Jemimah Nditi Mwangi, Beatrice Wanjira Muturi & Wandungu Karungu (suing As The Legal Representative of The Estate of Joseph Muchoki Karuru - Deceased) v Joseph Muranguri Mwangi & 1 other

The appeal 4. On appeal, the Appellants vide their memorandum of appeal dated 25/6/2023 set out 3 grounds as follows: 1. The Learned trial Magistrate erred in law and fact in failing to consider adequately, or at all, the totality of the evidence that was tendered on quantum, and in so doing he arrived at an erroneous finding on quantum. 2. The learned trial magistrate erred in law and in fact in the manner that he analysed the Appellants claim for lost years as if though the Appellants were praying for damages under Fatal Accident Act. 3. The learned trial magistrate erred in law and in fact in failing to consider the Appellants’ submission on quantum and in so doing he arrived at an erroneous decision. Duty of the Court 5. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Oral Evidence 6. PW1 Jemimah Nditi Mwangi, one of the Appellants herein adopted her statement dated 26/1/2023 as her evidence in chief and produced the list of documents filed therewith as exhibits. She testified that, “Deceased was my brother. My brother was a farmer earning about Kshs. 30,000/= per month. He used to help me. He was not married. I pray for compensation.” 7. On cross examination, she stated that, “Deceased was aged 50 years old at the time of accident. Deceased used to take alcohol but he was not drunk that day as per the person who was with him. I have no documents to prove deceased’s income. Deceased was not married. I am aged 60 years old. My other sister and brother are aged. The driver of the motor vehicle was charged and I have given evidence in that case which is pending.” 8. In re-examination, she stated that, “Deceased was being paid in cash but he used to give me money. Deceased used to help me since my husband had a stroke. I testified in the traffic case.” 9. PW2 Simon Karuru Githagi adopted his statement filed on 13/1/2020 as his evidence in chief. He went on to testify that, “Deceased was walking off the road on the left while facing Karatina direction. The vehicle was heading the same direction. Deceased was ahead of me. I saw the vehicle hit deceased and threw him away off the road. The deceased was not drunk.” 10. On cross examination, he stated that, “The accident was at around 7.30 p.m. We were heading towards Karatina direction. I was not drunk. Deceased was not drunk. Deceased was not crossing the road. We did not attempt to cross the road. Deceased had already crossed the road and was hit after he had already completely crossed the road. I blame the driver. I have never being called to testify against the driver. I do not know whether the driver was charged.” 11. In reexamination, he stated that, “The accident occurred long after we had crossed the road and walked. The accident was not at the point where we crossed the road. I was the last one to cross the road. We were not drunk. Deceased was hit while off the road. “ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4478/eng@2026-02-26 2

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12. PW3 P.C Daisy Cherono from Sagana Traffic Section, produced the police abstract as exhibit 6. She testified that, “The accident occurred along Sagana-Karatina road at Karima area involving motor vehicle KBZ 645 B and a pedestrian Joseph Muchoki Kanni. The pedestrian succumbed to injuries.” 13. On cross examination, she stated that, “The Abstract states that matter is pending for investigations. I have no O.B. I cannot tell who was to blame for the accident.” 14. DW1 Joseph Muraguri Mwangi, the 1st Respondent herein adopted his witness statement dated 15/11/2022 as his evidence in chief. He went on to state that, “I work with Kenya power. The deceased was to blame for the accident.” 15. On cross examination, he stated that, “The accident occurred on 11/3/2018. I was the driver of the motor vehicle. The vehicle was owned by Kenya Power. The deceased sustained injuries. I was heading to Nyeri driving at between 75-80 Kph. There is no shopping centre nearby. The breaking distance of the motor vehicle is about 10 meters. The deceased landed on the side of the road i.e just at the edge of the road. The motor vehicle stopped on the road. I first saw the deceased just before we entered the road on the left side off the road. Deceased was running towards Karatina direction off the road. Deceased entered the road probably.to cross the road. Deceased jumped into the road. I have not stated in my statement that deceased was running. There was a motor cycle on the other side of the road. A vehicle had just passed on the other lane from Karatina towards Sagana. I swerved first to the right side and then to the left side. The point of impact was at the middle of my left lane near the white line. The motor vehicle did not go off to the road. I tried to brake though I have not stated as such in my statement. I tried to swerve first and then tried to brake. The swerving and breaking occurred simultaneously. The deceased jumped into the road while about 4 metres away from the motor vehicle. I did not see any other pedestrian other than the deceased and the motor cycle on the other side of the road.” 16. In re-examination, he stated that, “I tried to brake and swerve but it was too late. Deceased was running along the road and then suddenly into the road. I swerved to the right and then to the left but I did not go off the road. I cannot record everything in a statement. I did everything I could to avoid hitting the deceased.” Submissions 17. The Appellants cite Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, on the duty of the first appellate court. They urge that they were entitled to damages for lost years, as siblings of the deceased, and cite Ishmael Nyasimi & another v David Onchangu Orioki Suing As Personal Representative of Antony Nyabando Onchango (Deceased) [2018] eKLR and H Young & Company (EA) Ltd &another v Kago & another (Civil Appeal E369 of 2023) [2024] KEHC 9822 (KLR) (24 July 2024) (Judgment). They submit that they were entitled to damages under the Law Reform Act for lost years and beseech the court to award the Kshs.1,500,000/= assessed by the trial court. 18. The Respondents laud the trial court for properly considering the totality of the evidence presented on quantum and arriving at a well-reasoned and appropriate award. They urge that since the Appellants were siblings of the deceased, they were not dependants under section 4 (1) of the Fatal Accidents Act, and cite John Mungai Kariuki & another v Kaibei Kangai Ndethiu & 2 others [2020] KEHC 5379 (KLR), Pleasant View School Limited v Rose Mutheu Kitho & another [2017] KEHC 6675 (KLR). They fault the trial court for adopting the global as opposed to the multiplier approach, in its assessment of the sum it would have awarded for loss of dependency, and cite Tobias Odoyo Oburu v Jane Kerubo Miruka & another (suing as the legal representatives of John Onywoki Sanganyi (Deceased) & another [2018] eKLR. In their view, the trial court ought to have adopted the minimum wage for a general labourer of Ksh. 7,240.95 as the multiplicand, a multiplier of 6 years and a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4478/eng@2026-02-26 3

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dependency ratio of 1/3 and cite, Njoroge & another v Mohamed (Suing as the personal representative of the Estate of Ibrahim Omar-Ded) & 2 others [2025] KEHC 2009 (KIR). Analysis and determination 19. From the grounds of appeal as framed, the sole issue for determination is whether the quantum of damages was supported by the evidence on record. 20. This court has previously considered the principles for appellate interference with an award of damages by a trial court in Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR as follows: “ The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P. and Newbold, J.A. agreed) in Henry H. Ilanga v. M. Manyoka [1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v Lovell, [1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601.” 21. The evidence shows that the deceased died instantaneously, and this court is mindful that he undoubtedly experienced some degree of pain, however momentary. The court is therefore satisficed that the award of Ksh. 100,000 for pain and suffering was reasonable. 22. While the conventional figure awardable for loss of expectation is Ksh. 100,000, the trial court, in the exercise of its discretion awarded Ksh. 150,000. 23. The special damages of Ksh. 38,175 awarded by the trial court were specifically pleaded and strictly proved. 24. The crux of this appeal is the trial court’s refusal to make an award for lost years, on the ground that the deceased was survived by his siblings, who are not dependants within the meaning of Section 4 (1) of the Fatal Accidents Act. 25. The Appellants fault the trial court for misconstruing their claim as one for loss of dependency under the Fatal Accidents Act rather than lost years under the Law Reform Act. 26. Section 2 (5) of the Law Reform Act provides that – “ The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Act (Cap. 32) or the Carriage by Air Act, 1932, of the United Kingdom, and so much of this Part as relates to causes of action against the estates of deceased persons’ shall apply in relation to causes of action under those Acts as it applies in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4478/eng@2026-02-26 4

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relation to other causes of action not expressly excepted from the operation of subsection (1). ” 27. The distinction between the 2 awards was drawn by this court in Nyota Tissue Products v Benjamin Obonyo Mukati & 4 others [2020] KEHC 6345 (KLR) where it expressed thus: “ 24. In view of the trial court’s apparently innocent mistake in using, for the case herein of an eighteen old un-employed student, the general method for assessment of damages under Fatal Accidents Act for damages for what she called lost years [properly recoverable under Law Reform Act], I think it is convenient to discuss the correct position as regards award of damages for lost years and related loss of dependency. Other courts, with respect, have labored under the same misconception. (See Bosire, J. (as he then was) in Kakiki v Abdo & 2 Others (1990) KLR 327 cited below.) As I understand the terms, lost years refers to damages for loss of prospective earnings recoverable by a person who is injured in such a way as to shorten his earning capacity, recoverable by the person during his shortened life and, upon his death, by the Estate under the Law Reform Act as damages for lost years. Damages for loss of dependency is a right under the Fatal Accidents Act for benefit of the dependants of the deceased injured person... 28. The plaintiff herein was the deceased’s father suing as personal representative of the estate of his son who died in the traffic accident subject of the suit for damages under the Law Reform act and the Fatal Accidents Act , and the court does not find that in adopting a multiplicand of Ksh.10,000/- for an 18 year old Form 4 student died shortly before he completed his secondary school, and who, therefore, could be expected to have entered the job market at the very least in the level of minimum wage, and a multiplier of 35 bearing in mind the official retirement age of 60 years is plainly wrong. Although the court assessed the Fatal Accidents Act damages under a heading Lost Years [proper for damages under Law Reform Act] the same was calculated on the appropriate principles of the loss of dependency for the deceased’s dependants. The court, however, failed to discount the claimant’s living expenses, which courts have assessed at 1/3 of the earnings in cases of a male spouse with children, [I consider that for a child spending on his parents the position ought to be the reverse, spending 2/3 on himself and 1/3 on his parents], and treated the 10,000/- as the net wage which would have gone to the support of the deceased’s dependant parents, but in view of the modest earnings at minimum wage when the deceased may well have entered the job market at a higher rank, the effect on the quantum of such deduction from the modest wage, whose adoption as the multiplicand has taken care of life’s imponderables, did not result in so excessive an award as to invite interference by an appellate court, and may be overlooked.” 28. Had the trial court considered the Appellants’ submissions, particularly on lost years, it would likely have arrived at a different determination. 29. This court finds that the trial court fell into error by declining to make an award for loss years, and therefore, there is a basis for this court’s interference. 30. This court deems the assessed amount of Ksh.1,500,000 appropriate for lost years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4478/eng@2026-02-26 5

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Orders 31. Accordingly, for the reasons set out above, the court finds the Appellants’ appeal succeeds and is allowed in the following terms: 1. The Appellants are awarded Ksh.1,500,000 for lost years. 2. The other awards remain unchanged. 3. Costs of the appeal to the appellant. Order accordingly. DATED AND DELIVERED THIS 26TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi Maina for the Applicant. Mr. Ontita for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4478/eng@2026-02-26 6

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