Osman Abdulaziz v Joyce Akinyi Odhiambo and & 1 other

4. The Plaintiff called 2 witnesses. The traffic police officer and the 1st Plaintiff. The Defendant closed his case without calling any witness. The Trail court upon considering the evidence entered judgment in favour of the Plaintiffs as hereunder; a. Loss of dependency Kshs. 800,000/= b. Loss of expectation of life Kshs. 100,000/= c. Pain and suffering Kshs. 50,000/= d. Funeral expenses Kshs. 30,000/= e. Obtaining grant Kshs. 135,780/= Total Kshs. 1,085,780/= 5. Being dissatisfied with the said judgment, the Defendant filed this appeal through the Memorandum of Appeal dated 09/03/2022 on grounds inter alia that the trial court erred in fact and in law by failing apportioning 100% liability against the Appellant, and misdirecting itself by proceeding on wrong principles when assessing quantum hence awarding the general damages that were inordinately high. The prayed that the appeal be allowed and the lower court suit be dismissed with costs. 6. It is important to note that the Record of Appeal filed by the Appellant was incomplete as it lacked a copy of judgment and decree of the court. The Plaint attached was the initial pleading and not the Amended Plaint. The Respondent came to the aid of the Appellant by filing the Supplementary Record of Appeal which includes the above mentioned documents. In the absence of the Supplementary Record of Appeal, this appeal was ripe for dismissal. The appeal shall however be dealt with on merits. 7. The appeal is both on liability and quantum. Directions were taken to have the appeal disposed off by way of written submissions. Only the Respondents complied with the directives. 8. On liability, the Respondents submitted that the Appellant’s Statement of Defence in the lower court was just mere denials and he did not call any witness to adduce evidence challenging that of the Respondents. The finding on liability should not be disturbed. 9. On quantum, the Appellant has failed to show that the trial court misdirected himself in awarding the awards in the various heads. The same should not be disturbed. Analysis 10. 11. This Court has carefully considered the Record of Appeal and the Respondents submissions. The issues for determination are; a. Whether the appeal has merits b. Who bears the costs This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence and consider arguments by parties and apply the law thereto, and, make its own determination of the issue or issues in controversy. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies. (see Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4349/eng@2026-02-12 2

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12. I have perused the Memorandum of Appeal and the entire record of the Trial Court and I am alive to the fact that my task is to re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. 13. On liability, the Plaintiffs blamed the driver of the Defendant for moving suddenly thus running over the deceased before he finished boarding the vehicle. The defence did not call any evidence to challenge the Plaintiffs evidence on liability. The appeal on liability has no merits and it therefore fails. 14. On quantum of damages, for this court to interfere with an award, it must be satisfied that the trial magistrate has misdirected himself or herself in some manner and as a result arrived at a wrong decision, or that it was clear from the case as a whole that the trial magistrate was clearly wrong in the exercise of his discretion and that as a result there had been a miscarriage of justice. 15. In Ken Odondi & 2 Others vs James Okoth Omburah t/a Okoth Omburah & Company Advocates (2013) eKLR, the Court of Appeal stated: “ …The principles upon which this court can interfere with the exercise of discretion of the trial judge are well established. This court must, to interfere, be satisfied that the judge has misdirected himself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice…” 16. Under the head of pain and suffering, the Trial Magistrate awarded a sum of Kshs. 50,000/=. This court will, hence, be guided by Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows: “ …As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death…” 17. I thus find the award of Kshs. 50,000/= to be reasonable. On loss of expectation of life, the Trial Court made an award of Kshs. 100,000 I see no reason to disturb it. The award under this head stands. 18. On loss of dependency, this is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act which provides: “ Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought.” 19. The deceased was 32 years and the court proceeded to award Kshs. 800,000/= under this head. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4349/eng@2026-02-12 3

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20. The factors to be considered in determining an award for loss of dependency for a deceased person leaving behind dependents is the number of dependents, the age of the dependents and the level of dependency. The age at which the deceased died is also a relevant factor in my view. 21. I find no basis for interfering with the award as granted by the trial court. 22. I find the award on special damages to be well founded and I thus see no reason to disturb it. Furthermore, there was no appeal lodged on the item. 23. On costs, the same follows the event. This court reserves its discretion as to the award of costs. The appeal having no merits, costs are awarded to the Respondent. 24. The upshot of the foregoing is that the court renders itself as hereunder: a. The Appeal has no merits and is hereby dismissed. b. Costs to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of; Marara Advocate for the Appellant; Ms. Okumu Advocate for the Respondents; Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4349/eng@2026-02-12 4

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