REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CIVIL APPEAL NO. E162 OF 2024 CECILIA WANJIKU WANGERI……..……………………………1ST APPELLANT ELIJAH MBURU WANGERI………………………………….......2ND APPELLANT (Suing as the Legal Representatives of the Estate of Teresia Wanjiru Wangeri (Deceased) VERSUS GEORGE WANJIRU GITAU……………………………………… RESPONDENT (Being an Appeal from the judgment and decree of Bernard Kipyegon Rugut (PM) delivered on 30th May, 2024 in Molo CMCC No. E348 of 2020) JUDGMENT 1) In their plaint dated 23/8/2023 the appellants averred that on 16th September, 2021or thereabouts while the deceased Teresia Wanjiru Wangeri was lawfully travelling in motor vehicle registration No. KCW 061 U along Nakuru-Eldoret Road at Ngata area, the respondent by himself, servant and or employee so negligently drove, managed and/or controlled motor vehicle registration number KCW 061U as a result which it knocked motor vehicle registration No. KCN 756X/ZF 8024 and subsequently, caused the death of the deceased. NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 1
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2) Being administrators of the estate of the deceased, the appellants filed the lower court matter on behalf of themselves and the estate of the deceased seeking damages under the Fatal Accidents Act, damages under the Law Reform Act, special damages, costs of the suit and interest on damages awarded. 3) By consent of the parties, judgment on liability was entered in favour of the appellants against the respondent at the ratio 85:15% on 19/10/2023 and the matter proceeded to trial on assessment of damages the same day. 4) In its judgment dated 30th May 2024 the trial made the following awards in favour of the appellants: a) General damages for pain and suffering Kshs.100,000.00 b) Loss of expectation of life - Kshs.120,000.00 c) Loss of dependency - Kshs.972,905.60 d) Special damages - Kshs.150,550.00 e) Grand total - Kshs.1, 343,455.60 f) Less 15% contribution - Kshs.201,518.34 g) Total award payable - Kshs.1,141,937.26 h) Costs i) Interest of the suit NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 2
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5) Being dissatisfied with the judgment of the trial court the appellants preferred this appeal seeking enhancement of the damages awarded. The appeal is based on the following grounds: a) That the trial magistrate erred in law and fact by making an award for pain and suffering that was too low in the circumstances. b) That the learned trial magistrate erred in law and fact by making an award for loss of expectation of life that was too low in the circumstances. c) That the learned trial magistrate erred in law and fact for making an award for loss of dependency that was too low in the circumstances. d) That the learned magistrate erred in law and fact for special damages that was too low in the circumstances. 6) Only the 1st plaintiff testified. In her statement she stated that the deceased Teresia Wanjiru Wangeri was her daughter and was aged 43 years old at the time of the fatal accident herein. 7) The 1st plaintiff, further, stated at the time of her death the deceased was in good health and was a business lady earning Kshs.30,000 per month. She also stated that the deceased died on the spot. 8) To support the case the 1st plaintiff produced the following documents: a. Letter before acting b. Letters of Grant NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 3
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c. Receipt for Letters of Administration d. Letter from the Chief e. Certificate of Death f. Surrender of deceased person Identity Card g. Receipt for clothing h. Receipt for funeral expenses i. Police Abstract j. Copy of records k. Receipt for copy of records Pain and Suffering 9) The trial court awarded Kshs. 100,000 for pain and suffering. In this regard, the 1st appellant testified that the deceased died on the spot. In the case of Bande & Another Vs. Murira (acting as the Legal Representative of the Estate of Mmiluka(deceased) [2021] KEHC (KLR) the High Court upheld an award of Kshs.100,000 pain and suffering where the deceased was aged 44 years. This court also upholds the trial court herein of Kshs.100,000 on the above heading. Loss of Expectation of Life 10) The trial court awarded Kshs.120,000 for loss of expectation in this matter. This court finds the award reasonable. In arriving at this position, the court is guided by the decision in Gathirwa Vs. Murimi [2024] KHC 16756 (KR) in which Kshs.100,000 was awarded for loss of expectation of life. In the case of Mutiso Vs. Kimiyu [2023] KEHC 760 (KLR) NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 4
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Justice Dulu also upheld an award of Kshs. 120,000 for loss of expectation of life. Loss of Dependency 11) The deceased was aged 43 years old. The conventional retirement age in Kenya is 60 years. The appellant’s counsel submitted that being a business woman the deceased would not have been restricted to the retirement age of 60 years. To support this position counsel for the appellant relied on the decision in the case of Violet Jeptum Rahedi Vs. Albert Kubai Mbogori [2013] eKLR in which the court held: “A private business, especially run from home as the deceased was conducting cannot be limited by any formal retirement age. If had lived and decided that wine and spirit would be his life business and everything being equal, he should have been able to carry on the business probably to his late 60’s or 70’s.” In her evidence the 1st appellant stated that the deceased was a business lady selling bananas, avocados and sweets potatoes and she earned Kshs.30,000 per month. She did not, however, furnish proof of the deceased person business or her earnings. In the case of South Sloux Farm Limited Vs Jane Nyambura Kinuthia (2021) KEHC3973(KLR) the court held that in the absence of proof of salary, minimum wage would be appropriate guide. It, therefore, my finding that the trial court was right in using the adopting the minimum wage payable of Kshs.15,201.65 NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 5
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under the Regulation of Wage. (General) Amendment Order 2018 applicable at the time of the subject accident herein. This court, however, applies a multiplier of 22 years and dependency ratio of 1/3 conceded by the appellant. The loss of dependency herein would therefore translate to: Kshs. 15,201.65 x 12 years x 22 months x /1 = 1,337,742.20 Special damages 12) It is trite law that special damages shall be specifically pleaded and proved. See Mohammed Ali & Another Vs Sagoo Radiators Limited (2013) e KLR( Civil Appeal No.231 of 2005) 13) This court finds the special damages of Kshs.309,175 claimed by the appellants specifically pleaded and proved by the appellant through the required documentation . The same is, therefore. allowed. 14)As neither of the parties have won or lost this appeal, this court declines to award costs of the appeal. 15) The upshot of my finding above, is that the appeal is allowed to the extent that loss of dependency is enhanced to Kshs.1,337,742.20. The other awards are upheld. TOTAL AWARD Pain and suffering - Kshs. 100,000.00 NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 6
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Loss of expectation of life - Kshs. 120,000.00 Loss of dependency - Kshs.1,337,742.20 Special damages - Kshs. 309,175.00 Total - Less 15% - Kshs.1,866,917.20 Kshs. 280,037.50 Kshs. 1,586,879.62 Dated, Signed and delivered online via Microsoft Teams this 23 rd day of July, 2026. HON. P. K. Rotich JUDGE In the presence of: Ms. Sitati for the appellant – present Ochoge for the respondent CA - Kipchirchir NAKURU HCCA NO. E162 OF 2024 (Cecilia Wanjiku Wangeri & Anor Vs. George Wanjiru Gitau) 7
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