Introduction
1. This is a first appeal against the judgment and decree of Hon. J. A. Agonda, Principal Magistrate, delivered on 23rd January 2025 in Vihiga Principal Magistrate's Courts Civil Case No. E298 of 2022, a suit arising from a fatal road traffic accident.
2. The appeal is confined to quantum. The finding of liability at 100% against the Appellant is not challenged in the Memorandum of Appeal and is therefore not before me. Equally, no ground of appeal touches on the award of Kshs. 100,000/= for loss of expectation of life or on the trial Court's refusal to award special damages. Those findings must stand.
3. The Appellant was the defendant, and the Respondents were the plaintiffs, in the Subordinate Courts. For convenience I refer to the parties by their designations in this appeal, and to the late Rebecca Adwoli Edali as "the deceased".
The case in the Subordinate Courts
4. By a plaint dated 17th November 2022 and filed on 14th December 2022, the Respondents, suing as the legal representatives and Administrators of the estate of the deceased, brought a claim under both the Law Reform Act, Cap. 26 and the Fatal Accidents Act, Cap. 32. It was pleaded that on 6th July 2022, along the Luanda–Maseno road at Mwambeba area, the deceased was lawfully travelling as a pillion passenger aboard motor cycle registration number KMFN 493T when motor vehicle registration number KCS 494T, owned by the Appellant and driven by him or by his servant or agent, was so negligently, recklessly and carelessly driven, managed or controlled that it collided with the said motor cycle, occasioning the deceased fatal injuries from which she died. The Respondents prayed for general damages, special damages of Kshs. 89,600/=, loss of consortium, costs and interest.
5. The Appellant entered appearance and filed a defence dated 25th January 2023 in which he denied the material averments of the plaint, took issue with ownership and the identity of the driver, and, in the alternative, pleaded that any such accident as may be proved was wholly caused or substantially contributed to by the negligence of the rider of the motor cycle and of the deceased herself. A reply to defence dated 4th February 2023 was filed.
6. The suit proceeded to hearing on 12th October 2023 and 7th November 2024. The Respondents called four witnesses. The Appellant participated in the proceedings through Counsel but called no witness, and the defence case was closed. This forms the summary of the evidence as deducible from the record.
7. First to take the witness stand was PW1, Flora Akumu Simion, the deceased's mother and administratrix of her estate, adopted her statement filed on 15th December 2022 and produced exhibits PExh.1 to PExh.11. These included her national identity card, the police abstract, the sketch plan, the postmortem report, the death certificate, the letter from the Area Chief, the letters of administration ad litem, the birth certificates and birth notifications of the deceased's children, the motor vehicle search, the demand and statutory notices, and of central importance to this appeal, the letter of offer of appointment issued by the Vihiga County Public Service Board dated 25th February 2021 and the letter of deployment issued by the County Government of Vihiga dated 24th March 2021.
8. Further PW1 testified that the deceased was 37 years of age, was married with three children, was a trained fashion designer, and was employed by the County Government of Vihiga at Mwambeba Vocational Training Centre earning Kshs. 22,270/= per month. In cross-examination she conceded that she had not produced a pay slip. She also stated, both in her evidence in chief and under cross-examination, that the deceased died on the spot.
9. Second was PW2, PC Evanson Kibet of Luanda Police Station, produced the police abstract and sketch map and blamed the driver of motor vehicle KCS 494T, who fled the scene. PW3, Edwin Mulusa Chasiaya, and PW4, Ruth Anyoso, were eye witnesses who testified that the motor cycle rider had indicated an intention to turn right when the Appellant's vehicle, travelling at high speed and without braking, hit the motor cycle from behind. Both testified that the pillion passenger - the deceased died at the scene, while the rider was still breathing and was taken to hospital where he later succumbed. In addition, the Courts placed reliance on the documentary evidence being the certificate of birth of one Fridah Malenya, the County Government of Vihiga appointment of letter of one Rebecca Adwoli Edali dated 25th February 2021, introduction letter by the Area Chief dated 10th November 2022, certificate of death of the deceased dated 26th August 2022, Police abstract filed in Courts on 18th December 2022, and the postmortem report of the deceased dated 8th July 2022.
10. In her judgment delivered on 23rd January 2025 the Learned Trial Magistrate found the Appellant wholly liable and assessed damages as follows:
a. Pain and suffering – Kshs. 50,000/=;
b. Loss of expectation of life – Kshs. 100,000/=;
c. Loss of dependency – Kshs. 3,271,680/=;
d. Special damages – Nil;
e. Total – Kshs. 3,421,680/=, with costs and interest at Courts rates from the date of judgment.
11. On the head of loss of dependency, the learned Magistrate expressly set out her parameters and her computation. She found, from the death certificate, that the deceased was 37 years old; that she was employed by the County Government of Vihiga as a fashion design instructor earning Kshs. 22,270/= per month as per the appointment letter and letter of offer produced; that she would have worked to the retirement age of 60 years; that a multiplier of 18 years was appropriate having regard to the vagaries of life; and that a dependency ratio of 2/3 was appropriate, the deceased having been survived by a husband and three children. Her stated computation was "(2/3 x 22,270 x 18 x 12)", which she recorded as producing Kshs. 3,271,680/=.
The appeal
12. Aggrieved, the Appellant lodged this appeal by a Memorandum of Appeal dated 20th February 2025 and filed on 22nd February 2025, raising three grounds, namely:
i. That the Learned Trial Magistrate's exercise of discretion in assessment of quantum, especially on the limb of loss of dependency and on pain and suffering, was injudicious;
ii. That the Learned Trial Magistrate erred in law and in fact in awarding loss of dependency of Kshs. 3,271,680/= yet there was no proof of income of the deceased;
iii. That the Learned Trial Magistrate erred in law and in fact in failing to pay regard to authorities in the defendant's submissions that were guiding on the amount of quantum appropriate and applicable in similar cases.
13. The Appellant prays that the appeal be allowed, the decree in Vihiga PMCC No. E298 of 2022 be set aside, that this Courts re-assesses the evidence
on record on quantum and substitutes its own award, and that he be awarded the costs of the appeal.
14. By consent, the appeal was canvassed by way of written submissions. The Appellant's submissions are dated 3rd May 2026 and were filed by M/S KRK Advocates LLP. The Respondents' submissions are dated 7th August 2026 and were filed by M/S M. A. Okumu & Co. Advocates. I have read both sets of submissions and the authorities annexed to them.
Submissions of the Appellant
15. In this regard Learned Counsel for the Appellant submits, first, that the learned magistrate applied a multiplicand of Kshs. 22,270/= that was never proved. It is contended that although a letter of employment was produced indicating the salary the deceased would earn as a fashion designer, such a letter could only assist the Courts in grading the deceased as a skilled or unskilled worker; that the only acceptable proof of earnings would be bank statements, pay slips or M-Pesa statements; and that in their absence the Courts ought to have reverted to the Regulation of Wages Order.
16. He placed reliance in the following authorities; Rutto v Kiprono & Another
(Suing as the Administrators of the Estate of Daniel Chemweno Kosgei) [2024] KEHC 15073 (KLR), in which Wananda J. considered the multiplicand and cited Chunibhai J. Patel & Another v P. F. Hayes & Others [1957] EA 748 for the proposition that it is the net earning power of the deceased, being income less tax, that determines the annual value of the dependency. It is submitted that the failure to produce a pay slip meant that net income could not be ascertained and that the multiplier method could therefore not properly be applied.
17. The Appellant learned Counsel further relied on the principles in the case of Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR, where Wendoh J. observed that where a plaintiff does not prove what the deceased earned the Courts would ordinarily base the earnings on the minimum wage, and on Frankline Kimathi Maariu & Another v Philip
Akungu Mitu Mborothi [2020] eKLR, where Mabeya J. held that where there
is no salary or employment proved, the Courts should be wary of subscribing to a figure and should instead apply the global sum approach or the minimum wage.
18. Whereas on pain and suffering, Learned Counsel submitted that awards under this head depend on whether there was prolonged distress or torture before death. It is asserted that the deceased died while undergoing treatment and was neither admitted nor referred to any other hospital, and that she therefore endured no torture. Relying on Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, where the awards for pain and suffering were said to range from Kshs. 10,000/= to Kshs. 100,000/=, with higher awards where the suffering was prolonged, the Appellant urges that Kshs. 10,000/= would be reasonably fair.
Summary of the Respondents Submissions
19. Learned Counsel for the Respondents first addresses the threshold for appellate interference with quantum, relying on Butt v Khan [1981] KLR 349, Omar v Ngowa & another [2024] KEHC 8750 (KLR) (citing Henry Hilanga v Manyoka [1961] EA 705), and Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, for the settled proposition that an appellate Court will not substitute a figure of its own merely because it would have awarded differently at first instance.
20. With regard to the multiplicand, Learned Counsel submitted that a letter of appointment is a document issued by an employer confirming employment and setting out its terms, including salary, and is therefore proof not only of employment but of earnings. It is emphasized that the letter relied upon was issued by a public body, the Vihiga County Public Service Board, was signed by both employer and employee, and was produced in evidence without objection and was never controverted at the hearing.
21. In addition, Learned Counsel reminded the Courts that the standard of proof in civil matters is a balance of probabilities, citing Palace Investment
Ltd v Geoffrey Kariuki Mwenda & another [2015] eKLR and the classic statement of Denning J. in Miller v Minister of Pensions [1947] 2 All ER 372, and submits that the letter of appointment discharged that burden.
22. In the alternative, and if the Courts were minded to apply the minimum wage for the deceased's trade, the Respondents submit that the applicable figure for a former municipality under item 8 of the Regulation of Wages (General) (Amendment) Order, 2022 — which covers the tailoring trade — is Kshs. 23,716/=, which is higher than the figure adopted by the trial Court. On that footing the Respondents invite an enhancement of the award to Kshs. 3,415,104/= (2/3 x 23,716 x 18 x 12).
23. In respect of pain and suffering, the Respondents submit that the deceased died instantly, that Kshs. 50,000/= was proposed and awarded, and that the award is consistent with Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, where Kshs. 75,000/= was upheld for a deceased who died instantly, and Sukari Industries Limited v Clyde Machimbo Juma [2015] eKLR, where Kshs. 50,000/= was upheld in like circumstances. They add that the award of Kshs. 100,000/= for loss of expectation of life is the conventional figure. They pray that the appeal be dismissed with costs.
The Duty and Jurisdiction of this Court
24. This being a first appeal, my duty under Section 78 of the Civil Procedure Act, Cap. 21 is to re-appraise, re-evaluate and re-analyze the whole of the evidence tendered before the trial Courts and to arrive at my own independent conclusions, bearing always in mind that I neither saw nor heard the witnesses testify and making due allowance for that disadvantage. See Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v Sunday Post Limited [1958] EA 424.
25. That duty is, however, qualified in an appeal directed solely at quantum. The assessment of damages is a matter of discretion for the trial Court, and the circumstances in which an appellate Court may interfere are narrow and well settled.
26. In Butt v Khan [1982–88] 1 KAR 1, the Courts of Appeal held that an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate; it must be shown that the judge proceeded on wrong principles, or misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
27. The same principle was restated in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A. M. Lubia and Olive Lubia [1985] eKLR, where the Courts identified the grounds of interference as the taking into account of an irrelevant factor, the leaving out of account of a relevant one, or an amount so inordinately high or low as to be a wholly erroneous estimate of the damage.
28. It follows that it is not enough for an Appellant to persuade me that, sitting at first instance, I might have arrived at a different figure. The Appellant must demonstrate an error of principle, a material misapprehension of the evidence, or a figure that is wholly erroneous. The burden of doing so lies squarely on the Appellant.
Issues for determination
29. Having considered the Memorandum of Appeal, the record, the rival submissions and the authorities, I frame the issues for determination as follows:
i. Whether the learned trial Magistrate erred in adopting the multiplier method and a multiplicand of Kshs. 22,270/= in the absence of a pay slip or bank statements;
ii. Whether the multiplier of 18 years and the dependency ratio of 2/3 were properly adopted;
iii. Whether the resulting award of Kshs. 3,271,680/= for loss of dependency is sustainable;
iv. Whether the award of Kshs. 50,000/= for pain and suffering is inordinately high;
v. Whether the learned trial Magistrate failed to have regard to the authorities cited in the defendant's submissions;
vi. Whether this Courts may entertain the Respondents' invitation to enhance the award; and
vii. What orders should issue, and who should bear the costs.
Analysis and determination
Issue (i): Proof of income, and the propriety of the multiplicand of Kshs. 22,270/=
30. On this first issue the Fatal Accident Act provides the statutory provisions upon which the exercise of discretion shall be exercised to arrive at a just and proportionate compensation in favour of the deceased estate. This being a common law jurisdiction with its foundation in the English Law one would not be out of order in starting this analysis by making reference to the principles illustrated in the case of Nance v British Columbia Electric Railways Co. Ltd 1951 in which Viscount Simon set out in the judgment as follows on the principles for estimating the damages in the circumstances of this appeal. Thus:
"........at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of pre-mature determination of his life by later accidents, secondly, the amount required for the future provision of his wife shall he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived he full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation."
31. The other aspect of this appeal which is on account of loss of life caused by the Road Traffic Accident revolves around the starting point which is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses.
32. These core principles in the persuasive case law have actually been domesticated in our very own jurisdiction as demonstrated herein under:
• The Multiplicand (Annual Dependency): Represents the net annual financial value of the dependency. The Court of Appeal mandates that the multiplicand must be computed using the net earnings (gross earnings minus statutory deductions like PAYE, NSSF, and NHIF), rather than the raw gross salary
• The Multiplier (Years of Purchase): Represents the number of years the dependency would have lasted. In determining a reasonable multiplier, the Court considers the deceased's age, remaining productive working life span, the normal retirement age in Kenya, the life expectancy of the dependents, and the vicissitudes/vagaries of life.
• Dependency Ratio: Usually assessed as a fraction (e.g., 2/3 or 1/2 or 1/3) reflecting the proportion of the net income the deceased actually used to maintain the dependents during their lifetime.
33. Insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less than the tax paid. If the same is followed, it shall subserve the cause of justice and the unnecessary contest before the Courts would be avoided.
34. In the Kenyan context on matters to do with award of damages for lost years under the Fatal Accident Act where there are dependants who have been deprived of their survivorship and maintenance due to the death of the main provider as the deceased to this appeal several other factors should be taken into consideration which may include the age and education of the dependants and all the nature of the job of the deceased as at the time of his/her death. It is also true to state that in the wake of change of societal conditions and global scenario feature prospect may have to be taken into account not only the Court having regard to the status of the employee now deceased, his/her education qualification, his/her past performance but also other relevant factors. This may include the nature of the salaries and allowances which were being offered by the employer prior to his/her death in which she/he suffered the fatal injuries arising out of the motor vehicle accident.
35. The Appellant's central complaint is that there was "no proof of income". With respect, that submission does not survive an examination of the record. The deceased was not a person of unknown or informal occupation. She was a public officer. On 25th February 2021 the Vihiga County Public
Service Board issued her with a letter of offer of appointment as Instructor, Fashion Design and Garment Making, in the Department of Technical Education and Vocational Training. On 24th March 2021 the Chief Officer, Technical and Vocational Education and Training, County Government of Vihiga, issued her with a letter of deployment to Mwambeba Vocational Training Centre. Both documents were produced in evidence as PExh.7 and PExh. 8.
36. There is Clause 2 of the letter of offer, under the heading "Remuneration", provides that the deceased's monthly remuneration package shall be within the bracket of Job Group CPSB11 – "G", set out as a salary scale running from Kshs. 22,270 by annual increments up to Kshs. 30,020 per month, and states in terms that her entry point shall be Kshs. 22,270.00 per month. The same clause provides that all other allowances and benefits accruing to the position are as per the guidelines issued by the Salaries and Remuneration Commission. The letter bears the deceased's signature accepting its terms.
37. That is documentary evidence of employment and of earnings, emanating from a public employer, contemporaneous, specific as to figure, and accepted in writing by the employee. It was produced without objection. Its authenticity and sufficiency were not challenged in cross-examination. No contrary evidence was tendered, the Appellant having elected to call no witness at all.
38. The proposition that earnings may be proved only by a pay slip, a bank statement or an M-Pesa statement is not the law. In Jacob Ayiga Maruja &
Another v Simeone Obayo [2005] eKLR, the Courts of Appeal declined to
accept that the only method of proving a person's occupation and earnings is by production of documents, holding that oral evidence, if credible, may suffice. Documentary proof is the best evidence where it exists; it is not the only admissible evidence. Here the Respondents in fact produced documentary proof, but the Appellant produced nothing.
39. The authorities relied upon by the Appellant are, on analysis, authorities against him. In Frankline Kimathi Maariu (Supra), Mabeya J. was dealing with a case in which the deceased's father - himself a director of the alleged employer company - gave contradictory figures of Kshs. 20,000/= and Kshs. 15,000/=, produced no letter of appointment, and withheld records to which he had ready access; a company letter described the deceased merely as a casual and disclosed no salary. It was in that setting that the learned Judge said the Courts should be wary of subscribing to a figure "where there is no salary proved or employment". Here, both employment and salary were proved, and by an independent public employer.
40. In Beatrice W. Murage (supra), the pleaded case was that the deceased was an enterprising businessman and contractor earning in excess of Kshs. 95,000/= per month, while the widow's evidence was that he was a wheat farmer; there was, as Wendoh J. found, "no shred of evidence" to support either account, and the deceased was in any event 74 years old and beyond employment age. The passage on the minimum wage relied upon by the Appellant is expressly predicated on a failure to prove earnings at all. That is not this case.
41. In Rutto v Kiprono (supra), the only document produced was a pay slip for June 2013 - six years before the death - and the deceased had passed the retirement age. Even on those facts, Wananda J. declined to fault the trial Magistrate for adopting the multiplier method, precisely because the documents had gone in without objection and were not controverted. The reasoning applies with greater force here, where the documents are current to the employment subsisting at the date of death.
42. That leaves the more refined point taken by the Appellant through Rutto and Chunibhai J. Patel: that the multiplicand must be the net, and not the gross, earnings. The governing authority is Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja, deceased) v Kiarie Shoe Stores Limited [2015] eKLR, in which the Courts of Appeal held that the net income determines the multiplicand and that it is net of statutory deductions only — loan repayments, savings, union dues and similar voluntary deductions are not to be taken into account.
43. Two matters answer that submission on the facts of this case. First, the figure of Kshs. 22,270/= is not a gross salary in the sense contemplated in Hellen Waruguru. It is the basic entry point of the salary scale. It excludes the allowances and benefits which clause 2 of the letter of offer expressly provided for, and it excludes the annual increments built into the scale, under which the deceased's basic pay would have risen progressively to Kshs. 30,020/=. The deceased had by the date of the accident already served some sixteen months. The multiplicand adopted was therefore a floor rather than a ceiling. Secondly, and decisively, there is no evidence whatsoever on the record from which the statutory deductions applicable to the deceased could be quantified. No pay slip was produced. It is not the function of an appellate Court to speculate about the incidence of PAYE, the National Social Security Fund or the health insurance levy in order to construct a deduction for which no party laid an evidential foundation. The Appellant, as the party seeking to disturb the award, bore the burden of demonstrating the error he alleges and of showing this Court what the correct figure ought to have been. He filed no evidence below and has offered no computation on appeal.
44. In any event, whatever modest statutory deductions might have applied to a basic salary at this level would, on any realistic view, have been more than offset by the allowances and increments which the multiplicand leaves out of account on the net effect of the trial Court's approach in arriving at the final award.
45. There is a further and complete answer. The Appellant's own preferred methodology yields him no benefit. Having abandoned in this Court the figure of Kshs. 8,109.90/= (the general labourer's minimum wage) urged below, he now invites a reversion to the Regulation of Wages Order without identifying the applicable rate. The Respondents submit, and the Appellant has not disputed, that the minimum wage applicable to the tailoring and garment trade in a former municipality under item 8 of the Regulation of Wages (General) (Amendment) Order, 2022 is Kshs. 23,716/=. Vihiga is a former municipality. On the Appellant's own methodology the multiplicand would therefore be higher, not lower, than the figure the trial Court adopted. A ground of appeal which, if accepted, would increase the award cannot avail the Appellant.
46. I therefore find that there was satisfactory proof of the deceased's monthly income; that the learned trial Magistrate was entitled to adopt the multiplier method rather than a global sum; and that the multiplicand of Kshs. 22,270/= discloses no error of principle. Ground 2 of the Memorandum of Appeal fails.
Issue (ii): The multiplier and the dependency ratio
47. My findings therefore is neither the multiplier nor the dependency ratio is expressly challenged in the Memorandum of Appeal, and neither was it addressed in the Appellant's submissions. The ultimate resolution is that ground 1 however as framed broadly enough to embrace the assessment as a whole, and as a first appellate Courts I have in any event re-examined both and no reasons have been advanced to have it reviewed in favour of the Appellant.
48. It is a fact that the deceased was 37 years of age at her death, as established by the death certificate. She was a Public Officer whose employment would ordinarily have run to the retirement age of 60 years, leaving 23 potential working years. The Learned Magistrate adopted 18 years, expressly discounting for the vagaries, uncertainties and vicissitudes of life. In legal jurisprudence, the term "vagaries of life" (often paired with "vicissitudes of life") refers to the unpredictable, uncontrollable uncertainties, risks, and changes inherent to human existence—such as sudden illness, premature death, loss of employment, economic hardship, or career shifts. When Courts evaluate how these vagaries affect a human being's right to life, they primarily do so across two main legal dimensions: Tort/Personal Injury Law (quantifying the value or expectation of a life cut short) and Constitutional Law (ensuring a life of dignity, livelihood, and protection from life's cruelest uncertainties). In fatal accident claims and personal injury lawsuits, Courts must determine the financial value of a life or the loss of dependency. Judges routinely cite the "vagaries of life" to reduce or adjust the life expectancy multiplier, acknowledging that no person is guaranteed to live or work until a specific retirement age without facing unforeseen hardships.
49. In the case before Court, there was not iota of evidence that the right to life of the deceased during her livelihood she had experienced certain preexisting conditions which when placed on the vagaries of life into considerations there was a higher likelihood of her not making to the retirement age of 60 years. This victim of this accident was actually at her prime young adult age of 37 years with no known health conditions which could have impacted her right to life. The right to life stands at the top of the human right and freedoms pyramid in our Constitution 2010. Placed in this way, the Republic of Kenya has endeavored to provide accessible universal health care for all of its citizens. In essence Article 43(1)(a) provides as follows:
(1) Every person has the right—
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
50. Fundamental principles of the protection of human life are determined in our constitutional provisions. Life is a right, a fundamental attribute of the human being an
[...truncated]
1. This is a first appeal against the judgment and decree of Hon. J. A. Agonda, Principal Magistrate, delivered on 23rd January 2025 in Vihiga Principal Magistrate's Courts Civil Case No. E298 of 2022, a suit arising from a fatal road traffic accident.
2. The appeal is confined to quantum. The finding of liability at 100% against the Appellant is not challenged in the Memorandum of Appeal and is therefore not before me. Equally, no ground of appeal touches on the award of Kshs. 100,000/= for loss of expectation of life or on the trial Court's refusal to award special damages. Those findings must stand.
3. The Appellant was the defendant, and the Respondents were the plaintiffs, in the Subordinate Courts. For convenience I refer to the parties by their designations in this appeal, and to the late Rebecca Adwoli Edali as "the deceased".
The case in the Subordinate Courts
4. By a plaint dated 17th November 2022 and filed on 14th December 2022, the Respondents, suing as the legal representatives and Administrators of the estate of the deceased, brought a claim under both the Law Reform Act, Cap. 26 and the Fatal Accidents Act, Cap. 32. It was pleaded that on 6th July 2022, along the Luanda–Maseno road at Mwambeba area, the deceased was lawfully travelling as a pillion passenger aboard motor cycle registration number KMFN 493T when motor vehicle registration number KCS 494T, owned by the Appellant and driven by him or by his servant or agent, was so negligently, recklessly and carelessly driven, managed or controlled that it collided with the said motor cycle, occasioning the deceased fatal injuries from which she died. The Respondents prayed for general damages, special damages of Kshs. 89,600/=, loss of consortium, costs and interest.
5. The Appellant entered appearance and filed a defence dated 25th January 2023 in which he denied the material averments of the plaint, took issue with ownership and the identity of the driver, and, in the alternative, pleaded that any such accident as may be proved was wholly caused or substantially contributed to by the negligence of the rider of the motor cycle and of the deceased herself. A reply to defence dated 4th February 2023 was filed.
6. The suit proceeded to hearing on 12th October 2023 and 7th November 2024. The Respondents called four witnesses. The Appellant participated in the proceedings through Counsel but called no witness, and the defence case was closed. This forms the summary of the evidence as deducible from the record.
7. First to take the witness stand was PW1, Flora Akumu Simion, the deceased's mother and administratrix of her estate, adopted her statement filed on 15th December 2022 and produced exhibits PExh.1 to PExh.11. These included her national identity card, the police abstract, the sketch plan, the postmortem report, the death certificate, the letter from the Area Chief, the letters of administration ad litem, the birth certificates and birth notifications of the deceased's children, the motor vehicle search, the demand and statutory notices, and of central importance to this appeal, the letter of offer of appointment issued by the Vihiga County Public Service Board dated 25th February 2021 and the letter of deployment issued by the County Government of Vihiga dated 24th March 2021.
8. Further PW1 testified that the deceased was 37 years of age, was married with three children, was a trained fashion designer, and was employed by the County Government of Vihiga at Mwambeba Vocational Training Centre earning Kshs. 22,270/= per month. In cross-examination she conceded that she had not produced a pay slip. She also stated, both in her evidence in chief and under cross-examination, that the deceased died on the spot.
9. Second was PW2, PC Evanson Kibet of Luanda Police Station, produced the police abstract and sketch map and blamed the driver of motor vehicle KCS 494T, who fled the scene. PW3, Edwin Mulusa Chasiaya, and PW4, Ruth Anyoso, were eye witnesses who testified that the motor cycle rider had indicated an intention to turn right when the Appellant's vehicle, travelling at high speed and without braking, hit the motor cycle from behind. Both testified that the pillion passenger - the deceased died at the scene, while the rider was still breathing and was taken to hospital where he later succumbed. In addition, the Courts placed reliance on the documentary evidence being the certificate of birth of one Fridah Malenya, the County Government of Vihiga appointment of letter of one Rebecca Adwoli Edali dated 25th February 2021, introduction letter by the Area Chief dated 10th November 2022, certificate of death of the deceased dated 26th August 2022, Police abstract filed in Courts on 18th December 2022, and the postmortem report of the deceased dated 8th July 2022.
10. In her judgment delivered on 23rd January 2025 the Learned Trial Magistrate found the Appellant wholly liable and assessed damages as follows:
a. Pain and suffering – Kshs. 50,000/=;
b. Loss of expectation of life – Kshs. 100,000/=;
c. Loss of dependency – Kshs. 3,271,680/=;
d. Special damages – Nil;
e. Total – Kshs. 3,421,680/=, with costs and interest at Courts rates from the date of judgment.
11. On the head of loss of dependency, the learned Magistrate expressly set out her parameters and her computation. She found, from the death certificate, that the deceased was 37 years old; that she was employed by the County Government of Vihiga as a fashion design instructor earning Kshs. 22,270/= per month as per the appointment letter and letter of offer produced; that she would have worked to the retirement age of 60 years; that a multiplier of 18 years was appropriate having regard to the vagaries of life; and that a dependency ratio of 2/3 was appropriate, the deceased having been survived by a husband and three children. Her stated computation was "(2/3 x 22,270 x 18 x 12)", which she recorded as producing Kshs. 3,271,680/=.
The appeal
12. Aggrieved, the Appellant lodged this appeal by a Memorandum of Appeal dated 20th February 2025 and filed on 22nd February 2025, raising three grounds, namely:
i. That the Learned Trial Magistrate's exercise of discretion in assessment of quantum, especially on the limb of loss of dependency and on pain and suffering, was injudicious;
ii. That the Learned Trial Magistrate erred in law and in fact in awarding loss of dependency of Kshs. 3,271,680/= yet there was no proof of income of the deceased;
iii. That the Learned Trial Magistrate erred in law and in fact in failing to pay regard to authorities in the defendant's submissions that were guiding on the amount of quantum appropriate and applicable in similar cases.
13. The Appellant prays that the appeal be allowed, the decree in Vihiga PMCC No. E298 of 2022 be set aside, that this Courts re-assesses the evidence
on record on quantum and substitutes its own award, and that he be awarded the costs of the appeal.
14. By consent, the appeal was canvassed by way of written submissions. The Appellant's submissions are dated 3rd May 2026 and were filed by M/S KRK Advocates LLP. The Respondents' submissions are dated 7th August 2026 and were filed by M/S M. A. Okumu & Co. Advocates. I have read both sets of submissions and the authorities annexed to them.
Submissions of the Appellant
15. In this regard Learned Counsel for the Appellant submits, first, that the learned magistrate applied a multiplicand of Kshs. 22,270/= that was never proved. It is contended that although a letter of employment was produced indicating the salary the deceased would earn as a fashion designer, such a letter could only assist the Courts in grading the deceased as a skilled or unskilled worker; that the only acceptable proof of earnings would be bank statements, pay slips or M-Pesa statements; and that in their absence the Courts ought to have reverted to the Regulation of Wages Order.
16. He placed reliance in the following authorities; Rutto v Kiprono & Another
(Suing as the Administrators of the Estate of Daniel Chemweno Kosgei) [2024] KEHC 15073 (KLR), in which Wananda J. considered the multiplicand and cited Chunibhai J. Patel & Another v P. F. Hayes & Others [1957] EA 748 for the proposition that it is the net earning power of the deceased, being income less tax, that determines the annual value of the dependency. It is submitted that the failure to produce a pay slip meant that net income could not be ascertained and that the multiplier method could therefore not properly be applied.
17. The Appellant learned Counsel further relied on the principles in the case of Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR, where Wendoh J. observed that where a plaintiff does not prove what the deceased earned the Courts would ordinarily base the earnings on the minimum wage, and on Frankline Kimathi Maariu & Another v Philip
Akungu Mitu Mborothi [2020] eKLR, where Mabeya J. held that where there
is no salary or employment proved, the Courts should be wary of subscribing to a figure and should instead apply the global sum approach or the minimum wage.
18. Whereas on pain and suffering, Learned Counsel submitted that awards under this head depend on whether there was prolonged distress or torture before death. It is asserted that the deceased died while undergoing treatment and was neither admitted nor referred to any other hospital, and that she therefore endured no torture. Relying on Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, where the awards for pain and suffering were said to range from Kshs. 10,000/= to Kshs. 100,000/=, with higher awards where the suffering was prolonged, the Appellant urges that Kshs. 10,000/= would be reasonably fair.
Summary of the Respondents Submissions
19. Learned Counsel for the Respondents first addresses the threshold for appellate interference with quantum, relying on Butt v Khan [1981] KLR 349, Omar v Ngowa & another [2024] KEHC 8750 (KLR) (citing Henry Hilanga v Manyoka [1961] EA 705), and Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, for the settled proposition that an appellate Court will not substitute a figure of its own merely because it would have awarded differently at first instance.
20. With regard to the multiplicand, Learned Counsel submitted that a letter of appointment is a document issued by an employer confirming employment and setting out its terms, including salary, and is therefore proof not only of employment but of earnings. It is emphasized that the letter relied upon was issued by a public body, the Vihiga County Public Service Board, was signed by both employer and employee, and was produced in evidence without objection and was never controverted at the hearing.
21. In addition, Learned Counsel reminded the Courts that the standard of proof in civil matters is a balance of probabilities, citing Palace Investment
Ltd v Geoffrey Kariuki Mwenda & another [2015] eKLR and the classic statement of Denning J. in Miller v Minister of Pensions [1947] 2 All ER 372, and submits that the letter of appointment discharged that burden.
22. In the alternative, and if the Courts were minded to apply the minimum wage for the deceased's trade, the Respondents submit that the applicable figure for a former municipality under item 8 of the Regulation of Wages (General) (Amendment) Order, 2022 — which covers the tailoring trade — is Kshs. 23,716/=, which is higher than the figure adopted by the trial Court. On that footing the Respondents invite an enhancement of the award to Kshs. 3,415,104/= (2/3 x 23,716 x 18 x 12).
23. In respect of pain and suffering, the Respondents submit that the deceased died instantly, that Kshs. 50,000/= was proposed and awarded, and that the award is consistent with Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR, where Kshs. 75,000/= was upheld for a deceased who died instantly, and Sukari Industries Limited v Clyde Machimbo Juma [2015] eKLR, where Kshs. 50,000/= was upheld in like circumstances. They add that the award of Kshs. 100,000/= for loss of expectation of life is the conventional figure. They pray that the appeal be dismissed with costs.
The Duty and Jurisdiction of this Court
24. This being a first appeal, my duty under Section 78 of the Civil Procedure Act, Cap. 21 is to re-appraise, re-evaluate and re-analyze the whole of the evidence tendered before the trial Courts and to arrive at my own independent conclusions, bearing always in mind that I neither saw nor heard the witnesses testify and making due allowance for that disadvantage. See Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v Sunday Post Limited [1958] EA 424.
25. That duty is, however, qualified in an appeal directed solely at quantum. The assessment of damages is a matter of discretion for the trial Court, and the circumstances in which an appellate Court may interfere are narrow and well settled.
26. In Butt v Khan [1982–88] 1 KAR 1, the Courts of Appeal held that an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate; it must be shown that the judge proceeded on wrong principles, or misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
27. The same principle was restated in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A. M. Lubia and Olive Lubia [1985] eKLR, where the Courts identified the grounds of interference as the taking into account of an irrelevant factor, the leaving out of account of a relevant one, or an amount so inordinately high or low as to be a wholly erroneous estimate of the damage.
28. It follows that it is not enough for an Appellant to persuade me that, sitting at first instance, I might have arrived at a different figure. The Appellant must demonstrate an error of principle, a material misapprehension of the evidence, or a figure that is wholly erroneous. The burden of doing so lies squarely on the Appellant.
Issues for determination
29. Having considered the Memorandum of Appeal, the record, the rival submissions and the authorities, I frame the issues for determination as follows:
i. Whether the learned trial Magistrate erred in adopting the multiplier method and a multiplicand of Kshs. 22,270/= in the absence of a pay slip or bank statements;
ii. Whether the multiplier of 18 years and the dependency ratio of 2/3 were properly adopted;
iii. Whether the resulting award of Kshs. 3,271,680/= for loss of dependency is sustainable;
iv. Whether the award of Kshs. 50,000/= for pain and suffering is inordinately high;
v. Whether the learned trial Magistrate failed to have regard to the authorities cited in the defendant's submissions;
vi. Whether this Courts may entertain the Respondents' invitation to enhance the award; and
vii. What orders should issue, and who should bear the costs.
Analysis and determination
Issue (i): Proof of income, and the propriety of the multiplicand of Kshs. 22,270/=
30. On this first issue the Fatal Accident Act provides the statutory provisions upon which the exercise of discretion shall be exercised to arrive at a just and proportionate compensation in favour of the deceased estate. This being a common law jurisdiction with its foundation in the English Law one would not be out of order in starting this analysis by making reference to the principles illustrated in the case of Nance v British Columbia Electric Railways Co. Ltd 1951 in which Viscount Simon set out in the judgment as follows on the principles for estimating the damages in the circumstances of this appeal. Thus:
"........at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of pre-mature determination of his life by later accidents, secondly, the amount required for the future provision of his wife shall he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived he full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation."
31. The other aspect of this appeal which is on account of loss of life caused by the Road Traffic Accident revolves around the starting point which is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses.
32. These core principles in the persuasive case law have actually been domesticated in our very own jurisdiction as demonstrated herein under:
• The Multiplicand (Annual Dependency): Represents the net annual financial value of the dependency. The Court of Appeal mandates that the multiplicand must be computed using the net earnings (gross earnings minus statutory deductions like PAYE, NSSF, and NHIF), rather than the raw gross salary
• The Multiplier (Years of Purchase): Represents the number of years the dependency would have lasted. In determining a reasonable multiplier, the Court considers the deceased's age, remaining productive working life span, the normal retirement age in Kenya, the life expectancy of the dependents, and the vicissitudes/vagaries of life.
• Dependency Ratio: Usually assessed as a fraction (e.g., 2/3 or 1/2 or 1/3) reflecting the proportion of the net income the deceased actually used to maintain the dependents during their lifetime.
33. Insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less than the tax paid. If the same is followed, it shall subserve the cause of justice and the unnecessary contest before the Courts would be avoided.
34. In the Kenyan context on matters to do with award of damages for lost years under the Fatal Accident Act where there are dependants who have been deprived of their survivorship and maintenance due to the death of the main provider as the deceased to this appeal several other factors should be taken into consideration which may include the age and education of the dependants and all the nature of the job of the deceased as at the time of his/her death. It is also true to state that in the wake of change of societal conditions and global scenario feature prospect may have to be taken into account not only the Court having regard to the status of the employee now deceased, his/her education qualification, his/her past performance but also other relevant factors. This may include the nature of the salaries and allowances which were being offered by the employer prior to his/her death in which she/he suffered the fatal injuries arising out of the motor vehicle accident.
35. The Appellant's central complaint is that there was "no proof of income". With respect, that submission does not survive an examination of the record. The deceased was not a person of unknown or informal occupation. She was a public officer. On 25th February 2021 the Vihiga County Public
Service Board issued her with a letter of offer of appointment as Instructor, Fashion Design and Garment Making, in the Department of Technical Education and Vocational Training. On 24th March 2021 the Chief Officer, Technical and Vocational Education and Training, County Government of Vihiga, issued her with a letter of deployment to Mwambeba Vocational Training Centre. Both documents were produced in evidence as PExh.7 and PExh. 8.
36. There is Clause 2 of the letter of offer, under the heading "Remuneration", provides that the deceased's monthly remuneration package shall be within the bracket of Job Group CPSB11 – "G", set out as a salary scale running from Kshs. 22,270 by annual increments up to Kshs. 30,020 per month, and states in terms that her entry point shall be Kshs. 22,270.00 per month. The same clause provides that all other allowances and benefits accruing to the position are as per the guidelines issued by the Salaries and Remuneration Commission. The letter bears the deceased's signature accepting its terms.
37. That is documentary evidence of employment and of earnings, emanating from a public employer, contemporaneous, specific as to figure, and accepted in writing by the employee. It was produced without objection. Its authenticity and sufficiency were not challenged in cross-examination. No contrary evidence was tendered, the Appellant having elected to call no witness at all.
38. The proposition that earnings may be proved only by a pay slip, a bank statement or an M-Pesa statement is not the law. In Jacob Ayiga Maruja &
Another v Simeone Obayo [2005] eKLR, the Courts of Appeal declined to
accept that the only method of proving a person's occupation and earnings is by production of documents, holding that oral evidence, if credible, may suffice. Documentary proof is the best evidence where it exists; it is not the only admissible evidence. Here the Respondents in fact produced documentary proof, but the Appellant produced nothing.
39. The authorities relied upon by the Appellant are, on analysis, authorities against him. In Frankline Kimathi Maariu (Supra), Mabeya J. was dealing with a case in which the deceased's father - himself a director of the alleged employer company - gave contradictory figures of Kshs. 20,000/= and Kshs. 15,000/=, produced no letter of appointment, and withheld records to which he had ready access; a company letter described the deceased merely as a casual and disclosed no salary. It was in that setting that the learned Judge said the Courts should be wary of subscribing to a figure "where there is no salary proved or employment". Here, both employment and salary were proved, and by an independent public employer.
40. In Beatrice W. Murage (supra), the pleaded case was that the deceased was an enterprising businessman and contractor earning in excess of Kshs. 95,000/= per month, while the widow's evidence was that he was a wheat farmer; there was, as Wendoh J. found, "no shred of evidence" to support either account, and the deceased was in any event 74 years old and beyond employment age. The passage on the minimum wage relied upon by the Appellant is expressly predicated on a failure to prove earnings at all. That is not this case.
41. In Rutto v Kiprono (supra), the only document produced was a pay slip for June 2013 - six years before the death - and the deceased had passed the retirement age. Even on those facts, Wananda J. declined to fault the trial Magistrate for adopting the multiplier method, precisely because the documents had gone in without objection and were not controverted. The reasoning applies with greater force here, where the documents are current to the employment subsisting at the date of death.
42. That leaves the more refined point taken by the Appellant through Rutto and Chunibhai J. Patel: that the multiplicand must be the net, and not the gross, earnings. The governing authority is Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja, deceased) v Kiarie Shoe Stores Limited [2015] eKLR, in which the Courts of Appeal held that the net income determines the multiplicand and that it is net of statutory deductions only — loan repayments, savings, union dues and similar voluntary deductions are not to be taken into account.
43. Two matters answer that submission on the facts of this case. First, the figure of Kshs. 22,270/= is not a gross salary in the sense contemplated in Hellen Waruguru. It is the basic entry point of the salary scale. It excludes the allowances and benefits which clause 2 of the letter of offer expressly provided for, and it excludes the annual increments built into the scale, under which the deceased's basic pay would have risen progressively to Kshs. 30,020/=. The deceased had by the date of the accident already served some sixteen months. The multiplicand adopted was therefore a floor rather than a ceiling. Secondly, and decisively, there is no evidence whatsoever on the record from which the statutory deductions applicable to the deceased could be quantified. No pay slip was produced. It is not the function of an appellate Court to speculate about the incidence of PAYE, the National Social Security Fund or the health insurance levy in order to construct a deduction for which no party laid an evidential foundation. The Appellant, as the party seeking to disturb the award, bore the burden of demonstrating the error he alleges and of showing this Court what the correct figure ought to have been. He filed no evidence below and has offered no computation on appeal.
44. In any event, whatever modest statutory deductions might have applied to a basic salary at this level would, on any realistic view, have been more than offset by the allowances and increments which the multiplicand leaves out of account on the net effect of the trial Court's approach in arriving at the final award.
45. There is a further and complete answer. The Appellant's own preferred methodology yields him no benefit. Having abandoned in this Court the figure of Kshs. 8,109.90/= (the general labourer's minimum wage) urged below, he now invites a reversion to the Regulation of Wages Order without identifying the applicable rate. The Respondents submit, and the Appellant has not disputed, that the minimum wage applicable to the tailoring and garment trade in a former municipality under item 8 of the Regulation of Wages (General) (Amendment) Order, 2022 is Kshs. 23,716/=. Vihiga is a former municipality. On the Appellant's own methodology the multiplicand would therefore be higher, not lower, than the figure the trial Court adopted. A ground of appeal which, if accepted, would increase the award cannot avail the Appellant.
46. I therefore find that there was satisfactory proof of the deceased's monthly income; that the learned trial Magistrate was entitled to adopt the multiplier method rather than a global sum; and that the multiplicand of Kshs. 22,270/= discloses no error of principle. Ground 2 of the Memorandum of Appeal fails.
Issue (ii): The multiplier and the dependency ratio
47. My findings therefore is neither the multiplier nor the dependency ratio is expressly challenged in the Memorandum of Appeal, and neither was it addressed in the Appellant's submissions. The ultimate resolution is that ground 1 however as framed broadly enough to embrace the assessment as a whole, and as a first appellate Courts I have in any event re-examined both and no reasons have been advanced to have it reviewed in favour of the Appellant.
48. It is a fact that the deceased was 37 years of age at her death, as established by the death certificate. She was a Public Officer whose employment would ordinarily have run to the retirement age of 60 years, leaving 23 potential working years. The Learned Magistrate adopted 18 years, expressly discounting for the vagaries, uncertainties and vicissitudes of life. In legal jurisprudence, the term "vagaries of life" (often paired with "vicissitudes of life") refers to the unpredictable, uncontrollable uncertainties, risks, and changes inherent to human existence—such as sudden illness, premature death, loss of employment, economic hardship, or career shifts. When Courts evaluate how these vagaries affect a human being's right to life, they primarily do so across two main legal dimensions: Tort/Personal Injury Law (quantifying the value or expectation of a life cut short) and Constitutional Law (ensuring a life of dignity, livelihood, and protection from life's cruelest uncertainties). In fatal accident claims and personal injury lawsuits, Courts must determine the financial value of a life or the loss of dependency. Judges routinely cite the "vagaries of life" to reduce or adjust the life expectancy multiplier, acknowledging that no person is guaranteed to live or work until a specific retirement age without facing unforeseen hardships.
49. In the case before Court, there was not iota of evidence that the right to life of the deceased during her livelihood she had experienced certain preexisting conditions which when placed on the vagaries of life into considerations there was a higher likelihood of her not making to the retirement age of 60 years. This victim of this accident was actually at her prime young adult age of 37 years with no known health conditions which could have impacted her right to life. The right to life stands at the top of the human right and freedoms pyramid in our Constitution 2010. Placed in this way, the Republic of Kenya has endeavored to provide accessible universal health care for all of its citizens. In essence Article 43(1)(a) provides as follows:
(1) Every person has the right—
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
50. Fundamental principles of the protection of human life are determined in our constitutional provisions. Life is a right, a fundamental attribute of the human being an
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