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Court of AppealPartially AllowedCivil Appeal (Voi) – 2nd appeal to the Court of Appeal, Mombasa

Mzame v Lalu (Suing as the Administrator of the Estate of the Late Allen Warito Lalu) & another (Civil Appeal E077 of 2022) [2025] KECA 1742 (KLR)

Court of Appeal of Kenya
24 October 2025
4,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that fatal accident compensation is calculated from the deceased's age, not the dependants' ages.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Mombasa arising from a fatal road traffic accident of 16th April 2015 along Mwatate/Voi Road, in which the 1st respondent, administrator of the estate of Allen Warito Lalu, sued the appellant (beneficial owner) and the 2nd respondent (registered owner) of motor vehicle KBY 708Y under the Law Reform Act and the Fatal Accidents Act. The trial court found the appellant's driver solely liable and awarded damages including lost years of Kshs. 1,174,330. The High Court at Voi (A. Ong'injo, J.) upheld liability but reduced the multiplier from 25 to 20 years, cutting lost years to Kshs. 939,464. The appellant appealed on nine grounds challenging liability and quantum; the 1st respondent cross-appealed against the multiplier reduction and the refusal of costs of the first appeal. The Court framed five issues of law, its jurisdiction on second appeal being confined to points of law under Section 72(1) of the Civil Procedure Act. It held that the age of dependants is irrelevant in computing lost years and loss of dependency, which are pegged on the deceased's age; that dependency is a matter of fact to be proved by evidence and not pegged on the dependants' life; that the awards for pain and suffering and loss of expectation of life were modest and consistent with precedent; and that pleaded and uncontested special damages of Kshs. 22,050 could be awarded without strict proof as a matter of notoriety. The Court upheld the multiplier of 20 years, rejecting both the appellant's proposal of 12 and the respondent's insistence on 25. The appeal was dismissed; the cross-appeal succeeded only on costs, the appellant being ordered to bear the costs of the first appeal and of this appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the age of the deceased's dependants is a relevant factor in assessing damages for lost years/loss of dependency
  2. 2.whether dependency is a matter of fact, and whether it is pegged on the dependants' life
  3. 3.whether the award of loss of expectation of life, and for pain and suffering under the Law Reform Act and the Fatal Accidents Act were inordinately high
  4. 4.whether the learned Judge was at fault in upholding the trial court's award of special damages
  5. 5.whether the 1st respondent's cross-appeal has merit

Key legal issues

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01

Relevance of dependants' age in assessing lost years/loss of dependency

Holding

The age of the dependants is irrelevant; damages for lost years and dependency are pegged on the age of the deceased.

Reasoning

The Court examined the Fatal Accidents Act, which compensates persons for whose benefit the action is brought, but endorsed the High Court's observation that it is the age of the deceased that quantifies damages for loss of dependency. The multiplier approach is a practical method dependent on the deceased's age, dependency amount and expected length of dependency. Finding no wrong principle or inordinately high award, the Court faulted neither the Judge's reckoning of the deceased's age nor the reduced multiplier of 20.

p. 7
02

Whether dependency is a matter of fact pegged on the dependants' life

Holding

Dependency is a matter of fact to be proved by evidence and is not pegged on the dependants' life.

Reasoning

The Court adopted the persuasive High Court authority that dependency is always a matter of fact to be proved by evidence; a claimant must give some evidence of dependency and its extent. It then held that damages for lost years and dependency are pegged on the age of the deceased, not the dependants, agreeing with the learned Judge that the dependants' age is not the relevant factor.

p. 7
03

Whether awards for loss of expectation of life and pain and suffering were inordinately high

Holding

The awards of Kshs. 200,000 for loss of expectation of life and Kshs. 100,000 for pain and suffering were modest and consonant with recent precedent.

Reasoning

The Court endorsed the High Court's reasoning that awards where death occurs immediately after an accident are normally minimal, aligning with the conventional figures set out in Hyder Nthenya Musili v China Wu Yi, where nominal damages apply where death followed immediately and the conventional award for loss of expectation of life is Kshs. 100,000. The awards under challenge were found reasonable.

p. 7
04

Whether the Judge erred in upholding the award of special damages of Kshs. 22,050

Holding

No error: the special damages were pleaded and uncontested, and fall within the category of notoriety where strict proof may be relaxed.

Reasoning

Although the learned Judge treated the award as an oversight by the trial Magistrate, the trial court had in fact made a finding that the pleaded special damages were uncontested, reasonable and awarded as prayed. Relying on Capital Fish Kenya Limited, the Court held that pleaded and uncontested special damages of a common-notoriety nature (e.g., burial expenses) may be allowed without strict proof.

p. 8
05

Whether the cross-appeal had merit

Holding

The cross-appeal failed on the multiplier (20 years upheld) but succeeded only on costs of the first appeal.

Reasoning

The Court declined both parties' positions on the multiplier: the appellant's proposal of 12 and the respondent's insistence on 25. Taking the deceased's age of 30 years and comparative authorities where a multiplier of 20 was applied for a deceased aged 35, the Court found no fault with 20 years. On costs, since the 1st respondent substantially succeeded in the High Court appeal, he was entitled to those costs.

p. 9

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and it will not interfere with concurrent findings of fact unless the decision is perverse or the lower courts considered or failed to consider matters they ought not or ought to have considered
  • The age of a deceased's dependants is not a relevant factor in computing damages for lost years and loss of dependency; damages are pegged on the age of the deceased
  • Dependency is a matter of fact that must be proved by evidence
  • Special damages that were specifically pleaded and left uncontested may be awarded even if not strictly proved, as matters of common notoriety such as burial expenses

Court orders

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  1. 1.The appellant's appeal is dismissed
  2. 2.The 1st respondent's cross-appeal is allowed only to the extent that the costs of the 1st appeal to the High Court be borne by the appellant
  3. 3.The judgment and decree of the High Court of Kenya at Voi (A. Ong'injo, J.) in Civil Appeal No. E001 of 2020 dated 10th March 2022 is upheld, save that costs of the appeal therein be borne by the appellant
  4. 4.The appellant to bear the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Voi
Civil Appeal No. E001 of 2020
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal to the Court of Appeal on matters of law)

Relief refused

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Appellant's challenge to the findings on dependency, lost years, pain and suffering, loss of expectation of life and special damages

The Court found no error of law in the High Court's assessment; the awards were reasonable and consistent with precedent

p. 9

1st respondent's cross-appeal against the reduction of the multiplier from 25 to 20 years

The Court found no fault in the learned Judge's decision to apply a reduced multiplier of 20 years, noting comparative authorities where a multiplier of 20 was applied for a deceased aged 35

p. 9

Appellant's submission that a multiplier of 12 would have sufficed

No evidence showed the deceased could not have lived and worked for another 20 years

p. 8

Costs

The appellant to bear the costs of the appeal, the costs of the 1st appeal in the High Court, and the costs of the first appeal were awarded to the 1st respondent on his cross-appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we reach the inescapable conclusion that the appeal and the cross-appeal fail and are hereby dismissed, save that the cross-appeal is hereby allowed to the extent only that the costs of the 1st appeal to the High Court be borne by the appellant.
p. 9Final orders and disposition
Consequently, the judgment and decree of the High Court of Kenya at Voi (A. Ong'injo, J.) in Civil Appeal No. E001 of 2020 dated 10th March 2022 be and is hereby upheld save that costs of the appeal therein be borne by the appellant.
p. 9Upholding of the High Court judgment with variation on costs
The appellant do bear the costs of the appeal. Orders accordingly.
p. 9Costs of this appeal
the age of the dependants is not relevant in computing damages for lost years and loss of dependency, and that dependency is a matter of fact not pegged on the dependants' life. To the contrary, damages for lost years and dependency are pegged on the age of the deceased.
p. 7Assessment of lost years and loss of dependency
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
p. 5Scope of second appeals
We agree that special damages of Kshs. 22,050 were pleaded and remained uncontested even though not strictly proved.
p. 8Special damages pleaded and uncontested

Issues in the judgment

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minor

The judgment is internally inconsistent as to which court's authority is being quoted on the multiplier of 20 years: paragraph 39 attributes the comparative authorities to this Court's own consideration, yet the Court at one point states it differs from both parties while elsewhere endorsing the Judge without qualification; also, ground 7 of the High Court appeal grounds refers to 'the learned trial magistrate' when it means the trial magistrate's award on lost years under the Law Reform Act and Fatal Accidents Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mzame v Lalu (Suing as the Administrator of the Estate of the Late Allen Warito Lalu) & another (Civil Appeal E077 of 2022) [2025] KECA 1742 (KLR)", Case Analysis (2025). Civil Appeal (Voi) – 2nd appeal to the Court of Appeal, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1742/eng@2025-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.