(Being an appeal from judgement of Hon.B.M. Cheloti in Milimani CC 10115 of 2018 delivered on 30.1.2024.)
This is an appeal from the judgement and decree of the Hon. Principal Magistrate delivered on 30.1.2024.
The appellant had filed a suit for compensation seeking both special and general damages payable to the estate of the deceased, Dennis Njeru Kaari, under the Fatal Accidents Act and the Law Reform Act. In a very brief judgement, the learned magistrate stated as follows as regards quantum;
‘’General damages for pain and suffering at Kshs 50,000
Loss of expectation of life at Kshs 100,000
Loss of dependency is awarded at Kshs 15,201.65 x12 x37 x1/3=2,249,844.20.
The court adopts the wages of casual labourer at Kshs15,201.65 as guided by the Regulation of Wages (General) (Amendment) Order,2022
Special damages Ksh160,500
Costs of the suit be borne by the defendant.
Interest on (a) and (b) above at court’s rate from the date of delivery of this judgement until payment in full.’’
It is instructive to note that parties had by consent agreed on liability in the ratio of 60:40 as against the respondent (Defendant). The plaintiff (Appellant), aggrieved by the said judgement, appealed to this court on the following grounds;
(a)That the learned magistrate erred in law and facts in calculating general damages under the head of loss of dependency
(b) That the learned trial magistrate erred in law and in fact in failing to subject the award of special damages to award on liability
The appellant and respondent filed submissions in support of their position regarding the appeal.
APPELANT’S SUBMISSIONS
The appellant submitted that the trial magistrate erred in computing damages under the head of loss of dependency. In particular the appellant submitted that the trial court erred in adopting the Minimum Wage for the year 2022 instead of the one for 2015 which was the relevant one. That the award was high. The appellant further submitted that the trial court failed to adhere to basic principles in judgement writing as the judgement failed to consider the issues raised and gave no reasons for the findings reached. The appellant further submitted that the trial court failed to consider the respondent had failed to tender any proof of actual earnings of the deceased as at the time of death That the judgement was silent on whether it took into account the consent on liability as regards special damages. The appellant asked the court to upset the entire judgement.
RESPONDENT’S SUIBMISSIONS
The respondent submitted that the appeal lacked merit and should be dismissed with costs. In his submissions the respondent appeared to urge the court to adopt the global sum approach as opposed to the multiplier approach which had been adopted by the trial court.
ANALYSIS AND DETERMINATION
From the memorandum of appeal, this court should determine whether the learned magistrate correctly applied her mind to the facts before her and the law in arriving at her decision which was basically on quantum of damages payable to the appellant. It is not disputed that the issue of liability was settled by the consent of parties in the ratio of 60:40 in favour of the respondent against the appellant.
This being a first appeal, I am obligated to analyze and re-evaluate the evidence adduced before the trial court and reach my independent conclusion while bearing in mind that unlike the trial court, I did not have the benefit of hearing and seeing the witnesses testify. See Selle and Another –v- Associates Mater Boat Co. Ltd (1968) E.A 123 and Williamson Diamonds Ltd Brown 1970 E.A
The principles under which an appellate court will disturb an award of damages are well settled. The appellate court will only interfere with an award made by a lower court if it is satisfied that the ward is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages. In Butt V Khan civil appeal No.40 of 1997(U.R) the court held;
‘’An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
It must be shown that the judge proceeded on wrong principles and that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.’’
See also Kemfro Africa Ltd and another V.A.M Lubia & Another (1982-88)KLR
From the brief judgement of the learned magistrate, it is clear that she did not address her mind to the evidence before her together with the law as is expected and thereby arrived at an erroneous and incomprehensible decision. I will therefore proceed to reevaluate the evidence and reach my own conclusion.
On special damages, the appellant had no issues save that the trial court failed to subject the same to award on liability. The learned magistrate awarded a sum of Ksh. 50,000 which I find was pleaded and strictly proved as required. There was however no justification for failing to subject the same to contribution as agreed on the consent judgement on liability
Under the Law Reforms Act, in Rose –V-Ford (1937) AC 826 it was held that damages for loss of expectation of life can be recovered on behalf of the estate of the deceased. Courts also award damages for pain and suffering. Further, in Benham vs Gambling (1941) AC 157 the court held that only moderate awards should be granted under this head for the following reasons;
‘’In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not for loss of future pecuniary prospects.’’
The generally accepted principle is that very nominal damages will be awarded under these two heads if the death followed immediately after the accident. The conventional award for loss of expectation of life is ksh. 100,000. For pain and suffering the awards range between ksh 10,000 to ksh 100,000 with higher awards granted where the deceased had prolonged pain before death following the accident. In the present case, the deceased died not long after the accident. I will therefore award Ksh 20,000 for pain and suffering and Ksh 100,000 for loss of expectation of life.
Under the Fatal Accidents Act, the deceased died aged 23 years. There was no evidence that he suffered from ill health. From the death certificate the deceased was a casual labourer There was scanty evidence to show his net income. It is however settled by courts that production of documents cannot be the only way of proving one’s earnings. Such an approach would be unfair to many litigants who are illiterate and have difficulty keeping records yet they earn their livelihoods through various ways.
In the circumstances of this case, I find it not a fit case for using a multiplier method on arriving at damages payable. I seek reliance in the case of Mwanzia –V-Ngala Mutua Kenya Bus Ltd and quoted in Albert Odawa –V- Gichumu.Githenji (2007) KLR where Justice Ringera (as he then was) expressed himself thus;
‘’The multiplier approach is just a method of assessing damages. It is not a principle of law or 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 dependency and the expected length of the dependency 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.’’
It is therefore my finding that it is better to opt for the global sum approach instead of estimating the income of the deceased in the absence of proper documentary evidence. In arriving at the lump sum, I will consider what would have been the dependency ratio noting that all the named dependants were adults. There is little evidence of the level of dependency on the deceased.
Doing the best, I can, I find that a global sum of Kshs 2,000,000 would suffice for loss of dependency. In making this award, I have taken into account that I have awarded to the same dependants under Law Reform Act for non-pecuniary loss.
In conclusion the judgement of the trial magistrate is varied in the following terms;
i) Liability is 60:40 in favour of the respondent against the appellant.
ii) Special damages -Kshs 50,000
iii) Pain and suffering-Kshs 20,000
iv) Loss of expectation of life –Kshs 100,000
v) Loss of Dependency-Kshs 2,000,000
vi) The awards in (ii-iv) shall be subject to contribution in the ratio stated in (i) above
vii) The appellant is awarded half costs of this appeal having partially succeeded. The respondent shall have costs in the trial court together with interest from the date of the judgement in this court until payment in full.
The interest on special damages to accrue from the date of filing suit until payment in full.
Orders accordingly.
DATED, SIGNED AND DELIVERED this 20 th JULY 2026
D.O. ONYANGO
JUDGE.
2
This is an appeal from the judgement and decree of the Hon. Principal Magistrate delivered on 30.1.2024.
The appellant had filed a suit for compensation seeking both special and general damages payable to the estate of the deceased, Dennis Njeru Kaari, under the Fatal Accidents Act and the Law Reform Act. In a very brief judgement, the learned magistrate stated as follows as regards quantum;
‘’General damages for pain and suffering at Kshs 50,000
Loss of expectation of life at Kshs 100,000
Loss of dependency is awarded at Kshs 15,201.65 x12 x37 x1/3=2,249,844.20.
The court adopts the wages of casual labourer at Kshs15,201.65 as guided by the Regulation of Wages (General) (Amendment) Order,2022
Special damages Ksh160,500
Costs of the suit be borne by the defendant.
Interest on (a) and (b) above at court’s rate from the date of delivery of this judgement until payment in full.’’
It is instructive to note that parties had by consent agreed on liability in the ratio of 60:40 as against the respondent (Defendant). The plaintiff (Appellant), aggrieved by the said judgement, appealed to this court on the following grounds;
(a)That the learned magistrate erred in law and facts in calculating general damages under the head of loss of dependency
(b) That the learned trial magistrate erred in law and in fact in failing to subject the award of special damages to award on liability
The appellant and respondent filed submissions in support of their position regarding the appeal.
APPELANT’S SUBMISSIONS
The appellant submitted that the trial magistrate erred in computing damages under the head of loss of dependency. In particular the appellant submitted that the trial court erred in adopting the Minimum Wage for the year 2022 instead of the one for 2015 which was the relevant one. That the award was high. The appellant further submitted that the trial court failed to adhere to basic principles in judgement writing as the judgement failed to consider the issues raised and gave no reasons for the findings reached. The appellant further submitted that the trial court failed to consider the respondent had failed to tender any proof of actual earnings of the deceased as at the time of death That the judgement was silent on whether it took into account the consent on liability as regards special damages. The appellant asked the court to upset the entire judgement.
RESPONDENT’S SUIBMISSIONS
The respondent submitted that the appeal lacked merit and should be dismissed with costs. In his submissions the respondent appeared to urge the court to adopt the global sum approach as opposed to the multiplier approach which had been adopted by the trial court.
ANALYSIS AND DETERMINATION
From the memorandum of appeal, this court should determine whether the learned magistrate correctly applied her mind to the facts before her and the law in arriving at her decision which was basically on quantum of damages payable to the appellant. It is not disputed that the issue of liability was settled by the consent of parties in the ratio of 60:40 in favour of the respondent against the appellant.
This being a first appeal, I am obligated to analyze and re-evaluate the evidence adduced before the trial court and reach my independent conclusion while bearing in mind that unlike the trial court, I did not have the benefit of hearing and seeing the witnesses testify. See Selle and Another –v- Associates Mater Boat Co. Ltd (1968) E.A 123 and Williamson Diamonds Ltd Brown 1970 E.A
The principles under which an appellate court will disturb an award of damages are well settled. The appellate court will only interfere with an award made by a lower court if it is satisfied that the ward is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages. In Butt V Khan civil appeal No.40 of 1997(U.R) the court held;
‘’An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
It must be shown that the judge proceeded on wrong principles and that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.’’
See also Kemfro Africa Ltd and another V.A.M Lubia & Another (1982-88)KLR
From the brief judgement of the learned magistrate, it is clear that she did not address her mind to the evidence before her together with the law as is expected and thereby arrived at an erroneous and incomprehensible decision. I will therefore proceed to reevaluate the evidence and reach my own conclusion.
On special damages, the appellant had no issues save that the trial court failed to subject the same to award on liability. The learned magistrate awarded a sum of Ksh. 50,000 which I find was pleaded and strictly proved as required. There was however no justification for failing to subject the same to contribution as agreed on the consent judgement on liability
Under the Law Reforms Act, in Rose –V-Ford (1937) AC 826 it was held that damages for loss of expectation of life can be recovered on behalf of the estate of the deceased. Courts also award damages for pain and suffering. Further, in Benham vs Gambling (1941) AC 157 the court held that only moderate awards should be granted under this head for the following reasons;
‘’In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not for loss of future pecuniary prospects.’’
The generally accepted principle is that very nominal damages will be awarded under these two heads if the death followed immediately after the accident. The conventional award for loss of expectation of life is ksh. 100,000. For pain and suffering the awards range between ksh 10,000 to ksh 100,000 with higher awards granted where the deceased had prolonged pain before death following the accident. In the present case, the deceased died not long after the accident. I will therefore award Ksh 20,000 for pain and suffering and Ksh 100,000 for loss of expectation of life.
Under the Fatal Accidents Act, the deceased died aged 23 years. There was no evidence that he suffered from ill health. From the death certificate the deceased was a casual labourer There was scanty evidence to show his net income. It is however settled by courts that production of documents cannot be the only way of proving one’s earnings. Such an approach would be unfair to many litigants who are illiterate and have difficulty keeping records yet they earn their livelihoods through various ways.
In the circumstances of this case, I find it not a fit case for using a multiplier method on arriving at damages payable. I seek reliance in the case of Mwanzia –V-Ngala Mutua Kenya Bus Ltd and quoted in Albert Odawa –V- Gichumu.Githenji (2007) KLR where Justice Ringera (as he then was) expressed himself thus;
‘’The multiplier approach is just a method of assessing damages. It is not a principle of law or 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 dependency and the expected length of the dependency 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.’’
It is therefore my finding that it is better to opt for the global sum approach instead of estimating the income of the deceased in the absence of proper documentary evidence. In arriving at the lump sum, I will consider what would have been the dependency ratio noting that all the named dependants were adults. There is little evidence of the level of dependency on the deceased.
Doing the best, I can, I find that a global sum of Kshs 2,000,000 would suffice for loss of dependency. In making this award, I have taken into account that I have awarded to the same dependants under Law Reform Act for non-pecuniary loss.
In conclusion the judgement of the trial magistrate is varied in the following terms;
i) Liability is 60:40 in favour of the respondent against the appellant.
ii) Special damages -Kshs 50,000
iii) Pain and suffering-Kshs 20,000
iv) Loss of expectation of life –Kshs 100,000
v) Loss of Dependency-Kshs 2,000,000
vi) The awards in (ii-iv) shall be subject to contribution in the ratio stated in (i) above
vii) The appellant is awarded half costs of this appeal having partially succeeded. The respondent shall have costs in the trial court together with interest from the date of the judgement in this court until payment in full.
The interest on special damages to accrue from the date of filing suit until payment in full.
Orders accordingly.
DATED, SIGNED AND DELIVERED this 20 th JULY 2026
D.O. ONYANGO
JUDGE.
2