https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11212

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COUNTY COURT NAME: MACHAKOS HIGH COURT CASE NUMBER: HCCA/E288/2025 PAULINE KATANU PAUL AND GABRIEL MUTHIANI VS ROSALIA NDINDA MATEI AND STELLA MUKULU MUTUA AND 1 OTHERS JUDGMENT The Appellants herein being dissatisfied with the Judgement delivered by Hon. Silas Kemei (CM)) on 28 March 2025 appeal on the aforementioned judgement on the following grounds, namely: 1. That the Learned Trial Magistrate erred in law and fact by awarding Kshs. 2,000,000/= as the global sum for damages for loss of dependency under the Law Reform Act which is too high compared to other decided cases. 2. That the Learned Trial Magistrate erred in law and fact by awarding Kshs. 513,100/= as special damages by erroneously awarding damages that had not been proved as required by law. 3. That the Learned Trial Magistrate erred in Law and in fact by failing to consider we the Appellants’ submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum. 4. That the Learned Trial Magistrate erred in Law and in fact by failing to consider conventional awards for damages in cases of similar injuries and awarded a global sum which is manifestly excessive in the circumstances. 5. That the learned trial Magistrate erred in law and fact by applying the wrong and or did not apply the correct law, tests, doctrines and principles relating to evidence tendered by the Respondent thereby arriving at an erroneous decision. Brief facts The Plaintiffs sued the defendants through a plaint dated 9th July, 2024 seeking damages for the estate of the deceased and dependants. The circumstances of the claim are that on 1.7.23 the deceased was travelling aboard motor vehicle registration no. KBA 830F along Nairobi-Mombasa road when the 2nd Defendant so negligently drove, managed and or controlled the motor vehicle that the same was involved in a traffic accident at the area opposite Lugman Petrol Station near the turn off to the Lukenya school as a result of which he sustained fatal injuries. The claim under Fatal Accidents Act was brought for the benefit of the deceased’s dependants namely, Rosalia Ndinda Matei, widow of the deceased,aged 54 years; Mathew Kimeu Mutu, son, aged 24 years and Stella Mukulu Mutua, daughter aged 28 years. The deceased was aged 62 years, healthy and rn a business with a net income of kshs 80,000 and a farm with a net income of Kshs 30,000. The plaintiffs prayed for judgement to be entered against the defendants for: 1. General damages 2. Special damages of Kshs 523,300 3. Costs of the suit. 4. Interest on (a), (b), (c) above at court rates. The Defendants entered appearance and filed their statement of defence denying the averments in the Plaint and inviting the Plaintiff to strict proof. The matter was set for full hearing for both the plaintiffs and defendants case. Parties thereafter filed written submissions in support of their respective cases. On 28th March, 2025 the court entered judgement for the plaintiff against the defendants jointly and severally as follows: 1. Liability - 100% 2. Pain and suffering - 20,000/= 3. Loss of expectation of life100,000/= 4. Loss of dependency - 2,000,000/= 5. Special damages - 513,100/= Total -2,633,100/= The plaintiff shall have costs of the suit and interests. The defendants/appellants appealed on quantum of damages. Appellants submissions On whether the award of Kshs. 2,000,000 = as a global sum for loss of dependency was excessive and erroneous in law. The deceased was 62 years old at the time of death and was survived by two adult children, a factor which ought to have significantly influenced the assessment of dependence. In the trial court, the Appellants relied in the case of Ndungu & another (Suing as the Legal Representatives of the Estate of Godfrey Ndungu Mwaura) v Kenya Hospital Association t/a Nairobi Hospital & another [2024] KEHC 15215 (KLR) where the court awarded a global sum of Kshs. 1,000,000/= under loss of dependency for a 69-year-old businessman to propose an award of Kshs. 1,000,000/= under loss of dependency at the trial court. Moreover, the High Court in John Wamae & 2 Others v Jane Kituku Nziva & Others [2017] eKLR, awarded a global sum of Kshs. 400,000/= to dependants of a 61year old deceased and the court in Moses Maina Waweru vs Esther Wanjiru Githae (Suing as the personal representative of the Estate of the late David Githae Kiririo Taiti [2022] KEHC 1430 (KLR), awarded the deceased’s dependants a sum of Kshs. 800,000/=, where the deceased was aged 68 years. The Respondents at the trial court proposed the multiplier approach, which was unsuitable given that the deceased’s income could not be determined, thereby justifying the adoption of the global sum approach. However, having opted for the global approach, the Learned Trial Magistrate fell into error by awarding an excessive sum of Kshs. 2,000,000/= The trial court relied on authorities involving different circumstances, including the case of Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] KEHC 4971 (KLR) that involved a significantly younger deceased aged 40 years with young dependants, and the case of China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] KEHC 359 (KLR) involving a deceased aged 79 years. The Appellants submits that this Honourable court to intervene and correct the error by setting aside the impugned award and substituting it with a reasonable figure consistent with established principles and comparable authorities that take account of the country’s current economic situation. On whether the award of Kshs. 513,100 as special damages was made contrary to established legal principles. In the present case, while some components of the pleaded special damages were supported by evidence, a sum of Kshs. 40,200/= was not proved to the required standard as follows: 1. Police abstract on the accident Kshs. 300/= 2. The charge of copy of records Kshs. 550/= 3. Medical Expenses before death Kshs. 8,850/ 4. Death Certificate Kshs. 500/= 5. Coffin, lowering gear and hearse Charges kshs 30,000 Total amount pleaded but not proved Kshs. 40,200/= Nevertheless, the Trial Magistrate proceeded to erroneously include the said amounts in the award, ultimately granting Kshs. 513,100/= as special damages. The appellants submit that this Honourable Court should interfere with the award and set aside the portion that was not proved, and to substitute the same with an amount strictly supported by the evidence on record. Respondents submissions On whether the trial court erred in awarding Kesh. 2,000,000/= as a global sum for damages for lost dependency. On the evidence placed before the trial court awarded a global sum instead of the multiplier approach which in any event would have resulted in a much higher award for lost dependency owing to the fact that the Respondents adduced evidence to show that the deceased possessed technical qualifications in communications and that he was carrying out a registered business ROKIM COMMUNICATIONS registered under his name and that as per invoices, banking slips and payment receipts the deceased gave services to various customers who paid him for the services. Further, the deceased enjoyed good and robust health at age 62 years prior to his death and undertook his said business of providing communications services with ease. This fact favoured the global award made by the trial Court as the deceased had the prospects of continuing to carry on with his business had he not met his death. Nevertheless, the appellants in an unjustified bid to lower the global sum awarded herein on lost dependency, have cited the case of John Wamae & 2 others v Jane Kituku Nziva & another [2017] KEHC 1111 (KER), where a global sum of Ksh. 400,000/= was awarded for lost dependency for deceased who died at 61 years. The case has no application herein as there was no evidence of the deceased being engaged in income generating activity. In the present case, a multiplier can be used to inform the decision of a global sum, the multiplier of 7 years proposed by the Respondents in their submissions in the trial Court on the net income of Ksh 80,000 per month and a dependency ratio of 2/3 is reasonable herein for the deceased who died at 62 years, and the dependency lost under this approach is for an amount that is over Ksh 4,000,000/= hence the award of Ksh. 2,000,000 made by the trial Court under the global award approach cannot be said to be too excessive in the circumstances of the case herein and this honourable Court ought to be pleased to uphold it. On whether the trial Court erred in awarding Ksh 513,00/= as special damages. The respondents presented evidence of the special damages on their list of documents dated 9/4/2024 filed with the plaint in the trial court. There is a tabulation of receipts that amount to Kshs 513, 100. Hence, the appellants can’t object on the award of special damages. The respondents submit that services given for burial can’t be quantified with precision. Courts have held in favour of parties who in such cases have not proved each coin spent on special damages for a burial. Harun Kaburu M’kiara v BWM (Suing as the legal representative & administrator of Estate of the KM (Deceased) [2020] KEHC 8476 (KLR) The court held that: It is trite law that when it comes to special damages they must be pleaded and proved. However, perusal of the above cases reveals that that where funeral expenses are pleaded, they may be awarded even though there are no receipts. The policy foundation is that… the court occasionally loosen [ing] this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses… Be it known that it is of common notoriety that costs were incurred as a result of the burial of the deceased. Thus, the appellants claim that a sum of kshs 40,200 was pleaded but not proved as special damages, the court should award it in view of the above cited authority. Issues * 1. Whether the trial Court erred in awarding Kesh. 2,000,000/= as a global sum for damages for lost dependency. 2. Whether the trial Court erred in awarding Ksh 513,00/= as special damages. Analysis This being a first appeal, this court is obligated to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing the duty of a first appellate court were succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court is required to reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it did not have the advantage enjoyed by the trial court of seeing and hearing the witnesses. The present appeal challenges only the quantum of damages awarded by the trial court in its judgment delivered on 28th March 2025. The appellants do not contest the finding on liability but contend that the learned trial magistrate erred in awarding Kshs. 2,000,000/= as a global sum for loss of dependency and Kshs. 513,100/= as special damages. They argue that the award for loss of dependency was manifestly excessive, failed to take into account comparable authorities, and that part of the special damages was not strictly proved The first issue is whether the learned trial magistrate erred in awarding Kshs. 2,000,000/= as a global sum for loss of dependency. The evidence before the trial court was that the deceased was aged 62 years at the time of his death. He was survived by his widow and two adult children. The respondents asserted that the deceased operated a communications business and also derived income from farming. Although documentary evidence was produced showing that the deceased carried on business, there was no satisfactory evidence establishing his exact monthly income with certainty. In those circumstances, the learned trial magistrate opted for the global sum approach instead of the multiplier approach. The Appellants relied on cases such as Ndungu & another v Kenya Hospital Association [2024] KEHC 15215 (KLR) and John Wamae & 2 Others v Jane Kituku Nziva [2017] eKLR. However, those cases are distinguishable. In the present matter, there was clear evidence of ongoing income-generating activities supported by documents, unlike the cited authorities. The Respondents demonstrated through documentary evidence that a multiplier approach would have yielded over Kshs. 4,000,000. The global award of Kshs. 2,000,000 is therefore reasonable and conservative in the circumstances. It takes into account the deceased’s age, prospects of continued productivity, and the dependency of his family. Appellate courts do not interfere with an award of damages unless it is inordinately high or low or based on wrong principles (Kemfro Africa Ltd t/a Meru Express Transport v A.M. Lubia [1982-88] 1 KAR 727; Butt v Khan [1981] KLR 349). The trial magistrate properly evaluated the evidence and comparable authorities. This Court finds no basis to interfere with the award of Kshs. 2,000,000 for loss of dependency. The second issue concerns the award of Kshs. 513,100/= as special damages. The appellants contend that a sum of Kshs. 40,200/= comprising expenses relating to the police abstract, copy of records, medical expenses, death certificate and funeral expenses was not strictly proved and therefore ought not to have been awarded. The Respondents pleaded special damages of Kshs. 523,300 and produced a tabulated list of documents and receipts filed together with the Plaint. The trial court awarded Kshs. 513,100 after careful scrutiny. However, courts have consistently held that strict proof is relaxed for burial and funeral expenses, which are matters of common notoriety. In Harun Kaburu M’kiara v BWM [2020] KEHC 8476 (KLR. It is trite that costs are incurred in burying a deceased person, and receipts are not always available for every item. The appellants have identified specific items they contend lacked documentary support but have not demonstrated that the learned trial magistrate ignored the evidence on record or awarded sums that had not been pleaded. I find that the learned trial magistrate correctly directed himself on the applicable principles governing assessment of damages. Lastly, the Respondents substantially proved the special damages through the bundle of documents. The trial court did not err in awarding Kshs. 513,100. My finding is that the appeal lacks merit and is hereby dismissed in its entirety. READ AND PUBLISHED IN THE CTS O N 17TH JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT COURT ASSISTANT BEN SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE JOYCE MKAMBE GANDANI** Machakos High Court High Court Div Date: 2026-07-17 13:50:23