A. Loss of Dependency
44.The Appellant further submitted that the assessment of quantum was a claim for general damages and that the same was based on the discretion of the court. He argued that, however, the said discretion had to be exercised judiciously at all times. He added that in assessing damages the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two (2) cases were exactly the same as was held in the case of Stanley Maore vs Geoffrey Mwenda  eKLR. He further relied on the case of Mbaka Nguru & Another vs James George Rakwar  eKLR where it was held that the award must reflect the trend of previous, recent and comparable awards.
45.He argued that the Trial Court’s award of Kshs 800,000/= was not based on any arithmetic and evidence and the same was disproportionally high in the circumstances. In this respect, he relied on the case of Bashir Ahmed Butt vs Ahmed Khan (1982-88) KAR 5 where it was held that an appellate court will not disturb an award of damages unless it was so inordinately high or low as to represent an entirely erroneous estimate.
46.He also cited the cases of West (H) & Son Ltd vs Shepherd  A.C 326 pg 345 and Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd  eKLR where the common thread was that comparable injuries should be compensated by comparable awards and that the amounts that were awarded were to considerable extent, conventional.
47.He was emphatic that no birth certificate was ever produced to ascertain the age of the deceased minor. He urged the court to rely on the authorities he had cited in his submissions during trial. He further placed reliance on the cases of Mwanzia Ngalali Mutua vs Kenya Bus Services Limited & Another (eKLR citation not given) that was quoted in Albert Odawa Gichimu Githenji  eKLR and Palm Transporters & Another vs WWW  eKLR where an award of Kshs 400,000/= was upheld on appeal for the estate of a thirteen (13) year old deceased.
48.He also cited the case of Kwamboka Grace vs Mary Kimuma  eKLR where an award of Kshs 720,000/= for the estate of a five (5) year old deceased was reduced to Kshs 300,000/= on appeal.
49.He thus proposed that general damages under the Fatal Accident Act be awarded at Kshs 300,000/=.
50.On their part, the Respondents submitted that the global award of Kshs 800,000/= made by the Trial Court under this head was within the regime of awards made on loss of dependency for similar ages. He referred the court to comparable awards made in several cases as follows:-
51.They argued that from the aforesaid cases and in light of the flaring inflation in the country currently, the Trial Court did not apply wrong principles of law or err in any way so as to arrive at an inordinately high and erroneous award. It was their contention that the award was within the regime of awards made on loss of dependency for similar ages.
52.Notably, the Kenyan legal system is based on common law. It places the principle of stare decisis or precedent on a very high pedestal. Indeed, a court is bound by the decisions of courts above it. This is for purposes of ensuring that there is consistency in the decisions that are delivered to provide certainty in the judicial system.
53.Whereas a court has the discretion to decide the amount of damages to award, courts must derive guidance from comparable past decided cases so that the award is as close as possible to damages awarded in other comparable cases. Decisions of courts of equal and competent jurisdictions are merely persuasive and not binding on each other.
54.A perusal of the Post Mortem Report showed that the deceased was about six (6) years old at the time of his death. It was the 1st Respondent’s evidence that the deceased was a jovial boy who attended school at Vihiga Primary School and was to join grade one (1) the following year. He asserted that the deceased minor had a promising future.
55.Notably, the ambition of a child in nursery school is not guaranteed in reality. This is because of the vagaries of life such as dropping out from school, ill health, death, unemployment, change of career and many other factors. It was easier to discern the career path of children who were in college or universities. It was for that reason that awarding a global sum for damages in a case where a child of tender years had died as a result of negligence was most reasonable to compensate his estate.
56.Any decision that is arrived at by a court must be justifiable and based on some sort of rationale that could be followed and understood by all and sundry. Save for its observation that Article 26(1) and (3) of the Constitution of Kenya provides that a person shall not be deprived of his life, the Trial Court did not refer to any past decided cases or give its reasoning of how it arrived at the global sum of Kshs 800,000/=. This court thus agreed with the Appellant that the Trial Court erred in this regard as all decisions of the court must be reasoned in line with Order 21 Rule 4 of the Civil Procedure Rules, 2010 that provides as follows:-
57.Having said so, this court noted that both the Appellant and the Respondents herein did not object to this mode of assessment of damages. What was in contestation was whether or not the global sum of Kshs 800,000/= was inordinately high as had been contended by the Appellant herein warranting this court to disturb the same.
58.It is important to point out that courts must be cautious not to give exaggerated awards as they ought to cut a reasonable balance to ensure that deceased’s estates’ are compensated fairly and reasonably while insurance companies are given time and space to thrive economically. They must also not award very low awards as to make a mockery of compensation to families of deceased persons.
59.Having had due regard to the cases the Appellant relied upon which gave awarded between 2007 and 2017, this court came to the firm conclusion that a global sum of Kshs 300,000/= he had proposed was inordinately low as the cases were older and did not take inflationary trends into considerations.
60.On the other hand, the cases the Respondents relied upon were more recent and therefore more relevant in the circumstances of the case. Taking the effects of inflation into account, it was the considered view of this court that a global sum of Kshs 800,000/= was not unreasonable as compensation to the Respondents for the loss of the deceased minor’s life that was cut short due to the negligence of the Appellant and/or its driver and/or agent and/or servant as it was in line with similar and/or comparable cases that were cited hereinabove.
61.This court was thus not persuaded to find and hold that the Trial Court misapplied the law and misdirected itself thus arriving at an erroneous estimate of the damages necessitating it to disturb its award.