https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12979

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CIVIL APPEAL NO. E045 OF 2023 WOTE SERVICE STATION LIMITED……………………………………………………….…APPELLANT VERSUS BERNARD NYAMAI MWANGANGI (Suing as the Legal Representative of the Estate of STEPHEN MUEMA MWANGANGI (Deceased)………………………………..RESPONDENT **JUDGMENT** ***(Being an appeal from the judgment and decree of Hon. P.N Gesora Chief Magistrate delivered at Makueni Chief Magistrate’s Court at Makueni on 10th May, 2023 in CMCC No. 141 of 2021)*** **Background.** 1. This is an appeal from the decision of the magistrate’s court delivered on 10th May, 2023 in Makueni CMCC No. 141 of 2021 in which the respondent, as legal representative of the estate of Stephen Muema Mwangangi (deceased), sued the appellant vide plaint dated 14th August, 2021 seeking general damages under the Fatal Accident Act and Law Reform Act and special damages of Kshs. 550/=. The cause of action arose from a road traffic accident which occurred on 18th January, 2021 where motor vehicle registration number KCS 208A owned by the appellant collided with motor cycle registration number KMFC 011M in which the deceased was a rider. 2. The appellant, then the defendant, entered appearance and filed statement of defence dated 28th September, 2021 denying liability and instead blamed the deceased for negligence. 3. On 22nd February, 2023 the parties agreed on liability which was apportioned at 15% against the respondent and 85% against the appellant. The parties then proceeded and filed submissions on quantum. Both the respondent and appellant submissions are dated 3rd April, 2023. 4. On 10th May, 2023 the trial court rendered its judgment as follows: *Pain and suffering ……………………………………………………………..Kshs. 50,000/=* *Loss of expectation of life…………………………………………………..Kshs. 100,000/=* *Damages under the Fatal Accident Act………………………………Kshs. 1,800,000/=* *Special damages ………………………………………………………………. Kshs. 550/=* 1. Damages under the heads of pain and suffering, loss of expectation of life and Fatal Accident Act were subjected to liability. The total award came to Kshs. 1,658,050/=. The respondent was also awarded costs and interest. **The Appeal.** 1. Dissatisfied by the judgment of the trial court, the appellant vide memorandum of appeal dated 23rd May, 2023 lodged this appeal to the High Court raising the following grounds: 2. *The learned magistrate erred in law and in fact by his assessment and award of general damages for pain and suffering and thereby giving inordinately high award on this head.* 3. *The learned trial magistrate erred in law and in fact by using a multiplicand of Kshs. 15,000/= as opposed to the provisions of applicable minimum wage yet no evidence was tendered in support of any earning of the deceased.* 4. *The learned magistrate’s choice of dependency, the multiplicand and multiplier are wrong and unreasonable.* 5. The appellant prayed for the following orders: - 6. *That the be allowed.* 7. *That the judgment delivered by Hon. P.N Gesora on 10th May, 2023 in Makueni Civil Suit No. 141 of 2021 be set aside in its entirety.* 8. *That this Honourable Court be pleased to set aside the sum set under head of the multiplicand and substitute the sum used under this head with the minimum wages for persons living at or around Makueni.* 9. *That the award under the head of pain and suffering be substituted and revised downwards with a fair and reasonable award.* 10. *That the Honourable Court be pleased to substitute the award under Fatal Accident Act with an appropriate award.* 11. *That the costs of the appeal be borne by the respondent.* **Submissions.** 1. The appeal was heard by way of written submissions. The appellant submissions are dated 23rd October, 2025. The respondent submissions are dated 5th November, 2025. **Appellant submissions.** 1. On pain and suffering the appellant submitted that the deceased died the same day of the accident. The appellant as submitted before the lower court proposed an award of Kshs. 10,000/=. Reliance was placed on the case of ***John Mureithi Kariuki vs George Mwangi (2012) e KLR*** where the court awarded of Kshs. 10,000/= for pain and suffering where the deceased died on the same day while undergoing treatment. 2. On loss of expectation of life, the appellant submitted that for an award of conventional figure of Kshs. 70,000/= citing the case of ***Caroline Anne Njoki Mwangi vs Paul Ndungu Muroki (2004) e KLR*** where similar award was made. The appellant also relied on the case of ***John Kariuki Mureithi vs George Mwangi (supra)*** 3. The appellant submitted that there was no evidence to show that the deceased was employed although it was pleaded that he was a *‘boda boda’* rider. Further the appellant submitted that there was no evidence of the deceased earning. The appellant urged the court to treat the deceased as unemployed at the time of the accident and find that in the circumstances, the applicable earning should be the prevailing minimum wages as gazette by the Government. It was submitted that the applicable minimum wages at the time was Kshs. 7,240.95. 4. On multiplier, the appellant cited the case of ***Mary Kerubo Mabuka (Suing as the legal representative of the estate of Rita Moraa Gichana (deceased) vs Newton Mucheke Mburu & 3 Others (2006) e KLR*** where the court observed that the average standard of living has plummeted due vagaries of life and thus the reduction of the life expectancy of an average Kenyan. It was submitted that even assuming the deceased was a motor cycle rider he would not have worked as such till 60 years considering the vagaries and challenge bedeviling the industry. The appellant proposed a multiplier of 23 years. the appellant cited the case of ***Rose Munyasa && another vs Daphton Kirombo & another (2014) e KLR*** where the court emphasized that in determining a reasonable multiplier, the court is required to apply the available facts before it. 5. On dependency ratio, the appellant submitted that the deceased was not survived by his parents, he was not married and had no child. As such the deceased did nit leave behind any dependents. It was submitted that the siblings listed in the plaint cannot strictly qualify to be dependents. The appellant cited the case of ***David Kajogi M’migaa vs Francis Muthomi (2012) e KLR*** where dependency ratio of 1/3 was adopted where the deceased was not married and was survived by his father who was aged 52 years. 6. On the multiplicand, it was submitted that although it was alleged that the deceased was earning 15,000/= per month from his work as a *‘boda boda’* rider, no evidence was tendered to prove the same. The appellant urged the court to apply the minimum wages prevailing in the year 2018 which was in force at the time of the deceased death which was Kshs. 7,240.95 for unskilled employee under Legal Notice No. 2 of 2019, Regulation of Wages (General) (Amendment) Order, 2018. 7. The appellant did not challenge the special damages awarded by the trial court. **Respondent Submissions.** 1. On pain and suffering, the respondent submitted that an award under this head depends on the period the deceased endured pain before succumbing to the injuries. Citing the case of ***Onkoba vs Ali & Another (Both suing as legal representative of the estate of the late Lukman Hamisi Mwamshindo (deceased) (2024) KEHC 11265 (KLR)*** the respondent urged the court to uphold the award of Kshs. 50,000/= which was awarded in the cited case where the deceased died shortly after the accident. 2. The respondent did not submit on loss of expectation of life. 3. On multiplicand the respondent submitted that the deceased was aged 22 years and was *‘boda boda’* taxi earning approximately Kshs. 15,000/=. The respondent cited the case of ***Jacob Ayiga Maruja & Another vs Simeon Obayo (2005) e KLR*** where the Court of Appeal held that lack of documentary proof of the deceased earning especially in informal sector should be a reason to deny the dependents compensation where there is credible oral evidence to reasonably estimate the deceased’s income. It was submitted that the trial court appreciated this reality in adopting a multiplicand of Kshs. 15,000/=. 4. On the multiplier the respondent cited the case of ***Ruth Wangechi Gichui vs Nairobi City County (2013) e KLR*** where the deceased was aged 22 years and the court adopted a multiplier of 30 years after taking into account the uncertainties of life. 5. On dependency ratio, the respondent cited the case of ***Silvester Muema Musyoka vs Anna Kamanthe Nyamai (Suing as the legal representative of the estate of Paul Musyoka Nyamai (deceased) (2021) e KLR*** where the court revised dependency of 2/3 to dependency ration of 1/3 where the deceased was not married but he was supporting his mother and siblings. 6. The respondent urged the court to dismiss the appeal and uphold the judgment of the lower court. **Analysis and determination.** 1. This appeal is on quantum of damages and this being the first appeal, the duty of this court is to re-evaluate and reassess the evidence tendered before the trial court with a view of reaching its own conclusion on the issue of quantum. 2. It is trite law that assessment of damages is within the discretion of the trial court. The appellate court should only interfere where the trial courts, in assessing the damages erred in principle by either taking into account an irrelevant factor or left a relevant factor or that the award was too high or too low as to amount to erroneous estimate or that the assessment is based on no evidence. These principles w have been restated in numerous case law among them the case of ***Kemfro Africa Ltd t/a Meru Express && Another vs A.M Lubia & Another (1982-88) 1 KAR 727).*** 3. In the instant case the appellant has challenged the trial court award of Kshs. 50,000/= for pain and suffering submitting that the same was not justified in the circumstances of this case as the same was inordinately high. 4. The principle governing the award of damages for pain and suffering under the Law Reform has been restated in numerous decisions of the High Court and Court of Appeal. In then case of ***Hyder Nthenya Musili & Another vs China Wu Yi Limited & Another (2017) e KLR*** the court stated: ***“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as result of his injuries in the period before death… The generally accepted principle therefore is that very nominal damages will be awarded on these two heads*** ***of damages of 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. Further in the case of ***West Kenya Sugar Co. Ltd vs Philip Sumba Julaya (Suing as the administrator and personal representative of the estate of James Juluya Sumba) (2019) e KLR*** the court stated: ***“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”*** 1. In the instant case, the parties did not give *viva voce* evidence in court. It appears after the consent on liability was recorded they proceeded and filed submissions. The only evidence available is the statements recorded and filed by the parties. According the statement of respondent, which was not tested in cross-examination, it is only stated that the deceased was rushed to the hospital and later he was informed that he has passed on. It is clear from the statement of the respondent the deceased died on the same day of the accident. In the circumstances and guided by the principles set out in the case law of award of damages for pain and suffering, I have no reason to interfere with the decision of the trial court in awarding Kshs. 50,000/= under pain and suffering. 2. On the award of damages for loss of expectation of life, and in the same breath considering the above cited case law, the conventional award for loss of expectation of life of Kshs. 100,000/= awarded by the trial court was reasonable and I have no reason to interfere with it. 3. of the Act provides: ***“Every action by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought.”*** 1. In the case of ***John Mungai Kariuki & Jane Mburu (Suing as legal representative of the estate of Francis Muchiri Kariuki (deceased) vs Kaibei Kangai Ndethiu & 2 Others Kiambu Civil Appeal No. 79 of 2018* D.S Majanja J** observed that: ***“The Fatal Accident Act was enacted to provide a statutory cause of action for the benefit of a specific and named class of person who were dependent of the deceased prior to his death at hands of the tortfeasor. The Law Reform Act was enacted to provide for survival of a certain cause of action upon death of the deceased and thus enable the estate of the deceased person to sue for damages.”*** 1. According to the plaint, the respondent pleaded particulars under Fatal Accident Act and Law Reform Act and averred that the action is brought on his behalf and Dominic Muendo Mwangangi (brother), Victoria Mbinya Mwangangi (Sister), Joseph Musyoka Kanini (brother) and Fridah Mueni Kanini (sister) who are all brothers and sisters of the deceased. 2. Further in the submissions before the trial court the respondent extensively submitted under the heading of loss of dependency leaving no doubt that the respondent’s claim was under the Fatal Accident Act. Even the trial court judgment was premised on the claim having been brought under the Fatal Accident Act. 3. As provided for under Section 4(1) of the Fatal Accident Act brothers and sisters of the deceased are not dependents for the purposes of the Act. The language of the Act is very clear that it cannot be expanded to include siblings of the deceased. 4. In my view and without delving to the ground on whether the trial court erred in the choice of the dependency ratio, the multiplicand and the multiplier, I do not think, in view of the provision of Section 4(1) of the Fatal Accident Act, there was any basis for the award of damages under The Fatal Accident Act. The same is set aside. 5. From the foregoing and save for the error of the learned trial magistrate awarding damages under the Fatal Accident Act, I cannot fault the him in respect of other awards. Therefore, the awards of Kshs. 50,000/= for pain and suffering, Kshs. 100,000/= for loss of expectation of life and Kshs. 550/= special damages are hereby upheld subject to liability agreed between the parties. 6. To that extent the appeal succeeds. I shall however not make orders as to costs. Nonetheless the respondent shall have interests at court rates. **Dated, signed and delivered virtually this 19th day of August, 2026.** **Hon. Francis Kyambia** **Judge of the High Court.**