Introduction and Background
1. The Appellant is dissatisfied with the findings of the subordinate court on its award of Kshs. 1,703,087.20 under the heading of “loss of dependency” in favour of the Respondent as set out in the judgment of 30 th June 2023. The Respondent, Jane Muthoki Kivuva, acting as the administrator of the estate of Josphat Masili Kivuva (“the Deceased”) filed suit in the subordinate against the Appellant stating that on 27 th August 2020, the Deceased was a lawful passenger in the Appellant’s motor vehicle registration number KBV ***F along the Mlolongo-Katani road. She claimed that the Appellant’s driver drove the vehicle negligently at high speed, causing it to veer off the road, which resulted in the Deceased being thrown from the vehicle and he sustained fatal injuries and died as a result.
2. The Respondent sought general damages under the Fatal Accidents Act(Chapter 32 of the Laws of Kenya) and the Law Reform Act(Chapter 26 of the Laws of Kenya) , special damages totaling Kshs. 67,550.00, costs and interest. The Respondent states that she was the Deceased’s main dependent and claimed to rely on him for support.
3. In its defence, the Appellant denied being the registered owner of the vehicle and denied that its driver was negligent. In the alternative, the Appellant averred that the Deceased was wholly or substantially to blame for the accident and it claimed the Deceased had hitched a lift and was dangerously hanging on the rear of the moving motor vehicle without the driver's knowledge. The Appellant alleged the Deceased let go of his grip or attempted to jump off, causing him to fall and it relied on the doctrine of Volenti non-fit injuria . As such, the Appellant urged the trial court to dismiss the suit. At the hearing the Respondent testified on her own behalf (PW 1) and called a police officer 68609 Cpl. Amdany based at Athi River Police Station (PW 2). On its part, the Appellant called the driver of its vehicle, Paul Ndicu Maina (DW 1).
4. After the hearing, the parties filed written submissions and the trial court then rendered the judgment finding that the Respondent had proved her case on a balance of probabilities. The learned magistrate noted that while the Appellant’s driver testified, he did not call the boda boda rider or the other passengers to corroborate his version of events and the court thus apportioned 100% liability against the Appellant. On assessment of damages, it awarded inter alia Loss of Dependency using the multiplier approach. It considered the Deceased was 23 years old and worked in Mavoko and since no proof of income was provided, the trial court adopted the minimum wage for the area under Legal Notice 2 of 2019 of Kshs. 12,522.70.00 per month. It adopted a multiplier of 34 years, calculated from the retirement age of 60 and subtracting it with his age of 23 and rounded down and a dependency ratio of 1/3 as he was survived only by his mother. The award was thus calculated as Kshs. 2,522.70 x 12 x 34 x 1/3 = Kshs. 1,703,087.20
5. As stated, the Appellant is specifically aggrieved with this finding and appeals the same to this court through its Memorandum of Appeal dated 18 th December 2023 seeking to set aside the same and that a fresh award based on proper application of the law, evidence, facts and principles be entered. The appeal has been canvassed by way of written submissions which are on record and together with the record, I shall make relevant references to them in my analysis and determination below.
Analysis and Determination
6. As submitted by the Respondent, in determining this appeal, I ought to be cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I also need to keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
7. Since the appeal is only the quantum of damages assessed under the heading of “Loss of Dependency”, it should not be lost that an assessment of damages is within the discretion of the trial court and an appellate court will only interfere where trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (See Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) , Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5)
8. Going through the record and the parties’ submissions, the Appellant submits that the trial court should have adopted the "global sum" approach due to the lack of documentary proof of the deceased's income. It relies on inter alia the case of Albert Odawa V Gichimu Gichenji [2007] KEHC 1358 (KLR) where Koome J., (as she was then) accepted the dicta of Ringera J., (as he was then) in Mwanzia Vs Ngalali Mutua Vs Kenya Bus Services (Msa) Ltd & Another that:
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependancy, and the expected length of the dependancy 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.”
9. From the above, it is clear that there is no single mandatory method for assessing loss of dependency and that the choice between the multiplier/multiplicand approach and the global award approach is a matter of judicial discretion, to be exercised based on the specific facts of each case (Also see Abraham v Kuira [2023] KEHC 1740 (KLR) ]. The "multiplier" approach is preferred but only when the key factors such as the deceased's age, income and expected working life—are ascertainable without undue speculation whereas the "Global" or "Lump Sum" approach is used as a practical alternative where the multiplier method is impossible or would lead to injustice due to a lack of evidence regarding specific income or expenses. This is mostly used when assessing loss of dependency for a minor child.
10. From the record, I find that the trial court had sufficient evidence to use the multiplier approach as key factors were known or knowable including; the age of the Deceased which was confirmed by the Respondent in her testimony and the Death Certificate produced which indicated that he was 23 years old. The Respondent also testified that the deceased was working as a drive in the Mavoko area and that while specific income was not proven, the court used the applicable minimum wage as a benchmark and I am in agreement with the Respondent’s submission that this practice has been approved by the Court of Appeal (see Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) v Hellena Wanjiru Rukanga [2020] KECA 551 (KLR) ]
11. The Appellant agrees that the deceased was a driver but disputes the multiplicand used. As stated, the trial court, lacking proof of specific income, correctly turned to the minimum wage for the Mavoko area as provided in Legal Notice 2 of 2019 and it used Kshs. 12,522.70 as the multiplicand which I find to be a reasonable figure that has a statutory basis. Whereas the Appellant, in its submissions, suggests an alternative calculation using a minimum wage of Kshs. 12,550 for a driver, I find this difference to be negligible and cannot upstage the trial court’s choice which was based on the correct principles.
12. The trial court also adopted a multiplier of 34 years, which was calculated as the remaining years up to the retirement age of 60 and then slightly reduced to account for the vagaries and uncertainties of life. The Appellant submits this is too high, however, I find that a multiplier of 34 years for a 23 year-old is not uncharacteristic and courts routinely adopt multipliers that reflect a long working life for a young person. In any event, an appellate court will not interfere with the trial court's choice of multiplier if it is based on the evidence and a proper consideration of the vagaries of life (see Jeremiah Njuguna & another v Anagleta J. Yator & Edel J. Biwott (suing as the administratix of the estate of the late Paul K. Kiplagat) [2016] KEHC 5198 (KLR) . I find that the trial court explicitly considered this and took a conservative approach by rounding down from 37 to 34 years.
13. Lastly, the dependency of the Deceased’s mother was proved, a fact conceded by the Appellant in its submissions. By having these factors, I find that the trial court was not acting on pure speculation but made a best estimate based on known facts, which is exactly what the principles set out above dictate. The global sum approach is an alternative and the trial court cannot be faulted for choosing the method most supported by the evidence.
14. In the end, I find that the learned magistrate's decision was not an entirely erroneous estimate. She acted on the evidence available, applied established legal principles, and exercised her discretion judiciously. She was not overly speculative as she anchored her figures on the deceased's age, the minimum wage guidelines and a reasonable retirement age. Therefore, I find that the award for loss of dependency was well within the bounds of a reasonable assessment.
Conclusion and Disposition
15. In the foregoing, it is my finding that the learned magistrate's decision was sound and it is upheld. The Appellant’s appeal stands dismissed with costs assessed at Kshs. 50,000.00
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Appellant
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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1. The Appellant is dissatisfied with the findings of the subordinate court on its award of Kshs. 1,703,087.20 under the heading of “loss of dependency” in favour of the Respondent as set out in the judgment of 30 th June 2023. The Respondent, Jane Muthoki Kivuva, acting as the administrator of the estate of Josphat Masili Kivuva (“the Deceased”) filed suit in the subordinate against the Appellant stating that on 27 th August 2020, the Deceased was a lawful passenger in the Appellant’s motor vehicle registration number KBV ***F along the Mlolongo-Katani road. She claimed that the Appellant’s driver drove the vehicle negligently at high speed, causing it to veer off the road, which resulted in the Deceased being thrown from the vehicle and he sustained fatal injuries and died as a result.
2. The Respondent sought general damages under the Fatal Accidents Act(Chapter 32 of the Laws of Kenya) and the Law Reform Act(Chapter 26 of the Laws of Kenya) , special damages totaling Kshs. 67,550.00, costs and interest. The Respondent states that she was the Deceased’s main dependent and claimed to rely on him for support.
3. In its defence, the Appellant denied being the registered owner of the vehicle and denied that its driver was negligent. In the alternative, the Appellant averred that the Deceased was wholly or substantially to blame for the accident and it claimed the Deceased had hitched a lift and was dangerously hanging on the rear of the moving motor vehicle without the driver's knowledge. The Appellant alleged the Deceased let go of his grip or attempted to jump off, causing him to fall and it relied on the doctrine of Volenti non-fit injuria . As such, the Appellant urged the trial court to dismiss the suit. At the hearing the Respondent testified on her own behalf (PW 1) and called a police officer 68609 Cpl. Amdany based at Athi River Police Station (PW 2). On its part, the Appellant called the driver of its vehicle, Paul Ndicu Maina (DW 1).
4. After the hearing, the parties filed written submissions and the trial court then rendered the judgment finding that the Respondent had proved her case on a balance of probabilities. The learned magistrate noted that while the Appellant’s driver testified, he did not call the boda boda rider or the other passengers to corroborate his version of events and the court thus apportioned 100% liability against the Appellant. On assessment of damages, it awarded inter alia Loss of Dependency using the multiplier approach. It considered the Deceased was 23 years old and worked in Mavoko and since no proof of income was provided, the trial court adopted the minimum wage for the area under Legal Notice 2 of 2019 of Kshs. 12,522.70.00 per month. It adopted a multiplier of 34 years, calculated from the retirement age of 60 and subtracting it with his age of 23 and rounded down and a dependency ratio of 1/3 as he was survived only by his mother. The award was thus calculated as Kshs. 2,522.70 x 12 x 34 x 1/3 = Kshs. 1,703,087.20
5. As stated, the Appellant is specifically aggrieved with this finding and appeals the same to this court through its Memorandum of Appeal dated 18 th December 2023 seeking to set aside the same and that a fresh award based on proper application of the law, evidence, facts and principles be entered. The appeal has been canvassed by way of written submissions which are on record and together with the record, I shall make relevant references to them in my analysis and determination below.
Analysis and Determination
6. As submitted by the Respondent, in determining this appeal, I ought to be cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I also need to keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
7. Since the appeal is only the quantum of damages assessed under the heading of “Loss of Dependency”, it should not be lost that an assessment of damages is within the discretion of the trial court and an appellate court will only interfere where trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (See Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) , Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5)
8. Going through the record and the parties’ submissions, the Appellant submits that the trial court should have adopted the "global sum" approach due to the lack of documentary proof of the deceased's income. It relies on inter alia the case of Albert Odawa V Gichimu Gichenji [2007] KEHC 1358 (KLR) where Koome J., (as she was then) accepted the dicta of Ringera J., (as he was then) in Mwanzia Vs Ngalali Mutua Vs Kenya Bus Services (Msa) Ltd & Another that:
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependancy, and the expected length of the dependancy 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.”
9. From the above, it is clear that there is no single mandatory method for assessing loss of dependency and that the choice between the multiplier/multiplicand approach and the global award approach is a matter of judicial discretion, to be exercised based on the specific facts of each case (Also see Abraham v Kuira [2023] KEHC 1740 (KLR) ]. The "multiplier" approach is preferred but only when the key factors such as the deceased's age, income and expected working life—are ascertainable without undue speculation whereas the "Global" or "Lump Sum" approach is used as a practical alternative where the multiplier method is impossible or would lead to injustice due to a lack of evidence regarding specific income or expenses. This is mostly used when assessing loss of dependency for a minor child.
10. From the record, I find that the trial court had sufficient evidence to use the multiplier approach as key factors were known or knowable including; the age of the Deceased which was confirmed by the Respondent in her testimony and the Death Certificate produced which indicated that he was 23 years old. The Respondent also testified that the deceased was working as a drive in the Mavoko area and that while specific income was not proven, the court used the applicable minimum wage as a benchmark and I am in agreement with the Respondent’s submission that this practice has been approved by the Court of Appeal (see Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) v Hellena Wanjiru Rukanga [2020] KECA 551 (KLR) ]
11. The Appellant agrees that the deceased was a driver but disputes the multiplicand used. As stated, the trial court, lacking proof of specific income, correctly turned to the minimum wage for the Mavoko area as provided in Legal Notice 2 of 2019 and it used Kshs. 12,522.70 as the multiplicand which I find to be a reasonable figure that has a statutory basis. Whereas the Appellant, in its submissions, suggests an alternative calculation using a minimum wage of Kshs. 12,550 for a driver, I find this difference to be negligible and cannot upstage the trial court’s choice which was based on the correct principles.
12. The trial court also adopted a multiplier of 34 years, which was calculated as the remaining years up to the retirement age of 60 and then slightly reduced to account for the vagaries and uncertainties of life. The Appellant submits this is too high, however, I find that a multiplier of 34 years for a 23 year-old is not uncharacteristic and courts routinely adopt multipliers that reflect a long working life for a young person. In any event, an appellate court will not interfere with the trial court's choice of multiplier if it is based on the evidence and a proper consideration of the vagaries of life (see Jeremiah Njuguna & another v Anagleta J. Yator & Edel J. Biwott (suing as the administratix of the estate of the late Paul K. Kiplagat) [2016] KEHC 5198 (KLR) . I find that the trial court explicitly considered this and took a conservative approach by rounding down from 37 to 34 years.
13. Lastly, the dependency of the Deceased’s mother was proved, a fact conceded by the Appellant in its submissions. By having these factors, I find that the trial court was not acting on pure speculation but made a best estimate based on known facts, which is exactly what the principles set out above dictate. The global sum approach is an alternative and the trial court cannot be faulted for choosing the method most supported by the evidence.
14. In the end, I find that the learned magistrate's decision was not an entirely erroneous estimate. She acted on the evidence available, applied established legal principles, and exercised her discretion judiciously. She was not overly speculative as she anchored her figures on the deceased's age, the minimum wage guidelines and a reasonable retirement age. Therefore, I find that the award for loss of dependency was well within the bounds of a reasonable assessment.
Conclusion and Disposition
15. In the foregoing, it is my finding that the learned magistrate's decision was sound and it is upheld. The Appellant’s appeal stands dismissed with costs assessed at Kshs. 50,000.00
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Appellant
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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