https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11345

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E096 OF 2023** **KWICK SHUTTLE SERVICES LIMITED...............................APPELLANT** **VERSUS** **PROTUS SIMIYU LIAMBILA & RHODAH NANJALA SIMIYU** **(Suing as the Legal Administrators and Representatives of** **the Estate of VIVIAN NAFULA SIMIYU Deceased) ................................................RESPONDENTS** ***(Being an appeal from the Judgment and Decree of Hon. G. Adhiambo (SPM) delivered on 18th August 2023 in Kimilili SPMCC No. E031 of 2021)*** **JUDGMENT** 1. This is an appeal against the judgment of the trial court (Hon. G. Adhiambo, SPM) delivered on 18th August 2023 in **Kimilili SPMCC No. E031 of 2021**, in which the Respondents' claim under **the Fatal Accidents Act, Cap. 32 and the Law Reform Act, Cap. 26** was allowed against the Appellant. The Appellant, dissatisfied only with the award on quantum, more particularly the award made under the head of loss of dependency, lodged the instant appeal vide a Memorandum of Appeal dated 4th September 2023. 2. By a Plaint dated 15th January 2021 and filed on 5th March, 2021, the Respondents sued the Appellant and a second defendant, Nafas World Auto (K) Limited, averring that on or about 11th December 2020, the deceased, Vivian Nafula Simiyu, then aged seven (7) years, was lawfully walking at the verge of the road along the Webuye–Kitale road at Shandumba area when the Appellant's agent, servant and/or driver so negligently drove Motor Vehicle Registration No. KCN 765R, which lost control and knocked the deceased, causing her to sustain serious bodily injuries from which she succumbed. 3. The Respondents pleaded that the deceased was survived by the following dependants: Protus Simiyu Liambila (father), Rhodah Nanjala Simiyu (mother) and Michael Simiyu (brother). The Respondents further pleaded, at paragraph 8, that the deceased was, at the time of her death, aged seven years and a pre-primary pupil at Legacy Academy. 4. The suit proceeded to full trial, at the conclusion of which the trial court, by its judgment delivered on 18th August 2023, found the Appellant 100% liable and made the following awards: **a. Pain and Suffering – Kshs. 10,000/=** **b. Loss of Expectation of Life – Kshs. 100,000/=** **c. Loss of Dependency – Kshs. 1,200,000/=** **d. Special Damages – Kshs. 94,550/=** **e. Total – Kshs. 1,404,550/=, plus costs and interest.** 1. Aggrieved solely by the award made under the head of loss of dependency, the Appellant preferred this appeal on the grounds; 1. **That the learned trial magistrate erred in law and in fact by making an award for lost years and/or loss of dependency under the Fatal Accidents Act in view of the evidence adduced at trial despite dependency not having been proved** 2. **That the learned trial magistrate erred in law and fact that despite the relationship between the deceased and the Respondents (as administrators) not having been proved, contrary to Section 4(1) of the Fatal Accidents Act;** 3. **That the learned trial magistrate erred in law and in that despite neither a Chief's Letter nor the Birth Certificate of the deceased having been produced as exhibits to prove the relationship between the deceased and the Respondents;** 4. **That the learned trial magistrate erred in law and fact in the alternative, by awarding Kshs. 1,200,000/= as an inordinately high and manifestly excessive sum** 5. **That the learned trial magistrate erred in law and fact by failing to consider the Appellant's written submissions on quantum** 6. **That the learned trial magistrate erred in law and fact by making an award that was manifestly excessive in respect of a deceased aged seven years.** 2. It is not in dispute, and the Respondents concede in their submissions, that liability was settled at the trial as 100% against the Appellant, and that finding has not been challenged on appeal. The sole controversy before this Court is confined to the quantum, specifically the propriety of the award made under the head of loss of dependency. **Submissions** 1. The court gave directions that the appeal be canvassed by way of written submissions. Both parties filed their submissions. **Appellant's Submissions** 1. Learned Counsel for the Appellant submitted that under **Section 4(1) of the Fatal Accidents Act**, an action brought under the statute is for the benefit only of the wife, husband, parent and child of the person whose death was so caused, and that it is the burden of the party alleging dependency to prove the same on a balance of probabilities. 2. Counsel submitted that, beyond the bare pleading at paragraph 7 of the Plaint, no document was adduced before the trial court to demonstrate the relationship between the deceased and the Respondents. 3. It was submitted that no Chief's Letter was produced as an exhibit, that no Chief's Letter featured at all in the Respondents' List of Documents filed on 5th March 2023, and that no birth certificate was availed to show that the 2nd Respondent, Rhodah Nanjala Simiyu, was in fact the deceased's mother. Counsel urged that the grant of letters of administration ad litem obtained by the Respondents did not, of itself, constitute proof of the underlying relationship or of dependency. 4. In support, Counsel relied on **Kenya Power & Lighting Co. Ltd v Clement Likobele Shikondi (Personal Representative of the Estate of Desmond Tutu Likobele, Deceased) [2018] eKLR**, where Musyoka J. set aside an award for loss of dependency on the basis that dependency is a question of fact requiring evidence sufficient to guide the court, and that it is not enough for a party to throw a few sketchy facts before the court and thereafter leave it to the court to fill in the gaps. 5. Counsel further relied on **Tom Oluoch Oloo v African Safari Club [2009] eKLR, Cherotich v Anzal Communications Ltd (Civil Appeal 98 of 2022) [2024] KEHC 2175 (KLR), Rahab Wanjiru Nderitu v Daniel Muteti & 4 others [2016] eKLR, and Stephen Kivuti Kiura v Anastacia Murugi Muthui & another [2021] eKLR,** on the consistent proposition that a claimant under the Fatal Accidents Act ought, at the minimum, to produce a Chief's Letter or a birth or marriage certificate to prove the claimed relationship with the deceased, and that a grant of representation, standing alone, does not discharge that burden. 6. In the alternative, and without prejudice to the foregoing, Counsel submitted that were the Court to find that dependency had been proved, the sum of Kshs. 1,200,000/= was manifestly excessive in respect of a deceased minor aged seven years who was not engaged in any income-generating activity. 7. Counsel urged the Court to adopt the global award approach rather than the multiplier/multiplicand approach, relying on **Kitale Industries Ltd & another v Zakayo Nyende & another [2018] eKLR**, and proposed a global award of Kshs. 200,000/=, citing **H K M (suing on behalf of the estate of the deceased son) v Francis Mwongela Ncebere [2017] eKLR** (global award of Kshs. 200,000/= for a school-going seven-year-old) and **Jacob Ndirangu Kimani v D K M & A K M (suing as administrators of the Estate of M M, Deceased) [2019] eKLR** (an award of Kshs. 1,000,000/= reduced on appeal to Kshs. 500,000/= in respect of a deceased seven-year-old minor). **Respondents' Submissions** 1. Learned Counsel for the Respondents opposed the appeal in its entirety and urged the Court to uphold the trial court's award. It was submitted that, liability having been settled at 100% and not appealed, the only issue was whether the learned trial magistrate reached the right conclusion on quantum. 2. Counsel submitted that the trial court properly considered the evidence on record and gave a reasoned explanation for each head of damages awarded, and that the awards for pain and suffering (Kshs. 10,000/=) and loss of expectation of life (Kshs. 100,000/=) were conventional and within the court's discretion. On the award for loss of dependency, Counsel submitted that the trial court adopted a global approach appropriate to the age of the deceased and that the resultant figure was not so inordinately high as to represent an entirely erroneous estimate. 3. Counsel relied on ***Butt v Khan* (1981) KLR 198** for the settled principle that an appellate court will not disturb an award of damages unless if it is shown that the trial court proceeded on wrong principles, or misapprehended the evidence in some material respect, and so arrived at a figure that was either inordinately high or inordinately low. It was submitted that no such error had been demonstrated in this case, and the Respondents prayed that the appeal be dismissed with costs. **Determination** 1. Before turning to the issues for determination, it bears restating the duty of this Court sitting as a first appellate court. This Court, as was observed in **Selle vs Associated Motorboat Company Ltd [1968] E.A. 123**, is duty-bound to re-evaluate the evidence tendered before the trial Court and reach its own independent conclusions. In this case, it was observed; “.... **An appeal from a High Court is by way of rehearing, and the Court of Appeal is a first appellate court. It is not sufficient to merely scrutinize the evidence and say whether the trial Judge was right or wrong. An appellate court is not bound to accept the trial Judge’s findings 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.”** 1. Having considered the Record of Appeal and the rival submissions of the parties, I find that the following issues arise for determination: 1. **Whether dependency was proved in line with the provisions of Section 4(1) of the Fatal Accidents Act, Cap. 32;** 2. **Whether the trial court made an award under the head of loss of dependency in the absence of any proof;** 3. **In the alternative, whether the award of Kshs. 1,200,000/= as loss of dependency was manifestly excessive; and** 4. **Who shall bear the costs of the appeal?** 2. On the first issue, **Section 4(1) of the Fatal Accidents Act, Cap. Section 32 of the Laws of Kenya** provides that; **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; 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:** 1. It is trite that dependency is a question of fact, and the burden of proving it, on a balance of probabilities, lies squarely on the party who asserts it. 2. I have carefully perused the Record of Appeal, and in particular the Plaint dated 15th January 2021, as well as the Plaintiffs' List of Documents referenced therein. At paragraph 7 of the Plaint, it is pleaded that her father, mother and brother survived the deceased. That pleading is indeed not however, supported by any evidence as has been submitted by Counsel for the Appellant. No birth certificate, the child’s baptismal card, Chief’s letter, school documents and/or any other relevant evidence was produced to establish that the 1st and 2nd Respondents were indeed the biological parents of the deceased as averred. 3. The grant of letters of administration *ad litem* obtained by the Respondents, while sufficient to clothe them with the requisite *locus standi* to bring the suit, does not, without more, constitute proof of the fact of dependency or of the underlying familial relationship for purposes of an award under the **Fatal Accidents Act**. This position finds support in **Kenya Power & Lighting Co. Ltd v Clement Likobele Shikondi (Personal Representative of the Estate of Desmond Tutu Likobele, Deceased) [2018] eKLR**, herein cited by Counsel for the Appellant where Musyoka J. set aside a trial court's award for loss of dependency, observing that; "**Dependency is a matter of fact. The party claiming damages under the Fatal Accidents Act must marshal evidence that would provide the facts sufficient to guide the court. It's not enough for the party to throw in a few sketchy facts before the court and thereafter leave it to the court to fill in the gaps. I do not think that sufficient basis was laid for the award made on loss of dependency**." 1. Similarly, in **Tom Oluoch Oloo (suing as the administrator and legal representative of the Estate of George Ochieng Ngoche, Deceased) v African Safari Club [2009] eKLR,** the High Court dismissed an appeal seeking to overturn a trial court's refusal to make an award under the Fatal Accidents Act for failure on the part of the litigant to avail a Chief's Letter or birth certificate to prove that he was the father of the deceased. This Court finds the reasoning in that decision, and in the **Shikondi case(supra)** sufficiently persuasive and directly applicable to the facts before it. 2. The court also finds the case of **Cherotich v Anzal Communications Ltd (Civil Appeal 98 of 2022) [2024] KEHC 2175 (KLR),** where, citing with approval **Rahab Wanjiru Nderitu v Daniel Muteti & 4 others [2016] eKLR and Stephen Kivuti Kiura v Anastacia Murugi Muthui & another [2021] eKLR,** the Court held that; "**Any person who has a beneficial interest or otherwise in a deceased's estate may apply for grant of Letters of Administration. It is not always that the person so applying is a wife or husband, or indeed a relative of the deceased. Stating in evidence that one is a wife or husband of a deceased person without proof is not enough.”** 1. In that case, the Court found that had the claimant truly been the widow of the deceased, it would have been a simple matter to produce a marriage certificate, a Chief's letter, or the children's baptismal or school certificates, and that the failure to do so left the court with no option but to find that dependency had not been proved. 2. Similarly, in this case, no document, whether a birth certificate, a Chief's Letter, or any other form of corroborative evidence, was placed before the trial court to establish either the fact of the relationship pleaded at paragraph 7 of the Plaint, or the fact and extent of dependency said to arise from it. 3. I further note that unlike the position in some of the authorities cited, the Respondents here did not even plead or lead evidence, through the testimony of either the 1st or 2nd Respondent, addressing how the alleged dependants depended upon the deceased, a matter of some significance given that the deceased was herself a school-going minor of seven years with no independent means. 4. In this regard, I am satisfied, on a re-evaluation of the trial court record, that the Respondents did not discharge the burden placed upon them under **Section 4(1) of the Fatal Accidents Act** to prove, on a balance of probabilities, that they were dependants of the deceased within the meaning of the Act. It follows that the trial court erred in making an award of Kshs. 1,200,000/= under the head of loss of dependency in the absence of such proof. Grounds 1, 2, 3 and 4 of the Memorandum of Appeal accordingly succeed. 5. On the second issue, having found that dependency was not proved at all, it is strictly unnecessary for this Court to determine, in the alternative, whether the sum awarded under this head was excessive. 6. I nonetheless observe, for the sake of the completeness of the record, that had dependency been established, the deceased being a minor of seven years not engaged in any income-generating activity, the trial court as guided by the global award approach rather than a strict multiplier/multiplicand computation, properly directed itself in determining the award under this head as was held in **Kitale Industries Ltd & another v Zakayo Nyende & another [2018] eKLR**. 7. The above said, as guided by the case of Selle Motorboat(supra) I have re-considered and re-evaluated the evidence pertaining to this case in its totality and reached the following conclusion; it is not in dispute that the deceased was a minor aged 7 years, was school going, and that she died in a road traffic accident where liability was apportioned at 100% against the Appellant. The assertion that was active and in good health has not been rebutted at all. 8. This being the case, it is only fair to conclude that the deceased had a reasonable, justifiable and innate expectation, even taking into consideration the vagaries, uncertainties, vicissitudes and unpredictably of life, to live a full, happy, heathy and rewarding life merely by reason of the fact that she had born into a world and a country where it would be fair to state, that by dint of the fact that the retirement age of its civil servants is placed at 60 years, then the average life expectation of any individual born into would reasonably be presumed at 60-65 years. 9. That this life was cut short, way before even the deceased could attain the age of adolescence, then move to the age of majority and mature into an adulthood, let alone reach the average life expectancy, is not in dispute. This being the case, I am of the very well considered opinion that notwithstanding the fact that generally, awards under this head fall within the range of Ks. 100,000/= to Ks. 300,000/=, the deceased minor herein deserves higher award than the Ks. 100,000/= under the heading of loss of expectation of life awarded by the trial court, for the reasons aforesaid. In this regard, I will move the dial a notch higher from the traditional amounts herein stated and award the deceased a sum of Ks. 500,000/= under this head of Loss of Expectation of Life. 10. Regarding costs, they follow the event, except that a court retains discretion to depart from this rule if the justice of the case necessitates such a departure. Having determined that the appeal is successful solely on the limited issue of proof of dependency and given that the remaining components of the trial court's award, including liability, damages for pain and suffering, loss of expectation of life, and special damages, remain unaltered and unchallenged, I am of the view that each party should bear its own costs incurred during the appeal. 11. For the foregoing reasons, I find that this appeal is merited to the extent set out below and I make the following orders; The appeal against the trial court's judgment delivered on 18th August 2023 in Kimilili SPMCC No. E031 of 2021 is now hereby allowed in part 1. **That he finding on liability at 100% against the Appellant is now hereby upheld.** 2. **That the award of Ks. 1,200,000/= made by the trial court under the head of loss of dependency is now hereby set aside in its entirety.** 3. **That the awards of Ks. 10,000/- for pain and suffering is now hereby upheld** 4. **That the award of Ks. 500,000/= for loss of expectation of life is now hereby upheld** 5. **That the award of Ks. 94,550/= in Special Damages is now hereby upheld** 6. **Accordingly, the entirety of the judgment sum is now hereby varied from Ks. 1,404,550/= to Ks. 604, 550/- together with costs and interest thereon at court rates from the date of the trial court's judgment until payment in full** **e. Each party shall bear its own costs of this appeal.** **Read Dated and Signed at BUNGOMA on 23rd JULY 2026.** **E. OMINDE** **JUDGE**