REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E162 OF 2023
ESTHER MUSESHI SHIKOLI& ANOTHER
(Suing as personal Representatives of the
Estate of RODGERS OMUCHEYI AYUYA……………………APPELLANT
VERSUS
BRITAL SHINE INVESTMNET LTD……………………....RESPONDENT
(Being an appeal from the Judgement and Decree of the Chief Magistrate’s Court in Bungoma Civil Case No. 61 of 2018 delivered by Hon. T.M. Olando (PM) on 6th December 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellants seek to overturn the decision in the Chief Magistrate’s Court in Bungoma Civil Case No. 61 of 2018 delivered by Hon. T.M. Olando (PM) on 6th December 2023, on quantum of damages under the loss of dependency sub-heading. In the said case, the Appellants had sued the Respondents seeking recovery of general and special damages arising from a road accident that occurred on 21st August 2021, in which Vincent Asieme Ngusale sustained fatal injuries that led to his death.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 17th January 2018, the Appellants averred that on or about 8th November 2017, the deceased was lawfully aboard a Motor Vehicle Registration Number KBY 394 V along Bungoma-Mumias road at Kabula area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration Number KBY 394 V in such a reckless, negligent and careless manner resulting into an accident, which led to the deceased herein sustaining fatal injuries that led to his demise.
5. The Respondent entered appearance and filed a statement of defence dated 23rd April 2018, in which they denied the Appellants claim contending that the Appellants suit disclosed no claim against them and denied being the beneficial/registered owner of Motor Vehicle Registration Number KBY 394 V.
D. EVIDENCE
6. PW1, Joshua Toya Ayuya, adopting his recorded statement dated 1st January 2018, as his evidence in chief, he told the Court that the deceased was his son and that he also relied on the list of documents dated 17th January 2018, as his exhibits 1-15 as per the list.
7. PW2, No. 81576 P.C Jackline Ocheing, availing the Police Abstract form in Court as PEXH 6, testified that the accident occurred at about 7.55 p.m. and it was a self-involved accident as the victim was a passenger in the Motor Vehicle.
8. PW3, William Amuga, adopted his recorded statement dated17th January 2018, as his evidence in chief. He told the Court that he was aboard the Motor Vehicle KBY 394 V and it was been driven at high speed. On reaching Kabula shoppin centre the driver knocked a bump causing the Motor Vehicle to sway on the road up to the point it veered off the road and even after the driver took control of it, it veered off the road again, knocked a tree and overturned. He told the Court as a result of the accident he sustained severe bodily injuries.
9. The matter proceeded to trial and by a judgment delivered on 6th December 2023, the trial Court decreed that: -
a. Liability 100% as against the Respondents.
b. Pain and suffering Kshs. 20,000/=
c. Loss of expectation Kshs. 100,000/=
d. Loss of dependency Kshs. 1,120,000/=
e. Special damages Kshs. 181,550/=
Total Kshs. 1, 421,550/=
E. THE APPEAL
10. The Appellants seeks to overturn the judgment on both quantum under the loss of dependency sub-heading as per the preferred grounds of appeal.
11. The Appellants prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate award. Subsequently, that the costs of the appeal be awarded to the Appellants.
12. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
13. With regards to quantum, the Appellants solely contends the award made under the sub-heading of loss of dependency. As regards an award under loss of dependency, the Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
14. According to PW1, the deceased herein worked as a sales supervisor with the Respondent and PW2 told the Court that he was earning Kshs. 40,000/= at his role. It is evident from the evidence in chief of PW1 at the point of his demise the deceased herein worked with the Respondent, but they did not avail any pay slip from the Respondent to show how much he was getting paid as his salalry each end month. This Court cannot use the pay slip from the deceased person’s previous employer to aide it make a determination under loss of dependency. I am not aware what guided the trial Court to rely on Kshs. 7,000/= as the deceased persons monthly earnings and cannot let the same stand. Further, this Court is not able to ascertain his employment status at the point of his demise and his earnings.
15. At this juncture, it will be appropriate for this Court to adopt the global approach award. Jurisprudence by the Courts reveal that either the multiplier approach or an award of a global figure is applicable when it comes to assessing loss of dependency. In the case of Mwanzia vs Nagalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji [2007] eKLR the Court gave guidance on when to use the multiplier approach as follows:-
“The multiplier approach is just a method of assessing damages. It is not a principle of law of a dogma. It can, and must be abandoned, where the facts do no 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.” [emphasis my own]
16. In the case of Ponderosa Logistics Limited -vs- Wesley Cheptoo Arap Chelagat & Alex Cheptoo (suing as the representative of the estate of Mark Too (Deceased) [2020] eKLR, the Court found that either method was acceptable as follows;-
“These submissions left me with the choice between the multiplier method and the global award method. It is a discretion that I am obligated to exercise judiciously. In my mind both methods are brought with misgivings. In the multiplier one the court has to form an opinion based on the facts before it that this person could have lived and worked for this number of years, this person would have earned so much money, and supported them to a certain extent. Similarly, with the global approach the court again is expected to form an opinion as to value placed on the life lost. In each the court has a way of knowing what vicissitudes that life would have been faced with. Neither is better that the other. It all depends on the facts. Hence in principle there was nothing wrong with the trial court choosing the multiplier approach.”
17. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased (2020) eKLR, when dealing with a similar issue the Court stated that: -
“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. 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.”
18. The use of global approach award is this appellate Court exercising its discretion, and bearing in mind that the deceased herein was a qualified professional who was now at the stage of enjoying the fruits of his vigorous education and he had dependents. I find that the trial Court was erred when it opted for a multiplier approach using a multiplicand of Kshs. 7,000/= and failed to explained why it resorted to using Kshs. 7,000/= as the deceased persons monthly earnings.
19. In the case of County Government of Kitui & another v Mutinda & another (Sued as the Administrators of the Estate of Samson Kyalo) [2023] KEHC 19406 (KLR) the Court reduced an award of Kshs. 4,000,000/- for loss of dependency to Kshs. 3,000,000/- where the deceased was aged 29 years old.
20. Placing reliance on the aforementioned case, this Court proceeded to make an award of a global sum of Kshs. 4,000,000/= as damages for loss of dependency. I have considered the academic and work background, the age of the deceased, the fact that he was survived by a wife with a three year old child and his parents whom were all dependent upon him.
21. It is the general rule that similar cases should attract as much similar awards as possible for consistency and certainty. The trial Court erred in departing from precedents. The award on dependency was an inordinately low and did not conform to precedents on comparative cases.
G. CONCLUSION
22. In the upshot, I find merit in this Appeal. The judgment delivered on 6th December 2023, is set aside and the award on loss of dependency is enhance to Ksh 4,000,000.
23. This appeal is allowed in its entirety. Costs will be met by the Respondent.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Mr Alukwe for the Appellant
N/A by E.K Owinyi for the Respondent
Peter Machoni - Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E162 OF 2023
ESTHER MUSESHI SHIKOLI& ANOTHER
(Suing as personal Representatives of the
Estate of RODGERS OMUCHEYI AYUYA……………………APPELLANT
VERSUS
BRITAL SHINE INVESTMNET LTD……………………....RESPONDENT
(Being an appeal from the Judgement and Decree of the Chief Magistrate’s Court in Bungoma Civil Case No. 61 of 2018 delivered by Hon. T.M. Olando (PM) on 6th December 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellants seek to overturn the decision in the Chief Magistrate’s Court in Bungoma Civil Case No. 61 of 2018 delivered by Hon. T.M. Olando (PM) on 6th December 2023, on quantum of damages under the loss of dependency sub-heading. In the said case, the Appellants had sued the Respondents seeking recovery of general and special damages arising from a road accident that occurred on 21st August 2021, in which Vincent Asieme Ngusale sustained fatal injuries that led to his death.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 17th January 2018, the Appellants averred that on or about 8th November 2017, the deceased was lawfully aboard a Motor Vehicle Registration Number KBY 394 V along Bungoma-Mumias road at Kabula area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration Number KBY 394 V in such a reckless, negligent and careless manner resulting into an accident, which led to the deceased herein sustaining fatal injuries that led to his demise.
5. The Respondent entered appearance and filed a statement of defence dated 23rd April 2018, in which they denied the Appellants claim contending that the Appellants suit disclosed no claim against them and denied being the beneficial/registered owner of Motor Vehicle Registration Number KBY 394 V.
D. EVIDENCE
6. PW1, Joshua Toya Ayuya, adopting his recorded statement dated 1st January 2018, as his evidence in chief, he told the Court that the deceased was his son and that he also relied on the list of documents dated 17th January 2018, as his exhibits 1-15 as per the list.
7. PW2, No. 81576 P.C Jackline Ocheing, availing the Police Abstract form in Court as PEXH 6, testified that the accident occurred at about 7.55 p.m. and it was a self-involved accident as the victim was a passenger in the Motor Vehicle.
8. PW3, William Amuga, adopted his recorded statement dated17th January 2018, as his evidence in chief. He told the Court that he was aboard the Motor Vehicle KBY 394 V and it was been driven at high speed. On reaching Kabula shoppin centre the driver knocked a bump causing the Motor Vehicle to sway on the road up to the point it veered off the road and even after the driver took control of it, it veered off the road again, knocked a tree and overturned. He told the Court as a result of the accident he sustained severe bodily injuries.
9. The matter proceeded to trial and by a judgment delivered on 6th December 2023, the trial Court decreed that: -
a. Liability 100% as against the Respondents.
b. Pain and suffering Kshs. 20,000/=
c. Loss of expectation Kshs. 100,000/=
d. Loss of dependency Kshs. 1,120,000/=
e. Special damages Kshs. 181,550/=
Total Kshs. 1, 421,550/=
E. THE APPEAL
10. The Appellants seeks to overturn the judgment on both quantum under the loss of dependency sub-heading as per the preferred grounds of appeal.
11. The Appellants prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate award. Subsequently, that the costs of the appeal be awarded to the Appellants.
12. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
13. With regards to quantum, the Appellants solely contends the award made under the sub-heading of loss of dependency. As regards an award under loss of dependency, the Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
14. According to PW1, the deceased herein worked as a sales supervisor with the Respondent and PW2 told the Court that he was earning Kshs. 40,000/= at his role. It is evident from the evidence in chief of PW1 at the point of his demise the deceased herein worked with the Respondent, but they did not avail any pay slip from the Respondent to show how much he was getting paid as his salalry each end month. This Court cannot use the pay slip from the deceased person’s previous employer to aide it make a determination under loss of dependency. I am not aware what guided the trial Court to rely on Kshs. 7,000/= as the deceased persons monthly earnings and cannot let the same stand. Further, this Court is not able to ascertain his employment status at the point of his demise and his earnings.
15. At this juncture, it will be appropriate for this Court to adopt the global approach award. Jurisprudence by the Courts reveal that either the multiplier approach or an award of a global figure is applicable when it comes to assessing loss of dependency. In the case of Mwanzia vs Nagalali Mutua Kenya Bus Ltd cited in Albert Odawa vs. Gichumu Githenji [2007] eKLR the Court gave guidance on when to use the multiplier approach as follows:-
“The multiplier approach is just a method of assessing damages. It is not a principle of law of a dogma. It can, and must be abandoned, where the facts do no 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.” [emphasis my own]
16. In the case of Ponderosa Logistics Limited -vs- Wesley Cheptoo Arap Chelagat & Alex Cheptoo (suing as the representative of the estate of Mark Too (Deceased) [2020] eKLR, the Court found that either method was acceptable as follows;-
“These submissions left me with the choice between the multiplier method and the global award method. It is a discretion that I am obligated to exercise judiciously. In my mind both methods are brought with misgivings. In the multiplier one the court has to form an opinion based on the facts before it that this person could have lived and worked for this number of years, this person would have earned so much money, and supported them to a certain extent. Similarly, with the global approach the court again is expected to form an opinion as to value placed on the life lost. In each the court has a way of knowing what vicissitudes that life would have been faced with. Neither is better that the other. It all depends on the facts. Hence in principle there was nothing wrong with the trial court choosing the multiplier approach.”
17. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased (2020) eKLR, when dealing with a similar issue the Court stated that: -
“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. 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.”
18. The use of global approach award is this appellate Court exercising its discretion, and bearing in mind that the deceased herein was a qualified professional who was now at the stage of enjoying the fruits of his vigorous education and he had dependents. I find that the trial Court was erred when it opted for a multiplier approach using a multiplicand of Kshs. 7,000/= and failed to explained why it resorted to using Kshs. 7,000/= as the deceased persons monthly earnings.
19. In the case of County Government of Kitui & another v Mutinda & another (Sued as the Administrators of the Estate of Samson Kyalo) [2023] KEHC 19406 (KLR) the Court reduced an award of Kshs. 4,000,000/- for loss of dependency to Kshs. 3,000,000/- where the deceased was aged 29 years old.
20. Placing reliance on the aforementioned case, this Court proceeded to make an award of a global sum of Kshs. 4,000,000/= as damages for loss of dependency. I have considered the academic and work background, the age of the deceased, the fact that he was survived by a wife with a three year old child and his parents whom were all dependent upon him.
21. It is the general rule that similar cases should attract as much similar awards as possible for consistency and certainty. The trial Court erred in departing from precedents. The award on dependency was an inordinately low and did not conform to precedents on comparative cases.
G. CONCLUSION
22. In the upshot, I find merit in this Appeal. The judgment delivered on 6th December 2023, is set aside and the award on loss of dependency is enhance to Ksh 4,000,000.
23. This appeal is allowed in its entirety. Costs will be met by the Respondent.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Mr Alukwe for the Appellant
N/A by E.K Owinyi for the Respondent
Peter Machoni - Court Assistant