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

3. By way of remedies the appellants prayed for special damages of Ksh. 223,550.00, general damages under the Fatal Accidents Act and the Law Reform Act, interest, and costs. 4. The respondent led its defence on 8th August 2019, in which it denied the appellants’ claim and instead blamed the deceased for the accident. At trial, the parties agreed to apportion liability at 70% against the respondent and 30% against the deceased. The appellants called two witnesses while the respondent did not call any witness. After considering the parties’ submissions, the trial court, by a judgment dated 22nd June 2021, entered judgment for the appellants for Ksh. 3,901,100.00 made up as follows: i. Pain and suering - Ksh. 50,000.00 of life - Ksh. 50,000.00 iii. Loss of dependency - Ksh. 5,350,000.00 iv. Special damages - Ksh. 223,000.00 Total - Ksh. 5,573,000.00 Less 30% contribution - Ksh. 3,901,100.00 ii. Loss of expectation 5. The respondent was aggrieved by the award and preferred an appeal to the High Court limited to the award of Ksh. 5,350,000.00 under the Fatal Accidents Act and special damages. The respondent contended that the trial court erred by: i. awarding to the appellants general damages that were manifestly excessive and undeserved under the Fatal Accidents Act; ii. using a multiplier of 15 years where the deceased was 50 years; and iii. using Ksh. 50,000.00 as monthly earnings when proof of the same was never produced. 6. After considering the matter, the High Court found that it was not clear how the trial court had arrived at a multiplicand of Ksh. 50,000.00 per month, because the appellants never produced any evidence to show that the deceased was earning Ksh. 50,000.00 per month. Accordingly, the High Court treated the deceased as a general worker under the Regulation of Wages Order applicable in 2018 leading to an award of Ksh. 7,240.95 per month. As regards the multiplier of 15 years used by the trial court, the High Court found the same to be reasonable in the circumstances of this case, and upheld it. 7. On the award of special damages, the High Court found the damages to have been proved and upheld the award of the trial court. The High Court also found that the trial court had erred by deducting the award under the Law Reform Act from the Fatal Accident Act. 8. Ultimately, the High Court set aside the award of the trial court and substituted the same with the following award: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1936/eng@2026-09-25 2

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i. Pain and suering - Ksh. 50,000.00 of life - Ksh. 50,000.00 iii. Loss of dependency - Ksh. 868,914.00 iv. Special damages - Ksh. 223,000.00 ii. Loss of expectation Total - Ksh.1,191,914.00 Less 30% contribution - Ksh. 834,339.80 9. The court also awarded the respondent the costs of the appeal. 10. The appellants were aggrieved and lodged this second appeal, in which they repeatedly claim that the High Court erred “in law and in fact.” As far as is relevant to a second appeal, the appellants contend that the High Court erred by: i. taking into account irrelevant factors and failing to take into account relevant factors and thereby arriving at an inordinately low award of damages for loss of dependency; ii. applying wrong principles of law and thereby relying on a multiplicand of Ksh. 7,240, which was inordinately low; iii. insisting on documentary evidence to prove income and ignoring the deceased’s hotel and matatu businesses; and iv. ignoring their submissions and authorities. 11. Accordingly, the appellants prayed the court to allow the appeal with costs, set aside the judgment of the High Court and restore the award of the trial court as regards dependency. 12. In support of the appeal, the appellants’ learned counsel, Ms.Kusa, relied on written submissions dated 6th March 2025 and submitted that the High Court erred by applying a multiplicand that was manifestly too low and inconsistent with the evidence adduce and the judicial authorities relied upon by the appellants. 13. It was the appellants’ contention that they adduced evidence which showed that the deceased was running a hotel and matatus businesses. Relying on the decision of this Court in Hellen Waruguru Waweru v. Kiarie Shoe Stores Ltd. [2015] KECA 318 (KLR), counsel submitted that certicates and documents are not the only way of proving a person’s profession and earnings. She added that the multiplicand of Ksh. 50,000.00 adopted by the trial court was reasonable because the appellants produced logbooks, agreements for sale and a business permit which showed that the deceased was in the matatu and hotel businesses. 14. The appellants invited the Court to take judicial notice that the deceased could have made Ksh. 1,000.00 per day from each matatu and Ksh. 500.00 from the hotel, making a total of Ksh. 4,500.00 per day. Assuming that the deceased worked for 6 days a week, the appellants contended that he made Ksh. 108,000.00 per month. Taking into account statutory deductions, it was contended that the Ksh. 50,000.00 used by the trial court was reasonable. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1936/eng@2026-09-25 3

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15. Ultimately the appellants asked the Court to make an award made up as follows: i. Pain and suering - Ksh. 50,000.00 ii. Loss of expectation of life - Ksh. 50,000.00 iii. Loss of dependency - Ksh.6,000,000.00 iv. Special damages - Ksh. 223,000.00 v. Less 30% contribution - Ksh.1,896,900.00 Total - Ksh.4,426, 100.00 16. The appellants also urged the Court to award them costs and interest. 17. Ms. Anyango, learned counsel for the respondent, opposed the appeal relying on written submissions dated 11th June 2026. She submitted that the High Court arrived at the correct decision because the appellants never adduced any evidence regarding the deceased’s earnings. Counsel further argued that although the appellants adduced evidence that the deceased owned some matatus and operated a hotel business, they did not adduce any evidence of the earnings from those businesses. It was further contended that the appellants’ evidence showed that the matatus were repossessed, and that the trial court did not demonstrate how it arrived at a multiplicand of Ksh. 50,000.00 per month. 18. It was the respondent’s further submission that the onus of proving the deceased’s earnings was on the appellants and that they failed to discharge that duty. The respondent relied on Cecilia W. Mwangi & Another v. Ruth W. Mwangi [1977] KECA 62 (KLR) and submitted that it was not enough for the appellants to throw gures at the Court and expect an award without proof. For the foregoing reasons the appellant urged the Court to dismiss the appeal with costs. 19. We have carefully considered this appeal. We must reiterate that the same is limited only to questions of law. The questions of fact were settled by the concurrent ndings of the two courts below and it is remiss for the appellants to assert at this stage that the High Court “erred in law and fact” (See Kenya Breweries Ltd v. Odoyo [2010] KECA 498 (KLR). In our perception, the only issue of law raised in this appeal is 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. 20. At trial two witnesses testied in support of the appellants’ case. The 1st appellant was one of them. She produced two letters, one from Immaculate Safaris Sacco Ltd. dated 15th February 2019, stating that the deceased was a bona de member of the Sacco, who owned two vehicles. The other letter, dated 19th February 2019 was from Kimisahline Travellers Sacco Ltd., which also stated that the deceased owned two vehicles. On cross-examination, the 1st appellant stated that some of the vehicles were repossessed because of outstanding loans, but she did not clarify when, or which vehicles. She also produced a single business permit for the year 2018 for Suneka Best Hotel. 21. What is noteworthy about the evidence of the 1st appellant is that she said nothing about the amount of the money that the deceased was making from his business, not even an estimated income. The other witness, Alfred Nyakinye Orako, testied only about the accident. It was in light of that evidence that the High Court concluded that the trial court had erred in holding that the deceased was earning Ksh. 50,000.00 per month and used the same as the multiplicand. 22. We cannot fault the High Court in its conclusion. With due respect to the appellants, they cannot approbate and reprobate. On the one hand, they contend that they proved the multiplicand and that the High Court erred by ignoring their evidence in that respect. On the other hand, they invite the Court to take judicial notice of the multiplicand. If indeed they proved the multiplicand, then the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1936/eng@2026-09-25 4

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question of taking judicial notice does not arise. On the other hand, if the multiplicand was an issue that the High Court could have properly taken judicial notice of, then it would not have been necessary to call evidence to prove the same. 23. We are rmly of the view that the appellants cannot ask the Court to take judicial notice of what the deceased was earning. That is not a fact of the type listed in section 60 of the Evidence Act in respect of which the court can take judicial notice, nor is it a matter of general or local notoriety. It is an issue peculiarly within the knowledge of the appellants and to be proved by evidence. Prof. Peter Murphy, in the book, A Practical Approach to Evidence, 2nd Edition, Blackstone, 1985, explains the essence of judicial notice as follows at page 450: “ [N]o evidence is required of a fact of which the court will take judicial notice, that is to say a fact of which the court will acknowledge the truth without the necessity of proof. Facts which will be judicially noticed are those which are notorious, or which are readily demonstrable by reference to proper sources. If the fact is not one which will be judicially noticed, it must be proved by evidence.” (Emphasis added). 24. At the very least, the appellants could have called a witness or witnesses from the transport Saccos to testify to the approximate daily income from the matatu business. This they did not do, and therefore they cannot shift the responsibility to the Court to glop in the dark in search of some gures. 25. The decision of this Court in Hellen Waruguru Waweru v.Kiarie Shoe Stores Ltd. (supra) is of no assistance to the appellants in the circumstances of this case. That decision cited with approval the case of Jacob Ayiga Maruja & Another v. Simeone Obayo [2005] eKLR, where this Court held as follows: “ We do not subscribe to the view that the only way to prove the profession of a person must be by production of certicates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things”. 26. All that the Court stated is that earning are not proved only by production of documents. They can be proved by any other form of evidence, including credible oral evidence. Those decisions therefore do not obliterate a plainti’s duty to prove the multiplicand. Nor do they, even remotely, suggest that the Court can take judicial notice of such matters as a party’s earnings. 27. Having carefully considered this appeal, we nd 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. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. K. M’INOTI JUDGE OF APPEAL .................................. E. C. MWITA JUDGE OF APPEAL .................................. B. ONGAYA https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1936/eng@2026-09-25 5

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JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1936/eng@2026-09-25 6

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