Civil Division v Esther Wambui Maina (Suing as the Administrator of the Estate of Patrick Maina

registration number KBV 339T Subaru Forester violently hit him resulting into fatal injuries. The Respondent blamed the designated driver for negligence and it was averred that the Appellants were the beneficial and/or registered owner(s) or user(s) of the subject motor vehicle. 3. In the statement of defence, the Appellants denied ownership of the motor vehicle. Similarly, they denied the occurrence of the accident negligence on their part. and the allegation of Further they denied the argument that the deceased sustained fatal injuries. 4. The trial court considered evidence adduced and found the driver of the motor vehicle (2nd Appellant) to blame for the accident and held the 1st Appellant vicariously liable for the negligence of the 2nd Appellant. Judgment was entered thus; a) Liability 100% in favour Kshs. 20,000 of the plaintiff. b) Pain and suffering c) Loss of expectation of life Kshs. 100,000 d) Loss of dependency Kshs. 1,800,000 2 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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e) Special damages Kshs. f) Total award 102,550 Kshs. 2,022,550 g) Costs and interests 5. Aggrieved, the Appellants preferred the appeal on grounds as follows: 1) THAT the learned trial magistrate was in error of law and fact in finding the Appellants fully liable for the accident. 2) THAT the learned trial magistrate was in error of law and fact in finding that the Respondent/Plaintiff had made out her case as required. 3) THAT the learned magistrate was in error of law and fact in failing to find that the deceased was equally, or partly or largely, if not wholly, culpable of the occurrence of the accident. 4) THAT the learned magistrate was in error of law and fact in disregarding the Appellant/defence testimony on the occurrence of the accident. 3 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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5) THAT the learned magistrate findings on liability and quantum went against the weight of evidence. 6) THAT the learned magistrate was in error of law and fact in the assessment of damages for loss of dependency. 7) THAT the learned trial court award on damages for loss of dependency was so inordinately high. 8) THAT the learned magistrate acted on wrong principles in assessment of damages for loss of dependency. 9) THAT the learned magistrate was in error of law and fact in failing to take into account certain considerations material to an estimate of evidence. 6. The appeal was canvassed through written submissions which I have duly considered. The Appellant condenses issues for determination thus; a) Whether the learned magistrate findings on liability went against the weight of evidence 4 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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b) Whether the learned magistrate erred and misdirected himself on the award on damages and his findings on loss of dependency 7. This being a first appeal, the court is mandated to reevaluate afresh evidence before it from the trial court in order to reach its own conclusions. In Selle v Associated Mortorboat Company Limited [1968] EA 123 it was stated that; “…An appeal from the High Court is by way of retrial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanor of a witness is inconsistent with the evidence generally. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. 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 5 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally…” 8. In Mkube v Nyamuro [1983] Eklr it was stated as follows; “...A Court of Appeal will not normally interfere with a finding of fact by trial court unless it is based on no evidence, or on misapprehension of evidence, or the Judge is shown to have acted on wrong principles in reaching the findings he did...” 9. On the question of liability, the trial court chose to believe the Respondent’s evidence because her evidence was corroborated by that of PW2 on how the accident 6 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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occurred. Having testified that the 2 nd Appellant was overtaking the pedal cyclist (deceased) at a high speed and as result he hit him. 10. The trial court is faulted for having misdirected itself since the Respondent could not solely rely on the police abstract. That she should have produced contents of the police file. Further, that the police abstract and the occurrence book did not blame the driver of the motor vehicle for the occurrence of the accident. 11. PW1 and PW2 stated that they witnessed the accident. According to PW2 the accident occurred at 10.00 pm. They saw the subject motor-vehicle overtaking another and in the process it hit and killed the deceased. They blamed the driver for not looking out, and not hooting, hence not maintaining proper look out of the motor vehicle. 12. PW3 was the police officer who investigated the matter and charged the 2 nd Appellant with the offence of causing death by dangerous driving. Although the argument hinges on the police abstract which was obtained 3 days after the accident when the matter was 7 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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still under investigations, the 2 nd Appellant admitted having been charged upon being blamed for causing the accident and the death of the deceased. He admitted having not hooted to avert the accident. It was the 2 nd Appellant’s evidence that he was charged and discharged. What was not stated was the discharge being under what provision of the law. Therefore, taking into consideration evidence of eye-witnesses, it was sufficient to prove the Respondent’s case. In the result, the trial court did not misdirect itself in finding the Appellants 100% liable for the accident. 13. On Quantum, the award of damages is primarily the duty of the trial court. The court exercises its discretion in awarding damages, therefore, for an appellate court to interfere with damages, some principles must be observed. In Kemfro Africa Limited t/a Meru express Service, Gathogo kanini v A.M Lubia & Olive Lubia [1987] KAR 30 it was held that; “The principle to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were 8 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.” 14. On the head of pain and suffering kshs. 20,000/- was awarded. The death was instantaneous, nominal damages of kshs. 20,000/- were reasonable. For loss of expectation of life. Kshs. 100,000/- was awarded. Courts have always treated the sum of kshs. 100,000 as a baseline. In that case the amount awarded was reasonable. 15. On loss of dependency, the court awarded kshs. 1,800,000/- it is submitted that the court be guided by the case of Mwangangi and Another v FKM (Suing as legal representative of the Estate of the late AMK) (Civil Appeal E11 of 2021) [202] KEHC 291 (KLR) (22 November 2021) (Judgment) where the deceased was aged 12 years and the High Court awarded a global sum of Kshs. 800,000. And, Chen Wembo & 2 others v IKK 9 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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& another (suing as the legal representatives and administrators of the estate of CRK (deceased) (2017) Eklr where the minor was aged 12 years and the High court while setting aside the trial court’s award, gave an award of Kshs. 600,000/- for loss of dependency. 16. The deceased was 15 years at time of his demise and in school. In Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] KEHC 5339 (KLR) the High Court upheld an award of Kshs. 1,500,000/- made in respect of a 16-year-old minor. Similarly, in Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] KEHC 964 (KLR), the High Court reassessed an award of loss of dependency in respect to a 17-year-old to Kshs. 1,500,000/17. In Daniel Mwangi Kimemi & 2 others v J G M & another (the personal representatives of the estate of N K (DCD) [2016] KEHC 6171 (KLR), an ward of Kshs.1, 530,000/= given for a 9-year-old was set aside and substituted on appeal with Kshs.1, 000,000/= in 2019. 10 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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Comparing the awards with the instant one I find a sum of Kshs. 1,800,000/- awarded to be on the higher side which I reduce to Kshs. 1,200,000/18. On Special damages, no submissions have been tendered on the same, an indication of there not being any dispute as to the award. The damages were particularized and receipts adduced to prove the same hence remain at kshs. 102,550/-. 19. From the foregoing, I find the Appellants having partially succeeded on appeal, in that I set aside the award on loss of dependency which I substitute with an award of kshs. 1,200,000/ 20. In the premises I award damages thus; Liability 100% in favour of the plaintiff. Pain and suffering Kshs. Loss of expectation of life Loss of dependency 21. 20,000 Kshs. 100,000 Kshs. 1,200,000 Special damages Kshs. 102,550 Total award Kshs. 1,422,550 On appeal, each party to bear their costs. 11 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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22. It is so ordered. Dated, signed and delivered virtually this 3rd day of June, 2026 ………………….…. L.N. MUTENDE JUDGE 12 JUDGMENT Nyahuru High Court Civil Appeal No. E050 of 2024 Tower Saving & Credit Co-op Society Ltd v Esther Wambui Maina

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