https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10108

Wamalwa (Suing as the Legal Representative of the Estate of the Late Angella Nelima Wamalwa alias Angella Sarah Nelima) v Rongai Workshop and Transport Ltd & another (Civil Appeal E857 of 2025) [2026] KEHC 10108 (KLR) (Civ) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10108 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E857 of 2025 D Mburu, J July 2, 2026 Between Mary Ambia Wamalwa (Suing as the Legal Representative of the Estate of the Late Angella Nelima Wamalwa alias Angella Sarah Nelima) Appellant and Rongai Workshop and Transport Limited 1st Respondent Bernard Kipkoech Kosgey 2nd Respondent (Being an appeal from the judgment and the decree of the Chief Magistrate, the Honourable D Ole Keiuwa delivered on 31st July 2025 in Civil Case E1704 of 2021) Judgment 1.Before this Court is a Memorandum of Appeal dated 4th August 2025 seeking the following orders:i.That the appeal be allowed with costs.ii.That the judgment delivered on 31st July 2025 by Honourable D Ole Keiuwa on the loss of dependency be set aside, and a judgment of this court reassessing the loss of dependency and increase the same be entered in its place.iii.That the cost of appeal and that of the trial be awarded to the appellant.iv.That such other orders as the court may deem fit be issued. 2.The appeal is founded on the following grounds of appeal:i.That the magistrate erred in law and in fact and misdirected himself by failing to consider the parties' submissions on points of law and fact.ii.That the magistrate’s decision was unjust against the weight of the evidence adduced by the appellant and was based on misguided points of fact and wrong principles, and has occasioned a miscarriage of justice.iii.That the magistrate erred in awarding the deceased estate a global sum of Kshs 1,500,000/= that was so little as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.iv.That the magistrate erred by awarding the appellant a global sum of Kshs 1,500,000 for loss of dependency for a 19-year-old medical student.v.That the magistrate erred by failing to consider conventional awards in cases of a similar nature.vi.That the magistrate erred by proceeding against clearly established principles.vii.That the magistrate erred by finding that the appellant did not adduce evidence to warrant the orders sought. Background Of The Appeal 3.The suit giving rise to this appeal was instituted vide a plaint dated 10th February 2021. The appellant had instituted the suit on her own behalf and on behalf of the estate of the Late Angella Nelima Wamalwa. The respondents were sued for driving negligently, hence causing the death of the deceased. The plaintiff sought general damages and special damages of Kshs 1,932,493/= in her plaint. 4.The defendants, respondents herein, entered an appearance and filed a statement of defence dated 2nd March 2022. In their statement of defence, the defendants denied the particulars of negligence alleged by the plaintiff. The defendants instead blamed the deceased for causing the accident on the following particulars of negligence: not being observant, walking on the defendant’s rightful side of the road, not using the zebra crossing lane for pedestrians, walking in a reckless manner and not taking any due steps to avoid the accident. 5.Upon considering the pleadings and the evidence, the trial court entered judgment in favour of the plaintiff, the appellant herein, for a total of Kshs 3,582,493/= plus the costs of the suit and the interest. 6.The appellant, being dissatisfied with the whole of the said judgment, filed this appeal. Proceedings At The High Court 7.After the appeal was lodged, the appellant served the respondents, however, the respondents did not enter appearance nor file any documents to be relied on by this court in determining the appeal. Despite the circumstances, this court will proceed to determine the undefended appeal on merit in the wider interest of justice. 8.The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 25th March 2026. The appellant submitted that the deceased left behind dependants. The appellant submitted that, were it not for the accident that cut short the life of the 19-year-old medical student, the student would have completed her studies and engaged in gainful employment as a medical doctor. 9.The appellant submitted that the parents suffered a quantifiable loss upon the death of their child. The appellant submitted that their deceased child would have taken care of them in their old age if the respondents had acted carefully to prevent the accident that claimed the life of their child. 10.At trial, both parties submitted that the multiplier approach should be used in determining damages. The appellant submitted that the net salary of a newly appointed medical doctor should be the appropriate multiplier, whereas the respondents opted for the minimum wage as per the Regulation of Wages (General Amendment) Order of 2018. 11.The appellant submitted that a loss of dependency computed at 200,000 per month for thirty (30) years at a ratio of a third (1/3) would be sufficient in this matter. 12.Furthermore, the appellant sought special damages of 1,932,493/= and a loss of expectation of life of Kshs 100,000/= together with Kshs 50,000/= for pain since the deceased was pronounced dead on arrival at the hospital. Analysis And Determination. 13.I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by the appellant. 14.This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court, both on points of law and fact and come up with its findings and conclusions. 15.In the matter of Gitobu Imanyara v Attorney General (2016) eKLR, it was held as follows:‘’An appeal to this court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. 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.The fact that an accident occurred that claimed the life of a 19-year-old medical student at the University of Nairobi is not in dispute. The respondents were found liable by the trial court, and the same has not been disputed. Therefore, the issue of who is liable for the cause of action leading to this appeal is not in dispute. 17.As such, the court will only proceed to determine issues that are in dispute in this appeal. The appellant agrees with the special damages awarded by the trial court of Kshs 1,932,493/= as pleaded and proven from the record of appeal, the award of Kshs 100,000/= as loss of expectation of life and the award of Kshs 50,000/= for pain and suffering. 18.The appellant is dissatisfied with the global sum awarded for loss of dependency. Therefore, the issue that arises for determination is:i.What is the reasonable award of damages for loss of dependency in the circumstances herein?ii.Whether the appellant is entitled to the award of Kshs 24,000,000/= for the loss of dependency? 19.The principles applicable to an assessment of damages under the Fatal Accidents Act are all clear. There is the multiplier and global award approach. In the multiplier approach, the court must, in the first instance, find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. 20.The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called multiplier, the court must bear in mind the expectation of life and dependency of the dependents and the chances of life of the deceased and dependents. The sum thus arrived at must then be discounted to allow for the legitimate considerations, such as the fact that the award is being received in a lump sum and would, if wisely invested, yield returns of an income nature.’’ 21.Both the multiplier approach and the award on the global figure are applicable when it comes to loss of dependency. Therefore, the approach to be used is purely discretionary on the judicial officer. 22.In the case of Gammel versus Wilson (1981) 1 ALL ER cited in approval in the Sheikh Mushtag Hassan Case (1985) eKLR, the court had held that:‘’if sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In Civil Litigation, it is the balance of probabilities that matters.’’ 23.In the case of Michieka versus Ainley (Civil Suit 119 of 2011), a 26 -year old final year medical student at the University of Nairobi died in similar circumstances as the one leading to this appeal. The court, in awarding damages for loss of dependency, considered a starting income of Kenya Shillings Fifty Thousand (Kshs 50,000/=). The plaintiffs in their submission had proposed a starting salary of Kenya Shillings Seventy Thousand (Kshs.70,000). 24.In the present matter, the appellant has proposed a starting salary of Kshs 200,000/= for a medical doctor, to be used in guiding the court on the reasonable award for loss of dependency. The appellant’s proposal has, however, not been proved either by a payslip or any other document. As such, the presented figure only remains persuasive. 25.It is this court’s considered view that in the instant appeal, a starting income of Kshs 100,000/=, taking into account inflation and the cost of living is more reasonable, especially in the early years of the deceased’s medical career. 26.The Michieka decision (supra) was delivered on 24th January 2023. The deceased was a final year medical student. In the present matter, the deceased was a first year medical student aged 19. Therefore, I find this comparative jurisprudence applicable in the present matter. 27.Regarding multiplier, the appellant proposed 30 years. When determining the multiplier, the court looks at the possible expected life of gainful employment and the dependency of the deceased. 28.The deceased herein had a promising medical career and was in her formative years of training. It is the court’s view that a multiplier of 30 years is more appropriate, and a dependency ratio of 1/3 suffices for this appeal. 29.Accordingly, damages under the Fatal Accidents Act would be calculated as follows: 30 years × 12 months × 100,000× 1/3 = 12,000,000/=. 30.I fully agree with awards of Kshs 50,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life, respectively. On the special damages pleaded on burial expenses and motor vehicle search, the same were pleaded and proven. As such, I award the specials for burial expenses and motor vehicle search as outlined in the plaint. 31.In the case of Hahn v Singh [1985] eKLR it was stated as follows:‘’Special damages must not only be pleaded but also strictly proved for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of the proof required depends on the circumstances and nature of the act themselves” 32.In light of the foregoing, I find that the appeal is merited and enter judgment in favour of the appellant in the following terms:i.General damages under the Law Reform Acta.Kshs 50,000/= for pain and suffering.b.Kshs 100,000/= for loss of expectation of life.ii.Damages under the Fatal Accidents Actc.Kshs 12,000,000/= for loss of dependencyd.Kshs 1,882,093/= being special damages tabulated as follows:i.Police Abstract Kshs 200/=ii.Certificate of death Kshs 200/=iii.Letters of Administration Kshs 50,000/=iv.Burial expenses Kshs 1,881,543/=v.Motor vehicle search Kshs 550/=Total Award = Kshs. 14,032,093/=e.The appellant is also awarded interest at court rate on the general damages from the date of this judgment; and on the specials from the date of filing suit in the lower court until payment in full.f.The appellant shall have costs in the appeal and in the court below.g.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026.DAVID MBURUJUDGE