Waweru (Suing as the Legal Representative and Administrator of the Estate of Brian Waweru Mwaura (Deceased)) v Bonafide Clearing and Forwarding Company Limited & another (Civil Appeal E506 of 2023) [2025] KECA 620 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you must prove income with actual evidence — written submissions and cited cases cannot substitute for testimony when claiming loss of dependency.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award of Kshs.5,500,000 for loss of dependency was inordinately and manifestly low such as to justify appellate interference with quantum
- 2.Whether the trial court erred in failing to assess the deceased's expected future earnings and in adopting a global award instead of the multiplier approach
- 3.Whether the trial court erred in disregarding the authorities cited by the appellant and the figures proposed in the parties' submissions
Key legal issues
#Limits of appellate interference with an award of general damages
The appellate mandate is not open-ended; the trial court's discretion in assessing general damages will only be disturbed where wrong principles were applied or the evidence was misapprehended, producing an inordinately high or low figure representing an entirely erroneous estimate.
Relying on Catholic Diocese of Kisumu v Sophia Achieng Tete, the Court held that it is not justified in substituting its own figure merely because it would have awarded a different amount at first instance. The appellant had to demonstrate an error of principle or misapprehension of evidence; merely disagreeing with the global figure of Kshs.5,500,000 did not meet that threshold, so the trial judge's discretion stood.
Burden of proving the multiplicand and dependency facts
Under sections 107, 108 and 109 of the Evidence Act, the plaintiff bore the burden of proving, on a balance of probabilities, the deceased's expected future earnings and the parents' circumstances; failing to testify or call evidence, the appellant could not rely on submissions or cited authorities as proof.
The Court noted the appellant opted not to testify or call witnesses and did not produce the documentary evidence through agreed admission. Following Mumbi M'Nabea v David M. Wachira and Daniel Toroitich Arap Moi v Mwangi Stephen Murithi, the Court held that submissions only concretise a party's case and cannot substitute material proof of income. The trial judge's finding that the proposed salary was 'plucked from the air' was upheld.
Choice between multiplier approach and global award
Where there is hardly any material to establish the key elements of the multiplier approach, particularly the earnings of the deceased, the multiplier approach is unsuited and the court may properly adopt a global award.
The Court endorsed the trial judge's reasoning that the authorities cited were useful guides but could not substitute material proof of income. Relying on Ainu Shamsi Hauliers Limited v Moses Sakwa, the Court reiterated that the multiplier approach is a method of assessment, not a dogma, and may be abandoned where the facts do not favour it. The trial court's global figure of Kshs.5,500,000, which modestly improved on the respondents' offer of Kshs.5,000,000, was therefore reasonable.
Legal principles established
#- An appellate court may interfere with the quantum of damages awarded by a trial court only where the trial court applied wrong principles or misapprehended the evidence so as to reach an entirely erroneous estimate.
- The multiplier approach is not a principle of law and may be abandoned where the facts, including absence of proof of earnings, do not favour its application; a global award is then appropriate.
- Matters pleaded in written submissions do not constitute evidence; a party must prove factual matters such as the deceased's expected earnings on a balance of probabilities.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (no specific constitutional/statutory provision quoted in the judgment)
Relief refused
#Setting aside of the trial court's award of Kshs.5,500,000 for loss of dependency and substitution with Kshs.316,800,000
The expected income of the deceased was a question of fact that the appellant, who opted not to testify or call witnesses, failed to prove; written submissions are not evidence; the multiplier approach was unsupported by evidence and the trial court was correct to adopt a global figure.
Costs
The appeal was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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 own for that awarded by the court below simply because it would have awarded a difierent figure if it had tried the case at first instance.
It is trite that whatever was contained in his written submission was not evidence.
In conclusion, we find the appeal not merited and dismiss it with costs.
Issues in the judgment
#The judgment quotes the trial judge's reasoning in a manner that appears to interrupt a quotation mid-passage ('The learned Judge observed as follows: "21. With respect, legal authorities cited by the Plaintiff...'), leaving the paragraph numbering and quotation structure ambiguous in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- AGM (Suing on Behalf of a Minor AMG - Deceased) v Buscar East Africa Limited (Civil Case 273 of 2019) [2026] KEMC 89 (KLR)[2026] KEMC 89 (KLR)26 Mar 2026
- Mutunga & another (Suing as the legal representatives of the Estate of James Musyoka Mutunga - Deceased) v Menengai Oil Refineries Limited (Civil Case E117 of 2023) [2026] KEMC 85 (KLR)[2026] KEMC 85 (KLR)24 Mar 2026followed
Cite this brief
#Cite this brief
Caselaw, "Waweru (Suing as the Legal Representative and Administrator of the Estate of Brian Waweru Mwaura (Deceased)) v Bonafide Clearing and Forwarding Company Limited & another (Civil Appeal E506 of 2023) [2025] KECA 620 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/620/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.