Background
1. This is an appeal in which the Appellant is challenging the judgment of the magistrate’s court in the Winam SPMC No. E268 of 2022, delivered on 30th October 2023, in which the trial court, in a claim following a fatal road traffic accident, rendered its decision, finding the Appellants (then Defendants) 80% liable and awarding the Respondents a total sum of Kshs. 3,899,510 in damages, subject to contribution.
2. The case stems from a road traffic accident that occurred on 9th April 2022 along the Kachok-Kondele road, involving a motorcycle registration number KMFX 067W, ridden by the deceased, Jacob Oduor Ogutu, and a lorry, registration number KCL 746M, driven by the 2nd Appellant. The 1st and 2nd Respondents, acting as legal representatives of the deceased’s estate.
3. The Respondents’ case in the lower court was that the deceased was lawfully riding his motorcycle when he lost control, fell onto the tarmac, and was subsequently run over by the Appellants’ lorry, resulting in his death. The Appellants, on the other hand, denied liability, asserting that the accident was solely caused by the deceased’s negligence.
4. On 30th October 2023, the trial court delivered its judgment apportioning liability in the ratio of 80:20 against the 2nd Appellant. The learned proceeded to award damages to the Respondent (subject to contribution) as follows: Kshs. 30,000 for pain and suffering, Kshs. 140,000 for loss of expectation of life, Kshs. 3,675,294 for loss of dependency, and Kshs. 54,716 in special damages.
5. Aggrieved by the trial court’s decision, the Appellants filed the present appeal, arguing that the trial magistrate erred in apportioning liability at 80% against them despite insufficient evidence of negligence being adduced by the Respondents.
Submissions
6. The appeal was canvassed by way of written submissions. The Appellants filed their submissions dated 11th March 2023. On the issue of liability, they contended that the trial magistrate erred in apportioning 80% liability against them despite the absence of clear evidence proving negligence on their part.
7. Relying on among others the Court of Appeal’s decision in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] eKLR, the Appellants submitted that the Respondents had failed to prove negligence at trial against the 1st Appellant as required under Sections 107-112 of the Evidence Act.
8. On quantum, the Appellants challenged the award for loss of dependency, particularly the multiplicand used by the trial court. They contended that the trial magistrate erred by applying the minimum wage of an Artisan Grade 1 (Kshs. 30,627.45) despite the fact that there was no evidence showing that the deceased was a graded artisan. According to the Appellants, the only document produced, a certificate in Electronic Technical Applications from Towernet College, did not demonstrate that the deceased had undertaken trade tests to qualify as a graded artisan. Further, there were no financial records or business registration documents that were presented to prove his earnings.
9. The Appellants argued that the trial court should have applied the minimum wage for ungraded artisans, which, in April 2022, stood at Kshs. 18,319.00 under the Regulation of Wages (General) (Amendment) Order 2018. The Appellants asserted that applying this figure, the proper calculation for loss of dependency would have been:
Kshs. 18,319.00 × 12 × 15 × 2/3 = Kshs. 2,198,280.00
10. The Appellants, therefore, urged the court to set aside the multiplicand used by the trial magistrate and substitute it with Kshs. 18,319.00, which was the correct minimum wage for an ungraded artisan at the time of the deceased’s death.
11. Based on the above, the Appellants urged the court to set aside the trial court’s findings and allow this appeal with costs.
12. The Respondents, on the other hand, filed their submissions dated 14th March 2024 and supported the trial court’s judgment and urged this court to uphold the same. On liability, the Respondents asserted that the trial magistrate correctly apportioned 80% liability to the Appellants. They argued that the deceased, while riding his motorcycle, had initially lost control, veered off the road, and knocked down a pedestrian. However, as he attempted to recollect himself and pick up his motorcycle, the Appellants' lorry, which was being driven at high speed, failed to stop in time and ran over him.
13. The Respondents relied on the testimony of PW-2, the eyewitness, who stated that the Appellants’ lorry was being driven at a high speed and failed to take necessary precautions to avoid hitting the deceased. Additionally, PW-3, the investigating officer, corroborated this account, stating that based on his investigations, the accident was primarily caused by the Appellants' driver, who failed to stop despite seeing the deceased on the road.
14. On quantum, the Respondents defended the trial court's adoption of a multiplier of 15 years, arguing that it was reasonable given that the deceased was 40 years old at the time of his death. They relied on among others, the case of Roger Dainty v Mwinyi Omar Haji & Another [2004] eKLR in support of this assertion.
15. The Respondents also supported the trial court’s use of Kshs. 30,627.45 as the multiplicand, arguing that the deceased was a skilled electronic technician trained in Computer Electronic Technical Applications. They pointed to PW-1’s testimony and the deceased’s certificate from Towernet College, which proved that he was engaged in gainful employment repairing and selling electronic gadgets.
16. While acknowledging that no direct evidence of earnings was produced, they argued that the trial court was right to rely on the Regulation of Wages (General) (Amendment) Order 2018, which prescribed a minimum wage for an Artisan Grade 1 in Kisumu. They cited Beatrice W. Murage v Consumer Transport Limited & Another [2014] eKLR, which held that where a person’s earnings are not strictly proved, the court may rely on statutory wage guidelines.
17. The Respondents dismissed the Appellants’ argument that the deceased should have been treated as an ungraded artisan, pointing out that the deceased had formal training and expertise in electronics. They contended that the Appellants had failed to challenge the qualification of the deceased and had not provided an alternative basis for determining his income. As such, the trial court was justified in applying the wage of Kshs. 30,627.45 as the proper multiplicand.
Analysis And Determination
18. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal in Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123 laid down the approach to be taken by an appellate court in the following words: -
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
19. Further, in Peters v Sunday Post Limited [1958] EA 424, the Court emphasized that an appellate court should not lightly interfere with the findings of a trial court unless it is evident that the decision was based on no evidence, or was based on a misapprehension of the evidence, or that the trial court acted on wrong principles of law. The Court stated that: -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
20. Having carefully considered the submissions by the parties in support of their respective positions, I find that the issues for determination in this appeal are as follows: -
i. Whether the trial court erred in its apportionment of liability
ii. Whether the trial court properly applied the principles of assessment of damages
Whether the Trial Court Erred in its Apportionment of Liability
21. The Appellants argued that the trial magistrate erred in apportioning liability at 80% against them and only 20% against the deceased. They contended that the deceased was wholly to blame for the accident as he lost control of his motorcycle, veered off his lane, knocked a pedestrian, and then fell onto the tarmac. They maintained that the 2nd Appellant was driving cautiously within his lane when the deceased suddenly appeared in his path, making the accident unavoidable.
22. The Respondents, on the other hand, argued that the Appellants failed to take reasonable precautions to avoid the accident, even after seeing the deceased on the road. They relied on the testimony of PW2 (the eyewitness) and PW3 (the investigating officer), both of whom attributed significant blame to the Appellants for failing to stop or take evasive action.
23. The trial court, after considering the evidence, apportioned liability at 80% against the Appellants and 20% against the deceased. The court reasoned that while the deceased had initially lost control of his motorcycle, the 2nd Appellant had a duty to drive carefully and take necessary precautions to avoid colliding with him.
24. It is trite that every driver on the road is under a duty to keep a proper lookout for other road users, including pedestrians, cyclists, and motorcyclists, and to exercise reasonable care to avoid colliding with them. The law imposes a duty on all road users to exercise reasonable care to avoid accidents. Masembe –vs- Sugar Corporation & Anor (2002) 2EA 434 it was held that;-
“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment and he is bound not to go faster at any time to avoid anything he sees after he has seen it…a reasonable person driving a motor vehicle on a highway with due care and attention does not hit every stationary object on his way merely because the object was wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object…whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do, albeit negligently.’’
25. Additionally, a motorist must at all times be prepared for the unexpected and should regulate his speed and manner of driving to ensure that he can, so far as reasonably possible, avoid collisions. In the case of Isabella Wanjiru Karanja–vs- Washington Malele Nbi Civil Appeal No 50 of 1981 the court observed;-
“What I find makes a distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine when Washington had none and all things being equal, she was under an obligation to keep greater look out for other road users.”
26. In the present case, the evidence indicated that the deceased had already fallen onto the road before being hit by the Appellants' vehicle. This means that the 2nd Appellant had a clear and open view of the deceased. The 2nd Appellant himself admitted that he saw the deceased before the collision, yet failed to take any action to stop or swerve.
27. Based on the evidence on record and the established principles as discussed above, this court, like the trial court, is of the view that while the Respondent may have contributed to the accident, the Appellant carried more blame for the accident. Accordingly, the apportionment of liability by the trial court in the ratio of 80:20 against the Appellant was, in the circumstances, justified.
Whether the trial court erred in the assessment of damages
28. On quantum, it is settled law that assessment of general damages is a matter for the discretion of the trial court, and an appellate court can only interfere with that discretion in very limited circumstances. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 stated as follows on the issue: -
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
29. The principles which ought to guide a court in awarding damages were set out by the Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730, where it was held that:-
“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”
30. In this case, the Appellants contended that the trial magistrate erred in her assessment of damages, particularly in applying a multiplier of 15 years and a multiplicand of Kshs. 30,627.45, which they argued was excessive.
31. The Respondents supported the trial court’s assessment, arguing that the multiplier was justified given the deceased’s age and health, while the multiplicand was correctly based on the Regulation of Wages (General) (Amendment) Order, 2018.
32. The assessment of damages for loss of dependency follows the well-established formula:-
Multiplicand × Multiplier × Dependency Ratio
Multiplier
33. The deceased was 40 years old at the time of his death. The trial court adopted a multiplier of 15 years, reasoning that he would have comfortably worked until the age of 55.
34. This Court finds the trial magistrate’s reasoning to be sound. The courts have consistently applied multipliers within this range for individuals in similar age brackets. In Florence Ngina Nyalando Achacha & Another v Daniel Munyua Njathii & Another [2016] eKLR, the court adopted a multiplier of 16 years for a deceased aged 41. Similarly, in Regina Chelimo Magut & Another v Linear Coach Limited [2020] eKLR, the court applied a multiplier of 15 years for a deceased aged 45.
35. Considering the vicissitudes of life, including the possibility of illness, economic uncertainties, and the risk of accidents, a multiplier of 15 years is reasonable and in line with precedent.
Multiplicand
36. The trial court adopted a multiplicand of Kshs. 30,627.45, based on the minimum wage of an Artisan Grade 1 in Kisumu under the Regulation of Wages (General) (Amendment) Order, 2018.
37. The Appellants argued that the deceased should have been classified as an ungraded artisan, earning Kshs. 18,319. However, the evidence on record indicates that the deceased had obtained certification in Electronic Technical Applications from Towernet College, which qualified him as a trained technician. Courts have held that in the absence of direct proof of earnings, the minimum wage applicable to the deceased’s profession is a reasonable basis for determining the multiplicand. In Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR, the court upheld the use of minimum wage regulations where proof of actual income was unavailable but where the deceased’s profession was established.
38. In the circumstances, this Court finds that the trial magistrate correctly applied the relevant minimum wage for a skilled artisan, and the multiplicand of Kshs. 30,627.45 was justified.
Dependency Ratio
39. The trial court applied a dependency ratio of 2/3, considering that the deceased was married with six children. This is consistent with numerous precedents, including Easy Coach Bus Services & Another v Henry Charles Tsuma & Another [2019] eKLR, where a 2/3 dependency ratio was applied for a deceased who had a spouse and children. This Court finds no basis to disturb that finding.
Disposition
40. Having carefully considered the grounds of appeal, the evidence presented, the parties' submissions, and the applicable law, this Court finds the appeal unmeritorious. The trial court properly assessed liability and damages based on sound legal principles.
41. Accordingly, the appeal is hereby dismissed with costs to the Respondents.
42. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
07TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
1. This is an appeal in which the Appellant is challenging the judgment of the magistrate’s court in the Winam SPMC No. E268 of 2022, delivered on 30th October 2023, in which the trial court, in a claim following a fatal road traffic accident, rendered its decision, finding the Appellants (then Defendants) 80% liable and awarding the Respondents a total sum of Kshs. 3,899,510 in damages, subject to contribution.
2. The case stems from a road traffic accident that occurred on 9th April 2022 along the Kachok-Kondele road, involving a motorcycle registration number KMFX 067W, ridden by the deceased, Jacob Oduor Ogutu, and a lorry, registration number KCL 746M, driven by the 2nd Appellant. The 1st and 2nd Respondents, acting as legal representatives of the deceased’s estate.
3. The Respondents’ case in the lower court was that the deceased was lawfully riding his motorcycle when he lost control, fell onto the tarmac, and was subsequently run over by the Appellants’ lorry, resulting in his death. The Appellants, on the other hand, denied liability, asserting that the accident was solely caused by the deceased’s negligence.
4. On 30th October 2023, the trial court delivered its judgment apportioning liability in the ratio of 80:20 against the 2nd Appellant. The learned proceeded to award damages to the Respondent (subject to contribution) as follows: Kshs. 30,000 for pain and suffering, Kshs. 140,000 for loss of expectation of life, Kshs. 3,675,294 for loss of dependency, and Kshs. 54,716 in special damages.
5. Aggrieved by the trial court’s decision, the Appellants filed the present appeal, arguing that the trial magistrate erred in apportioning liability at 80% against them despite insufficient evidence of negligence being adduced by the Respondents.
Submissions
6. The appeal was canvassed by way of written submissions. The Appellants filed their submissions dated 11th March 2023. On the issue of liability, they contended that the trial magistrate erred in apportioning 80% liability against them despite the absence of clear evidence proving negligence on their part.
7. Relying on among others the Court of Appeal’s decision in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] eKLR, the Appellants submitted that the Respondents had failed to prove negligence at trial against the 1st Appellant as required under Sections 107-112 of the Evidence Act.
8. On quantum, the Appellants challenged the award for loss of dependency, particularly the multiplicand used by the trial court. They contended that the trial magistrate erred by applying the minimum wage of an Artisan Grade 1 (Kshs. 30,627.45) despite the fact that there was no evidence showing that the deceased was a graded artisan. According to the Appellants, the only document produced, a certificate in Electronic Technical Applications from Towernet College, did not demonstrate that the deceased had undertaken trade tests to qualify as a graded artisan. Further, there were no financial records or business registration documents that were presented to prove his earnings.
9. The Appellants argued that the trial court should have applied the minimum wage for ungraded artisans, which, in April 2022, stood at Kshs. 18,319.00 under the Regulation of Wages (General) (Amendment) Order 2018. The Appellants asserted that applying this figure, the proper calculation for loss of dependency would have been:
Kshs. 18,319.00 × 12 × 15 × 2/3 = Kshs. 2,198,280.00
10. The Appellants, therefore, urged the court to set aside the multiplicand used by the trial magistrate and substitute it with Kshs. 18,319.00, which was the correct minimum wage for an ungraded artisan at the time of the deceased’s death.
11. Based on the above, the Appellants urged the court to set aside the trial court’s findings and allow this appeal with costs.
12. The Respondents, on the other hand, filed their submissions dated 14th March 2024 and supported the trial court’s judgment and urged this court to uphold the same. On liability, the Respondents asserted that the trial magistrate correctly apportioned 80% liability to the Appellants. They argued that the deceased, while riding his motorcycle, had initially lost control, veered off the road, and knocked down a pedestrian. However, as he attempted to recollect himself and pick up his motorcycle, the Appellants' lorry, which was being driven at high speed, failed to stop in time and ran over him.
13. The Respondents relied on the testimony of PW-2, the eyewitness, who stated that the Appellants’ lorry was being driven at a high speed and failed to take necessary precautions to avoid hitting the deceased. Additionally, PW-3, the investigating officer, corroborated this account, stating that based on his investigations, the accident was primarily caused by the Appellants' driver, who failed to stop despite seeing the deceased on the road.
14. On quantum, the Respondents defended the trial court's adoption of a multiplier of 15 years, arguing that it was reasonable given that the deceased was 40 years old at the time of his death. They relied on among others, the case of Roger Dainty v Mwinyi Omar Haji & Another [2004] eKLR in support of this assertion.
15. The Respondents also supported the trial court’s use of Kshs. 30,627.45 as the multiplicand, arguing that the deceased was a skilled electronic technician trained in Computer Electronic Technical Applications. They pointed to PW-1’s testimony and the deceased’s certificate from Towernet College, which proved that he was engaged in gainful employment repairing and selling electronic gadgets.
16. While acknowledging that no direct evidence of earnings was produced, they argued that the trial court was right to rely on the Regulation of Wages (General) (Amendment) Order 2018, which prescribed a minimum wage for an Artisan Grade 1 in Kisumu. They cited Beatrice W. Murage v Consumer Transport Limited & Another [2014] eKLR, which held that where a person’s earnings are not strictly proved, the court may rely on statutory wage guidelines.
17. The Respondents dismissed the Appellants’ argument that the deceased should have been treated as an ungraded artisan, pointing out that the deceased had formal training and expertise in electronics. They contended that the Appellants had failed to challenge the qualification of the deceased and had not provided an alternative basis for determining his income. As such, the trial court was justified in applying the wage of Kshs. 30,627.45 as the proper multiplicand.
Analysis And Determination
18. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal in Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123 laid down the approach to be taken by an appellate court in the following words: -
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
19. Further, in Peters v Sunday Post Limited [1958] EA 424, the Court emphasized that an appellate court should not lightly interfere with the findings of a trial court unless it is evident that the decision was based on no evidence, or was based on a misapprehension of the evidence, or that the trial court acted on wrong principles of law. The Court stated that: -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
20. Having carefully considered the submissions by the parties in support of their respective positions, I find that the issues for determination in this appeal are as follows: -
i. Whether the trial court erred in its apportionment of liability
ii. Whether the trial court properly applied the principles of assessment of damages
Whether the Trial Court Erred in its Apportionment of Liability
21. The Appellants argued that the trial magistrate erred in apportioning liability at 80% against them and only 20% against the deceased. They contended that the deceased was wholly to blame for the accident as he lost control of his motorcycle, veered off his lane, knocked a pedestrian, and then fell onto the tarmac. They maintained that the 2nd Appellant was driving cautiously within his lane when the deceased suddenly appeared in his path, making the accident unavoidable.
22. The Respondents, on the other hand, argued that the Appellants failed to take reasonable precautions to avoid the accident, even after seeing the deceased on the road. They relied on the testimony of PW2 (the eyewitness) and PW3 (the investigating officer), both of whom attributed significant blame to the Appellants for failing to stop or take evasive action.
23. The trial court, after considering the evidence, apportioned liability at 80% against the Appellants and 20% against the deceased. The court reasoned that while the deceased had initially lost control of his motorcycle, the 2nd Appellant had a duty to drive carefully and take necessary precautions to avoid colliding with him.
24. It is trite that every driver on the road is under a duty to keep a proper lookout for other road users, including pedestrians, cyclists, and motorcyclists, and to exercise reasonable care to avoid colliding with them. The law imposes a duty on all road users to exercise reasonable care to avoid accidents. Masembe –vs- Sugar Corporation & Anor (2002) 2EA 434 it was held that;-
“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment and he is bound not to go faster at any time to avoid anything he sees after he has seen it…a reasonable person driving a motor vehicle on a highway with due care and attention does not hit every stationary object on his way merely because the object was wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object…whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do, albeit negligently.’’
25. Additionally, a motorist must at all times be prepared for the unexpected and should regulate his speed and manner of driving to ensure that he can, so far as reasonably possible, avoid collisions. In the case of Isabella Wanjiru Karanja–vs- Washington Malele Nbi Civil Appeal No 50 of 1981 the court observed;-
“What I find makes a distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine when Washington had none and all things being equal, she was under an obligation to keep greater look out for other road users.”
26. In the present case, the evidence indicated that the deceased had already fallen onto the road before being hit by the Appellants' vehicle. This means that the 2nd Appellant had a clear and open view of the deceased. The 2nd Appellant himself admitted that he saw the deceased before the collision, yet failed to take any action to stop or swerve.
27. Based on the evidence on record and the established principles as discussed above, this court, like the trial court, is of the view that while the Respondent may have contributed to the accident, the Appellant carried more blame for the accident. Accordingly, the apportionment of liability by the trial court in the ratio of 80:20 against the Appellant was, in the circumstances, justified.
Whether the trial court erred in the assessment of damages
28. On quantum, it is settled law that assessment of general damages is a matter for the discretion of the trial court, and an appellate court can only interfere with that discretion in very limited circumstances. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 stated as follows on the issue: -
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
29. The principles which ought to guide a court in awarding damages were set out by the Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730, where it was held that:-
“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”
30. In this case, the Appellants contended that the trial magistrate erred in her assessment of damages, particularly in applying a multiplier of 15 years and a multiplicand of Kshs. 30,627.45, which they argued was excessive.
31. The Respondents supported the trial court’s assessment, arguing that the multiplier was justified given the deceased’s age and health, while the multiplicand was correctly based on the Regulation of Wages (General) (Amendment) Order, 2018.
32. The assessment of damages for loss of dependency follows the well-established formula:-
Multiplicand × Multiplier × Dependency Ratio
Multiplier
33. The deceased was 40 years old at the time of his death. The trial court adopted a multiplier of 15 years, reasoning that he would have comfortably worked until the age of 55.
34. This Court finds the trial magistrate’s reasoning to be sound. The courts have consistently applied multipliers within this range for individuals in similar age brackets. In Florence Ngina Nyalando Achacha & Another v Daniel Munyua Njathii & Another [2016] eKLR, the court adopted a multiplier of 16 years for a deceased aged 41. Similarly, in Regina Chelimo Magut & Another v Linear Coach Limited [2020] eKLR, the court applied a multiplier of 15 years for a deceased aged 45.
35. Considering the vicissitudes of life, including the possibility of illness, economic uncertainties, and the risk of accidents, a multiplier of 15 years is reasonable and in line with precedent.
Multiplicand
36. The trial court adopted a multiplicand of Kshs. 30,627.45, based on the minimum wage of an Artisan Grade 1 in Kisumu under the Regulation of Wages (General) (Amendment) Order, 2018.
37. The Appellants argued that the deceased should have been classified as an ungraded artisan, earning Kshs. 18,319. However, the evidence on record indicates that the deceased had obtained certification in Electronic Technical Applications from Towernet College, which qualified him as a trained technician. Courts have held that in the absence of direct proof of earnings, the minimum wage applicable to the deceased’s profession is a reasonable basis for determining the multiplicand. In Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR, the court upheld the use of minimum wage regulations where proof of actual income was unavailable but where the deceased’s profession was established.
38. In the circumstances, this Court finds that the trial magistrate correctly applied the relevant minimum wage for a skilled artisan, and the multiplicand of Kshs. 30,627.45 was justified.
Dependency Ratio
39. The trial court applied a dependency ratio of 2/3, considering that the deceased was married with six children. This is consistent with numerous precedents, including Easy Coach Bus Services & Another v Henry Charles Tsuma & Another [2019] eKLR, where a 2/3 dependency ratio was applied for a deceased who had a spouse and children. This Court finds no basis to disturb that finding.
Disposition
40. Having carefully considered the grounds of appeal, the evidence presented, the parties' submissions, and the applicable law, this Court finds the appeal unmeritorious. The trial court properly assessed liability and damages based on sound legal principles.
41. Accordingly, the appeal is hereby dismissed with costs to the Respondents.
42. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
07TH DAY OF AUGUST 2025
ADO MOSES
JUDGE