https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10032

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E006 OF 2023** **DAVID KAMAU....................................................1ST APPELLANT** **JORAM NDEGWA................................................2ND APPELLANT** **VERSUS** **JEMIMAH WAIRIMU KAMOTHO** **(Suing as the legal representative of the Estate of SAMUEL KIHIA KARIUKI ..............................................................RESPONDENT** *(Being an appeal from the Judgment by the Honourable Senior Resident Magistrate Honourable S.N. Mwangi on 25th October 2022 in C.M.C.C No. 68 of 2020)* **JUDGEMENT** 1. The Respondent filed a suit in the subordinate court in her capacity as a representative of the estate of *Samuel Kihia Kariuki* (hereinafter referred to as the deceased). She alleged that on 7th October 2018 the deceased was a lawful rider along Murang’a Kahuro road when the Appellants authorized driver, servant and/or agent drove or controlled the motor vehicle registration number KCF 980F without due care and carelessly, negligently and/or recklessly causing it to lose control thereby knocking down the deceased where he succumbed to his injuries. 2. The Appellants denied the occurrence of the accident and pleaded that if the same did occur it was beyond the control of the Appellants herein. 3. The matter was heard to its logical conclusion. The trial magistrate found the Appellants 100% liable. The trial magistrate further awarded the Respondent Kshs. 210,610 and Kshs. 1,120,000 as special and general damages respectively giving the following breakdown: General damages for pain and suffering Kshs. 20,000/= General damages for loss of dependency Kshs. 1,000,000/= General damages for loss of expectation of life Kshs. 100,000/= Special damages Kshs. 210,000/= **Total Kshs. 1,330,610/=** 1. The Appellant filed the instant appeal being aggrieved by the determination of the trial court on the following 8 grounds that: 2. The learned magistrate erred in law and fact in unduly disregarding the appellants evidence adduced in trial. 3. The learned magistrate erred and misdirected herself when she failed to consider the Appellants submissions on both points of law and facts. 4. The learned trial magistrate erred and misdirected herself as to the exact cause of the accident and the nature of the Respondent’s injuries and therefore erred in law in her assessment of damages. 5. The learned trial magistrate erred in law and fact and misdirected herself in finding that the Appellants are 100% to blame and that the Respondent is entitled to general damages of Kshs. 1,120,000 and special damages of Kshs. 210,610 which amounts is manifestly excessive. 6. The learned trial magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and relevant authorities on quantum cited in the written submissions and presented and filed by the Appellants. 7. The learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent and further failed to apply the precedents and tenets of law applicable. 8. The learned magistrate erred in law and fact in arriving at her said decision. 9. The learned magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice. 10. The Appellants sought to have the appeal allowed, the judgment on liability and quantum set aside, costs of the appeal and any other order the Honourable Court may deem fit. 11. The Appellants did not file submissions while the Respondent filed through her Counsel. 12. The Respondent submitted that the trial court applied the correct principles in evaluating the relevant factors in giving just and fair assessment in its determination. Further, that it did not err in finding that the Respondent had discharged its burden of probability that the Appellant caused the accident. The Respondent raised two issues for determination: 13. Whether the learned Trial Court erred in law and in fact in finding the Appellants 100% liable for the accident? 14. Whether the learned Trial Court erred in law and in fact in the assessment on quantum of damages? 15. While relying on the case of North End Trading Company t/a **Kenya Refuse Handlers Limited v. City Council of Nairobi (2019) eKLR,** the Respondent argued that having discharged her burden of proving a prima facie case, the burden shifted to the Appellant who failed to adduce any evidence to rebut the evidence. As such the trial court was not in error in finding the Appellant liable. 16. The Respondent advanced her second argument that the finding on quantum by the trial court was proper and should not be disturbed. Reliance was placed upon the Court of Appeal case of Catholic **Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001(2004)2KLR 55** which set out the circumstances under which an Appellate Court can interfere with an award of damages. 17. I have considered the grounds of appeal, submissions by counsels, and I am of the view that the issues for determination are: 18. Whether the award to the Respondent of Kshs. 1,120,000/ as general damages were excessively high given the injuries sustained by the Respondent. 19. Whether the award of Kshs. 210,610 was pleaded and proved. 20. As this is a first appeal, it is the court’s duty to analyze and re-assess the evidence on record and reach its own conclusions in the matter. It was put more appropriately in **Selle -vs- Associated Motor Boat Co. [1968] EA 123,** thus: “*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 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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)”.* 1. The court further stated in **Jabane v Olenja*[1986] KLR 661*** *“More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870.”* 1. In paragraph 4 of the Plaint, the Respondent averred that the deceased succumbed to injuries caused by the careless, negligent and/or reckless action of the Appellants. 2. The Appellants stated in the Memorandum of Appeal that *the learned trial magistrate erred in law and fact and misdirected herself in finding that the Appellants are 100% to blame and that the Respondent is entitled to general damages of Kshs. 1,120,000 /= and special damages of Kshs. 210,610 which amounts is manifestly excessive.* 3. The finding of the trial magistrate was that the Appellants were 100% liable for having caused the accident. 4. Under the law Reform Act, in **Rose vs Ford (1937) AC 826** it was held that damages for loss of expectation of life can be covered on behalf of a deceased’s estate. It was further held in **Benham vs Gambling AC 157** that only moderate awards should be granted under this head for the following reasons: *“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life not loss of future pecuniary prospects.”* 1. The generally accepted principle therefore is that very nominal damages will be awarded to these two heads of damages of pain and suffering and loss of expectation of life 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 is Kshs. 10,000 to Kshs. 100,000. Higher damages are awarded if the pain and suffering is prolonged before death. 2. In the instant appeal the deceased died shortly after the occurrence of the accident. From the court record, I read that the deceased received first aid from a dispensary and then died on the way to the hospital. The awards of Kshs. 20,000 for pain and suffering and Kshs. 100,000 for the loss of expectation of life were therefore reasonable and in order, and are upheld. 3. In the case **of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini – v- A.M.M. Lubia & Another, (1982-88) 1 KAR 777,** it was stated: *“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 by the former Court of Appeal of 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 low or so inordinately high that it must be a wholly erroneous estimate of the damage.* **(See Ilango – v- Mayoka (1961) EA 705,709-713)”.** 1. In **Denshire Muteti Wambua – v- Kenya Power & Lighting Co,Ltd. Civil Appeal No. 60 of 2004**, the court stated that awards have to make sense and have to have regard to the context in which they are made; they have to strike a chord of fairness. As was stated by Lord Denning in **Kim Pho Choo v Camden & Islingtom Area Health Authority, (1979) 1 All ER 332**, in assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant. 2. In the case of **Arrow Car Limited v Bimomo & 2 Others,** **(2004) 2 KLR 101**, it was stated that comparable injuries should as far as possible be compensated by comparable awards. This Court therefore needs to strike a chord of fairness in the quantum of damages awarded. Looking at the comparable authorities 3. In the instant case, the context in which the compensation for the Respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past. There is no dispute as to the critical nature and extent of injuries suffered by the Respondent. The injuries were fatal. 4. Further, in this instant case the Respondent is deceased, his estate suffered loss of dependency and is survived by his wife and three issues. The trial court took note that prior to his death he was the sole bread winner of his family. The Appellants submitted that the Respondent did not provide any earning despite claiming to be a *boda boda* rider in the evening and a cook during the day. The trial court held that the multiplier method would not be the most appropriate method in assessing damages and preferred to award a global sum of Kshs. 1,000,000. 5. This reasoning was adopted in **Mary Khayesi Awalo & Another vs Mwilu Malungu & Another [1999] ELKR** where Nambuye J, stated that: *“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”* 1. I am of the view that due to the lack of proper accounts or bank statements, this instant appeal is not fit case for using the multiplier method on arriving the damages payable and uphold the trial court’s decision to award the Respondent a global lump sum of Kshs. 1,000,000 under the head of loss of dependency. 2. On special damages, it is trite law that for special damages to be awarded, they must be specifically pleaded and strictly proved. It was held as follows in **Maritim & Another v Anjere (1990-1994) EA 312 at page 316** in this regard: *“It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.”* 1. I have noted from the court record that the learned trial magistrate in referencing the receipts produced by the Respondents as exhibits calculated the amount thereon in the sum of Kshs. 233,050. 2. However, it is evident that the Respondents only proved special damages of which figure the learned magistrate rightly awarded Kshs. 210,610. 3. **The upshot of the above is that the trial magistrate’s judgment is upheld. *The appeal is dismissed. Each party to bear their own costs in this appeal and those of the court below. Thirty (30) days stay of execution is granted.*** **Dated, Signed and Delivered Virtually on this 2nd day of July, 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Ms. Kariuki for Matu for Respondent Morara for Kabita for Appellant Nyabuto – Court Assistant