Tiger Hauliers Logistics Ltd v Fredrick Mwavula Mwamburi & 1 other

4. This suit was heard in the trial court and judgment delivered on 25th September 2023 where judgment was entered as follows: (a) Loss of dependency Kshs. 2,040,000/= (b) Loss of expectation of life Kshs. 200,000/= (c) Pain and suffering Kshs. 70,000/= (d) Funeral expenses Kshs. 171,789/= Total Kshs. 2,481,789/= Liability at 100% against the defendant. Costs and interest of the suit to the Plaintiffs 5. Being dissatisfied, the Appellant filed this appeal through the Memorandum of Appeal dated 6th October 2023 on grounds inter alia that the learned Senior Resident Magistrate erred in awarding the Plaintiffs an excessive sum of Kshs. 2,040,000 for loss of dependency under the Fatal Accident Act when there was no plausible evidence tendered in respect of the deceased’s earnings. 6. That the learned Senior Resident Magistrate erred in holding that the deceased would be earning Kshs. 25,500 per month as a mechanic when there was no documentary evidence adduced of the earning, and therefore, the minimum wage of Kshs. 13,975.90 as per the Regulation of Wages Order 2018 ought to have applied while assessing damages for loss of dependency. 7. Further, that the learned Senior Resident Magistrate erred in awarding the Plaintiff a sum of Kshs. 70,000 for pain and suffering when there was clear evidence before him that the deceased died on the spot, and a sum of Kshs. 200,000 for loss of expectation of life without giving adequate reasons for doing the same. That the learned Senior Resident Magistrate erred in failing to properly consider all the evidence and submissions before him to make his findings. 8. The Appellant prayed that the appeal be allowed with costs, that the judgment dated 25th September 2023 be set aside or varied, and that the orders on costs be made in respect of the appeal and proceedings in the trial court. 9. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 21st May 2025 argued that this being an appeal against the award of damages, the principles to guide the court herein were set out by the Court of Appeal in Henry Hidaya Ilanga v Manyema Manyoka (1961) 1 EA 705 (CAD) which applied the rule laid down by the Privy Council in Nance v British Columbia Electric Railway Co. Ltd (4) [1951] A.C. 601 at p.613. The Appellant prayed that the court be guided by the decision of the court in Cecilia W Mwangi & another v Ruth Mwangi [1977] eKLR where the court cited with approval the case of Tayab v Kinanu (1982-88) 1KAR 90. 10. The Appellant submitted that the Respondents/Plaintiffs in their submissions in the trial court on the one hand proposed a sum of Kshs. 70,000 for general damages for pain and suffering, a sum of Kshs. 250,000 for loss of expectation of life, and a sum of Kshs. 2,754,000 for loss of dependency. That the Appellant/Defendant on the other hand, in their trial court submissions, proposed a sum of Kshs. 20,000 for general damages for pain and suffering, a sum of Kshs. 50,000 for loss of expectation of life, and a sum of Kshs. 559,036 for loss of dependency. 11. On loss of expectation of life, the Appellant argued that Kshs. 50,000 would suffice as reasonable compensation under the head, while on loss of dependency the Appellant made reference to Section 4 (i) of the Fatal Accidents Act which outlined who is permitted to benefit from the estate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4344/eng@2026-02-19 2

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12. The Appellant stated that each case of dependency has to be decided on its own merit. The Appellant submitted that the Respondents did not produce any evidence to show how much the deceased earned or any statement in regard to the capacity of the deceased to provide for the dependants. The Appellant reiterated that a multiplier of 10 years would be applicable taking into account the age of the deceased and the nature of his work. 13. The Respondents in their submissions dated 18th June 2025 argued that the court did consider the fact that there was evidence that the deceased was trained at Mwanjila Vocational Training Center and employed as a mechanic at a daily income of Kshs. 850. That the evidence was produced in court and the Appellant neither objected to its production nor challenged the same. That the amount would sum up to about Kshs. 25,500 monthly and it was on the said basis that the court proceeded to adopt a multiplier. 14. The Respondents stated that it is generally expected that any person employed should retire at the age of 60 years although being in the private sector, he could have worked past the years. That the Respondents nonetheless submitted for 27 years considering the deceased was 33 years old. 15. On loss of expectation of life, the court’s finding of Kshs. 200,000 based on a decision of 18 years ago is more than lenient to the Appellant considering the factor of inflation. For pain and suffering, the Respondents argued that the deceased died on the spot and that the case of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 others (2013) eKLR was decided 12 years ago with an award of Kshs. 50,000 having been made where the deceased died on the spot. The Respondents prayed for this court to affirm the award of Kshs. 70,000 under the head. Analysis 16. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … 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 …” 17. 18. I have considered the Record of Appeal dated 24th October 2024 and submissions by the parties. The issues for determination are: a. Whether the awards on quantum of damages were inordinate in the circumstances b. Who should bear costs The court in Butt v Khan [1978] KECA 24 (KLR) held 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.” 8. The Appellant is challenging the trial court’s award for pain and suffering, loss of expectation of life and loss of dependency. On pain and suffering, Appellant argued that Kshs. 70,000 was excessive https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4344/eng@2026-02-19 3

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considering the deceased died on the spot. In the case of Sukari Industries Limited vs Clyde Machimbo Juma Homa Bay HCCA No 68 of 2015 [2016] eKLR stated: “ On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs. 10,000/- to Kshs. 100,000/- over the last 20 years hence I cannot say that that the sum of Kshs. 50,000/- awarded under this head is unreasonable.” 19. This court therefore finds that an award of Kshs. 70,000 would be adequate compensation under the head. The award is not disturbed. 20. On loss of expectation of life, the Appellant disputed the award of Kshs. 200,000 on the basis that the trial court failed to give reasons for the same and that Kshs. 50,000 would have been adequate. The Respondents were of the view that the award by the trial court was lenient based on the cited authority which was decided 18 years ago, the award of Kshs. 200,000 by the trial court was reasonable. 21. On loss of dependency, the Appellant stated that there was clear evidence from the Respondents that the deceased was employed as a casual labourer. Therefore, the minimum wage of Kshs. 13,975.90 as per the Regulation of Wages Order 2018 ought to have applied while assessing damages under this head. 22. Damages for loss of dependency are calculated using a multiplier approach which considers annual earnings of the deceased, the expected remaining working years and dependency ratio. Courts have consistently held that where there is no documentary evidence of a deceased’s earnings, the minimum wage should be used as the multiplicand. The current case’s multiplier of 27 years appears to reflect the retirement age of 60 years. 23. The trial court applied a dependency ratio of 2/3, which is standard for cases where the deceased is the sole breadwinner. However, the Appellant argues that the ratio should be adjusted to 1/4, as the deceased’s parents were still capable of self-support. In Samuel Kabuthia Ndana (supra), the court acknowledged that dependency ratios must be assessed on a case-by-case basis, emphasizing the need to consider the dependants’ financial independence. This court is of the view that a dependency ratio of 1/3 would be fair. 24. Therefore, annual income of Kshs. 13,975.90 x 12 = 167,710.80, multiplier of 27 years and dependency ratio of 1/3 (167,710.80 x 27 x 1/3) = 1,509,397.20. Funeral expenses remain undisturbed. 25. On costs, the appeal being partially successful, each party to bear its own costs. Determination 26. In the circumstances, the award of the trial court is partly varied in the following terms: a. Quantum i. Pain and suffering Kshs. 70,000/= ii. Loss of expectation of life Kshs. 200,000/= iii. Loss of dependency Kshs. 1,509,397.20/= iv. Funeral expenses Kshs. 171,789/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4344/eng@2026-02-19 4

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b. Each party to bear their own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF FEBRUARY, 2026 .......................... HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: N/A by the Appellant Ms. Nduku Advocate for the Respondents Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4344/eng@2026-02-19 5

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