Bismark Carriers Limited v Shirandua & another (Suing as the Administrator and Personal Representative of the Estate of Brinnah Kwaj Munyisia (Deceased)) (Civil Appeal E028 of 2024) [2025] KEHC 10926 (KLR) (22 July 2025) (Judgment)
Neutral citation:
[2025] KEHC 10926 (KLR)
Republic of Kenya
Civil Appeal E028 of 2024
REA Ougo, J
July 22, 2025
Between
Bismark Carriers Limited
Appellant
and
Jackline Wandongo Shirandua
1st Respondent
Simeon Munyisia Mwasame
2nd Respondent
Suing as the Administrator and Personal Representative of the Estate of Brinnah Kwaj Munyisia (Deceased)
(An Appeal from the judgment and decree in Sirisia Principal Magistrate’s Court in Civil Suit No. E087 of 2023 delivered by Hon J.O. Manasses on the 9th February 2024)
Judgment
1.The appellant herein, being dissatisfied with the judgment and decree of the trial magistrate delivered on 9th February 2024, has filed this appeal against quantum on the following grounds;i.That the learned trial magistrate erred in awarding a multiplier of 33 years without taking into consideration the vicissitudes of life.ii.That the learned trial magistrate erred in law and in fact in awarding a multiplicand of Kshs. 14,026/- when there was no basis to do so.iii.That the learned trial magistrate erred in law and in fact in awarding a loss of expectation of Kshs. 300,000/- which was excessive.iv.That the trial magistrate erred in law and fact in awarding pain and suffering of Kshs.100,000/- which was excessive.v.That the trial magistrate erred in law and in fact in awarding special damages that were not pleaded and strictly proved.vi.That the trial magistrate erred in law and in fact for failing to appreciate fully or ignoring the submissions put before him by the appellants.vii.That the trial magistrate erred in law and in fact in awarding a dependency ratio of 2/3 when the circumstances of the case were such that the dependency ratio could have been 1/3, leading to miscarriage of justice.viii.That the learned trial magistrate erred in law and in fact in awarding general damages that were excessive in the circumstances, occasioning a miscarriage of justice.
2.The appellant requests that the judgment and decree be set aside, a proper finding be made, and the appeal be allowed with costs.
3.The plaint states that on or about the 3rd of June 2023, the deceased was lawfully travelling as a pillion passenger on a motorcycle along Bungoma-Malaba Road. At Mayanja Bridge, the appellant’s agent, servant, or driver negligently drove or managed Truck Reg. No. KBN 136 N, hauling Trailer Reg. No. ZF 5406, which violently knocked the motorcycle carrying the deceased, resulting in serious injuries that led to her death. A consent was entered by the parties on 14 December 2023 regarding liability in the ratio of 80:20 in favour of the respondent against the appellant.
4.The Trial Magistrate entered judgment as follows;i.Liability 80:20%ii.Pain and suffering Kshs 100,000/-iii.Loss of expectation of life Kshs. 300,000/-iv.Loss of dependency Kshs. 3,702,864/-v.Special damages Kshs 337,100/-Total Kshs. 4,439,964/-Less 20% contribution Kshs 887,992/-Total Kshs. 3,551,972/=The respondent was also awarded costs of the suit and interest on damages at court rates.
5.Parties canvassed the appeal through written submissions. The appellant submitted as follows: regarding the multiplier of 33 years, according to the death certificate, the respondent died at the age of 27, and her occupation was a businesswoman. It was argued that, considering the nature of her work and life's uncertainties, applying the multiplier of 33 was erroneous. The appellant referred to the case of Crown Bus Services Ltd & 2 Others vs Jamilla Nyongesa and Amida Nyongesa (legal representative of Alvin Nanjala) [2020] eKLR, where the court held that a multiplicand of 39 years for a deceased aged 21 was incorrect, as it did not account for other life vicissitudes, such as ill health, that could have shortened her working life. The respondent contended that the deceased was 27 years old, a businesswoman and a farmer, living a healthy life and expected to continue working until beyond the age of 60, which connotes that she still had 33 years remaining in her active business career. Reliance was placed on the cases of Phoebe Wambui Waweru vs Armed Forces Canteen Organisation [2010] eKLR, where an 8-year multiplier was used for a deceased who died at 62, and Florence Gathei Miano vs Mary Boniface Musyoka & Another (suing as the legal representative and administrators of Boniface Musyoka Wambua’s estate) [2014] eKLR, where a 10-year multiplier was applied for a deceased aged 57. The appellant failed to provide any evidence contradicting the age of the deceased.
6.Regarding a multiplicand of Kshs. 14026/-, the appellant contends that there is no clear evidence of the deceased's earnings as a businesswoman. The respondent merely stated she earned Kshs. 30,000/- without providing any proof. It was argued that income is a special damages claim that must be pleaded and proven. Reliance was placed on the case of Auren v Director of Police and Another (Civil case 274 of 2016) [2023] KEHC 2931 (KLR). The respondent submitted that the trial court applied the Minimum Wage of Kshs. 14206/- in line with the Kenya Gazette Legal Notice No. 125 dated 1st July 2022, which was the applicable minimum wage for unskilled labour as at the date of the deceased's death.
7.On the award for loss of expectation of life, the appellants argued that the sum of Kshs. 300,000/- was excessive without any legal basis, and the deceased died immediately after the accident; therefore, the award should be a minimum sum. They relied on the cases of West Kenya Sugar Co. Limited vs Philip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya) [2019] eKLR and Hyder Nthenya Musili & Another vs China Wu Yi Limited & Another [2017] eKLR, where the court held that very nominal damages are awarded under loss of expectation of life if the death follows immediately after the accident. The respondent relied on the case of Daniel Kuria vs Nairobi City Council [2013] eKLR, where this court awarded Kshs. 300,000/- to the deceased’s estate for loss of expectation of life. Further reliance was placed on the case of Susan Letayoro & Another vs JK (suing as the legal representative of the estate of CK (deceased)), Kabarnet HCCA No. 13 of 2020, where the court upheld a sum of Kshs. 300,000/- for loss of expectation of life. Therefore, the award was not excessively high.
8.Regarding the award for pain and suffering, it was submitted that the sum of Kshs. 100,000/- was excessive as the deceased died on the spot on the same day; there was no evidence that the pain was prolonged. The respondent submitted that the award was fair and reasonable.
9.On the award on special damages, it was submitted that they must be specifically pleaded and proved. The appellant submitted that the Respondent pleaded and proved the following special damages: Kshs 45000/- for Grant ad Litem, Kshs 8,100/- for Mortuary Bill, Kshs 6,000/- for mortuary fees at Lugulu Mission Hospital, Kshs 1,100/- for copies of Motor Vehicle Records, Kshs 25,000/- for transport, Kshs 53,000/- for the coffin, Kshs 90,000/- for catering services, and Kshs 60,000/- for tents and chairs, amounting to Kshs 288200/-. The Respondent submitted that they had proved special damages of Kshs 338,200/-, which was pleaded and proved.
10.It was submitted that the trial magistrate erred in law and in fact for failing to appreciate fully or ignoring the submissions by the appellants.
11.Regarding the award on dependency, it is submitted that the trial magistrate erred in using the ratio of 2/3 when the circumstances of the case were such that the dependency ratio could only be 1/3. It was argued that the deceased was not married but had one child, and therefore, the dependency ratio should have been 1/3, not 2/3. The appellant relied on the case of General Cargo (Transport) Limited vs Ndeme (suing as administrator of the Mwadingo Makama estate of the deceased) (Civil Appeal 174 of 2022) [2023] KEHC 27244 (KLR). The respondent submitted that the deceased was in gainful business and farming and was earning a monthly income. As s per the pleadings and submissions in the trial court, the deceased used to financially support her parents and her minor son. This was reflected in the chief’s letter, and due to the burden of providing for her child and parents simultaneously, a dependency ratio of 2/3 was fair and reasonable. Reliance was placed on the case of Mildred Aori Odunga (suing as the personal representative of Gilbert Silvano Morumbasi (deceased)) vs Hussein Dairy Limited, Kisii HCC No. 24 of 2009 eKLR, where the court applied the ratio of 2/3 for a deceased who supported his wife, children, and parents.
Analysis and Determination.
12.The duty of an appellate court is to reconsider the evidence, evaluate it independently and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. (See Gitobu Imanyara & 2 others V Attorney General (2016) eKLR).
13.The Court of Appeal outlined the principles for challenging the award of damages in Kemfro Africa Ltd Vs Meru Express Service. A.M Lubia & Another 1957 KLR 27, as follows: -
14.I have considered the submissions and the evidence presented before the trial court. It is not disputed that the deceased was 27 years old at the time of her death; the death certificate confirms her age. The appellant contends that a multiplier of 33 years was excessive. In the case of General Cargo (Transport) Limited v Ndeme (Suing as administrator of the estate of Mwadingo Mkama Beja - Deceased) [2023] KEHC 27244 (KLR), the court applied a multiplier of 30 years for a deceased who was 27 years old. In the case of Clinton Nyadieka Mose & another vs Susan Nelima ( Civil Appeal No. 33 of 2022) [2025]KEHC eKLR for a deceased who was 27 years old, the court applied a multiplier of 33 years. The deceased was a businesswoman; considering the nature of her work and the uncertainties of life, I find that a multiplier of 33 years is not unreasonable.
15.Regarding her earnings prior to her death, the respondent stated that the deceased was his daughter and was selling second-hand clothes; she had a son who was 2 years old then. She is survived by her parents, a brother, and a sister. According to the plaint, she earned Kshs. 30,000 per month. However, there was no evidence to support this claim. The death certificate indicates that the deceased was a resident of Kiliboti-Matete, which is outside Bungoma municipality. Considering her occupation as a businesswoman, I will use the Minimum Wage of Kshs. 8109.90.
16.Regarding the dependency ratio, the appellant suggests 1/3 whilst the respondent suggests 2/3. The deceased had a two-year-old son. I doubt that she would have allocated 2/3 of her income to look after her dependents. The respondents did not explain the kind of assistance the deceased gave them. A ratio of 1/3 is adequate. The amount under these heads is reduced as follows; 8109.90 x 12x 33 x 1/3 = 1,070,506.80
17.On pain and suffering, the appellant has contended that the amount awarded was excessive. The respondent maintains that the award is sufficient. The fact that the deceased died instantly was not disputed. It is likely that the deceased experienced some pain before his death. In the case of Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No 68 of 2015 [2016] eKLR, the award of Kshs 50,000/- was upheld for a deceased who died immediately after the accident. The court stated:In this case, I find that the award of Kshs. 50,000/- fair and appropriate.
18.On the loss of expectation of life, the trial court awarded a sum of Kshs 300,000/-. The circumstances in the case of Daniel Kuria Nganga (supra) were different; the plaintiff in that case provided detailed evidence to justify the sum of Kshs 300,000/-. Each case must be considered based on the evidence presented. In my view, this sum of Kshs 300,000/- is excessive; a sum of Kshs 100,000/- is adequate.
19.Special damages must be pleaded and proved, as is the well-known principle in law. The appellant claimed special damages of Kshs. 338200/- as detailed in paragraph 5 of the plaint. The respondent proved the following: Kshs. 45000/- paid to Mukusu Advocates for processing a grant ad litem; Kshs. 8100/- paid to Bungoma County Referral Hospital; Kshs. 6000/- paid to Lugulu Mission Hospital; Kshs. 53000/- for the casket; Kshs. 60,000 for catering services; Kshs. 25,000/- paid to Bakosi Funeral Services on 5/6/2023; Kshs. 50000/- paid to Bakosi Funeral Services on 10/8/2023; Kshs. 90000/- for general catering; and Kshs. 1100/- for a motor vehicle copy of records dated 9/6/2023, totalling Kshs. 338200/-. All payment receipts were submitted in court.
20.The appeal partly succeeds, the lower court judgment on quantum is set aside, and an award is made to the Respondents as hereunder:a.Pain and suffering Kshs. 50,000/-b.Loss of expectation of life Kshs. 100,000/-c.Loss of dependency Kshs. 1,070,506.80Total is Kshs 1,220,506.80Less than 20% Kshs. Kshs. 244,101.40Special damages Kshs. 338,200.00Total award Kshs. 1,314,605.00
21.Orders accordingly.
DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 22ND DAY OF JULY 2025.R.E.OUGOJUDGEIn the presence of:Mr. Wanjala For the AppellantMiss Masakhalia h/b Mr. Mukisu For the RespondentsWilkister C/A