Mutemi v Kingele (Suing as the Personal Representative of the Estate of Michael Lindi Kingele - Deceased) [2026] KEHC 15929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CIVIL APPEAL NO. E277 OF 2023

PETER MUEMA MUTEMI …..… ………….......…………. APPELLANT

VERSUS

VICTORIA NTHEMBA KINGELE (Suing as the personal representative of the Estate of Michael Lindi

Kingele (Deceased) .………………………….....…..…RESPONDENT

(Being an Appeal from the Judgment/Decree of the Honourable P. Wechuli (PM) in Kithimani

PMCC NO. 27 of 2020 delivered on 5th October, 2023)

JUDGEMENT

1. By a Plaint dated 5th November 2020, the Respondent (Plaintiff then) sued the Appellant (Defendant then) claiming general damages and special damages of Kshs.114,650/= plus costs and interest following a fatal road traffic accident that occurred on 28th September 2019 along Matuu-Thika Road at Kivandini Area involving motor vehicle registration number KCA 740A belonging to the Appellant and in which Michael Kilandi Mutemi (Deceased) was a lawful passenger. The Respondent further averred that the Appellant and the driver of the said motor vehicle negligently controlled the same, causing it to lose control, veer off the road, and overturn an accident thereby occasioning fatal injuries to the deceased person.

2. The Appellant filed a Statement of Defence dated 20th April 2021 basically denying the Respondents’ claim and pleading that the accident if at all it occurred which is denied the same was wholly caused or substantially contributed to by the negligence of the deceased who failed to exercise reasonable care expected of a passenger in the circumstances. The Appellant prayed that the Respondents’ suit be dismissed with costs.

3. On the 29th July 2021, the instant suit was stayed pending hearing and determination of the test suit in Kithimani CMCC No. E026 of 2020 which was selected for the purpose of determination on the issue of liability. Judgment in the test suit was delivered on the 9th June 2022 and the issue of liability determined at 100% in favour of the Plaintiff (Respondent) against the Defendant (Appellant).

4. following the determination of liability in the test suit, this instant suit proceeded for assessment of damages on the 24th August 2023 before P. Wechuli (PM) who upon considering the evidence adduced proceeded to deliver judgment on 5th October 2023 as follows:-

i. Liability 100% in favour of the Plaintiff

ii. Loss of dependency Kshs. 3,700,000.00

iii. Pain and suffering Kshs. 10,000.00

iv. Loss of expectation of life Kshs. 100,000.00

v. Special damages Kshs. 114,650.00

Total Kshs. 3,924,650.00

5. The Appellant being aggrieved by the above judgement, lodged this appeal vide the Memorandum of Appeal dated 18th October 2023 raising ten (10) grounds of appeal basically challenging the award on Loss of dependency which the Appellant claims to be manifestly high and the award of general damages which he claims not to have been incurred by the Beneficiaries of the Deceased herein.

6. The Court directed that the appeal be canvassed by way of written submissions and both parties complied.

Analysis and determination

7. This being a first appeal, I am reminded of the primary role as a first appellate court namely, 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. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd & Others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.

8. In the case of Mursal & Another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -

“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. 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 record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate 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”.

9. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.

10. I have carefully perused the Record of Appeal and the grounds of appeal and keenly considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited. The issue of liability was determined at 100% in favour of the Respondent against the Appellant in the test suit in Kithimani CMCC No. E026 of 2020 thus liability has not been challenged in this Appeal.

11. The two pertinent issues that emerge for this court’s determination in this appeal are :-

A. Whether the award for loss of dependency can be disturbed by this court; and

B. Whether the award for special damages can be set aside.

12. Before I proceed to determine the above two issues, I will first address an issue raised by the Respondent in her submissions that the Appellant herein did not extract and or attach copies of the Decree and Order being appealed from as required under Section 66 of the Civil Procedure Act. The Respondent therefore submits that as provided for under Section 66 of the Civil Procedure Act, an Appeal to this Court can only lie against a Decree or Order and no competent appeal can be brought unless such a Decree or Order is formally extracted as that is the basis of the Appeal. Therefore, the instant Appeal is fatally defective in the absence of a Decree. Reliance was placed in the cases of Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR and in Bwana Mohamed Bwana vs Silvano Buko Bonayo Others (2021) eKLR where the court had this to say where the Record of Appeal was incomplete: -

"Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred bylaw, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues. "

13. The Respondent urged this court to find the Appeal to be fatally defective and strike out the same.

14. The Appellant did not submit on this issue.

15. A perusal of the Record of Appeal dated 7th August 2025 and the Supplementary Record of Appeal dated 13th April 2026 show that neither a copy of the Decree or Order of the judgement being appealed from are missing. However, I have seen a copy of the judgment delivered by the trial court on 5th October 2023 at pages 72 – 76 of the Record of Appeal.

16. Section 79 of the Civil Procedure Act provides as follows;

“The provisions of this Part relating to appeals from original decrees shall, as far as may be, apply to appeals—

(a)from appellate decrees; and

(b)from orders made under this Act or under any special or local law in which a different procedure is not provided.”

17. In the case of Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR) the Court held as follows;

“31. In this Court’s view, the failure to include a certified copy of the decree in the Record of appeal should not invalidate the present appeal for reasons of non-compliance as this Court has had the benefit of reading Judgment which was rendered by the Trial Court.

32.It is the finding of this Court that the lack of a certified copy of a decree does not in any way affect the appellant’s appeal and the right to be heard as enshrined under Article 50 of the Constitution. It is thus incorrect for the respondent to assert that the appellant’s appeal is defective. I therefore decline to strike out the appeal on the said ground.” (Emphasis mine)

18. In the above cited judicial decision, the Court held that failure to include a certified copy of the decree in the Record of Appeal should not invalidate an appeal.

19. The Constitution at Article 159 (2) (d) reminds us to administer justice without undue regard to procedural technicalities. In the present appeal, the trial Court file has been availed and the Court has had opportunity to read the judgement of the trial Court that was delivered on 5th October, 2023. Therefore, failure to attach the decree and/or a certified copy of the judgement of the Trial Court is not fatal.

20. Taking the foregoing into consideration, I find that the Respondent’s argument that the appeal should be struck out for failure to include a certified copy of decree or order of the trial court’s judgement to be misconceived and wrong. The same is overruled even though it was improperly raised late in the submissions which are not pleadings. The Court of Appeal in Avenue Car Hire & Another vs. Slipha Wanjiru Muthegu Civil Appeal No. 302 of 1997 held that no judgement can be based on written submissions and that such a judgement is a nullity since written submissions is not a mode of receiving evidence set out under Order 17 Rule 2 of the Civil Procedure Rules [now Order 18 Rule 2 of the Civil Procedure Rules].

21. Now turning to the issue as to whether the award for loss of dependency can be disturbed by this court, It is trite law that an appellate court should be slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the trial court acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.  The question is not what the appellate court would award but whether the trial court acted on the wrong principles (See Maraga V Musila (1984) 1 KLR 251). 

22. I have perused the evidence that was tendered on the head of loss of dependency. The deceased is said to be aged 23 years and unmarried at the time of his death but had his mother, brother and sister who were his dependents. The deceased met hi untimely death while in the course of fending for those who depended on him. It was his mother’s testimony that the deceased used to earn Kshs.30,000/= per month from his job as a painter/contractor and would use the salary to assist her mother and siblings. With his demise, his mother was robbed of one of her caregivers in her old age.

23. In her judgement, the trial court stated that she was guided by the evidence of PW1 (Respondent) that the deceased used to earn Kshs.30,000/= per month as a painter was not controverted by any contrary evidence from the Appellant. This was a reasonable figure which translates to an earning of Kshs.1,000/= per day. However, since the vagaries of life are such that the said deceased would be out of work on some instances, the trial court was of the considered view that an average earning of Kshs.25,000/= per month would be a much safer option. The trial Magistrate proceeded to peg the monthly earning of the deceased at Kshs.25,000/=. The Learned Magistrate stated that since the deceased died at the age of 23 years old, given the vicissitudes of life, a multiplicand that considers a further life span of 37 years is most appropriate. In so finding the trial court was guided by the decision in Annalisa Muigai & Another v Beatrice Waithera Gitiri & Another (2020) eKLR in which it was stated that:

“On the contrary, many courts use the retirement age of 60 years as the upper limit unless it is demonstrated that the deceased suffered from a particular disease which could have lowered his life expectancy or that he was engaged in a particular risky occupation. Neither issues are factors here”

24. The trial Magistrate adopted the age of 37 years as a multiplier since there was no evidence of any disease that could have lowered his life expectancy of the deceased or that his job was risky. The deceased was unmarried. Since there was no proof of dependents, the ratio of 1/3 was applied with the calculation as follows:

Kshs.25,000/= x 37 x 12 x 1/3 = Kshs.3,700,000=

25. I have re-evaluated the foregoing award on loss of dependency. The Respondent who is the mother of the deceased testified that the deceased was a painter/contractor who was earning Kshs.30,000/=. She did not adduce any evidence to support this. The only place that shows the deceased was a painter is the Death Certificate (PXt.1), This court does not agree that a Death Certificate is conclusive proof of the deceased’s occupation and how much his income was. I find that the trial court by settling on average earning of Kshs.25,000/= per month to be a much safer option as opposed to the figure of Kshs.30,000/= given by the Respondent as the deceased’s monthly income to have been speculative if not guess work, there was no basis upon which the trial court deviated from what was presented before it, in any event, the Kshs.30,000/= had not been proved on a balance of probabilities. The average earning of Kshs.25,000/= per month can only be said to have been plucked from the air and the same did not have any legal backing.

26. It is my considered opinion that the Respondent having failed to prove that in deed the deceased was a painter who was earning Kshs.30,000/= per month, the trial court ought to have treated the deceased as a causal labourer who did not have a profession and applied either the global approach or the then applicable minimum wage. In the circumstances of this case, I will adopt the minimum wage for a casual labourer. I have established that the applicable minimum wage as per Legal Notice No. 2 of 2019, (Regulation of Wages (General) (Amendment) Order, 2018) for general labourers was Kshs.7,240.95. I will adopt a multiplicand of Kshs.7,240.95 and a multiplier of 37 years on a ratio of 1/3 calculated as follows:

Kshs.7,240.95 x 37 x 12 x 1/3 = Kshs.1,071,660.60

27. On Special damages, the Appellant argues that the funeral expenses were borne by Martin Muthui, who is not a beneficiary of the estate under the Fatal Accidents Act; as such, the award of special damages was erroneous. On this argument, this court takes judicial notice that now days it is common for the family and relatives of a deceased person to come up with a plan on how to organize the funeral and this has gone as far as creating WhatsApp Groups, physical and virtual meetings where leaders are appointed to oversee the same and even treasurers who receive contributions and organizers are selected for specific purposes. All this is aimed at giving the deceased a well-planned descent send off. Therefore, in this case if Martin Muthusi is the person in whose name the receipts for the funeral expenses were issued, the Appellant did not prove that whatever amount he received was not used towards the funeral expenses of the deceased herein. I find that line of argument to be unfounded. The case of Leah Wairimu Zakaria & another v Leah Wairimu Zakaria & 2 Others [2014] eKLR is distinguishable from this case in that, in that case funeral expenses were used by persons other than beneficiaries of the estate and not towards the deceased’s funeral. In this case the receipts in the name of Martin Muthusi show the items or expenses that were used in the funeral of the deceased herein and not for any one else.

28. I have observed that the Respondent pleaded Kshs.114,650/= including funeral expenses, Petition for letters Ad Litem, fees for copy of records and postage, a quick totalling of the receipts in the Record of Appeal adds up to Kshs.114,650/=. I will therefore allow the claim of Kshs.114,650/= which was specifically pleaded and strictly proved as special damages.

29. In the end, the Appeal partly succeeds on the award of Loss of dependency by the trial court which is set aside and substituted with an award of Kshs.1,071,660.60.

30. Accordingly, judgement is entered for Respondent against the Appellant in the following terms:

i. Liability 100% in favour of the Respondent

ii. Loss of dependency Kshs.1,071,660.60

iii. Pain and suffering Kshs. 10,000.00

iv. Loss of expectation of life Kshs. 100,000.00

v. Special damages Kshs. 114,650.00

Total Kshs. 1,296,310.60

31. The Respondent shall also have the costs of the lower court case plus costs and interest at court rates from the date of this judgement until payment in full.

32. Each party will bear own costs of the Appeal.

33. Stay of execution of 30 days is granted. Right of Appeal 30 days.

34. Orders accordingly, file closed.

JUDGMENT DATED, SIGNED & DELIVEREDAT MACHAKOS THIS 14TH OCTOBER 2026

NOEL I. ADAGI

JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 14TH OCTOBER 2026

In the presence of :

Mr. Kyalo h/b for Mr. Mwihia for Respondent

Ms. Otieno h/b for Ms Nyata for Appellant

Millygrace- Court Assistant