[2025] KEHC 79 (KLR)

Kenya Forest Service v Nyabera (Suing as the legal representative of the Estate Haron Nyabera Mogute) (Civil Appeal E102 of 2022) [2025] KEHC 79 (KLR) (15 January 2025) (Judgment)

Neutral citation: [2025] KEHC 79 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E102 of 2022

PN Gichohi, J

January 15, 2025

Between

Kenya Forest Service

Appellant

and

George Mwangi Nyabera (Suing as the legal representative of the Estate Haron Nyabera Mogute)

Respondent

(Being an Appeal from the judgement/decree of Hon. E.M. Oboge, (RM) delivered on 22nd July, 2022 in Nakuru CMCC No. E1345 of 2021)

Judgment

1. Before the trial court, the Respondent herein sued the Appellant vide a plaint dated 25th October, 2021, seeking judgment against the Appellant for: -a.Special damages amounting to Kshs. 388,150/=.b.General damages under the Fatal Accident Act and the Law Reform Act.c.Costs of the suit and interest.d.Any other relief as the Honourable Court may deem fit and just to grant.

2. His claim was that on 11th April, 2021, while the deceased was lawfully walking along Nakuru-Eldoret Highway, at Ngata area, the Appellant’s driver/agent negligently drove their motor vehicle registration number KCT 606Y, causing it to violently knock down the deceased causing him fatal injuries and his estate suffered great loss and damage.

3. It is claimed that prior, to his death, the deceased was a healthy and energetic African man aged 56 years and employed as a truck driver. That at the time of death, he left behind his three (3) issues namely Pauline Nyatuga, Jackson Mogute and George Mwangi Nyabera (The Respondent herein) who depended on him for subsistence and general upkeep which dependency they have lost.

4. The Respondent blamed the said accident on the Appellant herein and particularised the negligence to include; driving at excessive speed, failing to see the deceased in sufficient time or at all or make attempts to avoid the accident.

5. The Appellant filed a defence dated 12th January, 2022 denying the claim in its entirety. However, on a without prejudice basis, the Appellant stated that if at all the accident occurred then, the same was caused and/or contributed to by the deceased who so negligently and recklessly crossed the road at undesignated area while running and suddenly emerging onto the path of the Appellant’s motor vehicle forcing it to swerve.

6. After hearing both parties, the trial Court delivered its judgement on the 22nd July, 2022 where he found the Appellant 100% liable for the accident. The court went on to enter judgment in favour of the Respondent as against the Appellant as follows: -a.General damages for pain and suffering… Kshs. 250,000/-b.Loss of expectation of life………………...Kshs. 120,000/-c.Loss of dependency………………………Kshs. 1,920, 000/-.d.Special damages…………………………...Kshs. 388,150/-Total ……………………………………Kshs. 2,678,150/-Plus costs and interests at court rates.

7. Dissatisfied with this Judgement, the Appellant lodged this Appeal by a Memorandum of Appeal dated 5th August, 2022, raising the following grounds: -1. That the learned trial magistrate erred in law and in fact in awarding a total sum of Kshs. 2,678,150 which was way beyond his pecuniary jurisdiction of the small claims court.2. That the learned trial magistrate erred in law and in fact in finding that the Defendant/ Appellant was wholly liable for the accident in issue despite the contradictory evidence by the Plaintiff’s eye witness (PW 2) both orally and in written.3. That the learned trial magistrate erred in law and in fact in disregarding the evidence adduced by PW3, DW1 and DW 2 in so far as the circumstances surrounding the accident was concerned.4. That the learned trial magistrate erred in law and in fact in disregarding the oral amendment that was done by consent of the parties on 8th June, 2022 in respect to the Defendant/Appellant's witness statement hence arriving at an erroneous decision.5. That the learned trial magistrate erred in law and in fact in disregarding the sketch plans which were relied on by both PW-3 and DW-1 hence arriving at an erroneous decision.6. That the learned trial magistrate erred in law and in fact in failing to accord due regard to the Appellants’ submissions on liability and the evidence on record hence arriving at an erroneous decision.7. That the learned trial magistrate erred in law and in fact in relying on a multiplier of 10 years, which was too high in the circumstances, considering the deceased's age.8. That the learned trial magistrate erred in law and in fact in awarding loss of expectation of life in the sum of Kshs. 120,000/= which was inordinately high in the circumstances.9. That the learned trial magistrate erred in law and in fact in awarding pain and suffering in the sum of Kshs. 250,000/= which was inordinately high in the circumstances.10. That the learned trial magistrate erred in law and in fact in awarding Kshs. 200/= in respect to Police Abstract which had not been proved as required by law.11. That the learned trial magistrate erred in law and in fact in failing to accord due regard to the Appellants’ submissions on quantum on applicable principles for assessment of damages.

8. The Appellant therefore prayed that: -a.This Appeal be allowed with costsb.The judgment of the trial court delivered on 22nd July, 2022 on both liability and quantum be set aside and a reasonable judgment/ award be given.c.The costs of the appeal be borne by the Respondent.

Appellant’s Submissions 9. The submissions are dated 11th April, 2024 where the Appellant submitted on two issues that is, whether the Appeal is merited and who should bear costs of the Appeal. On the merit of the Appeal, the Appellant submitted on both liability and quantum.

10. On liability, it was submitted that the trial court erred in finding the Appellant 100% liable for the accident when there was contradicting evidence by the Respondent’s eye witness (PW2).

11. The Appellant submitted that despite alleging to have been at the scene of accident and being in hospital where the deceased was taken for treatment, PW2 failed to identify the deceased dress code. That in addition, that he testified that the police found him at the scene of the accident where he narrated how the accident occurred. However, he later contradicted that testimony during cross examination by stating that there were no police officers at the scene of accident.

12. Additionally, it was submitted that the Occurrence Book (OB) produced in evidence shows that the deceased was the one that dashed to the road abruptly without due care. The appellant therefore submitted that these inconsistences should have impugned PW2’s credibility. He urged this Court to disregard PW2’s evidence in its entirety.

13. It was further submitted that the trial court erred in disregarding the evidence of PW3, DW1 and DW2 on the circumstances surround the occurrence of the accident. The Appellant submitted that the Investigating Officer (DW1) produced the sketch plan showing that the deceased was crossing the road from the left to the right side facing Nakuru direction when he was knocked down by the subject motor vehicle on the left front side. That the dent on the said vehicle was an indication that the driver was trying to swerve right to avoid the accident.

14. Further, the Appellant submitted that when DW1 arrived at the scene about 15 -20 minutes of its occurrence, he did not find PW2 which was a further contradiction to PW2’s testimony that he was still at the scene of the accident when the police arrived.

15. The Appellant submitted that the driver of the subject motor vehicle (DW2), saw the deceased running trying to cross the road from left to the right. He hooted, pressed brakes and served the vehicle to the right to avoid him but unfortunately hit him.

16. In the circumstances, the Appellant submitted that by failure to take into account the evidence of PW3, DW1 and DW2, the trial court rendered an improper and unjust decision.

17. On the issue that the scene of accident was interfered with, it was submitted that these allegations were not supported by any evidence as is required under sections 107, 109 and 112 of the Evidence Act, and therefore, the trial court was in error in relying on such innuendos, misinformation and conjecture in arriving at its decision. He therefore urged this Court to interfere with the finding of liability entered by the trial court.

18. Turning to quantum, the Appellant submitted that the deceased succumbed to the injuries on the same day and proposed an award of Kshs. 10,000/= for pain and suffering, arguing that there was no basis for the trial court for awarding Kshs. 250,000/=. In support of that proposal, he cited several cases including Suluenta Kennedy Sita & Another VJeremiah Ruto [2017] eKLR and William Kinyanjui & Another (Suing as the administrator of the Estate of Jane Florence Njeri Kinyanjui (Deceased) Vs Benard M. Wanjala & Another [2015] eKLR where the deceased in each of the cases died on the spot and an award of Kshs 10,000 was made.

19. On award of dependency, the Appellant submitted that Section 4(1) of the Fatal Accidents Act is clear that those who can benefit under this head include a spouse, parents and children of the deceased but the Act does not mention siblings benefiting from a deceased estate and therefore, the trial court erred in awarding loss of dependency to Paul Nyatuga and Jackson Mogute, the deceased brother and sister respectively.

20. It was further submitted that in the unlikely event that this Court finds that the trial court was justified in making an award under this head, then the award should be global as deceased’s earnings were not ascertained in that the witnesses confirmed in court that the deceased was not in any employment at the time of his death. He therefore proposed a nominal award of Kshs. 200,000/= under this head.

21. The Appellant however submitted that in the event the Court adopts a multiplier approach, then 1/3 ratio instead of 2/3 should be adopted as evidence tendered was that the deceased was unmarried at the time of his death. In support of this proposal, the Appellant cited the case of Petronila Muli Vs Richard Mundi Savi & Catherine Mwende Mwindu [2021] eKLR, where the High Court substituted the 2/3 ratio applied by the trial court with 1/3 ratio for a deceased person who was survived by his parents only.

22. On loss of expectation of life, the Appellant submitted that the trial court’s award of Kshs. 120,000/= was inordinately high. He therefore urged this Court to substitute it with an award of Kshs 60,000/= while citing the case of Lucy Wambui Kohoro Vs Elizabeth Njeri Obong [2015] eKLR where the estate of deceased was awarded Kshs. 100,000/= under this head.

23. Further, it was submitted that the trial court failed to deduct the award of ward of loss of expectation of life from the entire award thus arriving at an erroneous award.

24. On special damages, the Appellant submitted that despite noting that the Respondent had failed to provide the receipt for the police abstract for the alleged Kshs. 200/=, the trial court proceeded to award it even though it was disputed.

25. On costs, it was submitted that costs follow event and therefore, the Appellant should be awarded costs of this Appeal.

Repondent’s Submissions 26. These are dated 2nd May 2024. The Respondent submitted first on the issue of jurisdiction raised by the Appellant as the first ground of appeal and submitted that this suit was initially filed in the Chief Magistrates Court and not in the small claims court. That it was later transferred as an administrative measure of decongestion of the matters and expeditious disposal of the matter, therefore the issue of pecuniary jurisdiction does not apply.

27. With regard to liability, it was submitted that he who alleges must prove. On that basis, he submitted that having instituted a suit at the trial court, he was tasked with demonstrating; first, that an accident occurred, secondly that the accident involved the suit motor vehicle and thirdly, that the accident occurred as a result of the negligence of the Appellant’s driver, servant and or agent and that that accident caused the death of the deceased.

28. From the foregoing, it was submitted that evidence in support of the case was tendered through three witnesses being the Respondent George Mwangi (PW1), the eye witness Joel Ndega (PW2) and Police Officer (PW3).

29. It was submitted that PW1 did not witness the case but being the deceased son, he was involved in the follow up procedure after the deceased had been taken to hospital. That he produced the demand letter, Police Abstract, Death Certificate, Burial Permit, Grant of Letters of Administration, NTSA Notice, Receipts of deceased expenses, Birth Certificates of the deceased’s children and Post-Mortem Report.

30. The Respondent submitted that Joel Ndega who was the eye witness testified as PW2 and gave the chronology of the circumstances that culminated in the occurrence of the accident, that is; he was at the scene of the accident when it occurred; after the accident the deceased was taken to hospital and he followed up on the same; the deceased succumbed to the injuries while undergoing treatment and that he was part of the burial procession and that he blamed the driver of the subject motor vehicle for driving carelessly.

31. It was submitted that even though PW3 was not the Investigating Officer, he testified on his behalf and alluded to the contents of the Occurrence Book and the Police Abstract and the contents therein. The Respondent therefore submitted that that is evident that the Appellant’s driver was to blame for the accident and the circumstances that actuated and aggravated the injuries sustained by the deceased remained uncontroverted and therefore, the Respondent proved his case on a balance of probability.

32. On quantum, it was submitted that assessment of damages is a matter of judicial discretion, which must be exercised judiciously and that the appellate Court will not normally interfere with that a finding of fact by the trial court civil or criminal case unless it is based on no evidence or on a misapprehension of of the evidence , or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did as was restated by the Court of Appeal in the case of Kamau Vs Mungai & Another [2006] 1 KLR 150.

33. The Respondent therefore submitted that he commenced the suit in his capacity as the son of the deceased and produced documents in support of his case and evidence that the three of them were children of the deceased and dependants of the Estate of the deceased.

34. He therefore submitted that the award made by the court towards the said estate was justified. He urged this Court not to interfere with that decision just because it would have itself made a different award.

35. Lastly, he urged the Court to find the Appeal devoid of merit and dismiss it with costs to the Respondent.

Analysis and Determination 36. Having considered the Appeal herein, the rival submissions and the authorities relied by the parties, the issues for determination are: -1. Whether the trial Court had jurisdiction to hear and determine the suit.2. Whether the trial Court erred in finding the Appellant 100% liable.3. Whether the assessment and award of damages was erroneous.4. Who bears the costs of the Appeal.

37. This being a first appeal, the Court is under a duty to reconsider and reevaluate the evidence and draw its own conclusion bearing in mind that it has neither seen nor heard the witnesses- See Selle and another –vs- Associated Motor Boat Company Ltd.& Others (1968) EA 123.

38. To start with, it is imperative to deal with the issue of jurisdiction first. It is noted that though the Memorandum of Appeal shows that the Appellant was challenging the award of Kshs. 2,678,150 /= which the Appellant said was way beyond the pecuniary jurisdiction of the Small Claims Court, the Appellant seems not to have pursued it in his submissions.

39. Be that as it may, this matter was not filed as a Small Claims Court case. It was filed in the Chief Magistrate’s Court and assigned Hon. Oboge who is a Resident Magistrate and handled it in that capacity. He had pecuniary jurisdiction to handle this matter.

40. On liability, the trial court record shows that there cannot be any dispute as to the occurrence of the fatal accident on the material date and time, and that it involved deceased Haron Nyambera Mogute who was a pedestrian, and motor vehicle registration number KCT 606 Y owned by the Appellant and driven by the Appellant’s driver one Duncan Mwema Muthui (DW2). The issue is who between the deceased and the said driver was to blame for the accident.

41. The driver (DW2) testified that he was driving towards Nakuru general direction and upon reaching Ngata, he saw the deceased running towards the road; that he was driving at a speed of 80-90 KPH; was 10 meters away when he saw the pedestrian and that he hooted and pressed the brakes but it was too late. He hit the deceased who was already 3 meters into the road and therefore, he was unable to avoid the accident.

42. The Investigating Officer (Joan Rono) who testified as DW1 corroborated the driver’s evidence although she admitted that she arrived at the scene after the deceased had been taken to hospital and the vehicle removed from the scene. She therefore relied on the dents on the suit vehicle and the evidence of an eye witness one Monica Nasibo to gauge how the accident occurred.

43. The Respondent’s eye witness Joel Ndeya Omuyoyi (PW2) testified that he was at the scene of the accident and was on board his motor cycle waiting to join the highway. He saw a car being driven at a high speed and the driver failed to control the said vehicle causing it to veer off the road and knock down the pedestrian.

44. PW3 No. 73739 Cpl David Gesake testified that as per the Police Abstract and the sketch map, the accident occurred on the left side of the road about 3 meters into the road; that the driver was to blame for the accident but he had not been charged as the matter was before another court as Inquest No. E 034 of 2021.

45. In his detailed judgment, the trial court fully analysed the evidence by DW1 and DW2 both in their recorded statements and oral evidence. The court found that DW1 lied to the court by alleging that after the accident, the deceased was run over by another unknown vehicle when it was clear from DW2’s evidence that he swerved to the left thereby hitting the pedestrian. The court found that DW1 deliberately attempted to force that narrative so as to absolve the driver (DW2).

46. As regards the driver (DW2), the court had this to say: -“It is my finding that DW2 having been a driver for such a long time must have known the consequences of losing guard on the highway. He claimed to have been driving at a speed of 80km/h however he failed to stop despite admitting to seeing the pedestrian 10 meters away or swerving to avoid the accident. He also stated in his statement that the pedestrian bumped onto him but later in court admitted that he hit the pedestrian. Curfew or not, DW2 was required to drive with utmost care. Negligence is defined as doing or failing to do what a reasonable man would not do or do in a situation.. Upon reflection on the above analysis, I have a compelling feeling that the Plaintiff has successfully discharged the burden imposed on him under section 107 and 108 evidence Act …From the forgoing, therefore it is my considered view that the Defendant is 100% liable.”

47. From the above reasoning, it is apparent that the trial court failed to consider that if the point of impact was three meters into the highway, then the explanation by the eye witness that the deceased was standing beside the road did not add up. The driver’s evidence that the deceased had begun crossing the road hence the reason he was hit from the left side of the road by the vehicle cannot be ignored.

48. However, if the driver was driving at a speed of 80-90 KPH as he alleges, saw the deceased 10 metres away and about to cross the road running and his attempt to hoot and break did not bear any fruits, then it is reasonable to conclude that he could have been driving at a higher speed and drove without due care and attention considering the point of impact and the force with which he knocked down the deceased leading to death.

49. Bearing in mind that the pedestrian also had a duty to ensure that the road was safe for him to start crossing, it was not logical to exonerate him from any liability. In the circumstances this Court disturbs the trial court’s finding and apportions liability in the ratio of 80:20 in favour of the Respondent as against the Appellant.

50. On quantum, the parties rightly submitted as to principles laid down by superior Courts as to when an appellate court can disturb the finding by the trial court. Indeed, the Court of Appeal in Gitobu Imanyara & 2 others vs. Attorney General [2016] eKLR held: -“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A 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.”

51. On special damages, it is trite that same must be specifically pleaded and strictly proved. In the instant case, the Respondent pleaded Kshs. 388,150/= under this head. Out of this amount, the Respondent did not produce receipt for Kshs 200/= to prove payment for the Police Abstract. The award Kshs. 388,150/= is hereby disturbed by deducting Kshs. 200/= thereof leaving a sum of Kshs. 387,950/=.

52. With regard to pain and suffering, the evidence is that the deceased died on the same day upon admission in hospital. The Respondent had proposed a sum of Kshs. 350,000 while the Appellant had proposed Kshs. 10,000/= under tis head. While awarding Kshs. 250,000/= under this head, the trial court held: -“I agree with the learned counsel that the deceased suffered tremendous pain having been left lying on the highway by DW2 who drove to Ngata Police Station to report the accident. That it is upon coming back that they rushed the deceased to hospital having lost a lot of blood.”

53. It is apparent that the trial court was influenced by the case of Beatrice Mukulu Kang’uta & another v Silverstone Quarry Limited & another [2016] eKLR where High Court awarded of Kshs. 200,000/= for a deceased who was taken to hospital following the accident, was in a lot of pain and died about five hours later. However, on appeal in Silverstone Quarry Limited & another v Beatrice Mukulu Kang’uta & another (suing as Administrators of the Estate of Philip Musyoka Muthoka [2020] eKLR, the Court of Appeal found that award excessive and substituted it with an award of Kshs. 50,000/=.

54. In Alice O. Alukwe v Akamba Public Road Services Ltd & 3 others [2013] eKLR M. J. Anyara Emukule J (as he then was) awarded Kshs. 50,000/= on 7th November 2013 where the deceased was crushed by a lorry and died instantly.

55. In Retco East Africa Limited v Josephine Kwamboka Nyachaki & another (2021] eKLR the deceased died within 30 minutes after the accident and the High Court upheld the award of Kshs. 100,000/= while rejecting the Appellant’s proposal of nominal ward for Kshs. 10,000/= as one that used to be made in what was awarded in the eighties and the nineties.

56. This Court is also persuaded by High Court’s observation in the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR 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 Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

57. In the circumstances of this case, there is no justification for the trial court’s award of Kshs. 250,000/= and neither is the one proposed by the Appellant herein. This Court therefore disturbs the trial court’s award by substituting it with Kshs. 100,000/=.

58. On dependency, the record shows that the deceased died at the age of 56 years as per the Death Certificate. He was survived by the Respondent herein George Mwangi, Pauline Nyatuga and Jackson Mogute as his children as evident from the Birth Certificates produced before court. The Respondent stated that their late father was supporting his siblings, where Pauline had cleared Form Four in 2020 and waiting to go to college, while Jackson was in college.

59. In cross examination, he told the court that his father had separated with their mother several years ago and that he and his siblings lived with their father who used to provide for them and pay fees. He stated that their father was a driver. He produced the Death Certificate that indicates that the deceased was indeed a driver and aged 56 years.

60. However, no evidence was produced in support of his earnings. In his witness statement filed in court, the Respondent indicated the deceased was earning Kshs. 1,000/= per day as a truck driver.

61. In cross examination, he told the court that though he knew his father was employed by the owner of the truck who the Respondent came to know after his father’s death. He did not have the deceased’s driving licence.

62. In its judgement the trial court held: -“Courts are to be guided by the multiplier method or global sum while assessing damages. The latter applies where the monthly or annual income cannot be ascertained. During the hearing, it clearly came out that the deceased did not have an income that could be ascertained. PW1 however indicated the he was a lorry driver who used to receive Kshs. 1,000/= a day.”

63. The then the court went on to say: -Even if PW1 demonstrate that his father deceased was a driver, in the eyes of the court he seemed truthful. The Certificate of death captured the deceased profession as a driver way before the matter was instituted. For that reason, I will apply the multiplier approach by taking into account the minimum wage of a driver of a medium sized vehicle which is about Kshs. 24,000/= pursuant to the regulation of wages (general (amendment) order 2018.

64. The above reason reveals the trial court’s struggle to use the multiplier method despite earlier correctly appreciating the principles to guide such assessment of damages.

65. It is now settled that the multiplier approach is just a method of assessing damages and is not a principle of law. That it can and must be abandoned where the facts do not facilitate its application. In the circumstances herein, the trial court ought to have used the global award method. In the circumstances, the trial court’s award of Kshs. 1,920,000/= arrived at through that method of assessment cannot stand.

66. This Court is alive to the fact that there is no conventional global award under this head. Each case depends on in the circumstances therein as can be discerned from High Court decisions hereunder.

67. After finding that there was no basis upon which the trial court used a multiplier approach as there was no evidence of earnings, the Court in Kwamboka (Suing as a dependant and personal representative of the Estate of Albert Nyabongoye Onchiri) v Okiro & another (Civil Appeal E017 of 2023) [2024] KEHC 8442 (KLR) (20 June 2024) (Judgment) awarded a global sum of Ksh.1,000,000/= for loss of dependency as the deceased died at a young age, had a wife and was not survived by any children.

68. In MNM & another vs. Solomon Karanja Githinji [2015] eKLR, the court applied the global sum approach and assessed damages at Kshs. 3,000,000/= for loss of dependency where a 46-year-old deceased who died while in good health left behind a spouse and four children. In Lee Construction Company Limited v Obare (Sued as Personal Administrator of the Estate of Stella Nyaboke Nyameino Deceased) (Civil Appeal E005 of 2023) [2023] KEHC 25912 (KLR) (30 November 2023) (Judgment), High Court awarded a global sum of Kshs. 1,500,000/= where the deceased was aged 45 years, leaving her widower as the sole parent for their children though it had not been sated if the said children were school going or not. In Amazon Energy Limited vs. Josephine Martha Musyoka & another [2019] eKLR, the Court substituted the trial court’s global award of Kshs. 2,500,000/= for loss of dependency with an award of Kshs. 1,200,000/= as the deceased was 56 years old and his only child was in college.

69. In the case before this Court, two out of the three children of the deceased were still depending on their father, one in college and the other awaiting to join as at the time their father died. In the circumstances, this Court finds a global sum of Kshs. 1,800,000/= reasonable.

70. On loss of expectation of life, the Appellant had proposed an award of Kshs. 60,000/= while citing the case of Mohamed Abdi Ali v Paul Muturi Mwangi [2019] eKLR where the Court awarded the same figure under this head. On the other hand, the Respondent had proposed Kshs. 150,000/=. In the case of Moses Akumba & Another v Hellen Kasa Thoya [2017] eKLR High Court did not disturb an award of Kshs. 200,000/=. Likewise, this Court finds no reason to disturb the trial court’s award of Kshs. 120,000/=.

71. On the issue raised by the Appellant that the trial court failed to deduct the award of loss of expectation of life from the entire award thus arriving at an erroneous award, this Court is guided by the Court of Appeal decision in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR where it held: -‘‘This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependents under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.”

72. In circumstances, there was no reason for the trial court to make such deduction in the final award and therefore, the Appellant’s argument on that issue fails.

73. Further and for clarity’s sake, the special damages awarded are sums of money already spent by the litigant and therefore, by their very nature, they should not be subjected to apportionment of liability.

74. In conclusion, the judgement and decree of the trial court be and is hereby set aside and substituted with judgment in favour of Respondent as against the Appellant in the following terms: -1. Liability in the ratio of 80: 20. 2.Special damages ……Kshs. 387,150/=3. General damages: - Pain & suffering………………… Kshs. 100,000. 00.

Loss of expectation of life …….... Kshs. 120,000. 00

Loss of dependency………………Kshs.1,800,000. 00

Sub-total…………………………. Kshs. 2,020, 000. 00Less 20% contributory negligence…Kshs. 404,000. 00Kshs. 1,616, 000. 00Add Special Damages……………. Kshs. 387,150. 00Grand total …………………………Kshs. 2,003,150. 004. Interest on general damages at court rates will accrue from the date of this judgment while interest on special damages will accrue from date of filing suit in the trial court until payment in full.5. As the appeal is partially successful, each party shall bear his own costs of the Appeal.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 15TH DAY OF JANUARY, 2025. PATRICIA GICHOHIJUDGEMr. Kisila for AppellantMr. Alusa for RespondentsRuto, Court Assistant present