reason, orders otherwise. The provision preserves the court's discretion on costs but requires that such discretion be exercised judicially and not capriciously. 75.In the present appeal, the Appellant has challenged both the findings on liability and the assessment of damages. Having independently re-evaluated the evidence and the applicable law, I have found no merit in any of the grounds advanced. The appeal has failed in its entirety. The Respondent has successfully defended the judgment of the trial court and has necessarily incurred costs in doing so. 76.I discern no exceptional circumstances that would justify a departure from the general rule that costs follow the event. Accordingly, the Respondent is entitled to the costs of this appeal. Disposition 77.In the end, and for the reasons set out hereinabove, I find that this appeal is devoid of merit. The same is dismissed with costs to the Respondent to be agreed between the parties and, in case they do not agree, as taxed together with interest from the date of taxation until payment in full. 78.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY, 2026.NABIL M. ORINAJUDGEJudgment virtually delivered virtually in the presence of:Ms. Magoma for the AppellantMs. Nyaguthie for the RespondentLinda - Court Assistant