1. This appeal emanates from the judgement and decree of Hon. L.W. Maina, Resident Magistrate delivered on 23rd November, 2022 in Meru CMCC No. E035 of 2022.
2. The grounds of appeal presented by the Appellant vide the Memorandum of Appeal dated 5th October, 2023, upon which she seeks to upset the judgement and decree of the lower court are as follows:
1. That the learned trial Magistrate erred in law fact in awarding general damages for loss of dependency that were too excessive and therefore an erroneous estimate of the damage suffered by the Respondent.
2. That the learned trial Magistrate acted on wrong legal principles and took into account irrelevant factors in arriving at a multiplicand of Ksh.85,000/-.
3. That the learned trial Magistrate erred in law ain adopting a dependency ratio of ½ when it is clear that the deceased was unmarried and there was no evidence that he was supporting his parents.
4. That the learned trial Magistrate erred in law in failing to apply global award method in assessing damages for loss of dependency.
5. That the learned trial Magistrate erred in law in making an award that was beyond its monetary jurisdiction.
3. The Appellant proposes that the appeal be allowed and that this court sets aside the trial court’s judgement on quantum of general damages for loss of dependency and proceeds to make a fresh assessment and determination on the same.
4. It is instructive from the grounds in the Memorandum of Appeal that what is challenged vide this appeal is the findings and award of the trial court on damages on the head of loss of dependency on two prongs; that wrong principles were applied resulting in the same being excessive and/or inordinately high and that the trial court exceeded its jurisdiction in awarding the same.
5. The present appeal was canvassed by way of written submissions. Both sides complied with the court’s directions by filing their respective submissions.
6. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
7. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
8. The matter before trial court, a tortious liability claim, was commenced by the Respondent (the Plaintiff before the lower court) by way of a plaint dated 24th January, 2022.
9. The Appellant (the Defendant before the lower court) resisted the suit by filing a statement of defence dated 25th February, 2022.
10. It is instructive from the record of the trial court that this matter did not proceed by way of viva voce evidence but rather, the parties recorded a consent on 28th September, 2022 in the following terms:
1. That liability be apportioned at 90%:10% in favour of the Plaintiff.
2. The Plaintiff’s statement dated 24th January, 2022 and that of the Plaintiff’s witness dated 15th march, 2022 be adopted as examination in chief evidence.
3. The Plaintiff’s list of documents dated 24th June, 2022 be adopted as evidence as 1 to 15 as they appear.
4. The Plaintiff’s case and the Defendant’s case be marked as closed.
5. The parties to file written submissions in 14 + 21 days to file and serve (sic).
11. The consent was endorsed by both parties and adopted as the order of the court.
12. The relevant evidence in so far as the appeal on the award under the head of loss of dependency is concerned, is thus the unchallenged evidence of the Respondent as recorded in her statement. The statement of the second witness relates to causation of the accident in which the deceased met his demise, and is therefore not relevant to the issue of loss of dependency.
13. The Respondent stated in his statement that before his demise, which occurred at the age of 23 years, the deceased was a Bachelor of Science student at the Technical University of Kenya, with a promising bright future. The Respondent stated that as a result of the deceased’s demise, his estate suffered great loss for which the Respondent sought compensation.
14. The Respondents produced the following documents in support of their case:
- Limited grant ad litem.
- Receipt for Ksh.35,000/- for obtaining the limited grant ad litem.
- Certificate of death.
- Post mortem report.
- Receipt for Ksh.7,000/- being money paid for post mortem.
- Police abstract.
- Receipt for Ksh.125,000/- for burial catering services.
- Receipt for Ksh.40,000/- for funeral services.
- Receipt for Ksh.14,000/- for mortuary services.
- Demand letter.
- Receipt for Ksh.10,000/- for demand notice.
- Receipt for Ksh.380/- for postage of demand letter.
- Motor vehicle copy of records.
- Receipt for Ksh.800/- for copy of records.
- Copy of deceased’s student identity card.
15. Under paragraph 4 of the plaint, the Respondent pleaded particulars of the deceased’s dependency as follows:
a. Geoffrey Muturia Kiunga Father.
b. Catherine Kagwiria Mutiria Mother.
16. The Respondent did not explain or expound in his statement the nature and extent of dependency.
17. On the basis of the manner in which the parties proceeded with the matter, the trial delivered its judgement on 23rd November, 2022 in the following terms:
a. Liability – agreed at 90%:10% in favour of the Respondent.
b. General damages under the Law Reform Act:
- Pain and suffering – Ksh.10,000/-.
- Loss of expectation of life – Ksh.100,000/-.
c. General damages under the Fatal Accidents Act:
- Loss of dependency – Ksh.5,100,030/-.
d. Special damages – Ksh.231,530/-.
e. Costs and interest of the suit awarded to the Respondent at court rates.
18. The items above were subject to the parties’ agreed apportionment on liability.
19. I have carefully perused and considered the record of the trial court, the grounds of appeal and the submissions by the two sides. The issue that emerges that I am to determine is whether the trial court properly assessed and awarded damages to the Respondent under the head of loss of dependency.
20. Compensatory damages are awarded to a wronged party in exercise of the court’s discretion. The principles upon which an appellate court can interfere with judicial discretion were laid down in the case of Price & another v Hidler [1996] KLR 95 as follows:
“The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.”
21. Further, in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR the Court of Appeal while discussing the principles upon which an appellate court may disturb an award of damages by an inferior court held that:
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297.
It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, J.A that:
“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, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
22. There is also the authority of Mbogo & Another v Shah [1969] EA 93, where it was held, inter alia, that:
“An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.”
23. With the principles above in mind, I will with proceed to address the issue that I am tasked to determine.
24. As per the certificate of death and the Respondent’s evidence, the deceased died at the young age of 23 years. He was an undergraduate student at the Technical University of Kenya. The trial court was not addressed as to whether he had any income. As I have stated above, the Respondent merely pleaded that the deceased had dependants (his parents) but did not give any evidence on the same.
25. In assessing loss of dependency, the learned trial Magistrate applied the multiplier/multiplicand method and adopted a dependency ratio of ½.
26. In determining the multiplicand, the learned trial Magistrate rendered himself as follows:
“The Plaintiff in this instance seeks for a multiplicand of Ksh.90’000/- alleging that the Deceased was a student at Technical University studying Land Administration in 2016, but it is unclear as to whether he joined the said university given that what was attached is an admission offer (PExh15). The Plaintiff has however adduced a student ID from KEMU University for Bachelor of Medicine as a first-year student which record the court shall rely upon.
The College Salaries Report indicates that at entry level the gross salary of an attending doctor is Ksh.85,000/- starting salary and subjected the same to 1/3 statutory taxation leaving a balance of Ksh.56,667/-. This shall be the multiplicand that the court shall rely upon.”
27. The learned trial Magistrate proceeded to apply a multiplier of 15 years.
28. Loss of dependency was pursuant to the foregoing ultimately calculated to amount to Ksh.5,100,030/-.
29. The question that then abounds is whether the learned trial Magistrate applied the correct principles in arriving at the above amount under the head of loss of dependency, noting that there was no evidence provided that the deceased was a doctor and no proof of his earnings, if any, was tendered in evidence.
30. Courts have held that where no evidence is provided as to the profession and/or occupation of a deceased and where there is no evidence on the earnings of a deceased, the multiplier/multiplicand method is not apt.
31. In the case of Mwanzia v Ngalali Mutua v Kenya Bus Service & another (citation not available) Ringera J. (as he then was) expressed himself as follows;
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly 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.”
32. In the decision of this court (C. Kariuki, J.) of David Mbuba & another v Victoria Mwongeli Kimwalu & another [2018] eKLR, the court held as follows:
“The multiplier approach was not suitable in the current case for the simple reason that the deceased’s earnings were not proved. It is clear that the Learned Trial Magistrate applied the correct principles and relied on relevant authorities in deciding to use the global approach.”
33. I will embrace the enlightenment from the authorities above from which emerges the jurisprudence that where the earnings of a deceased cannot be ascertained like was in the case before the trial court, the multiplier/multiplicand formula is not suitable in assessing damages under the head of loss of dependency. The trial court ought to have applied the global sum approach.
34. I therefore agree with the Appellant that the learned trial Magistrate fell into error by applying the multiplier/multiplicand method in the circumstances that did not allow for its application, as the earnings of the deceased were not known, as a result of which the figure of Ksh.5,100,030/- was reached under the head of loss of dependency, which was inordinately high.
35. The learned trial Magistrate erred further by making an award that was beyond his pecuniary jurisdiction as Section 7(1)(e) of the Magistrates Courts Act which provides the limit of pecuniary jurisdiction of a Resident Magistrate to be Ksh.5,000,000/-.
36. Considering the young age at which the deceased met his demise, and further considering that he was a student who was in good health and possibly had a bright and/or promising future, I think that a global amount of Ksh.3,800,000/= will aptly recompense the deceased’s estate under the head of lost years.
37. In the result, I allow the appeal only to the extent that I set aside the trial court’s award of Ksh.5,100,030/- made under the head loss of dependency and substitute the same with an award, under the head of lost years, of Ksh.3,800,000/-. The said amount will be subjected to the agreed apportionment on liability.
38. The Respondent shall bear the costs of this appeal.
39. This file is hereby closed.
40. Orders accordingly.
DELIVERED (virtually), DATED & SIGNED this 3rd day of July, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPELLANT: No appearance.
FOR THE RESPONDENT: Mr. Kaba.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Mr. Kaba: I pray for an order that the security that was deposited in court of Ksh1,000,000/- be released to the Respondent.
Court: The security of Ksh.1,000,000/- that was deposited in court to be released to the Respondent as part of the decretal amount.
JOE M. OMIDO
JUDGE
3rd July, 2025.
2. The grounds of appeal presented by the Appellant vide the Memorandum of Appeal dated 5th October, 2023, upon which she seeks to upset the judgement and decree of the lower court are as follows:
1. That the learned trial Magistrate erred in law fact in awarding general damages for loss of dependency that were too excessive and therefore an erroneous estimate of the damage suffered by the Respondent.
2. That the learned trial Magistrate acted on wrong legal principles and took into account irrelevant factors in arriving at a multiplicand of Ksh.85,000/-.
3. That the learned trial Magistrate erred in law ain adopting a dependency ratio of ½ when it is clear that the deceased was unmarried and there was no evidence that he was supporting his parents.
4. That the learned trial Magistrate erred in law in failing to apply global award method in assessing damages for loss of dependency.
5. That the learned trial Magistrate erred in law in making an award that was beyond its monetary jurisdiction.
3. The Appellant proposes that the appeal be allowed and that this court sets aside the trial court’s judgement on quantum of general damages for loss of dependency and proceeds to make a fresh assessment and determination on the same.
4. It is instructive from the grounds in the Memorandum of Appeal that what is challenged vide this appeal is the findings and award of the trial court on damages on the head of loss of dependency on two prongs; that wrong principles were applied resulting in the same being excessive and/or inordinately high and that the trial court exceeded its jurisdiction in awarding the same.
5. The present appeal was canvassed by way of written submissions. Both sides complied with the court’s directions by filing their respective submissions.
6. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
7. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
8. The matter before trial court, a tortious liability claim, was commenced by the Respondent (the Plaintiff before the lower court) by way of a plaint dated 24th January, 2022.
9. The Appellant (the Defendant before the lower court) resisted the suit by filing a statement of defence dated 25th February, 2022.
10. It is instructive from the record of the trial court that this matter did not proceed by way of viva voce evidence but rather, the parties recorded a consent on 28th September, 2022 in the following terms:
1. That liability be apportioned at 90%:10% in favour of the Plaintiff.
2. The Plaintiff’s statement dated 24th January, 2022 and that of the Plaintiff’s witness dated 15th march, 2022 be adopted as examination in chief evidence.
3. The Plaintiff’s list of documents dated 24th June, 2022 be adopted as evidence as 1 to 15 as they appear.
4. The Plaintiff’s case and the Defendant’s case be marked as closed.
5. The parties to file written submissions in 14 + 21 days to file and serve (sic).
11. The consent was endorsed by both parties and adopted as the order of the court.
12. The relevant evidence in so far as the appeal on the award under the head of loss of dependency is concerned, is thus the unchallenged evidence of the Respondent as recorded in her statement. The statement of the second witness relates to causation of the accident in which the deceased met his demise, and is therefore not relevant to the issue of loss of dependency.
13. The Respondent stated in his statement that before his demise, which occurred at the age of 23 years, the deceased was a Bachelor of Science student at the Technical University of Kenya, with a promising bright future. The Respondent stated that as a result of the deceased’s demise, his estate suffered great loss for which the Respondent sought compensation.
14. The Respondents produced the following documents in support of their case:
- Limited grant ad litem.
- Receipt for Ksh.35,000/- for obtaining the limited grant ad litem.
- Certificate of death.
- Post mortem report.
- Receipt for Ksh.7,000/- being money paid for post mortem.
- Police abstract.
- Receipt for Ksh.125,000/- for burial catering services.
- Receipt for Ksh.40,000/- for funeral services.
- Receipt for Ksh.14,000/- for mortuary services.
- Demand letter.
- Receipt for Ksh.10,000/- for demand notice.
- Receipt for Ksh.380/- for postage of demand letter.
- Motor vehicle copy of records.
- Receipt for Ksh.800/- for copy of records.
- Copy of deceased’s student identity card.
15. Under paragraph 4 of the plaint, the Respondent pleaded particulars of the deceased’s dependency as follows:
a. Geoffrey Muturia Kiunga Father.
b. Catherine Kagwiria Mutiria Mother.
16. The Respondent did not explain or expound in his statement the nature and extent of dependency.
17. On the basis of the manner in which the parties proceeded with the matter, the trial delivered its judgement on 23rd November, 2022 in the following terms:
a. Liability – agreed at 90%:10% in favour of the Respondent.
b. General damages under the Law Reform Act:
- Pain and suffering – Ksh.10,000/-.
- Loss of expectation of life – Ksh.100,000/-.
c. General damages under the Fatal Accidents Act:
- Loss of dependency – Ksh.5,100,030/-.
d. Special damages – Ksh.231,530/-.
e. Costs and interest of the suit awarded to the Respondent at court rates.
18. The items above were subject to the parties’ agreed apportionment on liability.
19. I have carefully perused and considered the record of the trial court, the grounds of appeal and the submissions by the two sides. The issue that emerges that I am to determine is whether the trial court properly assessed and awarded damages to the Respondent under the head of loss of dependency.
20. Compensatory damages are awarded to a wronged party in exercise of the court’s discretion. The principles upon which an appellate court can interfere with judicial discretion were laid down in the case of Price & another v Hidler [1996] KLR 95 as follows:
“The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.”
21. Further, in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR the Court of Appeal while discussing the principles upon which an appellate court may disturb an award of damages by an inferior court held that:
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297.
It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, J.A that:
“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, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
22. There is also the authority of Mbogo & Another v Shah [1969] EA 93, where it was held, inter alia, that:
“An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.”
23. With the principles above in mind, I will with proceed to address the issue that I am tasked to determine.
24. As per the certificate of death and the Respondent’s evidence, the deceased died at the young age of 23 years. He was an undergraduate student at the Technical University of Kenya. The trial court was not addressed as to whether he had any income. As I have stated above, the Respondent merely pleaded that the deceased had dependants (his parents) but did not give any evidence on the same.
25. In assessing loss of dependency, the learned trial Magistrate applied the multiplier/multiplicand method and adopted a dependency ratio of ½.
26. In determining the multiplicand, the learned trial Magistrate rendered himself as follows:
“The Plaintiff in this instance seeks for a multiplicand of Ksh.90’000/- alleging that the Deceased was a student at Technical University studying Land Administration in 2016, but it is unclear as to whether he joined the said university given that what was attached is an admission offer (PExh15). The Plaintiff has however adduced a student ID from KEMU University for Bachelor of Medicine as a first-year student which record the court shall rely upon.
The College Salaries Report indicates that at entry level the gross salary of an attending doctor is Ksh.85,000/- starting salary and subjected the same to 1/3 statutory taxation leaving a balance of Ksh.56,667/-. This shall be the multiplicand that the court shall rely upon.”
27. The learned trial Magistrate proceeded to apply a multiplier of 15 years.
28. Loss of dependency was pursuant to the foregoing ultimately calculated to amount to Ksh.5,100,030/-.
29. The question that then abounds is whether the learned trial Magistrate applied the correct principles in arriving at the above amount under the head of loss of dependency, noting that there was no evidence provided that the deceased was a doctor and no proof of his earnings, if any, was tendered in evidence.
30. Courts have held that where no evidence is provided as to the profession and/or occupation of a deceased and where there is no evidence on the earnings of a deceased, the multiplier/multiplicand method is not apt.
31. In the case of Mwanzia v Ngalali Mutua v Kenya Bus Service & another (citation not available) Ringera J. (as he then was) expressed himself as follows;
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly 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.”
32. In the decision of this court (C. Kariuki, J.) of David Mbuba & another v Victoria Mwongeli Kimwalu & another [2018] eKLR, the court held as follows:
“The multiplier approach was not suitable in the current case for the simple reason that the deceased’s earnings were not proved. It is clear that the Learned Trial Magistrate applied the correct principles and relied on relevant authorities in deciding to use the global approach.”
33. I will embrace the enlightenment from the authorities above from which emerges the jurisprudence that where the earnings of a deceased cannot be ascertained like was in the case before the trial court, the multiplier/multiplicand formula is not suitable in assessing damages under the head of loss of dependency. The trial court ought to have applied the global sum approach.
34. I therefore agree with the Appellant that the learned trial Magistrate fell into error by applying the multiplier/multiplicand method in the circumstances that did not allow for its application, as the earnings of the deceased were not known, as a result of which the figure of Ksh.5,100,030/- was reached under the head of loss of dependency, which was inordinately high.
35. The learned trial Magistrate erred further by making an award that was beyond his pecuniary jurisdiction as Section 7(1)(e) of the Magistrates Courts Act which provides the limit of pecuniary jurisdiction of a Resident Magistrate to be Ksh.5,000,000/-.
36. Considering the young age at which the deceased met his demise, and further considering that he was a student who was in good health and possibly had a bright and/or promising future, I think that a global amount of Ksh.3,800,000/= will aptly recompense the deceased’s estate under the head of lost years.
37. In the result, I allow the appeal only to the extent that I set aside the trial court’s award of Ksh.5,100,030/- made under the head loss of dependency and substitute the same with an award, under the head of lost years, of Ksh.3,800,000/-. The said amount will be subjected to the agreed apportionment on liability.
38. The Respondent shall bear the costs of this appeal.
39. This file is hereby closed.
40. Orders accordingly.
DELIVERED (virtually), DATED & SIGNED this 3rd day of July, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPELLANT: No appearance.
FOR THE RESPONDENT: Mr. Kaba.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Mr. Kaba: I pray for an order that the security that was deposited in court of Ksh1,000,000/- be released to the Respondent.
Court: The security of Ksh.1,000,000/- that was deposited in court to be released to the Respondent as part of the decretal amount.
JOE M. OMIDO
JUDGE
3rd July, 2025.