Paleah Stores Limited v Kariuki & another (Suing as the administrators of the Estate of Chrysostom Gachegu Karuamba - Deceased) (Civil Appeal E044 of 2021) [2026] KEHC 6620 (KLR) (11 May 2026) (Judgment)

Paleah Stores Limited v Kariuki & another (Suing as the administrators of the Estate of Chrysostom Gachegu Karuamba - Deceased) (Civil Appeal E044 of 2021) [2026] KEHC 6620 (KLR) (11 May 2026) (Judgment) Neutral citation: [2026] KEHC 6620 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E044 of 2021 DKN Magare, J May 11, 2026 Between Paleah Stores Limited Appellant and Lucy Wamucii Kariuki 1st Respondent John Kiongo 2nd Respondent Suing as the administrators of the Estate of Chrysostom Gachegu Karuamba - Deceased (Being an appeal from the Judgment and Decree of E.N. Angima (Resident Magistrate) delivered on 3.08.2021 in Mûkûrwe’inî PMCC No. 13 of 2018) Judgment 1.This appeal arises from the Judgment and Decree of E.N. Angima (Resident Magistrate) delivered on 3.08.2021 in Mûkûrwe’inî PMCC No. 13 of 2018. Parties agreed on every other aspect of the judgment except loss of consortium. A consent was recorded settling those aspects on 17.11.2021. The file was erroneously closed, until it was set down for hearing. The consent recorded then was as follows:1.That there be an order staying execution of part of the Judgment that was delivered on 3rd August, 2021 by Hon. E.N. Angima (RM) in Mukurwe-ini PMCC No. 13 of 2018 pending the hearing and determination of this appeal.In particular this stay order relates to the award on loss of consortium and the award on costs.2.That the Appellant shall pay to the Respondent’s Advocates the award for pain and suffering, loss of expectation of life, loss of dependency and special damages within 7 days of execution of this order.3.There be liberty to apply. 2.The memorandum of appeal covers only three grounds but dealing with loss of consortium. It is unnecessary to set forth the other factors that have been settled except pleadings related to loss of consortium. The deceased was pleaded to be a Veterinary Technician aged 48 years of age. He left behind a wife and three children aged between 14 and 23 years. 3.The respondents pleaded that the deceased left the wife and children who were deprived of love, affection, companionship, comfort and society. They prayed for loss of consortium for the wife and children. 4.The main issue for determination is whether the trial court erred in its findings on quantum for loss of consortium. In submitting in the court below, the respondent submitted for Ksh. 8,000,000/= for loss of consortium and relied on the same case they have used in this appeal. The appellant did not submit on the question of loss of consortium in the court below. Submissions 5.The appellant filed submissions dated 14.11.2024. They submitted that they had raised three grounds which they were condensing into one ground, that is, damages for loss of consortium. The amount awarded under loss of consortium was said to be excessive for a 48-year-old deceased. They relied on the cases of Kwamboka (Suing as a dependant and personal representative of the Estate of Albert Nyabongoye Onchiri) v Okiro & another (Civil Appeal E017 of 2023) and Abdalla Issa & another v Leonida M. Alusa & another [2019] KEHC 10592 (KLR). 6.Respondents filed submissions and stated that the claim for loss of consortium was proved. Reliance was placed in the case of P B S & another v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2016] KEHC 3468 (KLR). It was submitted that the appellant had an opportunity to object to the claim and did not object. They ought to have submitted instead of ambushing the respondent with new authorities. The court could not have relied on the case of Kwamboka (Suing as a dependant and personal representative of the Estate of Albert Nyabongoye Onchiri) v Okiro & another (Civil Appeal E017 of 2023) [supra], which was not provided by the court. Indeed, it was decided after the matter appealed to. 7.The court was invited to rely on the cause célèbre, Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27, where the court of appeal pronounced itself succinctly on these principles in as follows:The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages. 8.The Respondent faulted the appellant for failing to present lower quantum authorities. The court was urged to dismiss the appeal with costs. Analysis 9.This being a first appeal, the court should consider arguments by parties and apply the law thereto, and make its own determination of the issues in controversy. However, it should take into account that it neither saw nor heard the witnesses’ testimony. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 the 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. 10.The main issue for determination is whether the trial court erred in its findings on quantum for loss of consortium. The widow testified that she was not working. She adopted her statement filed on 08.11.2019. In the statement she did not address the question of loss of consortium. Nothing is known of that loss except at the prayer point. It is even unknown whether she remarried. Though pleaded, there are no materials to place the loss of consortium at the same status as in the decision in P B S & another v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2016] KEHC 3468 (KLR), where, the court, R.E. Aburili J, held as follows regarding loss of consortium:76.On the claim for loss of consortium, the plaintiffs prayed for shs 1,000,000 based on the decision in Salvatore De Luca v Abdullahi Hemed Khalil & another [1994] KECA 80 (KLR). It was in evidence and was submitted that the deceased was survived by her husband and 3 children and that her husband the 1st plaintiff has not remarried to date. That he lost his wife’s companionship while the children lost the love, care and devotion of their mother. In the Salvatore De Luca case above, the Court of Appeal in January 1994 awarded shs 40,000/- damages for loss of consortium and servitium. In the instant case, it is not disputed that the 1st plaintiff lost a wife and a companion as well as the mother to his three children, who also lost her love and care. I will award the plaintiffs shs 800,000 compensation for loss of consortium. (Disambiguated). 11.In a recent of Kwamboka (Suing as a dependant and personal representative of the Estate of Albert Nyabongoye Onchiri) v Okiro & another (Civil Appeal E017 of 2023) [Supra] WA Okwany, J, confirmed an award of Ksh 70,000/= made on 28.04.2023 and stated as follows:26.Turning to the claim for loss of consortium, I note that courts have held varied opinions on the subject have struggled to find a clear stand on the same. For example, in Innocent Ketie Makaya Denge v Peter Kipkore Cheserek & another [2015] eKLR, the court was of the view that:“With respect to the award of Ksh. 150,000/- for loss of consortium, I entirely agree with the appellant that this award should be set aside in its entirety as it was not anchored on any law. There is no law that provides for an award of damages to the widow of a deceased person for loss of consortium. The Law Reform Act and the Fatal Accidents Act which are the two statutes which govern the award of damages in fatal accident claims recognize only three heads of general damages and loss of consortium is not one of them. These are damages for pain and suffering, damages for loss of expectation of life and damages for loss of dependency.In my view, loss of consortium can only be subsumed in a claim for loss of amenities in an action instituted by a survivor of an accident in which it is claimed that owing to the injuries sustained in the accident in question, the plaintiff was incapable of enjoying consortium with his/her spouse and that his or her quality of life had as a result been diminished. Loss of consortium cannot thus be maintained as a claim on its own. In light of the foregoing, the award of damages for loss of consortium to the respondents portrays a serious misapprehension of the law by the trial magistrate. The award was obviously made contrary to the law and cannot be allowed to stand. It is consequently set aside...27.In HCCC No. 85 of 2000 Ruth Chepngeno Mutai v Patrick Wajero Oloo & Another, however, the court was of the view that: “As a result of the death of the Deceased, the Plaintiff lost a husband. She told this court that she had no intention to remarry. Taking into account the cited authorities and the circumstances of the Plaintiff in particular, I award her Kshs. 100,000/= for loss of consortium.28." Similarly, in Paul Kioko v Samuel G. Karinga & 2 Others [2012] eKLR, Kshs. 100,000/= was awarded to a widower for loss of consortium and servitium; while in Rose Adisa Odari v Wilberforce Egesa Magoba [2009] eKLR, an award of Kshs. 50,000/= was made to the widow for loss of consortium in a case where the deceased was aged 35 years at the time of his death.In the case of P B S & Another v Archdiocese of Nairobi Kenya Registered Trustees & 2 Others eKLR, the Plaintiff was awarded Kshs. 800,000/= for loss of consortium by Hon. Aburili, J. [2016]From the above cited cases, it is clear that there is valid basis for the claim and award of damages for loss of consortium in fatal accident matters.Indeed, in the Court of Appeal case of Salvadore De Luca v Abdullahi Hemedi Khalil & Another (supra) it was held that:“So far as consortium is concerned, there is evidence that the appellant loved his wife and so did their children. The appellant has not re-married. No doubt, he had lost his wife’s companionship. There is, moreover, an impairment in the social life of the appellant and his young children who, too, have lost love, care and devotion of their mother. The learned judge clearly erred, in our view, in failing to award any damages for loss of consortium and servitium.Bearing in mind the fact that each case should be judged on its own facts, we would think that an award of Shs. 40,000/= is a fair measure for this head of damages and we award the appellant this sum with interest from the date of judgment in the superior court until payment in full."Taking a cue from the above decisions, I find that the trial court should have exercised its discretion in making an award for loss of consortium. Ifind that an award of Kshs. 70,000 will be adequate compensation under this heading. 12.Parties also relied on the case of Abdalla Issa & another v Leonida M. Alusa & another [2019] KEHC 10592 (KLR), where Olga Sewe J, affirmed an award 70,000/= made on 8.11.2007 and stated as follows:(14)Clearly therefore, there is sound basis for the claim and award of damages for loss of consortium in fatal accident matters. Indeed, in the Court of Appeal case of Salvadore De Luca vs. Abdullahi Hemedi Khalil & Another [1994] eKLR, it was held that:"So far as consortium is concerned, there is evidence that the appellant loved his wife and so did their children. The appellant has not re-married. No doubt, he had lost his wife’s companionship. There is, moreover, an impairment in the social life of the appellant and his young children who, too, have lost love, care and devotion of their mother. The learned judge clearly erred, in our view, in failing to award any damages for loss of consortium and servitium. Bearing in mind the fact that each case should be judged on its own facts, we would think that an award of Shs. 40,000/= is a fair measure for this head of damages and we award the appellant this sum with interest from the date of judgment in the superior court until payment in full."(15)That award was made on 27 January 1994. I did not hear the Appellant to be saying that the amount awarded to the Respondent herein for loss of consortium by the lower court was inordinately high as to warrant my interference. In any case, assessment of damages is a matter of discretion; and ordinarily, an appellate court will not disturb an award unless sufficient cause be shown. This is why, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited (supra), the Court of Appeal held that:"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court 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 high that it must be a wholly erroneous estimate of the damages." 13.It should be noted that in the Abdalla Issa & another case, the award was made in 2007. This was 12 years before the decision to affirm the award in 2019. The award does not represent the current thinking on awards on loss of consortium. On the other hand, the award in the case of case of P B S & another v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2016] KEHC 3468 (KLR) turned on its own facts. The damages lost by the family included loss of an unborn child whose damages the court stated should be awarded at the same time as the loss of a mother. The court posited as follows in this case:“rather than open those numerous debates, the courts have stated that “ as the law currently stands, an unborn child, carried to full term by its mother can be destroyed through negligent conduct, and , other than damages to the mother,[……...], there is no separate award for loss of the foetus “ (Martin V Mineral Springs Hospital ,[2001] AB.QB 58). This means that under the current law, no financial compensation is awarded solely for the loss of a foetus and the accompanying grief.” 79.The article nonetheless acknowledges that despite the inability to obtain damages specifically for the loss of a foetus, there have been cases where damages have been awarded for the loss of a foetus, such as in Morrison V Norelli[1986] BC J NO. 172 ( BC.CA), where the court awarded USD 75,000 for pain, suffering and loss of enjoyment of life to a mother who delivered a still born child after 54 hours of labour in intensive care following a motor vehicle accident, as a result of which she suffered severe depression. The decision above was appealed and the Court of Appeal noted that the trial judge “ correctly instructed the jury that the law does not permit the recovery of damages for loss of an unborn child.” 14.There appears to be confusion on whether loss of consortium is statutory or common law. 15.However, the court must disabuse parties that submissions are binding on the court. They are marketing language and are supposed to be a road map for the court to illumine the road but not to chart a new destiny. The court is supposed to know the law, Jura Novit Curia. In the case of Tunoi & another v Judicial Service Commission & another [2015] KEHC 780 (KLR), the high court posited that:247.We have had the advantage of reading the recent decision of the Supreme Court in Advisory Opinion Reference No. 2 of 2014 National Land Commission v. AG and Others. Although this decision was not referred to in the submissions made before us, we cannot ignore it in light of its binding nature. In this regard we are comforted by the maxim: jura novit curia; the court is responsible for determining the law applicable in any given case. 16.Whether authorities are available the maxim of jura novit curia overrides lack of submissions. In the case of Patrick Musimba v National Land Commission & 4 others [2015] KEHC 7341 (KLR), the court I. Lenaola, M. Ngugi , G. V. Odunga, L. Achode, J. L. Onguto, JJ, as they then were, posited as follows:The question has been considered previously by the High Court as well as the ELRC. Very recently, but after we had heard submissions in this petition, it was considered by the Court of Appeal in the case of Jefferson Kalama Kengha & 2 Others v Republic [2015]eKLR, and Mr. Nyamodi perhaps unaware of the maxim jura novit curia quickly availed a copy of the decision to us. 17.Mwera J, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993, he stated:“Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 18.Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 19.The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 20.Therefore, the presence or absence of submissions does not affect the position that the court should have regard to the current position of the law. Children are not entitled to consortium. This is for consort servitum and can only be between legally married spouses for loss or impairment of the intangible benefits of a relationship. That is why it is lost on remarriage as there is new consort servitum taking effect. It is doubtful that it can be given with a person with multiple spouses as there is no loss of consortium. 21.These kinds of damages are given in the point of no return basis. 48 years is a good age to call a point of no return as remarriage chances dwindle. The way is blind to other non-marriage kind of escapades. To avoid monetizing losses so much and having regard to awards under both the Law Reform and the Fatal Accidents Act, the damages should be nominal to recognize the loss directly to the spouse for non payslip relational benefits. This is what is known as in consequence of which she lost servitude and marital services, that is, per quod servitium et consortim amist. In the case of Chege Kimotho & others v Maria Vesters & another [1988] KECA 138 (KLR), the court of appeal [Nyarangi, Gachuhi & Apaloo JJA], posited as follows:That brings me to the damages awarded to the husband per quod consortium et servitium amisit. The total sum awarded for both loss of consortium and of services is 40,000/-. In view of the comparatively large sums awarded to the wife, this sum can be said to be child’s play.But the objection taken to the quantum of the award appears to be taken as a matter f principle only.Although there was at sometime difference of judicial opinion whether an action lies for impairment as distinct from total loss of consortium, the better view is, an action will lie for impairment only. The learned Judge found that the husband’s enjoyment of sexual life with his wife has been curtailed. He held that this affected his physical and emotional life, and he ought to be compensated for this. I have no quarrel with that. The question the learned Judge omitted to address, was what sort of compensation should be awarded to the husband for that?The wealth of judicial opinion, is that such compensation should be modest. In England, sums as low as 20 Pounds, 30 Pounds, 40 Pounds and at most 200 Pounds were awarded in a number of cases under this head. I think it is the sort of compensation that in another branch of the law of tort would be called a Benham v Gambling award. If the Judge awarded as much as 20,000/- (the equivalent in 1983 of 10,000 Pounds) for impairment, then the figure he would award for total destruction of consortium would be mind-boggling. That would be wrong in principle. Like My Lord Nyarangi, I also think 10,000/- reasonable. It is even certainly more than modest. 22.In the case of Mbaaru & another v Kenya Bus Services Limited also known as Stage Coach Bus International & another [2024] KECA 432 (KLR), the court of appeal [F Tuiyott, JW Lessit & GWN Macharia, JJA], recently posited as follows regarding loss of consortium:Quite apart from the cited case being merely persuasive, the case is distinguishable from the instant case. The facts are different in that the plaintiff in the cited case was the injured spouse. In the instant case, the claim was brought by the spouse of the injured partner. This Court in the case of Salvatore De Luca vs. Abdullahi Hemed Khalil & Another [1994] eKLR awarded loss of consortium in a fatal accident claim; the Justices of Appeal held thus:“So far as consortium is concerned, there is evidence that the appellant loved his wife and so did their children. The appellant has not re- married. No doubt, he had lost his wife’s companionship. There is, moreover, an impairment in the social life of the appellant and his young children who, too, have lost love, care and devotion of their mother. The learned judge clearly erred, in our view, in failing to award any damages for loss of consortium and servitium. Bearing in mind the fact that each case should be judged on its own facts, we would think that an award of Shs.40,000/= is a fair measure for this head of damages and we award the appellant this sum with interest from the date of judgement in the superior court until payment in full.”71.We cite the above case to show that loss of consortium is a recognised claim in law, and to show the principles that apply. We know that the award in the cited case was granted in a fatal accident case. The instant case was not a fatal accident. It is nevertheless an appropriate case for such an award. The principles to be considered include proof that the appellant loved the spouse before the accident. Loss of consortium means loss of any or all of the following; companionship, love and affection, comfort, mutual services and sexual intercourse. Since the accident he has lost his wife’s companionship, has suffered an impairment in the social life, lost love, care and devotion of his wife. It is our view that within a marriage situation, the claim for loss of consortium is recognised as sustainable when brought by a spouse who claims loss as a result of injuries caused to his/her partner by a third party, sustainable only in the status of marriage.72.While a doctor’s assessment to determine whether the affected spouse has suffered the loss of consortium is, no doubt, critical in proving the loss, the gravity and nature of the injuries suffered coupled with the claimant’s direct testimony of the loss will, in certain instances, be sufficient to prove the loss. As we have stated above, loss of consortium includes loss of companionship, love and affection, comfort, mutual services and sexual intercourse, an impairment in the social life, care and devotion. Here, the injuries sustained by 1st appellant were debilitating. Then there was the evidence of the 2nd appellant that their relationship changed since the accident and as a result of the injuries, there was no intimacy, warmth or comfort between them. The 2nd appellant was very clear that his wife totally changed from being a lovely compassionate wife to one full of hate and blaming him for everything. He said he understood it to be psychological trauma as a result of the accident, and he identified the psychiatrist’s report of Dr. F. G. Njenga who saw her for some time.73.We saw in the record of appeal the evidence of several doctors and several reports relevant to this aspect of the claim. Dr. Nassir in his report dated 21st August 1998 stated that the 1st appellant was complaining of pain in the amputation stump on the right lower limb, discharging sinus over the amputation stump in the right shoulder, got easily freighted and was emotionally unstable since the accident, terming the complaints valid. Report by Dr. F. G. Njenga, a Psychiatrist from Aga Khan Hospital who treated her, dated 25th July 2000 was that the 1st appellant’s relationship with her husband had deteriorated significantly, not just because of her physical limitation due to her traumatic injuries, but emotional and psychological problems proving to be a major strain. The doctor opined that due to her physical appearance and limitation, she constantly worried about the future of their marriage. We find that there was sufficient evidence to support the 2nd appellant’s claim for loss of consortium. We find that the learned Judge clearly erred when she failed to award any damages under this head. 23.Regarding the amount of loss, the court in the Mbaaru & another v Kenya Bus case, stated as follows:As to assessment of damages under this head, we have the Salvatore De Luca case, supra, a 1998 case, in which Kshs.40,000/= was awarded. In Timo Kalevi Jappinen & Another, supra, a 1997 case, Kshs.200,000/= was awarded. The judgment in this matter was delivered in 2005. We think that, had the learned Judge properly directed herself to the appropriate award under this head, Kshs.300,000/= would have been fair at the time. We so find. 24.The appellant did not suggest an amount. The respondent maintained that a sum of Ksh 1,000,000/= is either proper or that there was no contest in the lower court. To be able to arrive at a proper result, the court must have regard to its remit as an appellate court. First there is a felt need for the Court to ensure that awards make sense and have regard to the context in which they are made, and that they should strike a chord of fairness. Comparable injuries should as far as possible be compensated by comparable awards. In the case of Arrow Car Limited vs. Bimomo & 2 Others [2004] 2 KLR101, the court of appeal posited as follows:In view of the foregoing we are satisfied that the learned Commissioner was influenced by these injuries and hence took into account what he should not have considered. This, therefore, justifies our interfering with the awards. But even a more important aspect which has led us to interfere is that the learned Commissioner appears to have misapprehended the general principles in assessment of damages in personal injury cases. It is our view that in assessment of damages the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases. We have considered cases cited in the superior court and it would appear that the learned Commissioner based his assessment on cases in which the injuries were very serious. Here we are dealing with soft tissue injuries. We are of the view that had the learned Commissioner considered cases of similar injuries, he would have awarded much lower awards than what he awarded.In Rahima Tayah and another v Anna Mary Kinaru (1987-88) 1 K A R 90 Potter J A gave the following advice:-I would commend to trial judges the following passage from the speech of Lord Morris of Borthy-Gest in the case of West (H) & Son Ltd v Shepherd [1964] A.C. 326 at pg. 345:-“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation . In the process there must be the endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.” 25.The court of appeal also addressed damages for loss of consortium, as damages due to the spouse and not the injured party in the case of Muriithi v My Beauty Transporters Limited & 2 others [2025] KECA 516 (KLR), as follows:Regarding loss of consortium, this Court in Kimotho & Others v Vesters & Another (supra) cited the definition of “consortium” in Best v Samuel Fox & Co. Ltd [1951] 2 KB 639 as:“companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state.” 26.The damages for loss of consortium were again discussed in the case of Walter alias Walter Ngugi Kimani v Nyabuto [2025] KECA 604 (KLR), by the court of appeal as follows:In determining whether an award ought to have been made in favour of the respondent for loss of consortium, we are persuaded by the decision of Emukule, J. in Mwaura Muiruri vs. Suera Flowers Limited & Another [2014] eKLR that:“This claim can only be granted to a spouse of a person who has suffered serious personal injuries which have affected his abilities to provide consortium. A plaintiff who has himself suffered any injuries and as a result is unable to perform his marital duties would be properly compensated under the claim for loss of amenities and not as a claim for loss of consortium.”Therefore, the claim for loss of consortium was not available to the respondent. 27.The court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages. 28.In the case of Henry Hidayo Ilanga versus Manyama Manyoke [1961] EA 705, 713 at paragraph c, Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former court of appeal for East Africa held as follows:In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge.“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 29.Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. 30.So my duty as the appellate court is threefold regarding quantum of damages: -i.To ascertain whether the Court applied irrelevant factors or left out relevant factors.ii.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.iii.To ascertain whether the award is simply not justified from evidence. 31.The court established and confirmed the principle that the damages for loss of consortium are payable in respect of a spouse. The amounts paid should be modest in view of awards under other areas. I shall adopt the court of appeal position that a sum of Ksh 300,000/= will suffice. Consequently the Appeal is allowed. The award for loss of consortium is set aside for being inordinately high. In lieu thereof, I substitute with a sum of Ksh 300,000/=. 32.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 33.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:“It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 34.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 35.The appellant was the tortfeasor. He had a mix result. In the circumstances, each party will bear their own costs for the appeal. Determination 36.In the upshot, I make the following orders:a.The appeal is allowed. Damages for loss of consortium of Ksh 1,000,000/= is set aside and in lieu thereof substituted with a sum of Ksh. 300,000/=.b.Each party shall bear its own costs.c.14 days right of appeal.d.30 days stay of execution.e.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 11TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Jayo for Ms. Kariuki for the AppellantMr. Mukami for the RespondentCourt Assistant – Martin