https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9589

Mbithi v Kioko (Legal representative of the Estate of David Mumo Kioko - Deceased) (Civil Appeal E099 of 2023) [2026] KEHC 9589 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9589 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E099 of 2023 EN Maina, J June 25, 2026 Between Joshua Muli Mbithi Appellant and Susan Ndunge Kioko (Legal representative of the Estate of David Mumo Kioko - Deceased) Respondent Judgment 1.This appeal is against the quantum of damages awarded to the Respondent as compensation for fatal injuries sustained by her son in an accident that occurred along the Kangundo – Tala Road at a place called Ngonda, on 15th July 2018. The deceased was riding his motorcycle Reg No. KMET 600G when it was involved in a head on collision with the Appellant’s motor vehicle KAJ 593H. 2.The respondent attributed the accident to negligence on the part of the Appellant. The negligence was disputed but after considering the evidence and submissions from both sides the learned magistrate found the Appellant wholly to blame and awarded the respondent damages as follows: Loss of dependency - Kshs. 800,000/= Loss of expectation of life - Kshs. 100,000/= Pain and suffering - Kshs. 10,000/= Total - Kshs. 910,000/= 3.The Appellant has appealed on the following grounds: The learned magistrate erred in law and fact in awarding Kshs. 100,000/= under the head of loss of expectation of life without justification. That the learned magistrate erred in law and fact in using a multiplier of 10 years and earnings of Kshs. 20,000/= for a deceased who was not employed and aged 40 years thus awarding his estate Kshs. 800,000/= as loss of dependency without any explanation in law and fact of how the said assessment was arrived at. That the learned magistrate erred in fact and law in failing to use lump sum approach and by adopting the multiplier approach. That the learned magistrate erred in fact and law by totally disregarding the Appellant’s submissions filed on the 27th March, 2023 and relying entirely on the Respondent’s submissions filed on 17th March, 2023. That the learned magistrate erred in law and fact in failing to make any proper findings on quantum in accordance with the facts placed before her and in light of the submissions. 4.The appeal was to be canvased through written submissions but only those of the Respondent were received. Professor Kiama Wangai, learned counsel for the respondent has urged this court to uphold the judgment of the learned magistrate and award the costs of the appeal to the Respondent. Analysis and determination 5.This being an appeal on the quantum of damages only, as the appellant has urged this court to set aside the entire award and to reassess the damages afresh, I am guided by the principle that the assessment of damages being an exercise of discretion, the same can be disturbed only in exceptional circumstance. In the case of Shabani –vs- City Council of Nairobi [1985] KLR 516, the Court of Appeal held:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate based on some wrong principle or on a misapprehension of the evidence ...” 6.In regard to damages for loss of dependency Ringera J, as he then was, explained as follows in the case of Beatrice Thairu –vs- Hon. Ezekiel Barngetuny & another [2025] KEHC (16449) KLR.“The principles applicable to an assessment of damages under the Fatal Accident’s 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 purchase, in choosing the said figures, 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 dependents and the chances of life of the deceased and dependents. 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 lump sum and would if wisely invested yield returns of an income nature.” 7.In this case, evidence was adduced by the deceased’s mother (PW3), that the deceased was a farmer. A business record book indicating that the deceased was engaged in the trade of livestock (pigs and poultry) was tendered in evidence. Whereas the entries in that book indicated the deceased was earning much more, the learned magistrate elected to adopt the sum of Kshs. 20,000/= as the multiplicand a 1/3 ratio of dependency was also adopted as the deceased was still single. The death certificate produced in evidence as part of the respondent’s documents showed he was 38 years old at the time of death hence the learned magistrate adopted 10 years as the multiplicand which in my considered view is reasonable given the vicissitudes and vagaries of life. I therefore see no error of principle in the assessment by the learned magistrate as would warrant me to disturb the award. 8.In the case of West Kenya Sugar Co. Ltd -vs- Fantina Andungosi Odionyi (suing as the legal representative of Patrick Igwala Odionyi – deceased) [2020] eKlR the court adopted a multiplier of 33 years for a deceased aged 21 years. Additionally, in the case of Robert Mutonyi Karanja –vs- Zainul Sumra [2012] eKLR 15 years was adopted for a deceased aged 43 years. I am not therefore persuaded that a multiplier of three years should have been adopted. The deceased being a trader, rather than a public servant who retire at 60 years, may have worked even for 70 or 80 years. It is erroneously to state that he could have only been active upto 47 without any scientific data. 9.The award of Kshs. 100,000/= for loss of expectation of life is the nominal sum usually awarded under that head. In the case of Hyder Nthenya Musili & another -vs- China Wu yi Ltd & another [2017], eKLR 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 principal 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."(emphasis mine). 10.The upshot is that there is no merit in this appeal. It is dismissed with costs to the respondent. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 25TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Court Assistant – CatherineNo appearance by either side.