High Court 13158 of 2026

Page 2 of 7 claim brought under the provisions of the Fatal Accidents Act, Cap 32 Laws of Kenya and the Law Reform Act, Cap 26 Laws of Kenya. [2] The Appellants, suing as the legal administrators of the estate of the deceased, Mary Wausi Simon, sought damages arising from a road traffic accident that occurred on 26 December 2023 involving motor vehicle registration number KBV 385X allegedly owned by the 2nd Respondent and driven by the 1st Respondent. [3] The Appellants contended that the deceased was on the 26 December 2023 the deceased was a lawful pillion passenger aboard motor cycle number KMDJ 183W along Kitonyoni-Kathozweni earth road when near Kaluluni Market, motor vehicle registration number KBV 385X was caused to hit the motor cycle from the rear hence causing an accident and occasioning the deceased fatal injuries. [4] The dispute proceeded before the trial court with the court rendering a judgement in favour of the Appellants against Benjamin Mutuku Muindi and Joseph Mutuku Katoko (‘the Respondents’). Liability at 100 percent in favour of the Appellants, general damages for pain and suffering at Kshs 10 000, loss of expectation of life at Kshs 100 000, loss of dependency at Kshs 851 292.40, special damages at Kshs. 111 450 plus costs and interest of the suit. [5] The Appellants were aggrieved by the judgement rendered by the trial court filed a memorandum of appeal dated 24 September 2025. [6] In its memorandum of appeal the Appellants stated that: (a) The learned magistrate erred in law and in fact in the assessment of damages for loss of dependency by adopting an erroneous multiplicand;

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Page 3 of 7 (b) The Honourable court erred in resorting to the minimum wage despite the overwhelming uncontroverted evidence on record to the effect that the deceased used to earn a minimum of Kshs 20 000; (c) The Honourable court erred in ignoring the plaintiffs uncontroverted evidence that the deceased used to earn Kshs 20 000 per month; (d) The Honourable court erred in awarding Kshs 10 000 under the head of pain and suffering, which was too low in the circumstances hence warranting interference. [7] The Appellant prayed that: (a) The appeal be allowed with costs; (b) Judgement on loss of dependency be varied; (c) The Honourable court be pleased to set aside the award on pain and suffering and be pleased to award a reasonable award; (d) The Appellants be awarded costs of the appeal. [8] Before delving into the merits of the appeal, it is necessary to restate the mandate of this Court as a first appellate court. In the celebrated case of Selle v Associated Motor Boat Co. Ltd, [1968] E.A. 123 the Court of Appeal held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. [9] This principle was reiterated in Peters v Sunday Post Ltd [1958] E.A. 424 and more recently in William Diamonds Ltd v Brown [1970] E.A. 1 where the Court of Appeal emphasized that an appellate court is not bound by the trial court's findings if they are unsupported by the evidence or based on a misapprehension thereof. The court must therefore independently interrogate the evidence on liability, dependency, earnings, and the quantum awarded.

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Page 4 of 7 [10] Having considered the memorandum of appeal, the record and the submissions, the following issue arise: Whether the learned trial magistrate erred in the assessment of damages, particularly under the head of loss of dependency and Damages for pain and suffering [11] In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) it was stated that the principles 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 held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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 damage.( emphasis mine) Pain and suffering [12] The Appellants in the memorandum of appeal particularly in ground 4 were of the view that the trial courts award of Kshs. 10,000 for pain and suffering was contrary to the evidence on record. The Post mortem report filed by Dr Mwenda that was produced before the trial court indicates that the deceased died upon arrival at Kathozweni hospital with the cause of death being confirmed by the death certificate as excessive bleeding due to trauma. [13] The is no indication on from the proceedings of the as to the period that that it took before the deceased died, this would have been a basis for the award of damages

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Page 5 of 7 with respect to pain and suffering, the award by the trial court is therefore not based on any evidence. [14] In regard to damages for pain and suffering and loss of expectation of life, the court in Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (suing as the legal administrators of the estate of the late Robert Mwangi) [2019] KEHC 9014 (KLR) stated as follows: ‘The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100 000 while for pain and suffering the awards range from Kshs 10 000 to Kshs 100 000, with higher damages being awarded if the pain and suffering was prolonged before death.’ [15] Due to the fact that there was no direct evidence of the fact that the deceased suffered a prolonged period of pain before he passed away, I find that the trial court did not err in awarding a sum of Kshs 10 000 for pain and suffering which amount in my view is not inordinately low based on the fact that the Appellants did not lead any evidence as to the duration of pain before the deceased died. Consequently, I shall not interfere with the award under this head by the trial court. Loss of Dependency [16] The Respondents’ case before the trial court was that the deceased was a farmer and business woman knitting sweaters and selling school uniform; it was stated that she was 52 years old and used to earn an average Kshs 20 000 from the business and farming, business permits were produced to prove that the deceased was a business lady.

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Page 6 of 7 [17] It was the Appellants testimony that the deceased was depended upon by her husband and the deceased’s five children who although were adults were not working for gain at the time. [18] From the memorandum of appeal it can be discerned that the main issue that the Appellants are raising with respect to the Multiplicand adopted by the trial court, the Appellants are of the view that they place sufficient evidence on record to demonstrate that the deceased earned an average of Kshs 20 000 per month, they do not contest the multiplier nor dependency ratio adopted by the court. [19] I have reviewed the evidence on record and indeed the Appellants produced in evidence single business permit from Makueni County, the business permit is with respect to a retail shop, while the business permit may on the face value demonstrate that the deceased applied, paid and obtained a business permit to conduct a retail business the same cannot be said to be proof of earnings from the retail shop. [20] The learned trial magistrate noted that although the Appellants alleged that the deceased earned Kshs 20 000 monthly, there was no satisfactory documentary proof of such income. The court however adopted a multiplicand of Kshs 15 201 guided by the Regulation of Wages General amendment Orders 2022. [21] Where evidence of earnings is uncertain or inadequate, courts are entitled to revert to statutory minimum wages as a guide. In Nyamira Tea Farmers Sacco v Wilfred Nyambati Keraita (suing as the personal representative of) Mary Nyaboke Keraita- Deceased [2011] KEHC 3253 (KLR) the court held that in the absence of proof of income, courts may rely on the Regulation of Wages Orders. [22] Upon re-evaluating the record, this court finds that the learned trial magistrate properly appreciated the evidentiary shortcomings regarding the deceased’s alleged income and appropriately resorted to the Regulation of Wages Order. I

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Page 7 of 7 therefore find and hold that the trial court did not err in adopting an amount of Kshs 15 201 as multiplicand on the basis that the Appellants were unable to provide proof that the deceased earned Kshs 20 000. [23] Consequently, I do find and hold that the present appeal is not merited and the same is dismissed with costs to the Respondents. [24] It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MAKUENI THIS 29 th DAY OF JUNE 2026. D K RONO JUDGE

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