https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7108

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **E092** OF 2022 TASTY CHOICE LIMITED……………………………………...APPELLANT VERSUS ROSEMARY NASAMBU SIMON & ELIUD WANJALA WATOYA KENNEDY BARASA…….1st RESPONDENT FUJIKING MOTORS LIMITED…………………………...2ND RESPONDENT MURIITHI NYAGA……………………….……………….3RD RESPONDENT JULIUS KINYANJUI NDURUHU………………………...4TH RESPONDENT ***(An appeal from part of judgment and decree in the Chief Magistrate’s Court at Machakos (Hon. A.G. Kibiru CM) civil case 602 of 2019 dated 15-06-2022)*** **JUDGMENT** The 1st and 2nd respondents instituted the lower court suit against the appellant and the 2nd and 3rd respondents claiming compensation on behalf of the estate of Kevin Barasa Ndiwa (hereinafter referred to as ‘the deceased’). The deceased died in a road traffic accident on 10-08-2018 while travelling as a passenger in motor vehicle registration number KCQ 467L which rammed into motor vehicle registration number KCJ 646M. Motor vehicle registration number KCQ 467 was at the time of the accident said to have been owned by the 2nd and 3rd respondents while KCJ 646M was owned and/or driven by the appellant and the 4th respondent. The matter went for full hearing after which the court found the appellant liable at 100 per cent and proceed to award the 1st respondents damages as follows; 1. Pain and suffering Kshs 30,000.00 2. Loss of expectation of life Kshs 150,000.00 3. Loss of dependency Kshs 5,640,000.00 4. Special damages Kshs 142,500.00 The appellant was aggrieved by the finding of the trial court on both liability and quantum and has approached this court on appeal seeking to set aside and /or vary the judgment relying on the following grounds; 1. The learned Magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case. 2. The learned Magistrate erred in law and fact by arriving at a finding on liability, which went against the weight of evidence. 3. The learned Magistrate erred in law and fact by making a finding in favour of the first respondent when they had not proved their case on a balance of probabilities. 4. The Learned Magistrate erred in fact and in law in awarding the first Respondent Ksh. 5,640,000/= damages under the Fatal Accidents Act which award was too excessive in the circumstances. 5. The learned Magistrate erred in law and in fact in relying on the maximum number of productive working years which was 30 years in the circumstances and failing to consider vicissitudes of life when awarding damages under the Fatal Accidents Act. 6. The learned Magistrate erred in law and fact by failing to deduct the damages awarded under the Law Reform Act from the total award. 7. The learned Magistrate erred in law and in fact by failing to accord due regard to the appellant’s submissions and authorities on quantum on applicable principles for assessment of damages. 8. The learned trial Magistrate court erred in law and fact by arriving at a decision that was not based on the evidence on record, descended into the arena of litigation and thus erroneously apportioned liability against the appellant This is a first appeal and this court is expected to re-evaluate and re-analyse the evidence produced before the lower court and come to its own independent conclusion but it should take into account the fact that it did not take the evidence first hand and did not have the opportunity to observe the demeanour of the witnesses. In ***C.K. Bett Traders Limited & 2 others v Kennedy Mwangi & another [2021] KEHC 5107 (KLR),*** Justice E.C. Mwita restated this position by holding that; *‘This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.’* ***Liability*** The witnesses who testified on the aspect of liability were PW3 one number 237396 IP Zachary Gatogo Nderitu and DW1, Mr. Kennedy Onyambu of police service number 68331. Zachary told the court that he was the base commander of Kyumbi traffic base and that as per their occurrence book entry number 9/10/08/2018, motor vehicle registration number KCQ 467L and KCJ 646M were involved in an accident at Konza along Nairobi-Mombasa road on 10-08-2018. According to him, the circumstances of the accident were that all the vehicles were being driven from Nairobi direction towards Mombasa direction. He added that at the scene of the accident, there was a traffic snarl up of which they did not know the cause. Motor vehicle registration number KCJ 646M rammed into the rear of three vehicles which rammed into motor vehicle registration number KCQ 467L which had slowed down behind other vehicles. Motor vehicle registration number KCQ 467L was pushed into the rear of KCL 032R ZE 6816 and as a result, three passengers in the said vehicle died on the spot while several others were injured and taken to hospital. He confirmed that the deceased was one of those who perished on the spot. PW3 confirmed that he did not visit the scene and that he was not the investigating officer. He reiterated that KCL 032R was ahead, KCQ 467L in the middle and KCJ 646M behind. The witness concluded that according to their records, motor vehicle registration number KCJ 646M was to blame. Mr. Kennedy on his part stated that he was the investigating officer for the accident in question. In addition to repeating what PW1 stated, Kennedy added that the driver of motor vehicle registration number KCJ 646M ZF 7004 escaped from the scene of the accident. He added that the said driver had failed to keep safe distance and hit motor vehicle registration number KCQ 467L from behind pushing it forward where it in turn hit motor vehicle registration number KCL 032R which had stalled due to mechanical problems. He stated that the stalled vehicle had put road warning signs. He confirmed that he visited the scene of the accident and produced police abstract in respect of the accident. The above narration was common across the parties and it was not in contest. However, the appellant has submitted that the trial court erred by holding it fully liable. It has taken position that, the other motor vehicles were also to blame for failing to keep distances between themselves and vehicles ahead of them and as such they should have taken half of the blame. In other words, the appellant argues that motor vehicle registration number KCQ 467L contributed to the accident because if it had kept safe distance between it and KCL 032R, it would not have been pushed to the extent of colliding into it. I dismiss this argument. The evidence available is that KCL 032R was stationary due to mechanical problems and had put warning signs to that effect. It is evident that KCQ 467L had slowed down because KCL 032R was stationary and traffic was slow. If it had not kept distance, motor vehicle registration number KCQ 467L would have rammed the stationery vehicle before it was rammed by the appellant’s vehicle. It is not expected that a driver would know that those behind him were not attentive or were driving carelessly or without proper look out. The driver of motor vehicle registration number KCQ 467L was on his lane and he would not have hit the stationary vehicle if he was not pushed to it. The witnesses were clear that the vehicle was sandwiched between the stationary vehicle and the appellant’s vehicle. A driver cannot have a 360-degree eyesight like a chameleon such that he is able to see behind and front at the same time. A prudent driver in the circumstances like of the accident in question concentrates on what is ahead and expects those behind him to also concentrate on what is ahead of them. The appellant did to call its driver to shed light on why he could not avoid hitting KCQ 467L from behind and its submissions on this issue is speculative and a statement from the bar which has no probative value. The fact that the impact pushed KCQ 467L against KCL 032R to a point of killing three people and injuring several others is definitely a pointer to the fact that the driver of KCJ 646M was in a very high speed or failed to slow down or had failed to keep safe distance. His action of escaping after the accident did not help things. He must have done so out of guilt and fear of repercussion of his negligence. Without an explanation from the driver of the appellant’s vehicle, this court has no reasons to upset the finding of the trial court on liability. ***Quantum*** The appellant has submitted that the awards for loss of expectation of life and pain and suffering were high. It proposes Kshs 20,000.00 for pain and suffering and Kshs 100,000.00 for loss of expectation of life. It is trite that damages are at large and are at the discretion of the court and an appellate court should not interfere with the awards of the trial court unless it is demonstrated that they are so low or inordinately high that they amounted to an erroneous estimate or were outrageously out of the range of other awards in similar cases. An appellate court would also be justified to interfere with the trial court’s awards on damages if the appellant is able to convince the court that the trial court took into consideration a factor it should not have or failed to take into consideration a factor it should have or it applied wrong principles in reaching its decision. The appellant has not pointed out to this court any principle or factor the trial court erred in considering or failing to consider. The awards are within the range of other conventional awards under the same circumstances, I do not see any reason to interfere with the two awards. I now turn to the award for loss of dependency. The factors which the court should consider in determining the quantum of loss of dependency are the multiplier, the multiplicand and the dependency ratio. The multiplier is the number of years which the deceased would have worked if he had lived were it not for the accident in question which is determined as a matter of discretion but the court must take into consideration that the deceased may also have died out of other causes and therefore discount some years since. It is also important to consider that the amount is being given in lumpsum unlike if it were to come on monthly or periodic instalments. The multiplicand is the amount which the claimant proves to have been the deceased’s annual earning had they he lived but for the accident. It may be determined from documentation or on the basis of the circumstances of the case, the nature of work the deceased used to do and any law in force that regulates earnings for the categories where the deceased fits. The dependency ratio is the percentage of the deceased’s earning which he would likely have spent towards the upkeep, help or maintenance of their dependants. The dependency ratio is a matter of fact which must be demonstrated on a balance of probabilities because the award is in form of compensation for what the dependants lost and not definite legal provision or entitlement. Section 4(1) of the Fatal Accidents Act recognizes the deceased’s children, spouse and parents as the dependants of a deceased person. ***Multiplier and multiplicand*** The 1st respondent’s document number 9 was a letter of employment showing that the deceased was employed by Skypower Limited at monthly salary of Kshs 40,000.00 and house allowance of Kshs 7,000.00. Clause (c) of the letter stated that; *‘Unless otherwise advised your new working contract will be renewed on 20-03-2019. However, the employment may be terminated at any time by either party giving the other one month notice.’* It its submission dated 7th November 2025, the appellant proposes that the court should have adopted a hybrid of the global approach instead of the multiplier only because the letter produced as proof of employment was for a contract which was to lapse on 2nd March 2019. It alleges that there was no guarantee that the contract would be renewed on or after 2-03-2019 and therefore the trial court should have applied the multiplier for the remaining six months of the contract then the global approach. For the latter, the appellant proposed a sum of Kshs 1,000,000.00. In my view, the above argument is absurd. The above cited clause (c) of the contract clearly stated that unless otherwise advised, the contract would be renewed which to me meant that, unless there was a termination, the contract would continue beyond 2-03-2019. Again, even in what people refer to permanent jobs, there is always freedom to terminate employment as long as it is done lawfully which happens more often than not. The court cannot engage in the wild speculations of continuity of employment. The purpose of production of evidence of gainful employment as at the time of death is to show that the deceased was not idling and had clear career path which would bring him income and the same is assumed to be continuous for the entire working life. The factor of likelihood of termination of the employment forms part of what is known as uncertainties and vicissitudes of life in matters of this nature hence the discounting of years of working life. It is therefore my holding that the trial court did not err in adopting the multiplier approach and Kshs 47,000.0 as the multiplicand. On the multiplier, the appellant proposes that the trial court should have adopted 25 years instead of 30 years. The deceased was 26 years and trial court assumed that the deceased would have worked up to the age of sixty years and proceeded to discount four years to cater for the vagaries and uncertainties of life. I am persuaded that the trial court was far much generous with the years. I would discount years as proposed by the appellant and adopt 25 as the multiplier. I have been persuaded by ***Lucy Wambui Kihoro (Suing As Personal Representative of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] KEHC 4852 (KLR)*** where Honourable Justice A. Mabeya applied a multiplier of 16 years in respect of the deceased who had died at 30 years of age. ***Dependency ratio*** On dependency ratio, the 1st respondent has urged in form of cross appeal that this court should adopt ½ because the deceased left a child. I do agree that if the deceased left a child, the court should have adopted a higher ratio because that would cater for the deceased’s parents and the child and regardless of whether he was married to the mother or not. However, I do not think that the 1st respondent provided enough evidence to prove that the deceased had a child who he took care of. The evidence on record that is relevant to this issue is that the deceased died at the age of 26 years and was not married but was survived by his mother and father. Paragraph 11 of the amended plaint indicates that the deceased left behind his father and mother aged 53 and 56 years respectively and a son named as Bradley Barasa aged 8 years. In her witness statement dated 7-10-2019, which she adopted as her evidence in court, the 1st respondent did not mention the deceased as having had a son. Document number 11 in the list of documents which the 1st respondent adopted as exhibits shows that the child named therein is one Bradley Barasa who was born on 14-09-2011 to one Kevin Barasa Wafula and Brendah Nasimiyu Nyongesa. It is not clear whether this is the same father as the deceased in this matter because the surnames differ. It should have been clarified during the hearing. Other than the birth certificate for Bradley Barasa, there was no evidence led to show that the deceased was the father. The father in the birth certificate is a different person and if the names referred to the same person, then the clarification should have been done during the hearing. More important, the 1st respondent should have led evidence to show that the deceased was supporting the said Bradley Barasa either through payment of school fees, bills or other necessities expected of a father to his child. Without such evidence, the trial court cannot be faulted for having applied the dependency ratio of 1/3. The conclusion of the above is that this appeal succeeds to the extent that the multiplier is adjusted from 30 years to 25 years. That will translate to 47,000 x 12 x 25 x 1/3 = 4,700,000.00. The rest of the awards shall remain as awarded by the trial court including costs of the suit in the trial court. However, the appellant shall have 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 Mwangangi for the appellant, Miss Wanyingi holding brief for Mr. Kavita for the 4th respondent and in absence of the other respondents.