' REPUBLIC OF KENYA
IN THE HIGH COURT AT KILGORIS
CIVIL APPEAL NO. E011 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
KENYA POWER & LIGHTING CO. LTD……………………..…………...APPELLANT
VS
THOMAS ABUYA MARTIN (Suing as the administrator & Personal Representative of the Estate of MARY KABUYA……………………………...……………...RESPONDENT
JUDGMENT
The Deceased in the instant case aged 45 years died as a result of electrocution precipitating a suit in lower court for compensation for deceased Estate by the Appellant. The parties entered a compromise on liability whereby apportionment was agreed at 80% to 20% in favour of the Estate.
The court eventually made verdict on quantum whereby two items: Multiplicand and multiplier were contested precipitating an appeal as to whether the Kshs. 13,572.90/= being under regulations of wages (General) Amendment Order of 2018 is applicable to deceased as he was a farm causal labourer. The other element was multiplier of 23 years applicable as the deceased was 45 years.
The parties were directed to canvass appeal via submissions:
APPELLANTS SUBMISSIONS:
INTRODUCTION
This appeal arises from the judgment delivered on 19th March 2024 by the Hon. W.R Kitur in Kilgons CMCC No. 7 of 2019 . The suit before the trial court concerned a fatal road accident involving the deceased, Mary Abuya, whose estate the Respondent represents. The trial magistrate entered judgment against the Appellant, Kenya Power & Lighting Company Limited, awarding a substantial sum in general damages for loss of dependency based on a monthly wage of Kshs. 13,572.90 and a multiplier of 23 years.
The appeal had the following grounds mounted against trial court award.
Whether the trial court erred in adopting an unjustified income for the deceased without any documentary evidence or consideration of the applicable statutory minimum wage;
Whether the trial court erred in applying a multiplier of 23 years for a deceased aged 45, which is inconsistent with retirement norms and existing jurisprudence.
Whether the trial court failed to adequately consider and evaluate the evidence and submissions by the Appellant.
the trial court''s award for general damages for loss of dependency was excessive, dispproportionatee, and unsupported by the factual matrix and legal principles.
What orders this Honourable Court should issue, including the reassessment of damages in accordance with legal precedent and statutory guidelines.
Parties were directed to canvass appeal via submissions
Appellant submissions.
The Appellant submitted on the issues set out as follows;
The assessment of damages under the Fatal Accidents Act is guided by the principle of pecuniary loss to dependants. The accepted formula is: General damages = multiplicand x multiplier x dependency ratio.
In the absence of direct proof of income, courts are required to fall back on the Regulation of Wages (General) Order. In Albert Odawa Gichimu Githenji [2007] e KLR , it was held that courts must apply a "reasonable and just" income where there is no proof. Furthermore, section 107 of the Evidence Act provides that "he who alleges must prove." It was incumbent upon the Respondent to produce evidence of the deceased''s occupation and come. The trial court’s reliance on an urban wage rate, without any evidence or legal justification, was erroneous.
The trial magistrate used a wage of Kshs. 13,572.90 per month, suggesting that the deceased earned the minimum wage of a general labourer in Nairobi. This assumption is unsupported by any oral or documentary evidence. The deceased was a rural resident, and there was no employment contract or proof of salarv presented by the Respondent. In Board of Govemors Kangubili Girls High School v Jane Wanjiku Muriithi [20141 eKLR , the Court of Appeal emphasized the importance of applying the appropriate wage zone. The correct wage for rural general workers, as per the Regulation of wages (General) (Amendment) Order, is Kshs. 7,240.95.
The failure to apply the correct wage rate significantly exaggerated the multiplicand and, therefore, the entire quantum Thus the court erred in law and fact and to substitute the correct wage in line with statutory guidance.
The trial court adopted a multiplier of 23 years, suggesting the deceased would have worked until the age of 68. This is not supported by any actuarial evidence or judicial authority. In Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka [2016] e KLR , the Court of Appeal held that for a deceased aged 45, a multiplier of 15 - 18 years is reasonable. Similarly, in Shabani v City Council of Nairobi [19851 KLR , it was held that multipliers must account for uncertainties of life, early retirement, and potential illnesses.
Given that the official retirement age in Kenya is 60 years, and taking into account the possibility of ill health, job loss, or other interruptions, a multiplier of 15 years is more realistic and just. The application of 23 years without any justification was a material misdirection.
The Appellant submitted comprehensive written submissions, wage regulations, and authorities which were not addressed or considered in the trial court''s judgment. This violates the rule of fair hearing and reasoned adjudication.
In Peters v Sunday Post [1958] EA 424 , the Court held that an appellate court may intervene where the trial court failed to consider or misapprehended material evidence. Additionally, in Mbogo v Shah [1968] EA 93 , it was stated that appellate interference is warranted where the court acts on wrong principles or fails to evaluate relevant material-
The trial court’s judgment merely adopted the Respondent''s position without critical analysis, resulting in a one-sided and flawed outcome.
In Kemfro Africa Ltd t/ a Mem Express Sewices v Lubia [1982 - 881 1 KAR 727 , the Court of Appeal held that awards must be guided by precedent and must not be arbitrary. A court should compare awards made in similar cases to ensure fairness and consistency.
In Alice Mboga v Mombasa Liners Ltd [2015] e KLR , a deceased aged 46 was awarded a multiplier of 15 years using a rural wage of Kshs. 6,442 per month. The dependency ratio was 2/3. The final award was Kshs. 772,800.
These cases demonstrate that the award in the instant case - Kshs. 3.7 million is disproportionately high and inconsistent with past decisions. The appeal provides an opportunity for this Court to restore legal parity and safeguard against excessive awards.
The respondent did not file any submissions
The trial court treatment of the two contested items of the award
“ The plaintiff is ‘proposing a multiplicand of Kshs. 13,572.90 as the deceased was farmer and the Regulation of wages (General) (Amendment) order, 2018 was in force and it covered general labourer like e deceased. But defendants refer to the same order md submit that a multiplicand of Kshs.5,844.20 should be used. The Honourable cost agrees that the Regulation of wages {General) (Amendment) order 20 18 is applicable as the deceased was a farm casual labourer. The Honourable court awards plaintiff a multiplicand of Kshs. 13,572. 90.
On dependency/multiplier Ratio, plaintiff proposes award of a ratio of 2/3, but defendants submit an award of 1/ 3. Thomas Abuya Martin (PW3) told court that her wife (deceased) left behind him and their four children. The Honourable awards a dependency ratio of 2/ 3 as the family was dependent on her.
Plaintiff proposes a multiplier of 25 years. Defendant submits that a multiplier of 20 years should be used. The deceased was self-employed and worked as a farmer. Taking into considerable vagaries’, vicissitudes and uncertainty of life, the Honourable Court adopts a multiplier Ratio Of 23 years”.
The plaintiff is awarded Kshs.2,497,248.00 for loss of dependency, calculated as follows: 13572.90x23x12x2/3= Kshs.2,497,248.00
ISSUES, ANALYSIS AND DETERMINATION
The twin issues arising are the multiplicand and the multiplier.
Under the Fatal Accidents Act, the assessment of damages is indeed guided by the principle of pecuniary loss to the dependants, focusing on lost financial benefits they reasonably expected to receive from the deceased but for their death. The court examines the deceased''s income and how much benefited the dependants, and then determines the extent of this loss in money or money''s worth, using methods like the multiplier approach . Key aspects of pecuniary loss under the Fatal Accidents Act:
Reasonable Expectation of Benefit:
The focus is on the financial benefits that the dependants had a reasonable expectation to receive from the deceased.
Objective Assessment:
The assessment is objective, considering the deceased''s future prospects as they might have been, rather than what they themselves believed.
Loss of Financial Support:
The core of the claim is the loss of financial support that would have come from the deceased''s income.
Loss of Services:
It also includes the loss of expected benefits from the provision of domestic or parental services.
Methodology:
Courts often use the "multiplier" method to calculate damages, which involves applying a multiplier to a multiplicand (the financial dependency) to arrive at the capital sum.
Date of Assessment:
The dependency is assessed at the moment of the deceased''s death.
What the principle does not consider:
Subjective Happiness:
The assessment is not based on whether the deceased appreciated their own future happiness.
Pecuniary Gains:
Any financial gains to the estate that result from the death are generally disregarded
The trial magistrate used a wage of Kshs. 13,572.90 per month, suggesting that the deceased earned the minimum wage of a general labourer in Nairobi. This assumption is unsupported by any oral or documentary evidence. The deceased was a rural resident, and there was no employment contract or proof of salarv presented by the Respondent. In Board of Govemors Kangubili Girls High School v Jane Wanjiku Muriithi [20141 eKLR , the Court of Appeal emphasized the importance of applying the appropriate wage zone. The correct wage for rural general workers, as per the Regulation of wages (General) (Amendment) Order, is Kshs. 7,240.95.
The failure to apply the correct wage rate significantly exaggerated the multiplicand and, therefore, the entire quantum Thus the court erred in law and fact and to substitute the correct wage in line with statutory guidance.
The trial court adopted a multiplier of 23 years, suggesting the deceased would have worked until the age of 68. This is not supported by any actuarial evidence or judicial authority. In Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka [2016] e KLR , the Court of Appeal held that for a deceased aged 45, a multiplier of 15 - 18 years is reasonable. Similarly, in Shabani v City Council of Nairobi [19851 KLR , it was held that multipliers must account for uncertainties of life, early retirement, and potential illnesses.
Given that the official retirement age in Kenya is 60 years, and taking into account the possibility of ill health, job loss, or other interruptions, a multiplier of 15 years is more realistic and just. The application of 23 years without any justification was a material misdirection.
The Appellant submitted comprehensive written submissions, wage regulations, and authorities which were not addressed or considered in the trial court''s judgment. This violates the rule of fair hearing and reasoned adjudication.
The trial court misapplied the applicable legal principles, adopted incorrect assumptions, and ignored both evidence and precedent. Justice demands that damages be proportionate, lawful, and consistent with judicial policy. This court thus corrects the injustice occasioned by the lower court''s judgment by adjusting multiplicand to ksh 7241 for rural casual labourer in 2018 under cited order and multiplier of 20 years as proposed by the defence in trial court.
Thus, this Honourable Court makes the orders.
The appeal allowed with costs to the Appellant.
The court Sets aside the judgment and decree of the trial court in Kilgoris CMCC No. 7 of 2019; and orders that the Recalculation of the general damages for loss of dependency be based on Kshs. 7,241/ as the monthly income, a multiplier of 20 years, and a 2/3 dependency ratio. Thus,7241x20x12x2/3=1,158560
The other items remain as awarded by the trial court.
DATED AND DELIVERED THROUGH MICROSOFT TEAMS AT KILGORIS THIS 3rd OCTOBER 2025
CHARLES KARIUKI
JUDGE
'
IN THE HIGH COURT AT KILGORIS
CIVIL APPEAL NO. E011 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
KENYA POWER & LIGHTING CO. LTD……………………..…………...APPELLANT
VS
THOMAS ABUYA MARTIN (Suing as the administrator & Personal Representative of the Estate of MARY KABUYA……………………………...……………...RESPONDENT
JUDGMENT
The Deceased in the instant case aged 45 years died as a result of electrocution precipitating a suit in lower court for compensation for deceased Estate by the Appellant. The parties entered a compromise on liability whereby apportionment was agreed at 80% to 20% in favour of the Estate.
The court eventually made verdict on quantum whereby two items: Multiplicand and multiplier were contested precipitating an appeal as to whether the Kshs. 13,572.90/= being under regulations of wages (General) Amendment Order of 2018 is applicable to deceased as he was a farm causal labourer. The other element was multiplier of 23 years applicable as the deceased was 45 years.
The parties were directed to canvass appeal via submissions:
APPELLANTS SUBMISSIONS:
INTRODUCTION
This appeal arises from the judgment delivered on 19th March 2024 by the Hon. W.R Kitur in Kilgons CMCC No. 7 of 2019 . The suit before the trial court concerned a fatal road accident involving the deceased, Mary Abuya, whose estate the Respondent represents. The trial magistrate entered judgment against the Appellant, Kenya Power & Lighting Company Limited, awarding a substantial sum in general damages for loss of dependency based on a monthly wage of Kshs. 13,572.90 and a multiplier of 23 years.
The appeal had the following grounds mounted against trial court award.
Whether the trial court erred in adopting an unjustified income for the deceased without any documentary evidence or consideration of the applicable statutory minimum wage;
Whether the trial court erred in applying a multiplier of 23 years for a deceased aged 45, which is inconsistent with retirement norms and existing jurisprudence.
Whether the trial court failed to adequately consider and evaluate the evidence and submissions by the Appellant.
the trial court''s award for general damages for loss of dependency was excessive, dispproportionatee, and unsupported by the factual matrix and legal principles.
What orders this Honourable Court should issue, including the reassessment of damages in accordance with legal precedent and statutory guidelines.
Parties were directed to canvass appeal via submissions
Appellant submissions.
The Appellant submitted on the issues set out as follows;
The assessment of damages under the Fatal Accidents Act is guided by the principle of pecuniary loss to dependants. The accepted formula is: General damages = multiplicand x multiplier x dependency ratio.
In the absence of direct proof of income, courts are required to fall back on the Regulation of Wages (General) Order. In Albert Odawa Gichimu Githenji [2007] e KLR , it was held that courts must apply a "reasonable and just" income where there is no proof. Furthermore, section 107 of the Evidence Act provides that "he who alleges must prove." It was incumbent upon the Respondent to produce evidence of the deceased''s occupation and come. The trial court’s reliance on an urban wage rate, without any evidence or legal justification, was erroneous.
The trial magistrate used a wage of Kshs. 13,572.90 per month, suggesting that the deceased earned the minimum wage of a general labourer in Nairobi. This assumption is unsupported by any oral or documentary evidence. The deceased was a rural resident, and there was no employment contract or proof of salarv presented by the Respondent. In Board of Govemors Kangubili Girls High School v Jane Wanjiku Muriithi [20141 eKLR , the Court of Appeal emphasized the importance of applying the appropriate wage zone. The correct wage for rural general workers, as per the Regulation of wages (General) (Amendment) Order, is Kshs. 7,240.95.
The failure to apply the correct wage rate significantly exaggerated the multiplicand and, therefore, the entire quantum Thus the court erred in law and fact and to substitute the correct wage in line with statutory guidance.
The trial court adopted a multiplier of 23 years, suggesting the deceased would have worked until the age of 68. This is not supported by any actuarial evidence or judicial authority. In Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka [2016] e KLR , the Court of Appeal held that for a deceased aged 45, a multiplier of 15 - 18 years is reasonable. Similarly, in Shabani v City Council of Nairobi [19851 KLR , it was held that multipliers must account for uncertainties of life, early retirement, and potential illnesses.
Given that the official retirement age in Kenya is 60 years, and taking into account the possibility of ill health, job loss, or other interruptions, a multiplier of 15 years is more realistic and just. The application of 23 years without any justification was a material misdirection.
The Appellant submitted comprehensive written submissions, wage regulations, and authorities which were not addressed or considered in the trial court''s judgment. This violates the rule of fair hearing and reasoned adjudication.
In Peters v Sunday Post [1958] EA 424 , the Court held that an appellate court may intervene where the trial court failed to consider or misapprehended material evidence. Additionally, in Mbogo v Shah [1968] EA 93 , it was stated that appellate interference is warranted where the court acts on wrong principles or fails to evaluate relevant material-
The trial court’s judgment merely adopted the Respondent''s position without critical analysis, resulting in a one-sided and flawed outcome.
In Kemfro Africa Ltd t/ a Mem Express Sewices v Lubia [1982 - 881 1 KAR 727 , the Court of Appeal held that awards must be guided by precedent and must not be arbitrary. A court should compare awards made in similar cases to ensure fairness and consistency.
In Alice Mboga v Mombasa Liners Ltd [2015] e KLR , a deceased aged 46 was awarded a multiplier of 15 years using a rural wage of Kshs. 6,442 per month. The dependency ratio was 2/3. The final award was Kshs. 772,800.
These cases demonstrate that the award in the instant case - Kshs. 3.7 million is disproportionately high and inconsistent with past decisions. The appeal provides an opportunity for this Court to restore legal parity and safeguard against excessive awards.
The respondent did not file any submissions
The trial court treatment of the two contested items of the award
“ The plaintiff is ‘proposing a multiplicand of Kshs. 13,572.90 as the deceased was farmer and the Regulation of wages (General) (Amendment) order, 2018 was in force and it covered general labourer like e deceased. But defendants refer to the same order md submit that a multiplicand of Kshs.5,844.20 should be used. The Honourable cost agrees that the Regulation of wages {General) (Amendment) order 20 18 is applicable as the deceased was a farm casual labourer. The Honourable court awards plaintiff a multiplicand of Kshs. 13,572. 90.
On dependency/multiplier Ratio, plaintiff proposes award of a ratio of 2/3, but defendants submit an award of 1/ 3. Thomas Abuya Martin (PW3) told court that her wife (deceased) left behind him and their four children. The Honourable awards a dependency ratio of 2/ 3 as the family was dependent on her.
Plaintiff proposes a multiplier of 25 years. Defendant submits that a multiplier of 20 years should be used. The deceased was self-employed and worked as a farmer. Taking into considerable vagaries’, vicissitudes and uncertainty of life, the Honourable Court adopts a multiplier Ratio Of 23 years”.
The plaintiff is awarded Kshs.2,497,248.00 for loss of dependency, calculated as follows: 13572.90x23x12x2/3= Kshs.2,497,248.00
ISSUES, ANALYSIS AND DETERMINATION
The twin issues arising are the multiplicand and the multiplier.
Under the Fatal Accidents Act, the assessment of damages is indeed guided by the principle of pecuniary loss to the dependants, focusing on lost financial benefits they reasonably expected to receive from the deceased but for their death. The court examines the deceased''s income and how much benefited the dependants, and then determines the extent of this loss in money or money''s worth, using methods like the multiplier approach . Key aspects of pecuniary loss under the Fatal Accidents Act:
Reasonable Expectation of Benefit:
The focus is on the financial benefits that the dependants had a reasonable expectation to receive from the deceased.
Objective Assessment:
The assessment is objective, considering the deceased''s future prospects as they might have been, rather than what they themselves believed.
Loss of Financial Support:
The core of the claim is the loss of financial support that would have come from the deceased''s income.
Loss of Services:
It also includes the loss of expected benefits from the provision of domestic or parental services.
Methodology:
Courts often use the "multiplier" method to calculate damages, which involves applying a multiplier to a multiplicand (the financial dependency) to arrive at the capital sum.
Date of Assessment:
The dependency is assessed at the moment of the deceased''s death.
What the principle does not consider:
Subjective Happiness:
The assessment is not based on whether the deceased appreciated their own future happiness.
Pecuniary Gains:
Any financial gains to the estate that result from the death are generally disregarded
The trial magistrate used a wage of Kshs. 13,572.90 per month, suggesting that the deceased earned the minimum wage of a general labourer in Nairobi. This assumption is unsupported by any oral or documentary evidence. The deceased was a rural resident, and there was no employment contract or proof of salarv presented by the Respondent. In Board of Govemors Kangubili Girls High School v Jane Wanjiku Muriithi [20141 eKLR , the Court of Appeal emphasized the importance of applying the appropriate wage zone. The correct wage for rural general workers, as per the Regulation of wages (General) (Amendment) Order, is Kshs. 7,240.95.
The failure to apply the correct wage rate significantly exaggerated the multiplicand and, therefore, the entire quantum Thus the court erred in law and fact and to substitute the correct wage in line with statutory guidance.
The trial court adopted a multiplier of 23 years, suggesting the deceased would have worked until the age of 68. This is not supported by any actuarial evidence or judicial authority. In Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka [2016] e KLR , the Court of Appeal held that for a deceased aged 45, a multiplier of 15 - 18 years is reasonable. Similarly, in Shabani v City Council of Nairobi [19851 KLR , it was held that multipliers must account for uncertainties of life, early retirement, and potential illnesses.
Given that the official retirement age in Kenya is 60 years, and taking into account the possibility of ill health, job loss, or other interruptions, a multiplier of 15 years is more realistic and just. The application of 23 years without any justification was a material misdirection.
The Appellant submitted comprehensive written submissions, wage regulations, and authorities which were not addressed or considered in the trial court''s judgment. This violates the rule of fair hearing and reasoned adjudication.
The trial court misapplied the applicable legal principles, adopted incorrect assumptions, and ignored both evidence and precedent. Justice demands that damages be proportionate, lawful, and consistent with judicial policy. This court thus corrects the injustice occasioned by the lower court''s judgment by adjusting multiplicand to ksh 7241 for rural casual labourer in 2018 under cited order and multiplier of 20 years as proposed by the defence in trial court.
Thus, this Honourable Court makes the orders.
The appeal allowed with costs to the Appellant.
The court Sets aside the judgment and decree of the trial court in Kilgoris CMCC No. 7 of 2019; and orders that the Recalculation of the general damages for loss of dependency be based on Kshs. 7,241/ as the monthly income, a multiplier of 20 years, and a 2/3 dependency ratio. Thus,7241x20x12x2/3=1,158560
The other items remain as awarded by the trial court.
DATED AND DELIVERED THROUGH MICROSOFT TEAMS AT KILGORIS THIS 3rd OCTOBER 2025
CHARLES KARIUKI
JUDGE
'