https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11537

Wambui v Busuru & another (Suing as the administrators to the Estate of the Late Jacob Wafula Busuru- Deceased) (Civil Appeal E1130 of 2025) [2026] KEHC 11537 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11537 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E1130 of 2025 EKO Ogola, J July 23, 2026 Between Kangori Grace Wambui Appellant and Salome Nanjala Busuru and Centrine Busuru (Suing as the administrators to the Estate of the Late Jacob Wafula Busuru- Deceased) Respondent (Being an Appeal from the Judgment and Decree of the Hon. Felix Makoyo, SPM, delivered on 15th October, 2025 in Milimani CMCC No. E3508 of 2022) Judgment Introduction And Background 1.The Appellant, Kangori Grace Wambui, comes to this Court by way of a Memorandum of Appeal dated 7th November, 2025, challenging the judgment and decree of the Chief Magistrate’s Court at Milimani Commercial Courts (Hon. Felix Makoyo, SPM) delivered on 15th October, 2025 in Milimani CMCC No. E3508 of 2022. 2.The original suit before the learned trial Magistrate arose out of a fatal road traffic accident that occurred on 31st October, 2018 along the Njiru–Mwiki Road. The Deceased, Jacob Wafula Busuru, was pushing a handcart when a motor vehicle registration number KCA 679P, owned by the Appellant and driven by her agent/driver (Edwin Ndung’u Kamau), collided with the handcart, resulting in fatal injuries to the Deceased. 3.The Respondents, as administrators of the estate of the Deceased, instituted a suit under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32), alleging that the accident was caused by the sole negligence of the Appellant’s driver. In her Statement of Defence dated 5th August, 2022, the Appellant denied liability and pleaded, in the alternative, severe contributory negligence on the part of the Deceased for pushing an unlit handcart carrying a log at night without reflective gear or warnings. 4.Upon hearing the parties, the trial Magistrate delivered judgment on 15th October, 2025, entering judgment in favor of the Respondents as follows:i.Liability: 100% against the Defendant/Appellant.ii.Pain and Suffering: Kshs. 50,000/=iii.Loss of Expectation of Life: Kshs. 100,000/=iv.Loss of Dependency: Kshs. 3,691,856/=v.Special Damages: Kshs. 155,550/=vi.Total Decretal Sum: Kshs. 3,997,406/= together with costs and interest. 5.Dissatisfied with the trial court's findings on both liability and quantum, the Appellant preferred this appeal on the following grounds set out in the Memorandum of Appeal dated 7th November, 2025:i.That the learned trial Magistrate erred in law by finding that the Respondents had met the requirements stipulated in the Limitation of Actions Act Cap 22 to warrant grant of leave to file suit out of time.ii.The Learned Magistrate erred in law and fact by applying the wrong principles in arriving at the award of loss of dependency of Kshs. 3,997,406/= regard being had to be the evidence adduced at the trial and submissions by applying a multiplier of 34 years which was too high and did not take into account the vagaries of life that would shorten the deceased’s working and having regard to his nature of work.iii.That the Learned Trial Magistrate erred in failing to scrutinize/evaluate the evidence tendered and to correctly relate them to case law cited to him and thereby failed to arrive at a fair and reasonable and/or adequate compensation to the Estate of the deceased.iv.that the Learned Trial Magistrate erred in failing to give his reasons for finding that the sum of Kshs. 3,997,406/= was reasonable and/or adequate compensation.v.That the Learned Magistrate erred in law in failing to uphold the doctrine of precedent.vi.That the Learned Magistrate erred in awarding such an inordinately high award of damages under statute and that the said award can only be adjudged to be an entirely erroneous estimate of the correct damage awardable to the Respondent. 6.As a first appellate court, the duty of this Court is well settled under Section 78 of the Civil Procedure Act (Cap 21) and restated in Selle and Another v Associated Motor Boat Company Ltd & Others [1968] EA 123. This Court is under a duty to re-evaluate, re-assess, and re-examine the evidence on record to draw its own independent conclusions of fact and law, keeping in mind that it neither saw nor heard the witnesses testify firsthand. Issues For Determination 7.Having considered the pleadings, the record of appeal, the grounds of appeal, and the written submissions filed by Counsel for both parties, this Court identifies the following issues for determination:i.Whether the trial Magistrate erred in holding that the Respondents had met the requirements under the Limitation of Actions Act (Cap 22) to warrant leave to file the suit out of time (Ground i).ii.Whether the trial Magistrate failed to properly evaluate the evidence, observe the doctrine of precedent, and give reasons for the finding on liability and quantum (Grounds iii, iv, and v).iii.Whether the trial Magistrate erred in adopting an excessive multiplier of 34 years for Loss of Dependency without accounting for the nature of work and the vagaries of life, resulting in an inordinately high award (Grounds ii and vi). Determination Limitation of Actions and Grant of Leave 8.Under Ground (1), the Appellant contends that the trial Magistrate erred in law by holding that the Respondents had satisfied the statutory requirements under the Limitation of Actions Act (Cap 22) to obtain leave to file suit out of time. 9.The accident occurred on 31st October, 2018, while the Plaint was lodged on 28th June, 2022. A careful examination of the lower court record reveals that the Respondents filed a formal application for leave to extend time pursuant to Section 27 of Cap 22, which was considered and granted by the trial court. The Appellant subsequently participated in the proceedings, filed her Statement of Defence, and agreed to issues without challenging the order granting leave via an appeal or setting it aside. Once leave was granted by a court of competent jurisdiction and remained unchallenged, the suit was properly before the trial court. This Court finds no basis to fault the trial Magistrate on this point. Ground (1) therefore fails. Evaluation of Evidence, Reasoned Decisions, and Judicial Precedent 10.Under Grounds (3), (4), and (5), the Appellant faults the trial Magistrate for failing to properly analyze the evidence on record, failing to give reasons for the final award, and departing from binding judicial precedent. 11.On the issue of liability, the record shows that the accident occurred at 7:35 PM (during hours of darkness) when the Appellant’s driver struck a log protruding from an unlit handcart pushed by the Deceased along the Mwiki–Njiru road. While a motor vehicle driver owes a high duty of care to other riad users as was established in the case of Savannah Hardware v EOO (Suing As representative of SO (deceased) [2019] KEHC 269 (KLR), the trial Magistrate failed to give adequate weight to the precedent establishing that pushing an unlit, hazardous obstacle on a dark public road constitutes contributory negligence. To that extent, the trial court failed to properly evaluate the evidence and apply relevant case law. Liability is accordingly re-apportioned at 80% against the Appellant and 20% contributory negligence against the Deceased. Assessment of Loss of Dependency, Multiplier, and Quantum 12.Under Grounds (2) and (6) of the memorandum of appeal, the core grievance of the Appellant is that the trial Magistrate applied wrong legal principles by adopting a 34-year multiplier for a 26-year-old informal manual worker (mason) without taking into account the nature of his work and the vagaries of life. 13.The legal principles governing interference with an award of damages are set out in Kemfro Africa Ltd t/a Meru Express Services v Lubia [1987] KLR 30 where the court held that an appellate court will only interfere if the trial court applied wrong principles, misapprehended the evidence, or awarded a sum so inordinately high as to be an erroneous estimate. 14.Adopting a strict 34-year multiplier (calculating continuously up to a standard retirement age of 60) for a manual laborer in the informal sector ignores the physical demands, employment fluctuations, and inherent life hazards of masonry work. As was stated in the case of Albert Odawa v Gichimu Gichenji [2007] KEHC 1358 (KLR) and restated in Njoroge & another v Maina & another (Suing as the Legal Representatives of Francis Mbarire Hungi - Deceased) [2025] KEHC 16838 (KLR), in assessing the multiplier for earnings in the informal manual sector, courts must apply a realistic multiplier that reflects the hazards and uncertainties of life rather than a continuous calculation to mandatory public service retirement age. In comparable authorities involving young manual workers in the informal sector, Kenyan appellate courts consistently adopt a realistic multiplier of between 20 and 24 years. Consequently, the 34-year multiplier adopted by the trial Magistrate is inordinately high and is hereby set aside and substituted with a multiplier of 24 years. 15.Adopting the trial Court’s multiplicand of Kshs. 15,000/= per month and the standard dependency ratio for a deceased with a family, the Loss of Dependency is re-calculated as follows:Loss of Dependency = Kshs. 15,000/= x 12 months x 24 years x 2/3 = Kshs. 2,880,000/= Final Disposition 12.In the upshot, the appeal is partially allowed. The Judgment and Decree of the learned trial Magistrate delivered on 15th October, 2025 in Milimani CMCC No. E3508 of 2022 is hereby set aside and substituted with the following orders:a.Liability is Apportioned at 80% against the Appellant and 20% against the Respondent.b.Judgment is entered in favor of the Respondents against the Appellant in the net sum of Kshs. 2,568,440/= broken down as follows:i.General damages for Pain & Suffering Kshs. 50,000/=ii.Loss of Expectation of Life Kshs. 100,000/=iii.Net Loss of Dependency Kshs. 2,880,000/=iv.Special Damages Kshs. 155,550/=v.Less 20% Contributory Negligence (- Kshs. 617,110/=)vi.Net Total Payable Kshs. 2,568,440/=c.The amount above shall attract interest at court rates from the date of filing the suit until payment in full.d.The Appellant having succeeded partially on appeal, each party shall bear their own costs of this appeal. The Respondents retain 80% of their assessed costs in the trial Court.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY 2026…………………………………….E. K. OGOLAJUDGEIn the Presence of:Ms. Njenga………………..for the AppellantMr. Odhiambo…………for the RespondentGisiele..………………….… Court Assistant