https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12737

Nyang’au & another v Kimaku (Suing as the widow and administratix of the Estate of Stephen Ndegwa Muriithi - Deceased) (Civil Appeal E031 of 2024) [2026] KEHC 12737 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 12737 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E031 of 2024 ACA Ong’injo, J July 9, 2026 Between Geoffrey Moenga Nyang’Au 1st Appellant Scooby Enterprises Limited 2nd Appellant and Margaret Musinzi Kimaku (Suing As The Widow And Administratix Of The Estate Of Stephen Ndegwa Muriithi - Deceased) Respondent (Being an Appeal from the Judgment and Decree at the Chief Magistrate’s Court in Migori, CMCC No. 318 of 2017 delivered by Hon. Naomi Wairimu, Senior Principal Magistrate on 14th May 2024) Judgment 1.The Respondent sued the Appellant as the legal representative of the estate of Stephen Ndegwa Muriithi before the trial court vide a plaint dated 20th July 2017 seeking for damages against the Appellant under the Fatal Accident (Cap.32, laws of Kenya) and Law Reforms Act (Cap. 26, laws of Kenya) for the estate of the deceased who died from injuries arising out of a road traffic accident that took place on 19th August 2015. 2.At the time of the accident, the Deceased was 42 years old, a Police constable, earning salary of Kshs. 33,428/= per month and had a wife and two sons as dependents. 3.The Respondent’s case was that on the material around 1930hrs at Awendo Township, the deceased was walking on the road when suddenly and by reason of negligence in driving, managing and controlling motor vehicle registration number KCC 083U reckless on the part of the 1st defendant as a driver of the said motor vehicle an accident occurred in which the deceased sustained fatal injuries to which he succumbed. The Respondent attributed the accident to the negligence and/or recklessness of the Appellant’s driver/agent. 4.The Appellant led a Defence dated 28th August 2017 in which he denied the allegations made in the Plaint and put the Respondent on strict proof. 5.The matter proceeded to hearing of the parties evidence and the parties recorded a consent on liability in the ratio of 75% :25% in favour of the Respondent as against the Appellant. The court was thus left with the task of determining the amount of quantum awardable to the Respondent. The Parties filed their respective submissions and the trial court delivered its judgement on 14th May 2024 in the following terms:-a.Liability at 75%:25% in favour of the Respondent as against the Appellant at had been consented.b.Pain and suffering Kshs. 100,000/=c.Loss of dependency (34,428 x 12 x 8 x 2/3) Kshs. 4,957632/=d.Special Damages – Kshs. 126,000/=Sub-total – Kshs.5,183,707/=Less damages loss and expectation of life Kshs. 100,000/=Sub-total Kshs. 5,083,707/=Less 25% liability Kshs. 1,270,925/=TOTAL Kshs.3,812.780/=e.Respondent was awarded cost of the suit 6.Being aggrieved by the judgement, the Appellant filed this memorandum of appeal dated 29th May 2024 and amended on 21st November 2024 challenging the judgement of the trial court on the following grounds.1.That the learned Trial Magistrate erred in law and fact by awarding the Respondent Kshs.100,000= for pain and suffering, an amount which was excessive in the circumstances of this case.2.That the learned Trial Magistrate erred in law and fact by awarding the Respondent Kshs.4,957,632= for loss of dependency which was so excessive as to amount to erroneous estimate of loss or damage suffered by the estate of the deceased.3.That the learned Trial Magistrate erred in law and fact in adopting a multiplier of 18 years for a 42-year-old deceased person, without taking into account the vicissitudes and vagaries of life, especially for the deceased herein who was in a high-risk job as a police officer.4.That the learned Trial Magistrate erred in law and fact in applying a multiplication of Kshs.34,428/= without deducting the allowances enjoyed personally by the deceased and the income tax (P.A.Y.E) of the deceased.a.That the learned Trial Magistrate erred in law and fact in applying the multiplicand of Kshs. 34,428/= without any justification and/or basis in law.b.That the learned Trial Magistrate erred in law and fact in computing the multiplicand when she failed to use the basic salary of Kshs.25,578/=less the statutory deductions.c.That the learned Trial Magistrate erred in law and fact in applying a multiplicand of Kshs.34,428/= instead of Kshs. 20,512.45/= which is the total amount earned by the deceased after statutory deductions (Widows and Children Pension Scheme (WCPS) contribution, PAYE and NHIF) totaling to Kshs. 5,065.55/= have been made on the basic salary as per pay slip produced in Court as an exhibit by the Respondent.d.That the learned Trial Magistrate erred in law and fact in failing to take into account the mandatory statutory deductions particularly the Widows and Children Pension Scheme (WCPS) contribution, PAYE and NHIF in computing the multiplicand.e.That the learned Trial Magistrate erred in law and fact in including the allowances namely hardship allowance, Housing supplementation and police risk allowance as part of the multiplicand.5.That the Trial Magistrate erred in law and fact in adopting a multiplicand of2/3 when there was evidence on record that the wife of the deceased contributed towards supporting the family.6.That the learned Trial Magistrate erred in law and fact by awarding the Respondent Kshs.126,075/= as special damages which were not proved to the required standard.7.That the learned Trial Magistrate erred in law and fact in over-relying on the evidence by the Respondent which was not corroborated in awarding damages hence arriving at a wrong decision.8.That the learned Trial Magistrate erred in law and fact in failing to consider the Appellants submissions and legal authorities relied upon in support of their Defence thereof.9.That the learned Trial Magistrate erred in law and fact by not evaluating and analyzing the entire evidence on record adequately.10.That the learned Trial Magistrate erred in law and fact by over-relying on the Respondent submissions and legal authorities which were not relevant to the suit and without addressing her mind to the circumstances of the case.11.That the learned Trial Magistrates decision albeit, a discretionary one was plainly wrong.Wherefore The Appellant herein prays that:-a.That the Appeal be allowed.b.That the Judgement of the subordinate court be set aside and the same be substituted with a proper court judgement.c.That the Respondent to pay costs of this Appeal. 7.The appeal was canvassed by way of written submissions. Both parties filed their respective written submissions dated 29th April 2025 and 13th May 2025 respectively.The Appellants submissions are to the effect that the award for pain and suffering of Kshs. 100,000/= was excessive and unreasonable considering that the deceased died the following the same day as the accident. While relying on the case of Florence Awuo Owuoth Vs Paul Jactone Ombayo {2020) eKLR, the respondent proposed a sum of Kshs. 10,000/= as an adequate award.It was also the Appellants submissions that the Trial court misdirected herself by using the wrong multiplicand. To this end, it was submitted that the correct mutliplicand should be the Net earnings and not the Gross earnings as was applied by the trial court. This was supported by the authority of M’iruura & another V Kariuki (2003) KEHS 25385 (KLR) among other noted authorities. This court was thus invited to use a multiplicand of Kshs. 20,514.45/= in place of Kshs. 25,512.45/= 8.The Appellant further submitted that the multiplier of 18 years as used by the court was not justified and made reference to Monda Vs. Suji & another (suing as the Legal Representatives of the estate of Mathew Okello Ombonya Deceased) (civil Appeal E032 of 2022) (2023) KEHC 2778 (KLR) (22 March 2023) (Judgement), where this court was asked to adopt a multiplier of 13 years. 9.It was submitted that the dependency ratio of 2/3 as adopted by the Trial Court should be substituted with a ratio of 1/3 with reliance on the case of James Mutunga Mbinda Vs. Stephen Mwarula and another (Suing as the legal representatives of the estate of Winfred Mbatha Mwalula (2021) eKLR 10.The Appellant submitted that the award of Kshs. 126,075/=for special damage was excess and should be substituted with Kshs. 30,000/= as was decided in Peter Kimani Wainaina and Teresia Kanyi Kimondo (Suing as the Administrators of the Estate of John Kimani Ngungu (Deceased) v Susan Kanyi Meme & Another (2022) eKLR 11.The Respondent while citing several authorities submitted that the awards by the trial court were fair, just and reasonable and not in any way excessive and urged this court to uphold the award of the Trial Court. Analysis And Determination 12.This being a first appeal the Court has a duty to reconsidered and re-evaluated the entire record and has made due allowance with respect to the fact that I have neither seen nor heard the witnesses. and in this regard, I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016]KECA 557 (KLR) in which the Court of Appeal stated as follows:-“This being a first appeal it is trite law, that this Courtis not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this 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. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.....” 13.In consideration of this appeal, this court is minded that assessment of damages is a matter of discretion of the trial court that should not be interfered with, unless the quantum of damages awarded is inordinately high or low. This was stated by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] eKLR as follows:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985] KLR 470).” 14.Having carefully considered this appeal, the record dated 4th March 2025 as well as rival submissions together with the authorities cited the issues that arise for determination are:-i)Whether the award for pain and suffering was justified.ii)Whether the award for loss of dependency was justified.iii)Whether the special damages awarded were justified.iv)Who should bear the costs of the appeal? Whether the award of pain and suffering was justified 15.In regard to the pain and suffering, the trial court awarded Kshs 100,000/=. The trial court stated that the basis of the award was that the deceased died several hours while receiving treatment in the hospital. The Appellant submitted that the award was excessive and the right amount should be Kshs. 10,000/= because the deceased died on the same day of the accident. On the other hand, the Respondent submitted that the award of Kshs 100,000/= was justifiable and reasonable. 16.In the case of West Kenya Sugar Co. Limited vs Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) (2019) eKLR , Njagi J (as he then was) observed that-“The principle is that 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. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.” 17.The Respondent invited the courts attention to the post mortem report of the deceased. A quick perusal of the said report indicates that the deceased suffered severe internal hemorrhage, leading to his death. 18.In the case of Sukari Industries Limited vs Clyde Machimbo Jumba (2016) eKLR Majanja J. stated:-“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 after 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………” 19.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 dies later on. In this case, the deceased passed away on the same day of the accident, but hours later. He cannot be said to have died on the spot. He died, according to the post mortem report and the evidence on record, from severe internal hemorrhage sustained from the road traffic accident 20.The question, therefore, is whether the award of Ksh. 100,000/= for pain and suffering was excessive. The damages for pain and suffering were awarded at 100,000/=. The deceased died after some hours of excruciating pain. The court awarded nominal damages of Kshs. 100,000/=. The Appellant proposed Kshs.10,000/= under this head while the Respondent submitted that the award of Kshs. 100,000/= was proper. 21.I do not find the award of damages of Kshs. 100,000/= for a person who died after three or so hours to be inordinately excessive. I find no reason to depart from the comparable awards and therefore I do not find a reason to disturb the discretion of the court. The appeal in respect thereto is therefore dismissed. Whether the award for loss of dependency was justified. 22.While the Respondent was satisfied with the awards of the lower court under this heading, the Appellant however took issues with both the multiplicand the multiplier and loss of dependency ratio as was applied by the court. The Appellant while relying on the case of M’iruura & another V Kariuki (2003) KEHS 25385 (KLR) where Lady Justice L Nzioka held that what should be adopted is the gross salary less statutory deductions which were being deducted from the deceased earnings, opined that the amount of Kshs. 34,428/= as applied by the trial court was erroneous. It was their submission that the court ought to have used a multiplicand of Kshs. 20,512.45/= 23.In Maigwa (Suing as Legal Representative of the Estate of Ezekiel Katupa) vs. British Council (Civil Appeal 178 of 2018) [2023] KECA 157 (KLR) the learned judges held thus: -“.From the cited authorities, it is evidently clear that in arriving at a multiplicand, this Court has always adopted the formula proposed by the appellant. That is to say, the multiplicand should be a deceased person’s gross income less statutory deductions…” 24.I find that the trial court erred in adopting the net salary of Kshs.34,428/= which was not on the pay slip as the multiplicand. I have perused the deceased’s pay slip (P.Exh17) and I find that he earned a gross salary of Kshs. 33,428/=. I have also considered the statutory deductions which were Kshs. PAYE at Kshs. 4,234, Widows and Children Pension Scheme contribution of Kshs. 511.55 and NHIF of Kshs. 320/=, a total of Kshs. 5,065.55/= in deductions. Consequently, I find that the correct multiplicand should be computed as follows: -(33428- 5,065.55) = Kshs.28,362.55/=. 25.On the multiplier, the Appellant had issues with the Trial Courts adoption of 18 years terming it unreasonable. From the death certificate produced and the records, it is evident that the deceased at the time of his demise was 42 years and a police constable with retirement age of 60 years. The court was invited by the Appellant to note that the deceased was working in a high-risk job as a police officer and that a multiplier of 13 years would be reasonable. Reliance was made on the case of Monda Vs. Suji & another (suing as the Legal Representatives of the estate of Mathew Okello Ombonya Deceased) (civil Appeal E032 of 2022) (2023)KEHC 2778 (KLR) (22 March 2023). 26.The Courts have developed guidelines on multiplier and multiplicand. The multiplier is the number of years the deceased would have been in gainful employment. In the case of Kenya Wildlife Services vs. Geoffrey Gichuru Mwaura [2018] eKLR, the court held;“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must, in the first instance, determine the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years of purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life for the deceased, the expectation of life and dependency of the dependents, and the chances of life for the deceased and dependents. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested, yield returns of an income nature." 27.The court agrees with the Appellant that the deceased was working in a high-risk job and reduces the multiplier to 15 years from 18 years. This is based on the fact that despite the work of police being a high-risk job, a significant number of police officers successfully retire from service at the designated age of 60 years. 28.On dependency ratio, the court adopted 2/3 ratio on arriving at its award. From the record, the deceased was a husband and a father of two children during at the time of his demise. PW1 testified that she is a teacher employed by the Teachers Service Commission. It was the contention of the Appellant that the dependents of the deceased did not entirely depend on the deceased because the wife was also gainfully employed. The Appellants assertion that PW1 was earning more than the deceased husband is not a ground upon which dependency can be quantified and it is therefore disregarded. 29.The court is persuaded by the authorities cited by the trial court and more specifically Gordon Ouma Sunda & Another Vs. Adan Abrikadir & Another [2019] eKLR in which the Court observed that it is only reasonable to expect that an African man will financially support his wife and children, and therefore allowed a dependency ratio of 2/3. 30.I therefore find no reason to interfere with the dependency ratio of 2/3 as adopted by the Learned Trial Magistrate. Accordingly, the damages for dependency is calculated as follows:-28,362.55x15x12x2/3= Kshs. 3,403,506/= Whether special damages awarded were justified. 31.The rial court awarded a sum of Kshs. 126,075 as pleaded by the Respondents. It is trite law that special damages must be specifically pleaded and proven for the same to be awarded. The Appellant contended that the receipts relied on and produced by PW1 did not bear the revenue stamp contrary to Section 19 of the Stamp Duty Act Cap 480 Laws of Kenya, which provides that:Subject to the provisions of subsection (3) of this section and to the provisions of sections 20 and 21, no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever, except—(a)in criminal proceedings; and(b)in civil proceedings by a collector to recover stamp duty, unless it is duly stamped. 32.As regards funeral expenses, The Court of Appeal in Premier Diary Limited vs. Amarjit Singh Sagoo & another[2013] eKLR, stated as follows with regards to the standard of proving funeral expenses;“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 ofKshs.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. Wea re 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.” 33.An examination of the receipts produced by the Respondents towards funeral expenses do not bear any stamp duty. I am persuaded by reasoning in Azad Kara vs. Mwangi Mutero Mombasa HCCC No. 222 of 1997 where it was held that whereas it is mandatory under section 19 of the Stamp Duty Act, Cap 480 Laws of Kenya for an agreement to be stamped in order for it to be admissible in evidence however that does not make the document useless in evidence as the omission is curable under section 20 of the Stamp Duty Act. The Appellant did don’t object to the production of the said receipt at the lower court during trial and cannot at this stage question their admissibility. 34.The Appellant opined that in awarding funeral expenses, the court must consider the status of the deceased prior to his death. The court takes judicial notice that the deceased was a police officer whose funeral would be expected to be modest and befitting the status of a police officer. 35.Having considered the issues raised in this appeal this court finds that the award ought to have been as hereunder:Liability at 75%:25% in favour of the Respondent as against the Appellant at had been consented.Pain and suffering Kshs. 100,000/=Loss of dependency 28,362.55 x 15 x 12 x 2/3 Kshs. 3,403,506/=Special Damages – Kshs. 126,000/=Loss of expectation of life Kshs. 100,000/=Sub-total – Kshs.3,729,506 /=Less damages loss and expectation of life Kshs. 100,000/=Sub-total Kshs. 3,629,506/=Less 25% liability Kshs. 907376.50TOTAL Kshs.2,722,129.50/= 36.Accordingly, judgement is entered in the foregoing terms. 37.The Appellant having succeeded partially, the Respondent is awarded 75% of the costs of this appeal. The costs of the lower court are however awarded to the Respondent. Interest on special damages to accrue from the date of filing of the suit whereas interest on general damages to accrue from the date of judgment in the trial court. 38.It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI ON THIS 9TH DAY OF JULY 2026LADY JUSTICE ANNE ONGI’NJOJUDGEDelivered in the presence of:Victor and Calvince – Court AssistantsMr. Kamau Advocate for the AppellantsMr. Gori Advocate for the Respondent.