https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10796

Mutua & another (Suing as the legal representatives of the Estate of the Late Michael Kimani Wainaina - Deceased) v Livanze & another (Civil Appeal E151 of 2025) [2026] KEHC 10796 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10796 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E151 of 2025 BW Murunga, J July 16, 2026 Between Veronica Mwongeli Mutua 1st Appellant Catherine Mutindi Mutua 2nd Appellant Suing as the legal representatives of the Estate of the Late Michael Kimani Wainaina - Deceased and Newton Livanze 1st Respondent Super Metro Limited 2nd Respondent (Being an appeal from the judgment of the Honourable court delivered on 27th May 2025 at the Ruiru Magistrate's Court in Ruiru MCCC/E067/2024 by Hon. Charles Mwaniki K - SRM) Judgment 1.The genesis of this first appeal is a Plaint filed in the Chief Magistrate's Court at Ruiru in Civil Suit No. E067 of 2024 by Veronica Mwongeli Mutua and Catherine Mutindi Mutua, suing as the legal representatives of the estate of the late Michael Kimani Wainaina (hereinafter referred to as "the deceased"). 2.The suit was instituted under the Law Reform Act and the Fatal Accidents Act, seeking both general and special damages arising from a fatal road traffic accident that occurred on 2nd December 2023 along Thika Road near the Githurai CEO Motel Area. The Appellants pleaded that the deceased was lawfully and carefully crossing the road at a pedestrian zebra crossing when he was violently knocked down and fatally injured by motor vehicle registration number KDL 134N, an Isuzu Minibus owned by the 2nd Respondent and driven by the 1st Respondent. 3.The trial court heard the matter and rendered its judgment on 27th May 2025. The Honourable Magistrate apportioned liability at 50:50 between the deceased and the Respondents. On quantum, the trial court adopted a multiplicand of Kshs. 15,201.65, a multiplier of 12 years, and a dependency ratio of 2/3, arriving at a loss of dependency figure of Kshs. 1,459,358. Crucially, the trial magistrate mathematically deducted the entire award made under the Law Reform Act from the award under the Fatal Accidents Act to avoid what he perceived as double compensation. The Appeal 4.Aggrieved by the trial court's decision, the Appellants preferred this appeal. The Memorandum of Appeal dated 10th June 2025 contains 13 grounds of appeal, which can be broadly condensed into three main issues for determination:a.Whether the trial magistrate erred in law and fact in apportioning liability at 50:50 despite the evidence of an independent eyewitness.b.Whether the trial magistrate applied the wrong multiplier in computing loss of dependency.c.Whether the trial magistrate misdirected himself by deducting the entire award under the Law Reform Act from the Fatal Accidents Act award. The Duty of a First Appellate Court 5.As a first appellate court, the mandate of this Court is well cut out. It is not to merely rubber-stamp the findings of the trial court or act as a passive observer. The Court is duty-bound to subject the entire evidence tendered before the trial court to a fresh and exhaustive scrutiny, re-evaluate it and draw its own independent conclusions. In undertaking this sacred duty, however, the Court must not throw caution to the wind, it must constantly bear in mind that it did not have the distinct advantage of seeing and hearing the witnesses testify and observing their demeanor first-hand. 6.This sacrosanct duty was aptly enunciated in the locus classicus case of Selle vs. Associated Motor Boat Co. [1968] EA 123, where the court stated that:“An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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.” 7.Further, in Timothy Mulili Nguutu v Cosmas Muendo & another [2021] eKLR, quoting Peters vs. Sunday Post Limited [1958] EA 424, the court pronounced that an appellate court should not interfere with a trial judge's findings of fact unless it is demonstrated that the judgment is affected by material inconsistencies and inaccuracies, or the trial judge failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise went plainly wrong. 8.With these guiding stars illuminating my path, I now delve into the merits of the Appeal. Analysis and Determination Issue 1: Liability 9.The Appellants passionately argued that the trial court swallowed the Respondents' version of events hook, line and sinker, completely disregarding the cogent testimony of PW2, Mr. Martin Muli, an independent eyewitness. PW2 testified that he and the deceased were carefully crossing the road at a designated zebra crossing near the Githurai CEO Motel area. He deposed that the 1st Respondent drove the suit motor vehicle recklessly, competing for passengers, completely disregarding the safety of pedestrians utilizing the zebra crossing thereby knocking down the deceased. 10.Against this clear and unshakeable testimony, the Respondents tendered the evidence of DW1(the driver) and DW2 (a police officer). DW1 tendered evidence suggesting the deceased was to blame. On the other hand, DW2 admitted that the investigation was still pending and he did not produce a sketch plan or the Occurrence Book extract. It is a well-worn English saying that 'he who has an axe to grind will sharpen it on the nearest stone.' DW1, being the driver facing potential criminal and civil culpability may have naturally given a self-serving account aimed at saving his own skin. His testimony lacked the objective detachment of an independent bystander. 11.In evaluation of evidence, the court must separate the wheat from the chaff. PW2 had no stake in the outcome of this suit; he was merely a passerby whose civic duty compelled him to testify. The trial magistrate’s decision to elevate the self-serving, uncorroborated testimony of DW1 over the independent, corroborative account of PW2 defies logic. 12.It is a well-worn adage that a motor vehicle is a lethal weapon. When behind the wheel, a driver bears a heightened duty of care to all other road users, particularly the vulnerable pedestrian. A zebra crossing is a sanctuary ordained by traffic laws for pedestrians, it is a safe haven where the pedestrian wields the absolute right of way. When a driver violently breaches this sanctuary, the scales of justice must tilt heavily against him. 13.In Ongallo & another v Waichari [2024] KEHC 9652 (KLR) the Court opined that a driver driving at a high speed over a zebra crossing without slowing down to allow pedestrians to cross constitutes outright negligence. The driver cannot cry foul when they flout the fundamental rules of the road. 14.The failure of the trial court to attach sufficient weight to PW2’s testimony was a misapprehension of the facts. Furthermore, the deceased cannot be said to be the author of his own misfortune when he was lawfully utilizing a designated pedestrian crossing. 15.The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled.In Khambi & Another -vs- Mahithi & Another [1968] EA, where the court observed:“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 for exceptional circumstances, 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.” 16.Consequently, the trial court's apportionment of liability at 50:50 amounted to putting the cart before the horse and unfairly shifting the burden of safety onto a pedestrian exercising a statutory right of way. I find that the trial magistrate misdirected himself in the apportionment of liability. I am persuaded that the 1st Respondent was wholly negligent and was entirely the author of this tragic misfortune. I hereby set aside the trial court's finding on liability and substitute it with a finding of 100% liability against the Respondents jointly and severally. Issue 2: Quantum - The multiplicand and the multiplier 17.The trial magistrate adopted a multiplicand of Kshs. 15,201.65 based on the Regulation of Wages Amendment Order and applied a multiplier of 12 years, reasoning that the Deceased, being 43 years old, would have worked until the age of 55. The Appellants fiercely contest this, arguing that in the realm of self-employment and informal business, a person does not magically drop their tools at 55. They sought a multiplier of 27 years, pushing the Deceased's working life to the ripe old age of 70. 18.The choice of a multiplier is essentially an estimation of the remainder of a person’s working life, discounted for the unpleasant changes of life. While I agree with the Appellants that a self-employed businessman does not mandatorily retire at 55, a multiplier of 27 years is overly optimistic and fails to account for the unpredictable curveballs of human existence illness, economic downturns and natural mortality. We cannot build castles in the air. 19.However, notwithstanding the foregoing, I find that the trial court's 12-year multiplier is arguably too conservative for a self-employed individual. I am guided by the decision of the Court of Appeal in Albert Kubai Mbogori v Violet Jeptum Rahedi [2013] eKLR, where a multiplier of 15 years was deemed eminently reasonable for a 44-year-old businessman. 20.In the present case I find that a multiplier of seventeen (17) years is the most reasonable and conventional estimate. I therefore disturb the trial court's multiplier of 12 years and substitute it with seventeen (17) years. 21.Maintaining the dependency ratio of 2/3 as the deceased left behind a widow and two minor children, the award for loss of dependency is recalculated as follows: Kshs. 15,201.65 being the monthly income x 12 months x 17 years x 2/3 (Dependency Ratio) = Kenya Shillings Two Million Sixty-Seven Thousand Four Hundred Twenty-Four and Forty Cents Only (Kshs. 2,067,424.40/=). Issue 3: Quantum - Deductions and the 'zero-sum game' 22.This brings me to the most heavily contested ground of appeal: the deduction of the Law Reform Act awards from the Fatal Accidents Act award. The trial magistrate awarded damages under the Law Reform Act but proceeded to mathematically deduct the entirety of that award from the Fatal Accidents Act award. The Appellants aptly described this as a 'zero-sum game' severely prejudicing them. This action was akin to giving with one hand and summarily taking away with the other. 23.An appellate court's power to interfere with an award of damages is circumscribed. As eloquently laid out in Butt v Khan (1977) 1 KAR,“An appellate court will not disturb an award of damages unless it is so 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.” 24.The principle of double compensation draws its lifeblood from the doctrine of Double Recovery, which aims to prevent a judgment that erroneously awards damages twice for the exact same loss. As elucidated in the curated authority of Kisima Farm Limited & 2 others v Ruth Ncekei M’turuchiu & 3 others [2016] KEHC 5854 (KLR) loss of expectation of life and pain and suffering are distinct remedies under the Law Reform Act, awarded to the estate for non-pecuniary losses suffered by the deceased prior to death. In stark contrast, the paramount remedy under the Fatal Accidents Act is the loss of dependency, which is entirely separate and pecuniary in nature. It is awarded to the dependants for the financial void left by the deceased. 25.The conceptual confusion surrounding this principle was decisively laid to rest by the Court of Appeal in Hellen Waruguru Waweru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) V Kiarie Shoe Stores Limited [2015] eKLR. The Court emphatically stated:“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for 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'. The 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…In my considered view, it would be a futile exercise for a court to labour to make an award under the Law Reform Act and then proceed to deduct it from the award under the Fatal Accidents Act. Effectively such deduction would nullify the benefits intended by the two Acts of Parliament for deserving claimants.” 26.From the foregoing, I find that the trial magistrate misdirected himself by conflating distinct heads of damages. To deduct damages for pain and suffering and loss of expectation of life from the dependency award was a misapprehension of the law. I therefore set aside that deduction and reinstate the conventional awards under the Law Reform Act. I shall therefore recalculate the awards to reflect the correct legal position. Reassessment of Damages 27.Based on the foregoing, the damages are reassessed as follows:Under the Law Reform Act:a.Pain and Suffering: The Deceased suffered fatal injuries and died. A conventional award of Kshs. 100,000/= is reasonable and is hereby upheld.b.Loss of Expectation of Life: The award of Kshs. 100,000/= is upheld.Under the Fatal Accidents Act (Loss of Dependency):Taking the multiplicand of Kshs. 15,201.65 (as uncontested and based on the minimum wage), a multiplier of seventeen (17) years and a dependency ratio of 2/3 (leaving 1/3 for the deceased's own upkeep), the math is as follows:Kshs. 15,201.65 x 12 months x 17 years x 2/3 = Kshs. 2,067,424.40/=. 28.Special damages were pleaded at Kshs. 129,050/=. Special damages must be specifically pleaded and strictly proved. Noting the trial court's record and the absence of any cross-appeal challenging the validity of these receipts, this amount is retained. Determination 29.It is notable that the Respondents elected to remain as silent as the grave during this appeal, filing no submissions to contest the Appellants' well-articulated grounds. While the court does not act merely on the absence of opposition, the Appellants have successfully discharged their burden. The appeal succeeds. 30.The Judgment of the trial court delivered on 27th May 2025 is hereby set aside in its entirety and substituted with the following Orders:a.Liability is apportioned at 100% against the 1st and 2nd Respondents jointly and severally.b.The Appellants are awarded General and Special Damages as follows:i.Pain and Suffering: Kshs. 100,000ii.Loss of Expectation of Life: Kshs. 100,000iii.Loss of Dependency: Kshs. 2,067,424.40/=iv.Special Damages: Kshs. 129,050Total Award: Kshs. 2,396,474.40/=c.The Special Damages shall attract interest at court rates from the date of filing the suit until payment in full.d.The General Damages shall attract interest at court rates from the date of the lower court judgment until payment in full.e.The Appellants shall have the costs of this Appeal and the costs in the lower court.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Ms Mathu instructed by Nyambura Mwangi for the AppellantKimondo Gachoka instructed for the Respondent (N/A)Kevin Babu - Court Assistant