( Being an appeal from the judgment and decree by Hon. M.W Kibe, Senior Resident Magistrate, in Makindu Magistrate’s Civil Suit No. E030 of 2023 delivered on 20 th May, 2025 )
JUDGMENT.
Introduction
1. The Appellant sued the Respondent vide a plaint dated 23 rd February, 2023 in which the Appellant prayed for special damages, general damages, loss of expectation of life, loss of dependency and pain and suffering under the Law Reform Act and the Fatal Accident Act, costs, interests of all items pleaded and any further relief the Honourable Court deems fir to grant.
2. The Appellant pleaded that on or about the 11 th August, 2022 the deceased was lawfully travelling aboard motor vehicle registration number KCR 015N along Email – Wote road at welfare when the said motor vehicle was so negligently, dangerously, and/or carelessly controlled and/or driven by the Defendant either by himself and/or his duly authorized driver, agent and or servant that the same veered off the road and lost control while over speeding and plunged into a river/culvert as a result whereof the deceased sustained fatal injuries.
3. In a defence dated the 10 th day of March, 2023 , the Respondent denied the Appellant’s claim in its entirety and put her to strict proof and without prejudice the appellant further pleaded that the accident was wholly caused by and or contributed by the negligence of the Deceased and denied being vicariously liable for the said accident.
4. Parties recorded a consent on liability in the ratio of 90:10 and the trial court subsequently rendered a judgment in which the Appellant was awarded Kshs. 50,000.00 in pain and suffering, Kshs. 100,000.00 in loss of expectation of life, Kshs. 1,000,000.00 being the global figure for loss of dependency, special damages of Kshs. 62,550.00 totaling at Kshs. 1,212,550.00 Less 10% Contribution the total amount payable was Kshs. 1,091,295.00.00
5. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 15 th day of June, 2024 on the following Seven (7) grounds: -
1. That the Honourable trial magistrate erred in law and fact in awarding a global sum of Kshs. 1,000,000.00 as loss of dependency which sum is too low in the circumstances.
2. That the Honourable trial magistrate erred in law and fact by finding that the deceased did not leave behind any biological children or wife yet the deceased left behind his mother who is a Dependant under section 4(1) of the Fatal Accidents Act.
3. That the learned magistrate erred in law and in fact in failing to properly evaluate the extent of dependency and the financial contribution made by the deceased to his dependants thus leading to an arbitrarily and unjust award on loss of dependency.
4. That the learned magistrate erred in law and fact in failing to consider the deceased working capacity, income and potential future earnings which are critical factors in determining fair compensation on loss of dependency.
5. That the learned trial magistrate erred in law and in fact by failing to provide sufficient reasons or basis in arriving at the global and nominal sum awarded as loss of dependency thus rendering the decision arbitrary and without proper legal foundation.
6. That the learned magistrate erred in law and fact in failing to consider the Appellant’s pleadings, evidence and submissions on record.
7. That the learned magistrate erred in law and fact in failing to consider conventional awards in cases of similar nature.
6. Consequently, the Appellant prayed that the appeal to be allowed as prayed and the judgement delivered on the 20 th day of May, 2024 be set aside and the award therein on loss of dependency be reassessed and that the costs of this appeal to be borne by the Respondent.
7. Appeal was canvassed by way of written submissions, and both Counsel filed their respective submissions as directed.
The Appellant’s submissions
8. The Appellant filed their written submissions dated the 19 th day of September, 2024 in which it was submitted that the trial magistrate erred by awarding a global sum of Kshs. 1,000,000.00 for loss of dependency despite uncontroverted evidence of the deceased's age being 35 years and monthly income of Kenya Shillings Kshs. 15,000.00 and the fact that the dependants were his mother and siblings and that the same was corroborated by the chief’s letter and witness testimony.
9. It was submitted that resorting to a global sum was improper where sufficient evidence existed to apply the multiplier approach and that by doing so the court gave an award that was inordinately low and unjust award warranting appellate interference.
10. It was submitted that on the question of dependents, Section 4(1) of the Fatal Accident Act was applicable in the sense that the deceased mother and siblings ought to have been properly recognized as dependent hence the multiplier rule was applicable in the circumstances and not a global award.
11. The Appellant relied upon the case of Watt vs Thomas [1947] A.C. 484, Peters vs Sunday Post Limited [1958] EA 424, Selle vs Associated Motor Boat Co. Ltd & Others (1968) EA 123, Butt vs Khan [1981] KLR 349, Hassan vs Nathan Mwangi Kamau Transporters [1986] KLR 457, Kenya Breweries Ltd vs Saro [1991] KLR 408, Mwanzia vs Ngalali Mutua (2004) eKLR, Abok James Odera t/a A.J. Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, Board of Governors of Kangubiri Girls High School vs Jane Wanjiku & Another [2014] eKLR, Moses Mairua Muchiri vs Cyrus Maina Macharia (2016) eKLR; Oyugi & Another vs Yaa & Another (Civil Appeal 88 of 2022–2023, KEHC-21987 KLR) and Deceased (Civil Appeal E034 of 2023) [2025] KEHC 7478 in support of their case.
Respondent’s submissions
12. The Respondent filed their written submissions dated the 17 th day of October, 2025 in which in challenging the Appellants’ first two grounds of Appeal challenging the trial court’s adoption of the global sum it was submitted that the multiplier approach is a method and not a rigid legal principle and may properly be abandoned where the underlying fact such as age, income and dependency period cannot be established without speculation.
13. The Respondent submitted that the deceased's certificate of death describes his occupation as a turn boy which is consistent with casual labourer and that no documentary evidence was produced to substantiate the alleged monthly income of Kshs. 15,000.00 and that the applicable multiplicand if any should have been the prevailing minimum wage for general Labourers of Kshs. 8,109.90.
14. The Respondent further submitted that in the absence of proof of formal employment with a retirement age of 60 as well as the absence of authority guiding the appropriate working life span then a multiplier of only 15 years would be justified by comparable authorities involving deceased persons of similar age. As the income was not proved, and to this end the Respondent maintains that the multiplier approach is inherently speculative in this case and that the trial court correctly resorted to a global sum, which should be upheld.
15. It was further submitted on dependency that the trial magistrate did not err in failing to recognize the siblings as dependants as section 4(1) of the Fatal Accidents Act confines beneficiaries to the wife, husband, parent and child of the deceased thereby excluding siblings.
16. It is further submitted that the Appellant failed to produce receipts or other tangible evidence quantifying the support given to the mother and siblings and that the Chief's letter relied upon is an unreliable indicator of dependency since it is typically obtained for succession purposes and that the Appellant's own pleadings acknowledging five other siblings of age but no evidence to demonstrate they were supporting the Appellant to hence undermining the claim of sole or high dependency especially since there is evidence the deceased lived with his mother.
17. In conclusion the Respondent submitted that the Appellant bore but did not discharge the burden of proving the extent of the deceased's support to his family and that since the Appellant did not appeal the awards for pain and suffering, loss of expectation of life or special damages, those heads should stand undisturbed.
18. The Respondent thus prays that the appeal be dismissed and the trial court's judgment and decree be upheld and costs be awarded to the Respondent.
19. The case laws relied upon in support of their submissions are Njuguna & Another vs Swan Carriers Ltd [2004] eKLR, Mwanzia vs Ngalali Mutua & Another, Mumias Outgrowers Company Limited vs Regina Achieng Okoth (suing as legal representative of the estate of Joseph Odhiambo Jalango, Deceased) [2017] eKLR , and John Waweru vs Asenath Karua M'njau (Legal representative of the estate of Nelson Owiti, Deceased) [2016] eKLR .
Analysis & determination
20. This being a first appeal, this court is under a duty to re-evaluate and re assess the evidence and make its own conclusions. It must, however, bear in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. In Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR , the court stated as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
21. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
22. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango vs Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419 . This court follows the same principles.”
23. The principles espoused in the above Court of Appeal decision have stood the test of time and continue to be applied by all appellate courts.
24. Further, I am of the considered view that general damages are damages at large whose purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation. Awards ought to be reasonable and must be assessed with moderation bearing in mind that the large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible, comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see Tayab vs Kinanu [1983] KLR 114 and West (H) & Son Ltd vs Shephard [1964] AC 326, 345 ).
25. I have considered the record of appeal, the judgment of the trial court, the grounds of appeal and the respective submissions by counsel as well as the authorities cited by both parties. The principal question for determination is whether the learned trial magistrate erred in adopting the global sum approach and whether the award of Kshs. 1,000,000.00 was inordinately low as to warrant interference by this Court.
whether the learned trial magistrate erred in adopting the global sum approach and whether the award of Kshs. 1,000,000.00 was inordinately low as to warrant interference by this Court
26. This Court notes that the assessment of damages for loss of dependency is not governed by a rigid formula as the multiplicand approach is one of the methods available to a court in assessing damages however its application must be founded upon evidence capable of supporting the variables required for the computation and where the income of the deceased as well as the extent of dependency or the appropriate period of dependency cannot be established with reasonable certainty then the court is entitled to adopt a global sum approach.
27. In the present case, the Appellant contends that the deceased was aged 35 years and earned Kshs. 15,000.00 per month and upon evaluation of the evidence I note that there was no documentary evidence establishing the deceased's alleged monthly income of Kshs. 15,000.00.
28. Further the court notes that the evidence on record particularly the Certificate of death described the deceased's occupation as that of a turn boy but there was no evidence of a contract of employment, a pay slip, a bank statement or any other cogent documentary evidence from which his actual earnings could be ascertained.
29. The Appellant submits that the absence of documentary evidence ought not to have barred the court from applying the multiplier approach and I agree that income may in appropriate circumstances be proved by oral evidence and that failure to produce a pay slip is not of itself fatal to a claim for loss of dependency but the difficulty in the present case is that the Court is not merely required to establish that the deceased earned an income, it must have a reasonable evidentiary basis upon which to determine the multiplicand and the period over which dependency would have continued.
30. Reliance is placed in the decision in Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR where the Court observed that where the multiplicand cannot be ascertained with precision courts should not become overly obsessed with mathematical calculations and may instead make a global award which is not a standard or conventional figure but one dependent upon the circumstances of each particular case.
31. This principle has continued to be applied by the courts in recent decisions.
a) More recently, in Kariuki vs Munene (Suing as the Legal Administrator of the Estate of Peris Wanjiru Mugo – Deceased) [2024] KEHC 6808 (KLR ) , the High Court considered a case in which the deceased's income and the regularity of dependency were not sufficiently established. The Court held that a global award was the appropriate approach and substituted an award of Kshs. 4,560,000.00 with a global award of Kshs. 1,000,000.00.
b) Further in Kwamboka (Suing as a Dependant and Personal Representative of the Estate of Albert Nyabongoye Onchiri) vs Okiro & Another [2024] KEHC 8442 (KLR ) the deceased was aged 35 years and his earnings could not be ascertained. The High Court upon considering comparable authorities and the circumstances of the deceased, awarded a global sum of Kshs. 1,000,000.00 for loss of dependency.
c) The same approach was also adopted in Waweru (Legal Representative of the Late Bernard Kamore Waweru) vs Wairimu & Another [2024] KEHC 16640 (KLR ) where Court found the multiplier approach unsuitable and, having considered the comparable award in Kwamboka v Okiro & Another, held that a global award of Kshs. 1,000,000.00 was adequate compensation for loss of dependency.
d) Lastly in the case of Abdulrahman (Suing as the Personal Representative of the Estate of Issa Mohammed Idhan – Deceased) vs Oyugi & Another [2025] KEHC 4407 (KLR ) , the High Court reiterated that where the deceased's earnings cannot be established, the global sum approach is appropriate. The Court specifically relied upon Kwamboka v Okiro & Another and awarded Kshs. 1,000,000.00 for loss of dependency in respect of a deceased aged 35 years whose earnings could not be ascertained.
32. The deceased herein was a young man but his precise earnings were not satisfactorily established and the evidence also did not provide a sufficiently firm basis upon which this Court could determine the appropriate multiplicand and multiplier without resorting to conjecture. I therefore find that the learned trial magistrate cannot be faulted for adopting the global sum approach.
33. I have also considered the Appellant's contention that the deceased left behind his mother and siblings who were dependent upon him.
34. Section 4(1) of the Fatal Accidents Act, Cap. 32 provides that an action brought under the Act shall be for the benefit of the wife, husband, parent and child of the deceased and this is to wit that the deceased's mother therefore falls within the statutory category of persons capable of benefiting from an action under the Act however only the existence of the relationship without additional proof does not in itself establish the extent of dependency for purposes of assessment of damages before this Court.
35. I am also of the considered view that Section 4(1) does not expressly include siblings and importantly even where dependency is alleged the court must consider the evidence demonstrating actual dependency which was not produced into evidence in this case to quantify the said dependency.
36. I have also considered whether the award of Kshs. 1,000,000.00 is so inordinately low as to amount to an erroneous estimate of the loss suffered and in my view it is not.
37. In Kwamboka vs Okiro & Another (supra ) involving a deceased aged 35 years whose earnings could not be ascertained, a global award of Kshs. 1,000,000.00 was considered adequate, also in Kariuki vs Munene (supra) the High Court similarly found a global award of Kshs. 1,000,000.00 appropriate where the evidence of regular dependency and income was inadequate.
38. I am therefore satisfied that the learned trial magistrate exercised its discretion within the permissible principles applicable to the assessment of damages for loss of dependency.
39. Accordingly, I find no basis upon which this Court should interfere with the award of Kshs. 1,000,000.00 under the head of loss of dependency and grounds 1, 3, 4, 5, 6 and 7 of the Memorandum of Appeal therefore fail.
40. As regards to ground 2, I hold that the deceased's mother falls within the category of persons contemplated under Section 4(1) of the Fatal Accidents Act. Nonetheless, recognition as a statutory dependant does not in itself determine the quantum payable.
41. The evidence of actual dependency and the circumstances of the case must still guide the court in assessing the loss.
42. I therefore find that although the trial court was required to consider the evidence relating to the deceased's mother its failure to adopt the multiplier approach did not occasion an erroneous assessment of damages in the circumstances of this case.
43. The result is that the appeal on quantum lacks merit and the award of Kshs. 1,000,000.00 for loss of dependency is hereby upheld.
44. Since the Appellant has not challenged the awards made under the heads of pain and suffering, loss of expectation of life and special damages, those awards remain undisturbed. The award of Kshs. 50,000.00 for pain and suffering, Kshs. 100,000.00 for loss of expectation of life and Kshs. 62,550.00 in special damages are accordingly upheld.
45. In the premises, the appeal is dismissed and the judgment of the trial court delivered on 20 th May, 2024 is hereby upheld.
46. The Respondent shall have costs of the Appeal .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCA NO. E063 OF 2024 AGNES WAMBUA MUTUA VS JUSTUS MBINDYO MUTULA JUDGMENT Pg. 12
JUDGMENT.
Introduction
1. The Appellant sued the Respondent vide a plaint dated 23 rd February, 2023 in which the Appellant prayed for special damages, general damages, loss of expectation of life, loss of dependency and pain and suffering under the Law Reform Act and the Fatal Accident Act, costs, interests of all items pleaded and any further relief the Honourable Court deems fir to grant.
2. The Appellant pleaded that on or about the 11 th August, 2022 the deceased was lawfully travelling aboard motor vehicle registration number KCR 015N along Email – Wote road at welfare when the said motor vehicle was so negligently, dangerously, and/or carelessly controlled and/or driven by the Defendant either by himself and/or his duly authorized driver, agent and or servant that the same veered off the road and lost control while over speeding and plunged into a river/culvert as a result whereof the deceased sustained fatal injuries.
3. In a defence dated the 10 th day of March, 2023 , the Respondent denied the Appellant’s claim in its entirety and put her to strict proof and without prejudice the appellant further pleaded that the accident was wholly caused by and or contributed by the negligence of the Deceased and denied being vicariously liable for the said accident.
4. Parties recorded a consent on liability in the ratio of 90:10 and the trial court subsequently rendered a judgment in which the Appellant was awarded Kshs. 50,000.00 in pain and suffering, Kshs. 100,000.00 in loss of expectation of life, Kshs. 1,000,000.00 being the global figure for loss of dependency, special damages of Kshs. 62,550.00 totaling at Kshs. 1,212,550.00 Less 10% Contribution the total amount payable was Kshs. 1,091,295.00.00
5. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 15 th day of June, 2024 on the following Seven (7) grounds: -
1. That the Honourable trial magistrate erred in law and fact in awarding a global sum of Kshs. 1,000,000.00 as loss of dependency which sum is too low in the circumstances.
2. That the Honourable trial magistrate erred in law and fact by finding that the deceased did not leave behind any biological children or wife yet the deceased left behind his mother who is a Dependant under section 4(1) of the Fatal Accidents Act.
3. That the learned magistrate erred in law and in fact in failing to properly evaluate the extent of dependency and the financial contribution made by the deceased to his dependants thus leading to an arbitrarily and unjust award on loss of dependency.
4. That the learned magistrate erred in law and fact in failing to consider the deceased working capacity, income and potential future earnings which are critical factors in determining fair compensation on loss of dependency.
5. That the learned trial magistrate erred in law and in fact by failing to provide sufficient reasons or basis in arriving at the global and nominal sum awarded as loss of dependency thus rendering the decision arbitrary and without proper legal foundation.
6. That the learned magistrate erred in law and fact in failing to consider the Appellant’s pleadings, evidence and submissions on record.
7. That the learned magistrate erred in law and fact in failing to consider conventional awards in cases of similar nature.
6. Consequently, the Appellant prayed that the appeal to be allowed as prayed and the judgement delivered on the 20 th day of May, 2024 be set aside and the award therein on loss of dependency be reassessed and that the costs of this appeal to be borne by the Respondent.
7. Appeal was canvassed by way of written submissions, and both Counsel filed their respective submissions as directed.
The Appellant’s submissions
8. The Appellant filed their written submissions dated the 19 th day of September, 2024 in which it was submitted that the trial magistrate erred by awarding a global sum of Kshs. 1,000,000.00 for loss of dependency despite uncontroverted evidence of the deceased's age being 35 years and monthly income of Kenya Shillings Kshs. 15,000.00 and the fact that the dependants were his mother and siblings and that the same was corroborated by the chief’s letter and witness testimony.
9. It was submitted that resorting to a global sum was improper where sufficient evidence existed to apply the multiplier approach and that by doing so the court gave an award that was inordinately low and unjust award warranting appellate interference.
10. It was submitted that on the question of dependents, Section 4(1) of the Fatal Accident Act was applicable in the sense that the deceased mother and siblings ought to have been properly recognized as dependent hence the multiplier rule was applicable in the circumstances and not a global award.
11. The Appellant relied upon the case of Watt vs Thomas [1947] A.C. 484, Peters vs Sunday Post Limited [1958] EA 424, Selle vs Associated Motor Boat Co. Ltd & Others (1968) EA 123, Butt vs Khan [1981] KLR 349, Hassan vs Nathan Mwangi Kamau Transporters [1986] KLR 457, Kenya Breweries Ltd vs Saro [1991] KLR 408, Mwanzia vs Ngalali Mutua (2004) eKLR, Abok James Odera t/a A.J. Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, Board of Governors of Kangubiri Girls High School vs Jane Wanjiku & Another [2014] eKLR, Moses Mairua Muchiri vs Cyrus Maina Macharia (2016) eKLR; Oyugi & Another vs Yaa & Another (Civil Appeal 88 of 2022–2023, KEHC-21987 KLR) and Deceased (Civil Appeal E034 of 2023) [2025] KEHC 7478 in support of their case.
Respondent’s submissions
12. The Respondent filed their written submissions dated the 17 th day of October, 2025 in which in challenging the Appellants’ first two grounds of Appeal challenging the trial court’s adoption of the global sum it was submitted that the multiplier approach is a method and not a rigid legal principle and may properly be abandoned where the underlying fact such as age, income and dependency period cannot be established without speculation.
13. The Respondent submitted that the deceased's certificate of death describes his occupation as a turn boy which is consistent with casual labourer and that no documentary evidence was produced to substantiate the alleged monthly income of Kshs. 15,000.00 and that the applicable multiplicand if any should have been the prevailing minimum wage for general Labourers of Kshs. 8,109.90.
14. The Respondent further submitted that in the absence of proof of formal employment with a retirement age of 60 as well as the absence of authority guiding the appropriate working life span then a multiplier of only 15 years would be justified by comparable authorities involving deceased persons of similar age. As the income was not proved, and to this end the Respondent maintains that the multiplier approach is inherently speculative in this case and that the trial court correctly resorted to a global sum, which should be upheld.
15. It was further submitted on dependency that the trial magistrate did not err in failing to recognize the siblings as dependants as section 4(1) of the Fatal Accidents Act confines beneficiaries to the wife, husband, parent and child of the deceased thereby excluding siblings.
16. It is further submitted that the Appellant failed to produce receipts or other tangible evidence quantifying the support given to the mother and siblings and that the Chief's letter relied upon is an unreliable indicator of dependency since it is typically obtained for succession purposes and that the Appellant's own pleadings acknowledging five other siblings of age but no evidence to demonstrate they were supporting the Appellant to hence undermining the claim of sole or high dependency especially since there is evidence the deceased lived with his mother.
17. In conclusion the Respondent submitted that the Appellant bore but did not discharge the burden of proving the extent of the deceased's support to his family and that since the Appellant did not appeal the awards for pain and suffering, loss of expectation of life or special damages, those heads should stand undisturbed.
18. The Respondent thus prays that the appeal be dismissed and the trial court's judgment and decree be upheld and costs be awarded to the Respondent.
19. The case laws relied upon in support of their submissions are Njuguna & Another vs Swan Carriers Ltd [2004] eKLR, Mwanzia vs Ngalali Mutua & Another, Mumias Outgrowers Company Limited vs Regina Achieng Okoth (suing as legal representative of the estate of Joseph Odhiambo Jalango, Deceased) [2017] eKLR , and John Waweru vs Asenath Karua M'njau (Legal representative of the estate of Nelson Owiti, Deceased) [2016] eKLR .
Analysis & determination
20. This being a first appeal, this court is under a duty to re-evaluate and re assess the evidence and make its own conclusions. It must, however, bear in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. In Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR , the court stated as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
21. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
22. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango vs Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419 . This court follows the same principles.”
23. The principles espoused in the above Court of Appeal decision have stood the test of time and continue to be applied by all appellate courts.
24. Further, I am of the considered view that general damages are damages at large whose purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation. Awards ought to be reasonable and must be assessed with moderation bearing in mind that the large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible, comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see Tayab vs Kinanu [1983] KLR 114 and West (H) & Son Ltd vs Shephard [1964] AC 326, 345 ).
25. I have considered the record of appeal, the judgment of the trial court, the grounds of appeal and the respective submissions by counsel as well as the authorities cited by both parties. The principal question for determination is whether the learned trial magistrate erred in adopting the global sum approach and whether the award of Kshs. 1,000,000.00 was inordinately low as to warrant interference by this Court.
whether the learned trial magistrate erred in adopting the global sum approach and whether the award of Kshs. 1,000,000.00 was inordinately low as to warrant interference by this Court
26. This Court notes that the assessment of damages for loss of dependency is not governed by a rigid formula as the multiplicand approach is one of the methods available to a court in assessing damages however its application must be founded upon evidence capable of supporting the variables required for the computation and where the income of the deceased as well as the extent of dependency or the appropriate period of dependency cannot be established with reasonable certainty then the court is entitled to adopt a global sum approach.
27. In the present case, the Appellant contends that the deceased was aged 35 years and earned Kshs. 15,000.00 per month and upon evaluation of the evidence I note that there was no documentary evidence establishing the deceased's alleged monthly income of Kshs. 15,000.00.
28. Further the court notes that the evidence on record particularly the Certificate of death described the deceased's occupation as that of a turn boy but there was no evidence of a contract of employment, a pay slip, a bank statement or any other cogent documentary evidence from which his actual earnings could be ascertained.
29. The Appellant submits that the absence of documentary evidence ought not to have barred the court from applying the multiplier approach and I agree that income may in appropriate circumstances be proved by oral evidence and that failure to produce a pay slip is not of itself fatal to a claim for loss of dependency but the difficulty in the present case is that the Court is not merely required to establish that the deceased earned an income, it must have a reasonable evidentiary basis upon which to determine the multiplicand and the period over which dependency would have continued.
30. Reliance is placed in the decision in Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR where the Court observed that where the multiplicand cannot be ascertained with precision courts should not become overly obsessed with mathematical calculations and may instead make a global award which is not a standard or conventional figure but one dependent upon the circumstances of each particular case.
31. This principle has continued to be applied by the courts in recent decisions.
a) More recently, in Kariuki vs Munene (Suing as the Legal Administrator of the Estate of Peris Wanjiru Mugo – Deceased) [2024] KEHC 6808 (KLR ) , the High Court considered a case in which the deceased's income and the regularity of dependency were not sufficiently established. The Court held that a global award was the appropriate approach and substituted an award of Kshs. 4,560,000.00 with a global award of Kshs. 1,000,000.00.
b) Further in Kwamboka (Suing as a Dependant and Personal Representative of the Estate of Albert Nyabongoye Onchiri) vs Okiro & Another [2024] KEHC 8442 (KLR ) the deceased was aged 35 years and his earnings could not be ascertained. The High Court upon considering comparable authorities and the circumstances of the deceased, awarded a global sum of Kshs. 1,000,000.00 for loss of dependency.
c) The same approach was also adopted in Waweru (Legal Representative of the Late Bernard Kamore Waweru) vs Wairimu & Another [2024] KEHC 16640 (KLR ) where Court found the multiplier approach unsuitable and, having considered the comparable award in Kwamboka v Okiro & Another, held that a global award of Kshs. 1,000,000.00 was adequate compensation for loss of dependency.
d) Lastly in the case of Abdulrahman (Suing as the Personal Representative of the Estate of Issa Mohammed Idhan – Deceased) vs Oyugi & Another [2025] KEHC 4407 (KLR ) , the High Court reiterated that where the deceased's earnings cannot be established, the global sum approach is appropriate. The Court specifically relied upon Kwamboka v Okiro & Another and awarded Kshs. 1,000,000.00 for loss of dependency in respect of a deceased aged 35 years whose earnings could not be ascertained.
32. The deceased herein was a young man but his precise earnings were not satisfactorily established and the evidence also did not provide a sufficiently firm basis upon which this Court could determine the appropriate multiplicand and multiplier without resorting to conjecture. I therefore find that the learned trial magistrate cannot be faulted for adopting the global sum approach.
33. I have also considered the Appellant's contention that the deceased left behind his mother and siblings who were dependent upon him.
34. Section 4(1) of the Fatal Accidents Act, Cap. 32 provides that an action brought under the Act shall be for the benefit of the wife, husband, parent and child of the deceased and this is to wit that the deceased's mother therefore falls within the statutory category of persons capable of benefiting from an action under the Act however only the existence of the relationship without additional proof does not in itself establish the extent of dependency for purposes of assessment of damages before this Court.
35. I am also of the considered view that Section 4(1) does not expressly include siblings and importantly even where dependency is alleged the court must consider the evidence demonstrating actual dependency which was not produced into evidence in this case to quantify the said dependency.
36. I have also considered whether the award of Kshs. 1,000,000.00 is so inordinately low as to amount to an erroneous estimate of the loss suffered and in my view it is not.
37. In Kwamboka vs Okiro & Another (supra ) involving a deceased aged 35 years whose earnings could not be ascertained, a global award of Kshs. 1,000,000.00 was considered adequate, also in Kariuki vs Munene (supra) the High Court similarly found a global award of Kshs. 1,000,000.00 appropriate where the evidence of regular dependency and income was inadequate.
38. I am therefore satisfied that the learned trial magistrate exercised its discretion within the permissible principles applicable to the assessment of damages for loss of dependency.
39. Accordingly, I find no basis upon which this Court should interfere with the award of Kshs. 1,000,000.00 under the head of loss of dependency and grounds 1, 3, 4, 5, 6 and 7 of the Memorandum of Appeal therefore fail.
40. As regards to ground 2, I hold that the deceased's mother falls within the category of persons contemplated under Section 4(1) of the Fatal Accidents Act. Nonetheless, recognition as a statutory dependant does not in itself determine the quantum payable.
41. The evidence of actual dependency and the circumstances of the case must still guide the court in assessing the loss.
42. I therefore find that although the trial court was required to consider the evidence relating to the deceased's mother its failure to adopt the multiplier approach did not occasion an erroneous assessment of damages in the circumstances of this case.
43. The result is that the appeal on quantum lacks merit and the award of Kshs. 1,000,000.00 for loss of dependency is hereby upheld.
44. Since the Appellant has not challenged the awards made under the heads of pain and suffering, loss of expectation of life and special damages, those awards remain undisturbed. The award of Kshs. 50,000.00 for pain and suffering, Kshs. 100,000.00 for loss of expectation of life and Kshs. 62,550.00 in special damages are accordingly upheld.
45. In the premises, the appeal is dismissed and the judgment of the trial court delivered on 20 th May, 2024 is hereby upheld.
46. The Respondent shall have costs of the Appeal .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCA NO. E063 OF 2024 AGNES WAMBUA MUTUA VS JUSTUS MBINDYO MUTULA JUDGMENT Pg. 12