REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E046 OF 2024
KENYA POWER & LIGHTING COMPANY LIMITED …..…………APPELLANT
VERSUS
CYNTHIA KAVINGUHA & RADINA LUGASI ( suing as
the administrators of the Estate of John Ombunga Nyangweso(Deceased )………………………………………………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No 18 of 2022 on 5 th September 2024)
JUDGMENT
INTRODUCTION
1. Notably, the suits emanating from the accident herein were a series of three (3) matters to wit, Vihiga PMCC No E018 of 2022 (Now HCCA E046 of 2024) , Vihiga PMCC No E019 of 2022 (Now HCCA E045 of 2024) and Vihiga PMCC No E020 of 2022 (Now HCCA E044 of 2024) . By consent the parties agreed that Vihiga PMCC No E019 of 2022 would be the test suit and that the evidence of the witnesses would apply in other suits.
2. In her decision of 5 th September 2024, the Learned Trial Magistrate, Hon J.A. Agonda , found the Appellant wholly liable for the accident that resulted to the deceased’s death. He entered judgment in favour of the Respondent against the Appellant in the following terms:-
Pain and suffering Kshs 50,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 4,000,000/=
Special damages Kshs 120,000/=
Kshs 4,270,000/=
Plus costs of the suit and interest thereon at court rates
3. Being aggrieved by the said decision, on 18 th September 2024, the Appellant herein filed a Memorandum of Appeal of even date. It relied on seven (7) grounds of appeal.
4. Its Written Submissions were dated 24 th July 2025 and filed on even date while those of the Respondent were dated 20 th August 2025 and filed on 25 th August 2025. The Judgment herein is based on the said Written Submissions which all parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-
a. Whether or not the Appeal herein was competent;
b. Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;
c. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. COMPETENCY OF THE APPEAL
9. The Respondent raised the issue of competency of the Appeal herein. He cited Rule 79G of the Civil Procedure Rules (sic), and the Appeal Rules 82 (1) and submitted that the Record of Appeal was filed out of the sixty (60) days after filing the Memorandum of Appeal that was filed on 19th September 2024. He asserted that the Record of Appeal was filed on 5th May 2025 without any leave being sought from the court or filing any certificate of delay for filing the Record of Appeal. HE averred that as the Record of appeal ought to have been filed on or before 18 th November 2024, the Appeal herein was incompetent. He thus urged this the court to dismiss the said Appeal.
10. Notably section 79G of the Civil procedure Act does not provide timelines for filing a record of appeal. There was no Appeal Rule 82(1) in the Civil Procedure Act. In the event the Respondents were referring to Rule 82(1) of the Court of Appeal Rules, the same applied to procedure of filing appeals in the Court of Appeal and not in the High Court.
11. This court found and held that the Appeal herein was competent and the Respondent’s assertions on its competency were not merited.
II. LIABILITY
12. Grounds of Appeal No (1), (2), (3) and (4) were dealt with together as they were all related.
13. The Appellant submitted that the Respondent did not prove his case on a balance of probabilities. It faulted the Trial Court for not having found that the Respondent was the author of his own misfortune. It was emphatic that the burden of proof rested with the Respondent herein as provided in Section 109 of the Evidence Act. It referred this court to the case of Miller vs Minister of Pensions [1947] 2 All ER 372 where the said principle was restated.
14. As the issue of liability was dealt with in Vihiga PMCC No E019 of 2024 (HCCA E045 of 2024) which was the lead file, this court did not therefore find it necessary to rehash the submissions and analysis on the said issue. It determined that liability would be apportioned at 80%-20% in favour of the Respondent herein.
III. DAMAGES UNDER THE LAW REFORM ACT
A. PAIN AND SUFFERING
15. The Respondent did not submit on this issue. The Appellant submitted that an award of Kshs 50,000/= for pain and suffering was excessive where the deceased died instantaneously. It also relied on the case of Moses Koome Mithika & Another v Doreen Gatwiri & Another [2020] eKLR where the court awarded Kshs10,000/= for pain and suffering where death was instantaneous.
16. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR and Sukari Industries Limited vs Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR , the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.
17. In the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR , the court therein awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident. In Sukari Industries limited vs Clyde Machimbo Jumba (2016) eKLR , the court held that nominal damages would be awarded if death occurred immediately after death and higher damages if pain was prolonged. The court also noted that the amount under this head ranged from Kshs10,000/= to Kshs 100,000/=.
18. Taking into account the aforesaid cases, it was the considered view that the sum of Kshs 50,000/= for pain and suffering was fair and reasonable. The court, therefore, left the same undisturbed.
B. LOSS OF EXEPCTATION OF LIFE
19. No submissions were made under this head. The court, therefore, left the award of Kshs 100,000/= for loss of expectation of life undisturbed.
IV. FATAL ACCIDENTS ACT
A. MULTIPLICAND
20. The Appellant submitted that dependency had to be proven pursuant to Section 2 of the Fatal Accidents Act. It referred this court to the case of Gerald Mbale Mwea vs Kariko Kihara [1995] eKLR where the court emphasised that dependency goes to the core of any claim. It also cited Rahab Wanjiru Nderitu v Daniel Muteti [2016] eKLR where it was held that a plaint had to prove dependency through marriage either by customary or statutory marriage.
21. It argued that the Respondent failed to prove valid marriage to the deceased as she did not produce any Marriage Certificate or demonstrate financial dependency on the deceased or his actual income and contribution to dependents as a result of which the award of Kshs 4,000,000/= for dependency was completely without foundation and represented a serious error in law.
22. On her part, PW 1 in Vihiga PMCC No 18 of 2022 (Now HCCA No E046 of 2025 ) pointed out that there was evidence to the effect that she was married to the deceased and that they were blessed with a baby girl as was evidenced in the Birth Certificate that she tendered as evidence. She added that she had also adduced the pay slips from his employer Roma Caterers which showed that he earned Kshs 40,000/= per month. She urged this court to replace the sum of Kshs 25,000/= that was applied by the trial court with Kshs 40,000/=.
23. She also produced a letter dated 12 th November 2021 from the Assistant Chief which indicated that she was married to the deceased and that she cohabited with him as a husband and wife until he died. The Birth Certificate bore both her name and the deceased’s name as the father of the child.
24. In the absence of any evidence by the Appellant to controvert that PW 1 was married to the deceased, this court was persuaded to treat her as the deceased’s wife on the strength of the Chief’s letter, the Birth Certificate and the fact that the deceased’s sister was also enjoined in the proceedings herein. Bearing in mind, the emotive nature of accident claims, there was legitimate expectation that no family member of a deceased would welcome a stranger to claim benefits of their deceased family member.
25. The Trial Court noted that though PW1 claimed that the deceased was earning Kshs 40,000/= per month, it adopted a multiplicand of Kshs 20,000/= Contrary to the Trial Court assertions that PW 1 did not submit pay slips, the pay slips were part of the Respondents’ Further List and Bundle of Documents that were dated 20 th May 2022 and filed on 8 th June 2022. In the absence of any proof to the contrary, this court found and held that the Trial Court erred when it adopted a multiplicand of Kshs 20,000/= when PW 1 had adduced in evidence a payslip showing that deceased earned a monthly salary of Kshs 34,476/=. The court this adopted the sum of Kshs 34, 476/= as the multiplicand.
B. DEPENDENCY RATIO
26. The Respondents did not contest the dependency ratio of 2/3 that the Trial Court adopted. Bearing in mind that the deceased had dependants, this court found the said dependency ratio to have been fair. Any monies the deceased earned would have been used by the child whether or not the deceased was married to PW 1. Section 4(1) of the Fatal Accidents Act provides as follows:-
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused (emphasis court) , and shall, subject to the provisions of section 7 , be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:
Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.”
27. Indeed, the extent of dependency was a question of fact as held in Leonard Ekisa & Another vs Major Birgen [2005] eKLR where the court stated that there was no rule of law that 2/3 of the income of a person was to be taken as available for family expenses but that the extent of dependency was a question of fact that was to be established in each case. The court thus left the dependency ratio of 2/3, undisturbed as it was fair in the circumstances of this case.
C. MULTIPLIER
28. The Trial Court adopted a multiplier of twenty five (25) years considering the vicissitudes and vagaries of life. The Respondents urged this court to adopt the multiplicand of thirty (30) years.
29. The deceased was aged twenty three (23) years at the time that he died. It was the considered view that a multiplier of twenty (25) years that was adopted by the Trial Court was not unreasonable.
30. In determining whether or not the Trial Court exercised its discretion judiciously, this court had due regard to the case of Patrice Ombogo Bundi & Another (suing as the Personal representatives of the Estate of Douglas Bundi Ombogo) vs The Guardian Coach Limited [2022] eKLR in which it adopted a multiplier of sixteen (16) years where the deceased therein was aged thirty six (36) years at the time of death.
31. This court also had due regard to the case of Joseph Njuguna Mwaura vs Builders Den Limited & Another [2014] eKLR where the court adopted a multiplicand of seventeen (17) years where the deceased was aged thirty five (35) years at the time of death.
32. In the case of James Njiiri & 2 Others vs FPU & Another [2019] eKLR , the deceased therein was aged twenty nine (29) years at the time of his death. The appellate court therein adopted a multiplier of thirty one (31) years.
33. As was seen hereinabove, there is no clear cut formula of assessing what the appropriate multiplier would be. However, courts are guided by comparable cases so to arrive at conclusions that are not so wide apart as to cause inconsistency and confusion to those relying on the decisions.
34. Taking into account all the past decisions relating to the issue of a multiplier, this court could not fault the Trial Court for having adopted a multiplier of twenty (25) years. It, therefore, left the same undisturbed.
V. SPECIAL DAMAGES
35. The Appellant submitted that damages awarded by the trial court were inordinately excessive and not supported by evidence. On special damages, he cited Hahn v Singh [1985] KLR 716 , where the court held that special damages must not only be specifically claimed but also strictly proved. It contended that the receipt for Kshs100,000/= was not ETR generated and hence, failed to meet the requirements for proving special damages. It further relied on the case of cited Leonard Nyongesa v Derrick Ngula Righa [2014] eKLR where it was held that stamp duty ought to have been assessed before the court could attach any probative value to the receipt. It proposed an award of Kshs.20,000/=. On the other hand, the Respondents submitted that special damages were proved.
36. Notably, PW1 produced receipts amounting to Kshs 120,000/=. The Appellant contention is that the receipt with Kshs 100,000/= was not an ETR receipt as it was not assessed for stamp duty. This court was of the view that the obligation to affix a revenue stamp on a receipt is placed upon the person issuing the receipt and not the person to whom it was issued to.
37. The figure of Kshs 120,000/= was not unreasonable contribution from a family of a deceased noting the customs and traditions of people of the deceased. In the absence of any evidence to the contrary, this court adopted the said sum as African funerals were known to have higher amounts for funerals.
VI. INTEREST
38. Although was not a ground of appeal, this court noted that the Trial Court awarded interest on special damages from the date of judgment. It was the considered view of this court that the Respondent had been kept away from the special damages from the inception of the suit. He was thus entitled to interest on special damages from the date of filing suit.
DISPOSITION
39. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 18 th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon J.A. Agonda in Vihiga PMCC No E018 of 2022 Cynthia Kavinguha & Another vs Kenya Power & Lighting Co Ltd be and is varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 5,732,160/= made up as follows:-
Loss of expectation of life Kshs 100,000/=
Pain and suffering Kshs 50,000/=
Loss of dependency Kshs 6,895,200/=
2/3 x 34,476 x 12 x 25
Special damages Kshs 120,000/=
Kshs 7,165,200/=
Less 20% contributory negligence Kshs 1,433,040/=
Kshs 5,732,160/=
Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on special damages will accrue interest from the date of filing suit until payment in full while damages under the Law Reform Act and the Fatal Accidents Act will accrue from the date of judgment of the Trial Court until payment in full.
40. As the Appellant was partly successfully in its appeal, it is hereby directed that each party will bear its own costs of this Appeal.
41. It is so ordered.
DATED and SIGNED at VIHIGA this 27 th day of April 2026
J. KAMAU
JUDGE
HCCA E046 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E046 OF 2024
KENYA POWER & LIGHTING COMPANY LIMITED …..…………APPELLANT
VERSUS
CYNTHIA KAVINGUHA & RADINA LUGASI ( suing as
the administrators of the Estate of John Ombunga Nyangweso(Deceased )………………………………………………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No 18 of 2022 on 5 th September 2024)
JUDGMENT
INTRODUCTION
1. Notably, the suits emanating from the accident herein were a series of three (3) matters to wit, Vihiga PMCC No E018 of 2022 (Now HCCA E046 of 2024) , Vihiga PMCC No E019 of 2022 (Now HCCA E045 of 2024) and Vihiga PMCC No E020 of 2022 (Now HCCA E044 of 2024) . By consent the parties agreed that Vihiga PMCC No E019 of 2022 would be the test suit and that the evidence of the witnesses would apply in other suits.
2. In her decision of 5 th September 2024, the Learned Trial Magistrate, Hon J.A. Agonda , found the Appellant wholly liable for the accident that resulted to the deceased’s death. He entered judgment in favour of the Respondent against the Appellant in the following terms:-
Pain and suffering Kshs 50,000/=
Loss of expectation of life Kshs 100,000/=
Loss of dependency Kshs 4,000,000/=
Special damages Kshs 120,000/=
Kshs 4,270,000/=
Plus costs of the suit and interest thereon at court rates
3. Being aggrieved by the said decision, on 18 th September 2024, the Appellant herein filed a Memorandum of Appeal of even date. It relied on seven (7) grounds of appeal.
4. Its Written Submissions were dated 24 th July 2025 and filed on even date while those of the Respondent were dated 20 th August 2025 and filed on 25 th August 2025. The Judgment herein is based on the said Written Submissions which all parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-
a. Whether or not the Appeal herein was competent;
b. Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;
c. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. COMPETENCY OF THE APPEAL
9. The Respondent raised the issue of competency of the Appeal herein. He cited Rule 79G of the Civil Procedure Rules (sic), and the Appeal Rules 82 (1) and submitted that the Record of Appeal was filed out of the sixty (60) days after filing the Memorandum of Appeal that was filed on 19th September 2024. He asserted that the Record of Appeal was filed on 5th May 2025 without any leave being sought from the court or filing any certificate of delay for filing the Record of Appeal. HE averred that as the Record of appeal ought to have been filed on or before 18 th November 2024, the Appeal herein was incompetent. He thus urged this the court to dismiss the said Appeal.
10. Notably section 79G of the Civil procedure Act does not provide timelines for filing a record of appeal. There was no Appeal Rule 82(1) in the Civil Procedure Act. In the event the Respondents were referring to Rule 82(1) of the Court of Appeal Rules, the same applied to procedure of filing appeals in the Court of Appeal and not in the High Court.
11. This court found and held that the Appeal herein was competent and the Respondent’s assertions on its competency were not merited.
II. LIABILITY
12. Grounds of Appeal No (1), (2), (3) and (4) were dealt with together as they were all related.
13. The Appellant submitted that the Respondent did not prove his case on a balance of probabilities. It faulted the Trial Court for not having found that the Respondent was the author of his own misfortune. It was emphatic that the burden of proof rested with the Respondent herein as provided in Section 109 of the Evidence Act. It referred this court to the case of Miller vs Minister of Pensions [1947] 2 All ER 372 where the said principle was restated.
14. As the issue of liability was dealt with in Vihiga PMCC No E019 of 2024 (HCCA E045 of 2024) which was the lead file, this court did not therefore find it necessary to rehash the submissions and analysis on the said issue. It determined that liability would be apportioned at 80%-20% in favour of the Respondent herein.
III. DAMAGES UNDER THE LAW REFORM ACT
A. PAIN AND SUFFERING
15. The Respondent did not submit on this issue. The Appellant submitted that an award of Kshs 50,000/= for pain and suffering was excessive where the deceased died instantaneously. It also relied on the case of Moses Koome Mithika & Another v Doreen Gatwiri & Another [2020] eKLR where the court awarded Kshs10,000/= for pain and suffering where death was instantaneous.
16. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR and Sukari Industries Limited vs Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR , the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.
17. In the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR , the court therein awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident. In Sukari Industries limited vs Clyde Machimbo Jumba (2016) eKLR , the court held that nominal damages would be awarded if death occurred immediately after death and higher damages if pain was prolonged. The court also noted that the amount under this head ranged from Kshs10,000/= to Kshs 100,000/=.
18. Taking into account the aforesaid cases, it was the considered view that the sum of Kshs 50,000/= for pain and suffering was fair and reasonable. The court, therefore, left the same undisturbed.
B. LOSS OF EXEPCTATION OF LIFE
19. No submissions were made under this head. The court, therefore, left the award of Kshs 100,000/= for loss of expectation of life undisturbed.
IV. FATAL ACCIDENTS ACT
A. MULTIPLICAND
20. The Appellant submitted that dependency had to be proven pursuant to Section 2 of the Fatal Accidents Act. It referred this court to the case of Gerald Mbale Mwea vs Kariko Kihara [1995] eKLR where the court emphasised that dependency goes to the core of any claim. It also cited Rahab Wanjiru Nderitu v Daniel Muteti [2016] eKLR where it was held that a plaint had to prove dependency through marriage either by customary or statutory marriage.
21. It argued that the Respondent failed to prove valid marriage to the deceased as she did not produce any Marriage Certificate or demonstrate financial dependency on the deceased or his actual income and contribution to dependents as a result of which the award of Kshs 4,000,000/= for dependency was completely without foundation and represented a serious error in law.
22. On her part, PW 1 in Vihiga PMCC No 18 of 2022 (Now HCCA No E046 of 2025 ) pointed out that there was evidence to the effect that she was married to the deceased and that they were blessed with a baby girl as was evidenced in the Birth Certificate that she tendered as evidence. She added that she had also adduced the pay slips from his employer Roma Caterers which showed that he earned Kshs 40,000/= per month. She urged this court to replace the sum of Kshs 25,000/= that was applied by the trial court with Kshs 40,000/=.
23. She also produced a letter dated 12 th November 2021 from the Assistant Chief which indicated that she was married to the deceased and that she cohabited with him as a husband and wife until he died. The Birth Certificate bore both her name and the deceased’s name as the father of the child.
24. In the absence of any evidence by the Appellant to controvert that PW 1 was married to the deceased, this court was persuaded to treat her as the deceased’s wife on the strength of the Chief’s letter, the Birth Certificate and the fact that the deceased’s sister was also enjoined in the proceedings herein. Bearing in mind, the emotive nature of accident claims, there was legitimate expectation that no family member of a deceased would welcome a stranger to claim benefits of their deceased family member.
25. The Trial Court noted that though PW1 claimed that the deceased was earning Kshs 40,000/= per month, it adopted a multiplicand of Kshs 20,000/= Contrary to the Trial Court assertions that PW 1 did not submit pay slips, the pay slips were part of the Respondents’ Further List and Bundle of Documents that were dated 20 th May 2022 and filed on 8 th June 2022. In the absence of any proof to the contrary, this court found and held that the Trial Court erred when it adopted a multiplicand of Kshs 20,000/= when PW 1 had adduced in evidence a payslip showing that deceased earned a monthly salary of Kshs 34,476/=. The court this adopted the sum of Kshs 34, 476/= as the multiplicand.
B. DEPENDENCY RATIO
26. The Respondents did not contest the dependency ratio of 2/3 that the Trial Court adopted. Bearing in mind that the deceased had dependants, this court found the said dependency ratio to have been fair. Any monies the deceased earned would have been used by the child whether or not the deceased was married to PW 1. Section 4(1) of the Fatal Accidents Act provides as follows:-
“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused (emphasis court) , and shall, subject to the provisions of section 7 , be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:
Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.”
27. Indeed, the extent of dependency was a question of fact as held in Leonard Ekisa & Another vs Major Birgen [2005] eKLR where the court stated that there was no rule of law that 2/3 of the income of a person was to be taken as available for family expenses but that the extent of dependency was a question of fact that was to be established in each case. The court thus left the dependency ratio of 2/3, undisturbed as it was fair in the circumstances of this case.
C. MULTIPLIER
28. The Trial Court adopted a multiplier of twenty five (25) years considering the vicissitudes and vagaries of life. The Respondents urged this court to adopt the multiplicand of thirty (30) years.
29. The deceased was aged twenty three (23) years at the time that he died. It was the considered view that a multiplier of twenty (25) years that was adopted by the Trial Court was not unreasonable.
30. In determining whether or not the Trial Court exercised its discretion judiciously, this court had due regard to the case of Patrice Ombogo Bundi & Another (suing as the Personal representatives of the Estate of Douglas Bundi Ombogo) vs The Guardian Coach Limited [2022] eKLR in which it adopted a multiplier of sixteen (16) years where the deceased therein was aged thirty six (36) years at the time of death.
31. This court also had due regard to the case of Joseph Njuguna Mwaura vs Builders Den Limited & Another [2014] eKLR where the court adopted a multiplicand of seventeen (17) years where the deceased was aged thirty five (35) years at the time of death.
32. In the case of James Njiiri & 2 Others vs FPU & Another [2019] eKLR , the deceased therein was aged twenty nine (29) years at the time of his death. The appellate court therein adopted a multiplier of thirty one (31) years.
33. As was seen hereinabove, there is no clear cut formula of assessing what the appropriate multiplier would be. However, courts are guided by comparable cases so to arrive at conclusions that are not so wide apart as to cause inconsistency and confusion to those relying on the decisions.
34. Taking into account all the past decisions relating to the issue of a multiplier, this court could not fault the Trial Court for having adopted a multiplier of twenty (25) years. It, therefore, left the same undisturbed.
V. SPECIAL DAMAGES
35. The Appellant submitted that damages awarded by the trial court were inordinately excessive and not supported by evidence. On special damages, he cited Hahn v Singh [1985] KLR 716 , where the court held that special damages must not only be specifically claimed but also strictly proved. It contended that the receipt for Kshs100,000/= was not ETR generated and hence, failed to meet the requirements for proving special damages. It further relied on the case of cited Leonard Nyongesa v Derrick Ngula Righa [2014] eKLR where it was held that stamp duty ought to have been assessed before the court could attach any probative value to the receipt. It proposed an award of Kshs.20,000/=. On the other hand, the Respondents submitted that special damages were proved.
36. Notably, PW1 produced receipts amounting to Kshs 120,000/=. The Appellant contention is that the receipt with Kshs 100,000/= was not an ETR receipt as it was not assessed for stamp duty. This court was of the view that the obligation to affix a revenue stamp on a receipt is placed upon the person issuing the receipt and not the person to whom it was issued to.
37. The figure of Kshs 120,000/= was not unreasonable contribution from a family of a deceased noting the customs and traditions of people of the deceased. In the absence of any evidence to the contrary, this court adopted the said sum as African funerals were known to have higher amounts for funerals.
VI. INTEREST
38. Although was not a ground of appeal, this court noted that the Trial Court awarded interest on special damages from the date of judgment. It was the considered view of this court that the Respondent had been kept away from the special damages from the inception of the suit. He was thus entitled to interest on special damages from the date of filing suit.
DISPOSITION
39. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 18 th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon J.A. Agonda in Vihiga PMCC No E018 of 2022 Cynthia Kavinguha & Another vs Kenya Power & Lighting Co Ltd be and is varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 5,732,160/= made up as follows:-
Loss of expectation of life Kshs 100,000/=
Pain and suffering Kshs 50,000/=
Loss of dependency Kshs 6,895,200/=
2/3 x 34,476 x 12 x 25
Special damages Kshs 120,000/=
Kshs 7,165,200/=
Less 20% contributory negligence Kshs 1,433,040/=
Kshs 5,732,160/=
Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on special damages will accrue interest from the date of filing suit until payment in full while damages under the Law Reform Act and the Fatal Accidents Act will accrue from the date of judgment of the Trial Court until payment in full.
40. As the Appellant was partly successfully in its appeal, it is hereby directed that each party will bear its own costs of this Appeal.
41. It is so ordered.
DATED and SIGNED at VIHIGA this 27 th day of April 2026
J. KAMAU
JUDGE
HCCA E046 OF 20242