[2022] KEHC 1335 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

CIVIL APPEAL NO. 691 OF 2017

KANAKE PETER WAHIIRE...............................................APPELLANT

VERSUS

JOSEPH MAINA KAMAU & GEOFFREY KAMAU MAINA

(Suing as the Administrators of the Estate of

CICILIA RUGURU MAINA)............................................RESPONDENTS

(Being an appeal from the Judgment of Wanjala (SRM) delivered on 9th November, 2017 in Nairobi CMCC No. 1258 of 2015. )

JUDGMENT

1. This appeal emanates from the judgment in CMCC No. 1258 of 2015. In that suit, Joseph Maina KamauandGeoffrey Kamau Maina, (hereafter the 1st and 2nd Respondents) had sued Kanake Peter Wahiire(hereafter the Appellant) and one Samson Ngigi Muigaifor damages in respect of a road traffic accident that allegedly occurred on 24th August 2014 along Thika Road at General Service Unit (G.S.U) drift, and in which Cicilia Ruguru Maina (hereafter the deceased), a pedestrian sustained fatal injuries. The Appellant had been sued as the 2nd Defendant in his capacity as the registered owner of motor vehicle registration number KBK 421S, whereas Samson Ngigi Muigaiwas sued as the 1st Defendant in his capacity as the registered owner of motor vehicle registration number KUZ 368. The Respondents averred that the motor vehicles were so carelessly and negligently driven that they caused the accident involving the deceased.

2. The Appellant filed a statement of defence denying the key averments in the plaint and liability. Alternatively, the Appellant pleaded contributory negligence against the deceased and the driver of motor vehicle registration number KUZ 368. Judgment in default of appearance was entered against the Samson Ngigi Muigai on 21st August, 2015. The suit proceeded to full hearing during which both the Appellant and Respondents adduced evidence.

3. In her judgment, the learned magistrate found in the Respondents’ favour and apportioned liability between the Appellant, Samson Ngigi Muigaiand the deceased in the ratio of 70:20:10, respectively. The court awarded damages in the total sum of Kshs. 1,287,450/- made up as follows:

a. Damages under the Law Reform Act: Kshs. 130,000/-;

b. Loss of Dependency: Kshs. 1,300,000/-;

c. Special Damages: Kshs. 500/-.

Less 10% contributory negligence

Net: Kshs. 1,287,450/- with costs and interest.

4. Aggrieved with the outcome, the Appellant preferred this appeal challenging the finding on liability and quantum, on the following grounds: -

1. “THAT the learned trial Magistrate erred both in law and in fact in finding that the Appellant was liable for the injuries of the deceased.

2. THAT the learned trial magistrate erred in law and in fact by failing to properly scrutinize and evaluate the evidence tendered by the Appellant and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of liability and compensation to the respondent.

3. THAT the learned trial magistrate erred both in law and fact by making an award on liability which was not supported by relevant facts, evidence and authorities.

4. THAT the award on liability was against the weight of the evidence before the court and was without any consideration to the submissions of both parties.

5. THAT the learned trial magistrate erred in law and fact in deciding the case against the weight of the evidence on record and apportioning liability at 70:20:10 against the 2nd Defendant/Appellant. In doing so, the trial magistrate erroneously held the appellant liable without any proof or evidence of the said negligence from the respondent.

6. THAT the learned trial magistrate erred in law and fact in failing to appreciate sufficiently or at all the judicial nature of the case that was before him finding the Appellant liable merely because of the occurrence of the accident and not because of any proved fault or negligence on the part of the Appellant.

7. THAT the Trial Magistrate erred in law and fact in awarding Kshs. 1,300,000/= as damages for loss of dependency as the same is excessively high and also in failing to find that the lack of employment by the deceased did not warrant such an award.

8. THAT the learned magistrate erred in law and fact by making an award on general damages that was inordinately high as to represent an entirely erroneous assessment.

9. THAT the trial magistrate erred in law and fact in failing to properly take into account the proper legal principles regarding quantum while considering the judgment awards in cases of similar nature.

10. THAT the learned trial magistrate erred in law and fact in failing to properly take into account the proper legal principles regarding quantum while considering the judgment thus arriving at an excessive award.”(sic)

5. The appeal was canvassed by way of written submissions. Counsel for the Appellant placed reliance on the decisions in Ephantus Mwangi & Anor v Duncan Mwangi Wambugu Civil Appeal No.77 of 1982 and Mwana Sokoni v Kenya Bus Services Limited Civil Appeal No. 35 of 935 to submit that this court ought to disturb the trial court’s finding on liability. It was argued that the trial court failed to consider the Appellant’s evidence and submissions on the liability of the deceased and the 1st Defendant in the lower Court. He highlighted the fact that the deceased disembarked from motor vehicle KUZ 368 on the left-hand side on to the road, exposing herself to danger and no was warning was mounted to caution other road users that motor vehicle KUZ 368had stalled on the road.

6. It was asserted that because Samson Ngigi Muigai(1st Defendant in Court below) never participated in the proceedings, the trial court ought to have given due weight to the evidence of the Appellant as the sole eyewitness to the accident, by apportioning higher liability upon the deceased and Samson Ngigi Muigai. Counsel cited the decisions in Eunice Wayua Munyao v Mutilu Beatrice & 3 Others [2017] eKLR and Jackson N. Mutyetumo t/a Paju Investments & Another v Mary Menze Mathuku & Humphrey Munene Kaburu & Another [2009] eKLR.

7. Concerning the averments in the plaint especially relating to the time of the accident and whether the deceased was a lawful pedestrian at the time of the accident, counsel asserted on the authority of several decisions, including Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and Joseph Mbuta Nziu v Kenya Orient Insurance Company Ltd [2015] eKLR that parties are bound by their pleadings and the court ought to disregard evidence that is not consistent with the Respondents’ pleadings. He urged the Court to adjust liability between the Appellant, the deceased and 1st Defendant in the ratio of 30:30:40, respectively.

8. Concerning assessment of quantum of damages, counsel cited the applicable principles as set out in Kipkebe Ltd v Moses Kauni Masaki, Kisii High Court Civil Appeal No. 127 of 2004 and Kemfro Africa Ltd t/a Meru Express & Another v A.M Lubia & Anotherand contended that the trial magistrate applied the wrong principles. Counsel pointed out that the deceased was according to the death certificate produced at the trial, a housewife, and that there was no proof of earnings pleaded or dependency save for the admitted physical and emotional support of the deceased to her husband, the 1st Respondent. Therefore, counsel argued that the trial court ought to have awarded a global sum of Kshs. 700,000/- subject to the liability ratio proposed. Counsel relied on the decision in Kamau Gakuo v Ahluwala [2008] eKLR in that regard.

9. Counsel for the Respondent reiterating the evidence at the trial asserted that it was not in dispute that motor vehicle registration number KUZ 368 was hit from the rear as the Appellant swerved his vehicle. And that the Appellant who was driving at a high speed at the time, did not keep a safe distance and failed to see motor vehicle registration no. KUZ 368in time to avoid the accident. Counsel in deflecting the assertion by the Appellant that the Respondents’ evidence departed from their pleadings, asserted that was incorrect and that any deviation arising was not in any way material. Reiterating that the Respondents proved negligence on the part of the Appellant, counsel urged the Court to find him wholly liable.

10. Concerning the award on damages, counsel reiterated the principles as set out in the decisions in Shabani v City Council of Nairobi [1985] KLR 516 as to grounds upon which an appellate court ought to disturb an award on damages. Relying on the decision of the Court of Appeal in Jacob Ayiga Maruja v Simeon Obayo (2005) eKLR as cited in David Kimathi Kaburu v Gerald Mwobobia Murungi [2014] eKLR,counsel submitted that it was not mandatory that business or other documents be tendered in proof of income of a deceased person before damages can be awarded for lost dependency. And relying on other decisions, including Daniel Mwangi Kimemi & 2 Others v JGM & Another (Administrator of and personal representative of the NK) [2016] eKLR counsel in defending the trial court’s global award for lost dependency asserted that it was not excessive and that the Appellant has not shown the award to be so high as to represent an erroneous estimate. Hence there was no justification for this Court to interfere with the said award. The court was urged to dismiss the appeal with costs.

11. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co. [1968] EA 123in the following terms: -

“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.

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.”

12. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

13. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. In the court’s view, the appeal turns on two issues, namely, whether the finding of the trial court on liability was well founded, and secondly, whether the award on damages was justified. Pertinent to the determination of issues are the pleadings, which form the basis of the parties’ respective cases before the trial court. Hence a review thereof is apposite before dealing with evidentiary matters. In Warehamt/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -

“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”(Emphasis added).

14. The Respondents by their plaint averred at paragraphs 4 that:

“4. On or about the 24th August, 2014, the deceased herein was a lawful pedestrian along Thika Road when at G.S.U drift motor vehicle registration number KUZ 368 and KBK 451S were carelessly and negligently driven that they caused an accident and as a result occasioned the deceased herein fatal injuries.

PARTICULARS OF NEGLIGENCE ON THE PART OF THE 1ST DEFENDANT THEIR DRIVER AND/OR AGENT

a) Driving a defective motor vehicle.

b) Parking the vehicle herein carelessly.

c) Failing to care for the welfare of other road users the deceased included.

d) Causing an accident with vehicle registration no. KBK 451S.

e) Generally been negligent.

f) Occasioning the deceased fatal injuries.

PARTICULARS OF NEGLIGENCE ON THE PART OF THE 2ND DEFENDANT THEIR DRIVER AND/OR AGENT

a) Driving at an excessive speed in the circumstance.

b) Driving without due care and attention.

c) Failing to swerve, failing to brake, stop and swerve and/or slow down so as to avoid hitting the plaintiff.

d) Failing to keep a proper look out for the safety of other road users the Plaintiff included.

e) Generally being negligent” (sic)

15. The Appellant filed a statement of defence denying the occurrence of the accident and particulars of negligence and attributed contributory negligence on the part of the deceased and the driver of motor vehicle KUZ 368 by stating at paragraphs 5, 6 and 7 that:

“5. The 2nd defendant further denies that an accident occurred involving the deceased and motor vehicle registration number KBK 451S on 24/08/2014 in the manner alleged in paragraph 4 of the plaint and put the plaintiff to strict proof.

6. The 2nd defendant denies the negligence attributed to him in causing the alleged accident and denies each of the particulars of negligence set out in paragraph 4 [a-e] of the plaint all-inclusive and puts the plaintiff to strict proof.

7. In the alternative and without prejudice to the foregoing, the defendant avers that if the deceased was indeed fatally injured in the accident (which is denied) as alleged, then the said injury and accident were wholly or substantially contributed to by the deceased’s own negligence.

PARTICULARS OF NEGLIGENCE OF DECEASED

a. Stepping into the road when she knew or ought to have known that it was not safe to do so and walking on to the path of the motor vehicle KBK 451S.

b. Standing in the middle of the road on the accelerating lane of a super highway.

c. Failing to keep any or any proper look out, observe or heed the presence or approach of motor vehicle KBK 451S.

d. Failing to wear bright reflective clothing to alert other road users of her presence at night.

e. Walking in a zigzag manner in the middle of the road without due regard to other road users especially of motor vehicle KBK 451S.

f. Dashing onto the path of travel of motor vehicle KBK 451S without giving the driver thereof or any reasonable chance to avoid the said collusion.

g. Emerging on the road when it was not safe to do so and without due regard to traffic especially motor vehicle KBK 451S.

h. Failing to take any steps or any sufficient steps to ensure his safety while walking along the road, crossing or attempting to cross the road.

i. Failing to head the hooting, flashing of lights and all attempts to warn him of the presence of motor vehicle KBK 451S.

j. Walking in an erratic and haphazard manner and failing to keep the proper kerb drill.”

PARTICULARS OF NEGLIGENCE OF DRIVER OF KUZ 368

a) Parking motor vehicle KUZ 368 on the accelerating lane of Thika superhighway.

b) Failing to place any reflectors, signs, or life savers on the road to warn other road users.

c) Allowing the passenger to stand in the middle of the road instead of the island.

d) Exposing the passenger to danger by allowing the deceased to stand on the road.

e) Failing to leave the hazard lights on as a warning to other road users.”

16. Concerning the issue of liability, the occurrence of the accident involving the deceased and the Appellant’s and 1st Defendant’s motor vehicles on the material date along Thika superhighway during the night of 23rd and 24th August 2014 is not in dispute. It is not disputed that the 1st Defendant’s vehicle had prior to the accident stalled on the accelerating (right side) lane of the highway in the direction of Thika to Nairobi. The Appellant admitted that his vehicle hit the deceased who was standing on the left side of the stalled vehicle at the time. His grouse relates to the level of apportionment of liability between him, the deceased, and the 1st Defendant. The 1st Respondent did not witness the accident and only described the scene he found upon being called to the accident scene by the 1st Defendant in the lower court. The sole eyewitness to the accident was the Appellant.

17. In its judgment the trial court noted the foregoing by stating as follows:

“PW 1 the plaintiff did not witness the accident he was however called by the driver of vehicle KUZ 368 at around 11. 00pm who informed him of the accident…….…PW 2 the police officer P.C John Ouko testified and confirmed the occurrence of the accident although he was not the investigating officer his evidence was based on the report in the occurrence book….

……I have considered the testimony of all witnesses and I am convinced that the accident occurred when the 2nd defendant’s vehicle KBK 451S hit the vehicle KUZ 368 from the rear and according to DW 1 on the left corner, it is not disputed that the deceased was found lying on the road behind the pick up where the impact occurred as such the testimony of DW 1 that he hit the deceased when she alighted from the passenger’s side of the pick-up in the middle of the road is not plausible, secondly PW 2 the police officer testified that the 2nd defendant’s vehicle rammed into the 1st defendant’s pick up and that the area of the accident was well lit which evidence was not rebutted,…………DW 1 on the other hand stated that his vehicle had lights on and if he was keen he could have seen the stalled vehicle his defence was that the said KUZ 368 did not put any warnings that it had stalled……...further DW 1 stated that it was at night and it was drizzling given the circumstance I agree with the plaintiff’s submissions that DW 1 ought to have been careful while driving……as regards the deceased alighting from the stalled pick up since there was no eye witness we can only speculate that she was alighting to go to a safer place and in doing so she should have been careful….all circumstance considered and based on evidence and on a balance of probabilities will apportion liability among the three parties with the 2nd defendant bearing a greater portion, I will apportion 10% liability against the deceased, 20% liability against the 1st defendant and 70% liability against the 2nd defendant. (sic).

18. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The duty of proving averments contained in the plaint lay squarely on the Respondents. In Karugi & Another V. Kabiya & 3 Others [1987] KLR 347 the Court of Appeal stated that:

“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”(Emphasis added)

19. The mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd V. Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutuku V. Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:

“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

20. The 1st Respondent and a police officer, PC. Ouko testified as PW1 and PW2 respectively. The only eyewitness to the occurrence of the accident is the Appellant who testified as DW 1. The testimony of the PW 1 and PW 2 did not contain any admissible and credible evidence as to how the accident occurred and was not capable of dislodging the Appellant’s version of events. More so as DW1 did not waver during cross-examination, and it is therefore surprising that trial magistrate while correctly acknowledging that PW 1did not witness the accident, proceeded to find that the evidence of the Appellant was implausible. By his evidence, the Appellant had stated that the deceased was hit while standing on the left side of the pick-up which had stalled on the accelerating lane. This positioning of the pick-up was confirmed by PW1 who stated that it was on what he called the 4th lane. PW 1describing what he witnessed upon arrival at the scene of accident stated as follows:

“……whenI arrived, I saw a person was lying down, when I moved close I established that it was my wife. She was sleeping off the road and right side on the highway lane “4” on the right side from Thika to Nairobi…”(sic)

21. The witness confirmed during cross-examination that the said lane was the accelerating lane and that the deceased lay on that lane behind the pickup, while the Appellant’s vehicle, also on the same lane, lay ahead of the pick-up. It appears that based on the above assertions, the trial Court proceeded to surmise that the location of the body as PW 1 described it, reflected or marked the point of impact, and without evidence of damage to the respective vehicles, concluded, that the Appellant hit the stalled pick-up from the rear, in the process knocking down the deceased. Hence attributing a much higher degree of negligence against the Appellant.

22. With respect, there was no basis for the conclusion, because the finding of the body behind the pick-up after a lapse of time since the accident could not, without more, be proof of the point of impact and manner in which the accident had occurred. After all, the 1st Defendant in the lower court also at the scene when the 1st Respondent appeared, together with other passengers may well have moved the body in the intervening period to prevent it from being run over by vehicles using the lanes adjacent to the accident lane.

23. The Court does agree with the lower court however on the finding that, given the conditions obtaining on the road as described by the Appellant, namely, that it was nighttime and drizzling, he ought to have driven with care and at moderate speed. And even though there was no evidence to controvert the Appellant’s assertion that the pick-up driver had not put up any warning signs such as hazard lights or reflectors to warn oncoming traffic, it is true that the Appellant ought to have seen the stalled vehicle much sooner and avoided the accident. As it is, his action of swerving to the left lane on noting how close the pick-up was, turned out to be too little too late as he knocked down the deceased. Equally, the driver of the pick-up is liable for negligence, for leaving his stalled vehicle on an acceleration lane on a rainy night, and on a busy highway, without mounting any signs on the road to warn other road users.

24. As for the deceased, it seems likely that she was knocked down, while alighting from the vehicle on the left side as stated by the Appellant, and not while at the back of the pickup. This constitutes negligent conduct as the said deceased was essentially placing herself in the path of oncoming traffic on a busy highway at a time when visibility was imperfect. Thus, in my opinion, the trial court’s attribution of 70% liability against the Appellant went against the weight of evidence and cannot stand. In my considered view, both drivers of the accident vehicles ought to bear higher liability at 45% each, while the deceased will bear 10% contributory negligence. I so find.

25. Turning now to the question of quantum, the applicable principles are well known. The appellate court will only disturb an award of damages where such award is so inordinately high or low as to represent an entirely erroneous estimate. The court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:

“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are 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 damages.” see also Butt v Khan (1981)KLR 349andLukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001; (2004)eKLR; Mbogo V. Shah (1968) EA 93.

26. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:

“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”.

27. Having considered the submissions on quantum and the evidence, and applying the principles enunciated above, this court does not agree that with the Appellant that dependency and the deceased’s income were not proved. The Respondents being the undisputed husband and young adult son of the deceased, respectively were her proper dependents pursuant to section 4 of the Fatal Accidents Act and section 2(5) of the Law Reform Act and entitled to damages for lost dependency. The trial court was entitled, despite the dearth of solid evidence on the deceased’s income, to do its best in arriving at an award. The Court of Appeal in Civil Appeal No. 203 of 2001 Kimatu Mbuvi v Augustine Munyao Kioko [2001] eKLRstated inter alia that:

“But there is dicta in decided cases that a victim does not lose his remedy in damages because its quantification is difficult ... we do not subscribe to the view that the only way to prove the profession of a person must be by way of production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

See alsoJacob Ayuga Maruja’scase (supra).

28. In Wambua v Patel [1986] KLR 336cited inKimatu’s case, the Court grappled with the quantification of loss of earnings of a cattle trader who had sustained injuries in a road traffic accident. Even though the Court found the Plaintiff’s earnings as rather low, and that he kept no records the Court (Apaloo J (as he then was) stated:

“Nevertheless. I am satisfied that he was in the cattle trade and earned his livelihood from that business, a wrong doer must take his victim as he finds him. The Defendants ought not to be heard to say the Plaintiff should be denied his earnings because he did not develop a more sophisticated business method ... But a victim does not lose his remedy in damages because the quantification is difficult.”

29. The Respondents’ evidence that the deceased was a trader earning Shs.1200/- per day from her grocery stall was not discredited merely because her death certificate indicated that she was a housewife, as the Appellant has argued. In any event, a housewife though not gainfully employed works at home to support and care for her family. This was a proper case for a global award, but the trial Court ought to have relied on a more comparable authority in respect of a deceased person in the same age bracket as the deceased, as opposed to the case of Daniel Mwangi Kimemi and Others V JGM & Others (2016) which involved a minor aged 5 years.

30. To my mind, the case of KamauGakuo v Ahluwalia [2008] eKLR (though an old one) involving a 38 year old house wife, or the more recent cases cited by the Respondents, such as Benson Musyoki Munyao V Eucabeth Gwachi (2017) eKLR and Stephen Murathi V Brenda Makena (2012) eKLR which involved deceased persons who died aged between 31 and 32 years and where awards ranged between Shs. 1000,000/- and 2500,000/-, appear more applicable to this case. That said and adjusting for inflation and the age of the deceased herein at death, i.e., 40 years, it is my view that the award of Shs.1300,000/- as damages for lost dependency cannot be said to be so inordinately high as to represent an erroneous estimate. The Court finds no merit in the grounds of appeal thereon and will uphold the award.

31. In the circumstances, the appeal has partially succeeded on apportionment of liability. The Court hereby sets aside the apportionment of liability by the trial Court and substitutes therefor an order that liability between the Appellant, the 1st Defendant in the lower Court, and deceased be apportioned in the ratio of 45:45:10, respectively. The Appellant is awarded one third (1/3) of the costs of the appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 17TH DAY OF MARCH 2022

C.MEOLI

JUDGE

In the presence of:

For the Appellant: Mr Muriuki

For the Respondents: Mr Waiyaki h/b for Mr Mutuku

C/A: Carol