[2025] KEHC 4164 (KLR)

Unidec Ventures Limited & another v Gichuhi & another (Suing as Personal Rep. of the Estate of Michael Gitonga Githaiga - Deceased) (Civil Appeal E1228 of 2023) [2025] KEHC 4164 (KLR) (Civ) (1 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4164 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E1228 of 2023

LP Kassan, J

April 1, 2025

Between

Unidec Ventures Limited

1st Appellant

Ann Wanja Kinyua

2nd Appellant

and

Mary Wanjiru Gichuhi

1st Respondent

Ruth Caster Mbula Muendo

2nd Respondent

Suing as Personal Rep. of the Estate of Michael Gitonga Githaiga - Deceased

(Being an appeal from the judgment of Hon. S.A. Opande (PM) delivered on 30th October, 2023 in Nairobi Milimani CMCC No. E1490 of 2021)

Judgment

1. The 1st Respondent (hereinafter Respondent), acting as the legal representative of the deceased’s estate, testified that on 4th November 2019, the deceased was a pedestrian along Thika Road when he was fatally hit by motor vehicle registration number KCQ 704L, owned by the 1st Appellant and driven by the 2nd Appellant. The Respondent claimed the vehicle was being driven negligently, at high speed, and veered off the road, causing the fatal impact. The Respondent filed a claim for damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32), seeking Kshs 61,740/= in special damages.

2. The trial court held the Appellants 100% liable. The trial court then assessed damages, awarding the Respondent:a.Pain and suffering – Kshs 50,000/=b.Loss of expectation of life – Kshs 100,000/=c.Loss of dependency – Kshs 2,027,467. 20/=d.Special damages – Kshs 60,000/=e.Total – Kshs 739,410/=

3. The Appellants’ grounds for appeal can be summarized as:a.The trial court erred in finding the Appellants 100% liable for the accident without considering the evidence and applicable legal standards.b.The trial court failed to adequately consider the testimony of the 2nd Appellant (the driver), who gave an account that the deceased was to blame for the accident.c.The court misinterpreted or failed to properly evaluate the evidence on record, especially regarding how the accident occurred.d.The trial court awarded damages that were inordinately high and not supported by the evidence or comparable precedents.e.The learned magistrate exercised judicial discretion wrongly both in assessing liability and in the quantum of damages awarded.

Appellants’ Submissions 4. In their written submissions, the Appellants contended that the trial court erred in finding them wholly liable for the accident that occurred on 4th November 2019. They argued that the evidence of the 2nd Appellant (DW1), who testified that the deceased suddenly crossed the road without warning, was credible and unshaken during cross-examination. The Appellants submitted that this conduct by the deceased amounted to contributory negligence, which the trial court failed to consider. They cited case law to support the position that courts should apportion liability where there is shared responsibility, and that pedestrians also bear a duty of care for their own safety.

5. The Appellants further argued that the damages awarded were excessive and not supported by comparable precedents. They submitted that the trial court failed to consider the principles guiding the assessment of general damages under the Law Reform Act and Fatal Accidents Act. Additionally, they maintained that the trial court exercised its discretion improperly by disregarding the defence evidence, failing to evaluate the credibility of the Respondent’s evidence, and ultimately arriving at a decision that was unjust and unsupported by law. They urged the appellate court to set aside or vary the judgment by apportioning liability and reassessing the quantum of damages.

Respondent’s Submissions 6. In their written submissions, the Respondent defended the trial court’s judgment, arguing that the Appellants were correctly found wholly liable for the accident that caused the death of the deceased. The Respondent emphasized that the evidence adduced—including the police abstract, death certificate, and postmortem report—was credible and remained unshaken during cross-examination. It was also submitted that the 2nd Appellant's testimony failed to convincingly shift blame to the deceased, and that the trial court rightly found the version offered by the Respondent more believable and consistent with the documentary evidence. The Respondent further submitted that there was no credible proof that the deceased was crossing the road carelessly or that he contributed to the accident.

7. On the issue of quantum, the Respondent submitted that the damages awarded were within the range permitted by law and supported by existing case law under both the Law Reform Act and the Fatal Accidents Act. The Respondent argued that the awards for loss of expectation of life, pain and suffering, and loss of dependency were all justified, given the deceased’s age and the dependency by his family. It was also submitted that the court properly exercised its discretion in awarding special damages which had been strictly proved. The Respondent thus urged the appellate court to dismiss the appeal in its entirety with costs, arguing that no errors in law or fact had been demonstrated to warrant interference with the trial court's findings.

Issue for Determinationi.Whether the trial court erred in finding the Appellants 100% liable for the accident.ii.Whether the trial court failed to properly consider and evaluate the defence evidence, particularly the testimony of the 2nd Appellant.iii.Whether the award of damages was excessive and unsupported by the evidence or legal principles.iv.Whether the trial court properly exercised its discretion in arriving at the judgment and award.

Analysis and Determination 8. As a first appellate court, I am required to review the trial court's evidence while recognizing that I did not observe the witnesses. The Court of Appeal in Kiruga v Kiruga & Another [1988] KLR 348 held that an appellate court should only interfere with factual findings if there is no supporting evidence or if the trial judge was plainly wrong.

9. The deceased was a pedestrian walking along the side of Thika Road on 4th November 2019 when he was fatally hit by motor vehicle registration number KCQ 704L, driven by the 2nd Appellant. The Respondent, as the personal representative of the deceased, testified that the vehicle veered off the road and knocked down the deceased. This testimony was corroborated by an eyewitness, who clearly stated that the deceased was not crossing the road, but was instead walking along the side, in the same direction as traffic.

10. The 2nd Appellant (driver), in her defence, offered a conflicted narrative. On one hand, she claimed that the deceased suddenly crossed the road; on the other hand, she admitted that a vehicle ahead of her cut into her lane, forcing her to swerve, which led to her veering off and hitting the deceased. Further still, she claimed the deceased was heading in the same direction which contradicts her earlier statement that he was crossing the road.

11. These contradictions severely undermine the credibility of the 2nd Appellant's account. Her admission that she swerved due to another vehicle and hit a pedestrian off the main carriageway demonstrates loss of control and lack of due care clear indicators of negligence. The inconsistencies in a driver’s testimony are a strong indication of liability, particularly when the driver fails to take reasonable steps to avoid the accident.

12. This Court finds the evidence of the eyewitness credible and consistent with the Respondent’s version of events. The deceased was a pedestrian walking lawfully, and there is no evidence whatsoever to suggest that he contributed to the occurrence of the accident.

13. The Appellants' argument that the deceased was contributorily negligent is not supported by the facts. The position of the deceased, the point of impact, and the conflicting testimony of the 2nd Appellant do not establish any fault on the part of the deceased.

14. In Hussein Omar Farah v Lento Agencies [2006] eKLR, the Court of Appeal emphasized that contributory negligence must be supported by credible evidence. In this case, no such evidence exists.

15. While the trial court acknowledged the 2nd Appellant’s testimony, it correctly found her evidence to be internally inconsistent and unreliable. Her attempt to shift blame to a third-party vehicle and simultaneously blame the deceased for crossing the road when the two were allegedly moving in the same direction is implausible.

16. This Court concurs with the trial court’s reasoning. The eyewitness account and the objective facts tilt the balance firmly against the Appellants.

17. On quantum of damages, it is a general rule that an appellate court should not interfere with quantum of damages unless the award is so high or inordinately low or founded on wrong principles. This is the principle enunciated in Rook v Rairrie [1941] 1 ALL E.R. 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.”

18. On pain and suffering, this award is made to reflect the pain and suffering experienced by the deceased before death. Courts typically consider the time lapse between injury and death. In such circumstances, the courts have awarded between Kshs. 10,000 and Kshs. 100,000, depending on the duration and evidence of pain endured.

19. In Mbae (Suing as the Legal Representative of the Estate of Koome Mbae - Deceased) v Mugambi (Sued as the Legal Representative of the Estate of Duncan Mwega Micheni - Deceased) [2024] KEHC 3376 (KLR) eKLR, the court awarded of Kshs. 50,000/=.

20. Considering the circumstances here, this Court finds the amount of Kshs. 50,000 reasonable and in line with precedent.

21. On loss of expectation of life, this is a conventional award meant to reflect the loss of the deceased’s normal life expectancy due to premature death. The amount of Kshs. 100,000 has been consistently awarded across jurisdictions for many years unless there are special circumstances to warrant deviation. See: Otieno v Ougo [1986-1989] E.A. 468 and DMM (Suing as Legal Representative of LKM) v Stephen Johana t/a Johana Coaches [2019] eKLR.

22. There being no compelling reason to vary this head, this Court finds the award proper and supported by legal authority.

23. A claim for loss of dependency under the Fatal Accidents Act differs from a claim for lost years under the Law Reform Act. The former benefits specific dependents who relied on the deceased before death, while the latter compensates the deceased’s estate for lost earnings. Courts must consider awards under both Acts to prevent double compensation, as established in Kemfro v A.M. Lubia & Another [1982-88] KAR 727 and Hellen Waruguru Waweru v Kiarie Shoe Stores Ltd [2015] eKLR.

24. The general damages on loss of dependency, the trial court awarded Kshs 2,027,467. 20/=. Under the Fatal Accidents Act, it is necessary to determine the deceased’s income, the dependency ratio of his/her dependents and the multiplier to be used.

25. In the case oF Jastine Nzula Musyoka & Ano. -vs-china Wu Yi Limited & Ano. Machakos HCCC 52 OF 2014 wherein Nyamweya J. (as she was then) relied on the case of Beatrice Wangui Thairu-vs-hon. Ezekiel Barngetuny & Ano., Nairobi HCCC NO. 1638 OF 1988 wherein Ringera J. explained the manner of assessment of damages for loss of dependency as follows:“The principle applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The Court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The Court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependents and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

26. Firstly, on the multiplicand, the Respondent testified that the Deceased was a driver. There was no proof of his earnings. In the case of Kenya Catholic Seminary Commission & another v Musa Omumia Rakama(suing as Administrator and Legal Representative of the Estate of the Everline Onyango Ogada [2018] eKLR wherein Njagi J. stated at par 29-31:“29. The respondent testified that the deceased was a driver and that he was earning shs. 40000/- a month. The respondents did not produce any documents to prove the deceased’s earnings. The Court of Appeal in Job Ayiga Maruja & another Vs Simeon Obayo (2005) eKLR held that:-“ We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. “

30. If, however, the deceased herein was a tailor it was easy to produce documents such as a business licence to prove the kind of work she was engaged in. I therefore find no evidence that the deceased was a tailor. The court cannot award damages for a tailor’s job without evidence to prove so. In the absence of this, the alternative for purposes of computing the deceased’s earnings is to treat her as a general labourer.

31. The trial magistrate resulted to the use of the government’s minimum wage to estimate the earnings of the deceased. Judgment in the case was delivered in October 2017. If the deceased had been alive by then, the wages provided in The Regulation of Wages (General) Amendment) Order of 2017 that came into operation on 1st May 2017 would have been applicable to her. The minimum wage for a general labourer in that order is Kshs. 6896/=. I will apply that figure as the multiplicand. “

27. The trial court held that since the Appellants did not controvert the evidence adduced that the deceased was a driver, the trial magistrate used the income of a medium-sized vehicle driver and adopted the income at Kshs 23,039. 40/=. The trial magistrate without evidence should not have arrived at the finding that the deceased was a driver. Just because the Appellants did not controvert the same did not shift the burden to them to prove the deceased’s profession. Without proof of income, I find the statutory minimum wage at Kshs 15,000/= was the appropriate award in the circumstances.

28. The deceased died at the age of 48 years as shown in the death certificate issued 19. 12. 2019 and the multiplier of 11 years used by the trial court was also reasonable and took into consideration the vicissitudes and vagaries of life. The deceased had dependents his wives, the Respondents, and children. Therefore, the multiplicand of 2/3 used by the trial court was correct.

29. I uphold the award on loss of dependency calculated as15,000/= x 11x 12 x 2/3= 1,320,000/=.

30. On the Special damages award, a party must produce receipts in order to meet the requirement of specifically proving special damages. The Respondent pleaded Kshs 61,740/=. Particularized as grant ad litem costs of Kshs 1,190/=, funeral costs Kshs 60,000/= and copy of records Kshs 550/=. No receipts were produced in support thereof. The trial court awarded Kshs 60,000/= for the funeral expenses which it found reasonable.

31. The Court of Appeal in the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, the court held:“We agree and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. In this case, we think the Shs.117,325/= awarded by the learned trial Judge as “funeral expenses and other expenses” were wholly unreasonable in the circumstances and we note that the respondent did not give a complete break-down of what he spent the money on. We accordingly reduce that figure to Shs.60,000/= which is just above half of the sum claimed. We, however, must not be understood to be laying down any law that in subsequent cases, Shs.60,000/= must be given as the reasonable funeral and other expenses. Those items are and must remain subject to proof in each and every case and the Shs.60,000/= we have awarded herein apply strictly to the circumstances of this case."

32. Also, the Court of Appeal in the case Premier Diary Limited v Amarjit Singh Sagoo & another [2013] eKLR, held:“We do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with the issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved...”

33. The Court of Appeal in the Premier Diary case supra further held:“...The learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages..."

34. In the present case, the Respondents pleaded funeral expenses at Kshs 60,000/= and did not adduced any receipts in support. I am guided by the Court of Appeal decisions cited above that the sum of kshs 60,000/= awarded by the trial magistrate was fair and I hereby uphold the award on special damages as awarded by the trial court.

35. The upshot of the above is that:i.The appeal partly succeedsii.Liability 100% against the Appellantsiii.General damages for pain and suffering Kshs 50,000/=iv.General damages for loss of expectation of life Kshs 100,000/=v.General damages for loss of dependency Kshs 1,320,000/=vi.Special damages at Kshs 60,000/=

36. The Appellants will have ½ the costs of appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST DAY OF APRIL 2025. LINUS P. KASSANJUDGEIn the presence of:Mwangangi for the ApplicantKisiangani for RespondentCarol - Court Assistant