Jagona v Asiko & Kasoa (Suing as Legal Representatives & Administrator of the Estate of Collins Avisa - Deceased) (Civil Appeal E052 of 2024) [2026] KEHC 5820 (KLR) (28 April 2026) (Judgment)

Jagona v Asiko & Kasoa (Suing as Legal Representatives & Administrator of the Estate of Collins Avisa - Deceased) (Civil Appeal E052 of 2024) [2026] KEHC 5820 (KLR) (28 April 2026) (Judgment) Neutral citation: [2026] KEHC 5820 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E052 of 2024 JN Kamau, J April 28, 2026 Between Miyinzi Oscar Jagona Appellant and Rael Asiko & Samuel Kihuya Kasoa (suing as legal representatives & Administrator of the Estate of Collins Avisa- Deceased) Respondent (Being an appeal from the Judgment and Decree of Hon J.A Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E158 of 2022 on 24th September 2024) Judgment Introduction 1.In her decision of 24th September 2024, the Learned Trial Magistrate, Hon J.A Agonda, Principal Magistrate, found the Appellant wholly liable for the fatal accident that led to the deceased’s death and entered Judgment in favour of the Respondents against Appellant in the following terms:-Pain and suffering Kshs 50,000/=Loss of expectation of life Kshs 100,000/=Loss dependency Kshs 2,982,960/=Special damages Kshs NilKshs 3,132,960/=Plus costs of the suit and interest thereon and on damages from the date of judgment until payment in full. 2.Being aggrieved by the said decision, on 3rd October 2024, the Appellant herein filed a Memorandum of Appeal dated 25th September 2024. He relied on nine (9) grounds of appeal. 3.His Written Submissions were dated and filed on 24th June 2025 while those of the Respondent were dated 3rd July 2025 and filed on 5th July 2025. The Judgment herein is based on the said Written Submissions which parties relied upon in their entirety. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-a.Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;b.Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court. 7.The court deemed it prudent to address the issues under the following distinct heads. I. Liability 8.Grounds of Appeal Nos (1), (2) and (6) were dealt with together as they were all related. 9.The Appellant’s case was that the Respondents failed to prove their case to the required standard in line with Section 107 and 109 of the Evidence Act and that a party who alleged liability on the part of another but failed to prove the same lent itself to the dismissal of the case. 10.He submitted that Allan Khasoa (hereinafter referred to as “PW 2”) testified that he was a pedestrian and was not in the Appellant's Motor Vehicle to have been able to tell this court the speed at which the Appellant's Motor Vehicle was being driven at. He said that DW 1’s (sic) evidence was that he was driving at a speed of 10km/h, which was not excessive as the road was steep. 11.He stated that No 39708 PC John Koech ( hereinafter referred to as “PW 3”) produced a Police Abstract but it did not disclose any results of the investigation and finding. He averred that PW3 also failed to produce sketch maps and plans and that he confirmed that he was not the Investigating officer in the matter and did not visit the scene of the accident. He pointed out that PW 3 only relied on the contents on the Police Abstract which did not avail conclusive evidence. He relied on Section 107(1) of the Evidence Act Cap 80 (Laws of Kenya) which provides that he who asserted was required to prove those facts. 12.He referred this court to the case of Peter Kanithi Kimunya v Aden Guyoharo [2014] eKLR where it was held that a police abstract was not proof of occurrence of an accident but of fact that following an accident, the occurrence thereof was reported. 13.He asserted that that the deceased jumped under the rear side of the Motor Vehicle and asserted that Arnold Baguda Kivishi (hereinafter referred to as “DW 2”) was never charged with any traffic offence. He blamed the deceased for having failed to avoid the accident as a result of which he was injured due to his negligence, recklessness and/or inability to observe the provisions under the Traffic Act. He maintained that the deceased was solely to blame for the occurrence of the accident hence no liability should have been attached to him. He placed reliance on the case of Bonface Witaba Shivachi V Eldoret Steel Mills Limited Eldoret HCCA NO 199 OF 2011 to buttress its arguments. 14.He asserted that if the deceased had not jumped on the road, then there would have been no accident. He argued that as the deceased voluntarily assumed the risks involved by his negligent actions, the Respondents were, therefore, estopped by the doctrine of volenti non fit injuria from claiming damages from the Appellant. 15.He cited Stat Pack Industries Limited v James Mbithi Munyao [2005] eKLR, where the court held that claimant had to prove a causal link between someone's negligence and his injury. He submitted that the Respondents failed to link the nexus between the injuries sustained by the deceased and the alleged negligence on his part. 16.His further submissions were that parties blamed each other for causing the accident hence, it was not clear who was to blame for the accident. He cited the case of Haji v Marair Freight Agencies Limited (1984) eKLR where the court opined that where it was proved by evidence that both parties are to blame and there were no means of making a reasonable distribution between them, the blame could be apportioned equally on each. He also relied on the case of Lakamshi v Attorney General (1971) E.A. 118 and urged this court to apportion liability equally on both parties. 17.On their part, the Respondents submitted that PW2 was an eye witness of the death of his deceased brother. He told the court that they were heading in the same direction with the Appellant’s Motor Vehicle when in an attempt to avoid hitting a bump, it swerved off the road and ran down the deceased and also hit him too but he escaped narrowly. 18.He further told the court that the deceased was dragged along the road by the said Motor Vehicle and shouted at the said vehicle to stop. He denied that the deceased was drunk or that he jumped in front or at the side of the moving vehicle. 19.They submitted that the narration by the Appellant could not hold water since it was generally humanly impossible for a person to jump beneath or under a moving vehicle with exact precision and especially if the vehicle is in motion and no preparations made. They asserted that if indeed he had jumped as the Appellant had alleged, the deceased would have bounced back away from the lorry and in effect he would have fallen slightly off the road and not under the vehicle since it was in motion and if so, it would have been the legs of the deceased that could have been ran over not the head. 20.They added that he could not have sustained the numerous fractures of the ribs and blood in his chest cavity, mangled skull with bone matter visible which injuries were indicated as the cause of his death in the Post Mortem Report if the accident happened as the Appellant had alleged. It was their submission that the bruises on the deceased’s lower and upper limbs were clear indication that the deceased was dragged on the ground. They averred that if the speed was at 30 Km/h as he had insinuated to court, the impact would have been minimal. 21.They stated that the evidence of Police Officer corroborated that of PW 2 since he confirmed that the deceased was in the company of other two (2) pedestrians, one of who was PW 2’s brother. He further confirmed that upon conducting his own independent investigations, he found that there was a metal rod that was protruding from the lorry on its left side that had come into contact with the deceased when the vehicle swerved to avoid the pot hole and dragged the deceased a few meters ahead before coming to a halt. 22.They denied that the deceased was out to commit suicide as he would not have done so since he was in company of his brother and a friend, whom he knew they would not have allowed it. They pointed out that DW 2 was unable to explain how the deceased jumped under the moving lorry from the side when asked to demonstrate the possibility during cross examination. 23.They placed reliance on the case of Jona Venzi Nguko & Another v John Mwaka Amisi & Another (Suing as the father, brother and personal representative of the Estate of Joseph Mbatha Mwaka) [2015] eKLR where the court rejected the assertion that the deceased therein had jumped under the hind wheels of the lorry and thus found the defendant hundred (100%) per cent liable for the suit therein. 24.They contended that having noticed the three (3) pedestrians earlier as he narrated to court, the Appellant’s driver could have taken precaution by avoiding to swerve to the far left or better still he would have hooted to alert them of his presence. They relied on Francis K. Righa v Mary Njeri (Suing as the legal Representative of the Estate of James Kariuki Nganga [2014]eKLR where the court mentioned the duty of a motorist to other road users. 25.They contended that as a motor vehicle was more lethal weapon than a human being, the driver ought to exercise a higher standard of due care to other road users and they cited Margaret Wangari Kiambuthi - v- Jane Njeri Ngugi & Another (Suing for and on behalf of the dependants and the Estate of Arios Kinyanjui Mukirai (Deceased [2018JeKLR 26.They pointed out that the Appellant’s driver admitted to have been passing a bump as PW 3 confirmed. They were emphatic that given the circumstances of the accident, it was impossible to fault the deceased since there was nothing he could have done since the impact was from behind him and he was not crossing the road but was walking beside the road. They cited William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 where it was stated that a party who was able to establish his case to a percentage of fifty one (51%) per cent as opposed to forty nine (49%) per cent of the opposing party was said to have established his case on a balance of probabilities. 27.They referred this court to several cases amongst them the cases of John Fanuel Awiti Ogol v Murithi [1984]eKLR and Susan Munyi v Keshar Shiani [2013]eKLR where the common thread was that an appellate court was mandated to exercise restraint on the issue of liability and not to replace findings of the trial court with what it thought would have been the case had it tried the suit in the first instance. They urged this court to retain the award on liability of hundred (100%) per cent against the Appellant herein. 28.According to the Plaint dated 28th July 2022 and filed on 1st August 2022, the deceased was walking along Majengo-Gisambai road when Motor Vehicle Registration Number KCN 191M Tipper (hereinafter referred to as the ‘subject Motor Vehicle’) lost control after that trying to avoid a bump as a result of which it ran over the deceased. 29.PW 2, who was the deceased’s brother, reiterated the averments in the said Plaint. He testified that he, the deceased and one Wycliffe Keya were walking off the road when a metal rod from the subject Motor Vehicle pulled the deceased, pushed him under the said Motor Vehicle and ran over him. He denied that the deceased moved beneath the lorry. When he was cross-examined, he admitted that they never saw the subject Motor Vehicle approaching. He was emphatic that the subject Motor Vehicle was speeding and that they were not drunk. 30.PW 3 told the court that the Investigating Officer was PC Morara. He corroborated PW 2’s evidence. He pointed out that the deceased’s jacket was pulled by the Motor Vehicle’s metal and he was over run by the left tyre. He testified that the point of impact was on the left side of the road facing Gisambai after the bump. He stated that the driver of the subject Motor Vehicle was charged in Traffic Case No 5 of 2022. He produced the Police Abstract as evidence in the case. 31.When he was cross-examined, he admitted that he did not visit the scene. He also changed his position that the driver was not charged in court for careless driving. He stated that the covering report stated that according to the driver of the said Motor Vehicle, the deceased jumped under the moving tyre of the rear side and he was run over when the vehicle pulled the jacket. 32.On his part, the Appellant filed a defence dated 17th August 2022 and filed on 27th August 2022. In the said defence, he denied causing the accident and averred that if the accident occurred, the same was due to the sole and/or contributory negligence of the deceased. He called two witnesses. 33.DW 1, was a private investigating officer form APA insurance company. He produced the Investigation Report. He confirmed having visited the scene after the accident and that there were three (3) pedestrians whose details were not covered in the report. According his Investigation Report, the deceased intentionally dived onto the road exposing himself to the risk of being crashed. He opined that it was most probable that the deceased was on a suicide mission. He relied on the evidence of the police and the driver of the subject Motor Vehicle. 34.DW 2 was the driver of the subject motor vehicle. He blamed the deceased who swamped (sic) into the said subject Motor Vehicle. He stated that he was not charged with any traffic offence. When he was cross-examined, he stated that three (3) pedestrians were walking ahead of him. When he was re-examined, he averred that the deceased jumped and the rear tyre run over him. He stated that he was driving at a speed of 10 km/h since he was approaching a bump. On being re-examined, he stated that he passed the deceased and his companion and did not see how the deceased died. 35.Notably, in the case of Khambi and Another v Mahithi & Another [1968] EA 70, it was held that an appellate court would not interfere with the apportionment of liability save where such apportionment was manifestly erroneous. 36.The Appellant blamed the deceased for causing the accident by jumping over the vehicle and he was run over. However, it was evident that DW 2’s evidence was contradictory. On the one hand, he stated that the deceased jumped under the said subject Motor Vehicle and on the other hand, he said that he could not tell how the deceased died as he had passed him and his companion. On their part, the Respondents blamed DW 2 for causing the accident. The evidence of PW 2 that a metal from the lorry pulled the deceased was affirmed by PW 3. 37.The fact that DW 2 was driving a vehicle with a metal rod protruding from its body was evidence of negligence on his part. He was required to exercise due care and attention to other road users. It was irrespective that he was driving at a speed of 10 km/h because it was not the speed that caused the deceased’s death. Rather, it was the metal road that was protruding dangerously from the said subject Motor Vehicle that hit the deceased causing him to be run over by the rear tyre of the said subject Motor Vehicle. The Appellant was, therefore, vicariously liable for DW 2’s negligence. 38.This court nonetheless took the view that the deceased could not also escape liability for the reason that he was required to face the direction of incoming motor vehicles. This precaution was to ensure that he could evade danger on the roads. In this case, he was hit by the metal rod as he did not see it. If he was facing the subject Motor Vehicle, he could have seen perhaps the metal rod and taken evasive action to avoid being hit. 39.This court, therefore, found and held that the Trial Court erred in not having apportioned liability between the Appellant and the deceased herein. This court found that liability ought to be apportioned at ninety (90%) per cent - ten (10%) per cent in favour of the Respondents herein. 40.In the premises foregoing, Grounds of Appeal Nos (1), (2) and (6) were partly merited and the same be and are hereby upheld. II. Quantum 41.The Appellant submitted that the Trial Court relied on wrong principles when assessing damages thus resulting to an inordinately high award to the Respondent contrary to the holding in Osman Mohammed & Another v Saluro Bundit Mohammed Civil Appeal (citation not provided). 42.He also cited the holding in Millicent Atieno Ochuonyo v Katola Richard (2015) eKLR where the court stated that comparable injuries should be compensated by comparable awards. 43.The Respondents on their part referred to the case of Butt v Khan Civil Appeal No 40 of 1997 (eKLR citation not given) where the court stated that an appellate court would not disturb an award of damages unless it was so inordinately high or low as to represent an entirely erroneous estimate. It had to 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. To further support their argument, they cited Omar v Ngowa & Another (both suing as the Administrators of the Estate of the Late Hamisi Ndoro Chaka) [2024] eKLR and Elias Kayaga Moturi & Another v Dolphin Kwamboka [2023]eKLR A. Damages Under The Law Reform Act AA.Pain And Suffering 44.The Appellant urged this court to a sum of Kshs 10,000/= for pain and suffering based on the fact that the deceased died on the spot. He referred to the case of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrators of the Estate of the Late Robert Mwangi) [2019] eKLR where the Court held that the conventional award for pain and suffering ranged from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. 45.He also relied on the case of James Gakinya Karienye & Another (Suing as the Legal Representative of the Estate of David Kelvin Gakinya (Deceased) V Perminus Kariuki Githinji [2015] eKLR where the Court awarded a sum of Kshs 10,000/= for pain and suffering for death taking place immediately after the accident and in Harjeet Singh Pandal v Hellen Aketch Okudho (2018) eKLR where the Court reduced an award of pain and suffering from Kshs 30,000/= to Kshs10,000/= where the deceased had died on the spot. 46.The Respondents asked this court to take inflation into account and the fact that the deceased was dragged for a short distance before his demise and thus not disturb the said award. They cited the of case of Premier Diary Limited v Amarjit Singh Sagoo & Another [2013]eKLR where the court upheld an award of Kshs 75,000/= where the deceased died instantly at the scene of the accident. 47.They also relied on Sukari Industries Limited v Clyde Machimbo Juma [2015] eKLR where the court upheld an award of Kshs 50,000/= where the deceased died instantly. The court therein held that that nominal damages would be awarded if death occurred immediately after death and higher damages if pain was prolonged. The court also noted that the amount under this head ranged from Kshs 10,000/= to Kshs 100,000/=. 48.It was, therefore, the considered view of this court that the award of Kshs 50,000/= for pain and suffering that was awarded by the Trial Court was not unreasonable. This court did not, therefore, disturb the said award. 49.In arriving at the said conclusion, this court had due regard to the following cases:-1.In the case of Abdullahi t/a Wajir Fresh Vegetables Enterprises v Kagendo (Suing as the legal representative of the Estate of David Muchiri Nyaki-Deceased) & another [2025] KEHC 3249 (KLR) 29, the court held awarded a sum of Kshs 50,000/= despite the death having been instant as there must have been some pain.2.In the case of Makoko (Suing as the wife and personal representative of the Estate of Emmanuel Robert Mbinda - Deceased) v Fuga Feeds Kenya Limited & Another [2022] KEHC 15087 (KLR), the court therein a sum of Kshs 40,000/= for pain and suffering.3.In the case of Kiptanui & Another v Maina (Suing as a personal representative of the Estate of Sarah Wangui (Deceased) [2024] KEHC 765 (KLR), the court therein awarded a sum of Kshs 50,000/= for pain and suffering where the deceased died on the same day of the accident. A. Loss Of Expectation Of Life 50.The Respondent submitted that a conventional figure of Kshs 80,000/- would be sufficient for loss of expectation of life and thus urged this court to set aside a sum of Kshs 100,000/= awarded by the Trial Magistrate. He placed reliance on the case of Kisumu HCCA No 42 of 2010 Coast Bus (Msa) Limited V Susan Mboga Mandu (Deceased) (eKLR citation not given) where a sum of Kshs 80,000/= was awarded. 51.The Respondents submitted that the Trial Court ought to have awarded a sum of Kshs 150,000/= that they had proposed. 52.In view of the inflationary trends and bearing in mind the comparable awards, this court found the award of Kshs 100,000/= that was awarded by the Trial Court for loss of expectation of life to have been reasonable. 53.In arriving at the said conclusion, this court had due regard to the following cases:-1.In the case of Abdulaziz v Odhiambo & Another (Suing as legal representative of the Estate of Phili Ondago) [2026] KEHC 4349 (KLR) , the Court of Appeal declined to disturb an award of Kshs100,000/= for loss of expectation of life.2.In the case of Mutiso v Kimuyu [2023] KEHC 760 (KLR), the appellate court declined to disturb an award of Kshs 120,000/= for loss of expectation of life. A. Damages Under The Fatal Accident’s Act AA. Multiplicand 54.It appeared to this court that the only issue in contention is the minimum wage that the Trial Court adopted. The Trial Court adopted a sum of Kshs 20,715/= guided by Wages Regulations Order (sic) 2022. It was the Trial Court’s finding that the deceased was a sales person who used to distribute mandazis and bread to the supermarket. 55.The Appellant stated that no payslip was produced to show that the deceased was earning Kshs.25,000/= to 30,000/= per month. He urged this court to adopt the Regulation of Wages (General) (Amendment) Order 2018 which provided for the minimum wage of Kshs 7,240.95 for unskilled employees. He referred to the holding in Sukari Industries Limited v Ismael Ombaka Omar & Another (Supra) that adopted a minimum wage where there was no proof of earnings. 56.He also cited Vincent Kipkorir Tanui (Suing as the administrator and/or Personal representative of the Estate of Samwel Kiprotich Tanui (Deceased) v Mogogosiek Tea Factory Co Ltd & Another [2018JeKLR where the court stated that where there was no documentary evidence of earnings, the practice of our courts has been to take the minimum wage as the multiplicand… 57.The Respondents cited several cases amongst them the case of Crown bus Services Ltd & 2 Others v Jamila Nyongesa & Another (Legal representatives of Alvin Nanjala (Deceased) [2020]eKLR), Muthike Muciimi Nyaga (Suing as the Legal Administrator of the Estate of James Githinji Muthike – Deceased v Dubai Super Hardware [2021] eKLR and others where the common thread was that where there was no proof of income, the trial court was required to revert to the Regulation of Wages (General Amendment) Order. 58.They submitted that the deceased was a sales person, distributing food products within Vihiga town and resided in Majengo. They submitted that the Local Authorities Act, 2012 listed Vihiga town as a municipality hence, it was a former municipality. They argued that Majengo was at the heart of operations of Vihiga County/ town and hence, rightly fitted being categorised as a former municipality, with the minimum wage applicable being for the year 2018 to 2019. 59.Although they had proposed the minimum wage of Kshs12, 522/= which was the minimum wage for a general labourer in former municipalities, such as Vihiga, the Trial Court adopted a multiplicand of Kshs 20, 715/=. They implored this court to adopt Kshs 12,522/= should this court find any error in the sum adopted by the Trial Court. They stated that the said sum was the minimum wage for a general laborer in former municipalities which was applicable to former municipalities as at the time of the deceased's demise in May 2022, Vihiga town was a former municipality. 60.Rael Asiko (hereinafter referred to as “PW 1”) was the deceased’s wife. She testified that the deceased used to supply mandazis at Vihiga. He was being paid cash as a casual worker and he worked for a small company that baked and prepare mandazis. When she was cross-examined, she said that he used to earn a daily wage of Kshs 1,000/=. She also pointed out that she did not have any documentation from the said company. 61.The accident occurred on 25th May 2022. The applicable Regulation of Wages (General) (Amendment) Order was the one for 2022. According to the Regulation of Wages (General) (Amendment) Order, 2022, the wages for general labourers was Kshs 8,109.90 and not Kshs 12,522/=. Vihiga was not former municipality. The only former municipalities listed in the Order were Mavoko, Ruiru and Limuru. 62.It was evident that the amount adopted by the Trial Court was based on the wrong principles because it did not justify how the deceased was a salesperson. Indeed, PW 1 was clear when she was cross-examined that the deceased was a casual labourer. It was the view of this court that the adoption of the figure of Kshs 20,715/= by the Trial Court was not supported by any regulation or legislation and was excessive warranting interference by this court. 63.This court, therefore, set aside the sum of Kshs 12,522/= and replaced the same with a sum of Kshs 8,109.90 as provided under the Regulation of Wages (General) (Amendment) Order, 2022. A. Multiplier 64.He urged this court to adopt a multiplicand of 18 years considering the age of the deceased, the balance of earning life, the age of dependants, the life expected, length of dependency, the vicissitudes of life as was held in Hannah Wangaturi Moche & Another v Nelson Muya Nairobi HCCC No 4533 of 1993. 65.The Respondents did not object to the same. The court left the multiplier undisturbed. A. Dependency Ratio 66.The Appellant urged this court to adopt a dependency ratio of 2/3. He cited the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another (2017) eKLR where the court stated that dependency was always a matter of fact to be proved by evidence. He, therefore, prayed that the award under the loss of dependency be calculated as follows:-2/3 x 7,240.95 x 12 x 18 Kshs 1,042,696.80/= 67.His further submissions were that since the dependants were the same under both the Law Reform Act and Fatal Accidents Act, the award under the Law Reform Act should be subtracted from the award under the Fatal Accident Act because failure to do so would mean that there would be double compensation. He cited the case of Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited Nyeri CA Civil Appeal No 22 of 2014 (2015) eKLR where it stated that duplication occurred when the beneficiaries of the deceased's estate under the Law Reform Act and dependants under the Fatal Accidents Act were the same meaning the claim for lost years and dependency would go to the same persons. 68.He also placed reliance on the case of Kemfro v A.M Lubia & Olive Lubia (1982-1988) KAR 727 where it was stated that the net benefit would be inherited by the same dependants under the Law Reform Act which had to be taken into account in the damages that were awarded under the Fatal Accidents Act because the loss suffered under the latter Act had to be offset by the gain from the estate under the former Act (sic). 69.He thus urged this court to deduct the award in the Law Reform Act from the award under the Fatal Accident Act since the dependants were the same because failure to do so would mean that there would be double compensation. 70.He also referred this court to the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited (supra) where the Court of Appeal held that it did not mean a claimant under the Fatal Accidents Act ought to be denied damages for pain and suffering and loss of expectation of life as these were only awarded under the Law Reform Act. 71.The understanding of this court was that the court was only required to take note of the damages under the Fatal Accidents Act but not deduct the award for pain and suffering and loss of expectation of life from the award under the Fatal Accidents Act. Indeed, there was no duplication as the damages under the Law Reform Act were made in respect of the estate of a deceased while the damages under the Fatal Accidents Act were to be made to the dependants of the deceased. It was for that reason that a plaintiff would not be paid damages under the Law Reform Act if letters of administration had not been taken out but could be paid damages under the Fatal Accidents Act. In the mind of this court, the damages were distinct and separate and hence, this court did not agree with the Appellant’s submissions in this regard. 72.Accordingly, this court adopted the dependency ratio of two thirds (2/3) but did not deduct the damages under the Law Reform Act from the damages that were awarded under the Fatal Accidents Act as the Appellant had proposed. A. Special Damages 73.As the issue of special damages was not in contention between parties, this court found no reason to delve on the same. DispositionFor the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal was partly merited. It is hereby directed that the judgment of Hon J.A. Agonda be and is hereby set aside and replaced with an order that judgment be and is hereby entered in favour of the Respondent against the Appellant for the sum of Kshs1,186,042.44 made up as follows:-Pain and suffering Kshs 50,000.00Loss of expectation of life Kshs 100,000.00Loss dependency Kshs 1,167,825.602/3 x 8,109.90 x 18 x 12Special damages Kshs NilKshs 1,317,825.60Less 10% contributory negligence Kshs 131,782.56shs 1,186,042.44Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on the damages under the Law Reform Act and the Fatal Accidents Claim will accrue at court rates from the date of judgment of the Trial Court until payment in full. 74.As the Appellant was partially successful in his Appeal, it is therefore hereby directed that each party will bear its own costs of this Appeal. 75.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 28TH DAY OF APRIL 2026J. KAMAUJUDGE