https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10937

Shadrack & Sons Ltd v Lengeny & another (Suing as the Legal Representatives of the Estate of Amos Lemaiyan Lengeny – Deceased) (Civil Appeal E009 of 2025) [2026] KEHC 10937 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 10937 (KLR) Republic of Kenya In the High Court at Narok Civil Appeal E009 of 2025 CM Kariuki, J July 20, 2026 Between Shadrack & Sons Ltd Appellant and Sylvia Lengeny 1st Respondent Leisanka Ole Lengeny 2nd Respondent Suing as the Legal Representatives of the Estate of Amos Lemaiyan Lengeny – Deceased (Being an Appeal arising from the Judgment and Decree of the Honourable Daniel Ngayo, Resident Magistrate at Narok in Narok MCCC No. E114 OF 2023 dated and delivered on 26th February,2025) Judgment A. Introduction and Background 1.This is a first appeal arising from the judgment of Hon. Daniel Ngayo (Resident Magistrate) delivered on 26th February 2025 in Narok CMCC No. E114 of 2023, in which the trial court entered judgment in favour of the Respondents following a fatal road traffic accident that occurred on 29th November 2022 along the Narok–Bomet Road. 2.The suit before the subordinate court was instituted by the Respondents, as the legal representatives of the estate of the late Amos Lemaiyan Lengeny (deceased), under the provisions of the Fatal Accidents Act, Cap. 32 and the Law Reform Act, Cap. 26. It was alleged that the deceased, who was riding a motorcycle registration number KMGD 029Q, was fatally injured when motor vehicle registration number KCY 083Z, owned by the Appellant, was negligently driven, causing it to veer onto the deceased's lane and collide with the motorcycle. The Respondents pleaded that the deceased was aged 27 years, was a businessman and boda boda rider earning approximately Kshs.30,000 per month and was survived by his wife and young children who depended on him. 3.The Appellant denied liability and attributed negligence to the deceased. However, it did not call any witnesses at the trial. Upon evaluating the evidence, the trial court found the Appellant wholly liable for the accident. It awarded the Respondents Kshs. 2,190,310, comprising Kshs. 60,310 as special damages, Kshs. 30,000 for pain and suffering, Kshs. 100,000 for loss of expectation of life, and Kshs. 2,000,000 for loss of dependency, together with costs and interest. 4.Aggrieved by the decision, the Appellant lodged the present appeal challenging only the quantum of damages, particularly the awards for pain and suffering and loss of dependency. The Appellant contends that the awards were excessive, unsupported by the evidence, and made without proper regard to the applicable legal principles. At the same time, the Respondents urge the Court to uphold the judgment in its entirety. B. Pleadings i. Memorandum 5.The Appellant, being dissatisfied with the judgment and decree of the trial court delivered on 26th February 2025 by Hon. Daniel Ngayo (Resident Magistrate) in Narok CMCC No. E114 of 2023, lodged the Memorandum of Appeal dated 10th March 2025 challenging the trial court's assessment of damages, particularly the award for loss of dependency. The appellant raised the following grounds;I.That the learned trial magistrate erred and misdirected himself in fact and law by awarding damages to the Respondents that were manifestly excessive.II.That the learned magistrate's award on damages under loss of dependency was so inordinately high.III.That the learned magistrate's award of damages for loss of dependency was based on no evidence at all.IV.That the Learned Trial Magistrate erred and misdirected himself on the principles applicable to award on damages.V.That the Learned Trial Magistrate was in error of law and fact in failing to take into account material considerations and vicissitudes of life in assessing damages for loss of dependency.VI.That the learned trial magistrate erred in law and in fact in failing to take into account the uncertainties and vicissitudes of life and give due allowance for that.VII.That the award on Loss of Dependency was based on no or wrong legal principles or a misdirection or misapplication of the law with resultant injustice.VIII.That the learned magistrate was in error of law and fact in failing to take into account certain considerations material to an estimate of evidence. 6.The Appellant therefore prays that the appellate court sets aside, vacates, or reduces the award for loss of dependency and awards the costs of the appeal against the Respondent. C. Submissions i. Appellant’s Submissions 7.The Appellant submits that this being a first appeal, the Court is under a duty to reconsider, re-evaluate and reanalyze the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. Counsel relies on Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, as reaffirmed in Jacob Momanyi Orioki v Kevian Kenya Ltd [2018] eKLR, and Godfrey Wamalwa Wambua & Another v Kyalo Wambua [2018] eKLR, for the proposition that although an appellate court is entitled to review the evidence afresh, it must exercise caution and accord due deference to the findings of the trial court on matters of credibility. 8.On the merits of the appeal, the Appellant contends that the trial magistrate erred in the assessment of damages, particularly the award for loss of dependency. It is submitted that the learned magistrate failed to consider the applicable principles governing the assessment of damages, including the uncertainties and vicissitudes of life, thereby arriving at an excessive global award of Kshs. 2,000,000. Counsel argues that the deceased, who was aged 27 years, had no guaranteed working life and that the court ought to have taken judicial notice of the prevailing life expectancy in Kenya. In support of this argument, reliance is placed on Rose Munyasa & Another v Daphton Kirombo & Another [2014] eKLR, where the High Court observed that there is no certainty that a deceased person would have lived up to the retirement age and emphasised that courts must take into account the uncertainties and vicissitudes of life when selecting an appropriate multiplier or assessing damages. The Appellant also cites Simon Mwangi Mureithi v Martin O. Shikuku & 3 Others [2005] eKLR, where the court noted that life expectancy in Kenya was approximately 45 years, as further justification for adopting a lower award under the head of loss of dependency. 9.Regarding the award for pain and suffering, the Appellant submits that the award of Kshs. 30,000 was inordinately high because the deceased succumbed to the injuries on the same day as the accident. Counsel argues that where death occurs immediately or shortly after the accident, only a nominal award is justified. Reliance is placed on Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, in which the court awarded Kshs. 10,000 for pain and suffering where the deceased died on the spot. Similar reliance is placed on Moses Koome Mithika & Another v Doreen Gatwiri & Another (Suing as the Legal Representative and Administrator of the Estate of Phineas Murithi (Deceased)) [2020] eKLR, where the High Court likewise awarded Kshs. 10,000 under the same head in circumstances where death was instantaneous. 10.The Appellant further argues that the global award of Kshs. 2,000,000 for loss of dependency was unsupported by comparable judicial authorities and was therefore excessive. Counsel submits that the trial court failed to consider comparable awards in similar cases. To demonstrate the appropriate range of awards, reliance is placed on Put Sarajevo General Engineering Co. Ltd v Esther W. Njeri & Johnson Mwangi Gucha (Suing as the Legal Representatives of the Estate of Sylvester Muhia Gucha (Deceased)) & 2 Others [2014] eKLR, where a global award of Kshs. 1,000,000 was made for the estate of a deceased aged 29 years. The Appellant also cites Geoffrey Obiero & Another v Kenya Power & Lighting Corporation Limited & Another [2019] KESC 1543 (KLR), in which the High Court, on appeal, awarded a global sum of Kshs. 1,200,000 for a 25-year-old deceased. Based on these authorities, the Appellant urges the Court to interfere with the trial court's assessment of damages by reducing the award for loss of dependency, thereby allowing the appeal with costs. ii. Respondent’s Submissions. 11.The Respondents submit that the appeal is confined to the issue of quantum, specifically whether the trial court's award of Kshs. 2,000,000 for loss of dependency was so inordinately high as to warrant interference by the appellate court. They contend that the award made by the trial court was fair, reasonable, and firmly grounded on the evidence and applicable legal principles, and therefore ought not to be disturbed. 12.Counsel begins by outlining the principles governing appellate interference with findings of fact and awards of damages. Reliance is placed on Peters v Sunday Post Ltd [1958] EA 424, in which the Court of Appeal for Eastern Africa held that an appellate court should exercise caution before departing from the factual findings of a trial court, particularly where those findings are based on the assessment of witnesses who testified before it. The Respondents further rely on Butt v Khan [1977] 1 KLR 1, in which the Court of Appeal stated that an appellate court will only interfere with an award of damages where it is so inordinately high or low as to represent an entirely erroneous estimate, or where the trial court acted on wrong principles or misapprehended the evidence. Similar principles are drawn from Watt v Thomas [1947] AC 484; [1947] 1 All ER 582, as adopted by the former Court of Appeal for Eastern Africa, to the effect that an appellate court may only interfere where there is no evidence supporting the trial court's conclusion or where the trial court plainly failed to appreciate the weight of the evidence before it. 13.The Respondents also submit that, as a first appellate court, this Court is required to re-evaluate the evidence independently while bearing in mind that it did not have the benefit of seeing or hearing the witnesses testify. In support of this proposition, counsel cites Karanja Mwangi Jackson & Another v Nancy Wanjira Nyaga [2021] eKLR, which reaffirmed the principles in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424, emphasizing the duty of a first appellate court to reconsider the evidence afresh without lightly disturbing the findings of the trial court. 14.On the substantive issue of loss of dependency, the Respondents argue that the trial magistrate carefully considered the evidence relating to the deceased's age and circumstances before electing to apply the global award approach under the Fatal Accidents Act. It is submitted that the award of Kshs. 2,000,000 was neither arbitrary nor excessive but was based on the evidence on record and consistent with comparable authorities. Counsel maintains that the trial court correctly exercised its discretion after evaluating the available evidence and selecting the global approach as the most appropriate method of assessment. 15.In support of the award, the Respondents rely on Flint v Lovell [1935] 1 KB 354, as approved by the House of Lords in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, where it was held that an appellate court should not substitute its own assessment of damages merely because it would have awarded a different sum. Interference is only justified where the trial court applied the wrong legal principles or where the award is so inordinately high or low as to amount to a wholly erroneous estimate of the damages. 16.The Respondents further submit that the award was in line with comparable decisions. They rely on Samwel Kimutai Korir (Suing as the Legal Representative of the Estate of Chelangat Sileva (Deceased)) v Nyanchwa Adventist Secondary School & Another [2016] KENSC 5344 (KLR), where the High Court awarded Kshs. 1,800,000 as damages for loss of dependency in respect of a deceased aged 21 years. They also cite Pleasant View School Limited v Rose Mutheu Kithoi & Another [2017] eKLR, in which the High Court, sitting on appeal, awarded Kshs. 1,600,000 for loss of dependency in respect of a deceased aged 36 years. Counsel submits that these authorities demonstrate that the award of Kshs. 2,000,000 to the estate of the deceased, who was a young adult, falls within the range of comparable awards and cannot be described as excessive. 17.On costs, the Respondents contend that the appeal lacks merit and should be dismissed with costs. They rely on Universal Engineering Works v Mohamedali Suleiman Essaji [1951] 2 LRK 99, in which the court held that a successful litigant is entitled to costs unless there are good reasons to order otherwise. Accordingly, the Respondents urge the Court to uphold the judgment of the trial court in its entirety, dismiss the appeal with costs, and affirm the awards made by the subordinate court. D. Issues For Determination 18.Having considered the Memorandum of Appeal, the record of appeal, the judgment of the trial court and the rival submissions of counsel, the following issues arise for determination:i.Whether this Court should interfere with the trial court's award of Kshs.30,000 for pain and suffering.ii.Whether the trial court erred in adopting the global award approach and awarding Kshs.2,000,000 for loss of dependency.iii.Whether the awards made under the Law Reform Act ought to have been deducted from the award under the Fatal Accidents Act.iv.What orders should issue as to costs. E. Analysis and Determination i. Whether this Court Should Interfere with the Award for Pain and Suffering. 19.This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was authoritatively stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, and reaffirmed in Peters v Sunday Post Ltd [1958] EA 424. 20.However, the principles upon which an appellate court may interfere with an award of damages are well settled. In Butt v Khan [1981] KLR 349, the Court of Appeal held that an appellate court should only interfere where the trial court acted on wrong principles, misapprehended the evidence, or where the award is so inordinately high or low as to represent an erroneous estimate of the damage suffered. The same principle was earlier stated in Flint v Lovell [1935] 1 KB 354 and approved by the House of Lords in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. 21.The evidence before the trial court was that the deceased died at the scene of the accident. The Appellant argues that only Kshs.10,000 ought to have been awarded, relying on Hyder Nthenya Musili & Another v China Wu Yi Ltd & Another [2017] eKLR and Moses Koome Mithika & Another v Doreen Gatwiri & Another (Suing as the Legal Representative of the Estate of Phineas Murithi (Deceased)) [2020] eKLR, where Kshs.10,000 was awarded where death was instantaneous. 22.The Respondents, on the other hand, support the award of Kshs.30,000. 23.The law does not prescribe a fixed conventional award under this head. The award depends on the duration and degree of suffering before death. As observed by the High Court in Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Representative of the Estate of Robert Mwangi (Deceased)) [2019] eKLR, awards for pain and suffering generally range between Kshs.10,000 and Kshs.100,000 depending on the circumstances of each case. 24.Although the deceased died shortly after the accident, there is no evidence that death was absolutely instantaneous. The trial court awarded Kshs.30,000, which falls within the acceptable range established by comparable authorities. In the absence of evidence demonstrating that the trial court applied a wrong principle or that the award was wholly erroneous, this Court finds no basis for interference. 25.The award of Kshs.30,000 for pain and suffering is therefore upheld. ii. Whether the Award of Kshs.2,000,000 For Loss of Dependency should be Disturbed 26.The principal complaint in this appeal concerns the award for loss of dependency. 27.The Appellant submits that the trial court ought to have adopted a lower global award after taking into account the uncertainties and vicissitudes of life, relying on Rose Munyasa & Another v Daphton Kirombo & Another [2014] eKLR, Simon Mwangi Mureithi v Martin O. Shikuku & 3 Others [2005] eKLR, Put Sarajevo General Engineering Co. Ltd v Esther W. Njeri & Others [2014] eKLR, and Geoffrey Obiero & Another v Kenya Power & Lighting Corporation Ltd & Another [2019] eKLR. 28.The Respondents maintain that the award was justified and consistent with comparable decisions, including Samwel Kimutai Korir (Suing as the Legal Representative of the Estate of Chelangat Sileva (Deceased)) v Nyanchwa Adventist Secondary School & Another [2016] eKLR and Pleasant View School Ltd v Rose Mutheu Kithoi & Another [2017] eKLR. 29.The deceased was aged only twenty-seven years. Although PW1 testified that he earned Kshs.30,000 per month as a boda boda rider, no documentary evidence of income was produced. Faced with the absence of proof of earnings, the learned trial magistrate correctly declined to adopt the multiplier approach. 30.The law is now settled that where the deceased's income cannot be ascertained with certainty, the court may resort to the global award approach. In Mwanzia v Ngalali Mutua & Kenya Bus Services (Msa HCCC No. 234 of 1998), Ringera J. (as he then was) stated:“The multiplier approach is just a method of assessing damages. It is not a principle of law... it can and must be abandoned where the facts do not facilitate its application." 31.The same reasoning was adopted by Ngaah J. in Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased)) [2016] eKLR, where the court emphasised that where income cannot be accurately determined, a global award is often the fairest method. 32.The learned trial magistrate appreciated these principles and expressly relied upon them before making the award. 33.The remaining question is whether Kshs.2,000,000 was excessive. 34.Comparable awards demonstrate a gradual upward trend in awards involving young deceased persons. In Samwel Kimutai Korir (supra), Kshs.1,800,000 was awarded for a deceased aged 21 years. In Pleasant View School Ltd v Rose Mutheu Kithoi & Another [2017] eKLR, the High Court awarded Kshs.1,600,000 for a deceased aged 36 years. In Geoffrey Obiero & Another v Kenya Power & Lighting Corporation Ltd & Another [2019] eKLR, a global award of Kshs.1,200,000 was made for a deceased aged 25 years. 35.The award in the present case is undoubtedly higher than some earlier comparable awards. Nevertheless, damages are not assessed by mathematical precision. Comparable authorities serve only as guides. Inflation, changing economic conditions, and the unique circumstances of each case must also be considered. 36.The deceased herein was a young man aged twenty-seven years, survived by a widow and minor children whose dependency was not disputed. The trial court expressly considered these factors before arriving at the award. 37.Although this Court might have awarded a slightly different figure had it heard the matter at first instance, that is not the applicable test. As stated in Butt v Khan [1981] KLR 349, an appellate court should not interfere merely because it would have reached a different assessment. 38.This Court is therefore not persuaded that the award of Kshs.2,000,000 was so inordinately high as to amount to an entirely erroneous estimate. 39.The award is accordingly upheld. iii. Whether Damages under the Law Reform Act ought to have been Deducted 40.The Appellant further contends that the awards under the Law Reform Act should have been deducted from the award under the Fatal Accidents Act. 41.The Court of Appeal has conclusively settled that issue. 42.In Hellen Waruguru Waweru (Suing as the Legal Representative of the Estate of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Ltd [2015] eKLR, the Court of Appeal clarified that there is no legal requirement that awards under the Law Reform Act be deducted from those made under the Fatal Accidents Act. The court explained that the trial court should bear both awards in mind to avoid double compensation. 43.The same position was adopted in Richard Matheka Musyoka & Another v Susan Aoko & Another (Suing as the Administrators ad Litem of the Estate of Joseph Onyango Owiti (Deceased)) [2016] eKLR, Chen Wembo & 2 Others v IKK & Another [2017] eKLR, and Peres Wambui Kinuthia & Another v S.S. Mehta & Sons Ltd [2015] eKLR. 44.The learned trial magistrate correctly appreciated these authorities and properly declined to deduct the awards made under the Law Reform Act. 45.There is therefore no basis for interfering with that finding. F. Disposition 46.In the result, the Court finds that the appeal lacks merit. 47.Accordingly:i.The appeal is dismissed in its entirety.ii.The judgment of the subordinate court delivered on 26th February 2025 in Narok CMCC No. E114 of 2023 is hereby affirmed.iii.The awards of:a.Pain and suffering – Kshs.30,000;b.Loss of expectation of life – Kshs.100,000;c.Loss of dependency – Kshs.2,000,000; andd.Special damages – Kshs.60,310,Together with costs and interest as awarded by the trial court, are upheld.iv.The Respondents shall have the costs of this appeal. 48.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK, THIS20TH DAY OF JULY, 2026…………………………………….CHARLES KARIUKIJUDGE