https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8438

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARISSA** **CIVIL APPEAL NO. E019 OF 2025** **JOHN KASUMBA MBATHA…………………………………………….…APPELLANT** **VS** **MARGARET NDUNI KITEME(suing on her own behalf and as the** **administrator of the estate of the late Muema Alice alias Paul** **Muema Alice alias Muema Elice)……………………………….……….RESPONDENT** **AND** **DANIEL MUTUA KIMWELE AND ELIZABETH MULI MUTUA (suing on their own behalf and as administrators of the estate of the late Tony Kimanzi Mutua alias Kimanzi Mutua)…………………………………………………...…..1ST THIRD PARTY** **WATU NOMINEES COMPANY LTD……………………….……..2ND THIRD PARTY** **(Being an appeal against the judgment of Hon. T M. Mwangi delivered on 09.10.2025 in Garissa CMCC No. 81 of 2024).** **JUDGMENTS** 1. The respondent moved the trial court via a plaint dated 27.11.2024 wherein she averred that on or about 30.12.2021, the deceased was lawfully riding as a pillion passenger on motor cycle registration number KMFR 550G along Garissa – Mwingi road when, the appellant or his employee, servant and/or authorized driver negligently so drove, mismanaged and/or failed to control motor vehicle registration number KBY 157U thus causing it and/or permitted the same to lose control, and entered onto the lane of the said motor cycle hence violently rammed onto the same head on consequences whereof the deceased Muema Alice sustained fatal injuries. 2. The particulars of negligence were enumerated at para 4 of the plaint and further, particulars of injuries listed as cardio pulmonary arrest due to the road traffic accident. 3. The appellant entered appearance and filed a statement of defence dated 06.01.2025 wherein he denied the occurrence of the accident on the material day. He further stated that at the opportune time, he would seek the court’s leave to commence third party proceedings against the owner of the said motor cycle KMFR 550G. 4. The respondent further filed a reply to defence dated 08.01.2025 in which she denied every allegation of fact and law save for where the same consisted admissions. 5. Upon the court determining the law and evidence before it, it delivered its judgment on 09.10.2025 as follows: 6. **General damages……..Kes. 1,550,000/-.** 7. **Special damages………Kes. 215,000/-.** 8. **Defendant’s suit against the 3rd parties is dismissed.** 9. **Costs are awarded to the plaintiff and the 3rd parties as against the defendant.** 10. **The plaintiff shall pay further court fees on general damages and the unpaid balance of court fees on the claim for special damages before the decree and certificate of costs is signed and sealed.** 11. Upon being aggrieved by the judgment of the court, the appellant filed a memorandum of appeal on the following grounds: 12. **That the learned magistrate erred and misdirected himself in law and in fact in finding the appellant liable in negligence without laying any basis from the evidence on record for such a finding which was an entirely erroneous conclusion.** 13. **That the learned magistrate erred in proceeding on the basis that the appellant’s witness had not filed a witness statement which position was erroneous and not borne out by the record since the CTS portal reflects at all material times that the said witness statement was filed on 24.04.2025 at 14.22.22hrs.** 14. **That the learned magistrate erred and misdirected himself in law and fact by failing to appreciate that the appellant’s witness had adopted his filed witness statement as his evidence in chief during trial hence even if he could not locate the same on the CTS portal, the reasonable approach would be to seek appropriate clarification from the parties as to whether the witness statement referred to by the witness was indeed on record before making the erroneous conclusion that the same had not been filed.** 15. **That accordingly, the learned magistrate erred by failing to consider and judiciously evaluate the evidence in chief of the appellant’s witness on the issue of liability which was contained in his filed witness statement and which he referred to during trial.** 16. **That the learned magistrate thus determined the issue of liability without the benefit of the true and balanced view of the circumstances of the occurrence of the accident and thus arrived at the finding that the appellant was liable in negligence which finding was against the weight of the evidence adduced during the trial.** 17. **That the learned magistrate erred and misdirected himself in law in failing to appreciate and apply or properly apply settled principles on assessment of liability in matters relating to head on collisions and thereby made a finding that a tortfeasor who did not testify before him as to the circumstances of the occurrence of the accident was not negligent which was a misdirection and error or principle.** 18. **That the learned magistrate erred and misdirected himself in law and fact by failing to appreciate and determine an issue arising from the pleadings as well as the evidence in relation to the liability of the deceased for his misfortune and in doing so failed to consider and apply decisions binding on him cited in the written submissions filed on behalf of the appellant.** 19. **That the learned magistrate erred and misdirected himself in law and fact in assessing damages for loss of dependency on the basis of a multiplier approach which in the absence of cogent proof was highly speculative and against established principles of law.** 20. **That the learned magistrate misdirected himself in law and fact in assessing damages for loss of dependency on the basis that the deceased’s net monthly earning was Kes. 12,000/- without any basis in either evidence or principle.** 21. **That the learned magistrate erred and misdirected himself in law and in fact in assessing damages for loss of dependency on the basis of a dependency ration of ½ when the deceased was unmarried which is against clear principles as established in decided cases and is manifestly high as to represent an entirely erroneous estimate as to the level of dependency attached to the deceased by his pleaded dependents.** 22. **That the learned magistrate erred and misdirected himself in law and in fact in assessing and awarding damages for loss of dependency in the sum of Kes. 1,440,000/- which in all the obtaining circumstances is manifestly excessive as to represent an entirely erroneous estimate.** 23. **That the learned magistrate erred and misdirected himself in law and in fact in making an award in favour of the 1st respondent in respect of special damages in the sum of Kes. 215,550/- which was against settled principles of law as the same had not been strictly proved during trial.** 24. **That the learned magistrate erred in law in fact in failing to appreciate that on well settled principles, the award under the Law Reform Act in respect of damages for pain and suffering before death as well as damages for loss of expectation of life in the cumulative sum of Kes. 110,000/- ought to have been taken into account in reduction of the award for loss of dependency under the Fatal Accidents Act and thereby conferred a double benefit on the benefit on the dependant of the deceased out of the same tragedy.** 25. **That the learned trial magistrate erred and misdirected himself in failing to consider or sufficiently consider for purposes of determination of all the issues in controversy the written submissions filed on behalf of the appellant hence arriving at the decision that was manifestly erroneous and out of proportion taking into account all the relevant circumstances.** 26. Reasons wherefore, the appellant prayed that: 27. **Appeal be allowed.** 28. **Respondent’s suit in the subordinate court be dismissed with costs for want of proof of liability.** 29. **That in the alternative to prayer (2) above, the finding on liability by the subordinate court be set aside and substituted with an apportionment of liability as against the deceased represented by the 1st respondent, the rider represented by the 2nd respondent and the appellant’s driver that is fair and representative of the true circumstances of the occurrence of the accident giving rise to the claim in accordance with the evidence and the applicable law.** 30. **That subject to prayer 2 and 3 above:** 31. **The assessment and award of Kes. And award of Kes. 1,440,000/- as damages for loss of dependency in the judgment and decree of the subordinate court dated 09.10.2025 be set aside in its entirety and substituted with a global award on the basis of an educated guess as to the quantum of loss.** 32. **In the alternative to (i)above, the adoption of the multiplicand in the sum of Kes. 12,000.00/- be set aside and substituted with the applicable net statutory wage, the adoption of a dependency ratio1/2 be set aside and be substituted with one that takes into account the relevant applicable principles in making similar awards and within the limits of comparable past decisions and damages for loss of dependency be reassessed accordingly.** 33. **The award under the Law Reform Act in respect of damages for pain and suffering before death and loss of expectation of life be taken into account in reduction of the amount allowed, assessed and awarded as damages for loss of dependency under the Fatal Accidents Act.** 34. **That costs of this appeal be awarded to the appellant.** **Evidence before the trial court.** 1. Brief facts before the trial court were that, **PW1** **Jackson Muneene Mwendwa** who adopted his statement dated 27/11/2024 as his evidence-in-chief, stated that, on 30/12/2021 at around 5.00am, he was riding a motor cycle following motor cycle KMFR 550G which was about 20 meters ahead. That, they were both along Garissa-Mwingi Road heading towards Mwingi general direction. That, the accident occurred at Tula area where the driver of motor vehicle KBY 157U (hereafter the motor vehicle), which was headed towards Garissa, encroached onto the lawful lane of motor cycle KMFR 550G and violently knocked it down while trying to negotiate a corner. 2. It was pw1’s evidence that the motor vehicle was being driven with only one light on i.e on the left side. PW1 rushed to the scene and saw the pillion passenger lying down unconscious and unresponsive. That the pillion passenger wore a helmet and reflective jacket. Police arrived after about 15-20 minutes and when they were putting the lifeless bodies to their vehicle, PW1 noticed that the pillion passenger-Paul Muema Alice- was a person known to him very well from past interactions. 3. PW1 blamed the driver of the motor vehicle for the accident as he was driving negligently and without due regard to the safety of other road users and at a high speed. 4. On **cross-examination,** he agreed that he had given evidence in another case where parties were Kimanzi Mutua, Kimanzi Sianda and John Muema. That, the three were on a motor cycle and were involved in an accident. That one of the three was a rider and the other two were pillion riders. According to him, one of the three was the deceased. In this case, Paul Muema was being ridden by Kimanzi Mutua. That Kimanzi Siande was a pillion passenger. 5. He agreed that in his witness statement, he said that he recognized the rider of the motor cycle. That, if it was not stated in his statement, it was because he was in shock from the accident. That, he knew all riders and was riding motor cycle registration KMU. He could not remember the registration of his motor cycle well. That, it had been given to him to ride. That, besides him, there were other witnesses to the accident but he did not know them. That, police arrived after a while and he told them that he was a witness. 6. He averred that, he was not aware that his name was not in the police abstract. That, failure to remember the registration of his motor cycle did not mean that he was lying. That, he used to ride many motor cycles and accident took place a long time ago. 7. **DW1** was **Lawrence Kahuthia Wanjiru** adopted his statement dated 24/04/2025 as his evidence in chief. He stated that he was an employee of the Defendant and served as the driver of KBY 157U in connection with his business. That, on 30/12/2021, an accident occurred along Garissa-Mwingi Road, at Tula area involving motor vehicle KBY 157U and motor cycle KMFR 550G. 8. That, on the said date, he was ferrying construction blocks from Thika to Garissa and at around 5.30am, he approached Tula area and the vehicle had headlights hence the visibility of the road ahead was clear. He stated that he was keeping to the correct lane of the road driving towards the general direction of Garissa town when all a sudden, a motor cyclist who turned out to have been riding motor cycle KMFR 550G, ferrying two pillion passengers emerged from the opposite direction at high speed. That the rider was negotiating a sharp bend hence got onto the lawful lane of DW1. 9. That, the motor cycle appeared on his view from a bend in a very sudden manner and he tried everything he could to brake in order to avert a collision but due to the close proximity, the motor cycle collided onto the vehicle head-on. That he stopped the vehicle immediately and realized that both the rider and his two pillion passengers had sustained fatal injuries from the impact. He contacted the police who attended to the scene and the vehicle was moved to Garissa police station where he gave his version of the circumstances leading to the accident. His motor vehicle was subsequently released and he was not charged with any traffic offence. 10. He stated that he was unable to understand the allegation of negligence against him and that the accident would not have occurred if the motor cycle had not encroached on his lawful lane. That the rider acted recklessly and ought to share the blame for the occurrence of the accident. That the pillion passenger in this claim was negligent for riding aboard a motor cycle that was evidently carrying passengers beyond its authorized capacity. In his view, carrying an excess passenger affected the rider’s ability to maneuver the motor cycle properly. 11. He urged the court to find that the accident was solely caused by the rider and pillion passenger. 12. The appeal was canvassed by way of written submissions. **Submissions.** 1. The appellant filed submissions dated 16.02.2026 urging that the trial court mishandled both liability and damages in its judgment. On liability, they contended that the magistrate wrongly excluded DW1’s witness statement despite it being properly filed, served, and relied upon during cross-examination. They maintained that the court mischaracterized DW1’s evidence as corroborating PW1’s testimony, even though PW1’s credibility was questionable considering that; he was not listed in the police abstract; he could not recall details of the motorcycle and his presence at the scene was doubtful. The appellant further faulted the court for failing to address contributory negligence, noting that the deceased was riding as a second pillion passenger, which should have attracted a reduction of liability. 2. On damages, the appellant challenged the award for loss of dependency, arguing that the trial court adopted a monthly income of Kes. 12,000 without evidentiary basis, instead of applying the correct minimum wage of Kes. 7,240.95 applicable in Garissa. They also submitted that the court erred by failing to deduct the award under the Law Reform Act from that under the Fatal Accidents Act, resulting in double compensation. In was contended that special damages were not proved on grounds that some receipts were not in the respondent’s name and funeral expenses were not borne solely by the respondent. 3. The respondent via submissions dated 23.02.2026 urged that the deceased had no control over the manner in which the motor vehicle or the motorcycle was being driven and therefore could not be blamed for the occurrence of the accident. The respondents maintained that a passenger could not be penalized for the poor workmanship or negligence of a driver. 4. The respondents stated that the accident occurred on the side of the road where the motorcycle bearing registration number KMFR 550G was lawfully being ridden. The respondents maintained that the accident would not have occurred had the driver of the suit motor vehicle maintained proper lane discipline. 5. That In the absence of any rational explanation from the appellant as to why the motor vehicle left its lane, the respondents asserted that negligence on the part of the driver could be inferred. It was also stated that the authorised driver did nothing to avoid the accident and that there was no evidence of evasive action having been taken. The respondents maintained that had the driver exercised proper control of the vehicle, maintained the correct lane, and driven at a reasonable speed, the accident would not have occurred. 6. Regarding allegations of contributory negligence raised against the deceased and the rider of the motorcycle, it was stated that although contributory negligence had been pleaded, the appellant failed to prove the particulars alleged. The respondents reiterated the principle that whoever alleged negligence bore the burden of proof and that pleadings did not constitute evidence. 7. Regarding the allegation that the motorcycle was carrying excess pillion passengers, the same was not pleaded. It was further stated that no evidence was led to demonstrate how the presence of additional pillion passengers caused or contributed to the accident. The respondents relied on judicial authorities to support the position that a traffic infraction did not automatically amount to negligence unless a causal connection to the accident was established. It was also stated that a pillion passenger had no control over a motorcycle and could not have caused or avoided the accident. 8. The respondents further addressed the appellant’s reliance on traffic proceedings, including the absence of a conviction for careless driving. It was stated that criminal proceedings and civil proceedings were governed by different standards of proof and that an acquittal or non‑conviction in a traffic case did not preclude a finding of negligence in civil proceedings. Authorities were cited to demonstrate that civil liability could still arise notwithstanding the outcome of criminal proceedings and that the mere fact of charging or acquittal did not determine liability in a civil claim. 9. It was further stated that the driver of the suit motor vehicle was in control of a lethal machine and therefore owed a higher duty of care to other road users, including the motorcycle rider and the deceased. The respondents stated that the driver failed to discharge his duty and that the appellant did not call the driver or any other material witness to testify, nor did it institute third‑party proceedings. As a result, the respondents maintained that the evidence adduced on negligence remained uncontroverted. 10. It was stated that the appellant failed to comply with court directions requiring the filing of a witness statement despite being afforded an opportunity to do so. The respondents maintained that court orders were not issued in vain and that non‑compliance could not be cured by reliance on Article 159 of the Constitution. It was further stated that parties were bound by their pleadings and conduct and that the appellant could not claim to have been condemned unheard when it failed to utilize the opportunity accorded by the court. 11. On the issue of quantum, the respondents outlined the evidence tendered during the trial regarding the deceased’s age, occupation, earnings, and dependants. It was stated that the deceased was engaged in gainful employment and that the absence of documentary proof of earnings was not fatal. Authorities were cited to support the position that earnings could be proved through oral evidence. The respondents maintained that the deceased had dependants and that an award for loss of dependency was justified. 12. The respondents further stated that the trial court properly assessed damages under the Fatal Accidents Act and the Law Reform Act and exercised its discretion judiciously in adopting the multiplicand, dependency ratio, and multiplier. It was contended that the appellant failed to demonstrate any misdirection in law or fact warranting appellate interference. It was also stated that certain heads of damages, including pain and suffering, loss of expectation of life, and special damages, were not contested on appeal. 13. In conclusion, the respondents maintained that the trial court correctly held the appellant wholly liable for the accident and therefore assessed damages based on the evidence and applicable law. It was stated that the appeal lacked merit and should be dismissed with costs. **Duty of the court.** 1. It is now settled that the duty of a first appellate Court isto analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. (**Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123)** 2. Having looked at the grounds of appeal, the rival submissions and entire record, the following issues arise for determination; 3. **Who was to blame for the accident and to what extent?** 4. **Should the quantum of damages be disturbed?** **Analysis and determination.** 1. The crux of the matter herein is the entry of liability against the appellant at 100% and wrongful assessment of general and specific damages. 2. Before the trial court, the 1st Respondent was the Plaintiff while the Appellant was the Defendant and the 2nd Respondent was the Third-Party. The trial court found that the Appellant’s driver was 100% liable for the accident thereby dismissing the Appellant’s claim against the Third-Party. 3. The finding on liability is totally contested and this court has been urged to overturn it entirely for want of proof. In the alternative, this court has been urged to apportion liability between the Respondents without involving the Appellant. 4. A preliminary issue with regard to liability is the finding by the trial court that the Appellant’s witness statement had not been filed. The Appellant submitted that the same was filed on the CTS Portal on 24/04/2025 at 14.22.22hrs. DW1 testified that he had recorded the statement and the trial court record of 28/07/2025 shows that the Plaintiff’s Advocate confirmed that the same had been served upon him. The trial court recorded thus; “witness statement dated 24/04/2025 is admitted as evidence if filed by the defendant to be verified before court in the CTS.” In the judgment, the trial court recorded thus; “I have gone through the CTS and I confirm DW1 did not file a witness statement and none is in the court record.” 5. I have checked the CTS and confirmed that indeed the witness statement by DW1 was filed on the CTS Portal on 24/04/2025 at 14.22.22hrs. The finding by the trial magistrate is therefore erroneous. Further, the irresistible conclusion of this error is that the trial magistrate did not consider the evidence of DW1 when making the determination on liability. It is trite that apportionment of liability is an exercise of discretion and an appellate court will only interfere with it when it is clearly wrong, based on no evidence or based on application of a wrong principle. In the case of **Khambi & Another -vs- Mahithi & Another [1968] EA 70**, it was held that; **“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”** 1. It is therefore on the basis of the evidence of PW1 and DW1 that this court should determine how to disturb the finding on liability. 2. It is not in dispute that the accident occurred on 30/12/2021 (material day) between the Appellant’s motor vehicle KBY 157U (lorry) and motor cycle KMFR 550G ridden by Tony Kimanzi Mutua (deceased). It is also not in dispute that the deceased on whose behalf this claim was filed, was riding as a pillion passenger. Further, it is not in dispute that the lorry and motor cycle were moving in opposite directions. 3. PW1 testified that he was an eyewitness who was riding about 20 meters behind the ill-fated motor cycle. According to him, the lorry encroached onto the lawful lane of the motor cycle and violently knocked it down while trying to negotiate a corner. On the other hand, the evidence of DW1 was that the accident was a head-on-collision which occurred on his correct lane. 4. PW1 testified that police arrived after about 15-20 minutes and he informed them that he was a witness and went to the police station to record a statement. The police abstract however does not capture his name as one of the witnesses hence casting doubt as to whether he was really an eyewitness. Further, PW1 could not remember the registration number of the motor cycle he was riding and alleged that it had been given to him. In my view, PW1 was not a truthful witness on the aspect of being an eye witness to the accident. It is probable that he arrived at the accident scene after the fact as he corroborated DW1’evidence on the fact that the rider was carrying two pillion passengers. 5. Consequently, the only eye witness in this matter was DW1 who maintained that it was the motor cycle that encroached on his lane. Both PW1 and DW1 testified about a bend at the scene. While PW1 said that it was not sharp, DW1 testified that it was a sharp bend. The evidence on record shows that police arrived at the scene but unfortunately, no sketch map was produced for the courts’ benefit. Consequently, the conclusion supported by evidence is that there was a bend at the scene but its sharpness or lack thereof was not established to the required standard. At this juncture, it is important to point out an erroneous conclusion from the trial magistrate where he stated that; **“PW1 and DW1 corroborated each other that the accident took place at a long bend where it was possible for PW1 to see ahead well enough. I found the evidence of PW1 to have been cogent that it was the lorry that intruded into the pathway of motor cycle causing the accident.”** 1. The evidence of PW1 on cross-examination was that; “Anyone following me on a motor cycle 20 or 30 metres, could not see clearly how accident occurred.” It is therefore evident that the trial court’s conclusion was not supported by the evidence. 2. Consequently, my re-evaluation of the evidence on liability shows that DW1’s version of how the accident occurred was more probable. Be that as it may, it is my view that DW1 should not be let off the hook completely because the circumstances obtaining at the time of the accident required all motorists to exercise greater care while using the road. The evidence shows that it was 5.30am hence still dark and the reason that the witnesses were talking about headlamps. Secondly, there was a bend at the scene hence motorists were expected to reduce speed. In my view, the Appellant should bear 40% liability and the 2nd respondent (3rd party) 40%. 3. The evidence of PW1 and DW1 is in agreement that the ill-fated motor cycle was carrying three people i.e the rider and two pillion passengers. **Section 60** of the **Traffic Act, Cap 460 Laws of Kenya** provides; **“It shall not be lawful for more than one person in addition to the driver to be carried on any two-wheeled motor cycle nor shall it be lawful for any such one person to be carried otherwise than sitting astride the motor cycle and on a proper seat securely fixed to the motor cycle behind the driver’s seat.”** 1. In the persuasive case of **Amref Health Africa -vs- Obadha (2023) KEHC 26115 (KLR)**, the court stated as follows; **“it was not disputed that the Respondent and another person were pillion passengers on the aid motor cycle. The law does not permit more than one pillion passenger to be carried on a motor cycle. By riding on the said motor cycle against the law, the Respondent exposed himself to danger. Such conduct cannot go un-condemned and should not be rewarded. Accordingly, the Respondent ought to shoulder some blame for such reckless conduct. I thus find that the Appellant ought not to have been found 100% liable. I set aside that finding and substitute therefore 50% liability for the driver of the motor vehicle and find the Respondent 50% liable.”** 1. Further, in the persuasive case of **Simon Waweru Mugo -vs- Alice Mwongeli Munyao [2020] eKLR** the court (D.K Kemei J) opined as follows; **“Every person using the road, pedestrian, motorist, and car passenger, is required to use reasonable care to protect his or her own safety as well as the safety of others. If a car accident victim fails to protect his or her own safety and the safety of others, he or she is being negligent and will be considered partly at fault for his or her own injuries.”** 1. Similarly, in this case, the deceased claimant exposed himself to danger for riding on the said motor cycle against the law. In my view, he should bear 20% liability and the deceased rider (third party) 40%. **Whether the quantum of damages should be disturbed?** 1. It is trite that awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In **Butt –vs Khan (1977)1KAR** it was held that; **“An appellate Court will not disturb an award for damages unless it is 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.** 1. Further, an appellate court will not disturb an award simply because it would have awarded a different figure if it had tried the case in the first instance. 2. The Appellant abandoned ground 8 of the Appeal which was a complaint about the use of multiplier approach to assess loss of dependency. Ground 10 which was about a complaint regarding the adoption of a dependency ratio of ½ was also abandoned. Consequently, the remaining grievances are that the multiplicand of Kshs 12,000 was used without any basis, that the special damages of Kshs 215,550/= were not strictly proved and that the award under the Law Reform Act, of kshs 110,000/=, should have been taken into account in reduction of the award for loss of dependency. 3. PW2, Margaret Nduni Kiteme, was the mother of the deceased in her evidence was emphatic that the deceased was a casual labourer at a construction site and that he used to earn 30,000/= per month. That, he used to maintain her and pay fees for other kids. That, he would send her maintenance money through mpesa and would give her cash when he went home. She agreed that she had not produced any mpesa statement as she lost the telephone number that used to receive mpesa. 4. In arriving at the multiplicand, the trial magistrate stated; “There was no evidence the deceased earned a monthly income of Kshs 30,000/= as alleged by Pw2. I adopt the minimum wage of shs 12,000/= after statutory deductions as a fair multiplicand in the calculation of the award under the Fatal Accidents Act.” 5. Evidently, the trial magistrate misdirected himself by adopting a multiplicand without stating the source or justification. 6. The accident that claimed the life of the deceased occurred on 30/12/2021 hence the applicable minimum wage was the one prescribed by Legal Notice No. 2 which came into force on 01/05/2018. The justification for use of a 2018 order for an accident which happened in 2021 is that the same remained unchanged due to the disruptions caused on the economy by the Covid 19 pandemic. The next amendment to the order was done in 2022 and this information is in the public domain hence the court should take judicial notice of the same. 7. Consequently, the minimum wage for a general labourer in Garissa, according to the 2018 order, was Kshs 7,240/= per month. 8. With regard to the issue of deducting the award under Law Reform Act, the trial court awarded Kshs 100,000/= for loss of expectation of life and Kshs 10,000/= for pain and suffering, Section 2(5) of the Law Reform Act provides that; **“(5) the right conferred by this part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on dependants by the Fatal Accidents Act or the Carriage by Air Act 1932 of the United Kingdom.”** 1. The provision was discussed by Karanja J in the case of **Richard Omeyo Omino -vs- Christine A. Onyango:** **Kisumu Civil Appeal No. 61 of 2007** as follows; **"The Law Reform Act Section 2 (5) provides that the rights conferred by or under the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.** **The words "to be taken into account" and "to be deducted" are two different things. The words in Section 4 (2) of the Fatal Accidents Act are "taken into account". This section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”** 1. Whereas I am aware of some cases where a deduction has been done by some courts, I agree with the above reasoning to the effect that a court is only required to ‘take into account’ and not to engage in mathematical deduction. Be that as it may, the award of Kshs 100,000/= for loss of expectation of life is conventional while award of Kshs 10,000/= has been made by many courts in instances where the deceased died on the spot. 2. In the case of **Sukari Industries Limited -vs- Clyde Machimbo Juma, Homa Bay HCCA NO. 68 of 2015 [2016] eKLR**, the deceased died immediately after the accident and the trial court awarded Ksh. 50,000/= for pain and suffering. On appeal, the court (Majanja J) held that: **“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”** 1. In the instant case, the trial magistrate did not expressly state that he took into account the award under Law Reform Act. In my view, the fact that he assessed damages under Fatal Accidents Act after making the award under Law Reform Act is an indication that he was conscious of the awards under the two regimes. In the circumstances, I will not disturb the award by the trial court under the law reform Act. 2. With regard to special damages, the trial magistrate stated as follows; **“Three receipts dated 31/12/2021 purport to make a claim for specials of Kshs 40,000/=, 25,000/= and 190,000/= respectively. The receipt for Kshs 40,000/= shows the amount was received from Pauline Masese who is not the deceased. The latter sum is not proved as having been incurred by Pw2. The receipts for shs 25,000/= and shs 190,000/= respectively suggest the money was paid by the deceased. The interpretation I make is that they were made on account of the deceased…”** 1. The argument by the Appellant is that the receipts for the sum of Kshs 25,000/= and Kshs 190,000/=are not in the name of the 1st Respondent hence the threshold of poof was not met. It is indeed true that the contested receipts bear the name of the deceased claimant. The fact that he was already deceased means that he could not possibly be the one that made the payments. I agree with the interpretation of the trial magistrate that the payments were made on account of the deceased by pw2. The payments in the two receipts were meant to cater for coffin (25,000/=) and food & drinks (190,000/=). 2. It is a fact that the deceased claimant died and there is no dispute that he was buried. It is therefore reasonable and probable that such expenses were incurred at his funeral. In fact, there are cases where courts have made award for funeral expenses even without production of receipts. In the case of **Premier Diary Limited -vs- Amarjit Singh Sagoo & another [2013] eKLR** the Court of Appeal (Onyango Otieno, Azangalala, Kantai JJ.A) stated; **“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. Similarly, in this case, the amount pleaded was Kshs 501,550/= but the trial magistrate awarded a modest amount of Kshs 215,000/=. In my view, the award as reasonable and justified. 2. In a nutshell, the award should therefore be as follows; **Liability:** Appellant: 40% 1st respondent/Claimant: 20% 2nd Respondent/third party: 40% **Quantum:** Loss of dependency: (7,240 x 12 x 20 x 1/2) = 868,800/= Loss of expectation of life……………………..= 100,000/= Pain & Suffering…………………………………= 10,000/= **978,800/=** Special damages…………………………………= 215,000/= **1,193,800/=** 1. Consequently, the parties shoulder the award as follows; Appellant: kshs 477,520/= 2nd respondent/Third party (estate of Tonny Kimanzi mutua) Kshs 477,520/= 1st Respondent/claimant/plaintiff Kshs 238,760/= 1. Accordingly, the Appeal herein succeeds to the extent discussed herein above. For avoidance of doubt, the claimant in this file shall recover from the appellant the amount of Kshs 477,520/= and similar amount from the 2nd respondent/third party. Considering that parties shared blame, each party shall bear own costs Dated, signed and delivered virtually this 12th day of June 2026. ……………… **J. N. ONYIEGO** **JUDGE**