Kenya Ports Authority v Juma Khamisi Tengawanyo and Halima Salim (Suing as the legal Administrator of the Estate of Ali Juma Hamisi (Deceased) & 14 others

managed or controlled the Forklift registration No. KS 022 make Forklift Kone Krane that it lost control and violently knocked the deceased, occasioning him fatal injuries. 2. The Plaintiffs averred that the deceased was a sole breadwinner and was survived by his father aged 74 years, his mother aged 67 years, his widow aged 35 years, and two sons aged 10 years and 1 year. That prior to his death, the deceased was a young energetic man aged 34 years who was gainfully employed as a Clerk earning Kshs. 19,000 per month. The Plaintiffs pleaded special damages of Kshs. 67,555 being Kshs. 33,355 for funeral expenses, Kshs. 25,000 for Letters of Administration, Kshs. 9,000 for mortuary expenses, and Kshs. 200 for Police Abstract. 3. The Plaintiffs prayed for judgment against the Defendant for general damages under the Law Reform and Fatal Accident Act, burial expenses as proved at the hearing, special damages, costs and incidental to the suit, and interest at court rates. 4. In its Statement of Defence dated 28/02/2023, save for what was admitted, the Defendant denied each and every allegation in the Plaint. The Defendant averred that without prejudice to the denials, the accident was wholly/substantially contributed to by negligence of the deceased. The Defendant prayed for dismissal of the suit with costs/or alternatively a finding of contributory negligence be made against the deceased. Page 2 of 12

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5. Liability was entered by consent on the basis of 20:80 in favour of the Plaintiff against Defendants. Case closed and parties to file submissions. On General and Special damages, the court entered judgment as hereunder; i. Pain and suffering Kshs 30,000 ii. Loss of expectation of life Kshs 100,000 iii. Loss of dependency Kshs 3,952,000 iv. Special Damages Kshs 67,555 Total 6. Kshs 4,199,555 The above was subject to the 20% contributory negligence. Costs and interest were awarded to the Plaintiffs. 7. Being dissatisfied with the judgment, the Defendant/ Appellant appealed on general damages through the Memorandum of Appeal dated 13/09/2024 on the following grounds: (a) THAT the learned trial Magistrate erred in assessing damages and failed to apply the principles applicable in award of damages and comparable awards made for analogous case. (b) THAT the learned trial Magistrate erred in law and fact by failing to critically consider and evaluate the evidence placed before him and resultantly arrived at a decision which was not in tandem with the evidence collected. Page 3 of 12

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(c) THAT the learned trial Magistrate erred in law and in fact by failing to properly consider and analyse the Defendant’s submissions and hence arrived at a wrong determination on the aspect of quantum awardable to the Plaintiff. (d) THAT the learned trial Magistrate erred and misdirected himself in his assessment of damages awardable to the Plaintiff/Respondent by awarding damages that was manifestly excessive in the circumstances and which were manifestly incomparable to the current judicial awards for analogous cases. (e) THAT the learned trial Magistrate erred in law and in fact by failing to calculate and provide rationale for the global sum awarded under Loss of Dependency (f) THAT the learned trial Magistrate erred in law in failing to appreciate and accordingly apply the well-established principles applicable in a claim for negligence. 8. The Appellant prayed for orders that the judgment/decree of the court dated 15/08/2024 be reviewed and/or set aside and that costs of the appeal be borne by the Respondents. 9. The appeal was canvassed by way of written submissions. The Appellant in its submissions dated 18/08/2025 on loss of dependency submitted that the Respondents relied on a letter allegedly issued by the deceased’s employer Page 4 of 12

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indicating that the deceased earned Kshs. 19,000 per month. That a bare letter untested and unsupported cannot suffice as proof of earning particularly where it originates from a third party who was never called for examination. That the trial court ought to have reverted to the applicable minimum wage of Kshs. 13,572.90 to ensure consistency with established judicial practice. 10. On the multiplier, the Appellant stated that the trial court erred in adopting a multiplier of 26 years and that they ought to have considered the possibility of illness, loss of employment, reduced earning capacity or premature death from unrelated causes. Therefore, the adoption of a multiplier of 26 years for a 34-yearold was excessive. The Appellant urged the court to adopt a multiplier of 7 years. 11. On pain and suffering, the Appellant argued that an award of Kshs. 30,000 was excessive. That awards under this head are modest and depend on the length of time the deceased is shown to have endured pain between injury and death. That where death is instantaneous, courts award minimal sums. The Appellant proposed an award of Kshs. 10,000. 12. On loss of expectation of life, the Appellant submitted that the trial court awarded Kshs. 100,000 on the basis of the deceased age of 34 years. That however, age alone was not the decisive factor and that awards under the head have remained modest and conventional over time. The Appellant proposed that an award of Kshs. 60,000 would have been fair. Page 5 of 12

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13. The Respondents in their submissions dated 01/07/2025 argued the court was right in adopting a multiplier approach on loss of dependency as the deceased was 34 years old and would have worked up to 60 years, and he was married with children and 2/3 of his income would be used on his family. 14. The Respondents cited the cases of Joseph Gatone Karanja v John Okumu Soita & another, HCCA 172 of 2019 where the deceased was 34 years old and a multiplier of 26 years was adopted with multiplicand of 2/3, The Respondents maintained that taking into account the trial court multiplier of 26 years and the deceased profession as a tallying clerk, the trial court’s multiplier was fair in the circumstances. They also prayed that this court maintains the dependency ratio of 2/3. 15. The Respondent submitted on pain and suffering that the trial court awarded Kshs. 30,000 which was in line with the Appellant’s proposal. On loss of expectation of life, the Respondent stated that the trial court awarded Kshs. 100,000 under the head and proposed an awarded of Kshs. 200,000. 16. The Respondent therefore prayed for this court to dismiss the appeal, uphold the judgment of the trial court, and with costs. Analysis 17. 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: Page 6 of 12

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“… 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 …” 18. I have considered the Record of Appeal dated 23/04/ 2025 and rival submissions by the parties. The issues for determination are: (a) Whether the awards on quantum were ordinate in the circumstances (b) Who should bear costs 19. On pain and suffering, the trial court awarded Kshs. 30,000. The law is settled that awards under this head depend on the duration between injury and death. Where death is instantaneous, courts award nominal sums. In Sukari Industries Limited v Clyde Machimbo Juma [2016] KEHC 8728 (KLR), the Court of Appeal affirmed that: “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 Page 7 of 12

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accident. Higher damages will be awarded if the pain and suffering is prolonged before death.” 20. The record does not show prolonged suffering. However, there is no evidence death was instantaneous. Awards in recent decisions range between Kshs. 10,000 and Kshs. 50,000. An award of Kshs. 30,000 cannot be said to be excessive or based on wrong principle. This court declines to interfere. 21. On loss of expectation of life, the trial court awarded Kshs. 100,000. Awards under this head are conventional and moderate, and the awards should remain modest and must not result in duplication. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) the Court emphasized that: “This court will not interfere with the question of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred: Obongo v Municipal Council of Kisumu [1971] E A 91 at page 96, Letter H – I. Witu v Peake, (1913/1914) 5 EALR 17, and Marumba v Clark (1952) 19 EACA 60. The Judge said that he was anxious that the awards do not overlap and that there would be no double compensation. That was a correct direction having regard to the Law Reform Act, to the Fatal Accident Act, and to the facts. There can be no question of this court disturbing the award, which in the circumstances is Page 8 of 12

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modest. If A suffers a pecuniary loss, the same may properly and fairly be made good by a similar gain accruing to A from the same death: Rodah Kidede & Others v Piyush B Amoi Nairobi HCCC 85 of 1978 (unreported).” 22. Recent authorities show awards between Kshs. 100,000 and Kshs. 200,000 depending on age and circumstances. The deceased was 34 years old, a young man with family responsibilities. The award of Kshs. 100,000 is conventional and reasonable. I find no basis for interference. 23. On loss of dependency, this is the substantial award challenged. The trial court awarded Kshs. 3,952,000 using income of Kshs. 19,000 per month, multiplier of 26 years and dependency ratio of 2/3. The Appellant argued that the income of Kshs. 19,000 was based on a letter from the employer who was not called to testify. 24. The burden of proof lies on the claimant under Section 107 of the Evidence Act. Courts have accepted employer letters where uncontroverted. There is no indication the letter was objected to or challenged in cross-examination. Where evidence of income is available and unshaken, a court need not revert to minimum wage. This court therefore upholds the multiplicand of Kshs. 19,000. 25. The deceased was 34 years old. Retirement age is generally 60 years. The working life expectancy would be approximately 26 years. Page 9 of 12

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26. In Board of Governors of Kangubiri Girls High School & another v Jane Wanjiku Muriithi & another [2014] KECA 224 (KLR), the Court of Appeal upheld a multiplier of 24 years for a deceased aged 31. In Sidi Kazungu Gohu & another (Legal Representatives of the Estate of George Yongo Katana (Deceased) v Fatuma Abdi Mohamed & another [2021] KEHC 7854 (KLR), a multiplier of 24 years was adopted for a deceased aged 34. 27. While multiplier is discretionary and each case turns on its facts, it must reflect contingencies of life as held in Roger Dainty v Mwinyi Omar Haji & another [2004] KECA 147 (KLR) that: “The principles on which damages for lost years under Law Reforms Act are assessed are admirably articulated by Lord Scarman in GAMMEL V WILSON [1981] 1 All ER 578 at page 593 paragraphs g – j thus: “The problem in these cases which has troubled the judges since the decision in Picketts case, has been the calculation of annual loss before applying the multiplier (i.e. the estimated number of lost working years accepted as reasonable in the case). My Lords, the principle has been settled by the speeches in the House in Picketts case. The loss to the estate is what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at Page 10 of 12

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the time of death would suggest was reasonably likely to achieve. Subtle mathematical calculations, based as they must on events or contingencies for a life which he will not live, are out of place, the judge must make the best estimate based on the known facts and his prospects at time of death”. 28. A multiplier of 26 years assumes uninterrupted employment until retirement without discount for vicissitudes of life. Comparable authorities suggest 22–24 years would be more realistic. This court finds 26 years slightly excessive and therefore substitute it with 24 years, which reasonably accounts for contingencies. The deceased left behind a widow and two minor children, and elderly parents. A ratio of 2/3 is appropriate and consistent with established practice. It is upheld. 29. Recalculation is as follows: 19,000 × 12 × 24 × 2/3 = Kshs. 3,648,000 30. This court therefore substitutes the award of Kshs. 3,952,000 with Kshs. 3,648,000. 31. The final award is as follows: a) Pain and suffering – Kshs. 30,000 b) Loss of expectation of life – Kshs. 100,000 c) Loss of dependency – Kshs. 3,648,000 d) Special damages – Kshs. 67,555 Page 11 of 12

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Total = Kshs. 3,845,555 Less 20% contributory negligence: 20% of 3,845,555 = 769,111 Net Award = Kshs. 3,076,444 32. Accordingly, the appeal partially succeeds. Each party to bear their own costs. Dated and delivered virtually at Mombasa this 26th day of February, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Mr. Ahenda Advocate for the Appellant Ms. Okata Advocate for the Respondents Ms. Salwa, Court Assistant Page 12 of 12

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