Nkirote (Suing as the legal representative of the Estate of Fredrick Murithi Mithika – Deceased) v M’Imanyara & another (Civil Appeal E205 of 2023) [2026] KEHC 11043 (KLR) (22 July 2026) (Judgment)

Nkirote (Suing as the legal representative of the Estate of Fredrick Murithi Mithika – Deceased) v M’Imanyara & another (Civil Appeal E205 of 2023) [2026] KEHC 11043 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11043 (KLR) Republic of Kenya In the High Court at Meru Civil Appeal E205 of 2023 SM Githinji, J July 22, 2026 Between Linet Nkirote (Suing As The Legal Representative Of The Estate Of Fredrick Murithi Mithika – Deceased) Appellant and Paul Kimathi M’Imanyara 1st Respondent Irene Nkirote Kanithi 2nd Respondent (Appeal from the Judgment of the Learned Chief Magistrate Hon. J. M. Njoroge (C.M) delivered on 25/10/2023 in Meru CMCC No. E267 of 2022,) Judgment 1.This Appeal arises from the Judgment of the Learned Chief Magistrate Hon. J. M. Njoroge (C.M) delivered on 25/10/2023 in Meru CMCC No. E267 of 2022, wherein Judgment was entered in the following terms:-1.Liability by consent 85%: 15%.2.Pain and Suffering Kshs 20,000/-3.Loss of Expectation of life Kshs 100,000/-4.Loss of Dependency Kshs, 1,152,000/-5.Special Damages Kshs 165,550/-. 2.Aggrieved by the said Judgment, the Appellant set forth the following grounds in the Memorandum of Appeal dated 20th November, 2023:1.The Learned Magistrate erred in law and fact by failing to consider the Plaintiff’s evidence and submissions on age and loss of dependency awarding Kshs 1,152,000/- as general damages for loss of dependency which amount was inordinately low in the circumstances.2.The Learned Magistrate erred in law and fact in awarding Kshs. 20,000/- as general damages for pain and suffering against the weight of the evidence, Appellant’s submissions and applicable Judicial precedent which amount was inordinately low in the circumstances and against set Judicial precedent.3.The Learned Magistrate erred in law and fact by failing to appreciate that the Plaintiff had proven special damages as pleaded by production of receipts without objection by the Defendant hence was entitled to the same in full.4.The Learned Magistrate erred in law and fact in failing to pay due regard to the Plaintiff’s submissions and decision filed alongside which were the guiding principles on the reasonable amount in damages in the suit he was determining. 3.The parties entered a consent on liability at the ratio of 85:15, produced the documents filed without calling the makers, adopted their witness statements and closed their respective cases without calling any witnesses. Submissions on Appeal 4.The Appellant, through the Firm of Gikonyo & Ngugi Advocates, filed submissions dated 29/9/2025. Counsel cited Kemfro Africa Ltd t/a Meru Express Services & Another –vs- A. M. Lubia & Another (1982-88) 1 KAR 727, on when an Appellate Court can interfere with a trial Court’s award of damages. Counsel faulted the trial Court for awarding Kshs. 1,221,920 for loss of dependency without giving any clear breakdown on how the same had been arrived at, and relied on Hellen Waruguru Waweru (Suing as the Legal representative of the Estate of Kavin Waweru) –vs- Kiarie Shoe Stores Ltd (2015) eKLR. According to Counsel, the trial Court erred in awarding special damages of Kshs. 165,550/- yet the proved special damages were Kshs 276,230/-. Counsel submitted that an award of Kshs 200,000/- for loss of expectation of life would suffice, and cited Jackson Kariuki Ndegwa (Suing as the Administrator of the estate of Fabius Munga Kariuki) –vs- Peter Kungu Mwangi (2016) eKLR. Counsel opined that a sum of Kshs 200,000/- would be reasonable and sufficient for pain and suffering, and cited Beatrice Mukulu Kang’uta & Another –vs- Silverstone Quarry Limited & Another (2016) eKLR. Counsel faulted the trial Court for failing to adopt the minimum wage as a point of reference, thus arriving at a manifestly low award for loss of dependency, and cited Patrick Kanai Waweru suing as legal representative of the estate of Grace Njoki Kanai –vs- George Ogwilla & 2 Others (2016) eKLR, Board of Govenors of Kangubiri Girls High School & Another –v- Jane Wanjiku & Another (2014) eKLR, Judy Njura Kathuri & Another (suing as the legal representative and administratrix of the estate of Thomas Vuhiru Agede Kenya Power & Lighting Company Limited (2017) eKLR, Shem Nyakwana –vs- Adelphi Auctioneers & Another (2020) eKLR, Albert Odawa –vs- Gichimu Githenji (2007) eKLR and Daniel Muteti –vs- Mutua Mbuvi & Another (2021) eKLR. 5.The Respondent, through the firm of Gertrude Matata, Waithaka & Associates, filed submissions dated 21/4/2026. Counsel asserted that the respective awards made for special damages, for pain and suffering and loss of expectation of life were reasonable, and cited Kimunya Adednego Alias Abednego Munyao –v- Zipporah S. Musyoka & another (2019) eKLR. Counsel argued that the alleged earnings of the deceased of Kshs 1,000 daily were not proved, and cited Abdalla Rubeya Hemed v Kayuma Mvurya & Another (2017) eKLR, Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2005) 1 EA 334 and Gerald Mbale Mwea v Kariko Kihara & Another (1997) KLR. Counsel asserted that a global sum of Kshs 800,000/- would suffice, and cited Moses Mairua Muchiri v Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased) (2016) eKLR, Mary Khayesi Awalo & Another v Mwilu Malungu & Another (1999) eKLR, Eston Mwirig Ndege & Anor v Patrick Gitonga Mbaya (2018) eKLR and Ann Kanja Kithinji (suing as the legal representative of the Estate of Patrick Koome (Deceased) & 2 Others v Jacob Kirari & another (2018) eKLR. Analysis and Determination 6.This being a first Appeal, the Court is obligated to reconsider and re-evaluate the evidence adduced in the trial Court and draw its own conclusions. 7.In Selle & Another v Associated Motor Boat Co. Ltd (1968) EA, the Court held as follows: “This Court is not bound necessarily to accept the findings of fact by the Court below. An Appeal to this Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 8.I have considered the appeal herein, the trial Court’s Judgment, which is the subject of this appeal, as well as the submissions by Counsel. 9.From the grounds of appeal, the issue for determination is whether the awards for loss of dependency, pain and suffering were inordinately low. 10.The principles to be considered by an Appellate Court in deciding whether to disturb the trial Court’s assessment of damages were set out by the Court of Appeal for East Africa in the locus classicus case of Butt v Khan (1978) eKLR thus; “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.” 11.On pain and suffering, it is conceded that the deceased died on the same day, and the sum of Kshs 20,000/- was therefore proportionate to the paid and suffering he underwent. 12.The principles which ought to guide a Court in awarding damages in fatal accident claims under the head of loss of dependency were extensively dealt with by Ringera, J (as he then was) in Marko Mwenda v Bernard Mugambi & Another, Nairobi HCCC No. 2343 of 1993 that: “In adopting a multiplier the Court has regard to such personal circumstances of both the deceased and the dependants as age, expectations of earning life, expected length of dependency and vicissitudes of life. The capital sum arrived at by applying the multiplicand to the multiplier is then discounted to allow for the fact of receipt in a lump sum at once rather than periodical payments throughout the expected period of dependency. The object of the entire exercise is to give the dependants such an award as would when wisely invested be able to compensate the dependants for the financial loss suffered as a result of the death of the deceased… The multiplier approach is just a method of assessing damages and not a principle of law or dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the ages of the dependants, the net income of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are unknown or are knowable without undue speculation. Where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do. Such sacrifice would have to be made if the multiplier approach was insisted upon in this case.” 13.The Appellant recorded in her statement dated 13/8/2022 that, “Prior to his death, Fredrick Murithi Mithika (deceased) was a motor cycle rider offering transport and a casual labourer earning approximately Kshs 1,000 per day.” 14.Without any evidence to ascertain the actual earnings of the deceased, the trial Court ought to have adopted the minimum wage of Kshs 13,572/- for an unskilled labourer, as the multiplicand. In view of the foregoing, I find that the multiplicand of Kshs 8,000/- adopted by the trial Court was inordinately low. It is reasonable to infer that a healthy man with a family to support would likely have earned a significantly higher income, even though informally engaged. Courts have reiterated that the absence of receipts or other documentary evidence of earnings does not equate to the absence of income, as many people, particularly those in the informal sector, generate earnings that are nonetheless undocumented. 15.In Jacob Ayiga Maruja & Another v Simeon Obayo (2005) KECA 202 KLR, the Court of Appeal espoused that, “We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the Respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed.” 16.The record shows that the deceased was aged 35 years at the time of his death. In view of the vicissitudes and vagaries of life, I thus find that the multiplier of 18 years was apt. 17.I further find that the dependency ratio of 2/3 for a deceased who supported his wife and 3 minors was reasonable. 18.The award for loss of dependency shall therefore be Kshs 13,572 x 18 x12 x 2/3 =1,954.368/-. 19.The Appellant lamented that the special damages awarded of Kshs 165,550/- were noticeably less than the expenses incurred. 20.I find that the trial Court misdirected itself in awarding Kshs 100,000/- as funeral expenses, notwithstanding the receipt from Neerod Executive Car Hire Services dated 30/3/2021 showing the Appellant had incurred a total of Kshs. 200,500/- thereunder. The special damagesawardable will thus be Kshs 200,500 + Kshs. 50,000 + Kshs 15,000 + Kshs 550 = 266,050. 21.The trial Court is faulted for failing to consider the Appellant’s submissions and authorities. That fault is misconceived because submissions cannot take the place of pleadings, and their non-consideration cannot in itself be a basis to overturn a trial Court’s decision. Moreover, the mere fact that the trial Court was ultimately dissuaded by a submissions of the Appellant together with the authorities she cited does not imply that they were disregarded altogether. 22.For the foregoing reasons, I find that the appeal is merited and it is hereby allowed in the following terms:1.The award of Kshs 1,152,000/- for loss of Dependency is hereby set aside and substituted with Kshs 1,954,368/-.2.The special damages of Kshs 165,550 are hereby set aside and substituted with Kshs 266,050/-.3.The other awards remain unchanged. 4.Parties to bear own costs of this appeal. DATED AND DELIVERED AT MERU THIS 22ND DAY OF JULY, 2026.S.M. GITHINJI –JUDGE22/7/2026In the presence of:-Mr. Gikonyo for the Appellant.Miss Njoki for the Respondent.Miss Njoki:-I seek for 30 days stay of execution.Court:-30 days stay of execution prayer is hereby granted. DATED AND DELIVERED AT MERU THIS 22ND DAY OF JULY, 2026.S.M. GITHINJI –JUDGE22/7/2026