https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12701

Omasaba v FAO (Suing as Next Friend of MO – Deceased Minor) (Civil Appeal E025 of 2025) [2026] KEHC 12701 (KLR) (7 August 2026) (Judgment) Neutral citation: [2026] KEHC 12701 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E025 of 2025 RN Nyakundi, J August 7, 2026 Between Sammy Zack Omasaba Appellant and FAO (Suing as Next Friend of MO – Deceased Minor) Respondent (Being an appeal against the Judgment and Decree of the Principal Magistrate’s Court at Vihiga, Hon. Beryl M. A. Omollo (SRM), delivered on 11th February 2025 in Vihiga PMCC No. E281 of 2022) Judgment Introduction 1.This is a first appeal from the Judgment of Hon. Beryl M. A. Omollo, Senior Resident Magistrate, delivered on 11th February 2025 in Vihiga Principal Magistrate’s Court Civil Case No. E281 of 2022. The suit in the Court below was a claim for damages arising out of a fatal road traffic accident, brought by the Respondent as next friend of her deceased son, MO, a minor. 2.The appeal is confined to quantum. The Appellant does not challenge the finding on liability; his complaint, as framed in the Memorandum of Appeal dated 20th March 2025, is that the damages awarded were excessive and that, in arriving at them, the trial Court failed to evaluate his submissions and misapplied binding precedent. The parties are agreed that liability is not in issue, and I therefore say nothing further about it save as the facts bear on the assessment of damages. Background 3.The brief background facts of this appeal are that on or about 24th August 2022, the deceased, then a boy of nine years, was a pedestrian along the Kisumu–Busia Road at Ebusakami when he was struck by motor vehicle registration number KCM 308P, a Toyota Harrier said to be owned by the Appellant. He sustained fatal injuries and was pronounced dead on arrival at hospital. 4.By a plaint dated 16th November 2022 the Respondent sued for damages under the Fatal Accidents Act and the Law Reform Act, special damages of Kshs. 385,000/=, costs and interest. The matter proceeded to hearing. The Respondent called four witnesses: herself (PW1), the deceased’s grandmother (PW2), a further witness from Ebusakami (PW3), and the investigating officer, PC Evanson Kibet (PW4). The Appellant did not, on the record before me, call evidence, and the cause was disposed of on the Respondent’s evidence and the written submissions of both parties. 5.In its Judgment the trial Court found the Appellant wholly liable and assessed damages as follows: pain and suffering, Kshs. 50,000/=; loss of expectation of life, Kshs. 150,000/=; loss of dependency, Kshs. 1,000,000/= (a global sum); and special damages, Kshs. 90,525/= as proved by receipts. Costs and interest were also awarded. The aggregate general and special award came to Kshs. 1,290,525/=. 6.Being aggrieved and dissatisfied with the judgment of the trial Court, the Appellant preferred this Appeal on the issue of quantum and damages vide a Memorandum of Appeal dated 20th March 2025 based on three grounds, which reduce to two complaints: -a.That the trial Court failed to evaluate the Appellant’s submissions dated 5th November 2024, thereby reaching an erroneous decision on quantum;b.That the trial Court failed to assess the facts and evidence and to follow binding precedent, arriving at an excessive award. 7.The Appellant sought the following prayers from the Memorandum of Appeal: -a.The Appeal be allowed.b.The Judgment/Decree of Hon. B Omollo dated the 11th February 2024 in Vihiga PMCC No. E281 of 2022 be set aside/quashed.c.This Honourable Court be pleased to reassess the evidence provided and find that the quantum awarded was excessive in the circumstances.d.That the Appellant be granted costs of this Appeal.e.That this Honourable Court be pleased to make any further orders and directions that it may deem fit and just in circumstance of the case. 8.The Appeal was canvassed by way of written submissions. Appellant’s Submissions Summary 9.In his written submissions the Appellant does not contest the award of Kshs. 90,525/= for special damages. He contends that pain and suffering should attract no more than the Kshs. 50,000/= awarded (a figure he in fact supports); that the award of Kshs. 150,000/= for loss of expectation of life is excessive and should be reduced to Kshs. 100,000/= in line with the conventional figure; and that the global award of Kshs. 1,000,000/= for loss of dependency in respect of a nine-year-old minor is manifestly excessive and should be reduced to Kshs. 600,000/=. He relies, among others, on Butt v Khan [1978] KECA 24 (KLR); Mercy Muriuki & Another v Samuel Mwangi Nduati & Another [2019] KEHC 9014 (KLR); Simon Kibet Langat & Another v Miriam Wairimu Ngugi [2016] KEHC 5406 (KLR); and Kamunto & Another v Mutuku & Another [2023] KEHC 23376 (KLR), the last upholding an award of Kshs. 700,000/= for a six-year-old and citing Wycliffe Momanyi v Daniel Absolom Otuoma & Another [2022] eKLR, where an award for a six-year-old was reduced to Kshs. 600,000/=. Respondent’s submissions Summary 10.The Respondent supports the Judgment. She submits that submissions are not evidence and that a failure to consider them is not fatal, relying on Daniel Toroitich Moi v Mwangi Stephen Murithi & Another; that the trial Court did in fact consider the evidence and submissions of both parties; that the authorities relied on by the Appellant concern six-year-olds and are not comparable to a nine-year-old; and that the awards under each head were within the parameters set by precedent and disclosed no error warranting appellate interference. She invokes the principle against double compensation, relying on Hellen Warunguru Waweru v Kiarie Show Stores Ltd [2015] eKLR, to explain that awards for pain and suffering and loss of expectation of life under the Law Reform Act are not duplicative of dependency under the Fatal Accidents Act. Duty of this Court 11.This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial Court, unlike the appellate Court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This Court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the Court therein rendered itself as follows: -“It is a strong thing for an appellate Court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate Court might have come to a different conclusion…” 12.It must be borne in mind that the Court does not have the advantage of seeing and hearing the witnesses as did the lower Court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: -“...this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court ... is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 13.The appeal being confined to quantum, a further and more restrictive principle governs. An appellate Court does not interfere with an award of damages merely because, had it been sitting at first instance, it might have awarded a different figure. It will interfere only where the trial Court, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one, or where the award is so inordinately high or so inordinately low as to represent an entirely erroneous estimate. This principle, drawn from Rook v Rairrie and applied consistently in this jurisdiction, was stated in the very terms relied on by the Appellant in Butt v Khan [1978] KECA 24 (KLR): 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, or unless it is shown that the judge proceeded on wrong principles or misapprehended the evidence in some material respect. The question on this appeal is therefore not what figures this Court would itself have awarded, but whether the awards below fall outside those limits or rest on an error of principle. 14.I have read and considered the Memorandum of Appeal and the rival submissions. There is only two (2) issues manifest for determination by this Honourable Court: -a.Whether the trial Court failed to consider the Appellant’s submissions so as to vitiate its decision.b.Whether any of the awards – for pain and suffering, loss of expectation of life, or loss of dependency – is founded on a wrong principle or is so inordinately high as to warrant interference. Whether the trial Court failed to consider the Appellant’s submissions so as to vitiate its decision 15.This issue can be shortly disposed of. It is well settled that submissions are not evidence. They are the advocate’s argument on the evidence and the law, and a Court is not bound to accept them; a failure expressly to address every submission does not, without more, vitiate a judgment. The Respondent’s reliance on the principle that submissions cannot take the place of evidence is well founded. 16.More to the point, the premise of the complaint is not borne out by the record. The learned magistrate stated in terms that she had carefully considered the pleadings, the documentary evidence and the submissions of both the Plaintiff and the Defendant on both liability and quantum. The body of the Judgment bears this out: on pain and suffering the Court expressly recorded and adopted the Defendant’s contention that, the deceased having died shortly after the accident, the sum of Kshs. 50,000/= was appropriate. A Court which adopts a party’s submission on a head of damages can hardly be said to have ignored that party’s submissions. This ground therefore fails. Whether the award of damages was inordinately high 17.The principles guiding this Court as the first Appellate Court have crystalized. This is in recognition that the award of Damages in discretionary. The Court of Appeal in Catholic Diocese of Kisumu Vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an Appellate Court can interfere with an award of damages in the following term: -“It is trite law that the assessment of general damages is at the discretion of the trial Court and an appellate Court is not justified in substituting a figure of its won for that awarded by the Court below simply because it would have awarded different figure if it had tried the case at first instance. The appellant Court can justifiably interfere with the quantum of damages awarded by the trial Court only if it is satisfied that the trial Court applied the wrong principles (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” 18.The Court of Appeal also pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another Vs Lubia & another (No 2) [1985] eKLR 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 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. 19.The foregoing principle was comprehensively explained by Sir Kenneth O’Connor P in the case of Henry Hinga Vs Manyoka [1961] EA 705 at page 713, while restating the common law principles earlier set out by the Privy Council in Nance Vs British Columbia Electric Railway Co. Ltd where the Learned Judge ably pronounced himself as follows regarding disturbing quantum of damages: -'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.' 20.I will discuss the award of damages using the following limbs: - a. Pain and suffering – Kshs. 50,000/= 21.This head requires little discussion, for there is no live dispute. The Appellant’s own submissions accept the figure of Kshs. 50,000/=, which is the sum the trial Court awarded. Awards for pain and suffering compensate the deceased’s own suffering in the interval between injury and death; where death is instantaneous or near-instantaneous, only a modest, conventional sum is warranted. The evidence was that the deceased died shortly after the accident. An award of Kshs. 50,000/= is consistent with the conventional range and with the authorities, and there is no basis to disturb it. b. Loss of expectation of life – Kshs. 150,000/= 22.Loss of expectation of life is compensated by a conventional, and deliberately modest, sum. The figure most frequently applied by the Courts is of the order of Kshs. 100,000/=, and the authorities cited by both sides including Mercy Muriuki & Another v Samuel Mwangi Nduati & Another [2019] KEHC 9014 (KLR), on which the trial Court itself relied – speak of a conventional award for loss of expectation of life in the region of Kshs. 100,000/=. 23.The trial Court awarded Kshs. 150,000/= under this head. That is somewhat above the conventional figure. The question is whether the excess is such as to represent an erroneous estimate or a departure from principle, or whether it remains within the margin of appreciation allowed to the Court of first instance. In my view the sum, though generous, is not so far outside the conventional range as to be entirely erroneous; awards of Kshs. 100,000/= to Kshs. 150,000/= for loss of expectation of life are encountered in the decisions, and the choice of a figure within that band is a matter for the discretion of the trial Court. I am conscious that an appellate Court ought not to tinker with awards merely to substitute its own preference. That said, where a head of damages is governed by a settled conventional figure, consistency is itself a value, and a Court that departs upward from the convention should ordinarily explain why. The trial Court gave no particular reason for exceeding the conventional Kshs. 100,000/=. 24.I have therefore considered whether to reduce this award to the conventional Kshs. 100,000/=. Weighing these considerations, I do not think this is a case for interference. The award of Kshs. 150,000/= exceeds the conventional figure by Kshs. 50,000/=, but it is not on that account an entirely erroneous estimate. The authorities disclose awards for loss of expectation of life ranging up to and around Kshs. 150,000/=, and the selection of a figure within that range was a matter falling within the discretion of the trial Court. The threshold for appellate interference with an award of damages is a high one, and it is not enough that this Court might itself have awarded less had it been sitting at first instance. A difference of this order, on a conventional head of damages, does not meet the test in Butt v Khan of an award so inordinately high as to represent an entirely erroneous estimate, nor does it disclose any error of principle. I would accordingly decline to disturb the award of Kshs. 150,000/= for loss of expectation of life. c. Loss of dependency – Kshs. 1,000,000/= (global) 25.This is the substance of the appeal. The deceased was a nine-year-old schoolchild with no earnings and no dependants of his own. In such cases the Courts have long recognized the difficulty of applying the conventional multiplier/multiplicand method, since both the multiplicand (the deceased’s prospective net earnings) and the extent of any future dependency are matters of pure conjecture. The Court is entitled, in the case of a young child, to adopt a global or lump-sum award rather than a strict multiplier calculation, and the trial Court cannot be faulted for taking that course. It correctly directed itself, on the authority of Beatrice Wangui Thairu v Hon. Ezekiel Barngetony & Another and the cases it cited, that the global-sum approach was open to it. 26.The complaint is not as to method but as to figure. The Appellant contends that Kshs. 1,000,000/= is manifestly excessive for a nine-year-old and points to comparable awards: Kshs. 700,000/= upheld for a six-year-old in Kamunto & Another v Mutuku & Another [2023] KEHC 23376 (KLR); and Kshs. 600,000/= substituted for a six-year-old in Wycliffe Momanyi v Daniel Absolom Otuoma & Another [2022] eKLR. He also relies on the caution in Simon Kibet Langat & Another v Miriam Wairimu Ngugi [2016] KEHC 5406 (KLR) that the future of a young child is unpredictable and that minors cannot be said to have dependants. 27.The Respondent’s answer – that these authorities concern six-year-olds while the deceased here was nine – has some force but does not carry the day. A difference of three years in the age of a young child does not, of itself, justify an award materially higher than the range disclosed by comparable cases; the exercise remains one of broad estimation within a recognized band, not a sliding scale that adds a fixed sum for each additional year of a child’s life. On the authorities placed before this Court and before the trial Court, awards for loss of dependency in respect of young minors have clustered in the region of Kshs. 600,000/= to Kshs. 800,000/=. An award of Kshs. 1,000,000/= stands appreciably above that band. 28.Applying the Butt v Khan test, the question is whether that figure is so inordinately high as to represent an entirely erroneous estimate. In my judgment, when measured against the comparable awards including those the trial Court itself was referred to – the sum of Kshs. 1,000,000/= for the dependency claim of a nine-year-old with no established earnings and no dependants is out of line with the settled range to a degree that does warrant appellate interference. It is not a matter of this Court merely preferring a different figure; it is that the award sits outside the range that the authorities disclose and no special feature of this case was identified to justify the excess. 29.Doing the best I can, and adopting a figure that reflects the deceased’s age (a little older than the children in the cited cases) while remaining within the recognized band, I would substitute an award of Kshs. 700,000/= for loss of dependency. d. Special damages and double compensation 30.Special damages of Kshs. 90,525/= were specifically pleaded and proved by receipts, and are not challenged. They stand. For completeness, no question of double compensation arises on the facts: the awards for pain and suffering and loss of expectation of life are made under the Law Reform Act for the benefit of the estate, while the dependency award is made under the Fatal Accidents Act for the benefit of the dependants; where the beneficiaries coincide, the sum awarded under the Law Reform Act for lost years (if any) falls to be deducted from the Fatal Accidents Act award, but no award for lost years was made here, and the two conventional Law Reform Act heads are not duplicative of dependency: Hellen Warunguru Waweru v Kiarie Show Stores Ltd [2015] eKLR. Costs 31.The Appellant has succeeded in part, in that the largest head of the award falls to be reduced, but has failed on the greater number of the individual complaints. Costs are discretionary and ordinarily follow the event. Given the divided success, the appropriate order is that each party bears its own costs of the appeal. The costs awarded to the Respondent in the Court below are not disturbed. Disposition 32.In view of the foregoing, the appeal succeeds in part. Consequently, this Courts makes the following orders: -a.The appeal is allowed in part.b.The finding on liability, which was not challenged, is affirmed.c.The award for pain and suffering of Kshs. 50,000/= is upheld.d.The award for loss of expectation of life of Kshs. 150,000/= is upheld.e.The award for loss of dependency is reduced from Kshs. 1,000,000/= to Kshs. 700,000/=.f.The award for special damages of Kshs. 90,525/= is upheld.g.The decree of the trial Court is varied accordingly. The revised total becomes Kshs. 990,525/= (pain and suffering 50,000 + loss of expectation of life 150,000 + loss of dependency 700,000 + special damages 90,525).h.Interest on the special damages shall run from the date of filing suit, and on the general damages from the date of the trial Court’s Judgment, until payment in full, as decreed by the trial Court.i.The costs awarded to the Respondent in the Court below are not disturbed.j.Each party shall bear its own costs of this appeal. 33.Orders accordingly. DATED, SIGNED AND DELIVERED VIA CTS & EMAIL THIS 7TH DAY OF AUGUST 2026………………………………………R. NYAKUNDIJUDGE