https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11038

Otieno & another v Otieno (Suing as the legal representative of the Estate of Lalety Achieng Otieno - Deceased) (Civil Appeal E123 of 2025) [2026] KEHC 11038 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11038 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E123 of 2025 AK Ithuku, J July 17, 2026 Between Nick Omondi Orinda Otieno 1st Appellant Philemon Onyango Odero 2nd Appellant and Elizabeth Adhiambo Otieno (Suing As The Legal Representative Of The Estate Of Lalety Achieng Otieno - Deceased) Respondent (Being an appeal from the judgment/decree of the Honourable Ednah Angima (SRM) delivered on 23/04/2025 in Nyando PMCC No. E034 of 2024) Judgment 1.This is an appeal against the trial court’s assessment of damages under the Fatal Accidents Act and the Law Reform Act. It arises from Nyando PMCC No. E034 of 2024 in which the Appellants were sued by the Respondent for damages under the Fatal Accidents Act and Law Reform Act. The claim arose from the demise of the Plaintiff’s daughter as a result of a road accident that occurred on or about 18th July 2021 along Katito-Kendubay road. According to the Plaint dated 24th February 2024, the deceased was a lawful pillion passenger aboard a motorcycle that was keeping to its correct lane on the road; when at the Nyamarumbe area the 1st Defendant’s motor vehicle registration number KDA 086S Toyota Hiace Matatu which was approaching Nyamarumbe from the opposite direction i.e. moving from Kendubay towards Katito direction, was so carelessly, negligently and/or recklessly drive, managed and/or controlled by the 2nd Defendant that it was caused to suddenly swerve from its left/correct lane to the right/wrong lane in a bid to overtake another motor vehicle that was head of it. In the process, the motor vehicle registration number KDA 086S rammed into the motor cycle on which the deceased herein was on board thus causing the deceased to suffer fatal bodily injuries to which she succumbed on the same day. 2.The particulars of negligence attributed to the Appellants were set out in paragraph 5 of the Plaint. The Respondent then filed her witness statement dated 9th January 2024, together with the witness statement of Valerian Akinyi Otieno of the even date reiterating the averments as contained in the Plaint. Further, the Respondent filed a list of documents to be relied upon during trial to establish the case against the Appellants. 3.The Appellants filed their defence vide a Statement of Defence dated 13th June 2024, denied liability and in turn blames the deceased and the motor cycle rider for the accident and injuries sustained. The particulars of negligence on the part of the deceased and the motorcycle rider were set out in paragraph 8 of the Statement of Defence. The Appellants also listed documents to support their case. 4.On 2nd April 2025, the matter came up for hearing of the Respondent’s case with the Respondent calling one witness, Valerian Akinyi Otieno and the Respondent herself. On the same day, the defence closed their case without calling any witness. In its judgment, the trial court found the Appellants 100% liable for the accident. The trial court awarded damages as follows:a.Pain and suffering – Kshs. 50,000/-b.Loss of Expectation of Life – Kshs. 100,000/-c.Lost Years – Kshs. 1,500,000/-d.Special damages – Kshs. 409,500/- 5.Aggrieved by the judgment of the trial court, the Appellants filed a Memorandum of Appeal dated 22nd May 2025, appealing on against the whole judgment on quantum on the following grounds:a.The learned trial magistrate erred in law and in fact by failing to consider the Appellants’ written submissions and legal authorities and /or precedents on quantum thereby arriving at a determination which is wholly erroneous in law.b.The learned trial magistrate erred in law and in fact in awarding damages of Kshs. 1,500,000 for loss of dependency under the Fatal Accidents Act representing an entirely erroneous estimate of an award of general damages vis a vis Respondent’s claim and thus the award constituted a miscarriage of justice.c.The sum of Kshs. 50,000/- awarded under the head of pain and suffering is excessive in view of the fact that the deceased passed away on the material date of the accident thereby deviating from the principle of stare decisis requiring comparable awards being made.d.The sum of Kshs. 100,000/- awarded under the head of loss of expectation of life is excessive thereby deviating from the principle of stare decisis requiring comparable awards being made.e.That the court erred in law and in fact in awarding the Respondent Kshs. 409,000 yet during cross-examination the Respondent admitted that she only contributed Kshs. 70,000. 6.The parties agreed to dispense with the hearing of the appeal by way of written submissions. Appellants Submissions 7.The Appellants’ submissions are dated 20th February 2026, summarizing the grounds of appeal into three issues for determination. On Ground 3 of the Appeal, the Appellants submitted that courts have discretion in assessing damages in a suit. They relied on Bashir Ahmed Batt vs Uwais Ahmed Khan (1982-88) KAR to reiterate the parameters under which an appellate court will interfere with an award for general damages. Regarding loss of dependency, the Appellants submitted that there was no material evidence placed before the trial court in proof of the deceased’s income or even whether she had any source of income. Further, that there was no documentation adduced to confirm that she was a 16-year-old student. The Appellants relied on Roger Dainty v Mwinyi Omar Haji & Another MSA CA Civil Appeal No. 59 of 2004 [2004] eKLR. 8.It is the Appellants’ further submission that whereas the court’s use of a global award was in order as the deceased was a minor with no source of income, the amount awarded was on the higher side. They urged this Honourable Court that an award of Kshs. 500,000/- would be sufficient as the minor was 16 years old. The Appellants urged the court to be guided by Roger Dainty v Mwinyi Omar Haji & Another MSA CA Civil Appeal No. 59 of 2004 [2004] eKLR. 9.On Ground 4 of the Appeal, the Appellants submitted that the evidence on record confirms that the deceased died on the spot. Therefore, an award of Kshs. 50,000 for pain and suffering is excessive and an award of Kshs. 10,000 is sufficient in the circumstance. They relied on Julius Ngobito Muriungi v John Gichunuku Mairoki [2021] KEHC 1543 (KLR). 10.On Ground 6 of the Appeal, the Appellants submitted that the Respondent failed to prove the full amount of special damages as pleaded. It is their further submission that the Respondents produced two receipts; one for the coffin for Kshs. 25,000 and another for Kshs. 318,500/= which had some amounts that seemed altered. Additionally, on cross-examination, the Respondent stated that she funded the funeral out of pocket and paid only Kshs. 70,000 for the same. It is therefore their submission that only Kshs. 70,000 should be awarded under this head. Respondent’s Submissions 11.The Respondent’s submissions in opposition to the appeal are dated 26th March 2026. She cited various authorities in support of the trial court’s determination on loss of dependency, loss of expectation of life, as well as pain and suffering. It is also the Respondent’s submission that the special damages were specifically pleaded and proved as evidenced by the Plaintiff’s Exhibit 7a-e. It is on that premise that she submitted that the Appeal herein lacks merit and should be dismissed with costs to the Respondent. Analysis and Determination 12.Having read and considered the submissions together with the memorandum and record of appeal and the applicable law, these are the issues in the appeal can be summarised as follows:a.Whether the trial magistrate erred in law by awarding the Respondent damages of Kshs. 1,500,000/= for loss of dependency.b.Whether the learned trial magistrate erred in law in awarding the Respondent the sum of Kshs. 50,000/= for pain and suffering.c.Whether the learned trial magistrate erred in law by awarding the Respondent the sum of Kshs. 100,000/= for loss of expectation of life which was excessive.d.Whether the learned trial magistrate erred in law in awarding the Respondent Kshs. 409,500/=. Whether the trial magistrate erred in law by awarding the Respondent damages of Kshs. 1,500,000/= for loss of dependency. 13.Before considering the merits of this ground, it is necessary to restate the principles governing interference with an award of damages by an appellate court. It is now settled that the assessment of damages is a matter of judicial discretion and that an appellate court ought not to interfere merely because it would itself have awarded a different figure. Interference is only warranted where the trial court acted on wrong principles of law, misapprehended the evidence, took into account irrelevant factors, failed to consider relevant ones, or where the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages suffered. This principle was authoritatively stated by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) [1987] KLR 30, and has consistently been applied in Butt v Khan [1982-88] KAR 1 and Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55. 14.As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the court in a first appeal such as this one was stated in Selle & Another –vs- Associated Motor Boat Co. Ltd. & Others (1968) EA 123 in the following terms:“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).” 15.In Peters v Sunday Post Ltd [1958] EA 424, Sir Kenneth O'Connor observed that although an appellate court has jurisdiction to review the evidence, it should not differ from the findings of the trial court unless it is satisfied that the court failed to take account of particular circumstances or probabilities or its impression of the evidence is inconsistent with the evidence on record. 16.Before considering whether the quantum awarded was excessive, it is necessary to clarify the nature of the impugned award. Although the learned trial magistrate described the award of Kshs.1,500,000/= as one for "lost years", the Memorandum of Appeal challenges the same as an award for "loss of dependency" under the Fatal Accidents Act. The record further shows that the parties’ submissions before the trial court and on appeal were directed at the assessment of damages for the pecuniary loss occasioned by the death of the deceased and not the computation of a claim for lost years. In my view, the description adopted by the learned trial magistrate was an inadvertent misnomer which does not affect the substance of the award. 17.The deceased herein was a 16-year-old minor. There was no evidence that she had entered the labour market, earned an income or embarked on a career from which her probable lifetime earnings could reasonably be estimated. In such circumstances, Kenyan courts have consistently held that the multiplier approach is unsuitable and that the appropriate method of assessment is a global award. 18.It is therefore evident that the learned trial magistrate did not undertake an assessment based on the deceased’s projected earnings as would ordinarily arise in a claim for lost years. Rather, the learned trial magistrate made a global award to compensate for the pecuniary loss arising from the untimely death of a minor whose future earning capacity remained uncertain. Consequently, the issue before this Court is not whether the award was correctly labelled, but whether the global sum awarded was so inordinately high as to warrant appellate interference. 19.I am fortified in this view by the principle that courts determine disputes on the substance rather than the form of the proceedings. The erroneous description of the head of damages neither altered the basis upon which the learned trial magistrate assessed the award nor occasioned any prejudice to the parties. The appeal shall therefore be determined on the footing that the impugned award was a global award made in respect of the pecuniary loss resulting from the deceased’s death. 20.The Appellants argue that the award of Kshs.1,500,000/= was excessive considering that the deceased was only 16 years old, there was no evidence of her income, occupation or future earnings, and no documentary proof that she was a student. Their position is that a global award of Kshs.500,000/= would have been appropriate in the circumstances. The Respondent, on the other hand, maintains that the award was reasonable having regard to the age of the deceased and her future prospects. 21.The record shows that the deceased was sixteen years old at the time of her demise. There was no evidence that she had commenced gainful employment or that she had an ascertainable income capable of forming the basis of a multiplicand. Equally, there was no evidence demonstrating with certainty the career path she would eventually have pursued. 22.In those circumstances, the learned trial magistrate correctly appreciated that the multiplier approach could not realistically be applied. The law has long recognised that where the deceased is a minor or where future earnings cannot reasonably be ascertained, the court is entitled to resort to a global award. In Mwanzia v Ngalali Mutua & Kenya Bus Services (Mombasa Civil Appeal No. 8 of 2004), the Court of Appeal observed that the multiplier approach is merely a method of assessing damages and not a principle of law, and that it should only be employed where the facts facilitate its application. Likewise, in Albert Odawa v Gichimu Gichenji [2007] eKLR, the High Court held that where the deceased's earnings cannot be established with reasonable certainty, the global approach provides a more realistic and equitable method of assessment. 23.Courts have acknowledged that assessing damages arising from the death of a minor inevitably involves an element of estimation because the child's future earning capacity has not crystallised. Consequently, courts have preferred the global award approach in such cases. In Chen Wembo & 2 Others v IKK & Another [2017] eKLR, the Court observed that the assessment of damages for minors cannot be subjected to mathematical precision and that courts should instead exercise judicial discretion guided by settled principles while bearing in mind the circumstances of each case. A similar position was adopted in S K M (Suing as Administrator of the Estate of J K) v Hassan Mohamed Adan & Another [2020] eKLR, where the court held that future earnings of minors remain uncertain and a global award is therefore the preferable approach. 24.Although there was no documentary evidence confirming that the deceased was a student, there was equally no evidence that she lacked the capacity or opportunity to pursue gainful employment in future. As a healthy sixteen-year-old, she had a reasonable prospect of entering the labour market upon attaining adulthood. In those circumstances, the learned trial magistrate was entitled to make a reasonable global assessment of the pecuniary loss occasioned by her death. While those prospects remained uncertain, the law does not demand mathematical certainty in assessing damages under the Fatal Accidents Act. Rather, the court is required to make a reasonable estimate based on the available evidence and comparable awards. 25.Having considered the authorities cited by both parties together with prevailing awards made by superior courts in comparable cases involving deceased minors, this Court is unable to conclude that the learned trial magistrate acted on a wrong principle or took into account irrelevant considerations. The amount does not fall so far outside the acceptable range of awards for deceased minors as to amount to an entirely erroneous estimate of damages. Consequently, this ground of appeal fails. Whether the learned trial magistrate erred in awarding Kshs.50,000/= for pain and suffering. 26.The Appellants submit that because the deceased died on the material day of the accident, the learned trial magistrate ought to have awarded Kshs.10,000/= for pain and suffering. They rely on authorities where courts have awarded such a sum in cases of instantaneous death. The Respondent, on the other hand, supports the award, arguing that it falls within the range of awards made in comparable cases. 27.Damages under this head compensate the estate for the physical pain and suffering endured by the deceased between the occurrence of the injury and death. The award is therefore dependent upon the evidence regarding the period the deceased survived after sustaining the injuries. Where death is truly instantaneous, courts have generally awarded between Kshs.10,000/= and Kshs.20,000/=. However, where death occurs after some interval, even if on the same day, courts have upheld higher awards depending on the circumstances of each case. 28.In the present appeal, the evidence establishes that the deceased succumbed to her injuries on the same day as the accident. However, there is no evidence demonstrating whether death occurred immediately upon impact or after an interval during which she remained alive and experienced pain. Equally, there is no medical evidence from which this Court can conclusively infer that death was instantaneous. In the absence of such evidence, this Court cannot simply presume that the deceased experienced no pain before her death. 29.The authorities relied upon by the Appellants concern cases where the evidence clearly established immediate death. Those authorities are therefore distinguishable from the present case. Conversely, courts have also upheld awards of Kshs.50,000/= where the evidence merely showed that the deceased died on the same day or shortly after the accident. Consequently, there is no uniform award applicable under this head. 30.Recent High Court decisions demonstrate that awards under this head presently range between Kshs.10,000/= and Kshs.100,000/= depending on the facts of each case. In Joseph Gatone Karanja v John Okumu Soita & Another [2022] KEHC 2839 (KLR), the Court upheld an award of Kshs.50,000/= notwithstanding the argument that the deceased had died on the spot, holding that the award was not manifestly excessive. Likewise, in Njoroge v Ponderosa Logistic Ltd [2024] KEHC 1606 (KLR), the Court affirmed that merely because death occurred on the same day does not necessarily mean that the deceased did not endure pain and upheld an award of Kshs.50,000/=. Similar reasoning was adopted in Ena Investment Ltd v Onyaguti [2024] KEHC 2842 (KLR) and more recently in Securex Agencies Kenya Ltd v Zuma [2025] KEHC 3546 (KLR), where awards of Kshs.50,000/= were upheld as falling within the permissible range of judicial discretion. 31.Bearing in mind the principles governing appellate interference with discretionary awards as stated in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No.2) and Butt v Khan (Supra), this Court cannot conclude that the award of Kshs.50,000/= falls so far outside the range of comparable awards as to amount to an erroneous estimate of damages. I therefore find no justification for disturbing the award under this head. Whether the learned trial magistrate erred in awarding Kshs.100,000/= for loss of expectation of life. 32.The Appellants further challenge the award of Kshs.100,000/= under the head of loss of expectation of life on the ground that it was excessive. They contend that the learned trial magistrate departed from comparable awards without any legal justification. The Respondent, on her part, submits that the award was conventional and consistent with settled principles under the Law Reform Act. 33.The award under this head is made pursuant to the provisions of the Law Reform Act, Cap. 26, which preserves for the benefit of a deceased person's estate causes of action that survive the deceased. In particular, Section 2(5) of the Act provides that the rights conferred for the benefit of the estates of deceased persons are in addition to, and not in derogation of, any rights conferred on the dependants of the deceased by the Fatal Accidents Act. Consequently, damages awarded under the Law Reform Act are distinct from those recoverable under the Fatal Accidents Act, the former compensating the estate for the loss suffered by the deceased, while the latter compensates the deceased's dependants for the pecuniary loss occasioned by the death. 34.The nature and purpose of this award were explained in the House of Lords decision of Benham v Gambling [1941] AC 157, where it was held that damages for loss of expectation of life are awarded for the deprivation of the prospect of a full life and not for the financial loss occasioned by death. The court further observed that the award should be moderate and should not be influenced by the wealth or social status of the deceased. Although that decision is persuasive, its principles have been consistently adopted by Kenyan courts. 35.In Kenya, the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) [1987] KLR 30 affirmed that damages recoverable under the Law Reform Act are distinct from those recoverable under the Fatal Accidents Act and that the mere fact that the beneficiaries under the two statutes may overlap does not disentitle an estate from recovering under both statutes. The Court further observed that the award under the Law Reform Act should be borne in mind when assessing damages under the Fatal Accidents Act so as to avoid double compensation. The same position was reiterated by the Court of Appeal in Hellen Waruguru Waweru (Suing as the Legal Representative of the Estate of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Limited [2015] eKLR, where the Court explained that awards under the Law Reform Act are made for the benefit of the estate and are distinct from dependency claims under the Fatal Accidents Act. 36.Kenyan courts have, over time, consistently upheld awards of Kshs.100,000 under this head, thereby affirming it as the conventional award. In Benedeta Wanjiku Kimani v Changwon Cheboi & Another [2013] eKLR, Emukule J. observed that the courts have gradually evolved the conventional award from Kshs.10,000 to Kshs.100,000. The same position was adopted in Benard Osumo v Samson Omayo Atuya & Another [2019] eKLR, where the High Court upheld an award of Kshs.100,000, observing that it had become the conventional figure. Similarly, in Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, the Court of Appeal maintained an award of Kshs.100,000 under this head. Indeed, the Court of Appeal in Hellen Waruguru Waweru (Supra) emphasised that the purpose of such awards is not to enrich the estate but to provide reasonable compensation for the deceased's shortened life while avoiding arbitrary disparities between comparable cases. 37.In the present appeal, the learned trial magistrate awarded the Respondent Kshs.100,000/= under this head. The Appellants have neither demonstrated that the trial court applied a wrong principle of law nor cited comparable authorities in which courts awarded a lesser conventional sum in similar circumstances. Neither has it been shown that there existed exceptional circumstances warranting a departure from the settled conventional award. 38.Guided by the statutory framework under the Law Reform Act and the foregoing authorities, I am unable to find that the learned trial magistrate erred in principle or that the award was manifestly excessive. The award of Kshs.100,000/= accords with the prevailing jurisprudence and discloses no basis upon which this Court can properly interfere. Accordingly, this ground of appeal fails. Whether the learned trial magistrate erred in awarding Kshs.409,500/= as special damages. 39.The Appellants lastly challenge the award of special damages on the basis that during cross-examination the Respondent admitted that she personally contributed only Kshs.70,000/= towards the funeral expenses and that some receipts appeared altered. 40.The law relating to special damages is settled. Such damages must not only be specifically pleaded but must also be strictly proved. This principle was succinctly stated by the Court of Appeal in Hahn v Singh [1985] KLR 716, and has been reaffirmed in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR. 41.The record demonstrates that the Respondent produced documentary evidence in support of the pleaded funeral expenses, which documents were admitted as exhibits during trial. The Appellants' argument is not that the expenses were not incurred, but rather that the Respondent personally contributed only part of the amount claimed. In my respectful view, that argument misconceives the law governing special damages in fatal accident claims. The relevant inquiry for the purposes of special damages is whether the expenses were actually incurred by or on behalf of the estate and whether they were proved by credible documentary evidence. The fact that relatives, friends or well-wishers may have contributed towards meeting funeral expenses does not absolve the tortfeasor from liability for those expenses once properly proved. 42.Moreover, although the Appellants alleged that one of the receipts appeared altered, no evidence was led before the trial court to demonstrate that the document was forged, fraudulent or otherwise inadmissible. Having been admitted into evidence without successful impeachment, the learned trial magistrate was entitled to rely upon it in assessing special damages. 43.In the premises, I am not persuaded that the learned trial magistrate erred either in principle or in fact in awarding special damages. Accordingly, this ground of appeal is devoid of merit and is dismissed. Conclusion 44.Having carefully reconsidered the record of appeal, the judgment of the trial court, the grounds of appeal, the rival submissions and the applicable law, I find no merit in this appeal. 45.The judgment and decree of the Senior Resident Magistrate delivered on 23rd April 2025 in Nyando PMCC No. E034 of 2024 are hereby upheld. 46.As costs ordinarily follow the event, the Respondent shall have the costs of this appeal together with interest thereon at court rates from the date of this judgment until payment in full. 47.It is so ordered. DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF JULY 2026HON. ALEX K. ITHUKUJUDGEDELIVERED ELECTRONICALYMs. Ogaga for the AppellantMs. Aguko for the RespondentMr. Gitonga - Court Assistant