[2023] KEHC 24460 (KLR)

Rwenyo v Koske & another (Suing as the Legal Representatives of the Estate of Evans Kipyegon Bore - Deceased) (Civil Appeal 20 of 2022) [2023] KEHC 24460 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24460 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 20 of 2022

RL Korir, J

October 17, 2023

Between

Annah Nyaboke Rwenyo

Appellant

and

Samuel Kibore Koske

1st Respondent

Chemutai Kimeto

2nd Respondent

Suing as the Legal Representatives of the Estate of Evans Kipyegon Bore - Deceased

(Being an Appeal from the Judgment of the Senior Resident Magistrate, Omwange J. at the Magistrate’s Court at Sotik, Civil Suit Number 49 of 2020)

Judgment

1. The Respondents (then Plaintiffs) as the Legal Representative of the estate of Evans Kipyegon Bore, sued the Appellant (then Defendant) for General and Special Damages that arose when the deceased, while aboard Motor Cycle Registration Number KMEX 175X was allegedly knocked down by Motor Vehicle Registration Number KCC 348C which allegedly belonged to the Appellant.

2. The trial court conducted a hearing where the Respondents tendered evidence in support of their claim through two witnesses while the Appellant called one witness.

3. In its Judgement dated 14th January 2022, the trial court found that the driver of Motor Vehicle Registration Number KCC 348C was to blame for the accident and awarded Kshs 2,715,310/= as General and Special Damages to the Respondents (then Plaintiffs).

4. Being aggrieved with the Judgment of the trial court, the Appellant through her Memorandum of Appeal dated 6th May 2022 appealed against the whole Judgment and relied on the following grounds: -i.That the learned trial Magistrate erred in fact and in law in finding the Appellant 100% liable.ii.That the learned trial Magistrate erred in fact and in law in applying a dependency ratio of 2/3. iii.That the learned trial Magistrate erred in fact and in law in applying a minimum wage bill of Kshs 12,926. 55/=iv.That the learned trial Magistrate erred in law and in fact in failing to take into account the Defendant’s submissions and the binding authorities cited thereon thereby arriving at an excessive award of damages in the matter.

5. My work as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to my own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the Court of Appeal case of Selle & another vs Associated Motor Boat Co. Ltd & others (1968) EA 123.

The Plaintiffs/Respondents’ case. 6. Through their Plaint dated 27th July 2020, the Respondents stated that on 13th January 2020, their son (the deceased) while riding Motor Cycle Registration Number KMEX 175X was knocked by Motor Vehicle Registration Number KCC 348C (hereinafter referred to as the subject motor vehicle) along Sotik-Litein road at Kamirai area causing him fatal injury.

7. The Respondents stated that the Appellant being the owner or proprietor of Motor Vehicle Registration Number KCC 348C, was negligent in causing the accident and particularized the negligence in paragraph 4 of the Plaint. It was the Respondents’ further case that the deceased had dependants and the said dependants were listed in paragraph 6 of the Plaint.

8. It was the Respondents’ case that at the time of the death of the deceased, he was aged 27 years and that he was a boda boda rider who earned approximately Kshs 20,000/= per month which he used to support his dependants. That by his demise, the deceased’s estate and dependants suffered grave loss.

9. The Respondents’ claim against the Appellant was for Special and General Damages under the Law Reform Act and Fatal Accidents Act.

The Appellant’s/Defendant’s case 10. Through her statement of defence dated 26th August 2020, the Defendant/Appellant denied that she was the registered owner of Motor Vehicle Registration Number KCC 348C and further denied the occurrence of the accident.

11. The Appellant denied the particulars of negligence levelled against her. That if any accident happened, it was caused solely by the negligence of the rider of Motor Cycle Registration Number KMEX 175X and the deceased. She particularized the negligence in paragraph 6 of her Defence.

12. Pursuant to the directions of this court on 27th January 2023, the Appeal was canvassed by way of written submissions.

The Appellant’s Submissions. 13. In her submissions dated 14th February 2023, the Appellant submitted that the trial court erred in apportioning her 100% liability for the accident. That the trial court confirmed in its Judgement that the Respondents’ witnesses did not witness the accident but proceeded to find her 100% liable. The Appellant further submitted that in the alternative, liability be apportioned equally because two different versions of the accident were presented to the trial court. She relied on Postal Corporation of Kenya & another vs Dickens Munayi (2014) eKLR and Enock Sinde Obegi vs Benard Sumo (2020) eKLR.

14. It was the Appellant’s submission that the Respondents did not prove their case on a balance of probabilities. That the Respondents failed to avail any eye witness to the accident and that the police officer’s testimony did not add much water to their case as he merely reiterated what was stated in the police abstract which indicated that the matter was pending under investigations. She relied on Patrick Ngului vs Mutie Mutune & another (2019) eKLR.

15. The Appellant submitted that the trial court should have adopted a dependency ratio of 1/3 instead of 2/3 and relied on David Kajogi M’mugaa vs Francis Muthomi (2012) eKLR. That the issue of dependency was a matter of fact and not law and the Respondents did not provide any evidence to show that the deceased supported them. The Appellant further submitted that the dependency ratio of 2/3 was therefore unjustified and relied on Dickson Taabu Ogutu (suing as legal representative of the estate of Wilberforce Ouma Wanyama) vs Festus Akolo & another (2020) eKLR.

16. It was the Appellant’s submission that the trial court was wrong in adopting the multiplicand of Kshs 12,926. 55/=. That the trial court did not justify such an award. The Appellant proposed a minimum wage award of Kshs 6,891. 15/= under the Regulation of Wages (General) (Amendment) Order 2018 for motor cycle industry.

17. The Appellant submitted that the deceased died on 13th January 2020 when the minimum wage applicable was the Regulation of Wages (General) (Amendment) Order 2018.

18. It was the Appellant’s submission that she had raised grounds that enable this court to interfere with the award of the lower court. She relied on section 78 of the Civil Procedure Act, Peter M. Kariuki vs Attorney General (2014) eKLR and Oluoch Eric Gogo vs Universal Corporation Ltd (2015) eKLR.

The Respondents’ Submissions. 19. Through their submission dated 21st March 2023, the Respondents submitted that simply because DW1 gave conflicting evidence with PW2 that the court should believe DW1 and hold the parties equally liable. That DW1 was not an eye witness and did not compile the report produced as D. Exh 1. It was the Respondents’ further submission that the investigation was conducted 9 months after the accident and that the evidence contained in the report was merely hearsay and could not be used as a basis to find liability. They relied on Multiple Hauliers (E.A) Limited vs Onesmus Kyalo Munuye & another (2021) eKLR.

20. It was the Respondents’ submission that they pleaded the doctrine of Res ipsa loquitor which meant that upon PW2 testifying that the driver of the vehicle was driving in the middle of the road at night, the burden shifted to the Appellant to prove otherwise. That such burden could only be discharged if the driver of the subject motor vehicle had been called to testify, but he was not called to testify.

21. The Respondent submitted that no evidence was adduced to show that the deceased caused the accident or contributed in any manner to the same and hence the trial court was correct in its finding on liability.

22. On the issue of the multiplicand, the Respondents stated that a motor cycle rider fell into category 5 of the Regulation of Wages (General) (Amendment) Order 2018 and given that Sotik fell into the column of “all other areas” then the applicable wage would be Kshs 13,431. 30/=. They relied on Petronila Muli vs Richard Muindi Savi & Catherine Mwende Mwindu (2021) eKLR.

23. On the issue of ratio, the Respondents submitted that even though the deceased was unmarried, PW1 testified that he used more than Kshs 10,000/= out of his monthly income to support them and the evidence was not rebutted. That the ratio of 2/3 was justified. They relied on Simon Babu Mogi vs Kipkurui Bernard Cheruiyot & another (2020) eKLR and Alice O. Alukwe vs Akamba Public Road Services Ltd & 3 others (2013) eKLR.

24. It was the Respondents’ submission that it was not a matter of principle that a dependency ratio of 1/3 should always be applied where a deceased was unmarried. That there was evidence that the biggest share of the deceased’s income went to support his dependants hence the share applied by the trial court was proper.

25. I have gone through and carefully considered the Record of Appeal dated 5th July 2022, the Appellant’s Written Submissions dated 14th February 2023, and the Respondents’ Written Submissions dated 21st March 2023. The issues for my determination are liability and the quantum payable.

Liability 26. It was the Respondents’ case that Motor vehicle registration no. KCC 348C which hit and killed the deceased belonged to the Appellant. They produced a copy of records marked at P.Exh 5 which indicated that the said vehicle belonged to the Appellant. The fact of death was proved by the production of the death certificate that was marked as P.Exh 3.

27. The cause of death was proved by a Post Mortem Report dated 17th January 2020 and marked as P.Exh 2. The Report stated that the cause of death was severe head and abdominal injury due to a road traffic accident. What was in dispute was between the deceased and the Appellant, who bore the blame for the accident.

28. Samwel Kibore Koskei (PW1) and No. 65597 PC Daniel Ngeiywo (PW2) did not witness the accident. PW1 testified that his son the deceased was involved in a road traffic accident where he lost his life. PW2 testified that he was the investigating officer and that the accident occurred on the material day at around 7p.m. It was his testimony that the deceased was heading to Litein and the subject motor vehicle was heading to Kaplong and that the two collided head on and as a result the deceased died on the spot.

29. It was PW2’s testimony that the subject motor vehicle was being driven in the middle of the road and it collided with the deceased as it attempted to return to the left side. When PW2 was cross examined, he stated that he initially blamed the subject motor vehicle for the accident but later on, he could not conclusively tell who was to blame.

30. On the other hand, Peter Munga (DW1) testified that he was the Operations Director at Sunrays Investigators Ltd and that they received instructions from Madison Insurance Company (the Appellant’s Insurer) to carry out investigations on the accident involving the subject motor vehicle and Motor Cycle Registration Number KMEX 175X. He testified that he visited Sotik Police Station where he perused the O.B and interviewed the Investigating Officer (PW2) and the Appellant.

31. DW1 concluded that Motor Cycle Registration Number KMEX 175X was being driven at a high speed and encroached on the subject motor vehicle’s lane and got into contact with the passenger side of the subject motor vehicle. DW1 further testified that he was not aware of the investigating officer’s conclusion that the subject motor vehicle was being driven in the middle of the road.

32. The Respondents through PW2 produced a Police Abstract dated 1st February 2020 and the same was marked as P.Exh 4. I have gone through the abstract and I have noted that as at 1st February 2020, the police could not lay blame on either the deceased or the Appellant for the cause of the accident as the matter was still under investigations. As earlier noted, the Investigating Officer (PW2) upon cross examination admitted that he could not conclusively tell who was to blame for the accident.

33. The Appellant through DW1 produced an Investigation Report by Sunrays Limited and the same was marked as D.Exh 1. The Report stated that on the material day, the rider of Motor Cycle Registration Number KMEX 175X had no pillion passenger and was riding in a zig zag manner and ended up ramming into the subject motor vehicle on the front left side. That upon impact, the rider was hurled to the windscreen and then landed on the tarmac where he died on the spot. Contrary to the Respondents’ submission that the Report relied on an unattached witness statement, the Report (D.Exh 1) contained the Appellant’s statement and DW1 confirmed in his testimony that the relied on the statement of the Appellant who was the eye witness.

34. I have gone through the attached statement by the Appellant and she stated that she was a passenger in the subject motor vehicle on the material day which meant she alongside the driver were the only eye witnesses to the accident. Her failure to testify as a witness raises doubt as to whether or not she was indeed an eye witness and renders the report improbable.

35. I have also noted the mischief between the Investigating Officer (PW2) and Peter Munga (DW1). PW2 initially testified that he was convinced that the driver of the subject motor vehicle was to blame for the accident as he drove in the middle of the road thereby occasioning the accident. Upon cross examination, he stated that he was not sure who was to blame. DW1 on the other hand testified that in the course of his investigations, he interviewed PW2 as the Investigating Officer on the circumstances of the accident and that PW2 did not inform him of his conclusion as to who was to blame for the accident.

36. In the absence of an eye witness testimony and in the presence of two conflicting versions of the circumstances of the accident, I agree with the Appellant’s submissions that if a court is unsure on who to blame for an accident, it should apportion liability equally. In Hussein Omar Farah vs Lento Agencies (2006) eKLR, the Court of Appeal observed that:-“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame……..”

37. Similarly in Postal Corporation of Kenya & another v Dickens Munayi (2014) eKLR, Ngenye Macharia J. held that:-“For the foregoing reasons, I am clear in my mind, that it is difficult to tell the extent to which each party (Respondent and Appellants' driver) contributed to the accident. And as rightly submitted by counsel for the Appellants, when the court is in doubt on the extent of contribution by either party, the most prudent thing to do is to apportion the contribution at a ratio of 50%:50%. I therefore entirely concur with the findings in the cited cases of HAJI -VS- MARAIR FREIGHT AGENCIES LTD (1984) KLR, 139 in which the Court of Appeal held;“Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable contribution the blame can be apportioned equally on each …...”

38. It is therefore my finding that the deceased and the Appellant were equally to blame for the accident and consequently I apportion liability at 50:50.

Quantum 39. For this court as an appellate court to interfere with the award by the trial court, it must be convinced that the trial Magistrate acted upon some wrong principle of the law or that the award was extremely high or extremely low so as to make it an erroneous estimate. The same was espoused in the case of Gitobu Imanyara & 2 Others vs. Attorney General (2016) eKLR, where the Court of Appeal held that:-“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:‘An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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.”

40. With regard to pain and suffering, the trial court awarded Kshs 50,000/=. The Police Abstract produced by PW2 (No. 65597 CPL Daniel Ngeiywo) and marked as P.Exh 4 stated that the accident occurred on 13th January 2020 at around 9 p.m. The Post Mortem Report produced by PW1 (Samwel Kibore Koskei) and marked as P.Exh 2 indicated that the deceased died on 13th January 2020 at around 9 p.m. The same was supported by the Death Certificate that was produced by PW1 and marked as P.Exh 5 which indicated that the date of death was 13th January 2020. It was therefore clear that the deceased died on the same day which means his pain was not prolonged.

41. It is my finding that the award of Kshs 50,000/= for pain and suffering was excessive. I therefore substitute the award of Kshs 50,000/= and adopt the reasonable award of Kshs 10,000/=. I am guided by the persuasive case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another (2017) eKLR, where Nyamweya J. (as she then was) held that:-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

42. On the issue of the loss of expectation of life, the trial court awarded Kshs 100,000/=. Both parties did not submit under this head and it is my conclusion that they did not object to the trial court’s award of Kshs 100,000/= for pain and suffering. I therefore adopt the award of Kshs 100,000/= awarded by the trial court. I am persuaded by the case of Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another (suing as the Legal Administrator of the estate of the late Robert Mwangi) (2019) eKLR where Muchemi J. stated:-“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000 while for pain and suffering the awards range from Kshs 10,000 to Kshs 100,000 with higher damages being awarded if the pain and suffering was prolonged before death”.

43. On loss of dependency, Section 4 of the Fatal Accidents Act provides as follows:-Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct.

44. The claim for loss of dependency constitutes the multiplicand, the dependency ratio and the multiplier.

45. The Respondents claimed that the deceased was a boda boda rider who used to earn Kshs 20,000/= per month. I have gone through the trial court proceedings and there was no evidence on record to sustain the claim that the deceased earned Kshs 20,000/=. It was evident that the deceased’s income was unknown. In such circumstances, courts are minded to use the minimum wage as the base income when calculating the loss of dependency.

46. The Court of Appeal in the case of Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) vs Hellena Wanjiru Rukanga (2020) eKLR held that a minimum wage ought to be adopted as a multiplicand where monthly income could not be ascertained. It stated:-“We find that the learned judge misdirected herself and abdicated her responsibility in failing to assess the deceased’s net income as she was expected to assess the income as best as she could, using the little evidence available. The minimum wage of Kshs.11,995/- was an appropriate place to begin………”

47. PW1 stated that the deceased worked as a boda boda rider which meant he ferried passengers and goods using his motor cycle. The trial court used the multiplicand of Kshs 12,926. 55/=.

48. Since the accident occurred on 13th January 2020, I will use the Regulation of Wages (General) (Amendment) Order, 2018 which came into force on 1st May, 2018. The Appellant proposed the amount of Kshs 6,891. 15/= as the multiplicand and the Respondents stated that the applicable minimum wage according to the Regulation of Wages (General) (Amendment) Order, 2018 would be Kshs 13,431. 30/=.

49. I have gone through the Regulation of Wages (General Amendment) 2018 and there is no provision for a minimum wage for the motorcycle industry as stated by the Appellant. The Regulation of Wages (General Amendment) 2018 was an amendment that deleted the existing schedule of wages and replaced it with the new schedule in which various occupations were classified into 15 categories.

50. I find that the deceased being a boda boda rider, it was reasonable to classify him under category 5 which included the following occupations; Machinist (made to measure), shoe upper preparer, chapllis maker, vehicle service worker (petrol and service stations), bakery plant hand, laundry operator, junior clerk, wheel tractor driver(light). I am persuaded by Limo J in Petronila Muli vs Richard Muindi Savi & Catherine Mwende Mwindu (2021) eKLR, where he held that:-“………..I am not persuaded by the Appellant that the proper category of motorcycle cyclist or boda boda in Kenya should be categorized as ‘‘general labourers’’ because they are semi-skilled. I of course note from the schedule that boda bodas are not classified which is an anomaly that should be rectified by the Ministry of Labour in their next review, because motorcyclist commonly referred to as boda bodas in Kenya are now a major employer of many youths if the number of motorcycles in Kenyan roads is anything to go by.Having said that, this court finds that the trial court fell into error by classifying the deceased’s profession as ‘‘general labourer’’. In my view, the appropriate category of boda boda riders is comparable to category of mechanist (motor vehicle repairers) laundry operators, light tractor drivers etc……”

51. From the pleadings, the accident occurred along Sotik – Litein road and the location can be classified as “all other areas”. This is so because the accident occurred at an area called Kamirai along the Sotik-Litein road and the same does not fall within the description of all former municipalities and Town councils of Mavoko, Ruiru and Limuru. I shall therefore use the multiplicand of Kshs 13,431. 30/=

52. On the issue of multiplier, the trial court used a multiplier of 25 years. Both parties did not address the issue of multiplier in their submissions. In the case of Roger Dainty vs Mwinyi Omar Haji & another (2004) eKLR, the Court of Appeal held that:-“To ascertain the reasonable multiplier in each case the court would have to consider such relevant factors as the income of the deceased, the kind of work deceased was doing, the prospects of promotion and his expectation of working life.”

53. Taking into account that the deceased was not employed and was engaged in the business of boda boda, I find the trial court’s adoption of 25 years as reasonable.

54. On the issue of the dependency ratio, the Appellant urged this court to apply the ratio of 1/3 stating that the deceased was unmarried and that it was unlikely that he would spend so much on his parents. On the other hand the Respondents urged the court to apply 2/3 ratio arguing that as a young man with no wife or children the deceased would spend more of his earnings to take care of his parents. I am persuaded by Njagi J. in the case of Rodgers Kinoti vs Linus Bundi Murithi & another (2022) eKLR, where he said:-“It is clear that opinion is divided among High Court judges on whether dependency ratio where the deceased is unmarried ought to be ½ or 1/3. I have reviewed other cases where dependency ratio for unmarried persons were considered. In Joseph Ndirangu Thuo & Another v Kamau Ngugi (Suing as legal representative and administrator of the estate of Peter Waweru (2019)eKLR Mwongo J. used a dependency ratio of ½ for an unmarried lady and cited the cases of Mary Kerubo Mabuka v Newton Mucheke Mburu & 3 others (2006) eKLR where the court used a dependency ratio of ½ on a 26 year old unmarried lady; Alice O. Alukwe v Akamba Public Road Services Ltd (2013) eKLR where the court used a dependency ratio of 1/2 on an unmarried lady aged 24 years and Lucy Wambui Kihoro (Suing as Personal Representative of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] eKLR where the Court similarly used a dependency ratio of ½ on an unmarried son aged 30 years”.

55. Similarly in Stanley Muiru Njuguna & another vs SK (2019) eKLR, Muchemi J. held that:-“The principle emerging from these cases is that the court will use a lower dependency ratio where the deceased was unmarried and therefore less inclined to spend his or her earnings at home. Given this emergent practice, I would agree that the use of the dependency ratio of two-thirds here was high. I would, in consonance with the emerging judicial precedents, go with a ratio of one-half (1/2) which I find reasonable in the circumstances”.

56. In summary therefore, the loss of dependency comes to Kshs 13,431. 30 X 12 X 25 X 1/2= Kshs 2,014,695/=

57. With regard to Special Damages, the Respondents stated that they had incurred Kshs 30,000/= as legal fees to procure the Letters of Administration ad litem and Kshs 550/= for the motor vehicle search. They produced the receipt and the same was marked as P. Exh 8. I find that the Respondents have proved this expenditure. There was however no evidence to show that they paid Kshs 550/= for the motor vehicle search.

58. The Respondent testified that she had incurred Kshs 80,000/= as funeral expenses. They also stated that they could not keep the receipts because they were concerned with giving the deceased a befitting send off. Section 6 of the Fatal Accidents Act makes provision for funeral expenses as follows: -In an action brought by virtue of the provisions of this Act the court may award, in addition to any damages awarded under the provisions of subsection (1) of section 4, damages in respect of the funeral expenses of the deceased person, if those expenses have been incurred by the parties for whom and for whose benefit the action is brought.

59. In the case of Premier Dairy Limited vs Amarjit Singh Sagoo (2013) eKLR , the Court of Appeal stated that:-“We do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with the issue of record keeping when their primary concern is that a close relative has died”.

60. Similarly, the Court of Appeal, in Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited (2016) eKLR, stated that: -“We do not discern from our reading of this decision a departure from the time-tested principle that special damages should not only be specifically pleaded but must also be strictly proved … We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However…”

61. Guided by the precedents above, it is my finding that an award of Kshs 50,000/= for funeral expenses would be reasonable. In totality, it is my finding that the Special Damages awardable are Kshs 80,000/=

62. I have noted that the trial Magistrate subtracted Kshs 100,000/= being the award for loss of expectation of life. I suppose this was done as it was seen as a duplication of awards under the Fatal Accidents Act and the Law Reform Act. The Court of Appeal has been clear on this issue that a party who had sued under the Fatal Accidents Act still had the right to sue under the Law Reform Act in respect of the same death. In the case of Hellen Waruguru Waweru (suing as the legal representative of peter Waweru Mwenja (deceased) )vs Kiarie shoe stores limited (2015) eKLR, the Court of Appeal stated:-“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.The confusion appears to have arisen because of different reporting of the Kenfro case (supra) which was heavily relied on by Mr. Kiplagat. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the ratio decidendi. The same case, however, is more fully reported in [1987] KLR 30 as Kenfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decidendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that: -“6. An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. 7. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death ………….”

63. Guided by the authorities above, I find that the trial Magistrate misdirected himself when he subtracted the amount. I allow Kshs. 100,000/= for loss of expectation of life.

64. The award therefore shall be: -i.Pain and Suffering Kshs 10,000/=ii.Loss of expectation of life Kshs 100,000/=iii.Loss of dependency Kshs 2,014,695/=Kshs 2,124,695/=Less 50% Contribution Kshs 1,062,347. 50/=Kshs 1,062,347. 50/=/=Add Special Damages Kshs 80,000/=Total Kshs 1,142,347. 50/=.

65. In the final analysis, the Appeal dated 6th May 2022 succeeds to the extent that the amount awarded to the Respondents is reduced from Kshs 2,715,310/= to Kshs 1,142,347. 50/=.

66. The Appellant is awarded half the costs of the Appeal while the costs of the suit shall remain as awarded by the trial court.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 17TH DAY OF OCTOBER , 2023. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Muyuka for the Appellant, Ms.Kusa for the Respondent and Siele (Court Assistant)