https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8568

Wachira & another (Suing as the Legal Representatives of the Estate of Arthur Kioge Mwangi – (Deceased)) v Wilka General Merchants Ltd & another (Civil Appeal E501 of 2025) [2026] KEHC 8568 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8568 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E501 of 2025 D Mburu, J June 18, 2026 Between Daniel Wainaina Wachira 1st Appellant douglas Irungu Wachira 2nd Appellant Suing as the Legal Representatives of the Estate of Arthur Kioge Mwangi – (Deceased) and Wilka General Merchants Limited 1st Respondent Simon Muiruri 2nd Respondent (Being an appeal from part of the Judgment and Decree of the Honourable H. M. Ng’ang’a (PM) delivered on 3rd April 2025 in Milimani Commercial MCCC No. E4651 of 2020) Judgment 1.Having been dissatisfied with the above-mentioned decision, the Appellant filed this appeal and preferred the following grounds vide the Memorandum of Appeal dated 26th February 2025. That Learned Magistrate erred;1.In fact and law by declining to award the appellants general damages for loss of dependency when the parties had recorded a consent on liability.2.In law and fact by finding that the appellants have (sic) failed to prove the claim for loss of dependency when the parties had consented on liability.3.In law by delving into issues of proof when parties had consented on liability. 2.The appellants thus prayed that the appeal be allowed and that this court do make an award for loss of dependency. 3.The parties took directions to have the appeal disposed of by way of written submissions. The parties complied with the court’s directions. The Appellants’ submissions are dated 26th January 2026 while those of the respondent are dated 28th January 2026. 4.The appellant submitted that the trial magistrate erred in dismissing the claim for loss of dependency yet the parties had recorded a consent on liability. The appellants further argued that since all the documents were admitted as exhibits by consent of the parties, then it follows that the Chief’s letter dated 15th July 2019, as well as the mother’s death certificate were sufficient proof that the deceased was raised by his maternal uncles who were his guardians and were therefore dependants for purposes of the Fatal Accidents Act 5.The appellants further faulted the trial court for dismissing the claim for loss of dependency in its entirety yet the respondents were not opposed to the award of damages. The appellants submitted on a multiplicand of Kshs. 19,000/=, a dependency ratio of 2/3 and a multiplier of thirty years. 6.The respondents opposed the appeal arguing that the trial court was correct in law and fact in dismissing the claim for loss of dependency. They further submitted that earning an income does not automatically establish dependency. They argued that the appellants failed to adduce evidence establishing that the alleged aunts and uncles were dependants of the deceased, the nature and extent of the alleged dependency and that the said persons fell within the category of dependants recognized under section 4 of the Fatal Accidents Act. The respondents therefore urged the court to dismiss the appeal with costs. Analysis and Determination 7.This Court has carefully considered the Record of Appeal, the parties’ respective submissions, the authorities cited as well as the law and the only issue that falls for this Court’s determination is whether the trial court erred in dismissing the claim for loss of dependency. 8.This being a first appeal, the Court enjoined to re-evaluate the evidence and make its own findings of fact, except however, that it should give due allowance to the fact that it neither saw nor heard the witnesses’ testimonies. 9.This was aptly stated by the Court of Appeal in the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123 as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 10.I have perused the Memorandum of Appeal and the entire record of the Trial Court and I am alive to the fact that my task is to re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. 11.From the record, it is clear that the parties recorded a consent judgment on the issue of liability in the ratio 75%: 25% in favour of the appellants. The parties further consented that all documents filed by the parties be admitted into evidence without calling the makers thereof. The natural consequence of the said consent is that the appellants did not testify before court. It is also correct to state that the appellants’ documents and witnesses were admitted as evidence and did not face any challenge or contestation from the respondents. In their witness statements, the appellants had stated that they had been dependent on the deceased and that they had lost the support. This was further buttressed by the Chief’s letter that forms part of the appellants’ evidence as it stated that the deceased was orphaned and was brought up by his maternal uncles. I do hereby find and hold that the appellants were for all intents and purposes the parents and/or guardians of the deceased and were therefore covered under section 4 of the Fatal Accidents Acct. 12.I have also noted that this was never an issue before the trial court. The respondents never raised such an issue and the appellants did not get an opportunity to address the trial court on it. It would appear that the trial court formulated and proceeded to determine an issue that had not been raised by the parties, without hearing the parties on it. To this extent, I find that the trial magistrate erred in law. The dismissal of the appellants’ claim for loss of dependency was therefore not justified and is hereby set aside. 13.From my analysis of the evidence tabled before the trial court, the deceased had an income of Kshs.20,000/=. In their written submissions, the respondents had conceded a net income of Kshs. 19,300/=, a multiplier of 26 years and a dependency ratio of 1/3. I note that the deceased was not married and therefore, the applicable dependency ratio is 1/3, not 2/3 as submitted by the appellants. 14.In the end, having considered the comparative jurisprudence in this area and recent decisions, I award the appellants general damages for loss of dependency computed as follows:Kshs. 19,300/= x 26 years x 12 x 1/3 = Kshs. 2,007,200/= 15.In the upshot, I do hereby make the following orders: -a.The appeal is hereby allowed.b.The order of the lower court dismissing the claim for loss of dependency is hereby set aside and substituted with an award of Kshs. 2,007,200/= under this head, subject to 25% contributory negligence. The said award shall attract interest at court rate from the date of judgment in the lower court until payment in full.c.The appellants shall have the costs of the appeal. DATED, SIGNED, DELIVERED VIRTUALLY AND UPLOADED TO THE CASE TRACKING SYSTEM THIS 18TH DAY OF JUNE 2026.DAVID MBURUJUDGE