https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12196

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E072 OF 2024** **JOSEPH MWAI MAINA AND EUNICE WANGARI MWAI (suing on their Behalf and as the personal representatives of the estate of Lucy Wanjira Kamondo – Deceased)…………............................................................................APPELLANTS** **VERSUS** **KENYA FOREST SERVICE………………….....…………………RESPONDENT** *(Appeal from the judgment and Decree of Hon. Cheruto C. Kipkorir (P.M) delivered on 5/6/2024 in Kerugoya CMCC No. E150 of 2023)* **JUDGMENT** 1. By a Plaint dated 18/10/2023, the Appellants sued the Respondent seeking damages under the Law Reform Act and Fatal Accidents Act and loss of consortium, special damages and costs of the suit plus interest. The Appellants pleaded that on or about 27/5/2023 the deceased was a lawful pedestrian along Sagana - Karatina road when the Respondent’s servant or driver negligently drove motor vehicle registration number KDA 017 P that it lost control and hit the deceased occasioning her fatal injuries. The deceased, aged 53 years at the time of her death was a shopkeeper and a maize, beans, coffee and dairy farmer earning approximately Ksh. 30,000 per month. 2. The Respondent denied the claim vide its statement of defence dated 17/11/2023 and prayed for the Appellants’ suit to be dismissed with costs. 3. The parties recorded a consent judgment on liability at the ratio of 80:20 in favour of the Appellants against the Respondent, and upon full hearing on quantum, the trial court awarded general damages under the Fatal Accidents Act of Ksh. 785,422.40, general damages under the Law Reform Act of Ksh. 180,000 and special damages of Ksh. 550 together with costs and interest. The appeal 1. On appeal, the Appellants vide their memorandum of appeal dated 28/6/2024 set out 4 grounds as follows: 1. *The Learned trial Magistrate erred in law and fact in failing to consider adequately, or at all, the totality of the evidence that was tendered on quantum, and in so doing he arrived at an erroneous finding on quantum.* 2. *The learned trial magistrate erred in law and fact in the manner that he assessed damages for loss of dependency by adopting a multiplier of 7 years which was low considering the deceased had a young family.* 3. *The learned trial magistrate erred in law and fact in the manner that she declined to award burial expenses which were awardable.* 4. *The learned trial magistrate erred in law and fact in failing to consider the Appellants’ submission on quantum and in so doing she arrived at an erroneous decision.* Duty of the Court 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). 2. The case was heard by way of written submissions and the Appellants’ documents produced by consent, without calling the makers. Submissions on Appeal 1. The Appellants cite *Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123,* on the duty of the first appellate court. They fault the trial court for adopting a multiplier of 7 years notwithstanding the fact that the deceased was survived by a husband and 3 young children, and cite *Sokoro Plywood Limited & Another v Njenga Wainaina [2007] eKLR*. They urge the court to adopt a multiplier of 20 years or alternatively award a global sum of Ksh. 2,000,000, and cite *Nzioka (Suing on her own behalf and as Administrator of the Estate of Gideon Mwanthi Nguyo - Deceased) v Mwangangi & another (Civil Appeal 283 of 2021) [2022] KEHC 15711 (KLR) and Yaf Japan Motors Limited & 2 others v Wambugha & another (Civil Appeal E025 of 2022) [2023] KEHC 22438 (KLR)*. They further fault the trial court for failing to make an award for burial expenses as it held that they were special damages unsupported by receipts. They maintain that it was common fact that expenses were incurred to bury the deceased, the absence of receipts notwithstanding, and cite *Jacob Ayiga Maruja & Another v Simeon Obayo (2005) eKLR and Premier Diary Limited v Amarjit Singh Sagoo & Another (2013) eKLR*. 2. The Respondent lauds the trial court for correctly factoring in the age of the deceased, work-life expectancy, and contingencies of life in adopting the multiplier of 7 years, and cites *Kenya Power & Lighting Co.Ltd v Maria Kerubo Kianga & Esbourn Mogaru Kianga (Suing as legal administrators of the Estate of Peter Kianga Okoti (Deceased)[2021] KEHC 5148 (KLR), Mwiti & another v Kanyua (Suing as legal representative of the estate of Joseph Kirya Mburi (Deceased))[2022] KEHC 10924 (KLR), Patrick Barasa v Serah Wambui Karumba (Suing as the legal representative to the estate of the late Albert Chebaya) [2019] KEHC 8017 (KLR) and Samuel Kimotho Gitonga & another v Margaret Wayua Kavuu & another [2020] eKLR*. It urges that while funeral expenses are legitimate and awardable, the reasonableness of such claims must be assessed against the evidence provided, and cites *Jacob Ayiga Maruja & another v Simeon Obayo (Supra)*. Analysis and determination 1. From the grounds of appeal as framed, the 3 issues for determination are whether the multiplier of 7 years was unreasonable, whether funeral expenses were awardable and whether the Appellants’ submissions and authorites were considered. 2. This court has previously considered the principles for appellate interference with an award of damages by a trial court in *Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR* as follows: “The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in *Nance v. British Columbia Electric Railway Co. Ltd.* (1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P. and Newbold, J.A. agreed) in *Henry H. Ilanga v. M. Manyoka* [1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v Lovell, [1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601.” 1. Dependency is a matter of fact and must be proved by evidence. The court agrees that if there is no evidence from which dependency may be proved or inferred, a claim in dependency should fail. 2. The 1st Appellant recorded in his statement dated 18/10/2023 that, *“My wife was aged 53 years at the time of her death was a shopkeeper and a farmer farming maize, beans, coffee and dairy farming and was earning approximately Kshs. 30,000 /= per month. She enjoyed good health and supported her family. As a result of his death, I and the other beneficiaries have suffered loss as she was our only source of livelihood.”* 3. In addition to farming, the deceased was evidently a businesswoman supporting her husband, the 1st Appellant herein, and their 3 school going children. The fact that no documentary evidence of income was led cannot be the only reason to decline awarding damages where loss and support from the deceased is proved. In those circumstances, the trial court properly declined to speculate on the deceased’s alleged earnings and instead adopted the minimum wage of Ksh. 14,025.40 as the multiplicand and a dependency ratio of 2/3. The bone of contention is the adoption of a multiplier of 7 years, which according to the Appellants, was an error, as it did not take into consideration the age of the children and the fact that the private sector had no retirement age. 4. In *Amazon Energy Limited v Josephine Martha Musyoka & another [2019] KEHC 6359 (KLR),* the court *(Korir J)* substituted an award of Ksh. 2,500,000 for loss of dependency with Ksh. 1,200,000 for the reason that the deceased was 56 years old and his only child was in college. 5. There is no doubt that the deceased could have continued gainful employment beyond the mandatory retirement age of 60 years, given that she was in the private sector and with 3 children aged between 8 – 16 years, dependency was ordinarily expected to subsist for a considerable period. 6. This court is thus satisfied that the multiplier of 7 years was on the lower side, and the same is substituted with 10 years. The award of damages under the Fatal Accidents Act will therefore be Ksh. 14,025.40 × 10 × 2/3 × 12 = Ksh. 1,122,032. 7. On the trial court’s refusal to award funeral expenses, for want of receipts, this court takes judicial notice of the fact that bereaved families undeniably incur expenses in arranging and conducting the funeral. To anticipate strict proof in such an instance would be unrealistic owing to the exigencies and practical realities attendant upon bereavement. 8. As counseled by the Court of Appeal in *Premier Diary Limited v Amarjit Singh Sagoo & another [2013] KECA 95 (KLR)*, cited by the Appellants, thus; *“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000/= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.”* 1. This court therefore finds that a sum of Ksh. 150,000 is a reasonable award for funeral expenses, and the same is hereby awarded. Consideration of the Appellants’ submissions 1. The Appellants fault the trial court for disregarding their submissions and authorities. That fault is misconceived because submissions, however persuasive, cannot take the place of pleadings, and their non-consideration cannot in itself be a basis to overturn a trial court’s decision. Besides, the mere fact that the trial court was ultimately dissuaded by the submissions of the Appellants together with the authorities they cited does not imply that they were disregarded altogether. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the appeal to be merited, and it is hereby allowed in the following terms: 1. The multiplier of 7 years is hereby set aside and substituted with 10 years. The award of damages under the Fatal Accidents Act will therefore be Ksh. 14,025.40 × 10 × 2/3 × 12 = Ksh.1,122,032, subject to the 20% contribution. 2. The Appellants are awarded Ksh. 150,000 for funeral expenses. 3. The other awards remain unchanged. 2. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mwangi Maina for appellant Ms. Abobo for the Respondent.