Davis and Shritliff v Rachael Mutwa Muthangya Alias Rachael Mutwo Kaumo and Mutambuki Mutunga (suing On Their Own Behalf and As The Administrators of The Estate of The The Late John Muthangya Mutunga Alias John Muthanja Alias John Muthanje Mutunga Alias John Muthangya)

2. It was the contention by the respondents that he accident occurred due to negligence on the party of the part of the appellant’s authorized driver, employee, servant or agent. The deceased sustain injuries of polytrauma cerebral hemorrhage due to Hypovolemia as a result of the road traffic accident. The guilt was filled for the benefit of the defendants of the deceased and the estate that suffered loss and damage. The dependents were the widow, a daughter and two sons. 3. The appellant denied the claims and raised a defence of contributory negligence against the respondent. The appellant further denied that it was the registered owner of the said motor vehicle. It urged the court to dismiss the suit with costs. The matter proceeded before the learned magistrate and in his considered Judgment entered on liability in favour of the respondent as against the appellant in the ration of 80:20. 4. On general damages the learned magistrate awarded the respondent Kshs. 50,000/= for pain and suffering, Kshs. 100,000/= for loss of expectation of life and Kshs. 3,600,000/= for loss of dependency and Kshs. 496,320/= special damages less 20% being deceased’s contributions. 5. The appellant was dissatisfied with the said Judgment and filed this appeal based on the following grounds in the memorandum of appeal” “ a) That the learned magistrate, erred in law and in fact in disregarding the overwhelming evidence tendered by the defence in assessment of special damages and awarding damages under the head of loss of dependancy. b) Misdirected himself by failing to consider and apply some weight on the submissions filed by the appellant while arriving at the amounts awarded under special damages and loss of dependency. c) Erred in law and facts by relying on extraneous evidence in arriving at his decision on quantum. 6. The appellant prays that the appeal be allowed and the Judgment in Mwingi CMCC No. E025/2023 be either set aside or varied. That this court be pleased to assess downwards the quantum of damages that may be awarded to the respondent. That the respondent does pay the costs of this appeal and the costs in the lower court. The appeal was canvassed by way of written submission. The appellant’s contention is that the appeal is on quantum of damages. The appellant submits that the learned magistrate misapprehended the facts and the evidence adduced and as a result made an erroneous award under the Fatal Accidents Act and Law Reform Act. On the award of loss of dependency, the appellant contends that the award was not justified as there was no evidence that the deceased person had any dependants. That the court should not order any award under the head. 7. The respondent on the other hand submits that the respective damages awarded are not excessive. That the learned magistrate correctly directed herself brother-n-law and fact in arriving at the award. That the appellants have not demonstrated that the trial court misapprehended the facts and the evidence adduced. That the court did not consider an irrelevant factor in arriving at the award under the Fatal Accidents Act and Law Reform Act. On the awards of loss of dependency, the respondent contends that there was uncontroverted evidence to justify the award. Further the learned magistrate correctly considered the case law on the award and arrived at a fair decision. Analysis and Determination 8. I have considered the proceedings before the learned magistrate, the grounds of appeal and he submissions by the parties. The issue for determination is whether this court should interfere with the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19570/eng@2025-12-15 2

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award of damages by the learned magistrate. This is a first appeal. The Civil Procedure Act gives court jurisdiction to determine the Appeal on facts and law. 9. Section 78 of the Civil Procedure Act provides: “ Subject to such conditions and limitations as may be prescribed, an appellate court shall have power – 10. a. To determine the case finally; b. To remand a case c. To frame issue and refer them for trial d. To take additional evidence or to require the evidence to be taken e. To order a new trial 2) Subject to aforesaid the appellate court shall have the same powers an perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits therein.” On the other hand, the duties of a first appellate court have been laid down by various decisions of this court and the court of Appeal. In Selle -vs- Associated Motor Boat Company Limited (1986) EA 123 the court of Appeal stated that: “ an appeal from the High Court to the court of Appeal is by way of retrial and the principles upon which this court Acts 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 that 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 into account particular circumstances or probabilities, materially to estimate the evidence or if the impression based on demeanor of a witness is inconsistent with the evidence in the case in general.” Se also the case of Mwana sokoni -vs- Kenya Bus Service. 11. Appeal on Quantum It well settled law that an award of damages is an exercise of judicial discretion by the trial court and for an appellate court to interfere with that exercise, it must be shown that the learned magistrate took into account an irrelevant factor or left out of account a relevant one or that the amount awarded is so inordinately low or high that it must be a wholly erroneous estimate of the damages. The principles upon which an appellate court will interfere with an award of damages have been laid down by this court and the court of Appeal. In the case of Kemfo Africa t/a Meru Exporters Services & Another -vs- A.M Lubia & Another (1982-88) 1 KAR 727. The court stated that: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by trial Judge was held by the former court of appeal of Eastern t be that, it must be satisfied that either the Judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one or that, short https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19570/eng@2025-12-15 3

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of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 12. These are the principles which this court must apply in determining this appeal which is challenging the award of the quantum of damages. The courts have also held that the assessment of the quantum of damages is an exercise of courts’ discretion. In Loice Wanjiku Kagunda -vs Julius Gachau Mwangi C.A 142/2003 (UR) the court stated that; “ We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence 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 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 wrong principles (see Manga -vs- Musila (1984) KLR 25.)” 13. The Court of Appeal in Bashir Ahmed Butt -vs-Uwais Ahmed Khan (1982 – 88) KAR had stated as follows with regard to the issue of appeal on quantum of damages: “ An appellate court will not disturb an award of general damages unless it is so inordinately high or low to represent an entirely erroneous estimate. It must be shown that eh Judge proceed 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…” 14. The principles for compensation of personal injury are principally three-fold. That is; I. Compensation for the personal injury suffered – See Lord Dunedin in Admiralty Commissioners -vs- Valeria (Owners) (1922) 2A. C 242, 248. II. Comparative awards for comparative injuries – See Kagaragani -vs- Aya (1985) KLR 273 where the court of Appeal (Hancox, Nyarangi JJA and plat Ag. JA) it was held; “ In awarding damages for personal injury, the courts should consider that there is need to develop consistency in the awards and that the awards should be within the limits of decided cases and avoid the effect of making insurance cover and fees unaffordable for the public.” 15. These are the considerations that this court has to bear in mind. The court has duty to reconsider the evidence evaluate it and draw its own conclusions. On liability the respondent relied on the evidence of Rachael Mutwa Muthangya who testified that the deceased was her husband and that they had children, namely Elizabeth Kamene Muthangya, Jackson Mutunga Muthangya and Simon Kaumo Muthangya. It was her testimony that the deceased was working as farmer and businessman and used to earn Kshs. 30,000/= per month. 16. She did not however, support the claim with any evidence either documentary or oral. The learned magistrate relied on Jacob Ayiga Munga & Another -vs- Simon Obayo (2005) eKLR where it was held that where there is no written record of earnings it does not mean that he was not earning. The law is trite that he who alleges must proof. 17. Section 107 of the Evidence Act provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19570/eng@2025-12-15 4

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(2) 18. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person” The respondent had alleged that the deceased used to earn Kshs. 30,000/= from farming activities where he was cultivating, used to sell milk from his cows, sold maize, cow peas, beans. From these activities he used to contribute substantially to the maintenance of the aforesaid dependants. The learned magistrate considered this and relied on Jacob Ayiga Muruja Francis Karani -vs- Sinaeon Obayo (suing as the administrator of the Estate of Thomas Ndaya Obayo where the court of Appeal held that: “ In our view, there was more than sufficient material on record from which the learned Judge was entitled to, and did draw the conclusion that the deceased was a carpenter and that his monthly earnings were about Kshs. 4,000/= per month. We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount of strict proof for the damages claimed. Ground one of the grounds of appeal must accordingly fail.” 19. The learned magistrate applied the correct principles by relying on precedents to arrive at this finding. The award of damages is an exercise of discretion which must be done judicially. In this matter the learned magistrate exercised his discretion judicially by relying on a relevant precedence. 20. I find no reason to fault the learned magistrate. An appellate court will not interfere with the exercise of discretion merely because it would have decided the matter differently, it must be satisfied that the exercise of discretion was contrary to the laid down principles, or the award was too low or too high to present an erroneous award damages. This has not been proved. I have no reason to interfere with the award of damages. This appeal is without merits and is dismissed with costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19570/eng@2025-12-15 5

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