Gaku v Nderi & another (Suing as the Legal Representatives of the Estate of Josephat Mungai Mburu) [2025] KEHC 7347 (KLR)

Gaku v Nderi & another (Suing as the Legal Representatives of the Estate of Josephat Mungai Mburu) (Civil Appeal E073 of 2024) [2025] KEHC 7347 (KLR) (22 May 2025) (Judgment)

Neutral citation: [2025] KEHC 7347 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Appeal E073 of 2024

FN Muchemi, J

May 22, 2025

Between

Daniel Njoroge Gaku

Appellant

and

Purity Kaari Nderi & James Mburu Mungai (suing as the Legal Representatives of the Estate of Josephat Mungai Mburu)

Respondent

(Being an Appeal from the Judgment and Decree of Hon. V. Asiyo (PM) delivered on 4th April 2024 in Thika CMCC No. 824 of 2015)

Judgment

Brief facts 1. This appeal arises from the judgment of Thika Principal Magistrate in CMCC No. 824 of 2015 a claim arising from a motor vehicle accident as the appellant was found fully liable in favour of the respondents who was awarded general damages for pain and suffering at Kshs. 10,000/-, loss of expectation of life at Kshs. 100,000/-, loss of dependency at Kshs. 2,050,860/- and special damages at Kshs. 45,175/-.

2. Dissatisfied with the court’s decision, the appellant lodged this appeal citing 10 grounds of appeal summarized as follows:-a.The learned trial magistrate erred in law and in fact in finding the appellant 100% liable for the accident notwithstanding the evidence on record to the contrary.b.The learned trial magistrate erred in law and in fact in failing to appreciate that PW2 who testified as an eye witness was not listed in the police abstract.c.The learned trial magistrate erred in law and in fact in awarding excessive damages beyond the scope of evidence and or legal entitlement.

3. Parties disposed of the appeal by way of written submissions.

The Appellant’s Submissions 4. The appellant submits that respondent’s witnesses failed to prove that the deceased was entirely blameless. The appellant refers to the cases of Helle Sejer Hansen & 2 Others vs Julius Kakungi Mukavi [2020] eKLR and David Kajogi M’Mugaa vs Francis Muthomi [2010] eKLR and submits that the investigation officer did not testify in court or adduce any evidence in court thus there is no direct evidence to verify the accuracy, context and details of the investigation officer’s findings. Thus, the occurrence book entry cannot be considered reliable or conclusive evidence without corroborative testimony. Furthermore, the occurrence book entry alone does not provide a comprehensive account of the circumstances surrounding the accident. It fails to address potential contributory negligence by the deceased who may have been in an unauthorized area or acted in a manner that precipitated the accident.

5. The appellant submits that without the investigation officer’s testimony, it is impossible to assess the methodology and thoroughness of the investigation and as such the claim that he was to blame for the accident remains unproven and should not be accepted. Further, the police abstract that was produced in court indicated that the matter was still pending under investigation and thus it was incumbent for the respondents to show that he was fully to blame for the accident.

6. The appellant argues that the respondents failed to show that he had been charged before a traffic court for the offence of causing death by dangerous driving.

7. The appellant relies on the case of Peter Kanithi Kimunya vs Aden Guyo Haro [2014] eKLR and submits that a police abstract is not proof of occurrence of the accident but of the fact that following an accident, the occurrence was reported. The appellant argues that the respondents only produced the abstract not the investigating officer thus making his evidence hearsay and inadmissible.

8. The appellant submits that the deceased as a pedestrian had a duty to exercise reasonable care and therefore the trial court’s failure to apportion liability against the deceased was erroneous. Thus a fair apportionment would be 50:50 as was held in Josephine Wanjiku vs Francis Mwangi Njoroge & another [2018] eKLR.

9. The appellant submits that the trial court was erroneous by adopting a multiplicand of Kshs. 17,090. 50/- based on the minimum wage for drivers despite no proof of the deceased’s actual earnings or occupation. The respondents did not produce any evidence including a driver’s licence proving that the deceased was indeed a driver. To support his contentions, the appellant relies on the case of Gachoka Gathuri vs John Njagi Timothy & 2 Others [2015] eKLR.

10. The appellant further relies on the cases of Ames Gichuru Kunjuru vs Mainyo Investments Ltd Nairobi HCCC No. 1681 of 1999 and Daniel Mugaru Kuria vs Geoffrey Githeki Macharia & Another [2006] KEHC 612 (KLR) and submits that the multiplier of 15 years was excessive for the deceased who was 45 years old as it failed to take into account life’s other vicissitudes not restricted to ill health that could cut short the working life of the deceased. Thus, the court ought to have awarded a multiplier of 10 years.

11. The appellant relies on the cases of James Gakinya Karienye & Another (Suing as legal representative of the Estate of David Kelvin Gakinya (Deceased) vs Perminus Kariuki Githinji; HCCC No. 49 of 2011 Nauku Charles Masoso Barasa & Another vs Chepkoech Rotich and HCCC No. 1484 of 1993 Nairobi Lucy M. Njeri vs Fredrick Mbuthia & Another and submits that an award of Kshs. 100,000/- for loss of expectation of life is excessive and an award of Kshs. 50,000/- is reasonable.

The Respondents’ Submissions 12. The respondents refer to the cases of Albert Odawa vs Gichumu Githenji Nakuru HCCA No. 15 of 2003 and Beatrice Wangui Tahiru vs Hon. Ezekiel Barngetuny & Another, Nairobi HCCC No. 1638 of 1998 and submit that the multiplier approach as applied by the trial court was most suitable in the circumstances.

13. The respondents submit that the deceased was a driver earning Kshs. 150,000/- per month at the time of his death whereas the appellant in his submissions proposed a sum of Kshs. 18,595/- to be adopted as his monthly earnings. To support their contentions, the respondents relied on the cases of Mosonik & Another vs Cheruiyot (Suing as the legal administrator of the Estate of Stanley Kipchumba Kemboi (Deceased) (Civil Appeal 113 of 2019) [2022] KEHC 11823 (KLR) (29 July 2022) (Judgment) and Gachoka Gathuri vs John Njagi Timothy & 2 Others (2015) eKLR and submits that the court below was within the legal principle to adopt the minimum wage as the multiplicand.

14. The respondents submit that the appellant did not produce any evidence to show that the deceased was of ill health prior to the accident and would have lived a short life. The respondents argue that the deceased was a fairly young, healthy man engaged in the business of being a driver and may have worked beyond 65 years and thus a multiplier of 25 years would suffice. To support their contentions, the respondents rely on the cases of Midland Media Limited & Another vs Pauline Naukot Aule (Suing as the legal representative of the Estate of the late Esinyon Esokon Ekai) [2020] eKLR and Crown Bus Services Ltd & 2 Others vs Jamilla Nyongesa & Amoda Nyongesa (legal representatives of Alvin Nanjala (Deceased) [2020] eKLR.

15. The respondents submit that the deceased was survived by two children and his wife who were fully dependant on him. PW1 testified that at the time of the accident, the deceased would cater for household needs for the children and the family at large among other things. Thus, the respondents pray that the court adopts a 2/3 dependency ratio and the loss of dependency award will work out as follows: Kshs. 17,090. 50/- x 12 x 25 x 2/3 = Kshs. 3,418,100/-.

16. The respondents refer to the case of Joseph Kivati Wambua vs SMM & Another (Suing as the legal representatives of the Estate of EMM (Deceased) [2021] eKLR and submit that the deceased died on the same day of the accident and thus ought to be awarded a sum of Kshs. 100,000/-.

17. the respondents argue that an award of Kshs. 100,000/- as awarded by the trial court for loss of expectation of life is fair and reasonable as the deceased had a healthy and vigorous life which was suddenly cut short by the accident. The respondents refer to the case of West Kenya Sugar & Company Ltd vs Philip Sumba Julaya & Another and urges the court to review the award to Kshs. 200,000/-.

18. The respondents submit that PW2, an eye witness testified as to the occurrence of the accident and his evidence was never controverted. The respondents rely on the case of Kijana Muringi M’Kindia (Suing as the legal representatives of the Estate of the deceased Rael Karema Ntongai) vs Iman Ali & 2 Others [2015] eKLR and submit that they availed an independent witness, PW2 whose evidence was uncontroverted.

Issues for determination 19. The main issues for determination are:-a.Whether the finding of full liability against the appellant was against the weight of the evidence.b.Whether the awards under the Law Reform Act were manifestly excessive.c.Whether the award on loss of dependency is manifestly excessive.

The Law 20. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“…..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in 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 into account of particular circumstances or probabilities materially to estimate the evidence.”

21. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:-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 mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

22. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:-a.That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;b.That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; andc.That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

Whether liability apportioned by the trial court was against the weight of the evidence adduced. 23. The appellant seeks to have the court substitute the trial court’s findings of 100% liability against him with 50% liability upon the deceased. The appellant asserts that the accident was substantially caused by the deceased who as a pedestrian had a duty of care to other road users.

24. The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled. In Khambi & Another vs Mahithi & Another [1968] EA 70 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.

25. PW1, the wife of the deceased testified that she did not witness the accident but produced the police abstract as evidence that the deceased was involved in a road traffic accident on 4th January 2015 with motor vehicle registration number KAV 474S belonging to the appellant. The respondents called an eye witness, PW2 who adopted his witness statements and testified that the driver of motor vehicle registration number KAV 474S was to blame for the accident as he was driving at a high speed and hit the deceased who was at the side of the road.

26. On the date of hearing the appellant’s counsel was present for the hearing and made an application for adjournment on the grounds that he had not filed his defence but he logged out before the trial court could make any determination of the application. The trial court then directed that the matter do proceed after taking into account that the matter had been previously adjourned based on the same application as made by the appellant’s counsel. Thus the appellant did not take part in the hearing nor did they cross examine the witnesses. Further when the matter came up for filing of submissions, the appellant stated that he had filed his submissions and a judgment date was given. Thus, the appellant was not keen to file defence and as such lost the chance of his client presenting his case. That notwithstanding, the evidence by the respondents was never controverted nor did the appellant produce evidence to the contrary. The appellant is introducing new evidence in his submissions that the respondent was charged with a traffic offence which is not acceptable.

27. Thus it is my considered view that the respondents proved their case on a balance of probabilities. The issues as raised by the appellant were not raised in the trial court as he chose not to attend the hearing and offer his evidence. In the circumstances, it is my view that the appellant has not produced any evidence to warrant this court to interfere with the ratio of liability against him nor has the appellant demonstrated how the deceased contributed to the occurrence of the accident.

Whether the award under the Law Reform Act was manifestly excessive. 28. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an Appellate court can interfere with an award of damages in the following terms:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its won for that awarded by the court below simply because it would awarded different figure if it had tried the case at first instance. The appellant 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 leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

29. Similarly in Sheikh Mustaq Hassan vs Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:-“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect….A member of an appellate court when naturally and reasonably says to himself “what figure would I have made” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own.”

30. In the instant case, the appellant is faulting the trial court for awarding excessive damages for pain and suffering and loss of expectation.

31. In the case of Hyder Nthenya Musili & Another vs China Wu Yi Limited & Another [2017] eKLR the court stated:-As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…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 the higher damages being awarded if the pain and suffering was prolonged before death.

32. In the instant case, it is not disputed that the deceased died on the spot. Given that the sums awardable under this head range from Kshs. 10,000/- to Kshs. 100,000/- from past authorities, it is my considered view the sum of Kshs. 10,000/- was reasonable compensation for pain and suffering as the deceased died at the scene of the accident and Kshs. 100,000/- for loss of expectation of life and ought not to be interfered with.

Whether the award on loss of dependency is manifestly excessive. 33. The Court of Appeal in Chunibhai J. Patel & Another vs P. F. Hayes & Others [1957] EA 748, 749 stated the law on assessment of damages under the Fatal Accidents Act and held:-The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependents, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependents. From this it should be possible to arrive at the annual value of dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.

34. The deceased was aged 45 years at the time of his death. PW1 testified that she was married to the deceased and they had two children who depended on him. She further testified that the deceased was a driver and used to earn Kshs. 5,000/- per day. Again, this evidence was not controverted by the appellant.

35. The deceased died at the age of 45. The appellant in his submissions proposed a multiplier of 10 years. The trial court reasoned that the deceased would have probably retired at the age of 60 years and thus adopted a multiplier of 15 years. I have perused several case law whereby the deceased died at the age of 45 years and noted that the multiplier ranges from 10 – 13 years. In Isaack Abdikarim Abdile & Another vs Rose Kinanu Muchai (legal representative of the Estate of Paul Rufus Muguongo) [2016] eKLR where the court applied a multiplier of 11 years for the deceased aged 49 years; John Simon Ashers & Another vs Nelson Okello Onjao [2020] eKLR where the court adopted a multiplier of 10 years for the deceased aged 45 years; Tobias Odoyo Oburu vs Callen Kwamboka Okemwa & Another (Suing as legal representative of Obed Okemwa Obwoge) (Deceased) [2018] eKLR where the court adopted a multiplier of 12 years for the deceased aged at 45 years and Mungai vs Mukuha (Suing as Administrator and/or personal representative of the Estate of Duncan Wangugi (Deceased) (Civil Appeal 26 of 2017) [2022] KEHC 12691 (KLR) (14 June 2022) (Judgment) where the court adopted a multiplier of 12. 5 years for the deceased aged at 45 years. The appellant was a driver and in good health and would have worked for another 20 years. It is my considered view that the multiplier of 15 years was reasonable in the circumstances.

36. From the record, the respondents argued that the deceased was a driver and used to earn an income of Kshs. 5,000/- per day, but she did not produce any proof to that effect. Therefore in the absence of evidence of the deceased’s earnings, the court below did not err by applying the minimum wage. This principle was stipulated in the case of Petronila Muli vs Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR where the court stated:-On the question of the multiplicand adopted by the trial court using a minimum wage guideline, it is apparent that the deceased was engaged in informal employment where it is difficult to tell the actual regular income. In such circumstances, the legal position is to adopt the minimum wage guideline as a guiding principle in assessing loss of income.

37. The deceased died on 4/1/2015 and thus the applicable guidelines are as per the Regulation of Wages (General) (Amendment) Order, 2015. The respondents led evidence that the deceased was a driver. From the death certificate, the deceased’s occupation is indicated as driver and his residence, as Ngoliba which falls under Thika which falls under the column for “all former municipalities and Mavoko, Ruiru and Limuru Town councils”. The minimum statutory wage for a driver was Kshs. 17,090. 50/- as per the Regulation of Wages (General) (Amendment) Order, 2015. Accordingly, the court adopts a multiplicand of Kshs. 17,090. 50/-. In my considered view, the magistrate did not err in using the minimum wage guidelines.

38. In view of the foregoing, I find that this appeal lacks merit and is hereby dismissed with costs to the respondent as the multiplicard.

39. It is hereby so ordered.

JUDGMENT DELIVERED VIRUALLY, DATED AND SIGNED AT THIKA THIS 22ND DAY OF MAY 2025. F. MUCHEMIJUDGE