https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7104

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **E119** OF 2025 SAMUEL MAINGI KIMULI……………..……..………………APPELLANT -VERSUS- ELIZABETH MWIKALI MUSEMBI.…………………………RESPONDENT ***(Being an appeal from part of judgement and decree in Kangundo Chief Magistrate’s Court (Hon D.N. Sure PM) case number E036 of 2023 SPM dated 29-03-2025)*** **JUDGMENT** The respondent sued the appellant in the lower court claiming special and general damages on behalf of the estate of Benson Kithuka Muia (hereinafter referred to as ‘the deceased’). The claim arose from an accident that occurred on 3-11-2021 involving the appellant’s motor vehicle registration number KCX 140T as a result of which the deceased who was riding on motor cycle registration number KMFT 508W and the rider of the said motor cycle sustained fatal injuries. The trial court found the appellant 100 per cent liable and awarded damages in favour of the respondent as follows; 1. Pain and suffering Kshs 60,000.00 2. Loss of expectation of life Kshs 100,000.00. 3. Loss of dependency Kshs 9,895,400.00 4. Special damages Kshs 273,400.00. The appellant has in this appeal challenged both the quantum of damages and liability. The appeal was disposed by way of written submissions. I have read the appellant’s submissions dated 16th December 2025 and those of the respondents dated 15th December 2025. In the said submissions the appellant claims that the trial court did not evaluate the evidence properly and that if she had, she would have found that the deceased also contributed to the accident and she proposes liability at 70:30 but she is not clear in favour of who. ***Liability*** This being a first appeal, this court has a duty to conduct the same as if it were a re-hearing where it should evaluate, analyse and consider the evidence on record afresh and come to its own independent conclusion but bear in mind that it did not hear the witnesses neither did it have the opportunity to observe their demeanour and give due allowance for that. The proceedings show that the only witness who testified in the matter was the respondent who did not witness the accident. She produced several documents including the police abstract dated 16-12-2021. The deceased and the rider of the motor cycle having died in the accident. The only persons who could tell the story of how the accident occurred was the appellant or his driver who is shown in the police abstract as one Samwel Maingi or a third party who was nearby. The appellant has submitted that the trial court was wrong in relying on the abstract to find liability on her part as a police abstract is not only proof of occurrence or reporting of an accident and not negligence. He has cited the case of ***Stephen Kanjabu Wariari v Dennis Mutwiri Muriuki & another [2022] eKLR*** where the court held that a police abstract cannot substitute the requirement or need to adduce evidence to prove negligence. While I agree with the holding in the above cited case to the extent of need to adduce evidence on negligence other than a police abstract, it is important to note and I take the position that the contents of a police abstract especially where they are not contested, form part of the evidence. The appellant admitted that an accident occurred and did not object to production of the police abstract. The details supplied in the police abstract are not just there for beauty. They are details extracted from the police file and once the abstract is produced, the party against who it is adduced must produce evidence to counter the details. The abstract in this matter showed that the appellant or his driver was charged and convicted of traffic offence of causing death by dangerous driving in court case file number E405 of 2021. Failing to adduce evidence to counter these specific details should therefore be construed against the appellant. Based on this, I find no reason for disturbing the finding of the trial court on the issue of liability. ***Quantum of damages*** It is trite that award of damages is a discretionary decision and an appellate court should not interfere with it unless it is demonstrated that the same were too high or too low that they amounted to an erroneous estimate while compared with other recent awards in respect of similar injuries or harm. This principle ensures that there is proportionality, uniformity and predictability of judicial awards. In ***Pramukh Wholesalers v Omutiti [2025] KEHC 7539 (KLR),*** Honourable Justice A. Mabeya held that; *‘In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar damages for similar or relatively similar injuries. In Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR, the court stated that “comparable injuries should attract comparable awards”.’* Related to the above principle, it also trite that an appellate court should not interfere with a discretionary decision of a lower court unless it is shown that the trial court considered a factor which it should not have considered or failed to consider a factor which it should have considered and the appellate court should not substitute a decision of the lower court simply because it would have reached a different one. Justice Kizito Magare held in ***Mose v Omenta [2025] KEHC 3778 (KLR)*** that; *‘Therefore, for the appellate court to interfere with the award, it is not enough to show that the award is high or that if I had handled the case in the subordinate court, I would have awarded a different figure. However, where damages are at large, they must be commensurate with similar injuries.’* The reason quantum of damages is left to the discretion of the court subject to them being within the judicial established principles is that each case must be considered on their own merits and circumstances and judicial officers are not expected to have fixed minds or thinking since injuries cannot be exactly the same in all cases. The trial court has the lee way to navigate their thinking depending on circumstances of each case but this is not to say that a trial court is allowed go wild and pluck figures from anywhere and proceed to give awards which do not fit within the range of other decided cases. This is in tandem with the principle that discretion must be exercised judiciously and not whimsically or capriciously. I will start with the award on pain and suffering and loss of expectation of life. In this matter, the deceased is said to have died on the same day of the accident. The respondent in her testimony stated that she was informed that the deceased died within thirty minutes of the accident. This means that the pain and suffering he underwent was not long. The postmortem report shows that the deceased died of multiple injuries. We, the living, can only imagine the pain and suffering a deceased person underwent and that is why the court must consider the period between the accident and succumbing. The appellant has argued that the awards on pain and suffering were high. According to the appellant, an award of Kshs 20,000.00 would have been adequate for pain and suffering. On her part, the respondent maintains that the award was adequate and comparable to other authorities. Each party has cited authorities that fit their case. I have looked at the following authorities 1. ***Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR)*** where it was held that; *‘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.’* 1. ***David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng’ang’a [2016] KEHC 6964 (KLR).*** In this case, the deceased died barely 30 minutes after the accident and the estate was awarded Kshs 100,000.00 for pain and suffering. In dismissing the appeal on that issue, Honourable Justice J.M. Mativo (as he then was) stated that; *‘The position laid down in*Rose vs Ford*is that where the period of suffering is short, only nominal damages are awarded. That was in 1935 and 500 pounds was awarded for a two days suffering. I am persuaded that the amount of Ksh. 100,000/= awarded under the said head is not in my view excessive nor has it been shown to be erroneous or unreasonable. I find no reason to fault the award under this head.’* Based on what I have stated above and the authorities cited, it is my view that the award of Kshs 60,000.00 was within the range of awards where the deceased died on the same day. I see no reason for disturbing the award of the trial court. Similarly, the award under the loss of expectation of life, was within the conventional range and I see no reason to interfere with it. The same is upheld. ***Special damages*** The respondent had pleaded Kshs 273,400.00 but only produced receipts for Kshs 191,550.00 made of Kshs 150,000.00 for feeding mourners, Kshs 40,000.00 for transport, Kshs 550.00 for copy of records and Kshs 1,000.00 for court filing fees for grant Ad Litem. The trial court did not in its judgment address the issue of special damages, nevertheless it awarded the pleaded figure in its final orders. The respondent did not in her testimony explain why she did not have receipts for death certificate and the legal fees which make the difference. It is not clear how the court arrived at the figure of Kshs 273,400.00 and in that regard, it is my finding that the difference of Kshs 81,850.00 was not strictly proved. I will therefore set aside the award of special damages and substitute it for Kshs 191,550.00. ***Loss of dependency*** The contentious issue under this head is the multiplier and the dependency ratio. There is no contention on the earnings of the deceased which was pleaded as Kshs 49,477.00 per month. Even the appellant has in his submissions asked the court to adopt the same as pleaded. The trial court used a multiplier of 25 years while it was common ground that the deceased was aged 31 years. The appellant submits that considering the amount would be paid in lumpsum, 20 years was an appropriate multiplier. It is a matter of public notoriety that the retirement age in Kenya is 60 years. Making a provision of 4 years as consideration for vicissitudes and uncertainties of life does not appear to me to be reasonable and I am minded to adjust that to 20 years. The appellant has argued that the dependency ratio of 2/3 was not reasonable considering that the respondent was also earning and supporting the family. It has been held that dependency ratio is a matter of fact which must be proved. It is also a matter of public notoriety that a person who has a family uses part of his earnings on their upkeep or expences. The issue is to what extent was the respondent and their child dependent on the deceased. The trial court held that the deceased was the sole bread winner of the family despite the respondent admitting that she was working as a pastor and paid salary. By virtual of Section 4(1) of the Fatal Accidents Act wife, children and parents the deceased are considered as dependants and are entitled to compensation in form of loss of dependency but does not give the dependency ratio. The conventional ratio of 2/3 has been accepted and adopted in judicial pronouncement. In this matter, there was no dispute that the deceased was married to the respondent and they had a child whose birth certificate was produced as an exhibit. It is notable that the child who was barely three months at the time of her father’s death had a long way to go in life. Obviously, he would have depended on the deceased for his school fees and related expences, food, shelter, clothing and other life needs. It cannot therefore be denied that the level of dependency would have been higher than the 1/3 proposed by the appellant. The ratio of 1/3 is appropriate and suitable where the deceased died without wife and children or where the court is minded to award damages for lost years rather than loss of dependency. Having said the above, I hold that the dependency ratio of 2/3 adopted by the trail court was reasonable in the circumstances. The above discussion would lead to the damages for loss of dependency working as 20 x 49,477 x 1/3 x 12 = 7,916,550.00. Consequently, I give the following final orders; 1. the trial court’s judgment on quantum of damages is adjusted in the following terms; 2. Pain and suffering Kshs 60,000.00 3. Loss of expectation of life Kshs 100,000.00 4. Loss of dependency Kshs 7,916,550.00 5. Special damages Kshs 191,550.00 Total Kshs **8,267,820.00** 1. The amount on 1(d) above shall attract interest from the time of filing the suit in the trial court until payment in full. 2. Amounts in 1(a), (b) and (c) above shall attract interest from the date of the trial court’s judgement until payment in full. 3. The respondent shall have the costs of the suit in the trial court. 4. The appellant is awarded half costs of this appeal. Dated signed and delivered at Nairobi this **22nd** day of **May** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Miss Nyaata for the appellant and Miss Chepwogen holding brief for Mr. Maluki for the respondent.