https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10004

Mwangi v Ndini (Suing as the legal representative of the Estate of Veronicah Karingi Ndini - Deceased) (Civil Appeal E284 of 2025) [2026] KEHC 10004 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10004 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E284 of 2025 BW Murunga, J July 9, 2026 Between Margaret Warima Mwangi Appellant and Anastacia Nduta Ndini (Suing As The Legal Representative Of The Estate Of Veronicah Karingi Ndini - Deceased) Respondent (Being an appeal from the judgment and decree of Hon. Charles Mwaniki K., Principal Magistrate, delivered on 26th September 2025 in Ruiru Chief Magistrate's Court Civil Case No. E227 of 2023) Judgment Background 1.On 14th February 2022, Veronicah Karingi Ndini (“the deceased”) died in a road traffic accident along the Thika Superhighway at Ruiru involving motor vehicle registration number KCX 627C, owned by the Appellant. 2.The Respondent, suing as the legal representative of the estate of the deceased, instituted Ruiru CMCC No. E227 of 2023 by a plaint dated 11th May 2023, seeking special damages of Kshs. 21,300/=, general damages under the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26), costs and interest. The Appellant resisted the claim by a statement of defence dated 9th September 2024. 3.On 6th May 2025, the parties recorded a consent in which liability was apportioned at 80:20 in favour of the Respondent, the documents filed were admitted in evidence without calling their makers, and quantum was left for canvassing by way of written submissions. 4.By a judgment delivered on 26th September 2025, the learned trial magistrate awarded the Respondent Kshs. 2,189,038/= for loss of dependency, arrived at by applying a multiplicand of Kshs. 15,201.65, a multiplier of 18 years and a dependency ratio of two-thirds; Kshs. 50,000/= for pain and suffering; Kshs. 100,000/= for loss of expectation of life; and Kshs. 21,300/= as special damages. 5.After deducting Kshs. 150,000/= being the awards under the Law Reform Act, and the Respondent’s 20% contribution, the decree issued for a net sum of Kshs. 1,768,270/= together with costs and interest. 6.Aggrieved, the Appellant preferred the present appeal on nine grounds set out in the memorandum of appeal dated 23rd October 2025, which, in substance, assail the competence of the suit for want of locus standi and the assessment of general damages for loss of dependency. The Appellant’s Submissions 7.Learned counsel for the Appellant submitted that the Respondent lacked the requisite locus standi to institute the suit, in that she merely filed a petition for a grant of letters of administration ad litem but never produced the grant itself. Counsel relied on Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR and Hawo Shanko v Mohamed Uta Shanko [2018] eKLR for the proposition that a suit instituted on behalf of an estate without a grant is incompetent ab initio and incapable of being salvaged. 8.On the dependency ratio, counsel faulted the trial court for adopting two-thirds in the absence of a chief’s letter, birth certificates or any other proof of the existence and extent of dependency, and urged the adoption of one-third, placing reliance on Boru v Onduu [1982-1988] KAR 299. 9.On the multiplicand, counsel submitted that the deceased’s pleaded income of Kshs. 45,000/= per month was never proved, and that while the trial court rightly reverted to the Regulation of Wages (General) (Amendment) Order, 2022, it erred in adopting Kshs. 15,201.65, being the rate applicable to the cities of Nairobi, Mombasa, Kisumu and Nakuru, when the deceased was, on the evidence, domiciled in Thika. Counsel proposed the rate of Kshs. 8,109.90 applicable to all other areas. 10.On the multiplier, counsel contended that 18 years failed to account for the vicissitudes of life and urged 16 years on the authority of Lucy Wambui Kihoro v Elizabeth Njeri Obuong [2015] KEHC 4852 (KLR). The court was urged to allow the appeal with costs. The Respondent’s Submissions 11.Learned counsel for the Respondent submitted that the challenge to locus standi is contradicted by the record: a limited grant ad litem issued on 1st December 2023 by Hon. M. Sudi in Kandara MCSUCC MISC/E069/2022 was filed together with the plaint, appears as item 3 on the list of documents, and was produced as an exhibit pursuant to the consent of 6th May 2025, a fact expressly recorded at paragraph 4 of the impugned judgment. Counsel submitted that the objection, never having been taken before the trial court, is an afterthought by which the appellant is estopped. 12.On quantum, counsel supported the trial court’s exercise of discretion. The dependants were pleaded in the plaint and never specifically traversed in the defence; submissions cannot substitute evidence, per Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR; resort to the statutory minimum wage where income is unproved is sanctioned by Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015] eKLR and Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR; and the multiplier of 18 years was moderate for a deceased aged 31 years. The court was urged to dismiss the appeal with costs. Issues for Determination 13.Having considered the record of appeal, the grounds of appeal and the rival submissions, two issues fall for determination:(i)whether the suit before the trial court was incompetent for want of locus standi; and(ii)whether the learned trial magistrate erred in the assessment of general damages for loss of dependency 14.The latter encompasses the complaints on the multiplicand, the multiplier and the dependency ratio. Analysis and Determination 15.This being a first appeal, the court's mandate is settled. In Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123, the Court of Appeal for Eastern Africa stated, at page 126, that:“An appeal to this Court from a trial by the High 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.” 16.I bear that duty in mind, with the qualification that the trial in this matter proceeded on admitted documents and written submissions, so that this court is in as good a position as the trial court to evaluate the record. 17.On the first issue, the Appellant is correct that locus standi is a point of law going to jurisdiction which may be raised at any stage, even on appeal. This was the position in Mary Wambui Munene v Peter Gichuki King’ara & 2 others [2014] eKLR, where the Supreme Court held, at paragraph 68 that:“The issue, whether these proceedings were a nullity ab initio is an issue that goes to the jurisdiction of this Court to entertain this matter.The question of jurisdiction is a pure question of law.This Court has on several occasions adopted the dictum of Nyarangi J.A in the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd[1989] KLR 1 that it has to be determined from the start, and that where the Court finds it has no jurisdiction, it should down tools. This is the approach this Court adopted when it considered the application for conservatory orders in this matter. We will, therefore, consider this issue of nullity first, as it touches on the jurisdiction of this Court.” 18.A question of jurisdiction is a pure question of law to be resolved on a priority basis. It is equally settled that an administrator cannot maintain a suit on behalf of an estate without a grant. In Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR, the Court of Appeal held that:“…an administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does, the action is incompetent.” 19.The question, however, is one of fact: was there a grant? The record answers it against the Appellant. The list of documents filed contemporaneously with the plaint lists, as item 3, the letters of administration ad litem. 20.By the consent of 6th May 2025, the Appellant agreed that all documents filed be admitted in evidence without calling their makers. The learned trial magistrate, at paragraph 4 of the judgment, recorded that “the certificate of death, police abstract, Post mortem form, motor vehicle copy of records, Letters of administration ad Litem, receipts for expenses and demand notice were produced as exhibits.” 21.The Appellant, who was represented by counsel throughout, never objected to the production of the grant, never raised the Respondent’s capacity in her defence, and indeed compromised liability with the very party whose capacity she now impugns. Trouistik and Hawo Shanko are authority for the incompetence of a suit filed where no grant exists; they are of no assistance where, as here, a limited grant ad litem was obtained, filed and admitted in evidence by consent. 22.A party is bound by the record, and an appellate court cannot be invited to find a fact contrary to what the record plainly discloses. The first issue is answered in the negative: the suit was competent. 23.Turning to the second issue, the principles on which an appellate court interferes with an award of damages are well known. In Kemfro Africa Limited t/a Meru Express Services v Lubia & another (No. 2) [1985] eKLR, Kneller JA stated that:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 24.The same standard was restated in Butt v Khan [1981] KLR 349. Each of the three complaints on the dependency award must therefore be tested against that threshold, and not against the mere possibility that another court might have arrived at different figures. 25.On the dependency ratio, the plaint pleaded, under the particulars pursuant to the Fatal Accidents Act, that the action was brought for the benefit of named dependants: the Respondent herself and three children of the deceased then aged 10, 6 and 2 years. The statement of defence met those particulars with a general traverse and a demand for strict proof; it pleaded no positive case that the deceased had no dependants. 26.The death certificate and the other documents were then admitted by consent, and neither party called evidence. The extent of dependency is, as the Court of Appeal expressed it in Boru v Onduu [1982-1988] KAR 299, a matter of fact:“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyze the available evidence as to how much the deceased earned and how much he spent on his family. There can be no rule or principle in such a situation.” 27.The available evidence before the trial court was that the deceased was a 31-year-old businesswoman survived by three children of tender years. The complaint that the dependants were unproved surfaced for the first time in the Appellant’s written submissions at trial, yet, as the Court of Appeal held in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, “submissions cannot take the place of evidence”, a principle that cuts both ways, and equally bars the Appellant from mounting, through submissions, a factual contest she never joined in her pleadings. 28.The related complaint on the identity of the post-mortem report appears nowhere in the memorandum of appeal and, in any event, the fact of death was independently proved by the certificate of death admitted by consent. 29.On the material before it, a trial court could properly infer that a mother of three young children would devote the greater part of her income to their sustenance. The ratio of two-thirds is the conventional ratio for a breadwinner with a young family, and I discern no error of principle in its adoption. 30.On the multiplicand, the learned trial magistrate found that the pleaded income of Kshs. 45,000/= per month was not proved, and neither party quarrels with that finding. The magistrate was, in my view, right not to treat the absence of documentary proof as fatal. In Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, the Court of Appeal held 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 gainfully employed in the informal sectors…” 31.That approach was affirmed in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Limited [2015] eKLR, where the Court of Appeal endorsed reverting to the applicable Regulation of Wages Order where income is not documented. To that point, the trial court’s reasoning is unimpeachable. 32.Where the judgment falls into error is in the selection of the applicable rate. The Regulation of Wages (General) (Amendment) Order, 2022 prescribes the basic minimum consolidated monthly wage for a general labourer in three territorial tiers: Kshs. 15,201.65 for the cities of Nairobi, Mombasa, Kisumu and Nakuru; Kshs. 14,025.40 for all former municipalities and the town councils of Mavoko, Ruiru and Limuru; and Kshs. 8,109.90 for all other areas. 33.The undisputed evidence placed the deceased squarely within the second tier: the plaint avers that she carried on business in a local market, the certificate of death records her domicile as Thika, a former municipality, and the accident itself occurred at Ruiru, a locality expressly named in the second tier. There was no evidence connecting the deceased to Nairobi, Mombasa, Kisumu or Nakuru so as to attract the rate of Kshs. 15,201.65; equally, there was no basis for relegating her to “all other areas” at Kshs. 8,109.90 as the Appellant proposes. 34.In adopting the cities’ rate, the trial court took into account a statutory bracket that did not apply to the deceased and this court is entitled, and indeed obliged, to interfere to that limited extent. The correct multiplicand is Kshs. 14,025.40. 35.On the multiplier, the selection of a multiplier is a discretionary exercise, and the guiding standard on appellate interference with discretion was stated in Mbogo & another v Shah [1968] EA 93, at page 96, thus:“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice.” 36.The deceased was 31 years old, in good health, with a working life that could ordinarily have extended well beyond two further decades. A multiplier of 18 years already discounts that horizon substantially for the vagaries of life. It is, moreover, telling that the Appellant’s own submissions before the trial court cited Nelson Ndawa Kioko & another v Mombasa Liners [2012] eKLR, in which a multiplier of 18 years was adopted for a deceased who, like the deceased herein, died at the age of 31 years. 37.The Appellant cannot approbate and reprobate. The figure of 18 years was neither a misdirection nor manifestly wrong, and I decline to interfere with it. 38.For completeness, the deduction of the Law Reform Act awards to avoid duplication, in keeping with Kemfro Africa Ltd v A. M. Lubia (1982-88) 1 KAR 727, the awards for pain and suffering, loss of expectation of life and special damages, and the 20% apportionment, were not made the subject of any specific ground of appeal or cross-appeal, and they shall stand as decreed. 39.The consequence is that the appeal succeeds only to the extent of the multiplicand. Substituting Kshs. 14,025.40 while retaining the undisturbed multiplier of 18 years and dependency ratio of two-thirds, the award for loss of dependency recomputes as follows: Kshs. 14,025.40 × 12 months × 18 years × 2/3 = Kshs. 2,019,657.60. Adopting the structure of the decree: adding pain and suffering of Kshs. 50,000/=, loss of expectation of life of Kshs. 100,000/= and special damages of Kshs. 21,300/= yields Kshs. 2,190,957.60; less Kshs. 150,000/= being the damages under the Law Reform Act, the sum is Kshs. 2,040,957.60; less the 20% contribution of Kshs. 408,191.52, the net award is Kshs. 1,632,766.08. Disposition 40.In the result, the appeal partially succeeds, and I make the following orders:a)The appeal against the finding on locus standi, the dependency ratio and the multiplier is dismissed.b)The appeal succeeds to the limited extent that the multiplicand of Kshs. 15,201.65 is set aside and substituted with Kshs. 14,025.40, being the applicable statutory minimum wage under the Regulation of Wages (General) (Amendment) Order, 2022.c)The award for loss of dependency of Kshs. 2,189,038/= is set aside and substituted with an award of Kshs. 2,019,657.60. The net decretal sum, after the deduction of Kshs. 150,000/= under the Law Reform Act and the 20% contribution, shall be Kshs. 1,632,766.08.d)The decree of the trial court is varied accordingly. The awards for pain and suffering, loss of expectation of life and special damages, the costs of the suit in the subordinate court, and interest as decreed, remain undisturbed and shall apply to the decree as varied.e)The appeal having succeeded only in part, each party shall bear its own costs of the appeal.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2026. _________________________________ BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:In the presence of:Ms Mutimba instructed by Kiruki & Kayika for the AppellantBenjamin Kereu instructed by Muturi Njoroge for the RespondentKevin Babu - Court Assistant