https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7307

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NO. E063 OF 2024** **EVANS OKOTH OTIENO……….……………………………1ST APPELLANT** **KENNEDY OGAWO YAHUMA……………………..…….2ND APPELLANT** **-VERSUS-** **BERNARD ODHIAMBO OWUOR (Suing as the legal representative of the Estate of ZILPA ONYANGO ODHIAMBO – (DECEASED)…………………………………………………..RESPONDENT** **(Being an appeal from the Judgment/Decree of Honourable J.P. Nandi (SPM) delivered on 26/9/2024 in Bondo PMCC No. 041 of 2022)** **BETWEEN** **BERNARD ODHIAMBO OWUOR (Suing as the legal representative of the Estate of ZILPA ONYANGO ODHIAMBO – (DECEASED)……………………… ………………………………. PLAINTIFF** **VERSUS** **EVANS OKOTH OTIENO……….………..………..………1ST DEFENDANT** **KENNEDY OGAWO YAHUMA ………………….………2ND DEFENDANT** **MOTOROLOGY LIMITED…………..……………….……3RD DEFENDANT** **JUDGMENT** 1. The appeal arises from the Judgment and orders of the Honourable J.P Nandi (SPM) delivered on 26th September, 2024 in Bondo PMCC No. 041 of 2023 wherein he apportioned liability against the 2nd Appellant at 100% and went ahead to award the Respondent Kshs 100, 000/ for pain and suffering, Kshs 1, 200, 000/ for loss on dependency, Kshs 100, 000/ for loss of expectation of life, Kshs 400, 000/ funeral expenses and special damages of Kshs 550/ and further awarded the Respondent costs of the suit and interest on special damages from date of filing suit while on general damages from the date of judgement. 2. The Appellants were aggrieved and duly filed a Memorandum of Appeal dated 24th December, 2024 wherein they raised the following grounds of appeal namely; - 3. That the learned trial Magistrate erred in law and in fact in awarding Kshs. 400,000/= as funeral expenses which award was not proved. 4. That the learned trial Magistrate erred in law and in fact in awarding Kshs. 100,000/= for pain and suffering which award was excessive and erroneous as the deceased died on the same date of accident. 5. That the learned trial Magistrate erred in fact and in Law in failing to consider the Appellant’s submissions on quantum by completely disregarding the submissions and authorities of the Appellant and as a result arrived in an unjustified decision on quantum. Reasons wherefore, the Appellant prays for orders inter alia; that the appeal be allowed and the decree of Honourable J. P Nandi (SPM) be set aside; that this Honourable Court do re-assess the evidence on record of the Subordinate Court on quantum and award with its own decision; that that the Appellant be awarded the costs of this Appeal. 3. This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and to arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See **Selle vs associated Motor Boat Co. Ltd (1968) E. A 123).** Also in in **Peters Vs Sunday Post Limited[1958] EA 424**, the Honorable Court therein rendered itself as thus; ***“it is a strong thing for an appellant court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witness… But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”*** 4. A perusal of the lower court record reveals that the Respondent had lodged suit vide a plaint dated 13th February, 2023 wherein he pleaded that the deceased had been a fare paying passenger in the Appellants’ motor vehicle registration No. KDC 696Q Toyota Hiace along Bondo-Usenge road when the Appellant’s driver or agent drove the said vehicle carelessly/negligently at high speed that he caused it to lose control and rolled severally thereby occasioning the death of the deceased herein. The Respondent blamed the Appellants and duly pleaded particulars of negligence on the part of the Appellants. The Appellants filed defence dated 4th April 2023 wherein they denied the particulars of negligence attributed to them and blamed the Respondent for causing the accident and went ahead to particularize negligence on the part of the Respondent. The trial commenced in earnest on 2/5/2024. 1. **Bernard Odhiambo Owuor (PW1** testified inter alia; that he stays in Nyangoma sub location; that the deceased was his wife; that he recorded his statement on 13/2/2023 which he adopted as his evidence in chief. It was his evidence that the accident was wholly caused by the negligence of the driver of m/v registration number KDC 696Q who was later charged with an offence of dangerous driving vide Bondo PM Traffic case No.E 118/2022 and later convicted therefor. That the deceased had been a business lady who used to assist him in providing for the family’s needs such as school fees, food etc. That he and the deceased used to run a shop together and earned Kshs 30,000-50,000/ per month. That the decased left behind five children who have now been left without their mother’s love and care. That he blamed the driver for the accident. On cross examination, he stated inter alia; that he had not produced the certificate of birth; that they had 5 children with the deceased; that two of the children were still minors at the of the accident as they were still attending school aged 26 and 22; that they received contributions from friends and family; that he did not see it fit to produce documents showing proof of earning. 5. The parties agreed that liability in Bondo SPMMCC No. E003 of 2023 do apply in the mater. Learned counsel for the Respondent closed his case and likewise the Appellants. 6. The trial court later came up with the impugned judgment. 7. The appeal was canvassed by way of written submissions. 8. There are no submissions on record for the Appellant. 9. The Respondent raised one issue for determination namely, whether the award of damages by the trial court was objective. It was submitted that it’s trite that special damages must not only be specifically pleaded but also strictly proved with as much particularity as circumstances permit however there are exceptions to the general rule. **The Court of Appeal (Makhandia, Ouko & M’inoti, JJ.A) in Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited (2016) KECA 56 (KLR)**, held as follows; **“We do not discern from our reading of this decision a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved. Further the facts in that case are clearly distinguishable from the facts of this case. We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs etc..”** 1. Similarly, in **JNK (Suing as the legal representative of the Estate of KMM(Deceased) vs Chairman Board of Governors […] Boys High School (2018) Eklr** it was held that; **“In spite of lack of receipts this Court ought not to turn a blind eye to the fact that there were funeral costs incurred as a result of the burial of the deceased.”** Further reliance was placed in the Court of Appeal decision, in **Premier Dairy Limited vs. Amarjit Singh Sagoo & another [2013] eKLR,** that: **“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 of Kshs. 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. We are 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.”** 10. It was further submitted that in light of the above authorities and in the absence of funeral expenses receipts, this being a fatal accident case, the court should not turn a blind eye to the fact that a funeral was organized for the deceased and that expenses were incurred which the trial court took into consideration in the absence of expenses receipts and awarded a reasonable sum of Kshs. 400,000/- which amount is dependent on several factors such as the customs of a particular community and or the financial capability of the family of the deceased, etc. That the award of funeral expenses is objective to the extent that in fatal accident matters, it is a matter of common notoriety that funeral expenses are always incurred in interring the deceased by the family and the representatives, and in the absence of such receipts the court can at its discretion to a reasonable extent award the same. 11. As regards the award on pain and suffering it is trite that the assessment of general damages is discretionary. Reliance was placed on the case of **Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR**, where the court in discussing awards for pain and suffering and for loss of life expectation stated 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 awards range from Kshs. 10,000/- to Kshs. 100,000/- with higher damages being awarded if the pain and suffering was prolonged before death.”** The Respondent urged the court to consider the fact that the postmortem report shows that the deceased died at 1845 hours on the 17/9/2022 while the accident occurred at 1600 hours, this shows that the deceased endured much pain before she died and thus the award by the trial court was objective. Hence, the appellants’ prayer on review on the quantum of damages with respect to pain and suffering is misplaced and the award by the trial court should be upheld. 13. It was finally submitted that this court upholds the decision of the trial court by rejecting the Appellant’s appeal and award costs in favor of the Respondent. 14. I have given due consideration to the record of appeal and the submissions tendered. I find that the issue for determination is whether the apportionment of liability and awards of damages by the trial court was appropriate. 15. It is trite that assessment of damages is an exercise of judicial discretion and the Court in assessing award of damages, should take into account, so far as possible, comparable injuries and the passage of time from when the award was made, that is the rate of inflation. The Court of Appeal observed in **Simon Taveta vs. Mercy Mutitu Njeru (2014) KECA 755 (KLR)** that: **“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”** See ***Arrow Car Limited vs. Elijah Shamalla Bimomo & 2 others (2004) KECA 136 (KLR)*** 1. The Court of Appeal **in Kaikai v Chacha & 2 others (Civil Appeal E028 of 2020) [2025] KECA 1278 (KLR) (11 July 2025) (Judgment) Neutral citation: [2025] KECA 1278 (KLR)** had this to say: **‘’It is trite that each case must be determined on its circumstances as injuries suffered cannot be 100%** **identical. The award of general damages is not a mathematical exercise in which a court takes a calculator to add or subtract from previous awards. Each case depends on its own facts, and the award of damages is just an estimate that should be as close as possible for similar injuries. This means that unless an award is inordinately low or high, an appellate court should be slow to interfere with an award of damages by the trial court. This is because, unlike an appellate court that only relies on what is written on paper, the trial Judge has the advantage of seeing the victim of the accident assess the impact of the injuries, even as they consider the medical reports.”** Also, the Court of Appeal in **Butt vs. Khan [1981] KLR 349,** held that an appellate court will only interfere with the award of damages where it is shown that the trial court took into consideration an irrelevant fact or that the sum awarded is inordinately low or high that it must be an erroneous estimate of the damages or that a wrong principle of law was applied in awarding the damages. 16. As regards the aspect of liability, it is noted that the parties agreed by consent that liability as established in Bondo PMCC No. E003 of 2022 that had been chosen as the test suit would apply. It is not in dispute that liability against the Defendants in that suit was apportioned at 100%. Furthermore, it is instructive that the deceased herein had been a fare paying passenger in the Appellants’ motor vehicle and hence she had no control in the manner in which the vehicle was driven, controlled and or managed. The deceased thus did not contribute to the accident in any way. Indeed, it was the responsibility of the Appellabts driver to ensure that the passengers reached their destinations safely. I find that the fat the vehicle lost control and rolled severally is clear proof of negligence on the part of the Appellants driver. Further, it transpired that the Appellants driver was charged before Bondo PM’s court traffic case number E118 of 2022 where he was convicted for an offence of dangerous driving. Looking at all the circumstances, iam satisfied that the Appellants appeal on liability must fail. The same is dismissed. 17. A regards the awards of general damages, it is noted that the Appellants have contested the same on all the heads. Starting with pain and suffering, the Appellant had proposed before the trial court the sum of Kshs 10,000/ and relied on the case of Kenya Railways Corporation Vs Samuel Mugwe Gioche [2012]eKLR. The autopsy report produced in the lower court indicated that the death occurred at 1845 hours, while the evidence is that the accident took place at 1600 hours, which implies that the deceased suffered excruciating pain for over two hours before breathing her last. There was evidence that the deceased suffered a lot of pain. The conventional awards have ranged between 10,000/-and 200,000/. I find that the award of Kshs 100,000/ by the learned trial magistrate was not excessive in the circumstances and that the same must be upheld. 18. As regards the award on loss of expectation of life, the conventional sums have always been within the region of Kshs 100,000/. Indeed, the Appellant’s counsel in the trial court had submitted that the award should not exceed the aforesaid sum. Hence, I uphold the award of Kshs 100, 000/ by the trial court. 19. As regards the award on loss of dependency, the Appellant’s counsel in the trial court had proposed the sum of Kshs 600, 000/ as a lump sum amount since the Respondent did not avail any evidence of income earned by the deceased. Indeed, even counsel for the Respondent in the lower court was of the view that a global sum approach was the best way in the circumstances due to lack of proof of income earned by the deceased. It transpired that the deceased died at the age of 45 years but still had two children still in school aged 22 and 26 years. It is not in dispute that the deceased still had a productive life at that age. The ages of the said two children indicate that they were adults, but due to the fact that they were still undergoing studies, they still depended on their parents. Hence, I find that the estate deserved to be compensated for the death of the breadwinner. In the trial court, learned counsel for the Respondent had proposed the sum of Kshs 1,500, 000/ while the counsel for the Appellant had proposed the sum of Kshs 600, 000/. The authority relied upon by the Appellant namely Moses Wetangula & Another Vs Eunice Titika Rengetiang [2018] eKLR had a global sum of Kshs 500, 000/ awarded to a 42 year old deceased for loss on dependency under the Fatal Accidents Act. Also in the case of Amazon Energy Ltd Vs Josephine Martha Musyoka & Another [2019] eKLR Nyakundi J reduced a lower court’s global award of Kshs 2, 500, 000/ for loss of dependency to Kshs 1, 200, 000/ on the ground that the deceased was 56 years old and that his only child was in college. Looking at the circumstances of the Respondent vz-a viz those of the deceased persons in the aforesaid cases and the effects of inflation, iam satisfied that the award of Kshs 1, 200, 000/ by the trial court was not excessive and that it was reasonable in the circumstances. I find that the learned trial magistrate did not consider irrelevant wile arriving at the aforesaid sum. I will uphold the same. 20. As regards the award of funeral expenses, it is noted that the Appellant has taken great exception at the sums and contended that the same was excessive and that the same were in the nature of special damages and which must be specifically proved. According to the Appellants, the said award ought to be rejected. It is trite that special damages must not only be specifically pleaded but also strictly proved with as much particularity as circumstances permit however, there are exceptions to the general rule. **The Court of Appeal (Makhandia, Ouko & M’inoti, JJ.A) in Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited (2016) KECA 56 (KLR)**, held as follows; **“We do not discern from our reading of this decision a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved. Further the facts in that case are clearly distinguishable from the facts of this case. We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs etc..”** Similarly, in **JNK (Suing as the legal representative of the Estate of KMM(Deceased) vs Chairman Board of Governors […] Boys High School (2018) Eklr** it was held that; **“In spite of lack of receipts this Court ought not to turn a blind eye to the fact that there were funeral costs incurred as a result of the burial of the deceased.”** Further reliance was placed in the Court of Appeal decision, in **Premier Dairy Limited vs. Amarjit Singh Sagoo & another [2013] eKLR,** that: **“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 of Kshs. 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. We are 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.”** It is noted that the Respondent was unable to specifically prove the special claims as he did not avail the authors of the bundle of receipts and thus ended up proving only a sum of Kshs 550/. The issue of the funeral expenses was also an issue for consideration despite the absence of receipts. It is common knowledge in Luo speaking parts of Kenya that funerals are heavily expended as the community give their departed relative a good send off. Most of these funerals are quite lavish. Hence, the Respondent must have spent a fortune over the same. I find the award of Kshs 400, 000/ was not excessive in the circumstances. I therefore uphold the trial court’s award. 21. In view of the foregoing observations, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed with costs. **Dated and delivered at Siaya this 29TH day of May 2026.** **D. KEMEI** **JUDGE** **In the presence of:** **N/A MS. MUKOYA …………………..for Appellants** **N/A MS TESOT ....................................for Respondent** **Ms. Maureen ……………………………….Court Assistant**