https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1333

Tumwesigye v Mutua & another (Both Suing on Behalf of the Estate of Michael Mutua Kavuli - Deceased) (Civil Appeal E127 of 2023) [2026] KECA 1333 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1333 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E127 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Phyllis Kamwada Tumwesigye Appellant and Fransisca Mueni Mutua 1st Respondent Jonathan Kakoi Mwaluko 2nd Respondent Both Suing on Behalf of the Estate of Michael Mutua Kavuli - Deceased (Being an appeal from the Judgment and Decree of the High Court of Kenya at Voi (Dulu, J.) delivered on 14th July 2023 in HC Civil Appeal No. E031 of 2022) Judgment 1.The dispute between the parties was first heard and determined before the Chief Magistrate’s Court at Voi in Civil Suit No. E199 of 2021. Fransisca Mueni Mutua and Jonathan Kakoi Mwaluko (Suing on behalf of the estate of Michael Mutua Kavuli (Deceased) (the respondents), sued Phyllis Kamwada Tumwesigye (the appellant) for the alleged unlawful death of the deceased through a road traffic accident. 2.The facts of the dispute can be derived from the respondents’ plaint dated 16th December 2021. It was pleaded that the appellant was the registered, insured and/or beneficial owner of motor vehicle chassis number SH50xxxxxx (the motor vehicle). On 6th September 2021, the deceased was travelling aboard the motor vehicle heading towards Nairobi from Voi along the Mombasa-Nairobi Highway, and that he had worn a seat belt. Upon reaching Ndii area, it is alleged that the driver of the motor vehicle accelerated and switched off the lights. The result was that he lost control and rammed into the rear of truck registration number KBT 318K/ZD 9739 and veered off the road into a bush and, as a result of the impact, the deceased sustained fatal injuries at the age of 48 years. The respondents contended that the appellant was liable and/or vicariously liable for loss and damage suffered by the deceased’s family through her authorized driver, servant and/or agent. 3.The respondents particularised the negligence of the appellant, her authorised driver, servant and/or agent as follows:“a)Driving the motor vehicle without due care and attention thereby causing the accident;b.Driving at an excessive high speed thereby causing the accident.c.Failing to manage and/or control the motor vehicle so as to avoid the said accident.d.Attempting to switch on lights on the inside of motor vehicle when it was unsafe to do so.e.Failing to see the truck ahead.f.Accelerating while attending to other business in the motor vehicle.g.Failing to exercise due care and attention while driving on the said road.h.Failing to apply brakes in sufficient time or at all to avoid causing the accident.i.Failing to steer in a proper cause.j.Failing to employ a competent drive.k.Driving dangerously.” 4.The respondents particularised claim for special damages as:“i.Funeral expenses – Kshs. 80,000.ii.Obtaining Limited Grant – Kshs. 30,000. Total – Kshs. 110,000.” 5.The respondents pleaded that the deceased was a second- hand clothes trader earning at least Kshs.28,000 per month, and that he was the sole breadwinner of his dependants, who were named as follows:i.Francisca Mueni Mutua - 45 years – Widowii.Dennis Kavuli Mutua - 26 years – Soniii.Lither Mwikali Mutua – 26 years – Daughteriv.Naum Munini Mutua – 23 years – Daughterv.Pauline Koki Mutua – 19 years – Daughtervi.Purity Mutheu Mutua – 15 years – Daughtervii.David Mwanzia Mutua – 13 years – Sonviii.Kamene Mutua – 10 years – Daughterix.Mumbe Mutua – 7 years – Daughterx.Jonathan Kakoi Mwaluko – 43 years – Brotherxi.Paul Mweu Kavuli – 41 years – Brotherxii.Kimeu Kavuli – 58 years – Guardian. 6.The respondents therefore prayed for judgement against the appellant for:a.general and special damages;b.loss of future income, lost years, loss of dependency, loss of expectation of life, pain and suffering before death;c.loss of consortium, fellowship and companionship; andd.costs of the suit and interest thereon. 7.In her Statement of Defence dated 17th January 2022, the appellant denied that she was the owner of the motor vehicle, and that the accident occurred at the place, date and time, and in manner stated or as alleged; and that the deceased was a passenger in the motor vehicle, and the respondents were put to strict proof thereof. The appellant’s defence was that, if the accident ever occurred, the same was caused by the negligence of the driver of motor vehicle KBT 318K/ZD, and the particulars of negligence were outlined as follows:“i.Failing to adhere to the Highway Code and other traffic regulations;ii.Driving at a very excessive speed without due regard to the nature of the road.iii.Driving without due regard to the safety of other road users more particularly the suit motor vehicle.iv.Driving without due regard to other traffic on the said road.v.Failing to exercise due care and skills in managing motor vehicle KBT 318K/ZD.vi.Failing to brake, stop, steer or in other way manage motor vehicle KBT 318K/ZD.vii.Driving without care and attention thereby causing the accident.viii.Driving defective motor vehicle.ix.Colliding into the suit motor vehicle.x.Attempting to overtake when it was neither prudent nor safe to do so.xi.Failing to adhere to the hazard and life saver signs placed on the road.xii.Failing to keep a proper outlook.” 8.The appellant further pleaded that, in view of the particulars of negligence outlined above, she would join the owner and driver of motor vehicle KBT 318K/ZD to the suit as third parties. 9.The appellant also faulted the deceased for allowing himself to be carried as a passenger in the motor vehicle, which was on transit after being cleared at the Port of Mombasa and that, therefore, he could not benefit from his own illegal act. The appellant thus prayed that the respondents’ suit be dismissed with costs. 10.In rejoinder, the respondents filed a Reply to Defence dated 31st January 2022 by which they reiterated the contents of the plaint and joined issue with the respondent’s defence, save for any admissions expressly pleaded. They restated that the accident was caused by the negligence of the appellant, her authorised driver, servant and/or agent. They prayed that the defence be struck out with costs; and that judgement be entered in their favour as prayed in the plaint. 11.By a consent recorded by both parties on 25th May 2022, liability was apportioned at 10% as against the respondents and 90% against the appellant. This left the trial court to only determine the issue of the quantum of damages payable to the respondents. 12.The suit was heard by way of viva voce evidence. Fransisca Mueni Mutua (PW1), the deceased’s wife, adopted her witness statement dated 16th December 2021. She testified that the deceased was a business man who sold second hand clothes; that he bought bales of second hand clothes from Mombasa and traded in them in a market at Masinga; that the business earned an income of Kshs.28,000 per month; that the deceased was the overall breadwinner of the family providing food, clothing and other children’s needs; and that the family expended Kshs.80,000 as funeral expenses for transportation of the body from Voi to Matuu, for purchase of the coffin, clothing, and for other burial expenses. She further adopted and relied on the documents which she produced in evidence as ‘PEXH 1 - 11.’ We shall make reference to any of the documents in this judgment where appropriate and if need be. 13.The respondents’ closed their case without calling any witnesses. 14.The issue of liability having been settled, the trial court considered the quantum of damages under the different heads. After analysing the evidence, the learned trial Magistrate (Hon. Obura, CM), awarded Kshs. 50,000 under The Law Reform Act, Cap 26 for pain and suffering and Kshs. 100,000 for loss of expectation of life. 15.Under the head of loss of dependency, the trial court held that it is only the widow and the deceased’s children who qualified as dependents to the exclusion of the deceased’s brothers aged 41 and 43 years. In the absence of documentary evidence of the deceased’s income, the trial court adopted the minimum wage of Kshs.27,023.95 per month for a salesman based on the Regulation of Wages (General) (Amendment) Order, 2018. A multiplier of 7 years was adopted and dependency ratio of 2/3 applied. Loss of dependency thus awarded was Kshs.1,513,341.20 (Kshs.27,023.95 x 7 years x 2/3 x 12= Kshs.1,513,341.20). 16.As for special damages, the learned trial Magistrate, guided by the decision of the High Court (Mativo, J.) (as he then was) in John Bwire vs. Joram Saidi Wayo & Another (suing on behalf of the estate of Benjamin Wayo Sailoki) (2022) KEHC 7 (KLR), declined to award Kshs.30,000 as the legal fees paid to obtain grant of letters of administration ad litem. The learned Judge held that a person cannot claim legal fees as special damages when such expense was incurred for purposes of acquiring locus standi before suing. The prayer for the funeral expenses of Kshs.80,000 was awarded as prayed as there was no objection thereto by the appellant. 17.Under the head of loss of consortium, companionship and fellowship, the learned Magistrate opined that the deceased’s wife was 48 years old as at the death of the deceased, and that they both had 7 children aged between 7 years and 26 years. The Magistrate observed that these dependants had lost love, affection and companionship and awarded Kshs.50,000 under this head. 18.The appellant was aggrieved by that decision and appealed to the High Court at Voi essentially faulting the trial court for the awards made under the different heads, namely that the learned Magistrate erred in law and in fact: in placing the minimum wage at Kshs.27,023.95 and ended up making an award of loss dependency that was inordinately high and erroneous; in failing to apply the provisions of Section 7 of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 to ascertain the deceased’s income; in assessment of damages under the head of loss of consortium, fellowship and companionship without any evidential justification, and without following judicial precedents and being guided by the facts of the case, hence occasioning a miscarriage of justice in arriving at a sum that was inordinately high; and, overall, applying the wrong principles in assessment of damages. 19.In his Judgment delivered on 14th July 2023, the learned Judge (Dulu, J.) reconsidered the issues of both law and fact and, as regards the application of a multiplicand of Kshs. 27,023.95, he faulted the trial Magistrate for treating the deceased at the same level of a cashier without documentary evidence. However, it was the learned Judge’s view that the deceased could not be treated as a general worker earning a monthly income of Kshs.7,240 as argued by the appellant. He thus adopted a middle ground and considered that a monthly income of Kshs.20,000 was reasonable. Thus, the award for loss of dependency was re-calculated to Kshs.1,120,000 (Kshs.20,000 x 7 x 2/3 x 12 months= Kshs.1,120,000). 20.As to the award of loss of consortium, the learned Judge referred to the decision of this Court in vs. Abdullahi Hemed Khalil & another (1994) eKLR where an award of Kshs.40,000 was made in a case where the deceased had died just as in the instant case. For this reason, he maintained the award of Kshs.50,000. 21.As for the claim that the trial Magistrate acted contrary to the provisions of Section 7 of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405 in ascertaining the income of the deceased by failing to apply the minimum wage, the learned Judge held that his understanding of the provision is that it did not deal with minimum wages but the maximum amount which an insurer is bound to pay under an insurance policy. 22.Consequently, the learned Judge partially allowed the appeal only with regard to the award on loss of dependency. All other awards were upheld, and the appellant was condemned to pay 80% of the costs of the appeal. 23.Further aggrieved, the appellant filed the instant appeal. By a Memorandum of Appeal dated 23rd August 2023, she has raised five grounds of appeal as follows:a.that the learned Judge erred in law by arbitrarily applying the multiplicand of Kshs. 20,000, which was unsupported by law, hence making an award under the head of loss of dependency that was inordinately high in the circumstances;b.that the learned Judge erred in law in failing to apply the provisions of Section 2 of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 in ascertaining the income of the deceased in failing to apply the minimum wage;c.that the learned Judge erred in law in assessing damages under the head of loss of consortium, fellowship and companionship thereby arriving at a sum that was inordinately high and excessive in the circumstances; andd.that the learned Judge erred in law by awarding 80% of the costs to the respondents where the appeal substantially succeeded in favour of the appellant, thereby occasioning miscarriage of justice. 24.The appellants prayed that: the quantum of damages for loss of dependency be set aside and replaced with a re-assessment of damages for loss of dependency downwards; the quantum of damages under the head of loss of consortium, fellowship and companionship be set aside and/or vacated; and that the appellant be awarded costs of this appeal and the appeal in the High Court. 25.We heard this appeal on a virtual platform on 16th December 2025. Learned counsel Mr. Kioko was present for the appellant while learned counsel Mr. Kazungu appeared for the respondents. Mr. Kioko briefly highlighted the appellant’s submissions orally while Mr. Kazungu wholly relied on the respondents’ written submissions without highlighting them. 26.The appellant’s submissions are dated 23rd appeal which challenges the award and/or assessment of damages, the principles which guide the Court are that it need not substitute a figure for its own simply because it would have arrived at a different figure had it tried the case in the first instance as was enunciated in the decision in in Nance vs. British Columbia Electric Railway Co. Ltd (4) (1951) AC 601; and by this Court in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko (2006) KECA 130 (KLR), which cited with approval the decision of H. West & Sons Limited vs. Shepherd (1964) A.C. No. 326. 27.It was argued that the learned Judge’s task was to determine whether the minimum wage of Kshs.27,023.95 per month adopted by the trial Magistrate in accordance with the Regulation of Wages (General) (Amendment) Order, 2018 was proper; and that the figure of Kshs.20,000 was plucked from nowhere and arbitrarily applied by the Judge. The appellant proposed that, since the deceased’s death certificate indicated that he was a trader, but the nature of the business was not specified, by dint of lack of clarity in that regard, the deceased ought to have been equated to a general worker whose income then under the afore-stated regulation was Kshs.7,240 per month; and that, for that matter, the figure would be worked as: Kshs. 7,240 × 12 months × 7 × 2/3 = Kshs. 405,440. 28.The appellant argued that there was no law under The Law Reform Act and the Fatal Accidents Act which governs award of loss of consortium, fellowship and companionship in accident cases. The appellant referred to, and urged us to be persuaded by, the decision of the High Court in Acceler Global Logistics vs. Gladys Nasambu Waswa & Another (2020) KEHC 9074 (KLR) (Nyakundi, J.) in which it was observed that loss of consortium is awarded when an injured spouse was or is alive; and that there is no ‘future’ loss of consortium that is compensable. 29.Finally, it was submitted that the award of 80% to the respondents was contrary to the general principle that costs follow the event, firstly, because the appellant’s appeal substantially succeeded and, secondly, because, overall, damages that were initially awarded reduced drastically. The appellant submitted that awarding costs at 80% to the respondents was tantamount to a wrong exercise of discretion. 30.For those reasons, the appellant prayed that the appeal be allowed. 31.The respondents’ submissions are dated 2nd December 2025. The respondent contended that, this being a second appeal, only matters of law fall for determination; that the issue of the deceased’s occupation is a matter of fact, which was settled by the first appellate court and cannot be subject of a second appeal; that the trial court adopted the wages of a ‘salesman’ which was comparable to the deceased’s occupation of being a businessman/trader who sells goods or services for profits/commission; and that the first appellate court ought to have upheld this finding given that there was no evidence adduced to show that the deceased was a general worker as alluded to by the appellant. In this regard, the appellant referred to the decision of this Court in Jacob Ayiga Maruja & Another vs. Simeon Obayo (2005) KECA 202 (KLR) where it was held that proof of income cannot necessarily be proved by documentary evidence, and that, in this case, where the deceased was in the informal sector, this rule should have been applied; and that the learned Judge ought to have upheld the decision of the trial court in adopting minimum wage of Kshs.27,023.95 as the deceased’s earnings. Nonetheless, the respondent viewed the sum of Kshs.20,000 adopted by the learned Judge as fair, reasonable and just in the circumstances. 32.As to the award on loss of consortium, it was submitted that the deceased was a loving husband to his wife and children who were deprived of companionship, love and servitium; that the deceased’s death led to social impairment of his family, which ought to be compensated by an award of damages as was held by this Court in Salvatore De Luca vs Abdullahi Hemedi Khalil & Another (supra); that the decision in Acceler Global Logistics Company Limited (supra) relied upon by the appellant, upheld the award of Kshs.150,000 for loss of consortium; that, similarly, in the decision of Abdallah Issa & Anor vs. Leonida M. Alusa & Another (2019) KEHC 10592 (KLR), Olga Sewe, J. upheld an award of Kshs.100,000 for loss of consortium; and that, based on the doctrine of stare decisis, the decision of this Court in Salvatore De Luca (supra) was binding not only to the trial court, but also to the High Court. 33.On the issue of costs, it was submitted that an award of costs is a matter of the discretion of a court; that, the appeal having been dismissed in its entirety, the learned Judge did not breach any legal principle; and that even the learned trial Magistrate did not misapprehend the law or the principles applicable in award of costs or apply the wrong principles in making the award. Accordingly, we were urged to dismiss the appeal with costs. 34.This being a second appeal, we are conscious that our jurisdiction is limited to matters of law only as provided for under Section 72(1) of the Civil Procedure Act as follows:1.Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely-a.the decision being contrary to law or to some usage having the force of law;b.the decision having failed to determine some material issue of law or usage having the force of law;c.a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. 35.In Stanley N. Muriithi & another vs. Bernard Munene Ithiga [2016] eKLR, this Court held that:“We are conscious of our limited jurisdiction when dealing with a second appeal. Our reading of Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya, which provides for the circumstances when a second appeal shall lie from the appellate decrees of the High Court, indicates that the appeal must be on matters of law.” 36.Similarly, this Court in Kenya Breweries Ltd vs. Godfrey Odoyo [2010] eKLR held that:“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. In the case of Stephen Muriungi and another vs. Republic (1982-88) 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366:‘We would agree with the view expressed in the English case of Martin v Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.’” 37.We have carefully considered and scrutinised the record of appeal, the submissions of both parties, the authorities relied upon and the law. In our view, the issues that commend themselves for determination are(i)whether the appeal, based on assessment of damages only, raises a matter of law;(ii)whether the award under the head of loss of consortium was justifiable; (iii) whether the courts below applied the correct multiplicand in assessing loss of dependency; and (iv) whether costs were properly awarded by the first appellate court. 38.On the first issue, the respondents have argued that the issue of the deceased’s occupation or earnings is a matter of fact which was settled by the two courts below; and that, on account that this is a second appeal, this Court is divested of jurisdiction to delve into it. We agree that the fact as to what the deceased’s occupation was is a matter of fact. However, it is on the basis of the deceased’s occupation that damages are assessed. Therefore, the issue of the deceased’s occupation cannot be divorced from the question of assessment of damages or be considered in isolation. Both issues run in tandem with each other. Further, it is settled law that the issue of assessment of damages is a matter of law as was aptly stated by this Court in Agnes Kamene Mulyali vs. Harvest Limited (2017) KECA 764 (KLR) that:‘‘As this is a second appeal, we address issues of law only and the quantum or assessment of damages is a question of law.’’ 39.And, even as we consider the assessment of damages, we are guided by the principle that award of damages is an exercise of discretion of the trial court, and an appellate court will be slow to interfere with the assessment made, and will only do so in peculiar circumstances. In Kemfro Africa Limited T/A ‘Meru Express Services (1976)’ & Another vs. Lubia & Another (1985) KECA137 (KLR), Kneller, JA. expounded on the principles to be applied while considering interference with damages awarded by the trial court as follows:“the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it 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 low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango v. Manyoka [1961] EA 705 709, 713; Lukenya Ranching and Farming Co- operatives Society Lt v. Kavoloto [1970] EA, 414 418, 419.” 40.This Court in Arrow Car Limited vs. Elijah Shamalla Bimomo & 2 others (2004) KECA 136 (KLR), while applying the principles set out in Kemfro Africa Limited (ibid), held that:“…… in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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 low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 41.That said, we begin with whether the award under the head of loss of consortium was justifiable, this Court in Chege Kimotho & Others vs. Maria Vesters & Another (1988) KECA 138 (KLR) cited with approval the English decision of Best vs. Samuel Fox & Co. Ltd (1951) 2 KB 639 where “consortium” was defined as:“companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state.” 42.In the same vein, this Court in Muriithi vs. My Beauty Transporters Limited & 2 Others (2025) KECA 516 (KLR) was persuaded just as we are, by the findings of Emukule, J. in Mwaura Muiruri vs. Suera Flowers Limited & Another (2014) KEHC 6761 (KLR) on the suitability of the award of a claim of consortium 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. It was the Plaintiff's testimony that since the accident, he had been unable to perform sexual relations with his wife. However, I have carefully perused the medical reports and find that the Doctors who examined the Plaintiff did not find that the injuries sustained by him hindered his ability to fulfil his marital duties in any way. In addition, the Plaintiff did not raise any such complaint at the time of examination to enable the doctors assess the same. For this reason, I find that the claim of inability to perform sexual relation has not been proved. I will therefore disregard the Plaintiff's claim under this head.” 43.From the definition and the applicability in awarding loss of consortium as described and held in Best vs. Samuel Fox & Co. Ltd (supra) and Muriithi (supra) respectively, it is correct to find that in the marital context, the person who has suffered loss of it, pleads their inability to provide the affection and meet the sexual needs of the unaffected partner. A spouse who is deceased cannot provide affection in their state, hence cannot claim loss of consortium. In the same vein, it can neither be available to the spouse who is left alive since they suffered no loss of consortium in regards to their future relationships, as you cannot, and is not expected that one can consummate with a person who is no longer living. 44.In this instance, therefore, the two courts below certainly erred in awarding and upholding the award of Kshs.50,000 for loss of consortium, particularly to Francisca Mueni Mutua. Accordingly, we hereby set aside this award. 45.Turning to the question as to whether the two courts below applied the correct multiplicand in assessing loss of dependency, it is not contested that no documentary evidence was adduced to prove that the deceased earned a monthly income of Kshs.28,000 from his second-hand clothes trade. Both courts below were of a similar mind that, in the absence of proof of the earnings, the Regulation of Wages (General) (Amendment) Order 2018 then in force, was the fall-back method for determining the deceased’s earnings. However, both courts took divergent views on what was to be considered as the wages earned by the deceased’s, who was described as a trader selling second hand clothes. 46.The longstanding principle as was held by this Court in Silverstone Quarry Limited & Another vs. Beatrice Mukulu Kang’uta & Another (suing as Administrators of the Estate of Philip Musyoka Muthoka (2020) KECA 867 (KLR) is that, in the absence of credible proof of income, a court is entitled to apply the gazetted minimum wage guidelines. 47.The deceased’s occupation was described as being a ‘trader.’ The appellant urged that the deceased was better placed to be considered as a ‘general worker’, while the respondents contend that, since he was in the trade of selling and making profit, he could be considered to be a ‘salesperson.’ It is of common knowledge that a salesperson engages in the business of selling products, services or solutions to customers by paying attention to their specific needs. This cannot be said of a person who generally acquires items from a main supplier to sell to his or her customers as the deceased did. On this ground, the best that the two courts below would have done was to apply the basic minimum wage then applicable. 48.In her testimony, the deceased’s widow testified that he used to trade in Masinga Market in Machakos County. The finding by the first appellate court that the deceased should have been considered to earn a wage of Kshs.20,000 per month was unsupported by evidence. The deceased having died on 6th September 2021, the then subsisting wage regulation was the Regulation of Wages (General) (Amendment) Order 2018 which provided for the basic minimum monthly wages. There being no classification of the profession ‘trader’ in the Regulation of Wages (General) (Amendment) Order 2018, the deceased was best suited to be classified as a ‘general worker’, and the applicable wage for workers within the former Municipalities and Town Councils of Mavoko, the proximity of where the deceased worked, was Kshs.7,240.95, which we find to be the multiplicand suitable and applicable in calculating the loss of dependency. We would then arrive at a figure of Kshs.405,473.04 tabulated as hereunder:Kshs. 7,240. 59 × 12 months × 7 × 2/3 = Kshs. 405,473.04. 49.Finally, turning to the issue as to whether costs were properly awarded by the first appellate court, it is trite law that costs follow the event, a principle derived from the provisions of Section 27(1) and (2) of the Civil Procedure Act, Cap 21 which state: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. 50.The two principles derived from the above provisions is that costs are subject to the discretion of the court; and that they ordinarily follow the event. Even as the court is entitled to exercise this discretion, just like in any circumstances, it is to do so judiciously. 51.In Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] KECA 373 (KLR), this Court held that:“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. See Section 27 (1) of the Civil Procedure Act ….Thus, where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute ‘good reason’ within the meaning of the rule” 52.The Supreme Court in Rai & 3 others vs. Rai & 4 others (2014) KESC 31 (KLR) addressed itself on the issue of costs by holding that:“14.So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p 94]:‘[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure …. Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.’15.It is clear that there is no prescribed definition of any set of ‘good reasons’ that will justify a Court’s departure, in awarding costs, from the general rule, costs-follow-the-event. In the classic common law style, the Courts have proceeded on a case-by-case basis, to identify ‘good reasons’ for such a departure ….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.” 53.We need not belabour this issue. Taking to mind the above holdings and the facts of this case, the respondents having largely succeeded in the main suit, and the appellant having partially succeeded in the first appeal, the best order that commended the learned trial Judge to make was that each party bears their own costs respectively. In this appeal, although the appellant has largely succeeded on most of the issues, the fact is that this is largely attributable to misapprehension of the law by the learned Judge. In the circumstances, parties too should bear their own costs of the appeal. 54.For the avoidance of doubt, since the award of pain and suffering, loss of expectation of life and special damages were uncontested, they shall remain undisturbed. 55.The upshot of our findings is that the appeal partially succeeds to the extent of the heads of awards that have been varied pursuit to this Judgment. Consequently, the Judgment of the High Court of Kenya at Voi dated and delivered by Dulu, J. on 14th July 2023 in Voi HCCA No. E031 of 2022 be and is hereby set aside and substituted therefor the following orders:i.The award of loss of consortium of Kshs.50,000 is hereby set aside.ii.The respondents are awarded Kshs.405,473.04 for loss of dependency.iii.The award of pain and suffering, loss of expectation of life and special damages are hereby upheld.iv.Parties will bear their own costs in the trial court suit, in the appeal before the High Court as well as in this appeal.v.The amounts as awarded in (i) to (iii) above shall be subject to apportionment at the ratio of 10:90% in favour of the respondents.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR....................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA....................................JUDGE OF APPEALI certify that this is a true copy of the originalsigned Deputy Registrar