Richard Wathome Mbithi & 1 other v Martha Katila Musembi & 1 other

Plaintiffs (Respondents), then the same was wholly or substantially caused by the negligence of the deceased who failed to take precaution to avoid the accident. 3. After the preliminaries; the matter proceeded for hearing and judgment was eventually delivered. The learned trial magistrate found the Appellants 100% liable and assessed damages as follows; Loss of expectation of life… kshs 120,000/= Loss of dependency… kshs 2, 760,000/= Pain & suffering… kshs 100,000/= Special damages………………………….kshs 174,325/= Total… kshs 3,154,325/= 4. 5. Aggrieved by the award, the Appellants filed this Appeal and raised the following grounds; a. The learned trial magistrate erred in law and fact by failing to properly scrutinize and evaluate the pleadings and submissions tendered by the Appellant and correctly relate the same to the case law cited therein and thereby failed to arrive at a fair and reasonable assessment on the issue of compensation to the Respondent. b. The learned trial magistrate erred in law and fact in using a multiplicand of kshs 15,000, the multiplier of 23 years and dependency ratio of 2/3 to assess the loss of Dependency at kshs 2,760,000/= which is inordinately high in the circumstances instead of kshs 7,000/= and multiplier of 20 years as submitted by the Defendant. c. The learned trial magistrate erred in law and fact and awarded the Plaintiffs inordinately high damages in loss of Dependency, Ratio of Dependency and Ratio of costs to be borne by each party considering the submissions filed by the Defendants. d. The learned trial magistrate erred in law and fact in finding 100% in occasioning the accident. e. The learned trial magistrate erred in law and departed and ignored the decided authorities relied upon by the Defendants without justification. Directions were given that the Appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions. The Appellants’ Submissions 6. With regard to liability, it was submitted that the principle of negligence remains the cornerstone in civil cases involving accidents. Reliance was placed on Kenya Wildlife Service v Rift Valley Agricultural Contractors Ltd (2018) eKLR where the Supreme Court of Kenya stated; “ Four key elements predominate in establishing a negligence claim-a duty of care, a breach of that duty, causation and damage. A defendant must owe a ‘duty of care’ to the person bringing the claim, in the sense that they fall within a class of interests which the law considers should be protected…There is breach of that duty involving a failure to take reasonable care. Causation must be proved and the type of damage alleged must be protected by the law.” 7. Reliance was also placed on Mutiple Hauliers (E.A) Ltdv Justus Mutua Malundu & 2 Others (2017) eKLR where the court (P.J Otieno) stated that; “Every driver on a public road is duty bound to be on the look out at all times to avoid possible injury and losses to other road users.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 2

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8. It was submitted that the duty of care is not limited to the insured driver but extends to all road users, each bearing a reciprocal obligation to exercise reasonable care. It was contended that the trial magistrate failed to consider this principle when apportioning 100% liability to the Appellants. 9. It was submitted that the deceased had a responsibility for his own safety and that by attempting to alight from a moving lorry, he voluntarily exposed himself to a clear and foreseeable danger. That, his failure to exercise reasonable care coupled with his disregard for traffic regulations ought to have been taken into account when assessing liability. That, under the principle of volenti non-fit injuria, a person who voluntarily exposes themselves to a risk due to their own negligence should not be permitted to seek compensation from another party. 10. It was submitted that the police abstract did not attribute blame to any party, which omission underscores the fact that the evidence on record did not conclusively establish the Appellants’ sole responsibility for the accident. Consequently, it was submitted that a fair finding would have been to share liability in the ratio of 50:50. 11. With regard to quantum, it was submitted that the general method of approach in assessing damages should be that comparable injuries should as far as possible be compensated by comparable awards. Reliance was placed on Penina Waithira Kaburu v LP; NYR HCCA 59 of 2016 (2019) eKLR where the court stated; “ As I have stated elsewhere, if not for anything else, the comparison is necessary for the purposes of certainty and uniformity; the award must as far as possible, be comparable to any other award made in the previous case where the injuries for which the award is made are relatively similar.” 12. With regard to pain and suffering, reliance was placed on Edner Gesare Ogega v Aiko Kebiba (Suing as father & legal representative of the estate of Alice Bochere Aiko-Dcd) [ 2015] KEHC 4250 (KLR) for the submission that; very nominal damages will be awarded if the death followed immediately after the accident and higher damages will be awarded if the pain and suffering was prolonged before death. 13. It was submitted that according to the evidence of PW2 which was corroborated by PW3, the deceased sustained severe head injuries and died instantly at the scene. Consequently, it was submitted that an award of kshs 50,000/= is fair and in line with comparable judicial precedent. 14. With regard to loss of expectation of life, reliance was placed on Mercy Muriuki & Anor v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the estate of Robert Mwangi (2019) KEHC 9014 (KLR) for the submission that the conventional award under this head is kshs 100,000/=. Further reliance was placed on Florence Awuor Owuoth vPaul Jackton Ombayo (2020) KEHC 4574 (KLR) where the court stated; “On loss of expectation of life, the general trend over time has been a figure between kshs 50,000/= and kshs 100,000/=. I will award kshs 80,000/=” 15. Consequently, it was submitted that the award of kshs 120,000/= was excessive and should be substituted with kshs 70,000/=. 16. With regard to loss of dependency, reliance was placed, inter alia, on Gitau (Suing as Administratrix Ad Litem of the Estate of Samuel Gitau Muthoni) vNgaruiya & Anor (Civil Appeal E057 of 2024) [2024] KEHC 16993 (KLR) (Civ) (17 October 2024) (Judgment) where the court opined that; “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 3

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and the level of dependency. The age at which the deceased died is also a relevant factor in my view.” 17. Reliance was also placed on Philip Musyoka Mutua v Veronica Mbula Mutiso (2013) KEHC 1563 (KLR) where it was observed that; “ Therefore, in the absence of evidence of monthly earnings of the deceased, the estimate would be like for any unemployed person where the rate set is usually like for a wage of an unskilled employee which by then stood at approximately 6,000/=.” 18. Further reliance was placed on Mrarama Mnthieri v Luke Kiumbe Muriithe (2015) eKLR where the Court of Appeal upheld the use of a global award approach as opposed to the multiplier approach that could be more speculative. It was submitted that where the earnings of the deceased were not established, the appropriate approach is a global sum award. 19. It was submitted that the deceased’s age was not established as no identification card or official document was produced. That, his age was only mentioned in a demand letter which cannot be used to establish the age of a person. Consequently, it was submitted that the trial court’s adoption of a multiplier of 23 years was erroneous and speculative especially considering the retirement age of 60 years and ordinary contingencies of life. 20. It was submitted that no documentary evidence was produced to prove deceased’s alleged income of kshs 20,000/= per month as a motor cycle rider. It was contended that in the absence of evidence, the alleged income cannot be used to compute dependency. Consequently, it was submitted that the excessive award of kshs 2,760,000/= should be substituted with a global award of kshs 500,000/=. 21. With regard to special damages, it was acknowledged that the awarded amount of kshs 174,325/= was duly supported by receipts produced in evidence. The Respondents’ Submissions 22. 23. The issues for determination were stated to be; a. Whether the Learned Magistrate erred in law and fact in the evaluation of the pleadings, evidence, submissions, and authorities cited by the parties. b. Whether the Learned Magistrate erred in apportioning liability by holding the Appellant 100% liable for the accident. c. Whether the Learned Magistrate erred in the assessment of quantum of damage. On whether the trial magistrate erred in evaluation of pleadings, evidence and submissions, it was submitted that the judgment on record demonstrates that the trial court exhaustively considered the issues raised by both parties before arriving at its decision. That, the court’s reasoning shows that it properly analyzed the pleadings, weighed the oral and documentary evidence presented, applied the submissions and authorities cited and reached conclusions consistent with law and fact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 4

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24. It was submitted that an Appellate court will only interfere with the judgment of the lower court if the said decision is founded on wrong legal principles or based on no evidence. That, this principle was stated in Mkube v Nyamuro [1983] eKLR at 403 where Kneller JA and Hancox Ag. JJA held; “ A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” 25. It was submitted that the principle of appellate restraint was further affirmed in Ayoti Distributors Ltd v Auma [2019] eKLR where the High Court reiterated that trial courts have the distinct advantage of observing witness demeanor and interference is warranted only where findings are plainly wrong, based on a misapprehension of evidence or arrived at through application of wrong principles of law. It was contended that in the instant appeal, the Appellants have not demonstrated such error. 26. It was submitted that the plaint set out with clarity the particulars of negligence attributable to the Appellants’ driver, including driving off before the deceased had safely alighted, failing to keep a proper lookout and failing to control the motor vehicle. That, the Appellants, in their Defence, denied liability and pleaded contributory negligence and the trial court correctly identified these as the live issues for determination. Reliance was placed on Galaxy Paints Co. Ltd vFalcon Guards Ltd [2000] EA 385 where the Court of Appeal held that a court may only pronounce judgment on the issues arising from the pleadings. That, the trial court’s approach was squarely in line with this authority. 27. It was submitted that the Plaintiffs called three witnesses whose evidence was credible, consistent and corroborated by documentary evidence including the Death Certificate, Post-Mortem Report, Birth Certificates of the dependants, funeral expense receipts, Motor Vehicle Search and Police Abstract. That crucially, the Defendants did not call any evidence in rebuttal. That, the law is settled to the effect that pleadings, however strongly worded, are not evidence. Reliance was placed on Trust Bank Ltd v Paramount Universal Bank Ltd & 2 Others [2009] eKLR where the Court stated as follows; “ The 2nd and 3 rd Defendants closed their cases without calling a witness. It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. The 2nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2nd and 3 rd Defendants was uncontroverted and therefore unchallenged….” 28. Further reliance was placed on Karugi & Another v Kabiya & 3 Others [1987] KLR 347 where the Court observed that; “ The plaintiff has therefore to prove his case. To do so he calls evidence, such evidence before the court, the court may consider it unchallenged and proceed upon it, unless it is clear that it is intrinsically unreliable. No court will believe that the moon is actually the sun however unchallenged that statement may be.” 29. It was submitted that the trial court was thus entitled to accept PW2’s direct eye-witness account to the effect that the 2nd Defendant negligently drove off before the deceased had safely alighted, thereby causing the accident. That, this evidence was corroborated by PW3, the investigating officer, who confirmed that the police abstract recorded the incident as a fatal accident caused by negligent driving. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 5

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That, the Appellants’ failure to call the driver or any witness to contradict this evidence fortified the Respondents’ case. 30. It was submitted that the trial court demonstrated that it considered the parties’ legal arguments and cited relevant authorities including Wambugu v Kamau [1988] KLR 123 (duty of care owed by drivers to pedestrians and passengers) and Gichuru v Gikonyo [1995] eKLR (principles of causation and liability). That, the Appellants have not shown that the trial court misapplied these authorities. That, the applicable statutory framework including the Evidence Act (Cap 80), which places the burden of proof on the party who alleges and the Traffic Act (Cap 403), which imposes duties on drivers to ensure safety of passengers and pedestrians was correctly applied. 31. It was submitted that the judgment reflects that the Learned Magistrate summarized and considered both parties’ arguments. That, the fact that the court agreed with the Respondents’ position on multiplicand, multiplier and dependency ratio does not mean that the Appellants’ submissions were ignored. That, a trial court is not bound to adopt submissions and is only required to consider them. 32. As to whether the trial court erred in apportionment of liability, it was submitted that the decision was firmly anchored on the evidence presented and the applicable law. That, under Section 107 of the Evidence Act, Cap 80, the burden of proof lies on the party who alleges and while the Respondent was required to prove negligence on a balance of probabilities, once that burden was discharged, the evidential burden shifted to the Appellants to prove contributory negligence if any. Reliance was placed on Khambi & Another v Mahithi & Another [1968] EA 70 where it was held that; “ It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge” 33. It was submitted that the evidence before the trial court established that; a. The deceased was trying to safely alight when the 2nd Appellant drove off knocking him down; b. The Appellants’ driver failed to exercise reasonable care and control, thereby causing the accident; c. No credible evidence was adduced by the Appellants to demonstrate negligence on the part of the deceased. 34. It was submitted that the Respondents discharged their burden through the cogent and credible evidence of an eyewitness, PW2, who was present at the scene and gave direct testimony that as they alighted from the Appellants’ motor vehicle, the 2nd Defendant being the driver negligently drove off before the deceased had safely stepped down. It was contended that once this evidence was tendered, the evidential burden shifted to the Appellants under section 112 of the Evidence Act. That, the Appellants, who had pleaded contributory negligence, were under a duty to substantiate those allegations. 35. It was submitted that the doctrine of res ipsa loquitur applied squarely to this case. That, a passenger being run over by the very vehicle from which he was alighting clearly inferred negligence on the part of the driver. Reliance was placed on Embu Public Road Services Ltd v Riimi [1968] EA 22 for the submission that where circumstances give rise to an inference of negligence, the burden shifts to the Defendant to provide an alternative explanation. It was contended that contributory negligence must be supported by evidence demonstrating that the injured party acted in a manner that materially https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 6

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contributed to the harm. Reliance was placed on Nandwa -vs Kenya Kazi Ltd [1988] KLR, 488 where the court stated; “ In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favor unless the defendant provides some answer adequate to displace that inference.” 36. Further reliance was placed on Khambi & Another v Mahithi & Another [1968] EA 70 where the Court of Appeal held; “ It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.” 37. As to whether the trial court erred in assessment of damages, it was submitted that a reading of the judgment on record shows that the Learned Magistrate carefully evaluated the evidence before her, applied the correct principles of law and drew guidance from comparable judicial authorities. That, the award made was therefore not arbitrary, excessive, or unreasonable, but a balanced and just estimate of compensation for the loss suffered. 38. Reliance was placed on Butt v Khan [1981] KLR 349 for the submission that assessment of damages is a matter of judicial discretion and that an appellate court will only interfere with such an award if it is shown that the trial court applied wrong principles of law, considered irrelevant factors, left out of account relevant factors, or made an award so inordinately high or low that it must be deemed an erroneous estimate. 39. It was submitted that the trial court correctly noted that the death certificate confirmed the deceased’s occupation as a boda boda operator. That, although there was no formal proof of actual monthly earnings since he was a businessman, the court was guided by established precedent which holds that where specific income is not proven, courts may rely on the applicable statutory minimum wage for the relevant class of workers. That, the trial court was guided by the case of Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR where the High Court approved reliance on minimum wage regulations where earnings cannot be strictly proved. That, consequently, the Learned Magistrate adopted the minimum wage of a skilled laborer, which was both legally sound and factually justified given the deceased’s occupation. 40. It was submitted that the trial court adopted a multiplicand of Kshs. 15,000 as the deceased’s monthly income being the minimum wage in accordance with the Legal Notice No.2-The Regulation of Wages (General) Amendment Order. That, the Appellants had proposed a much lower figure of Kshs. 7,000, but tendered no documentary or oral evidence to justify that figure. That, by contrast, the Respondents demonstrated through the testimony of PW1 and corroborating documents that the deceased was an active economic provider for his family, engaged in a trade that was reasonably lucrative by local standards. 41. It was submitted that the trial court’s adoption of a multiplier of 23 years was a sound exercise of discretion, taking into account the deceased’s age at the time of death was 37 Years, his state of health, and the contingencies of life. It was contended that Kenyan courts have consistently applied multipliers https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 7

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of between 20 and 25 years for young adults in their productive years. Reliance was placed on Munyua v Kenya Power & Lighting Co. Ltd [2010] eKLR where the court adopted a multiplier of 25 years for a young breadwinner. 42. It was submitted that the silence of the birth certificate with regard to the age of the deceased is attributable to the Registrar of Births and Deaths and it is trite that parties ought not to be penalized for clerical errors by public officers. That, the allegation that the deceased was 55 years cannot hold since his mother the 2nd Respondent was 62 years at the time of his demise and he was not her firstborn. That, the evidence before this Court therefore supports a finding that the deceased was 37 Years as per the pleadings. 43. It was submitted that the trial court applied the conventional two thirds dependency ratio which is the long-standing judicial standard where the deceased was married and had dependants, unless there is cogent evidence to justify a departure. Reliance was placed on Butt v Khan (supra) where the Court of Appeal endorsed the two-thirds ratio as fair and reasonable in the absence of exceptional circumstances. 44. It was submitted that the awarded damages for pain and suffering and loss of expectation of life under the Law Reform Act were modest and consistent with prevailing jurisprudence. It was contended that damages in fatal accident claims are not awarded in abstraction but in recognition of the real and tangible loss suffered by the deceased’s family. That, the Respondents led credible, unchallenged evidence that the deceased was the breadwinner of his household and that his untimely death deprived his dependants of financial and emotional support. That, the Appellants offered no rebuttal to this evidence and interfering with the damages awarded in such circumstances would be to trivialize the genuine hardship occasioned to the family, contrary to the very spirit of the Fatal Accidents Act (Cap 32) and the Law Reform Act (Cap 26). 45. With regard to costs, reliance was placed on Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co- operative Society Ltd where the court held; Duty of Court “ The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principal costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.” 26. 46. It is now settled that the duty of a first appellate Court is to analyze and reevaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. I have carefully considered the grounds of appeal, the rival submissions and entire record, and the following issues arise for determination; a. Who was to blame for the accident and to what extent? b. Should the quantum of damages be disturbed? c. Who should bear costs Who was to blame for the accident and to what extent? Evidence on Liability 47. PW2 was Wilson Mailu Muia and he adopted his statement, dated 03/-6/2021 as his evidence-in-chief, in which he stated that the deceased was a close friend and neighbor for a long time before his death. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 8

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That, on or about 02/09/2017, he met the deceased at around 1730hrs as they were to run some errands that evening and later catch up at Itetani Market in Makueni County. 48. That, at around 2100hrs on the same day, they finalized their errands and left Itetani market for their homes at Ndolo village. They got a lift and travelled together in motor vehicle KCD 183Q, Make Isuzu lorry. That, upon reaching their destination i.e Ndolo market, PW2 was the first to alight and then the deceased would follow. That, no sooner had the deceased alighted than the 2nd Defendant drove off so fast, negligently and recklessly thereby permitting the said motor vehicle to hit the deceased who lost balance and fell under the motor vehicle. 49. That, the deceased screamed for help but before PW2 could help him, the 2nd Defendant failed to stop, swerve or control the motor vehicle and he ran the deceased over on the head. PW2 called for help from onlookers but unfortunately, the deceased had sustained grievous injuries on the head and he succumbed on the spot. Some good Samaritans called the police from Kikima police station who arrived after some time and confirmed that the deceased was no more. The police took the body and proceeded to Kikima mortuary together with some family members. 50. On cross-examination, he reiterated that the deceased was his friend and that they were together at Itetani market on that day. The accident happened at Ndolo market. They had boarded the lorry at the front cabin and were three together with the driver. When they reached Ndolo, PW2 was the first to alight and upon stepping down, the deceased asked him for help. When PW2 looked back, the deceased had fallen under the lorry and the lorry was moving. The lorry started moving as the deceased was coming out. It looked like the deceased lost balance. The accident occurred as the deceased came out. He agreed that they were inside the lorry at night but denied that they had jumped at the back of the lorry. 51. PW3 was PC Collins Aoko of Athi River police station. He testified that on 02/09/2017, he was on traffic accident standby duties when they received a call from the area village elder late in the night and were informed of an accident involving motor vehicle KCD 183Q Isuzu lorry and the deceased, Joseph Munyao Kikuvi. 52. Upon reaching the scene, they found the deceased’s body lying under the lorry and on interrogation, they were told that the deceased was getting out of the vehicle and the driver took off and the rear tyre ran over him. 53. On cross-examination, he agreed that he was the investigating officer in the matter and that the deceased died on the spot. That, he was not listed in the OB as an injured person. That, investigations were ongoing when PW3 left the station. He was not aware if the driver had been charged. That, the driver started the vehicle before the passenger fully alighted. That. That, there were 4 people in the lorry including the driver. The other two passengers were listed in the police abstract. That, the deceased was not hanging on the motor vehicle. That, the other passengers had already alighted hence the reason they were not hurt. That, when the deceased tried to alight, the vehicle had stopped. It was at night and it was dark. He agreed that he had not brought the sketch map of the scene. Analysis & Determination 54. It is not in dispute that the deceased was crashed to death on the material night by motor vehicle KCD 183Q (lorry). According to the eye witness, PW2, the deceased had not fully alighted from the lorry when the driver took off and caused the deceased to fall under the lorry which eventually crashed his head using the rear wheels. The lorry driver was not called as a witness to give his version of events hence I am inclined to agree with the Respondents that the eye witness account remained uncontroverted. PW3 arrived at the scene and found the deceased’s body under the lorry hence making the eye witness https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 9

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account more probable. Proof on a balance of probabilities was elaborated in the case of William Kabogo Gitau v George Thuo & 2 Others [2010J I KLE 526 where the Court stated; “ ln ordinary civil cases, a case may be determined in favor of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. ln percentage terms, a party who is able to establish his case to a percentage of 5l% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred." 55. The Appellants alleged negligence on the part of the deceased but did not adduce any evidence to substantiate the same. Infact, some of the particulars of negligence in the defence, e.g., that the deceased was playing along the rightful path of the motor vehicle and was blocking its rightful path, are inconsistent with the evidence which shows that the deceased was alighting from the lorry. 56. The Appellants’ argument that the duty of care extends to all road users would have stood a better chance if the deceased was a pedestrian or motorist. Further, the fact that PW2 had alighted safely negates the Appellant’s argument that the deceased was trying to alight from a moving vehicle. The most probable sequence of events is that the deceased was the last to alight and the driver took off before he could fully alight. In my view, the lorry driver was in control of a lethal machine and it was negligent for him to take off before the deceased had fully alighted. I did not find evidence of contribution on part of the deceased as the totality of the evidence is that he simply alighted from the lorry. The finding of the trail court on liability against the appellants at 100% is upheld. Whether the quantum of damages should be disturbed. 57. Awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In Butt –vs Khan (supra) it was held that; “ An appellate Court will not disturb an award for damages unless it is 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. Award under Law Reform Act 58. On pain and suffering, the evidence shows that the deceased died on the spot. It is trite that the consideration to be borne in mind while awarding damages under this head is the length of time that a person suffers before succumbing to injuries. The Appellants submitted that the award of kshs 100,000/= should be reduced to kshs 50,000/=. 59. I find relevance in the words of Majanja J. in Sukari Industries Limited Clyde Machimbo Juma; Homa Bay HCCA NO. 68 of 2015 [2016] eKLR where he stated that; “ (5) 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 10

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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… ” 60. Accordingly, the award of kshs 100,000/= is within an acceptable range and I find no reason to interfere with the trial courts discretion. 61. With regard to the award for loss of expectation of life, we have a myriad of cases where ksh 100,000/ = has been awarded as a conventional figure. In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the learned Judge observed that ‘The conventional award for loss of expectation of life is Kshs. 100,000/=’ 62. Similarly, in the case of Melbrimo Investment Company Limited v Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR the court upheld an award of Kshs 100,000/=. 63. The Apellants submitted that the award of kshs 120,000/= is excessive and should be reduced to kshs 70,000/=. 64. We also have a myriad of cases where appellate courts have upheld/maintained an award of kshs 120,000/= for loss of expectation of life e.g Ngetich & Anor (Suing as the Legal Administrators of the Estate of the Late David Cheruiyot Ngetich – Deceased) v Oyugi (Civil Appeal E034 of 2024) [2025] KEHC 12752 (KLR) (18 September 2025) (Judgment) and Ondigo Gilbert v Joab Jonah Olunyama [2018] KEHC 7198 (KLR). 65. Consequently, the trial court’s discretion to award kshs 120,000/= cannot be faulted. Award under the Fatal Accidents Act 66. The age of the deceased was not pleaded and his wife, Martha Katila Musembi-PW1, did not state the age in her evidence. The death certificate is also silent on the deceased’s age. The trial court made a finding that the deceased was 37 years and applied a multiplier of 23 years. The Appellants submitted that the deceased’s age was mentioned in a demand letter but I have checked the demand letters and there is no such mention. Be that as it may, I am inclined to agree with the Appellants that a demand letter cannot be used to establish age. 67. On the other hand, the Respondents submitted that the deceased could not have been 55 years since his mother the, 2nd Respondent, was 62 years at the time of his demise and he was not her first-born. That, the evidence before this Court therefore supports a finding that the deceased was 37 Years. 68. As for the multiplicand, the deceased’s occupation and earnings were not pleaded and his wife, PW1, did not testify about it in her evidence-in-chief. It was only brought out in cross-examination where she testified that the deceased was a boda boda rider with a monthly salary of kshs 20,000/=. She however agreed that she had no documents to show his salary. The trial court adopted a minimum wage of kshs 15,000/=. 69. From the foregoing, I was of the view that this was not an appropriate case for use of the multiplier approach as the deceased’s age and earnings were neither pleaded nor established. I am in agreement with the reasoning of Justice Ringera (as he then was) in the case of Mwanzia Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another cited in Albert Odawa v Gichimu Gichenji [2007] KEHC 1358 (KLR) as follows; “ The multiplier approach is just a method of 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 11

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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 to sacrifice justice on the altar of methodology, something a Court of Justice should never do.” 70. Similarly, in the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) (2016) eKLR, the Court observed; “ It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.” 71. Further, jurisprudence from our courts has repeatedly approved the use of the global award approach in cases where the deceased’s earnings are unknown. In persuasive authorities such as; Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the Personal representative of the estate of Mercy Nzula Maina (Deceased) [2016] eKLR and Eston Mwirigi Ndege v Patrick Gitonga [2018] eKLR, the common thread is that where the earnings of a deceased person were unknown, a global award/sum ought to be adopted. 72. In this case , the chief’s letter dated 04/09/2019 shows that the deceased’s wife was 37 years old and they had four children aged 22, 14, 13 and 2 years. A National Identity card for the deceased’s mother shows that she was born in 1954 hence was 63 years at the time of his death in 2017. It is therefore probable that the deceased was 40 years old at the time of his death. 73. Dependency is a question of fact and the deceased had three minor children whose dependency was expected to go on for some time. Moreover, PW1 testified that she had no work due to injuries on the leg. 74. In Ainu Shamsi Hauliers Ltd v Moses Sakwa & Anor [2021] eKLR, a global award of kshs 2,000,000/ = was upheld for the estate of a deceased who was 40 years old at the time of death, was married and had two children aged 6 and 4 years. In Chege & Anor v Gathiru & Anor (Civil Appeal E006 of 2025) [2026] KEHC 1832 (KLR) (16 February 2026) (Judgment),a global award of ksh 850,000/= was enhanced to kshs 2,100,000/= on appeal for a 38-year-old deceased who was survived by a wife and two minors aged 9 years and 9 months. 75. No two cases can be similar in every aspect. I find foregoing two cases are comparable and provide a good guidance on the appropriate damages in this case. In the circumstances I find that the award of kshs 2,760,000/= is on the higher side. It is hence reviewed to kshs 2,000,000/=. 76. The special damages of kshs 174,325/= were not contested. 77. In the end the appeal succeeds only to that extent. The judgment of the subordinate court is set aside and substituted as follows.; Liability 100% against the appellant Loss of expectation of life… kshs 120,000/= Loss of dependency… kshs 2, 000,000/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 12

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Pain & suffering… kshs 100,000/= Special damages………………………….kshs 174,325/= Total… kshs 2,394,325/= Considering the respondent will have costs and interest at court rates JUDGMENT DATED, SIGNED AND DELIVERED ON 21ST APRIL 2026 MUMBUA T MATHEKA JUDGE Court assistant Chrispol Ms Lanoe for the appellant Ms Kioko for respondent Ms Lanoe – I pray for 45 days stay Ms Kioko: No objection. The can have 30 days Court: 30 days is the norm. So I allow 30 days stay of execution w.e.f 22nd of April 2026 . MUMBUA T MATHEKA JUDGE Signed By/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA MAKUENI HIGH COURT HIGH COURT DIVISION DATE: 2026-04-21 22:53:09 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6481/eng@2026-04-21 13

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