https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9111

Njoroge v Mwaniki & another (Suing as the Estate of Ambrose G Gichobi) (Civil Appeal E020 of 2023) [2026] KEHC 9111 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9111 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E020 of 2023 RA Oganyo, J June 26, 2026 Between Njuguna Njoroge Appellant and Catherine W Mwaniki & John M Muriuki (Suing as The Estate Of Ambrose G Gichobi) Respondent Judgment 1.This appeal arises out of the decision of Hon. Geno L. okwengu Senior Resident Magistrate, in Kilungu Chief Magistrate’s Court Civil Suit No. E066 of 2023; where the Respondent sued the Appellants claiming general damages under the Fatal Accidents Act and Law Reform Act; Special damages in the sum of Kshs. 70, 550/- and any other relief the court would deem fit to grant. 2.The plaintiffs in the lower court, Catherine W. Mwaniki & John M. Muriuki filed the instant suit in the Chief Magistrates Court as the legal representative for and on behalf of the estate of Ambrose Gachoki Gichobi against the appellant herein as a result of an accident that occurred on the 15th March, 2022 along the Nairobi Mombasa Highway when the Appellant’s authorised driver Motor vehicle is alleged to have carelessly and negligently drove motor vehicle registration number KBH 142X that it lost control and collided into Motor vehicle registration number KCT 991T which was extensively damaged and a result of which, the Deceased suffered fatal injuries. 3.The gist of the appeal as set out in the memorandum of appeal is on quantum; judgement on liability having been entered by consent of both parties in the ration of 50:50. 4.On quantum, the Honourable Magistrate awarded the Plaintiffs a sum of Kshs 50,000/- for pain and suffering, a sum of kshs. 150,000/- for loss of expectation of life, a sum of Kshs. 2,764,680.13 for loss of dependency and a sum of Kshs. 41,550 in special damages. 5.In the memorandum of appeal, the appellants impugned the trial magistrate’s quantum award on grounds that the Hon. Magistrate erred in law and fact by awarding manifestly excessive and undeserved general damages under the Fatal Accidents Act of Kshs. 2,274,480.13 without giving any reasons for the same and without the deceased’s income as a driver and without considering conventional awards for cases of a similar nature, that the trial magistrate erred in law and fact by awarding an exorbitant damage for loss of dependency, that the trial magistrate erred in law and fact by failing to apply proper principles of law while assessing damages and that the trial magistrate erred in law and fact by failing to take into consideration the award under the Law Reform Act while making the award under the Fatal Accidents Act. 6.This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co. [1968] EA 123). In Kiruga v Kiruga & Another [1988] KLR 348, the Court of Appeal observed that;” An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 7.As mentioned in paragraph at the apportion of 50:50 by consent of parties. The parties further consented that the court proceeds to hear the Plaintiff’s witnesses on quantum. PW1 Catherine Wangui Mwaniki testified that she is the deceased’s wife. She said that she had recorded her witness statement dated 14th February, 2025 and prayed that the same be adopted as her evidence in chief. In her statement, she recalled that on 5th March, 2022, she received a call informing her that her husband had been involved in an accident and rushed to sultan Hamud Hospital. She said that she rushed there and confirmed the same and that her husband later succumbed to the injuries on the same day. She said that her husband was d driver earning a monthly salary of Kshs. 40,000/-. She said that he was a healthy man with no health conditions. In cross examination, PW1 stated that her husband was paid in cash and that she didn’t have his letter of employment, she stated that she didn’t have any insurance documents or any other documents to prove the deceased’s earning. She also said that she had no receipts in prove of funeral expenses. This marked the close of the plaintiff’s case. The Defendants closed their case without calling any witnesses. The parties consequently filed their submissions and judgement was entered as per paragraph 4 above. Analysis and Determination 8.The appeal was dispensed of by way of written submissions which I have read and considered. The main issues for determination are1.Whether the learned Magistrate erred in law and fact by awarding excessive and undeserved general damages under the Fatal Accidents Act without reasons, sufficient proof of the deceased’s income as a driver, and due consideration of conventional awards in comparable cases.2.Whether the learned trial Magistrate erred in law and fact in assessing damages under the Fatal Accidents Act without considering the award made under the Law Reform Act. 9.On the 1st Issue, the Plaintiff testified that the deceased was a driver earning a sum of Kshs. 40,000/- per month. She said that the deceased was paid in cash and therefore she had no documentary evidence to prove the deceased’s earning. The deceased was said to be 42 years old and in good health and therefore had 18 years to work. The trial magistrate took notice of the said fact and opted to apply the multiplier approach arguing that he applied the minimum wage as the deceased’s monthly salary and applied a dependency ratio of 2/3. And 18 years as the period which the deceased could have worked. 10.The Appellant impugned the court’s reliance on the minimum wage arguing that the trial magistrate awarded excessive and undeserved general damages under the Fatal Accidents Act without reasons, sufficient proof of the deceased’s income as a driver, and due consideration of conventional awards in comparable cases. 11.It is now settled that where income is not proved, the courts will apply the global sum approach in computing damages under the fatal accidents act. The courts have emphasized that where there are no bank statements showing his earnings this approach be applied. Both counsels have made an estimate of the same using no figures. In this court’s opinion that will be mere conjencture. It is better to opt for the principle of a lumpsum award instead of estimating his income in the absence of proper accounting books. 12.In the instant case, the magistrate used the multiplier approach to assess damages. No documentary evidence was produced to support the earnings. The plaintiff did not provide any basis for the amount which was proposed as the deceased’s income 13.In Jacob Ayiga Maruja & Another v Simeone Obayo CA Civil Appeal No. 167 of 2002 [2005] eKLR the Court of Appeal observed that;“We do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. 14.Ringera J., in Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another quoted by Koome J., in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR where he expressed the following view;“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.” 15.No documentary evidence was produced to prove the deceased’s income in the instant case. He was a 42 -year old and in good health whose life was cut off in the accident. I am persuaded by the authorities afore-referenced that where, in the absence of proof of income, the trial magistrate ought to have applied the global sum approach instead of the multiplier approach. 16.In the instant suit, the deceased was survived by his widow and two children aged nine and twelve years who are children of a tender age who would definitely have depended on the deceased for a long period. In Chege & another v Gathiru & another [2026] the court awarded a sum of Kshs. 2, 100,000/- for loss of dependency. This being a relatively recent decision, and guided by it, I hereby quash the order of the court, set aside the award of Kshs. 2,764,680/13 and substitute it with an award of Kshs. 2,100,000/- in lost dependency. 17.On the 2nd issue of Whether the learned trial Magistrate erred in law and fact in assessing damages under the Fatal Accidents Act without considering the award made under the Law Reform Act, Majanja J in Oyugi Judith & another v Fredrick Odhiambo Ongong & 3 others [2014] eKLR while relying on Kemfro v A. M. Lubia & Another [1982-1988] KAR elucidated this principle and explained that;“The 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 hence the claim for lost years and dependency will go to the same persons. The principal 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.” 18.I therefore find that that the trial magistrate correctly applied this principle and I will therefore not disturb the award made under the Law Reform Act. 19.I consequently set aside the Trial Court’s judgement on loss of Dependency and enter judgement as follows:i.Pain and suffering Kshs. 50,000/-ii.Loss of expectation of life Kshs. 150,000/-iii.Loss of dependency Kshs. 2,100,000/-iv.Special damages Kshs. 41,550/-Total Kshs. 2,341,550/-Less 50% contribution (Kshs. 1,170,775)v.Net award Kshs. 1,170,775/- 20.On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal. 21.It is so ordered. DATED, SIGNED AND DELIVERED VIA TEAMS AT NAIROBI THIS 26TH DAY OF JUNE, 2026.………………….….ROSELINE OGANYOJUDGEIn the presence of:Court Assistant…E, Sana.Counsel for Appellant…Mr. AgataCounsel for Respondent…Miss Muende