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Court of AppealDismissedCivil Appeal E001 of 2022

Nyarabo & another (Administrators of the Estate of Nahson Nyarabo Nyandega - Deceased) v China Henan International Co-operation

Court of Appeal
25 September 2026
2,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a second appeal, limited to questions of law, against the High Court's revision of a fatal accident damages award. The appellants, administrators of the estate of Nahson Nyarabo Nyandega, who died in a road accident on 27 July 2018, had obtained Ksh. 3,901,100 from the Chief Magistrate's Court at Kisii after 70/30 liability apportionment, using a multiplicand of Ksh. 50,000 per month. The respondent appealed to the High Court (Ougo, J.), which found the multiplicand unproved, substituted Ksh. 7,240.95 per month drawn from the Regulation of Wages Order, upheld the 15-year multiplier and special damages, corrected the unlawful deduction of the Law Reform Act award, and reduced the total to Ksh. 834,339.80, with costs of that appeal to the respondent. Before the Court of Appeal (M'inoti, Mwita and Ongaya, JJA), the appellants argued the High Court applied a wrongly low multiplicand, ignored the deceased's matatu and hotel businesses, and disregarded their authorities, relying on Hellen Waruguru Waweru v Kiarie Shoe Stores. The respondent, relying on Cecilia W. Mwangi, maintained there was no evidence of earnings. The Court held that a second appeal lies only on questions of law; the concurrent findings of fact stood. The 1st appellant gave no evidence of income, not even an estimate, and earnings cannot be judicially noticed under section 60 of the Evidence Act. Waruguru Waweru and Ayiga Maruja merely reject documents as the exclusive mode of proof and do not displace the duty to prove the multiplicand. The appeal was dismissed with costs to the respondent, the High Court's decision being upheld.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court erred in holding that the appellants had not proved the multiplicand of Ksh. 50,000.00 per month and instead taking recourse to the Regulation of Wages Order

Key legal issues

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01

Whether the multiplicand of Ksh. 50,000.00 per month was proved on the evidence

Holding

It was not proved; the 1st appellant gave no evidence of the deceased's earnings, and the High Court was entitled to fall back on the Regulation of Wages Order.

Reasoning

The 1st appellant produced Sacco letters and a business permit showing ownership of vehicles and a hotel but said nothing about income, not even an estimate. The other witness testified only about the accident. The appellants could not approbate and reprobate by claiming proof while also inviting judicial notice. Earnings are peculiarly within a party's knowledge and must be proved by evidence; the Saccos could have been called to testify to daily income but were not.

p. 4
02

Whether Hellen Waruguru Waweru v Kiarie Shoe Stores assists a party who led no evidence of earnings

Holding

It does not; that line of authority only rejects documents as the exclusive mode of proof and does not displace the duty to prove the multiplicand.

Reasoning

The Ayiga Maruja decision cited in Waruguru Waweru holds that earnings may be proved by any form of evidence, including credible oral evidence, not only documents. That does not remove the plaintiff's burden of proof, nor does it permit judicial notice of a party's earnings. The appellants adduced neither documentary nor oral evidence of income, so the authority is of no assistance.

p. 5

Legal principles established

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  • A second appeal is confined to questions of law; concurrent findings of fact by the two courts below are not open to challenge.
  • A party's earnings are not a fact of which a court may take judicial notice; they must be proved by evidence, documentary or credible oral evidence.
  • Authorities permitting proof of earnings without documents do not obliterate a plaintiff's duty to prove the multiplicand.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
HCCA No. 079 of 2020
Jurisdiction invoked
Second appeal to the Court of Appeal on questions of law only (section 72 of the Civil Procedure Act framework as invoked by the parties; the judgment does not cite the specific provision)

Relief refused

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Setting aside the High Court judgment and restoring the trial court's award of Ksh. 5,350,000.00 for loss of dependency

Appellants failed to prove the multiplicand by evidence; judicial notice of earnings is not available

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are firmly of the view that the appellants cannot ask the Court to take judicial notice of what the deceased was earning.
Judicial notice and proof of earnings
Having carefully considered this appeal, we find the same to be utterly bereft of merit. We uphold the decision of the High Court and dismiss the appeal with costs to the respondent. It is so ordered.
p. 5Disposition
Those decisions therefore do not obliterate a plaintiff's duty to prove the multiplicand.
p. 5Burden of proving the multiplicand

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyarabo & another (Administrators of the Estate of Nahson Nyarabo Nyandega - Deceased) v China Henan International Co-operation", Case Analysis (2026). Civil Appeal E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1936/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.