1. The Respondent was the Plaintiff in Voi CMCC No. E124 of 2023 where he sued on behalf of the Estate of LUCY SEBEN (Deceased) who sustained fatal injuries on 27th December 2022 while travelling as a passenger on board motor vehicle registration No. KCS 184Z along Mombasa – Nairobi road.
2. The Respondent is the husband of the deceased. They have two children.
3. The Respondent averred that the motor vehicle was being driven at a high speed and upon reaching Manyani Area, it lost control and rolled several times.
4. The Appellants filed a defence denying the Respondent’s claim. They said if the accident occurred, it was beyond the scope and control of the Defendants.
5. The Respondent testified as PW1 and his daughter who was in the accident as PW2.
6. PW2 said she was travelling with the deceased (her mother) with a younger sister when the accident occurred.
7. PW2 said the deceased was seated at the Co-driver-s seat while she was behind the driver.
8. PW2 said she saw the driver collapse on the wheel and the motor vehicle lost control and rolled several times and stopped.
9. PW2 woke her sister and they got out of the motor vehicle. She could not find the deceased.
10. She said she saw the legs of their mother (the deceased) under the vehicle.
11. PW2 ran to the road to find help. The vehicle was lifted and the deceased was removed from under the vehicle.
12. The deceased was pronounced dead upon arrival at the hospital.
13. The Appellants did not call any evidence. The trial court assessed damages as follows;
General damages for pain and suffering Kshs. 100,000/=
Loss of expectation of life Kshs. 100,000/=
Loss of Dependency Kshs. 3,360,000/=
Special damages Kshs. 99,650/=
Total Kshs. 3,659,650/=
14. The Appellants have appealed against the Judgment on the following grounds:-
(i) The learned Magistrate in law and misdirected herself when she failed to consider the Appellant’s submissions on both points of law and facts.
(ii) That the learned Magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
(iii) That the learned Magistrate erred in law and misdirected herself when she failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
(iv) The learned Magistrate erred in law and fact in finding the Appellant 100% liable in view of the evidence produced before the trial court and in particular the following:
(a) That the Respondent failed to prove his case on liability against the Appellant.
(v) The learned Magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 50,000/= as for pain and suffering while not considering the deceased passed on the same day.
(vi) The learned trial Magistrate erred in law and fact by awarding the estate of the deceased a sum of Kshs. 100,000/= for loss of expectation of life when it was not entitled to the same and/or the same was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.
(vii) The learned Magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 3,360,000/= for loss of dependency that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the state of the deceased.
(viii) The learned Magistrate erred in law in failing to consider the Appellants submission on quantum and liability and legal authorities relied upon in support thereof.
(ix) The learned Magistrate erred in law and fact by overly relying on the Respondents submissions which were not relevant and without addressing his mind to the circumstance of the case.
(x) The learned Magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
15. The parties filed written submissions as follows; The Appellants submitted that they seek to set aside the lower court's award for loss of dependency, arguing that the trial magistrate exercised discretion erroneously by considering irrelevant factors and failing to apply proper legal principles.
16. They contend that the respondent failed to prove dependency, as there was no documentary evidence such as birth certificates or a chief's letter to establish that the deceased's two daughters were indeed her dependants.
17. Should the court nonetheless find dependency proved, the Appellants submit that the correct dependency ratio should be one-third, not two-thirds, as the deceased was allegedly unmarried, and reliance is placed on comparable authorities involving unmarried deceased persons.
18. Regarding the multiplicand, the Appellants challenge the award of Kshs. 30,000 as a monthly income, asserting there was no credible proof of such earnings from the deceased's M-PESA and Equity Agency business.
19. They argue that the handwritten sales records provided were inadequate, failing to show profits, averages, or even a clear link to the deceased. Consequently, they urge the court to apply the statutory minimum wage for a general worker in Muruguru, which was Kshs. 8,109 at the relevant time.
20. Concerning the multiplier, the Appellants submit that the trial court's use of 15 years was excessive for a deceased aged 46.
21. They advocate for a reduced multiplier of 10 years, factoring in the vicissitudes of life and accelerated payment, citing authorities where shorter multipliers were applied for individuals in their late forties and early fifties.
22. Based on these recalculations, the Appellants propose a revised loss of dependency award of Kshs. 324,360, derived from a formula using a 10-year multiplier, a monthly multiplicand of Kshs. 8,109, and a one-third dependency ratio.
23. They pray for the total judgment sum to be adjusted to Kshs. 624,010, incorporating the upheld awards for pain and suffering, loss of expectation of life, and special damages.
24. Finally, the Appellants request that this appeal be allowed with costs awarded in their favour.
25. The respondent submitted that the appeal is without merit and should be dismissed with costs.
26. Regarding liability, the respondent argues that the appellants' grounds challenging the 100% finding are unfounded.
27. The respondent's case was precisely pleaded and supported by the clear, uncontroverted testimony of an eye witness, PW2, which detailed how the accident was solely caused by the appellants' driver.
28. In contrast, the appellants filed a generalized defence and crucially failed to call any evidence to substantiate their pleadings or rebut the respondent's case.
29. Consequently, the trial court was correct in its finding, and grounds 1 to 4 of the appeal must fail.
30. Concerning quantum, the respondent defends the awards made by the trial court.
31. The award of Kshs. 100,000 for pain and suffering was based on a proper consideration of the evidence regarding the deceased's death and is within an acceptable range.
32. Similarly, the award of Kshs. 100,000 for loss of expectation of life is separately awardable and justified by precedent.
33. The respondent emphasizes that the appellants have effectively abandoned their challenges to these two heads in their written submissions.
34. The core of the appellants' challenge focuses on the loss of dependency award of Kshs. 3,360,000.
35. The respondent counters that the trial court correctly applied the multiplier-multiplicand method.
36. There was ample evidence, including business records and testimony, that the deceased, a 46-year-old businesswoman, earned an average of Kshs. 30,000 per month and supported her family, including a minor child.
37. The court rightly rejected the appellants' unsupported proposal for a global sum of Kshs. 400,000.
38. The adopted multiplicand of Kshs. 30,000 is supported by evidence, and the dependency ratio of 2/3 is appropriate.
39. The multiplier of 14 years, reflecting the deceased's potential working life in self-employment until around age 60, is also reasonable and in line with reality.
40. The respondent relies on Court of Appeal authority, notably the Isaac Kimani Kanyingi case, which holds that strict documentary proof of income is not always required for small businesses and that courts must assess earnings based on the available evidence.
41. Finally, the respondent asserts that the remaining grounds of appeal are generalized and without substance.
42. The trial court delivered a well-reasoned judgment that thoroughly considered the parties' submissions, evidence, and the applicable law.
43. The Respondent submitted that the appeal should therefore be dismissed in its entirety.
44. I have carefully considered the record of appeal and the submissions filed by both parties.
45. The issues for determination in this appeal are as follows;
(i) Whether the learned trial magistrate erred in law and in fact in finding the Appellants 100% liable for the fatal accident;
(ii) Whether the awards for pain and suffering and loss of expectation of life were erroneous;
(iii) Whether the award for loss of dependency was based on a proper application of the multiplier-multiplicand method.
46. On the issue of liability, the trial court’s finding is unassailable. The Appellants filed a defence that was a mere denial and crucially elected not to call any evidence to controvert the clear and consistent testimony of PW2, an eye witness who was a passenger in the vehicle.
47. PW2 testified that she saw the driver collapse on the steering wheel, leading to the loss of control and the subsequent rolling of the vehicle.
48. This evidence remained unchallenged and uncontroverted.
49. The legal principle is settled that a defendant who merely denies a claim must adduce credible evidence to rebut the probability of the plaintiff's case.
50. By failing to do so, the Appellants’ defence remained a bare denial. The trial magistrate was therefore correct in entering judgment on liability at 100% against the Appellants. This ground of appeal fails.
51. Concerning the awards for non-pecuniary loss, the court finds no basis for interference. The award of Kshs. 100,000 for pain and suffering, though the deceased passed on the same day, is conventional and within the discretion of the trial court for such traumatic fatal incidents.
52. Similarly, the separate award of Kshs. 100,000 for loss of expectation of life is justified in law.
53. The Appellants' submissions effectively abandoned any sustained challenge to these heads, and the court finds no error.
54. The main contention in this appeal revolves around the award for loss of dependency.
55. The Appellants challenge the multiplicand, the multiplier, and the dependency ratio used by the trial court.
56. The role of this court as a first appellate court is to re-evaluate the evidence and arrive at its own conclusions, while giving allowance for the trial court’s advantage of hearing and observing the witnesses, as established in Selle v Associated Motor Boat Co. Ltd. [1968] EA 123.
57. On the multiplicand, the Respondent testified and produced handwritten records from the deceased's M-PESA and Equity Agency business to support the claim of an average monthly income of Kshs. 30,000.
58. The Appellants dismiss these records as inadequate. However, Kenyan courts have consistently recognized that in cases involving small-scale businesses, strict formal proof of income is not always feasible.
59. The trial magistrate saw and assessed the business records and believed the testimony regarding the deceased's earnings.
60. This court finds no reason to depart from that finding. The proposed use of the statutory minimum wage is inapplicable as the deceased was a self-employed businesswoman, not a general labourer.
61. The multiplicand of Kshs. 30,000 was reasonably founded on the evidence.
62. Regarding the dependency ratio, the Appellants argue for one-third, claiming the deceased was unmarried.
63. This claim is contradicted by the record, which clearly shows the Respondent is the deceased's husband, and they had two children.
64. In such circumstances, where a deceased person leaves a spouse and young children, a dependency ratio of two-thirds is standard and reasonable, as it acknowledges that the deceased would have used a significant portion of her income for the welfare of her immediate family.
65. The trial court committed no error in adopting this ratio.
66. Concerning the multiplier, the deceased was 46 years old at her death. The trial court adopted a multiplier of 14 years, positing a working life in self-employment up to around 60 years.
67. While this is not unreasonable, this court must also consider the vicissitudes and uncertainties of life, which warrant a measure of moderation.
68. Taking a balanced view of the circumstances, this court finds that a multiplier of 12 years is more prudent and just for a 46-year-old.
69. Consequently, the loss of dependency is recalculated as follows: Monthly multiplicand Kshs. 30,000 x 12 months = Kshs. 360,000 per annum. Applying a dependency ratio of 2/3 gives Kshs. 240,000 per annum. Over a multiplier of 12 years, this amounts to Kshs. 2,880,000.
70. The special damages of Kshs. 99,650 were specifically pleaded and proved and are therefore upheld.
71. In the final analysis, the judgment of the lower court is varied only on the award for loss of dependency. The total award is therefore restructured as follows:
a) General damages for pain and suffering: Kshs. 100,000.b) Loss of expectation of life: Kshs. 100,000.
c) Loss of Dependency: Kshs. 2,880,000.
d) Special damages: Kshs. 99,650.
Total: Kshs. 3,179,650.
72. The appeal therefore partially succeeds only to the extent of the variation in the loss of dependency award as set out above.
73. The award of Kshs. 3,179,650 shall accrue interest at court rates from the date of the judgment in the lower court.
74. The Respondent’s counsel to file an application within 30 days of this date on the distribution of the award to the dependants in accordance with Section 4 of the Fatal Accidents Act.
75. That section states that damages recovered under the said Act "shall be divided among the dependants in such shares as the court directs.".
76. This requirement is not merely procedural but a substantive safeguard for the rightful beneficiaries.
77. Considering the partial success of the appeal, each party shall bear its own costs of this appeal.
Dated, signed and delivered this 22nd day of December, 2025 virtually via MT Teams at Voi High Court.
2. The Respondent is the husband of the deceased. They have two children.
3. The Respondent averred that the motor vehicle was being driven at a high speed and upon reaching Manyani Area, it lost control and rolled several times.
4. The Appellants filed a defence denying the Respondent’s claim. They said if the accident occurred, it was beyond the scope and control of the Defendants.
5. The Respondent testified as PW1 and his daughter who was in the accident as PW2.
6. PW2 said she was travelling with the deceased (her mother) with a younger sister when the accident occurred.
7. PW2 said the deceased was seated at the Co-driver-s seat while she was behind the driver.
8. PW2 said she saw the driver collapse on the wheel and the motor vehicle lost control and rolled several times and stopped.
9. PW2 woke her sister and they got out of the motor vehicle. She could not find the deceased.
10. She said she saw the legs of their mother (the deceased) under the vehicle.
11. PW2 ran to the road to find help. The vehicle was lifted and the deceased was removed from under the vehicle.
12. The deceased was pronounced dead upon arrival at the hospital.
13. The Appellants did not call any evidence. The trial court assessed damages as follows;
General damages for pain and suffering Kshs. 100,000/=
Loss of expectation of life Kshs. 100,000/=
Loss of Dependency Kshs. 3,360,000/=
Special damages Kshs. 99,650/=
Total Kshs. 3,659,650/=
14. The Appellants have appealed against the Judgment on the following grounds:-
(i) The learned Magistrate in law and misdirected herself when she failed to consider the Appellant’s submissions on both points of law and facts.
(ii) That the learned Magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
(iii) That the learned Magistrate erred in law and misdirected herself when she failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
(iv) The learned Magistrate erred in law and fact in finding the Appellant 100% liable in view of the evidence produced before the trial court and in particular the following:
(a) That the Respondent failed to prove his case on liability against the Appellant.
(v) The learned Magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 50,000/= as for pain and suffering while not considering the deceased passed on the same day.
(vi) The learned trial Magistrate erred in law and fact by awarding the estate of the deceased a sum of Kshs. 100,000/= for loss of expectation of life when it was not entitled to the same and/or the same was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.
(vii) The learned Magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 3,360,000/= for loss of dependency that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the state of the deceased.
(viii) The learned Magistrate erred in law in failing to consider the Appellants submission on quantum and liability and legal authorities relied upon in support thereof.
(ix) The learned Magistrate erred in law and fact by overly relying on the Respondents submissions which were not relevant and without addressing his mind to the circumstance of the case.
(x) The learned Magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
15. The parties filed written submissions as follows; The Appellants submitted that they seek to set aside the lower court's award for loss of dependency, arguing that the trial magistrate exercised discretion erroneously by considering irrelevant factors and failing to apply proper legal principles.
16. They contend that the respondent failed to prove dependency, as there was no documentary evidence such as birth certificates or a chief's letter to establish that the deceased's two daughters were indeed her dependants.
17. Should the court nonetheless find dependency proved, the Appellants submit that the correct dependency ratio should be one-third, not two-thirds, as the deceased was allegedly unmarried, and reliance is placed on comparable authorities involving unmarried deceased persons.
18. Regarding the multiplicand, the Appellants challenge the award of Kshs. 30,000 as a monthly income, asserting there was no credible proof of such earnings from the deceased's M-PESA and Equity Agency business.
19. They argue that the handwritten sales records provided were inadequate, failing to show profits, averages, or even a clear link to the deceased. Consequently, they urge the court to apply the statutory minimum wage for a general worker in Muruguru, which was Kshs. 8,109 at the relevant time.
20. Concerning the multiplier, the Appellants submit that the trial court's use of 15 years was excessive for a deceased aged 46.
21. They advocate for a reduced multiplier of 10 years, factoring in the vicissitudes of life and accelerated payment, citing authorities where shorter multipliers were applied for individuals in their late forties and early fifties.
22. Based on these recalculations, the Appellants propose a revised loss of dependency award of Kshs. 324,360, derived from a formula using a 10-year multiplier, a monthly multiplicand of Kshs. 8,109, and a one-third dependency ratio.
23. They pray for the total judgment sum to be adjusted to Kshs. 624,010, incorporating the upheld awards for pain and suffering, loss of expectation of life, and special damages.
24. Finally, the Appellants request that this appeal be allowed with costs awarded in their favour.
25. The respondent submitted that the appeal is without merit and should be dismissed with costs.
26. Regarding liability, the respondent argues that the appellants' grounds challenging the 100% finding are unfounded.
27. The respondent's case was precisely pleaded and supported by the clear, uncontroverted testimony of an eye witness, PW2, which detailed how the accident was solely caused by the appellants' driver.
28. In contrast, the appellants filed a generalized defence and crucially failed to call any evidence to substantiate their pleadings or rebut the respondent's case.
29. Consequently, the trial court was correct in its finding, and grounds 1 to 4 of the appeal must fail.
30. Concerning quantum, the respondent defends the awards made by the trial court.
31. The award of Kshs. 100,000 for pain and suffering was based on a proper consideration of the evidence regarding the deceased's death and is within an acceptable range.
32. Similarly, the award of Kshs. 100,000 for loss of expectation of life is separately awardable and justified by precedent.
33. The respondent emphasizes that the appellants have effectively abandoned their challenges to these two heads in their written submissions.
34. The core of the appellants' challenge focuses on the loss of dependency award of Kshs. 3,360,000.
35. The respondent counters that the trial court correctly applied the multiplier-multiplicand method.
36. There was ample evidence, including business records and testimony, that the deceased, a 46-year-old businesswoman, earned an average of Kshs. 30,000 per month and supported her family, including a minor child.
37. The court rightly rejected the appellants' unsupported proposal for a global sum of Kshs. 400,000.
38. The adopted multiplicand of Kshs. 30,000 is supported by evidence, and the dependency ratio of 2/3 is appropriate.
39. The multiplier of 14 years, reflecting the deceased's potential working life in self-employment until around age 60, is also reasonable and in line with reality.
40. The respondent relies on Court of Appeal authority, notably the Isaac Kimani Kanyingi case, which holds that strict documentary proof of income is not always required for small businesses and that courts must assess earnings based on the available evidence.
41. Finally, the respondent asserts that the remaining grounds of appeal are generalized and without substance.
42. The trial court delivered a well-reasoned judgment that thoroughly considered the parties' submissions, evidence, and the applicable law.
43. The Respondent submitted that the appeal should therefore be dismissed in its entirety.
44. I have carefully considered the record of appeal and the submissions filed by both parties.
45. The issues for determination in this appeal are as follows;
(i) Whether the learned trial magistrate erred in law and in fact in finding the Appellants 100% liable for the fatal accident;
(ii) Whether the awards for pain and suffering and loss of expectation of life were erroneous;
(iii) Whether the award for loss of dependency was based on a proper application of the multiplier-multiplicand method.
46. On the issue of liability, the trial court’s finding is unassailable. The Appellants filed a defence that was a mere denial and crucially elected not to call any evidence to controvert the clear and consistent testimony of PW2, an eye witness who was a passenger in the vehicle.
47. PW2 testified that she saw the driver collapse on the steering wheel, leading to the loss of control and the subsequent rolling of the vehicle.
48. This evidence remained unchallenged and uncontroverted.
49. The legal principle is settled that a defendant who merely denies a claim must adduce credible evidence to rebut the probability of the plaintiff's case.
50. By failing to do so, the Appellants’ defence remained a bare denial. The trial magistrate was therefore correct in entering judgment on liability at 100% against the Appellants. This ground of appeal fails.
51. Concerning the awards for non-pecuniary loss, the court finds no basis for interference. The award of Kshs. 100,000 for pain and suffering, though the deceased passed on the same day, is conventional and within the discretion of the trial court for such traumatic fatal incidents.
52. Similarly, the separate award of Kshs. 100,000 for loss of expectation of life is justified in law.
53. The Appellants' submissions effectively abandoned any sustained challenge to these heads, and the court finds no error.
54. The main contention in this appeal revolves around the award for loss of dependency.
55. The Appellants challenge the multiplicand, the multiplier, and the dependency ratio used by the trial court.
56. The role of this court as a first appellate court is to re-evaluate the evidence and arrive at its own conclusions, while giving allowance for the trial court’s advantage of hearing and observing the witnesses, as established in Selle v Associated Motor Boat Co. Ltd. [1968] EA 123.
57. On the multiplicand, the Respondent testified and produced handwritten records from the deceased's M-PESA and Equity Agency business to support the claim of an average monthly income of Kshs. 30,000.
58. The Appellants dismiss these records as inadequate. However, Kenyan courts have consistently recognized that in cases involving small-scale businesses, strict formal proof of income is not always feasible.
59. The trial magistrate saw and assessed the business records and believed the testimony regarding the deceased's earnings.
60. This court finds no reason to depart from that finding. The proposed use of the statutory minimum wage is inapplicable as the deceased was a self-employed businesswoman, not a general labourer.
61. The multiplicand of Kshs. 30,000 was reasonably founded on the evidence.
62. Regarding the dependency ratio, the Appellants argue for one-third, claiming the deceased was unmarried.
63. This claim is contradicted by the record, which clearly shows the Respondent is the deceased's husband, and they had two children.
64. In such circumstances, where a deceased person leaves a spouse and young children, a dependency ratio of two-thirds is standard and reasonable, as it acknowledges that the deceased would have used a significant portion of her income for the welfare of her immediate family.
65. The trial court committed no error in adopting this ratio.
66. Concerning the multiplier, the deceased was 46 years old at her death. The trial court adopted a multiplier of 14 years, positing a working life in self-employment up to around 60 years.
67. While this is not unreasonable, this court must also consider the vicissitudes and uncertainties of life, which warrant a measure of moderation.
68. Taking a balanced view of the circumstances, this court finds that a multiplier of 12 years is more prudent and just for a 46-year-old.
69. Consequently, the loss of dependency is recalculated as follows: Monthly multiplicand Kshs. 30,000 x 12 months = Kshs. 360,000 per annum. Applying a dependency ratio of 2/3 gives Kshs. 240,000 per annum. Over a multiplier of 12 years, this amounts to Kshs. 2,880,000.
70. The special damages of Kshs. 99,650 were specifically pleaded and proved and are therefore upheld.
71. In the final analysis, the judgment of the lower court is varied only on the award for loss of dependency. The total award is therefore restructured as follows:
a) General damages for pain and suffering: Kshs. 100,000.b) Loss of expectation of life: Kshs. 100,000.
c) Loss of Dependency: Kshs. 2,880,000.
d) Special damages: Kshs. 99,650.
Total: Kshs. 3,179,650.
72. The appeal therefore partially succeeds only to the extent of the variation in the loss of dependency award as set out above.
73. The award of Kshs. 3,179,650 shall accrue interest at court rates from the date of the judgment in the lower court.
74. The Respondent’s counsel to file an application within 30 days of this date on the distribution of the award to the dependants in accordance with Section 4 of the Fatal Accidents Act.
75. That section states that damages recovered under the said Act "shall be divided among the dependants in such shares as the court directs.".
76. This requirement is not merely procedural but a substantive safeguard for the rightful beneficiaries.
77. Considering the partial success of the appeal, each party shall bear its own costs of this appeal.
Dated, signed and delivered this 22nd day of December, 2025 virtually via MT Teams at Voi High Court.