Kyoga Hauliers Kenya St & 1 other v Rodah Naliaka Simiyu & Bramwel Wekesa Wafula ( Suing as legal representatives & administrators of the estate of Patrick Wafula Wamalwa (deceased) & 27 others

prime mover registration No KBZ 868W then pulling a trailer Registration No ZD2734, make Faw, in which Patrick Wafula Wamalwa sustained fatal injuries. 2. The issue of liability was consensually settled by the parties at 80:20 against the appellants and respondents respectively whereafter the case proceeded on assessment with the respondents calling four witnesses while the appellant did not call any witness. 3. After considering the respondents’ evidence the trial court awarded the respondents quantum of damages as particularized hereunder: a) Damages under the Law Reform Act i) Pain and suffering…………………………………………………… Ksh 50,000/= ii) Loss of expectation of life…………………………………………Ksh 100,000/= b) Damages under the Fatal Accidents Act i) Loss of dependency/lost years…………………………………Ksh 2,000,000/= ii) Special Damages……………………………………………………..Ksh 201,100/= c) Subtotal …………………………………………………………………….. Ksh 2,350,100/= Less 20% contributory negligence……………………………Ksh 470,020/= d) Total…………………………………………………………………… ………Ksh 1,880, 080/= e) Costs and interest B. APPEAL Bungoma HCCA E041/23 – Judgment M. S. Shariff J 2

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4. Being aggrieved Appellants by the decision of the trial court, the appellants lodged this appeal which they premised on the following grounds: 1. THAT the learned trial magistrate erred in law and in fact by adopting the wrong principles in the assessment of damages thus awarding damages that were inordinately high in the circumstances. 2. THAT the learned trial magistrate erred in law and in fact in adopting a global award instead of the multiplier approach thus awarding damages for lost years which were manifestly excessive. 3. THAT the learned trial magistrate erred in law and in fact in failing to consider the submissions of the appellants. 5. The appellants have prayed for the setting aside of the award of damages for lost years/ loss of dependency and a reassessment of the same downwards. C. THE DUTY OF A FIRST APPELLATE COURT 6. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). 7. This court places reliance on the decision of the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424, where the court held as follows: “It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court Bungoma HCCA E041/23 – Judgment M. S. Shariff J 3

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has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 8. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and make findings supported by reasons, on all the issues arising along with the contentions put forth by the parties for determination by the Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179). D.THE EVIDENCE 9. The evidence of the 1st Respondent (PW1) is crucial in this appeal. She adopted her statement dated 4 th May 2022 as her evidence in chief. It was her testimony that the she was a farmer while the deceased was a businessman and a farmer earing an income of Ksh 30,000/= per month. PW1 testified that other than herself, the deceased was survived by 6 children, all of whom were attending school and college and that he family was dependent on him and had by reason of the demise of the deceased suffered loss of dependency, while she has been deprived of love, sex and compassion. Bungoma HCCA E041/23 – Judgment M. S. Shariff J 4

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PW1 disclosed the identities of their children with the deceseased as hereunder i) Bramwel Wekesa Wafula (son)- a student at Sangalo Institute. ii) Nixon Wekesa (son) iii) Rodah Sikhoya (daughter) – Form 3 student at St Paul Secondary School. iv) Emmanuel Kibaki Wafula (son) – a fourth form student at Kamusinde Boys Secondary School. v) Seillah Mukhwana (daughter) – a form two student at St Mary Girls Sosio. vi) Sharon Mulongo (daughter)- a form two student at St Mary Girls Sosio. 10. On cross-examination, PW1 testified that the deceased was a boda boda (motor cycle) operator and a farmer but she had no documentary proof of his income. E. ANALYSIS AND DETERMINATION 11. I have re-evaluated, re-analyzed and re-scrutinized the evidence adduced by the respondents before the trial court and I have duly considered the grounds of appeal, the rival submissions of parties and the authorities cited in support of their respective positions and the two issues that arise for determination is whether this court ought to set aside the award on lost years and re-assess it, and who should meet the costs of this appeal. 12. It is settled law that an appellate Court will not interfere with an award of general damages by a trial Court unless:(a) the trial Court acted under a mistake of law; or Bungoma HCCA E041/23 – Judgment M. S. Shariff J 5

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(b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. (See Dumez (Nig) Ltd v Ogboli {1972} 3 S.C. Page 196.'' Per BADA, J.C.A (P. 28, paras. C-G). 13. In Kivati Vs Coastal Bottlers Ltd 42 the Court of Appeal (Civil Appeal No. 69 of 1984) the Court of Appeal stated that:“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate." 14. . An appellate court should seldom interfere with the award of the trial court unless the factors set forth hereinabove exist. (See Kemfro Africa Limited T/A Express Services & Gathogo Kanini Vs A.M. Lubia & Olive Lubia (1982-1988) 1KAR 727, page 730). 15. It is trite law that award of damages is an exercise of discretion of the trial Court; that discretion is exercised within the confines of the doctrine of precedent while applying that doctrine to the circumstances and fact of the case before the trial court. Awards ought not be but inordinately so low or so high as to reflect an erroneous Bungoma HCCA E041/23 – Judgment M. S. Shariff J 6

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assessment of the same and must be alive to and take into account the prevailing economic environment. 16. The Court of Appeal addressed the first issue in the case of Catholic Diocese of Kisumu Vs Tete (2004) eKLR as follows; “ It is trite law that the assessment of general damages is at the discretion of the trial court and a appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles ( as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to presented an entirely erroneous estimate” 17. Apaloo J had occasion to render himself on the intricate subject of assessment of damages in the Ghanian case of Mensah v Amakom Sawmill (1962) 1GLR 373 where he placed reliance in the judgment of Lord Wright in Davies v Powell Duffryn Associated Collieries Limited (1942)1 ALL ER 657, where his Lordship rendered himself as follows: “There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages that the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a ‘datum’ or Bungoma HCCA E041/23 – Judgment M. S. Shariff J 7

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‘basic’ figure which will generally be turned into a lump sum by taking a certain ‘number of years purchase’. That sum, however, has to be tasked down by having due regard to the uncertainties,...” 18. It is not in dispute that the deceased was a farmer and a boda boda operator and he met his death while riding a motor cycle. It is also not in issue that PW1 failed to adduce evidence of income of her husband. The appellants have strenuously urged this court to find that the trial court erred in adopting the global award principle and that instead the trial court should have adopted the multiplier principle given that the age of the deceased was placed at 50 years. The appellants contend that their submissions on the issue of quantum was disregarded by the trail court. 19. The trial court made a global award of Ksh 2 million upon placing reliance on the case of Moses Mairua Muchiri Vs Cyrus Maina Macharia (Suing as the representative of the estate of Mercy Nzula Maina (deceased) (2016) eKLR, where the court rendered itself as follows: “ …. Where it is possible to ascertain the multiplicand accurately, as appears to have been the case here, the court 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 means a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case” 20. The appellants have contended that the income of the deceased as a rider was ascertainable based on the minimum wage of unskilled labourer in Bungoma which per the Regulation of Wages (General Amendment) Order 2017, is set at Ksh 6,896.15 and this court ought to find that the Bungoma HCCA E041/23 – Judgment M. S. Shariff J 8

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multiplier system of assessment of damages under the head of loss of dependency was most suited in the case involving the deceased. They urge this court to adopt Ksh 6,896.15 as the multiplicand and 5-6 years as the multiplier using the civil service retirement age of 60 viz avis the 50 years age of the deceased, at a dependency ratio of 2/3 given that the deceased was survived by the Respondents and five more children. 21. The deceased was neither employed nor unskilled labourer but a farmer and a boda boda rider. He had no retirement age. It would be a misnomer to apply the 60 years retirement age applicable to Civil Servants and the Regulation of Wages (General Amendment) Order 2017, as the same does not make provision for the income of a selfemployed rider and a farmer. I thus agree with the trial court that the income of the deceased was not ascertainable. That notwithstanding, the1st respondent led evidence by way of school reports to prove that the deceased was maintaining his family well. In the circumstances of the original case, the adoption of the global approach in assessment of the award under the head of loss of dependency/lost years was, in my finding appropriate and most suited. I find no fault in the adoption of the same by the trial court. I further find that the trial court did not fail to consider any relevant fact not did it consider an irrelevant one. The award of Ksh 2 million was reasonable in the circumstances and cannot be termed as being inordinately high. 22. In its judgment the trial court ruled on the issue of special damages as follows: “….On their part the defence ( current appellants) took issue with most of the cash receipts and the court agrees with the defence that indeed some items therein are unjustifiably inflated. ….The court agrees with the defence that Schedule 10 of the Advocates Remuneration Bungoma HCCA E041/23 – Judgment M. S. Shariff J 9

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Order 2014 provides for a sum of Ksh10,000/= for application for grant, there is no exceptional circumstances disclosed to warrant the sum of Ksh 45,000/= alleged by the plaintiff.” 23. Courts consider a party’s submission as a whole and not in isolation. It is discernible from the excerpt outlined hereinabove that the appellants’ submissions were duly considered by the trial court. The appellants have opted to keep mute on the part of the judgment that favours them while attacking the part that does not; they are approbating and reprobating simultaneously. On my part I find that the trial court did not fall into any error when it considered parties’ submission wherefore that ground of appeal was premised on quick sand and lacks a solid footing wherefore it must fail. F. CONCLUSION 24. The inevitable conclusion is that this appeal is unmerited and it therefore fails. I dismiss it and uphold the judgment of the learned Magistrate dated 10th November 2023. 25. The Respondents are awarded costs of this appeal. Orders accordingly Delivered, Signed and Dated at Bungoma this 30 th day of July 2026. Mwanaisha.S. Shariff Judge In the presence of: Bungoma HCCA E041/23 – Judgment M. S. Shariff J 10

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FOR APPELLANT FOR RESPONDENT PETER MACHONI - COURT ASSISTANT Bungoma HCCA E041/23 – Judgment M. S. Shariff J 11

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