Ahmed Ali Mahomed & 2 others v Celina Njeri Mwenge (suing As Legal Representative and The Administrator of The Estate of Benard Munuve Mwenge Deceased)

The particulars of the negligence were pleaded, that the vehicle was being driven at an excessive and dangerous speed in the circumstances. 3. The respondent filed the suit pursuant to the Fatal Accidents’ Act for the benefits of his dependants and under the Law Reform Act for the benefit of the estate of the deceased. The defendants denied liability in their statement of defence and urged the court to dismiss the suit with costs. 4. The parties agreed on the issue of liability and recorded a consent in the ratio of 75:25 in favour of the respondent. The trial court rendered its considered Judgment and awarded damages as follows: 1. Pain and suffering – 50,000/= 2. Loss of expectation of life – 100,000/= Under Fatal Accidents Act 3. Loss of dependency – 3,040,000/= 4. Special damages – 47,130/= Less the contribution by the deceased, the amount payable was 2,427,847.50. 5. The appellants were dissatisfied with the Judgment and filed this appeal based on the following grounds on the memorandum of Appeal dated 21/06/2023: 1. That the learned trial magistrate erred in law and fact by making an award of Kshs. 50,000/ = under general damages for pain and suffering which award was not supported by evidence, was manifestly excessive, an erroneous estimate altogether and in sharp contradiction with the generally set principles for an award under this head, a decision that was manifestly unjust and resulted into a miscarriage of justice. 2. That the learned trial magistrate erred in law and fact by failing to judiciously analyze the evidence on record, appellant’s submissions on record as well as the authorities cited thereof and filed hence arriving at a finding on quantum that is not supported by the law and evidence and thus untenable and unjust to the appellants. 3. That the learned trial magistrate erred in law and fact by making an award of Kshs. 100,000 under the heading; “loss of expectation of life” which award was manifestly excessive and an erroneous estimate founded on irrelevant facts, no evidence and a misapprehension of the evidence at hand as well as decided case law. 4. That the learned trial magistrate erred in law and fact by making an award of Kshs. 3,040,000/ = for loss of dependency which award was not supported by evidence, was based on presumptions, irrelevancies, wrong and strange principles of the law as applied by the learned trial magistrate and same resulted into an award that was unjustifiable, manifestly excessive and an erroneous estimate altogether. 5. That the appellant shall upon receipt of the typed proceedings file a supplementary memorandum of appeal to include other grounds and reasons that may become apparent herein. 6. The appellant prays that the appeal be allowed, the Judgment of the learned Magistrate be set aside and the court to re-assess the award of damages and make an award as it deems fit. 7. The appeal was opposed and the court directed that it be canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4390/eng@2026-02-10 2

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Appellant’s Submissions 8. This appellant submits that this being a first appeal the role of the court is to re-evaluate the evidence, re-assess and re-analyze the evidence on record and determine whether the conclusions reached by the learned trial magistrate are to stand or not and give reasons either way, the court must also be cautious of the fact that it never heard or saw the witnesses unlike the trial. 9. He relies on Dyer and Blair Investment Bank Limited v John Kungu Kiarie & CPC (2017) eKLR. He also relies on Kenya Ports Authority v Kuston (Kenya) Limited (2009) EA 212 where the Court of Appeal held inter alia that: “ On a first appeal from the High Court, the Court of Appeal should 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. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 10. On the guiding principles for interfering with an award of damages the applicant relies on the case of Kemfro Africa t/a Meru Express Services v A.M Lubia & Another (1987) KLR 27 cited with approval in Nihon Complex Ltd & Thomas Njoroge Kirima v Joseph Kiplagat Towett (2019) eKLR where the court laid down the principles upon which the court may interfere with the quantum of damages as follows: “ 1. Either that the Judge took into account an irrelevant factor or left out of account of relevant one. 2. That the amount is so inordinately law or so inordinately high that it must be wholly erroneous estimate of damages. 3. That the trial court misapprehended the principles applicable in the assessment of damages.” 11. On whether the trial magistrate erred in law and fact by making an award on quantum of damages that was inordinately high so as to warrant interference by the appellate court it is submitted the sum of Kshs. 50,000/= for pain and suffering was not supported by any evidence and was manifestly excessive and inconsistent with the general principles for an award under the head and is manifestly excessive and inconsistent with the general principles for an award under this head. That the deceased died instantly. He relied on the case of Put SaraJevo Gen. Engineering Company Ltd v Esther W. Njeri & Johson Mwangi Gucha & 2 Others 2014 eKLR where the court stated that where the death arises instantly there is no basis for an award of pain and suffering. 12. He further relies on the case Hyder Nthenya Musili & Another v China Wuyi Limited & Another (2017) KLR where the court stated that: “ As regards damages awarded under Law Reform Act, the Principle is that damages for pain and suffering are recoverable if the deceased suffered pain and 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; damages if 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/= with higher damages being awarded if the pain and suffering was prolonged before death.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4390/eng@2026-02-10 3

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13. He submits that Kshs. 10,000/= was sufficient for pain and suffering. For loss of dependency the learned magistrate applied the multiplier approach. For loss of dependency, it was pleaded that the deceased was a business man and boda boda rider earning Kshs. 20,000/= but the witness statement stated that he was a trained driver doing driving contracts among other casuals, a fact that was contradictory. 14. He relies on Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased (2020) eKLR the High Court held: “ Where there is no proof of salary or employment the court should not wary into describing to a figure so as to come up with a probable sum to be used as a multiplicand. The trial magistrate ignored the principles elucidated in Mwanzia v Ngalali Mutua Kenya Bus Ltd and quoted in Albert Odawa v Gichumu Githenji NKU HCCA No. 15 of 2003 (2007), KLR, Justice Ringera was of the following view;” "The multiplier approach is just a method f assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be a sacrifice justice on the altar of methodology, something a Court of Justice should never do.” 15. On the issue of dependants it is submitted that only the mother qualified to be a dependant as Section 4 Fatal Accidents Act provides that: “ Every action brought by virtue of provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so cause, 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 of the persons respectively for whom the claim is brought.” The appellant submits that a global figure should have been awarded as the deceased’s income was not known. He proposes a sum of Kshs. 600,000/=. Respondent’s Submissions 16. For the respondents it is submitted that the appeal does not challenge liability. He submits that Kshs. 50,000/= for pain and suffering awarded by the learned magistrate was within the range of the conventional figure of Kshs. 50,000/= to 100,000/= submitted by the appellant while relying on Hyder Nthenya Musili & Another v China WU YI Ltd & Another. That the learned magistrate exercised her discretion and there would be no basis for this court to interfere with the award. On the award of loss of expectation of life, it is submitted that the appellant had proposed Kshs. 80,000/= in the Lower Court. The appellant has proposed a conventional figure of upto Kshs. 100,000/= and there is no basis for faulting the learned magistrate. 17. On loss of dependency, it was submitted that the witness statement was clear that the deceased was a trained driver who was waiting to join University. That he was doing various jobs. The deceased used to earn Kshs. 20,000/= and such income was reasonable. That the learned magistrate was right https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4390/eng@2026-02-10 4

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in her exercise of discretion adopt a multiplicand and multiplier in arriving at the award for loss of dependency. He prays that the appeal be dismissed. Analysis and Determination 18. I have considered the proceedings before the trial court, the Judgment, the memorandum of appeal and the submission. The issues for determination is whether I should interfere with the award of damages. The appeal is on quantum of damages. It is a well settled principle by a line of authorities from this court and the Court of Appeal that the awards of damages is an exercise in judicial discretion and an appellate court will not normally interfere with the awards unless its shown that the Judge took into account an irrelevant factor or left out an irrelevant one, or that the amount is so inordinately high that it must be wholly erroneous estimate of damages or that the trial Judge misapprehended the principles applicable in the assessment of damages. 19. See Butt v Khan (1991) KLR 349 and Kemfro Africa t/a Meru Express Services v Lubia (supra). It is also trite that there is need for uniformity in the award of damages for similar injuries. In Odinga Jacktone Ouma v Moureen Achieng Odera (2016) eKLR the court stated that comparable injuries should attract similar awards. I note that the learned magistrate awarded Kshs. 50,000/= for pain and suffering and Kshs. 100,000/= for loss of expectation of life. The counsel for the applicant relied on Hyder Nthenya Musili & Another v China WU YI Limited where it was held that the conventional awards for loss of expectation of life is Kshs. 100,000/= and for pain and suffering Kshs. 10,000/= to Kshs. 100,000/=. As it can be seen the learned magistrate exercised discretion and awarded damages which were within the range of the convention awards. The deceased must have suffered some considerable amount of pain as death was due to severe pneumohemothorax due to Ruputure Liver (sic). 20. He was entitled to an award of damages for pain and suffering. I find no reason to interfere with the exercise of discretion by the learned Magistrate, the awards were conventional. On the award for loss of dependency, this is not an automatic award. The party has a duty to proof dependancy. Section 4 of the Fatal Accidents Act (Supra) lists the dependants who can claim and be awarded damages for loss of dependency. This include, wife/husband, parents and children. Brother and sisters of a deceased person are not dependants under the Act. The plaintiff in the lower court had the burden to prove that there were dependants of the deceased who had to be compensated with an awards of damages. The only dependant who would be considered in this case is the mother of the deceased. 21. On multiplier and multiplicand, it requires that the income of the deceased be proved on a balance of probability to be used as the multiplicand and a multiplier based on a number of years that the deceased would be expected to live considering the vagaries of life. 22. The respondent did not prove the income of the deceased on a balance of probabilities. It is well settled that where the income is not proved, the court may apply a global sum approach to assess damages for dependency without insisting on the amount of annual or monthly dependency. See Ringera J in Mwanzia v Ngalali (supra). The court of Appeal in Francis Righa v Mary Njeri (suing as the legal Representative of the estate of James Kariuki Nganga (2021) eKLR stated that the choice of multiplier and multiplicand, we take it from the decision of the court in the case of Roger Dainty v Mwinyi Omar Haji & Another 2004 that to ascertain a reasonable multiplier in each case the court should consider relevant factors like the income of the deceased, the kind of work he was engaged in before his death, the prospects of promotion and expectation of working life. 23. The appellant urged the court to find that the award of global sum would be appropriate since the income was not proved. See Rishi Hauliers Ltd v Josiah Oundi Onyanja (2015) eKLR. On the other hand, the respondent submitted that Kshs. 20,000/= per month is reasonable considering that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4390/eng@2026-02-10 5

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deceased was twenty-two (22) years old at the time of his death. I am inclined to agree with the counsel for the respondent that earnings of Kshs. 20,000/= per month is reasonable. It implies a daily income of Kshs. 700/= which I agree is reasonable. The court should not insist on strict proof where it claimed that a person was engaged in casual jobs in view of the nature of labour market in the County. The Government sets minimum wage guidelines which the court can fall back on when determining the income. 24. I find that the assessed income of Kshs. 20,000/= by the learned magistrate is reasonable and I have no reason to interfere with exercise of discretion by the learned magistrate. I will apply an income of Kshs. 20,000/= per month and apply life expectation of eighteen (18) years considering the age of the deceased and life expectation and the vagaries of life. This would come to 20,000 X 1/3 X 12 X 18 = 1,440,000/= Less 25% respondents’ contribution = 360,000/= = 1,084,000/= In conclusion I award damages as follows: Pain and Suffering = 50,000.00 Loss of expectation of life = 100,000.00 Loss of dependency = 1,440,000.00 Less 25% Respondents Contribution = 360,000.00 Special Damages = 47,130.00 Total = 1,281,130.00 I award the respondent half the costs of the Appeal and in the Lower Court proceedings. DATED, SIGNED AND DELIVERED AT KITUI THIS 10TH DAY OF FEBRUARY 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4390/eng@2026-02-10 6

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