High Court 19104 of 2025

4. That the learned trial Magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis a vis the Respondent’s claim. 5. That the learned trial Magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law. 3. The Appellant proposes that the instant appeal be allowed and the awards assessed in damages be set aside and that this court proceeds to reassess the same. 4. The appeal herein is only on the issue of quantum, particularly on the award of damages under the head of loss of dependency. Liability was by the consent of the parties apportioned at 70%:30% in favour of the Respondent. 5. The present appeal was canvassed by way of written submissions. Both sides complied to the court’s directions by filing their respective submissions. 6. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified. 7. In Selle, Sir Clement De Lestang observed that: “ This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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.” 8. The matter before trial court, a tortious liability claim, was commenced by the Respondent (the Plaintiff before the lower court) by way of a plaint dated 17th November, 2022. 9. The Appellant (the Defendant before the lower court) resisted the suit by filing a statement of defence dated 24th January, 2023. 10. The trial court heard the suit and delivered judgement on 12th September, 2024 in the following terms: a. Pain and suffering – Ksh.20,000/-. b. Loss of expectation of life – Ksh.100,000/-. c. Loss of dependency – Ksh.1,700,000/-. d. Special damages – Ksh.180,795/-. Total – Ksh. 2,000,795/-. Less loss of expectation of life – Ksh.100,000/-. Ksh.1,900,795/-. Less 30% - Ksh.570,238.50/-. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19104/eng@2025-11-03 2

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Total award – Ksh.1,330,556.50/-. Judgement is therefore entered in favour of the Plaintiff as against the Defendant in the sum of Ksh.1,330,556.50/-. The Plaintiff will have interest on above from the date of this judgement till payment in full. The Plaintiff is also awarded the costs of this suit at the agreed ratio. There be thirty days stay of execution. 11. Now to the record of the trial court, the Respondent’s evidence was that the deceased met his demise on 30th October, 2020 in a road traffic accident that occurred along Katito – Sondu Road, that involved the Appellant’s motor vehicle registration number KCY 557A, which knocked down the deceased who was a pedestrian walking off the road. The deceased died instantly. He was 11 years old, as per the certificate of death. 12. The Respondent produced the following documents in support of their case:Copy of the Respondent’s identity cards.Demand letter and statutory notice.Certificate of postage.Letters of Administration Ad Litem.Post mortem report.Certificate of death.Burial permit.Letter from the area chief, East Seme Location.Police abstract.Copy of records and receipt.Receipts for obtaining limited grant.Receipts in support of special damages. 13. The Respondent told the trial court that before meeting her demise, the deceased was of good health and was a hardworking and brilliant pupil with very good prospects for the future. 14. The Respondent stated that he presented the suit before the trial court for the benefit of the following:MAO Mother.MOO Father. 15. I have carefully perused and considered the record of the trial court, the grounds of appeal and the submissions by the two sides. The issues that emerge that I am to determine are as follows: 16. a. Whether the trial court properly assessed and awarded damages to the Respondent under the head of loss of dependency. b. Who should bear the costs of this appeal? Compensatory damages are awarded to a wronged party in exercise of the court’s discretion. The principles upon which an appellate court can interfere with judicial discretion were laid down in the case of Price & another v Hidler [1996] KLR 95 as follows: “ The court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.” 17. Further, in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR the Court of Appeal while discussing the principles upon which an appellate court may disturb an award of damages by an inferior court held that: “ …it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19104/eng@2025-11-03 3

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should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 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. There is also the authority of Mbogo & Another v Shah [1969] EA 93, where it was held, inter alia, that: “ An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.” 19. With the principles above in mind, I will with regard to the first issue for determination, determine whether the trial court properly assessed and awarded damages to the Respondents under the head of loss of dependency. Noting that the deceased was a minor of 11 years, the applicable head of damages ought to be lost years, rather than loss of dependency, as the deceased had no dependants. 20. Courts have held that where no evidence is provided as to the profession and/or occupation of a deceased and where there is no evidence on the earnings of a deceased, or where the deceased is a child and had no earnings, the multiplier/multiplicand method is not apt in assessing loss of dependency or lost years. 21. In the case of Mwanzia Ngalali Mutua v Kenya Bus Service & another (citation not available) Ringera J. (as he then was) expressed himself as follows; “ The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.” 22. In the decision of this court (C. Kariuki, J.) of David Mbuba & another v Victoria Mwongeli Kimwalu & another [2018] eKLR, the court held as follows: “ The multiplier approach was not suitable in the current case for the simple reason that the deceased’s earnings were not proved. It is clear that the Learned Trial Magistrate applied the correct principles and relied on relevant authorities in deciding to use the global approach.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19104/eng@2025-11-03 4

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23. Embracing the enlightenment from the decisions above, where the earnings of a deceased cannot be ascertained like was in the case before the trial court, or where the deceased was a minor who was dependent upon his parents, the multiplier/multiplicand formula is not suitable in assessing damages under the head of loss of dependency or lost years. The learned trial Magistrate therefore properly applied the global sum approach. 24. In determining the global amount to award under the head of loss of dependency (which, as I have said ought to have been lost years), the learned trial Magistrate rendered herself as follows: “ The Plaintiff testified that her 11-year-old son was a hardworking student with so much hope and a promising future.” 25. Considering the young age at which the deceased met her demise, and further considering that the trial court based its assessment on trends made by superior courts, I find no reason to fault the learned trial Magistrate. The Appellant has not demonstrated that in exercise of her discretion, the decision of the learned trial Magistrate was clearly wrong, because she acted on matters on which she should not have acted or because she failed to take into consideration matters she should have taken into consideration and in doing so arrived at a wrong decision. 26. In my view, it is not sufficient to merely state that the amount awarded was inordinately high or law without demonstrating that the trial court erred in principle. 27. In the result, I find that the appeal lacks merit and I proceed to dismiss it accordingly, save that the award made under loss of dependency will be deemed to have been made under lost years. 28. As for the second issue for determination, which is in respect of the costs of the appeal, Section 27 of the Civil Procedure Act dictates that the same ought to follow the event. The Appellant will therefore bear the Respondent’s costs of the appeal, which I assess at Ksh.30,000/-. 29. This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 3RD DAY OF NOVEMBER, 2025. JOE M. OMIDO JUDGE For The Appellant: Ms. Ogolla. For The Respondents: Mr. Okanda. Court Assistants: Mr. Ngoge & Mr. Juma. Mr. Okanda: On 30th July, 2025, we recorded a consent on the application dated 23rd July, 2025, that the same be held in abeyance. As the appeal is now determined, I pray that the security be released to us. Ms. Ogolla: I seek 14 days to get instructions from my client. Mr. Okanda: The client already deposited the money. Court: Stay is granted for 7 days. After the expiry of the 7 days, the security to be released to the Respondent if there will be no lawful impediment. JOE M. OMIDO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19104/eng@2025-11-03 5

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