https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7351

Kisumu Concrete Products Ltd v Amuchana (Suing as the Legal Representative of the Estate of Nancy Achando alias Nancy Ambwaya alias Nancy Shem (Deceased)) (Civil Appeal E013 of 2024) [2026] KEHC 7351 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7351 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E013 of 2024 JN Kamau, J May 26, 2026 Between Kisumu Concrete Products Limited Appellant and Shem Ambwaya Amuchana (Suing as the Legal Representative of the Estate of Nancy Achando alias Nancy Ambwaya alias Nancy Shem (Deceased)) Respondent (Being an appeal from the Judgment and Decree of Hon R. Ndombi (PM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No E090 of 2023 on 7th March 2024) Judgment Introduction 1.In her decision of 7th March 2024, the Learned Trial Magistrate, Hon R. M. Ndombi, Principal Magistrate, entered Judgment in favour of the Respondent against the Appellant in the following terms:-Pain and suffering Kshs 50,000/=Loss of expectation of life Kshs 100,000/=Loss of dependency Kshs 1,621,980/=Special damages Kshs 73,850/=Kshs 1,845,830/=Less 15% contributory negligence Kshs 276,874.50/=Kshs 1,568,995.50/=Plus costs of the suit and interest thereon. 2.Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 27th March 2024. It relied on five (5) grounds of appeal. The said Memorandum of Appeal did not bear a court stamp. 3.Its Written Submissions were dated 3rd July 2025 and filed on 24th July 2025 while those of the Respondent were dated and filed on 24th July 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related, and the issue that had been placed before it for determination was whether or not the quantum that was awarded was reasonable in the circumstances, warranting interference by this court. 7.The court deemed it prudent to address the issues under the following distinct heads. I. Damages Under The Law Reform Act A. Pain and suffering 8.The Trial Court awarded Kshs 50,000/= for pain and suffering. The Appellant argued that the deceased died instantly, hence an award of Kshs 20,000/= would have been sufficient. On the other hand, the Respondent placed reliance on the case of Kato vs Mwema (Civil Appeal E237 of 2023) (2023) KEHC 24976 (KLR) amongst other cases where the common thread was that an appellate court would not interfere with an award of the trial court merely because the award was high or because had it handled the case in the first place, it would have awarded a different figure. 9.The Respondent urged this court not to interfere with the Trial Court’s award since the deceased might have endured some measure of pain. He referred this court to the case of Sukari Industries Ltd vs Clyde Machimbo Juma HCCA No. 68 of 2015(2016) eKLR, where an award of Kshs 50,000/= was upheld, and Recto East Africa Limited vs Josephine Kwamboka Nyachaki & Another (2021) KEHC 5773 (KLR), where an award of Kshs 100,000/= was upheld. 10.In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR, and Sukari Industries Limited vs Clyde Machimbo(supra) as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR, the courts therein awarded a sum of Kshs 50,000/= for pain and suffering. 11.In the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR, the court therein awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident. In Sukari Industries Limited vs Clyde Machimbo Jumba (Supra), the court held that nominal damages would be awarded if death occurred immediately after death and higher damages if pain was prolonged. The court also noted that the amount under this head ranged from Kshs10,000/= to Kshs 100,000/=. 12.Taking into account the aforesaid cases, it was the considered view that the sum of Kshs 50,000/= for pain and suffering was fair and reasonable as the deceased died on the same day and must have suffered a lot of pain and suffering. The court, therefore, left the same undisturbed. B. Loss of expectation of life 13.Neither the Appellant nor the Respondent seemed to have any issue with the award under this head. As the Trial Court awarded the sum of Kshs 100,000/= for loss of expectation of life, this court left the same as undisturbed. II. Damages under the Fatal Accidents Act A. Multiplier 14.The Appellant pointed out that the deceased died at the age of thirty-four (34) years. It urged the court to adopt a multiplier of sixteen (16) years, bearing in mind the vagaries and vicissitudes of life. It submitted that the multiplier of twenty-five (25) years adopted by the Trial Court was excessive. 15.The Respondent on his part submitted that the multiplier of twenty-five (25) years was reasonable and he cited Innocent Ketie Makaya Denge vs Peter Kipkore Cheserek & Another (2015) KEHC 391(KLR), where a multiplier of twenty- six (26) years was adopted for a deceased who was thirty- four (34) years old and the case of David & Another vs Kibwi & 2 Others [2024] KEHC 14631 (KLR), where the court adopted a multiplier of twenty- four (24) years for a deceased who was thirty-four (34) years old. 16.Notably, it was not disputed that the deceased was thirty-five (35) years old at the time of her death, according to her death certificate. It was the view of this court that the multiplier of twenty-five (25) years adopted by the Trial Court was on the higher side. In saying so, this court was guided by the following cases:-1.Melbrimo Investment Company Limited vs Dinah Kemunto & Francis Sese (suing as personal representatives of the estate of Stephen Sinange alias Reuben Sinange (Deceased)) [2022] KEHC 738 (KLR), where a multiplier of twenty (20) years was upheld by the court for a deceased who was thirty-five (35) years old.2.Francis Njeru vs Geofrey M Ndegwa Muiruri (Suing as the legal representative of the Estate of Alex Mugo Muiruri (Deceased) (2020) eKLR, a multiplier of twenty-two (22) years was used, where the deceased died aged thirty-five (35) years.3.Ngure vs Wangui (Suing as the legal representative of the Estate of Anthony Gachamiu Muthiga - Deceased) [2025] KEHC 4379 (KLR), where the court upheld twenty-two (22) years for a deceased who was thirty-five (35) years old. 17.From the foregoing, it was the view of this court that a multiplier of twenty (20) years would have been sufficient in this case. In the premises foregoing, this court found Ground of Appeal No (2) to have been merited and the same be and is hereby allowed. B. Multiplicand 18.The Trial Court adopted a multiplicand of Kshs 8,109.90 guided by the Regulation of Wages Amendment Order, 2022. Neither the Appellant nor the Respondent seemed to have had a problem with the multiplicand. The court, therefore, left the multiplicand undisturbed. C. Dependency ratio 19.The Appellant faulted the Trial Court for adopting a dependency ratio of two-thirds (2/3) when calculating loss of dependency. It submitted that the Respondent alleged that the deceased had five (5) children, yet birth certificates were not produced. It suggested a dependency ratio of one-third (1/3). 20.On his part, the Respondent argued that the Trial court adopted the correct principles in adopting a multiplier of (2/3) since the deceased was married, as was evidenced in the chief’s letter, which confirmed that the Respondent was the deceased’s husband and also listed the deceased’s children. He placed reliance on the case of David & Another vs Kibwi & 2 Others (Supra), where the court found that since the respondent therein had not challenged the production of the Chief’s letter, which listed deceased dependents, it found that the trial court therein had adopted the right ratio. 21.In this particular case, the Chief’s letter dated 8th March 2023 showed that the deceased was married to the Respondent herein and she was survived by four (4) children. The Respondent clarified that together with the deceased, they had five (5) children and not four (4). 22.Notably, Section 4(1) of the Fatal Accidents Act provides as follows:-“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused (emphasis court), and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.” 23.The extent of dependency was a question of fact as held in Leonard Ekisa & Another vs Major Birgen [2005] eKLR where the court stated that there was no rule of law that two thirds (2/3) of the income of a person was to be taken as available for family expenses but that the extent of dependency was a question of fact that was to be established in each case. 24.The Appellant herein did not tender any evidence to rebut the 1st Respondent’s evidence that the deceased had dependents, as was evidenced in the Chief’s letter. Bearing in mind that the deceased had dependents, this court found the dependency ratio of two-thirds (2/3) adopted by the Trial Court to have been fair. III. Special damages 25.Ground of Appeal No (5) was dealt with under this head. 26.The Appellant did not specifically oppose the sum of Kshs 73,850/= the Trial Court awarded, which had been proven by production of receipts. The Respondent urged the court to uphold the award by the Trial Court since it was based on evidence produced. As the Appellant did not submit on this issue, this court left the same undisturbed. 27.In the premises foregoing, this court did not find any merit in Ground of Appeal No (5) was not merited, and the same be and is hereby dismissed. Disposition 28.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal, which was dated 27th March 2024, was partially merited. The effect of this decision is that the Judgment that was entered by the Trial Court in Vihiga in PMCC No E090 of 2023 on 7th March 2024 be and is hereby set aside and/or vacated, and judgment be and is hereby replaced with an order that judgment be and is hereby entered in favour of the Appellant against the Respondent for the sum of Kshs 1,293,096.50 made as follows:-Pain and suffering Kshs 50,000.00Loss of expectation of life Kshs 100,000.00Loss of dependency Kshs 1,297,440.002/3 x 8,109.90 x 12 x 20Special damages Kshs 73,850.00Kshs 1,521,290.00Less 15% contributory negligence Kshs 228,193.50Kshs 1,293,096.50Plus costs and interest at court rates. For the avoidance of doubt, interest on special damages will be from the date of filing suit while the interest on damages under the Law Reform Act and Fatal Accidents Act will be from the date of the judgment of the Trial Court until payment in full. 29.As the Appellant was only partially successful in its Appeal, it is hereby directed that each party will bear its own costs of this Appeal. 30.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 26TH DAY OF MAY 2026J. KAMAUJUDGE