(Being an Appeal from the Judgment and Decree of Hon. Becky W. Mbulika, (PM) delivered on 22nd February 2024 in Chief Magistrate's Court in Milimani Civil Suit No. E9643 of 2021.
1. The appellant filed this appeal through a memorandum dated 3rd March 2024. The appeal is on one issue only, the assessment quantum of damages by the trial court in a claim for negligence arising out of a fatal road traffic accident. The appellants ere the defendants while the respondents were the plaintiffs before the trial court. The respondents sued the appellants for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
2. Their case before the trial court was filed through the plaint dated 20th June 2021, witness statements and documents filed in support of the case.
3. The respondents filed their defence dated 24th August 2021 and also filed witness statements and documents to rely upon.
4. Liability was settled by consent in the ratio of 85:15 for the respondents against the appellants. The parties also agreed to proceed with the disposal of the suit on the assessment of damages by the court relying on the witness statements and documents filed by the parties.
5. The brief circumstances of the case as captured in the plaint were that on 6th September 2021 the deceased was a fare-paying passenger in motor vehicle registration number KTWB 624G Piaggio along Thika road when motor vehicle registration number KBM 666E Porsche Cayene driven by the 2nd appellant and owned by the 1st appellant rammed into the deceased’s vehicle causing the accident from which the deceased sustained serious injuries from which he later succumbed. As a result, the estate of the deceased and his dependents had suffered loss and damage from which they claimed compensation from the respondents.
6. Learned counsels for both parties filed submissions urging their respective cases on the appeal on assessment of damages.
7. The learned trial magistrate in her conclusion entered judgment for the respondents against the appellants jointly and severally as follows:
a. Pain and suffering KShs 50,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 4,054,934.40
d. Special damages KShs 655,655/=
8. The awards were subject to contribution in the ratio of 85:15
9. The trial court also ordered that interest would be payable on special damages above at court rates from the date of filing suit until payment in full. The appellant was also ordered to bear the costs of the suit and for the rest, interest to be at court rates.
10. The appellants were aggrieved by the said judgment and appeal to this court on the various grounds set out in the memorandum of appeal but the bottom line is that they content that the assessment of damages was in error as they are inordinately high.
11. The appellants therefore pray for this court to set aside the judgment of the trial court on quantum of damages and for this court to consider the evidence and make its own assessment of both the special and general damages.
12. The appeal was canvassed by way of written submissions filed by both parties. Learned counsel for the appellant has condensed the grounds of appeal and argued them on three issues, which are that the appellant challenges the trial court’s findings on liability and assessment of both general and special damages. Learned counsel for the respondent has equally argued the appeal on more or less the same basis.
13. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
14. The appellants have summed up their grounds of appeal into two issues for determination:
a. Whether the learned trial magistrate erred in law and in fact in awarding KShs. 4,054,934.40/= under the limb of loss of dependency.
b. Who should be awarded the costs of this appeal.
15. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
16. This court will however interfere where the trial court finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (See the case cited by learned counsel for the appellant of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR).
17. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
18. The appeal on assessment of damages is on loss of dependency only. The appellants having chosen not to submit on the other heads of damages, it follows that they were not challenging or they abandoned the grounds of appeal thereon.
19. However, this court needs to clarify a small aspect on the awards by the learned magistrate on the heads of pain and suffering and loss of expectation of life.
20. In her analysis and determination of the issues the awards made by the learned magistrate under these two heads are at variance with the awards she rendered in her conclusion.
21. Under pain and suffering the learned trial magistrate awarded KShs 100,000/= while under loss of expectation of life she awarded KShs 50,000/=. However, in her summary awards in the conclusion she indicated the damages as pain and suffering KShs 50,000/= and loss of expectation of life KShs 100,000/=. This was an error of transposition. The correct awards are therefore those contained in the body of the judgment in the analysis and determination of the issues, these are pain and suffering KShs 100,000/= and loss of expectation of life KShs 50,000/=.
22. Considering various authorities on the matter, however, the awards should have been the other way round, with pain and suffering attracting KShs 50,000/= and loss of expectation of life KShs 100,000/=. For instance, in the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) the High Court, Odunga, J. (as he then was) held as follows on the assessment of damages for pain and suffering and loss of expectation of life:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
23. However, since these errors do not change the final figure of the awards, I will leave them as they are.
24. Back to loss of dependency, learned counsel for the appellant submits that the learned trial magistrate misdirected herself in adopting a multiplier approach and arriving at an award of KShs. 4,054,934.40/= without any basis.
25. Learned counsel submits further that the factors to be considered in determining an award for loss of dependency for a deceased person leaving behind dependents are the number of dependents, the age of the dependents and the level of dependency. The age at which the deceased died is also a relevant factor. Learned counsel did not provide any authority to support this assertion.
26. He submitted further that only the deceased’s wife qualified as dependent and thus the award for loss of dependency was manifestly high and unjustified. Leared counsel submitted that no certificate of death was filed in court to establish the age and the deceased's occupation at the time of his death and in the absence of tangible proof of earning, he urged this court to adopt a global sum approach in assessing damages for loss of dependency.
27. Learned counsel supported his submissions with the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR) where it was held that:
“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. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said:-
The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it.(see page 593).
And back home, while referring to this question in Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR Justice Ringera was of the following view:-
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It 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.”
28. Learned counsel submits further that since the deceased was not married neither was he survived by any children a global sum of KShs. 1,500,000/= would be adequate compensation under this head. He relied on the case of Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] KEHC 3802 (KLR) the court reduced an award of Kshs. 2,000,000 to 1,500,000 where the deceased was 28 years old.
29. Learned counsel therefore submits that this court should substitute the award of KShs. 4,054,934.40/= with KShs. 1,500,000/= subject to liability.
30. It is immediately clear that these submissions are contradictory on the issue of who the dependents were. In one statement, learned counsel submits that the wife of the deceased was the only one who qualified as a dependent and on the other, he submits that the deceased had no wife or children. That is not the correct position as there was evidence by way of a letter dated 26th September 2020 from the Chief, Karai Location that the deceased was married to Margaret Wanjiru Maina, the 1st respondent herein and they had a child Rian Maina Karira aged one year. This letter was acknowledged by the appellants in their submissions before the trial court where on the basis thereof they submitted that a dependency ratio of 2/3 would be adopted.
31. Learned counsel for the respondents submits that the appellants did not file submissions before the trial court but that is not correct. They filed submissions dated 24th August 2023.
32. Although the appellants are resiling from the multiplier approach in this appeal, it was an alternative they proposed to the global sum approach before the trial court. The respondents also proposed that the trial court adopts the multiplier approach. So the trial court did adopt the multiplier approach and it cannot be faulted as having erred on that issue. The appeal only considers the case as presented before the trial court and for that reason, the global sum approach proposed by the appellant in this appeal cannot be adopted.
33. There are three issues that determine the quantum of damages for loss of dependency using the multiplier approach, the multiplier, the multiplicand and dependency ratio.
34. In the trial court both parties submitted that a dependency ratio of 2/3 be adopted and that was what the trial court adopted. The submission by the appellant herein that a dependency ratio of 1/3 be adopted herein cannot be accepted as I have found aboe that the submission that the deceased had no family of his own is erroneous. The dependency ratio therefore remains 2/3.
35. On the multiplier, learned counsel for the appellants submitted that there was no certificate of death presented to show the deceased’ age at the time of his death. Indeed, a certificate of death was not made available but, there was filed a permit for burial which also contained a register of death and both showed that the deceased was aged 28 years at the time of his death. His wife’s statement also stated that he was 28 years old and all this evidence was not challenged by the defence.
36. In their submissions on the multiplier to be adopted by the trial court, the respondents proposed a multiplier of 32 years while the appellants proposed a multiplier of 22 years. The trial court adopted 22 years as proposed by the appellants. I find no reason to disturb the decision of the trial court to apply a multiplier of 22 years and the same is sustained in this appeal.
37. On the multiplicand, it was pleaded in the plaint amended on 23rd February 2023 that the deceased was a Tuk Tuk driver earning KShs 20,000/= per month. However, in her witness statement, the widow of the deceased only stated that he was a Tuk Tuk driver but did not state his earnings. There was no other evidence to support the averment that he was earning KShs 20,000/= per month. However, parties agreed by consent that the trial court would rely on the witness statements and documents filed in court to determine the case. That is the downside of such blanket consents because it means that the court will rely on the statements as evidence without the same being formerly produced by the makers and being subjected to cross-examination.
38. The trial court seems to have been persuaded to go by the submissions by both the respondent to adopt the minimum wage guidelines in force at the time under the Regulation of Wages (General)(Amendment) Order, 2017. where the minimum wage for a driver of a medium sized vehicle of KShs 23,039/= per month.
39. However, given that the evidence from the widow was that the deceased’s earnings were KShs 20,000/=, the trial court was in error to adopt the figure proposed in the submissions rather than the evidence on record. For that reason, the multiplicand applied by the trial court is set aside and substituted with a multiplicand of KShs 20,000/= per month.
40. The loss of dependency will therefore be:
KShs 20,000/= x 22 x 12 x 2/3 = KShs 3,520,000/=.
41. The special damages awarded by the trial court of KShs 655,655/= have not been challenged and so they remain as such.
42. In the final analysis the award of damages will be as follows:
a. Pain and suffering: KShs 100,000/=
b. Loss of expectation of life: KShs 50,000/=
c. Loss of dependency: KShs 3,520,000/=.
d. Special damages: KShs 655,655/=
Total: KShs 4,325,655/=.
43. Having apportioned liability in the ratio of 85:15 for the respondents against the appellants, the damages assessed above will be subjected to that ratio making the award by this court to be KShs 3,460,524/=.
44. Consequently, the trial court judgment is varied to that extent on assessment of damages.
45. The appellant having succeeded in some way to unsettle the judgment of the trial court, each party will bear its own costs of this appeal.
46. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams this 24th day of March 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Appellants.
... for the Respondents.
Ummu h/b for Amina: Court Assistant.
1. The appellant filed this appeal through a memorandum dated 3rd March 2024. The appeal is on one issue only, the assessment quantum of damages by the trial court in a claim for negligence arising out of a fatal road traffic accident. The appellants ere the defendants while the respondents were the plaintiffs before the trial court. The respondents sued the appellants for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
2. Their case before the trial court was filed through the plaint dated 20th June 2021, witness statements and documents filed in support of the case.
3. The respondents filed their defence dated 24th August 2021 and also filed witness statements and documents to rely upon.
4. Liability was settled by consent in the ratio of 85:15 for the respondents against the appellants. The parties also agreed to proceed with the disposal of the suit on the assessment of damages by the court relying on the witness statements and documents filed by the parties.
5. The brief circumstances of the case as captured in the plaint were that on 6th September 2021 the deceased was a fare-paying passenger in motor vehicle registration number KTWB 624G Piaggio along Thika road when motor vehicle registration number KBM 666E Porsche Cayene driven by the 2nd appellant and owned by the 1st appellant rammed into the deceased’s vehicle causing the accident from which the deceased sustained serious injuries from which he later succumbed. As a result, the estate of the deceased and his dependents had suffered loss and damage from which they claimed compensation from the respondents.
6. Learned counsels for both parties filed submissions urging their respective cases on the appeal on assessment of damages.
7. The learned trial magistrate in her conclusion entered judgment for the respondents against the appellants jointly and severally as follows:
a. Pain and suffering KShs 50,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 4,054,934.40
d. Special damages KShs 655,655/=
8. The awards were subject to contribution in the ratio of 85:15
9. The trial court also ordered that interest would be payable on special damages above at court rates from the date of filing suit until payment in full. The appellant was also ordered to bear the costs of the suit and for the rest, interest to be at court rates.
10. The appellants were aggrieved by the said judgment and appeal to this court on the various grounds set out in the memorandum of appeal but the bottom line is that they content that the assessment of damages was in error as they are inordinately high.
11. The appellants therefore pray for this court to set aside the judgment of the trial court on quantum of damages and for this court to consider the evidence and make its own assessment of both the special and general damages.
12. The appeal was canvassed by way of written submissions filed by both parties. Learned counsel for the appellant has condensed the grounds of appeal and argued them on three issues, which are that the appellant challenges the trial court’s findings on liability and assessment of both general and special damages. Learned counsel for the respondent has equally argued the appeal on more or less the same basis.
13. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
14. The appellants have summed up their grounds of appeal into two issues for determination:
a. Whether the learned trial magistrate erred in law and in fact in awarding KShs. 4,054,934.40/= under the limb of loss of dependency.
b. Who should be awarded the costs of this appeal.
15. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
16. This court will however interfere where the trial court finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (See the case cited by learned counsel for the appellant of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR).
17. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
18. The appeal on assessment of damages is on loss of dependency only. The appellants having chosen not to submit on the other heads of damages, it follows that they were not challenging or they abandoned the grounds of appeal thereon.
19. However, this court needs to clarify a small aspect on the awards by the learned magistrate on the heads of pain and suffering and loss of expectation of life.
20. In her analysis and determination of the issues the awards made by the learned magistrate under these two heads are at variance with the awards she rendered in her conclusion.
21. Under pain and suffering the learned trial magistrate awarded KShs 100,000/= while under loss of expectation of life she awarded KShs 50,000/=. However, in her summary awards in the conclusion she indicated the damages as pain and suffering KShs 50,000/= and loss of expectation of life KShs 100,000/=. This was an error of transposition. The correct awards are therefore those contained in the body of the judgment in the analysis and determination of the issues, these are pain and suffering KShs 100,000/= and loss of expectation of life KShs 50,000/=.
22. Considering various authorities on the matter, however, the awards should have been the other way round, with pain and suffering attracting KShs 50,000/= and loss of expectation of life KShs 100,000/=. For instance, in the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] KEHC 3063 (KLR) the High Court, Odunga, J. (as he then was) held as follows on the assessment of damages for pain and suffering and loss of expectation of life:
“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 and pw2 testified that the deceased died at the scene of the accident and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life is reasonable.”
23. However, since these errors do not change the final figure of the awards, I will leave them as they are.
24. Back to loss of dependency, learned counsel for the appellant submits that the learned trial magistrate misdirected herself in adopting a multiplier approach and arriving at an award of KShs. 4,054,934.40/= without any basis.
25. Learned counsel submits further that the factors to be considered in determining an award for loss of dependency for a deceased person leaving behind dependents are the number of dependents, the age of the dependents and the level of dependency. The age at which the deceased died is also a relevant factor. Learned counsel did not provide any authority to support this assertion.
26. He submitted further that only the deceased’s wife qualified as dependent and thus the award for loss of dependency was manifestly high and unjustified. Leared counsel submitted that no certificate of death was filed in court to establish the age and the deceased's occupation at the time of his death and in the absence of tangible proof of earning, he urged this court to adopt a global sum approach in assessing damages for loss of dependency.
27. Learned counsel supported his submissions with the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR) where it was held that:
“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. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said:-
The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it.(see page 593).
And back home, while referring to this question in Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR Justice Ringera was of the following view:-
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It 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.”
28. Learned counsel submits further that since the deceased was not married neither was he survived by any children a global sum of KShs. 1,500,000/= would be adequate compensation under this head. He relied on the case of Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] KEHC 3802 (KLR) the court reduced an award of Kshs. 2,000,000 to 1,500,000 where the deceased was 28 years old.
29. Learned counsel therefore submits that this court should substitute the award of KShs. 4,054,934.40/= with KShs. 1,500,000/= subject to liability.
30. It is immediately clear that these submissions are contradictory on the issue of who the dependents were. In one statement, learned counsel submits that the wife of the deceased was the only one who qualified as a dependent and on the other, he submits that the deceased had no wife or children. That is not the correct position as there was evidence by way of a letter dated 26th September 2020 from the Chief, Karai Location that the deceased was married to Margaret Wanjiru Maina, the 1st respondent herein and they had a child Rian Maina Karira aged one year. This letter was acknowledged by the appellants in their submissions before the trial court where on the basis thereof they submitted that a dependency ratio of 2/3 would be adopted.
31. Learned counsel for the respondents submits that the appellants did not file submissions before the trial court but that is not correct. They filed submissions dated 24th August 2023.
32. Although the appellants are resiling from the multiplier approach in this appeal, it was an alternative they proposed to the global sum approach before the trial court. The respondents also proposed that the trial court adopts the multiplier approach. So the trial court did adopt the multiplier approach and it cannot be faulted as having erred on that issue. The appeal only considers the case as presented before the trial court and for that reason, the global sum approach proposed by the appellant in this appeal cannot be adopted.
33. There are three issues that determine the quantum of damages for loss of dependency using the multiplier approach, the multiplier, the multiplicand and dependency ratio.
34. In the trial court both parties submitted that a dependency ratio of 2/3 be adopted and that was what the trial court adopted. The submission by the appellant herein that a dependency ratio of 1/3 be adopted herein cannot be accepted as I have found aboe that the submission that the deceased had no family of his own is erroneous. The dependency ratio therefore remains 2/3.
35. On the multiplier, learned counsel for the appellants submitted that there was no certificate of death presented to show the deceased’ age at the time of his death. Indeed, a certificate of death was not made available but, there was filed a permit for burial which also contained a register of death and both showed that the deceased was aged 28 years at the time of his death. His wife’s statement also stated that he was 28 years old and all this evidence was not challenged by the defence.
36. In their submissions on the multiplier to be adopted by the trial court, the respondents proposed a multiplier of 32 years while the appellants proposed a multiplier of 22 years. The trial court adopted 22 years as proposed by the appellants. I find no reason to disturb the decision of the trial court to apply a multiplier of 22 years and the same is sustained in this appeal.
37. On the multiplicand, it was pleaded in the plaint amended on 23rd February 2023 that the deceased was a Tuk Tuk driver earning KShs 20,000/= per month. However, in her witness statement, the widow of the deceased only stated that he was a Tuk Tuk driver but did not state his earnings. There was no other evidence to support the averment that he was earning KShs 20,000/= per month. However, parties agreed by consent that the trial court would rely on the witness statements and documents filed in court to determine the case. That is the downside of such blanket consents because it means that the court will rely on the statements as evidence without the same being formerly produced by the makers and being subjected to cross-examination.
38. The trial court seems to have been persuaded to go by the submissions by both the respondent to adopt the minimum wage guidelines in force at the time under the Regulation of Wages (General)(Amendment) Order, 2017. where the minimum wage for a driver of a medium sized vehicle of KShs 23,039/= per month.
39. However, given that the evidence from the widow was that the deceased’s earnings were KShs 20,000/=, the trial court was in error to adopt the figure proposed in the submissions rather than the evidence on record. For that reason, the multiplicand applied by the trial court is set aside and substituted with a multiplicand of KShs 20,000/= per month.
40. The loss of dependency will therefore be:
KShs 20,000/= x 22 x 12 x 2/3 = KShs 3,520,000/=.
41. The special damages awarded by the trial court of KShs 655,655/= have not been challenged and so they remain as such.
42. In the final analysis the award of damages will be as follows:
a. Pain and suffering: KShs 100,000/=
b. Loss of expectation of life: KShs 50,000/=
c. Loss of dependency: KShs 3,520,000/=.
d. Special damages: KShs 655,655/=
Total: KShs 4,325,655/=.
43. Having apportioned liability in the ratio of 85:15 for the respondents against the appellants, the damages assessed above will be subjected to that ratio making the award by this court to be KShs 3,460,524/=.
44. Consequently, the trial court judgment is varied to that extent on assessment of damages.
45. The appellant having succeeded in some way to unsettle the judgment of the trial court, each party will bear its own costs of this appeal.
46. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams this 24th day of March 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Appellants.
... for the Respondents.
Ummu h/b for Amina: Court Assistant.