https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6616

Mwangi v Kihara & another (Suing as the legal representatives of the Estate of the Late Robert Maina Mwangi) (Civil Appeal E055 of 2024) [2026] KEHC 6616 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 6616 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E055 of 2024 DKN Magare, J May 12, 2026 Between Julius Mbuku Mwangi Appellant and Minney Wambui Kihara & Anthony Danson Kihara Maina (Suing as the legal representatives of the Estate of the Late Robert Maina Mwangi) Respondent Judgment 1.This is an appeal from the Judgment and decree of Hon. Edwin Nyaga Muriuki (Senior Principal Magistrate) dated 4.6.2024 arising from Murang’a CMCC No. E078 of 2023. 2.The Memorandum of Appeal dated 13.6.2024 pleaded 7 winding grounds of appeal. The 7 - paragraph argumentative Memorandum of Appeal clearly challenged the award on quantum only. 3.Order 42 Rule 1 requires that the Memorandum of Appeal be concise. The same provides as doth: -“ 1.Form of appeal –1.Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.2.The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.” 4.The Court of Appeal had this to say in regard to Rule 86 (which is pari materia with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…” 5.Repetitiveness of the Memorandum of Appeal is such a waste of judicial time. In Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that : -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.” 6.The singular issue is whether the lower court erred in its award of general damages in respect of this fatal accident claim, by awarding damages that were inordinately high and not supported by evidence. 7.The Plaint dated 2.5.2023 claimed damages for an accident that occurred on 24.12.2024 when the deceased was a pedestrian along Murang’a-Sagana road at Gakonya area when the Appellant or his agent drove motor vehicle Registration No. KDH 452N negligently and dangerously causing it to veer off the road and to violently hit the deceased who suffered fatal injuries. 8.The Respondent set forth particulars of negligence for the accident motor vehicle and pleaded general damages under the Law Reform Act and Fatal Accidents Act. 9.The Appellant entered appearance and filed defence denying the particulars of negligence and injuries pleaded in the plaint. 10.The lower court heard the parties and proceeded to render the impugned judgment in which the Court found liability at 100% and awarded Ksh. 50,000/= for pain and suffering, Ksh. 7,526,400/= for loss of dependency, and Ksh. 100,000/= for loss of expectation of life. 11.Aggrieved by the finding of the lower court, the Appellant lodged the appeal herein. Submissions 12.The Appellant filed submissions dated 15.1.2026. It was submitted that the award based on a multiplier of 14 years was inordinately high. The Appellant proposed 9 years. 13.It was further submitted that the Respondents failed to prove earning for the deceased. No bank statements were attached to prove that he earned Ksh. 72,800/= per month. Reliance was placed on Kimilili Haulers Limited v Maurice Msiando Musungu (2021) eKLR. They proposed a minimum wage approach for wage Order, 2022 at Ksh. 8,109.90/= as income. 14.The Respondent filed submissions dated 28.1.2026. It was submitted that the judgment of the lower court should be upheld. Age was proved as stated on the certificate of death and the deceased was 51 years at the time of his death. 15.The Respondent also submitted that a letter from Elika Engineering Limited confirmed that the deceased earned Ksh. 2,800/= per day and was produced by PW3 in evidence. Therefore, the finding of the learned magistrate was proper. Analysis 16.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 17.In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 18.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held by as follows;-“.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 19.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 20.In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-“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…” 21.On the damages the lower court awarded Ksh. 50,000/= under the head of pain and suffering. In Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased) paragraph 21 the Hon. Odunga J (as he then was) observed: -“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness… a distinction ought to be made between a case where the deceased passes away instantly and where the death takes place some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.” (emphasis mine). 22.The above case law points to the fact that the 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 die later on. In this case, the deceased passed away at the scene of the accident. The amount that the court award of Ksh. 50,000/= was not inordinately low or high and I uphold it. 23.On loss of expectation of life, a sum of Ksh. 100,000/= was not inordinately high. The Appellant did not appeal against this parameter. There was no evidence that the Deceased was of ill health and Ksh. 100,000/= was within the conventional award. In Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR it was observed that:“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 award range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” 24.Under dependency ratio, to interfere with the finding of the lower court on loss of dependency, this court has to find basis. The deceased herein was 51 years and was married. He had 3 children out of whom one was a minor. His death certificate showed he was a business man while there was a letter indicating appointment as a supervisor as and when work was available. It is not known whether the work was available and the frequency. 25.On income, the Respondent relied on the letter dated 13.3.2019 from Elika Engineering Limited. In the said letter, it was stated that the deceased was appointed to the position of site supervisor at a daily wage of Ksh. 2,800/= payable weekly and therefore Ksh. 67,200/= monthly. PW3 produced the said letter and was cross examined on its contents. This was proof that the deceased got an engagement but there is no evidence that he reported or earned. The duration was also not shown. A pays lip will have easily settled the matter. 26.The proposal by the Appellants that there was no proof of employment since no contract of employment was produced or income as no bank statements or payslips is thus correct. The evidence presented was not sufficient, on a balance of probabilities to provide the income of the deceased. It is an indicator that he had a potential. Whether he was paid is a different matter. 27.The deceased died at 51 years old and would be expected to work until the retirement age of 60 years. Regarding the vicissitudes of life, the multiplier of 14 years was exaggerated and contrary to the principles on award of damages. The Appellant submitted for 9 years. I find this proposal also not regarding vicissitudes of life as no allowance is provided from the expected 60 years. The matter however is not proper for a multiplier. The applicant was being assigned work from time to time which cannot be said to be full contract of employment. 28.There is no indication of takes due. For example, a sum of Ksh 67,200/= attracts income tax of Ksh 14,445/=, SHA Ksh. 1,008/= and housing levy sum of Ksh. 1,845/=. All this parameters among other statutory deductions were left for the court to discern. While addressing damages and special damages, the Court of Appeal in In the case of David Bagine V Martin Bundi [1997] KECA 54 (KLR), [E. Gicheru, A.B. Shah and G. S. Pall], posited as follows:“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" 29.The parameters left out for speculations were too many. Therefore the proper cause is to consider a global award. It must be remembered, that whichever method is used, a damages under Fatal Accidents Act must be fair and use a fairly consistent method. The Court in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), Ringera J, as he then was, 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.” 30.The duty of the court on submissions was settled by the case of Butt v Khan [1978] KECA 24 (KLR), where the court of appeal (Madan, Wambuzi & Law JJA) held as follows: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. It must be shown that the 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. 31.The deceased was 51 years old, with a wife, 2 adult children and a minor. The court ought to use a global approach, as set out in the case of Moses Mairua Muchiri v Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased) 2016 KEHC 5958(KLR), where this court, Ngaah Jairus J posted as follows:It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said:The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it. 32.The question of a global sum is ideal in the circumstances. In the the decision of Hon. Ringera, J. in Mwanzia v Ngalali Mutua & Kenya Bus Service (Msa) Ltd & another, the court posited as follows:The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the 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 of justice should never do.” 33.This is further buttressed by the case of Waihenya v Kariuki (Suing as the Legal Representative of the Estate of the Late Nicholus Wachira Kariuki (Deceased)) [2024] KEHC 14237 (KLR) where the court stated as follows:The documents produced do no show support for the dependants, further they are all adults. Applying the multiplier is as such not a proper measure as it goes more into the realm of conjecture and surmise. The multiplier of 15 is equally too long for adult children aged 18-23. The best method is thus to have either nominal dependency, which in this case could be 5 years. However, there will be a hurdle on proof of income. Having business turnover or contracts is not evidence of income. And even where it were, each of the children should prove dependency. They did not. This is where a global award comes in.57.Ringera J’s observation was based on the principles for assessment of dependency in Kenya developed in the 1957 case of Peggy Frances Hayes and Others v. Chunibhai J. Patel and Another cited by the Court of Appeal for Eastern Africa in Radhakrishen M. Khemaney v. Mrs Lachaba Murlidhar (1958) E.A. 268, 269 (per Air Owen Corrie Ag. JA with whom Briggs, V-P and Forbes, JA agreed) as follows:“I have no doubt as to the principles which are to be applied to this appeal. In Civil Case No. 173 of 1956, delivered on March 26, 1957, in the Supreme Court of Kenya in an action brought by Peggy Prances Hayes and others against Chunibhai J. Patel and another, the principles applied by the learned chief justice, as he then was, were as follows:"The court should find the age and expectation of working life of the deceased, and consider the wages and expectations of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase. The multiplier will bear a relation to the expectation of earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the re-marriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum the court should apportion among the various dependants."Upon an appeal against this judgment this court held ([1957] RA. 748 (C.A.):"That the method of assessment of damages adopted by the learned chief justice was correct.…Courts are not compelled to adopt the multiplier method in cases where the exercise is groping in the dark, speculation on the important aspects of lost years, or dependency 34.There were no actual earnings shown. The case is not a proper one to use a multiplier since the court cannot use a minimum wage and there was no evidence that the income from employment was as pleaded. Doing the best I can, I find that a sum of Ksh. 2,500,000/= as a global award is sufficient. 35.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 36.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 37.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 38.The nature of the matter is that each party should bear their own costs. Determination 39.In the upshot, I make the following orders: -a.The appeal partly succeeds. The award of general damages for loss of dependency of Ksh. 7,526,400 /= is set aside and substituted thereof with Ksh. 2,500,000/=.b.The rest of the awards are upheld.c.Interest from date of judgment in the court below.d.30 days stay of execution.e.Each party to bear own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 12TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Kamau Muriuki for the AppellantMr. Keino for the RespondentsCourt Assistant – Michael/Martin