Njeri Mburu & David Mburu (suing As The Administrators of The Estate of Paul Kibe Mungai - Deceased) v Vicky Chelangat Aka Chelangat Vicky Ruttoh (sued In Her Own Capacity and In Her Capacity As The Administrator of The Estate of James Kipkemoi Ruttoh Aka James Kipkemboi Ruto - Deceased)

f. Any other relief that this Honourable court might deem fit taking into account the circumstances of the case. 2. The appellant’s case is that on or about 23rd February 2021, the deceased plaintiff was a lawful passenger in motor vehicle registration number KCF 871C jointly and/or severally owned by the respondent and a deceased driver. 3. That when the vehicle reached Sogea area along the Gilgil – Naivasha road, the deceased driver and/ or driver carelessly, negligently and/or recklessly drove, controlled and/or managed the subject vehicle causing it to collide with motor vehicle registration No KBW 768H/ZE 4442 Mercedes Benz Actros thus fatally injuring the deceased plaintiff. 4. The particulars of negligence attributed to the deceased driver are tabulated at paragraph 4 of the plaint. 5. The appellants averred that at the time of his death the deceased plaintiff was thirty (30) years old, married to one (1) wife and had three (3) minor children listed at paragraph 5 of the plaint. 6. Further, that the deceased plaintiff was an independent contractor and/or performed piece-work at Alihen Saw Mill Investment A.K.A Alihen Timber Yard and was earning between Kshs. 35,000 to Kshs. 50,000 per month which he used to maintain his family and/or dependents. 7. That as a result of the accident dependents have lost deceased’s the dependency and/or support. Furthermore, the 1st appellant lost the warmth, company, support, comfort and enjoyment from her marriage and companionship thus suffering loss of consortium and servitium. 8. However, the appellants’ claim was opposed by the respondent vide a statement of defence dated 6th April 2022. She denied all the averments in the plaint, in particular that, she is the registered and/or beneficial owner of the subject vehicle and that the deceased driver or any other driver was her agent, servant or employee and driving the subject vehicle. 9. The respondent further denied that the deceased plaintiff was a passenger in that vehicle, and that the fatal accident occurred as alleged. Similarly, the particulars of negligence attributed to the her and/or her driver, agent, servant or employee was denied. 10. However, the respondent pleaded that in the alternative and without prejudice basis that, if the accident occurred as the appellants may prove the same occurred despite the reasonable step and skills by the driver of the vehicle to avoid the accident and was therefore inevitable. 11. The respondent further averred in the alternative and without prejudice basis that, if the accident occurred at all, then the same was solely caused or substantially contributed to by the negligence of the driver of motor vehicle registration number KBW 768H/ZE – 4442 Mercedes Benz Actros. The respondent tabulated the particulars of negligence attributed to the said driver at paragraph 7 of the statement of defence. 12. At the close of the pleadings, parties entered a consent judgment on liability at the ratio of 85%:15% in favour of the appellants. The case proceeded to full hearing on the issue on quantum. The appellants’ case was supported by the evidence of (PW1) Naomi Njeri Mburu who adopted her witness statement as evidence in chief where she reiterated the averments in the plaint. 13. That the accident was reported at Gilgil Traffic base where was issued with an abstract which placed the blame of causing the accident on the deceased driver of the subject vehicle. She averred that she is unemployed and that the family wholly depended on deceased plaintiff to provide for the nuclear family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 2

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14. Notably the respondent did not call any witness in support of their case. 15. The parties subsequently filed their respective submissions. By a judgment dated 29th March 2023, the trial court entered judgment in favour of the appellant in the following terms: Liability ---------------------------- 85:15 Pain and suffering ---------------- Kshs. 10,000 Dependency ---------------------- Kshs. 1,402,608 Loss of expectation of life --------- Kshs. 100,000 Special damages--------------------Kshs. 122,550 Total --------------------------------Kshs. 1,635,158 Less Kshs. 100,000(loss of expectation of life) --- Kshs. 1,535,158 Less 15% contribution Grand Total ------------------------------Kshs. 1,304,884.30 16. 17. However, the appellants are aggrieved by the decision of the trial court and appeals against it on the following grounds: a. That the learned trial Magistrate erred in law and in fact by not properly, as expected and/or dutifully analysing and/or considering the pleadings, evidence, submissions, other materials on record and the applicable principles of law when reaching at his decision on quantum and damages awardable. b. That the learned trial Magistrate erred in law and fact in reaching his finding/award on damages that is not based on proper evaluation and consideration of the pleadings, evidence on record, submissions and the applicable law and principles for award of damages. c. That the learned trial Magistrate erred in law and in fact by awarding damages for pain and suffering, loss of expectations of life and loss of dependency that were manifestly, obviously and so inordinately low and not in tandem with supported by the materials, evidence and/or submissions on record. d. That the learned trial Magistrate erred in law and in fact by holding that there was no proof of the deceased’s earnings/income while arriving at his award on loss of dependency. e. That the learned trial Magistrate erred in law and in fact by using a figure of Kshs. 5,844.20 as deceased’s earnings while arriving at his award on loss of dependency. f. That the learned trial Magistrate erred in law and in fact by not making a determination on the claim for damages for loss of consortium/servitude. g. That the learned trial Magistrate erred in law and in fact by not awarding damages for loss of consortium/servitude. h. That the learned trial Magistrate erred in law and fact by exempting and/or deducting damages for loss of expectations of life before reaching at his final award. The appeal was disposed of vide of filing of submissions. The appellant in submissions dated 2nd July 2024, argued that the learned trial Magistrate in awarding Kshs. 10,000 for pain and suffering erred by firstly, failing to analyse the parties’ proposals and provide reasons for accepting or rejecting them, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 3

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contrary to the principle as stated in the case of; Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] eKLR. 18. Secondly, that the trial court failed to take into account inflation and the passage of time since the authorities relied on by the parties were decided which amounts to an error in principle. The appellants referred the court to the case(s) of; Kilonzo Mutunga v Landmark Holdings Limited [2016] eKLR and Eric Otieno Ayieko v Micheal Ngondo [2017] eKLR. 19. Thirdly, that it’s an established principle of law that an award must be fair compensation for both parties and that fairness involves equitable distribution, as held in the case of; Francis Omari Ogaro v JAO [2021] eKLR. 20. That the award of Kshs. 10,000 was plainly wrong considering that the award in the cited cases ranged between Kshs. 10,000 and Kshs. 50,000 before factoring inflation. That this is an error in principle and thus the court should interfere, as stated in the case of; Hellen Gathoni Mbuthia & another v Nelson Wachira Murage [2016] eKLR. 21. The appellants reiterated the submissions afore on award for pain and suffering in arguing on the award under the head of loss of expectation of life awarded at Kshs. 100,000. The appellant referred the court to the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLR where the court upheld the award of Kshs. 170,000 for loss of expectation of life where the deceased was aged 38 years old. The appellants further relied on the case of; Benson Musyoki Munyao& another v Omacha Enterprises Limited & another [2017] eKLR where the court held that the conventional award under this head is in the range between Kshs. 150,000 to Kshs. 300,000. 22. The appellants submitted that the trial court erred in finding that there was no proof of the deceased’s earnings and relying on minimum wage regulations when assessing the award of under loss of dependency. 23. That the appellants produced, by consent of the parties, a letter from the deceased’s workplace indicating that the deceased earned between Kshs. 35,000 and Kshs. 50,000 per month. Further the letter having been admitted by consent, it was protected and unassailable and could not be displaced by oral evidence or arguments and/or submissions as held in the cases of; Eldoret Express Company Limited v Nandabelwa (KEHC 3226 (KLR) (5 May 2022) and Kenya Power & Lightning Co Ltd v John Makori [2016] eKLR 24. Furthermore, that the income was corroborated by receipts including rent receipts of Kshs. 6,000 per month, school fees of Kshs. 8,600 per term, title deed, and eulogy all which demonstrates the deceased’s actual income and that it would be impracticable that the deceased’s managed these expenses on a salary of Kshs. 5,000 per month. Moreover, the use of a minimum wage of Kshs. Kshs. 5,844 violates the principle of restitutio in integrum. 25. The appellants faulted the learned trial Magistrate for arriving at two (2) different and conflicting multipliers of 20 and 30 years, which necessitates this court to arrive at an independent multiplier. The appellants urged the court to consider that the deceased was engaged in the informal sector that has no defined retirement age as held in the case of; Nelson Yabesh Bichanga v Mary B. Omari & Another [2012] eKLR, and that according to the World Health Organization (WHO), the life expectancy for men in Kenya is 65 years as stated in the case of; Mwenda v Mary Wanja M'Amanja [2020] eKLR. 26. On the failure of the trial court to award loss of servitium/consortium, the appellants argued that the award was pleaded in the witness statement of (PW1) Naomi Njeri Mburu which she adopted as her evidence in chief. Further that both parties submitted on the issue however, the trial court did not reach any finding on the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 4

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27. Lastly, the appellants submitted that the learned trial Magistrate erred in mathematically deducting the award for loss of expectation of life from the net award on other damages. 28. That there is no provision under the law for deducting awards made under the Law Reform Act from those under the Fatal Accidents Act. That all is required that the court take into account awards made under the Law Reform Act when assessing damages under the Fatal Accidents Act. The appellants cited the cases of; Kemfro Africa Limited t/a "Meru Express Services (1976)" & another v Lubia & another (No 2) [1985] eKLR and Antony Nyaga Njagi v Mohamed Ibrahim Abdirahmed [2018] eKLR and urged the court to set aside the deduction and reinstate the award. 29. However, the respondent in submissions dated 8th February 2024, argued that, the deceased having died on the spot the pain and suffering was not prolonged and therefore the award of Kshs. 10,000 awarded by the trial Court was sufficient. The respondent relied on the case of Kyle vs Munyili (Civil Appeal 6 of 2020 (2023) KEHC 15668 KLR where the Court awarded Kshs. 10,000 for pain and suffering where the deceased died on the spot. 30. On loss of dependency the respondent submitted that the appellants failed to prove by documentary evidence the earnings of the deceased. That in the case of, Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others HCCS No. 1233 of 2001 where it was stated that where a party fails to call evidence in support of its case the party’s pleading remain mere statements of fact. 31. That in any event the amount award of Kshs. 100,000 was sufficient. The respondent referred the court to the case(s) of, Rop & anothers vs Omondi & anothers (suing as the legal representative of the Estate of Omondi Odada (2023) KEHC 248; Atieno & another vs Onyangi & another (Suing as the legal representative of the Estate of Rose Akinyi Juma (2022) KEHC 16810 (KLR) and Hyder Nthenya Musili & another vs China Wu Yi Ltd & another (2017) eKLR where it was held that the conventional award for loss of expectation of life is Kshs. 100,000. 32. On loss of dependency, the respondent submitted that it was a question of fact as held by the Court of Appeal in the case of Jackline Mueni Nzika vs Jetha Ramhi Kerai C.A. No. 154 and 155 of 1996. 33. That dependency being a question fact it should be strictly proved. That in the instant case, the authenticity of the letter of employment produced by the appellants was questionable having been produced one (1) after the death of the deceased and was not stamped. 34. Additionally, from the letter it was evidence that the deceased was a casual labourer and could not be earning the amount pleaded. That the appellant having failed to prove the earnings of the deceased, the court ought to uphold the multiplicand of Kshs. 5,844.20 adopted by the trial court. 35. On the multiplier, the respondent submitted that the retirement age of civil servants is 60 years old while life expectancy is 50 years or less therefore court should take into account uncertainties and vicissitudes of life as held in the cases of Rose Munyasa & another vs Daphton Kirombo & another (2014) KLR and JPS vs Aga Khan Health Services Kenya & 2 others. 36. Further, there was an error on the dace of the trial court where the court determined that a multiple of 20 years was suitable but erred when calculating the loss of dependency by using 30 years as the multiplier. She urged the court to adopt the multiplier of 20 years. 37. The respondent urged the court to deduct the award under the Law Reform Act from the award made under the Fatal Accidents Act to prevent the appellants from benefit from double taxation and stated in the case of Maina Kainiaru & another vs Josephat Muiruki Wangunda Civil Appeal No. 148 of 1989. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 5

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38. Lastly, the respondent submitted that an award for loss of consortium or servitium is only viable where the spouse survives an accident and is impaired curtailing his sexual life and therefore the claim should fail. The respondent relied on the case of Innocent Ketie Makaya Denge vs Peter Kipkore Cheserek & another (2015) eKLR where the Court stated there is no law the provides for damages to a widow for loss of consortium and that it can only be subsumed in a claim instituted by the survivor of an accident. 39. At the conclusion of the arguments by the parties, I note that the role of the 1st appellate court as stated by the Court of Appeal in the case of; Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123, is to re-evaluate the evidence afresh and arrive at its own conclusion. 40. The court stated as follows: “ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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, this 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.” 41. As regards quantum, the law is settled that the appellate court will not interfere with the trial court’s decision on quantum unless in exercising that discretion the trial court misdirected itself in some matters and arrived at an erroneous decision, or was clearly wrong in the exercise of that judicial discretion which resulted into injustice as held in the cases of; Mbogo & another Vs Shah (1968) EA and Mkube -vs - Nyamuro 1983 KLR 403. 42. Further the Court of Appeal in the case of: Loice Wanjiku Kagunda vs. Julius Gachau Mwangi CA 142/2003 (unreported) stated as follows: “ We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Manga vs Musila [1984] KLR 257).” 43. To revert back to the matter herein, upon analyzing the evidence adduced, I note that the decision relied on to assess quantum on pain and suffering was delivered in the year 2020 and the awards for this claim generally range between Kshs 10,000 to 30,000. Consequently, I enhance the amount thereof to Kshs 30,000. 44. As for loss of expectation of life, the conventional figure is Kshs 100,000 and that is the amount that was awarded therefore, the sum is upheld. 45. In relation to loss of dependency, it is noted that the appellants produced a letter dated 12th January 2022, which states the deceased plaintiff used to be paid in cash upon completion of each independent contract/piece work and would get Kshs 35,000- Kshs 50,000 monthly depending on work done and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 6

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negotiated. Notably, in the year 2022 when payment was made either in cash or otherwise, there must have been evidence in form of inter alia; payment voucher or acknowledgment of cash. 46. Further there is no evidence on the monthly income of the deceased plaintiff or cash flow on daily basis, hence no proof of income of Kshs 35,000 to Kshs 50,000. As such trial court well guided to adopt minimum wages regulation. The ratio of 2/3 adopted is not in dispute 47. As regard the multiplier, it is in evidence that the deceased was aged 30 years. The trial court applied a multiplier of 30 years which is quite generous. Therefore, this court will not interfere with it and consequently the figure of Kshs 1,402,608 awarded for loss of dependency is upheld. 48. Similarly, as there was no cross petition on special damages nothing can arise on it, unless the appellants are aggrieved with the same which is not the case. 39. As regard the loss of consortium, it is noted that the trial court did not address it all. Therefore, this court cannot deal with it for several reasons; that the judgment is incomplete in that regard, and in the absence of judgment on that claim, the appellants should have moved the trial court to pronounce itself on the same before lodging this appeal. 40. It suffices to note that if this court were to evaluate that claim on merit it will exercising original jurisdiction which it does not have and if there is an appeal on this court’s finding, the Court of Appeal may face a challenge as to whether it is exercising jurisdiction as a first or a second appellate court. Consequently, no orders are made on that ground of appeal. It is the considered opinion of this court that liberty the appellant is at liberty to move the trial court on the same and revert if need arises. 41. Finally, the trial court did not substantiate why the amount awarded for loss of expectation of life was reduced from the final amount awarded consequently that order is set aside. 42. The upshot of the afore is that judgement is entered in favour of the appellants as against the respondents as follows: 43. Final judgment a. Liability 85:15% b. Pain and suffering…………………………. Kshs 30,000 c. Loss of expectation of life………………Kshs. 100,000 d. Loss of dependency…………………………. Kshs. 1,402,608 e. Special damages ……………………………Kshs 122,550 Total………………………………………………...Kshs 1,655,158.00 Less…………………………………………………. Kshs 198,618.96 Total sum………………………………………Kshs.1,456,539.04 39. The appellants are also awarded interest on the above sum from date of judgment in trial court, until payment in full. Further costs in the trial are awarded to the appellant and each party to meet their own costs of appeal DATED DELIVERED AND SIGNED ON THIS 3RD DAY OF NOVEMBER 2025. GRACE L. NZIOKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 7

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In the presence of: N/A for the appellant N/A for the respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19325/eng@2025-11-03 8

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