( Being an appeal from the judgment and decree by Hon. M.N Mutua, Senior Resident Magistrate, in Makueni Magistrate’s Civil Suit No. E157 of 2024 delivered on 9 th May, 2025 )
JUDGMENT.
Introduction
1. The Appellant sued the Respondent vide a plaint dated 23 rd August, 2024 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 fit to grant.
2. The Appellant pleaded that on or about the 9 th October, 2023 the deceased was lawfully and carefully walking way off the road on designated footpath along Wote – Machakos Road when at Kilala Area a motor vehicle registration number 17CG001A was so negligently driven, controlled and/or managed by either of the Defendant and/or his duly authorized driver, employee, servants and/or agent that it lost control while over-speeding and veered off the road thereby causing the accident by hitting the deceased who was off the road as a result of which the deceased sustained fatal injuries.
3. The plaintiff testified and both parties thereafter closed their respective cases. Judgment was subsequently entered and the trial court apportioned liability of 100% in favour of the Appellant, 50,000.00 for pain and suffering, Kshs. 100,000.00 for loss of expectation of life, 1,000,000.00 for loss of dependency and Kshs. 1,573.00 for special damages all totaling to Kshs. 1,151,573.00
4. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 5 th day of June, 2025 on the following Six (6) grounds: -
1. That the Honourable trial court erred in law and in fact by awarding a global figure of Kshs. 1,000,000.00 for loss of dependency instead of making an assessment of the dependency and contribution of the deceased to the dependents.
2. That the learned magistrate erred in fact and in law in failing to independently assess dependency ration, multiplier and multiplicand therefore arriving to erroneous decisions.
3. The learned magistrate erred in law and fact in failing to use minimum wage if earning were not proved thus arriving at an erroneous decision.
4. That the learned magistrate erred in fact and in law in failing to properly evaluate the extent of dependency and the financial contribution made by the deceased to the Dependents thus leading to an arbitrary and unjust award.
5. That the learned magistrate erred in fact and in law in not considering the deceased’s working capacity, income and potential future earnings which are critical factors in determining fair compensation for loss of dependency.
6. That the learned magistrate erred in fact and in law in failing to consider the Appellant’s submissions.
5. Appeal was canvassed by way of written submissions. From the Memorandum of Appeal and the submissions hereto, the only issue for determination is the award of damages under the head of loss of dependancy. The determination on liability and the awards on pain and suffering, loss of expectation of life and special damages are not in contention.
The Appellant’s submissions
6. The Appellant filed their written submissions dated the 13 th May of 2026 in which it was submitted that the trial court wrongly used a global award instead of the multiplier approach despite there being sufficient evidence of the deceased's age, earnings, and dependents’ to support proper computation.
7. It was submitted that the trial court was wrong in failing to independently assess the multiplicand, multiplier, and dependency ratio and for disregarding minimum wage guidelines applicable where earnings aren't strictly documented as well as ignoring the deceased's productivity and future earnings prospects.
8. It was submitted that the judgment gave no reasons for rejecting the Appellant's proposed figures hence amounting to an error of law warranting appellate interference.
9. The Appellant relied in the case of Hassan vs Nathan Mwangi Kamau Transporters & 4 Others, Board of Governors of Kangubiri Girls High School & Another vs Jane Wanjiku & Kemfro Africa Ltd t/a Meru Express Services vs A.M. Lubia & Another .
10. The Appellant submitted that the Honourable Court to allow the appeal and set aside the Kshs. 1,000,000.00 award substituting it with an award of Kshs. 2,520,000.00 or a higher sum as the Court deems just with costs.
Respondent’s submissions
11. This Court notes that submissions were yet to be filed at the time this judgement was being prepared.
Analysis & determination
12. 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 v 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.”
13. 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 vs 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.”
14. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs 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.”
15. 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.
16. I have considered the evidence adduced in the trial court on the fatal injuries sustained by the deceased and the submissions by the Appellant in support of this Appeal and I find that the sole issue for determination is assessment of general damages for loss of dependency.
Assessment of General Damages for Loss of Dependency
17. 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 v Kinanu [1983] KLR 114 and West (H) & Son Ltd vs Shephard [1964] AC 326, 345 ).
18. It is not in dispute that the Deceased sustained fatal injuries and the trial court awarded a global sum of Kshs. 1,000,000.00 as damages for loss of dependency.
19. It was pleaded that at the time of his death the Deceased was aged 37 years and was a casual labourer earning approximately Kshs. 15,000.00 per month however there is no evidence adduced in support of the alleged employment or income but the Appellant contends that the award was inordinately low and urges this Court to interfere with the same and assess damages using the multiplier approach.
20. The question that therefore arises is whether in the absence of cogent evidence of the Deceased’s actual earnings this Court ought to interfere with the global sum approach adopted by the trial court and instead apply the multiplier method.
21. This court notes that the applicable principle is that the assessment of damages for loss of dependency must be guided by the evidence available before the Court and where the deceased’s income is not satisfactorily proved the Court may, depending on the circumstances of each case proceed and adopt a global-sum approach rather than to resort to a speculative multiplicand.
22. Courts have held that the multiplier approach should be avoided where the Deceased’s exact employment monthly earnings are unknown or cannot be estimated under the Regulation of Wages (General) Order. I am guided by the Court’s decision in Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji Nakuru HCCA No.15 of 2003 [2007] eKLR , where the Court stated as follows;
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. t can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
23. Similarly, in the case of Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR , the court held as follows-
“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, Courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
24. Based on the above authorities, I find that the trial court was right in not using the multiplier approach to determine the award for Loss of Dependency and there being no proof of the Deceased being a casual labourer the court could not utilize the Regulation of Wages (General) Order to estimate his wages because there was no proof that the Deceased was a worker in any of the specified categories of labourers.
25. I take the view that the global sum approach is the most applicable approach in this case. In Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR , the Court stated as follows:
“[23]. In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.
[24]. The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”
26. Reliance is further placed in the case of CMO & another (Suing as Personal Representatives of the Estate of SOG – Deceased) vs Asaga [2024] KEHC 12225 (KLR ) where the appellant challenged a global award of Kshs. 1,000,000.00 for loss of dependency for a deceased aged 35 years on the basis that the multiplier approach ought to have been adopted. The award had been made in circumstances where the deceased's alleged employment and income had not been proved, and the court opined that where the evidence does not sufficiently establish the deceased's earnings a global award may properly be adopted rather than resorting to a speculative multiplicand.
27. In the present case although the Appellant pleaded that the Deceased was a casual labourer earning approximately Kshs. 15,000.00 per month no evidence was tendered to establish either his alleged employment or the stated income.
28. In the circumstances I am therefore not persuaded that the circumstances of this case warrant interference with the trial court’s decision for adopting the global-sum approach.
29. I find that the sum of Kshs. 1,000,000.00 awarded by the trial court for loss of dependency to be reasonable and I therefore uphold the same.
30. The upshot is that the appeal is dismissed.
31. Each party shall bear their own costs on appeal .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCA NO. E038 OF 2025 BENJAMIN KYALO KIOKO & ANOTHER VS MAKUENI COUNTY GOVT JUDGMENT Pg. 9
JUDGMENT.
Introduction
1. The Appellant sued the Respondent vide a plaint dated 23 rd August, 2024 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 fit to grant.
2. The Appellant pleaded that on or about the 9 th October, 2023 the deceased was lawfully and carefully walking way off the road on designated footpath along Wote – Machakos Road when at Kilala Area a motor vehicle registration number 17CG001A was so negligently driven, controlled and/or managed by either of the Defendant and/or his duly authorized driver, employee, servants and/or agent that it lost control while over-speeding and veered off the road thereby causing the accident by hitting the deceased who was off the road as a result of which the deceased sustained fatal injuries.
3. The plaintiff testified and both parties thereafter closed their respective cases. Judgment was subsequently entered and the trial court apportioned liability of 100% in favour of the Appellant, 50,000.00 for pain and suffering, Kshs. 100,000.00 for loss of expectation of life, 1,000,000.00 for loss of dependency and Kshs. 1,573.00 for special damages all totaling to Kshs. 1,151,573.00
4. Being aggrieved by the judgement of the trial court the Appellant filed a Memorandum of Appeal dated the 5 th day of June, 2025 on the following Six (6) grounds: -
1. That the Honourable trial court erred in law and in fact by awarding a global figure of Kshs. 1,000,000.00 for loss of dependency instead of making an assessment of the dependency and contribution of the deceased to the dependents.
2. That the learned magistrate erred in fact and in law in failing to independently assess dependency ration, multiplier and multiplicand therefore arriving to erroneous decisions.
3. The learned magistrate erred in law and fact in failing to use minimum wage if earning were not proved thus arriving at an erroneous decision.
4. That the learned magistrate erred in fact and in law in failing to properly evaluate the extent of dependency and the financial contribution made by the deceased to the Dependents thus leading to an arbitrary and unjust award.
5. That the learned magistrate erred in fact and in law in not considering the deceased’s working capacity, income and potential future earnings which are critical factors in determining fair compensation for loss of dependency.
6. That the learned magistrate erred in fact and in law in failing to consider the Appellant’s submissions.
5. Appeal was canvassed by way of written submissions. From the Memorandum of Appeal and the submissions hereto, the only issue for determination is the award of damages under the head of loss of dependancy. The determination on liability and the awards on pain and suffering, loss of expectation of life and special damages are not in contention.
The Appellant’s submissions
6. The Appellant filed their written submissions dated the 13 th May of 2026 in which it was submitted that the trial court wrongly used a global award instead of the multiplier approach despite there being sufficient evidence of the deceased's age, earnings, and dependents’ to support proper computation.
7. It was submitted that the trial court was wrong in failing to independently assess the multiplicand, multiplier, and dependency ratio and for disregarding minimum wage guidelines applicable where earnings aren't strictly documented as well as ignoring the deceased's productivity and future earnings prospects.
8. It was submitted that the judgment gave no reasons for rejecting the Appellant's proposed figures hence amounting to an error of law warranting appellate interference.
9. The Appellant relied in the case of Hassan vs Nathan Mwangi Kamau Transporters & 4 Others, Board of Governors of Kangubiri Girls High School & Another vs Jane Wanjiku & Kemfro Africa Ltd t/a Meru Express Services vs A.M. Lubia & Another .
10. The Appellant submitted that the Honourable Court to allow the appeal and set aside the Kshs. 1,000,000.00 award substituting it with an award of Kshs. 2,520,000.00 or a higher sum as the Court deems just with costs.
Respondent’s submissions
11. This Court notes that submissions were yet to be filed at the time this judgement was being prepared.
Analysis & determination
12. 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 v 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.”
13. 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 vs 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.”
14. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs 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.”
15. 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.
16. I have considered the evidence adduced in the trial court on the fatal injuries sustained by the deceased and the submissions by the Appellant in support of this Appeal and I find that the sole issue for determination is assessment of general damages for loss of dependency.
Assessment of General Damages for Loss of Dependency
17. 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 v Kinanu [1983] KLR 114 and West (H) & Son Ltd vs Shephard [1964] AC 326, 345 ).
18. It is not in dispute that the Deceased sustained fatal injuries and the trial court awarded a global sum of Kshs. 1,000,000.00 as damages for loss of dependency.
19. It was pleaded that at the time of his death the Deceased was aged 37 years and was a casual labourer earning approximately Kshs. 15,000.00 per month however there is no evidence adduced in support of the alleged employment or income but the Appellant contends that the award was inordinately low and urges this Court to interfere with the same and assess damages using the multiplier approach.
20. The question that therefore arises is whether in the absence of cogent evidence of the Deceased’s actual earnings this Court ought to interfere with the global sum approach adopted by the trial court and instead apply the multiplier method.
21. This court notes that the applicable principle is that the assessment of damages for loss of dependency must be guided by the evidence available before the Court and where the deceased’s income is not satisfactorily proved the Court may, depending on the circumstances of each case proceed and adopt a global-sum approach rather than to resort to a speculative multiplicand.
22. Courts have held that the multiplier approach should be avoided where the Deceased’s exact employment monthly earnings are unknown or cannot be estimated under the Regulation of Wages (General) Order. I am guided by the Court’s decision in Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji Nakuru HCCA No.15 of 2003 [2007] eKLR , where the Court stated as follows;
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. t can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
23. Similarly, in the case of Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR , the court held as follows-
“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, Courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
24. Based on the above authorities, I find that the trial court was right in not using the multiplier approach to determine the award for Loss of Dependency and there being no proof of the Deceased being a casual labourer the court could not utilize the Regulation of Wages (General) Order to estimate his wages because there was no proof that the Deceased was a worker in any of the specified categories of labourers.
25. I take the view that the global sum approach is the most applicable approach in this case. In Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR , the Court stated as follows:
“[23]. In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.
[24]. The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”
26. Reliance is further placed in the case of CMO & another (Suing as Personal Representatives of the Estate of SOG – Deceased) vs Asaga [2024] KEHC 12225 (KLR ) where the appellant challenged a global award of Kshs. 1,000,000.00 for loss of dependency for a deceased aged 35 years on the basis that the multiplier approach ought to have been adopted. The award had been made in circumstances where the deceased's alleged employment and income had not been proved, and the court opined that where the evidence does not sufficiently establish the deceased's earnings a global award may properly be adopted rather than resorting to a speculative multiplicand.
27. In the present case although the Appellant pleaded that the Deceased was a casual labourer earning approximately Kshs. 15,000.00 per month no evidence was tendered to establish either his alleged employment or the stated income.
28. In the circumstances I am therefore not persuaded that the circumstances of this case warrant interference with the trial court’s decision for adopting the global-sum approach.
29. I find that the sum of Kshs. 1,000,000.00 awarded by the trial court for loss of dependency to be reasonable and I therefore uphold the same.
30. The upshot is that the appeal is dismissed.
31. Each party shall bear their own costs on appeal .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCA NO. E038 OF 2025 BENJAMIN KYALO KIOKO & ANOTHER VS MAKUENI COUNTY GOVT JUDGMENT Pg. 9