https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8867

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL APPEAL NO E034 OF 2024** **ANGELA MUMANIE KIVUNGO & SAMUEL MUEMA MUUSYA (Suing as the personal representatives and Legal Administrators of the Estate of JUSTUS MWANGAGI MUUSYA (Deceased)………………………APPELLANT** **VERSUS** **BONFACE LIHANDA JUMBA……………………………………...RESPONDENT** **(Being an appeal from the Judgment and Decree of Hon. P. Karimi (RM) delivered at Vihiga in the Magistrate’s Court Civil Case No E114 of 2022 on** **17th July 2024)** **JUDGMENT** **INTRODUCTION** 1. In her decision of 17th July 2024, the Learned Trial Magistrate, Hon P. Karimi, Resident Magistrate, entered Judgment in favour of the Appellants herein against the Respondent in the following terms:- **Liability 100%** **Pain and Suffering Kshs 50,000/=** **Loss of Expectation of Life Kshs 200,000/=** **Loss of Dependency Kshs 1,332,334.80/=** **Special damages Kshs 53,690/=** **Kshs 1, 636,024.80/=** **Plus costs of the suit and interest at court rates from the date of Judgment for general damages and from the date of filing for special damages until payment in full.** 1. Being aggrieved by the said decision, on 12th August 2024, the Appellants herein filed a Memorandum of Appeal dated 29th July 2024. They relied on five (5) grounds of appeal challenging the award of loss of dependency by the Trial Court. 2. Their Written Submissions were dated and filed on 20th January 2026. As at the time of writing this Judgment, the Respondent had not filed his Written Submissions. **LEGAL ANALYSIS** 1. 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. 2. 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. 3. Having looked at the Grounds of Appeal and the Appellants’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the only issue that had been placed before it for determination was **whether or not the Learned Trial Magistrate erred in calculating the award under loss of dependency and special damages.** 4. **The court dealt with the said issues under the following distinct heads.** 5. **LOSS OF DEPENDENCY** 6. **The Appellants submitted that they had tendered evidence to prove that the deceased was thirty-seven (37) years at the time of the accident and that he worked and resided in Nyamasaria within Kisumu County. They asserted that the deceased engaged in the business of selling honey sourced from Kitui County and made a net profit of Kshs 2000 per day. They added that they invited the court to adopt the minimum wage in working out an award towards dependency.** 7. **They argued that although the Trial Court adopted the minimum wage bill and was guided by Regulations of Wages (General Amendment) Order 2018, it relied on the burial permit that listed the deceased’s residence as Migwani and the Chief’s Letter which emanated from Nzauni in Migwani. They contended that the Trial Court did not take into consideration their testimony that the deceased’s place of residence was in Kisumu County. They were emphatic that the assertion that the deceased’s residence was Migwani was not true.** 8. **They further argued that the approach by the Trial Court conflated the deceased’s ancestral home with his actual place of residence and work at the time of death and that the distinction was critical as the applicable minimum wage differs significantly between wage categories. In this regard, they relied in the case of Petronilla Muli vs Richard Muindi Savi & Catherin Mwende Mwindu (Suing as the Legal Representative of the Estate of the Late Augustus Muindi (Deceased)[2021] KEHC 6932 (KLR).** 9. **It was their case that with the deceased working and residing in Kisumu County at the time of his demise, the Trial Court ought to have adopted a multiplier approach under General Labours working in Nairobi, Kisumu and Mombasa cities as per the Regulation of Wages (General Amendment) Order 2018 which was Kshs 13,572.90. In the premises, they proposed that the loss of dependency ought to have been calculated as follows:-** **2/3 x 23 x 13,572.90 x 12= 2,496,778.28.** 1. On the guiding principles for interference with an award of damages, reliance is placed on **Kemfro Africa t/a Meru Express Services v A.M. Lubia & Another (1987) KLR 27** as cited with approval in **Nihon Complex Ltd & Thomas Njoroge Kirima v Joseph Kiplagat Towett (2019) eKLR,** where the Court set out the circumstances under which an appellate court may interfere with an award, namely where the trial court took into account an irrelevant factor, failed to consider a relevant one, or arrived at an award that is inordinately high or low as to represent an erroneous estimate. 2. This court noted that although the 1st Appellant in her statement dated 10th April 2022 and filed on 17th June 2022 which was adopted as her examination-in-chief, indicated that the deceased resided and carried out his business in Nyamasaria, there was no documentary evidence to prove the same. On the other hand, a perusal of the deceased’s death certificate, indicated that his place of residence was Miguani. As that was endorsed in the death certificate, a government-issued document which constituted *prima facie* evidence of the truth of its contents, this court could not fault the Trial Court for relying on the said document as clearly there was nothing to prove the averment that the deceased carried out his business in Nyamasaria within Kisumu County. 3. In that regard, this court had due regard on the cases of **Mbae (Suing as the Legal Representative of the Estate of Koome Mbae - Deceased) vs Muambi (Sued as the Legal Representative of the Estate of Duncan Mwera Micheni - Deceased) Civil Appeal No. E019 of 2022 [2024] KEHC 3376 (KLR)**, where the Court upheld reliance on entries contained in a death certificate. 4. **SPECIAL DAMAGES** 5. The Appellants submitted that the Trial Court made two (2) factual errors in rejecting certain items of special damages. They asserted that the Trial Court found that the receipt for Ad litem services was blank on bothe the sum in figures and words and, therefore, not specifically proved. They argued that that finding was incorrect as the receipt clearly indicated the sum of Kshs 45,000 for Ad Litem services. 6. They further pointed out that Trial Court also rejected a receipt for Kshs 11,000/= on the basis that it was incomplete regarding the payee and the item or service purchased. In that regard, they submitted that that finding was unsupported by the evidence as the said receipt was from Vima Investments for Kshs 11,000/= for the purchase of the casket. They added that the payment was made by Mr Samuel Mwema who was one of the Appellants in this matter. 7. It is trite law that special damages must be specifically pleaded and proved. In their Amended Plaint dated 1st August 2022 and filed on 2nd August 2022, the Appellants pleaded for Kshs 40,000/= for Advocates fees on obtaining Ad Litem and Kshs 11,000/= as cost of coffin among other non-contested items. 8. A perusal of the Record of Appeal that was filed herein indicated the receipts as submitted by the Appellants herein. However, a keen look at what was presented at the Trial Court in the Lower Court file clearly showed that the receipt for Ad litem had no amount indicated as held by the Learned Trial Magistrate. Additionally, the receipt allegedly for purchase of coffin was incomplete as held by the Learned Trial Magistrate. 9. In the premises, this court found that the Appellants were being dishonest by filing different receipts at the appellate level that did not tally with what was filed at the lower court. In the foregoing, this court was not persuaded that the Trial Court erred leaving out the aforesaid two (2) receipts. 10. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4) and (5) of the Memorandum of Appeal were not merited and the same be and are hereby dismissed. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was dated 29th July 2024 and lodged on 12th August 2024 was not merited. 2. As the Appellants were not successful in their Appeal herein, they will bear the costs of the Appeal herein. 3. Orders accordingly. **DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH** # DAY OF JUNE 2026 **………………………………** **R. NYAKUNDI** **JUDGE**