https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11058

Kariuki (Suing as the legal and personal representative of the Estate of Loise Wanjiku Njenga - Deceased) v Mungai & another (Civil Appeal E196 of 2024) [2026] KEHC 11058 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11058 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E196 of 2024 C Akaigwa, J July 17, 2026 Between Njenga Kariuki (Suing as the legal and personal representative of the Estate of Loise Wanjiku Njenga - Deceased) Appellant and Stephen Chege Mungai 1st Respondent Robert Mugi Waweru 2nd Respondent Judgment A. Background 1.This appeal arises from the Judgment of Hon. Dennis Waweru Mbuteti (Resident Magistrate) delivered on 31st October 2024 in Limuru MCCC No. E576 of 2021, Njenga Kariuki (Suing as the Legal and Personal Representative of the Estate of Loise Wanjiku Njenga (Deceased)) v Stephen Chege Mungai & Robert Mugi Waweru. 2.In the impugned judgment, the trial court found the Respondents jointly and severally liable for the accident and awarded the Appellant a total sum of Kshs. 932,175/= together with costs and interest. 3.The claim before the trial court arose from a road traffic accident in which the deceased, Loise Wanjiku Njenga, lost her life. It was the Appellant's case that the deceased was a fare-paying passenger aboard motor vehicle registration number KCV 578D when motor vehicle registration number KAN 852R, driven negligently by the 1st Respondent, was involved in an accident that occasioned her fatal injuries. 4.Upon considering the evidence placed before it, the trial court found the Respondents wholly liable for the accident and entered judgment in favour of the Appellant. 5.In support of the claim for damages, the Appellant adduced evidence that the deceased was aged 46 years at the time of her demise, was engaged in music and church ministry, and earned income from royalties, music sales, and church engagements. The Appellant further produced royalty statements, a letter from the deceased's church confirming a monthly income of Kshs. 20,000/=, as well as documentary evidence relating to funeral expenses and dependency. 6.The record further shows that the Respondents did not call any witnesses and did not tender evidence to controvert the Appellant's evidence regarding the deceased's income, occupation, or dependency. 7.Notwithstanding the foregoing, the trial court assessed damages and awarded Kshs. 600,000/= for loss of dependency under the global sum approach, Kshs. 40,000/= for pain and suffering, KShs. 120,000/= for loss of expectation of life, and KShs. 172,175/= as special damages, resulting in a total award of KShs. 932,175/=. 8.Aggrieved by the assessment of damages, and in particular the award under the head of loss of dependency, the Appellant lodged the present appeal on the following grounds:a.That the learned trial magistrate erred in law and in fact in awarding a grossly low sum of KShs. 600,000/= for loss of dependency.b.That the learned trial magistrate erred in law and in fact by adopting the global sum approach instead of the multiplier method despite evidence of a regular incomec.That the learned trial magistrate erred in law and in fact by failing to consider the evidence regarding the deceased's monthly earnings, which was estimated at approximately KShs. 50,000/=.d.That the learned trial magistrate erred in law and in fact by failing to apply the multiplier approach notwithstanding that the deceased had identifiable dependants and a demonstrable source of income.e.That the learned trial magistrate erred in law and in fact by relying on an inapplicable comparator, namely Gilbert Kimatare Nairi, a case involving materially different circumstance.f.That the learned trial magistrate erred in law and in fact by failing to consider the authorities cited by the Appellant which proposed higher awards for comparable circumstances.g.That the total award made by the trial court was inordinately low and resulted in an unjust assessment of damages.h.That the learned trial magistrate erred in law and in fact in the assessment of damages under both the Law Reform Act and the Fatal Accidents Act. B. Parties' Submissions 9.The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 6th May 2026 in support of the appeal. 10.When the matter came up for mention on 25th May 2026, this Court directed the Respondents to file and serve their written submissions by the close of business on 26th May 2026. However, by the time of writing this judgment, the Respondents had not filed their submissions. C. Duty of the First Appellate Court 11.The duty of a first appellate court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and Another v Associated Motor Boat Company and Others [1968] EA 123, where the Court stated as follows:... this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of re-hearing, and the Court of Appeal is not bound to follow the trial Court’s findings of fact if it appears either that it failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally. 12.Where an appellate court departs from the findings of the trial court, it must demonstrate, with clear and cogent reasons, why it departs from those findings. Accordingly, an appellate judgment must reflect a conscious and reasoned evaluation of the evidence, the issues raised, and the parties’ respective contentions, with clear and cogent reasons supporting the court’s ultimate findings. 13.In the case of Prudential Assurance Company of Kenya Limited vs Sukhwinder Sigh Jutley and Another [2007] eKLR on the role of a first Appellate Court, the Court of Appeal stated:As a first appellate court, it is our duty to treat the evidence and material tendered before the superior court to a fresh and exhaustive scrutiny and draw our own conclusions bearing in mind that we have not seen or heard the witnesses and giving due allowance for this. (See Selle and another v Associated Motor Boat Company Limited [1968] EA 123) D. Issues for Determination 14.Having considered the Memorandum of Appeal, the Record of Appeal, and the submissions filed by the Appellant, I am of the view that the following issues arise for determination:a.Whether the trial court erred in adopting the global sum approach, as opposed to the multiplier approach, in assessing damages for loss of dependency.b.Whether the total award by the trial court was inordinately low so as to warrant interference by this Court.c.Who should bear the costs of this appeal. E. Analysis and Determination a. Whether the trial court erred in adopting the global sum approach, as opposed to the multiplier approach, in assessing damages for loss of dependency. 15.The Appellant's principal grievance is that the trial court adopted the global sum approach in assessing damages for loss of dependency despite evidence allegedly demonstrating that the deceased had a regular and ascertainable income. According to the Appellant, the multiplier approach ought to have been applied. 16.In Maina v Njuguna & Another (Suing as Legal Representatives of the Estate of Julius Kamande Muchoki (Deceased)) & Another [2023] KEHC 21128 (KLR), the Court observed that it is well settled that courts are vested with discretion to apply either the multiplier approach or the global sum approach in the assessment of damages under the head of loss of dependency. 17.The question whether damages for loss of dependency should be assessed using the multiplier approach or the global sum approach is no longer res integra. The Court of Appeal in Jacob Ayiga Maruja & Another v Simeon Obayo, Civil Appeal No. 107 of 2002 [2005] eKLR, endorsed the reasoning of Ringera J. (as he then was) in Albert Odawa v Gichimu Githenji, Nakuru HCCA No. 15 of 2003 [2007] eKLR, where the learned Judge observed as follows:The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do. 18.In electing to adopt the global sum approach, the learned trial magistrate expressed himself as follows at paragraph 20 of the judgment:Since no contrary evidence was given to rebut that the deceased was a musician, the court will adopt that position. The deceased was aged 42 years and was expected to have worked up to the age of 60 years, being the conventional retirement age. However, since the salary was not proved, the court will resort to a global sum approach, which is more appropriate in the circumstances. 19.The trial court adopted the global sum approach in assessing damages under the head of loss of dependency and awarded Kshs. 600,000/=. The choice between the global sum approach and the multiplier approach lies within the discretion of the trial court, depending on the circumstances of each case. The court is not bound to apply any single rigid formula in all cases of fatal accidents. 20.In the case of Mbogo and Another v Shah [1968] EA 93 the Court stated thus:…that this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should have not have acted or because it failed to take into consideration matters which it should have taken into consideration and in so doing arrived at a wrong conclusion. 21.In the present case, I am not persuaded that the learned trial magistrate committed an error of principle in electing to apply the global sum approach. The record demonstrates that the court considered the evidence placed before it and made a determination that the deceased’s income was not proved with sufficient certainty to justify the application of the multiplier approach. 22.In the circumstances, I find that the decision to adopt the global sum approach was a proper exercise of judicial discretion and was not based on any misdirection in law or misapprehension of the evidence. Accordingly, there is no basis upon which this Court can interfere with the trial court’s choice of approach in the assessment of damages for loss of dependency. b. Whether the total award by the trial court was inordinately low so as to warrant interference by this Court. 22.The trial court made the following awards under the respective heads:i.Pain and suffering – Kshs. 40,000/=ii.Loss of expectation of life – Kshs. 120,000/=iii.Loss of dependency – Kshs. 600,000/=iv.Special damages – Kshs. 172,175/= 22.The Appellant, in its submissions, contends that the learned trial magistrate erred in the assessment of damages under both the Law Reform Act and the Fatal Accidents Act. 23.In the celebrated case of Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727 the Court of Appeal held that in order for an appellate court to disturb the quantum of damages awarded by a trial judge it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. (See Butt v Khan (1982–88) 1 KAR 1.) 24.It is therefore necessary for this Court to examine the awards made by the trial court under each head of damages in light of the evidence on record and the applicable legal principles, in order to determine whether the threshold for interference has been met. i. Pain and Suffering 25.In Civil Appeal No. 42 of 2018, Joseph Kivati Wambua v SMM & Another (Suing as the Legal Representatives of the Estate of EMM – Deceased), at paragraph 21, Hon. Odunga J (as he then was) observed as follows:The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness... a distinction ought to be made between a case where the deceased passes away instantly and where the death takes place some time after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.” (emphasis added) 22.Further, in Njoroge v Kagathi & Another (Suing as the Legal Representatives of the Estate of the Late Gabriel Wanderi Ndung’u) [2026] KEHC 6656 (KLR), the Court, citing with approval the foregoing authority, stated as follows:The above case law points to the fact that the award of pain and suffering depends on whether the deceased died on the spot or after some time. That is, damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. Where a deceased died on the spot, courts have taken the approach that minimal damages should be granted unlike in a case where a deceased die later on. In this case, the deceased passed away at the scene of the accident. The amount that the court awarded of Ksh. 50,000/= was not inordinately low or high and I uphold it. 22.In the present case, it was averred that the accident occurred on 3rd August 2021 at around 6:30 p.m., and that the deceased was subsequently declared dead on arrival at the hospital. Indeed, the Post-Mortem Report on record confirms that the deceased had already succumbed to the injuries sustained upon arrival at the medical facility and indicates the time of death as 7:30 p.m. 23.In the circumstances, and guided by the applicable principles on assessment of damages under the head of pain and suffering, I am not persuaded that the award of Kshs. 40,000/= was inordinately low or excessive. I therefore find no basis to interfere with the same and hereby uphold it. ii. . Loss of Expectation of Life 22.In Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Mwangi) [2019] eKLR, the Court observed that:The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is KShs. 100,000/= while for pain and suffering the award ranges from KShs. 10,000/= to KShs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. 22.On the head of loss of expectation of life, the trial court awarded a sum of Kshs. 120,000/=. Guided by the foregoing authority and considering that the award of Kshs. 120,000/= is only marginally above the conventional figure and within the acceptable range of awards under this head, I find no basis to interfere with the same. The award is neither manifestly excessive nor so low as to warrant the intervention of this Court, and I accordingly uphold it. iii. Loss of Dependency 22.Under this head, the Appellant submits that even if this Court were to uphold the trial court’s decision to adopt the global sum approach instead of the multiplier approach, the sum of Kshs. 600,000/= awarded was nevertheless inordinately low when compared with awards made by other courts in comparable circumstances under the same head. The Appellant relies on, inter alia, MNM & Another v Solomon Karanja Githinji [2015] KEHC 7342, where the Court awarded KShs. 3,000,000/= in respect of a 46-year-old butchery owner, and Ndeti & Another v Mwangangi & Another [2022] KEHC 15732, where the Court awarded a global sum of KShs. 2,500,000/= in respect of a 48-year-old entrepreneur. 23.Having found no error of principle in the trial court’s decision to resort to the global award method, the role of this court at this stage is limited to determining whether the award of KShs. 600,000/= for loss of dependency was so inordinately low or excessive as to warrant interference. 24.In MNM & Another v Solomon Karanja Githinji [2015] eKLR, the Court awarded a global sum of KShs. 3,000,000/= in respect of a 46-year-old deceased who left behind a spouse and four children. In Amazon Energy Limited v Josephine Martha Musyoka & Another [2019] eKLR, the Court reduced a global award of KShs. 2,500,000/= to KShs. 1,200,000/= where the deceased was 56 years old and his only child was in college. 25.Further, in Ndeti & another (Suing on their own behalf and as administrators of the estate of Gerald Ndeti Mutua (Deceased)) v Mwangangi & another [2022] KEHC 15732 (KLR) the Court stated thus:From the above authorities, it is clear that even in making a global award, apart from comparison with previous trends or precedents, courts will also consider other factors such as the general health of the deceased before he met his death, his age as well as the number of dependent children and their ages. In my view, this is important as it ensures that the global award made is comparable to some extent with the awards based on multiplier approach. In the instant case, no questions have been raised as to the health of the deceased prior to his death. Further, the deceased left behind three school going children whose needs must be taken care of. In the premises, I find that the sum of Kshs 2,500,000/- awarded by the trial magistrate for loss of dependency was not too low or manifestly excessive in the circumstances of the case to warrant interference by this court. 22.The general principle is that awards must be commensurate with the loss suffered by the dependants. In Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 71 (KLR), the Court of Appeal (Kneller, Hancox and Nyarangi JJA) stated as follows:The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge: 1.Each case depends on its own facts; 2.Awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politic); 3.Comparable injuries should attract comparable awards; 4.Inflation should be taken into account; and 5.Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or is so inordinately high or low as to represent an entirely erroneous estimate, an appellate court should leave it undisturbed.” See also Butt v Khan CA Civil Appeal No. 40 of 1977; Southern Engineering Company Limited v Musungi Mutia, CA Civil Appeal No. 46 of 1983 (Nairobi); and Idi Ayub Omari Shabani & Yusuf Juma v City Council of Nairobi & Daniel Nachela Kahungu, CA Civil Appeal No. 52 of 1984 (Hancox and Nyarangi JJA, and Platt Ag JA, 6 March 1985). 22.Having considered the age of the deceased, the nature of the dependency disclosed on record, and the fact that at the time of her death the deceased left behind a spouse aged 52 years and two adult children aged 23 and 21 years respectively, this Court is of the view that the level of dependency demonstrated was moderate rather than substantial. The adult status of the children implies a reduced level of financial dependence, while the spouse, though still a beneficiary of support, cannot be said to have been wholly dependent in the same manner as minor children. 23.While the trial court was justified in adopting the global sum approach, the resulting award must still be reasonable, consistent with comparable authorities, and commensurate with the loss suffered by the dependants. I find that the award of Kshs. 600,000/= under the head of loss of dependency was inordinately low. Balancing the evidential material, comparable authorities, and the need to award fair compensation without overreach, I find that a global sum of KShs. 1,100,000/= constitutes a reasonable and just award under this head. The said award is therefore set aside and substituted accordingly. iv. Special Damages 22.On the award of special damages, the Court finds no basis upon which to interfere with the decision of the trial court. It is trite law that special damages must not only be specifically pleaded but must also be strictly proved, and the record demonstrates that the Appellant duly discharged this burden through the production of documentary evidence in support of the funeral and related expenses. 23.Notably, this head of damages was not the subject of any serious contest on appeal, nor was any challenge raised to the receipts and documents relied upon by the trial court. In the circumstances, the award of KShs. 172,175/= under the head of special damages was properly founded both in law and in evidence, and this Court accordingly upholds the same in its entirety. F. Determination 22.The Court therefore finds that the appeal succeeds partially and is hereby allowed on the following terms:i.On quantum:Pain and suffering Kshs. 40,000/=Loss of expectation of life Kshs. 120,000/=Loss of dependency Kshs. 1,100,000/=Special damages Kshs. 172,175/=Total Kshs. 1,332,175/=ii.Interest on general damages to run from the date of judgment in the lower court.iii.Appellant is awarded half of the costs of the Appeal.It is so ordered. DATED, DELIVERED, AND SIGNED AT MALINDI ON THIS 17TH DAY OF JULY 2026……………… C.AKAIGWAJUDGEIn the presence of:NA for AppellantsNA for RespondentsNasra-Court Assistant