(Being an Appeal from part of the Judgment Decree of Hon. J. N. Mwaniki (Chief Magistrate) delivered on 21st August 2024 in Malindi Magistrates’ Court Civil Suit No. E305 of 2023.
JUDGMENT
1. The appellant filed this appeal through a memorandum dated 19th September 2024 while the respondents filed a cross-appeal on 15th October 2024 through an undated memorandum. The appeal and cross-appeal are both on one issue only, the assessment quantum of damages, specifically, for loss of dependency, by the trial court. The claim before the trial court was for negligence arising out of a fatal road traffic accident. The appellant was the defendant while the respondents were the plaintiffs before the trial court. The respondents, who were the parent of the deceased, sued the appellant seeking compensation by way of special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
2. The respondents’ case before the trial court was filed through the plaint amended on 26th September 2023, witness statements and documents filed in support of the case.
3. The appellant filed her defence dated 31st October 2023 and also filed witness statements and documents to rely upon.
4. Liability was settled by consent of the parties in the ratio of 70:30 for the respondents against the appellant. The only witness who testified in the case was PW 1, Bernard Raymond Muye, the father of the deceased, Jacob Mute Pole.
5. The brief circumstances of the case as captured in the amended plaint were that on 15th March 2023, the deceased was riding a motor cycle registration number KMGB 289Q at Kwa Nzai area along Gede-Watamu road when the appellant’s motor vehicle registration number KCQ 413W, overtook another motor cycle and while trying to return to its lane, rammed the motor cycle the deceased was riding from behind thereby causing him fatal injuries. The deceased was survived by his parents Benard Raymond Muye, Furaha Daniel Chirao and brother Tomas Mwalolo Pole. He was not married and had no child.
6. It was alleged in the amended plaint that the deceased was working as a “boda boda” rider and that he earned KShs 1,000/= per day a week (that is how it was captured). PW 1 reiterated the same in his evidence in chief. However, in cross-examination, PW 1 said he had no proof of the deceased’s earnings. He said the deceased used to support him, his mother and brother. As a result, the estate of the deceased and his dependents had suffered loss and damage from which they claimed compensation from the respondent.
7. Upon considering the evidence, the learned trial magistrate entered judgment for the respondents against the appellant as follows:
a. Special damages KShs 111,050/=
b. Pain and suffering KShs 50,000/=
c. Loss of expectation of life KShs 100,000/=
d. Loss of dependency KShs 2,068,104/=
8. The awards were subject to contribution in the ratio of 70:30 making the final amount payable to the appellants to be KShs 1,630,408/=. The appellants were also awarded costs of the suit subject to the ratios on liability above.
9. Both parties were aggrieved by the said judgment and they have appealed to this court on the various grounds set out in the memorandum of appeal and memorandum of cross-appeal. The bottom line of both appeals is that they both content that the assessment of damages by the trial court on loss of dependency was in error. The appellant’s position is that the damages were inordinately high while the respondents claim that the damages were inordinately low.
10. The grounds of appeal by the appellant were as follows:
a. The learned trial magistrate reached a decision that was against the constitution, the Evidence Act, the Law Reforms Act, the Fatal Accidents Act, theLabour Institutions Acty, the Regulations of Wages and Conditions of Employment (Basic Minimum Wage Guidelines) and Common Law.
b. The learned trial magistrate imprtoperly exercised his discretion and/or duty by taking into account matters which he ought not to have taken into account and failing to take into account matters he should have taken into account in making an award on general damages.
c. The learned trial magistrate erred in his appreciation and application of the evidence tendered before him with respect to loss of dependency.
d. The learned trial magistrate erred in adopting a multiplicand of two thirds ratio in general damages.
e. The learned trial magistrate erred in adopting a sum of KShs 15,201.15 as the basic minimum wage applicable for loss of dependency in the circumstances, facts and evidence before him.
f. The learned trial magistrate erred in making a highly and manifestly excessive and or inordinately high award on loss of dependency.
g. The learned trial magistrate erred in failing to consider and apply relevant legal principles with respect to awards made for loss of dependency.
h. The learned trial magistrate assessed damages which were manifestly excessive and against the principles applicable in assessment of such damages.
11. The grounds in support of the cross-appeal are as follows:
a. The learned trial Chief Magistrate erred in adopting a multiplier of 17 years where the deceased was 24 years old which was inordinately low to amount to an erroneous estimate in light of the prime age of the deceased and prevailing life expectancy within the country.
b. The learned trial Chief Magistrate failed to give any or any adequate reasons why he adopted the multiplier of 17 years against the weight of the evidence and submissions by the respondents.
c. The learned trial Chief Magistrate erred in adopting a dependency rati of 2/3 as opposed to a more suitable award of ½ given the fact that the extent of dependency had been proved by the respondents.
d. The learned trial Chief Magistrate failed to give any or any adequate reasons why he adopted a dependency ratio of 2/3 as opposed to ½ which he used to calculate the award of damages for loss of dependency.
e. The learned Chief Magistrate erred in failing to consider or properly consider all the evidence before him and/or to make any or any proper findings on the aspect of the multiplier and dependency ratio which he adopted in making the award of general damages for loss of dependency against the evidence before him
f. The learned Chief Magistrate erred in failing to consider or adequately consider all the evidence before him and the written submissions filed by counsel for the Plaintiffs/Respondents.
g. The learned Chief Magistrate erred in law and in fact by failing to consider all the material facts that had been placed before the court and thereby failed to consider or to properly consider all the evidence before him and as a result arrived at a completely erroneous decision on the aspect of the multiplier and dependency ratio which he adopted in making the award of general damages for loss of dependency.
12. The respondents therefore pray that the appeal herein be dismissed and the cross-appeal be allowed and that the learned Chief Magistrate's judgment delivered on 21st August 2024 on the aspect of the multiplier and dependency ratio which he adopted in making the award of damages for loss of dependency be set aside or varied.
13. The parties therefore respectively pray for this court to set aside the judgment of the trial court on assessment of quantum of damages on loss of dependency, and for this court to consider the evidence afresh and make its own assessment, each party urging the court to determine the issue in its favour.
14. The appeal was canvassed by way of written submissions filed by both parties urging their respective cases.
15. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
16. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial court’s findings of fact as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
17. This court will however interfere where the trial court’s finding of fact is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (See the case cited by learned counsel for the appellant of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR).
18. The appeal and cross-appeal are both on assessment of damages are on loss of dependency only.
19. It is correct as submitted by learned counsel for the appellant that assessment of damages is at the discretion of the trial court. For that reason, this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
20. A similar position was stated in the case cited by learned counsel for the appellant of Kigaragari v Aya [1985] KECA 47 (KLR):
“For this court to interfere it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred.”
21. I will start with the issue which is common to both the parties, that is, the charge that on the issue of damages awarded to the respondents under the head of loss of dependency, the learned trial magistrate, made no discussion on how he arrived at the said figures, or what considerations or principles he considered in arriving at the final orders. That charge is correct because in his judgment the learned trial magistrate did not make any effort to substantiate at how he arrived at the dependency ratio, the multiplier and the multiplicand yet these three issues are central in determining the quantum of damages for loss of dependency using the multiplier approach.
22. Learned counsel for the appellant submits that the learned trial magistrate misdirected himself in adopting a multiplier approach and arriving at an award made without any basis. Learned counsel submits that in the absence of tangible proof of earning, this court should adopt a global sum approach and not the multiplier approach in assessing damages for loss of dependency.
23. The issue of whether or not to apply the global sum approach or the multiplier approach in assessment of general damages for loss of dependency has been given judicial consideration in various cases. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR) it was held as follows:
“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said:-
The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it.(see page 593).
And back home, while referring to this question in Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR Justice Ringera was of the following view:-
“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.”
24. The appellants seems to be resiling from the multiplier approach in this appeal, yet that was the approach she proposed before the trial court. The respondents also proposed that the trial court adopts the multiplier approach. So the trial court did adopt the multiplier approach and it cannot be faulted as having erred on that issue. The appeal only considers the case as presented before the trial court and for that reason, the global sum approach proposed by the appellant in this appeal cannot be adopted.
25. I am well guided by the authority cited above and find that what the court needs to determine is whether the deceased had some ascertainable earnings and not mere speculation and if so, with some certainty whether the level of earnings can be arrived at. In the present case, there was undisputed evidence from PW 1 that the deceased was operating a motorcycle taxi commonly known in our jurisdiction as “boda boda.” Indeed, he met his death while on the road riding the motor cycle. Therefore, the fact that he was earning an income was ascertained with certainty. His income from his occupation is what was not established from evidence. That does not mean, as submitted by learned counsel for the appellant that it was impossible to establish. The learned magistrate appreciated that it was difficult to establish a deceased’s income under such circumstances.
26. Both parties have a problem with the dependency ratio of 2/3 adopted by the trial court. Both parties content that this was not appropriate but defer on the appropriate ratio. The appellant proposes a dependency ratio of ½ while the respondents propose a dependency ratio of 1/3.
27. The dependency ratio applied in each case is a matter of fact to be determined by the evidence adduced in the case. In cases where the deceased was an unmarried person of young age, courts have applied various dependency ratios including 1/3, ½ and 2/3 and there is no standard or conventional ratio. Each case must be decided on its on facts. The learned trial magistrate applied a dependency ratio of 2/3. The trial magistrate however did not offer any reason why he applied a dependency ratio and that was an error on his part.
28. The factors to be considered in determining an award for loss of dependency for a deceased person leaving behind dependents are the number of dependents, the age of the dependents and the level of dependency. The age at which the deceased died is also a relevant factor.
29. The evidence before the trial court given by PW 1 was that the deceased was their son aged 24 years at the time he met his death. He was of good health and was operating a “boda boda” business as his means of livelihood. PW 1 said that the deceased was survived by his parents and brother aged 35 years. In that case, only the parents qualify to be dependents under section 4 of the Fatal Accidents Act. PW 1 said that he together with his wife were farmers and had brought up their two sons from their farming activities. He said the deceased would give him some KShs 600/= and keep the rest for himself. If the trial court had accepted his earnings to be KShs 1000/= per day as had been stated by PW 1 it would have meant that he spent approximately half of his income for the upkeep of his parents. I do not think that it was out of the ordinary for the dependency ratio adopted by the learned magistrate to be applied. For instance, in the case of Kagwara v Mbugua (Suing as the legal representative of the Estate of Hesbone Mbugua - Deceased) [2026] KEHC 5875 (KLR) the High Court at Voi citing several other cases, adopted a dependency ratio of 2/3 where the deceased was an only child and supported his mother.
30. In the present case, given that the deceased’s parents were still active in farming, this being their main source of income from which they had brought up their children, and seeing that the deceased was still unmarried and without a child, I am prepared to find that the deceased was sharing one half of his income with them. I therefore find that a dependency ratio of 1/2 would be appropriate in the circumstances.
31. On the multiplier, there was no dispute that at the time of death the deceased was aged 24 years. In their submissions before the trial court on the multiplier to be adopted by the trial court, the respondents proposed a multiplier of 36 years while the appellant proposed a multiplier of 22 years. Both learned counsels agreed on the retirement age of 60 years.
32. The trial court adopted 17 years as the multiplier, again without any explanation or reference to past decisions. It was also below the multiplier of 22 years proposed by the appellant. The decision was therefore made without any basis and is subject to be overturned by this court. Learned counsel for the appellant made reference to various decisions in proposing a multiplier of 22 years. I have looked at those decisions and I note that a good number of them were made before the retirement age for public servants was increased from 55 years to 60 years effective 1st April 2009. In three of the decisions made after the retirement age was increased, the deceased died aged 29 years and the multiplier applied ranged from 20 years to 27 years. For the respondent, learned counsel has provided authorities where the deceased’s ages ranged between 20 years and 24 years and the multiplier ranged between 30 years and 37 years. It is apparent that the multipliers vary considerably even for persons of a similar age.
33. It is true as submitted by learned counsel that the deceased was engaged in a risky venture and his chances of coming by an early death were quite considerable. Perhaps he may have changed occupation along the way. All the same, I find the multiplier of 17 years adopted by the trial court to have been too low as to represent an erroneous estimate and the same is set aside. Taking into account all the relevant factors, I will adopt a multiplier of 26 years.
34. Both learned counsels proposed to the trial court to adopt the Minimum Wage Guidelines in force at the time under the Regulation of Wages (General)(Amendment) Order, 2022 Legal Notice No. 125 of 2022. Their point of departure however was on the applicable scale of income. The respondent proposed KShs 20,517.80 without indicating under what category of worker this income fell. The appellant on her part proposed the basic minimum wage for an unskilled worker in an area other than a city or named municipalities, pointing out that the deceased lived and worked in Timboni area of Watamu and the scale applicable was KShs 8,109.90. The learned trial magistrate adopted a sum of KShs 15,206.65 which appears to have been the minimum wage for a general worker, although the correct figure was KShs 15,201.65 for workers within Nairobi, Mombasa, Kisumu and Nakuru cities. I agree with learned counsel for the appellant that this was erroneous given the evidence of the deceased’s place of work and residence as Timboni in Watamu.
35. It has been argued that the deceased was engaged in an illegal enterprise as he did not have a driving or PSV licence. There was no evidence to support that assertion. PW 1 said that he did not know whether his son had a driving licence. For purposes of civil law that cannot be cause to deny that the deceased was skilled in the trade that he plied. That area of having or lacking a driving or PSV licence is taken care of by the Traffic Act and were he to be alive, perhaps, appropriate sanctions would have been meted out to him if he had been arrested and found. A traffic offence is not a criminal offence per se as would cause one to be said to be engaged in an illegal enterprise that would disentitle him to a remedy. For now, what is important is the undisputed evidence that he was earning an income from the “boda boda” business.
36. However, I am not persuaded by learned counsel for the appellant’s proposition and which was adopted by the trial court that a “boda boda” rider would fall in the same category as an unskilled worker. In as much as the deceased’s category of work is not included in the Minimum Wages Order, I believe a “boda boda” operator would fall in the category of machine attendant or machine assistant, given that he works with a machine, the motor cycle. In that case the minimum wage at the time of his death was KShs 12,995.25 which I would approximate to KShs 13,000/= per month. I am persuaded to follow the reasoning by the High Court in the case of Mogaka v Mayieka & another (Suing as the legal administrators of the Estate of Wyclif Kamanda Onkundi (Deceased)) (Civil Appeal E024 of 2021) [2022] KEHC 14440 (KLR) (11 February 2022) (Judgment) where the High Court observed that a “boda boda” operator cannot be placed in the category as an unskilled worker. He must have basic skills in driving including understanding the Traffic Rules and the Highway Code in order to operate on the road.
37. Consequently, the loss of dependency assessed by the trial court is set aside and substituted with the following:
KShs 13,000/= x 26 x 12 x ½ = KShs 2,028,000/=.
38. The other damages awarded by the trial court have not been challenged and so they remain as such.
39. In the final analysis the award of damages will be as follows:
a. Pain and suffering: KShs 50,000/=
b. Loss of expectation of life: KShs 100,000/=
c. Loss of dependency: KShs 2,028,000/=.
d. Special damages: KShs 111,050/=
Total: KShs 2,289,050/=.
40. Having apportioned liability in the ratio of 70:30 for the appellants against the respondent, the damages assessed above will be subjected to that ratio making the award by this court to be KShs 1,602,335/=.
41. Consequently, the appeal and cross appeal are successful to the extent that the trial court judgment is varied to that extent on assessment of damages for loss of dependency as above.
42. Each party having succeeded in some way to unsettle the judgment of the trial court, it is ordered that each party will bear its own costs of this appeal.
43. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams this 13th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Wambui Ms h/b for Onyango for the Appellant.
Adede for the Respondents.
Ummu: Court Assistant.
JUDGMENT
1. The appellant filed this appeal through a memorandum dated 19th September 2024 while the respondents filed a cross-appeal on 15th October 2024 through an undated memorandum. The appeal and cross-appeal are both on one issue only, the assessment quantum of damages, specifically, for loss of dependency, by the trial court. The claim before the trial court was for negligence arising out of a fatal road traffic accident. The appellant was the defendant while the respondents were the plaintiffs before the trial court. The respondents, who were the parent of the deceased, sued the appellant seeking compensation by way of special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
2. The respondents’ case before the trial court was filed through the plaint amended on 26th September 2023, witness statements and documents filed in support of the case.
3. The appellant filed her defence dated 31st October 2023 and also filed witness statements and documents to rely upon.
4. Liability was settled by consent of the parties in the ratio of 70:30 for the respondents against the appellant. The only witness who testified in the case was PW 1, Bernard Raymond Muye, the father of the deceased, Jacob Mute Pole.
5. The brief circumstances of the case as captured in the amended plaint were that on 15th March 2023, the deceased was riding a motor cycle registration number KMGB 289Q at Kwa Nzai area along Gede-Watamu road when the appellant’s motor vehicle registration number KCQ 413W, overtook another motor cycle and while trying to return to its lane, rammed the motor cycle the deceased was riding from behind thereby causing him fatal injuries. The deceased was survived by his parents Benard Raymond Muye, Furaha Daniel Chirao and brother Tomas Mwalolo Pole. He was not married and had no child.
6. It was alleged in the amended plaint that the deceased was working as a “boda boda” rider and that he earned KShs 1,000/= per day a week (that is how it was captured). PW 1 reiterated the same in his evidence in chief. However, in cross-examination, PW 1 said he had no proof of the deceased’s earnings. He said the deceased used to support him, his mother and brother. As a result, the estate of the deceased and his dependents had suffered loss and damage from which they claimed compensation from the respondent.
7. Upon considering the evidence, the learned trial magistrate entered judgment for the respondents against the appellant as follows:
a. Special damages KShs 111,050/=
b. Pain and suffering KShs 50,000/=
c. Loss of expectation of life KShs 100,000/=
d. Loss of dependency KShs 2,068,104/=
8. The awards were subject to contribution in the ratio of 70:30 making the final amount payable to the appellants to be KShs 1,630,408/=. The appellants were also awarded costs of the suit subject to the ratios on liability above.
9. Both parties were aggrieved by the said judgment and they have appealed to this court on the various grounds set out in the memorandum of appeal and memorandum of cross-appeal. The bottom line of both appeals is that they both content that the assessment of damages by the trial court on loss of dependency was in error. The appellant’s position is that the damages were inordinately high while the respondents claim that the damages were inordinately low.
10. The grounds of appeal by the appellant were as follows:
a. The learned trial magistrate reached a decision that was against the constitution, the Evidence Act, the Law Reforms Act, the Fatal Accidents Act, theLabour Institutions Acty, the Regulations of Wages and Conditions of Employment (Basic Minimum Wage Guidelines) and Common Law.
b. The learned trial magistrate imprtoperly exercised his discretion and/or duty by taking into account matters which he ought not to have taken into account and failing to take into account matters he should have taken into account in making an award on general damages.
c. The learned trial magistrate erred in his appreciation and application of the evidence tendered before him with respect to loss of dependency.
d. The learned trial magistrate erred in adopting a multiplicand of two thirds ratio in general damages.
e. The learned trial magistrate erred in adopting a sum of KShs 15,201.15 as the basic minimum wage applicable for loss of dependency in the circumstances, facts and evidence before him.
f. The learned trial magistrate erred in making a highly and manifestly excessive and or inordinately high award on loss of dependency.
g. The learned trial magistrate erred in failing to consider and apply relevant legal principles with respect to awards made for loss of dependency.
h. The learned trial magistrate assessed damages which were manifestly excessive and against the principles applicable in assessment of such damages.
11. The grounds in support of the cross-appeal are as follows:
a. The learned trial Chief Magistrate erred in adopting a multiplier of 17 years where the deceased was 24 years old which was inordinately low to amount to an erroneous estimate in light of the prime age of the deceased and prevailing life expectancy within the country.
b. The learned trial Chief Magistrate failed to give any or any adequate reasons why he adopted the multiplier of 17 years against the weight of the evidence and submissions by the respondents.
c. The learned trial Chief Magistrate erred in adopting a dependency rati of 2/3 as opposed to a more suitable award of ½ given the fact that the extent of dependency had been proved by the respondents.
d. The learned trial Chief Magistrate failed to give any or any adequate reasons why he adopted a dependency ratio of 2/3 as opposed to ½ which he used to calculate the award of damages for loss of dependency.
e. The learned Chief Magistrate erred in failing to consider or properly consider all the evidence before him and/or to make any or any proper findings on the aspect of the multiplier and dependency ratio which he adopted in making the award of general damages for loss of dependency against the evidence before him
f. The learned Chief Magistrate erred in failing to consider or adequately consider all the evidence before him and the written submissions filed by counsel for the Plaintiffs/Respondents.
g. The learned Chief Magistrate erred in law and in fact by failing to consider all the material facts that had been placed before the court and thereby failed to consider or to properly consider all the evidence before him and as a result arrived at a completely erroneous decision on the aspect of the multiplier and dependency ratio which he adopted in making the award of general damages for loss of dependency.
12. The respondents therefore pray that the appeal herein be dismissed and the cross-appeal be allowed and that the learned Chief Magistrate's judgment delivered on 21st August 2024 on the aspect of the multiplier and dependency ratio which he adopted in making the award of damages for loss of dependency be set aside or varied.
13. The parties therefore respectively pray for this court to set aside the judgment of the trial court on assessment of quantum of damages on loss of dependency, and for this court to consider the evidence afresh and make its own assessment, each party urging the court to determine the issue in its favour.
14. The appeal was canvassed by way of written submissions filed by both parties urging their respective cases.
15. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
16. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial court’s findings of fact as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
17. This court will however interfere where the trial court’s finding of fact is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (See the case cited by learned counsel for the appellant of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR).
18. The appeal and cross-appeal are both on assessment of damages are on loss of dependency only.
19. It is correct as submitted by learned counsel for the appellant that assessment of damages is at the discretion of the trial court. For that reason, this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR) as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
20. A similar position was stated in the case cited by learned counsel for the appellant of Kigaragari v Aya [1985] KECA 47 (KLR):
“For this court to interfere it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred.”
21. I will start with the issue which is common to both the parties, that is, the charge that on the issue of damages awarded to the respondents under the head of loss of dependency, the learned trial magistrate, made no discussion on how he arrived at the said figures, or what considerations or principles he considered in arriving at the final orders. That charge is correct because in his judgment the learned trial magistrate did not make any effort to substantiate at how he arrived at the dependency ratio, the multiplier and the multiplicand yet these three issues are central in determining the quantum of damages for loss of dependency using the multiplier approach.
22. Learned counsel for the appellant submits that the learned trial magistrate misdirected himself in adopting a multiplier approach and arriving at an award made without any basis. Learned counsel submits that in the absence of tangible proof of earning, this court should adopt a global sum approach and not the multiplier approach in assessing damages for loss of dependency.
23. The issue of whether or not to apply the global sum approach or the multiplier approach in assessment of general damages for loss of dependency has been given judicial consideration in various cases. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] KEHC 5958 (KLR) it was held as follows:
“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said:-
The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it.(see page 593).
And back home, while referring to this question in Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR Justice Ringera was of the following view:-
“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.”
24. The appellants seems to be resiling from the multiplier approach in this appeal, yet that was the approach she proposed before the trial court. The respondents also proposed that the trial court adopts the multiplier approach. So the trial court did adopt the multiplier approach and it cannot be faulted as having erred on that issue. The appeal only considers the case as presented before the trial court and for that reason, the global sum approach proposed by the appellant in this appeal cannot be adopted.
25. I am well guided by the authority cited above and find that what the court needs to determine is whether the deceased had some ascertainable earnings and not mere speculation and if so, with some certainty whether the level of earnings can be arrived at. In the present case, there was undisputed evidence from PW 1 that the deceased was operating a motorcycle taxi commonly known in our jurisdiction as “boda boda.” Indeed, he met his death while on the road riding the motor cycle. Therefore, the fact that he was earning an income was ascertained with certainty. His income from his occupation is what was not established from evidence. That does not mean, as submitted by learned counsel for the appellant that it was impossible to establish. The learned magistrate appreciated that it was difficult to establish a deceased’s income under such circumstances.
26. Both parties have a problem with the dependency ratio of 2/3 adopted by the trial court. Both parties content that this was not appropriate but defer on the appropriate ratio. The appellant proposes a dependency ratio of ½ while the respondents propose a dependency ratio of 1/3.
27. The dependency ratio applied in each case is a matter of fact to be determined by the evidence adduced in the case. In cases where the deceased was an unmarried person of young age, courts have applied various dependency ratios including 1/3, ½ and 2/3 and there is no standard or conventional ratio. Each case must be decided on its on facts. The learned trial magistrate applied a dependency ratio of 2/3. The trial magistrate however did not offer any reason why he applied a dependency ratio and that was an error on his part.
28. The factors to be considered in determining an award for loss of dependency for a deceased person leaving behind dependents are the number of dependents, the age of the dependents and the level of dependency. The age at which the deceased died is also a relevant factor.
29. The evidence before the trial court given by PW 1 was that the deceased was their son aged 24 years at the time he met his death. He was of good health and was operating a “boda boda” business as his means of livelihood. PW 1 said that the deceased was survived by his parents and brother aged 35 years. In that case, only the parents qualify to be dependents under section 4 of the Fatal Accidents Act. PW 1 said that he together with his wife were farmers and had brought up their two sons from their farming activities. He said the deceased would give him some KShs 600/= and keep the rest for himself. If the trial court had accepted his earnings to be KShs 1000/= per day as had been stated by PW 1 it would have meant that he spent approximately half of his income for the upkeep of his parents. I do not think that it was out of the ordinary for the dependency ratio adopted by the learned magistrate to be applied. For instance, in the case of Kagwara v Mbugua (Suing as the legal representative of the Estate of Hesbone Mbugua - Deceased) [2026] KEHC 5875 (KLR) the High Court at Voi citing several other cases, adopted a dependency ratio of 2/3 where the deceased was an only child and supported his mother.
30. In the present case, given that the deceased’s parents were still active in farming, this being their main source of income from which they had brought up their children, and seeing that the deceased was still unmarried and without a child, I am prepared to find that the deceased was sharing one half of his income with them. I therefore find that a dependency ratio of 1/2 would be appropriate in the circumstances.
31. On the multiplier, there was no dispute that at the time of death the deceased was aged 24 years. In their submissions before the trial court on the multiplier to be adopted by the trial court, the respondents proposed a multiplier of 36 years while the appellant proposed a multiplier of 22 years. Both learned counsels agreed on the retirement age of 60 years.
32. The trial court adopted 17 years as the multiplier, again without any explanation or reference to past decisions. It was also below the multiplier of 22 years proposed by the appellant. The decision was therefore made without any basis and is subject to be overturned by this court. Learned counsel for the appellant made reference to various decisions in proposing a multiplier of 22 years. I have looked at those decisions and I note that a good number of them were made before the retirement age for public servants was increased from 55 years to 60 years effective 1st April 2009. In three of the decisions made after the retirement age was increased, the deceased died aged 29 years and the multiplier applied ranged from 20 years to 27 years. For the respondent, learned counsel has provided authorities where the deceased’s ages ranged between 20 years and 24 years and the multiplier ranged between 30 years and 37 years. It is apparent that the multipliers vary considerably even for persons of a similar age.
33. It is true as submitted by learned counsel that the deceased was engaged in a risky venture and his chances of coming by an early death were quite considerable. Perhaps he may have changed occupation along the way. All the same, I find the multiplier of 17 years adopted by the trial court to have been too low as to represent an erroneous estimate and the same is set aside. Taking into account all the relevant factors, I will adopt a multiplier of 26 years.
34. Both learned counsels proposed to the trial court to adopt the Minimum Wage Guidelines in force at the time under the Regulation of Wages (General)(Amendment) Order, 2022 Legal Notice No. 125 of 2022. Their point of departure however was on the applicable scale of income. The respondent proposed KShs 20,517.80 without indicating under what category of worker this income fell. The appellant on her part proposed the basic minimum wage for an unskilled worker in an area other than a city or named municipalities, pointing out that the deceased lived and worked in Timboni area of Watamu and the scale applicable was KShs 8,109.90. The learned trial magistrate adopted a sum of KShs 15,206.65 which appears to have been the minimum wage for a general worker, although the correct figure was KShs 15,201.65 for workers within Nairobi, Mombasa, Kisumu and Nakuru cities. I agree with learned counsel for the appellant that this was erroneous given the evidence of the deceased’s place of work and residence as Timboni in Watamu.
35. It has been argued that the deceased was engaged in an illegal enterprise as he did not have a driving or PSV licence. There was no evidence to support that assertion. PW 1 said that he did not know whether his son had a driving licence. For purposes of civil law that cannot be cause to deny that the deceased was skilled in the trade that he plied. That area of having or lacking a driving or PSV licence is taken care of by the Traffic Act and were he to be alive, perhaps, appropriate sanctions would have been meted out to him if he had been arrested and found. A traffic offence is not a criminal offence per se as would cause one to be said to be engaged in an illegal enterprise that would disentitle him to a remedy. For now, what is important is the undisputed evidence that he was earning an income from the “boda boda” business.
36. However, I am not persuaded by learned counsel for the appellant’s proposition and which was adopted by the trial court that a “boda boda” rider would fall in the same category as an unskilled worker. In as much as the deceased’s category of work is not included in the Minimum Wages Order, I believe a “boda boda” operator would fall in the category of machine attendant or machine assistant, given that he works with a machine, the motor cycle. In that case the minimum wage at the time of his death was KShs 12,995.25 which I would approximate to KShs 13,000/= per month. I am persuaded to follow the reasoning by the High Court in the case of Mogaka v Mayieka & another (Suing as the legal administrators of the Estate of Wyclif Kamanda Onkundi (Deceased)) (Civil Appeal E024 of 2021) [2022] KEHC 14440 (KLR) (11 February 2022) (Judgment) where the High Court observed that a “boda boda” operator cannot be placed in the category as an unskilled worker. He must have basic skills in driving including understanding the Traffic Rules and the Highway Code in order to operate on the road.
37. Consequently, the loss of dependency assessed by the trial court is set aside and substituted with the following:
KShs 13,000/= x 26 x 12 x ½ = KShs 2,028,000/=.
38. The other damages awarded by the trial court have not been challenged and so they remain as such.
39. In the final analysis the award of damages will be as follows:
a. Pain and suffering: KShs 50,000/=
b. Loss of expectation of life: KShs 100,000/=
c. Loss of dependency: KShs 2,028,000/=.
d. Special damages: KShs 111,050/=
Total: KShs 2,289,050/=.
40. Having apportioned liability in the ratio of 70:30 for the appellants against the respondent, the damages assessed above will be subjected to that ratio making the award by this court to be KShs 1,602,335/=.
41. Consequently, the appeal and cross appeal are successful to the extent that the trial court judgment is varied to that extent on assessment of damages for loss of dependency as above.
42. Each party having succeeded in some way to unsettle the judgment of the trial court, it is ordered that each party will bear its own costs of this appeal.
43. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams this 13th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Wambui Ms h/b for Onyango for the Appellant.
Adede for the Respondents.
Ummu: Court Assistant.