REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E151 OF 2024
SOW CONSTRUCTION ENGINEERING LIMITED ….…..APPELLANT
VERSUS
LILIAN NAMALWA (Suing as personal Representatives of the
Estate of JOB SHIKUKU WANYONYI ……………….…....RESPONDENT
(Being an appeal from the Judgement and Decree of the Senior Principal Magistrate’s Court in Kimilili Civil Case No. E076 of 2022 delivered by Hon. G. Adhiambo (SPM) on 19th September 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Senior Principal Magistrate’s Court in Kimilili Civil Case No. E076 of 2022 delivered by Hon. G. Adhiambo (SPM) on 19th September 2024, on strictly quantum of damages-under loss of dependency. In the said case, the Respondent had sued the Appellant seeking recovery of general and special damages arising from a road accident that occurred on 14th March 2021, in which Job SHIKUKU WANYONYI sustained fatal injuries that led to his death.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 4th May 2022, the Respondent averred that on or about 14th March 2021, the deceased was lawfully pedestrian along Webuye-Kitale road when at Kamukuywa Bridge, the Appellant’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBT 170 T Nissan in such a reckless, negligent and careless manner resulting into an accident, which led to the deceased herein sustaining fatal injuries.
5. The Appellant in his Statement of Defence dated 14th July 2022, denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondent’s negligence solely or substantially.
D. EVIDENCE
6. PW1, Lilian Namalwa Barasa, testified that she was the widow of the deceased herein and adopted her recorded statement dated 18th April 2022, as her evidence in chief. According to her, she did not witness the accident and that the death of the death made her to incur several funeral expenses. She told the Court that the deceased was a conductor earning Kshs. 800-1500/= per day and been the sole bread winner he supported her and their two (2) children. She availed in Court the receipt for the postmortem and Grant ad litem, as PEXH 7 (b) and 7 (c) respectively. She also told the Court that the deceased died at the age of 27 years.
7. Upon hearing the parties, the trial Court entered judgment for the Respondent on 19th September 2024. He apportioned liability at 90% as against the Appellant and 10% as against the Respondent. The trial Court awarded the Respondent general damages and special damages in the sum of Kshs. 3, 813,756.40/= of decducting 105 contributory negligence, plus costs and interest
THE APPEAL
8. The Appellant seeks to overturn the judgment on strictly quantum-under loss of dependency as per the preferred grounds of appeal.
9. The Appellant prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that this Honourable Court be pleased to make any or further orders as may be just and expedient in the circumstances.
10. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
E. ANALYSIS AND DETERMINATION
11. With regards to quantum, the Appellant contends the award made under the heading of loss of dependency was not justified. A Court is supposed to give a reasonable award which is neither extravagant nor oppressive as it is guided by factors such as previous awards for similar injuries and the principles that have been developed by the Courts over the years. What constitutes a reasonable award is really an exercise of the Courts discretion and will depend on the peculiar facts of each case.
12. As has been held in various decisions, an appellate Court must be slow to interfere with the exercise of discretion of a lower Court. This principle was affirmed by the Court of Appeal in Kemfro Africa Ltd -Vs- A.M. Lubia and Another (1988) KAR 722 where it expressed itself thus;
“The Principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. The same position was taken in Denshire Muteti Wambur V. KPLC (2013) eKLR.”
13. As regards an award under loss of dependency, the Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
14. Guided by the above principles, the Court will go ahead to consider the grounds of appeal on damages awarded under loss of dependency.
15. Dependency: The Appellant did not fault the trial Court for applying a dependency ratio of 2/3. PW1 testified that the deceased was married with two children. The Respondent availed the birth certificates of the children in Court as PEXH 4 (a) and 4 (b). It is my view that that was sufficient evidence to confirm that deceased was a married man with two children. The deceased was the only bread winner and, in my view, the dependency ratio was properly found to be 2/3.
16. In W.N. -V- Kassam Hauliers Ltd (2020) eKLR the Court said
“Conventionally Courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ration of 2/3 on the other hand, they have taken unmarried people to spend more on themselves more than their dependents more so parents hence have apportioned a dependency ration of 1/3 which has over time been enhanced to 1/2.”
17. Multiplier: The deceased was aged twenty-seven (27) years old and the Court applied a multiplier of thirty-three (33) years. Been a conductor as per the evidence of PW1, the deceased may have worked even until sixty-five (65) years. However, taking into account the vicissitudes and vagaries of life the trial Court used a multiplier of 33 meaning he could have worked till fifty (50) years. In CA.174/2022 General Cargo (Transport) Limited VS Njira Chitumbo Ndeme suing as administrator of the estate of Mwondingo Mkama Bafa (deceased) the deceased was aged twenty-seven (27) and the Court found a multiplier of 30 years to be a reasonable award. In my view a multiplier of thirty-three (33) years was not unreasonable.
18. Multiplicand: The Appellant faults the trial Court for applying a multiplier-multiplicand method and the erroneous use of Kshs. 15,201/= as minimum wage/income of the deceased contrary to what The Regulation of Wages (General) (Amendment) Order, 2021 provides for general labourer. The Appellant argues that the trial magistrate erred in awarding the Respondent Kshs. 4,013,064/= calculated as (income of ksh. 15,201/= per month, multiplied by 12 months in a year by 33 years (expected working life) by 2/3 been the dependency ratio). The Appellant argues that the trial Court did not give reasons for adopting the approach she adopted and she also failed to provide reasons for rejecting the invitation for lump sum award of Kshs. 1,000,000/= submitted by the Appellant.
19. The Respondent contending with the Appellant’s arguments submitted that the deceased herein the accident involving the deceased occurred in the year 202l and the applicable regulations is The Regulation of wages (General Amendments) 2021 and not Regulation of wages (General Amendment)2018 as suggested by the Appellant.
20. The deceased died while lawfully walking. According to PW1 the deceased would earn between 500-1500/= daily but she was not certain on the exact amount. The trial Court highlighted the inconsistencies in her evidence on the deceased persons earnings and termed the same as mere allegations as there was no evidence to prove that he worked as a conductor and his earnings. The attempt by PW1 to produce an employment letter were contested by the Appellant. The trial Court proceeded to apply the Regulation of wages (General Amendments) 2021 to determine the wages of a general labourer.
21. This Court has not been given any reason to doubt that the deceased worked as a conductor and the only issue for contention is the deceased’s earnings.
22. At this juncture, it is imperative for this Court to note that in the year 2020, Kenya’s minimum wage was increased to Kshs. 13,572/=, a 12% increment from the previous cap, to combat inflation rates while improving the welfare of impacted employees. In the year 2022, the Government announced a 5% increase, raising the minimum wage to Kshs. 14,000/=, after stagnant rates in 2021 due to economic disruptions from COVID-19 pandemic on businesses. This simply means that if a casual laborer, like the deceased herein, died in Kenya in the year 2021, the applicable minimum wage order for calculating compensation would typically be the Regulation of Wages (General) (Amendment) Order 2021.
23. The trial court relied on the Regulation of wages (General) (Amendment) Order, 2021. I have no reason to fault the trial court on the adoption of this multiplicand.
24. The Appellant did not impugn the award on pain and suffering, loss of expectation to life and special damages.
F. CONCLUSION
25. On the balance this appeal is devoid of merit and I therefore dismiss it with costs to the respondent.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 25th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Kurgut for the Appellant
Onyando for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E151 OF 2024
SOW CONSTRUCTION ENGINEERING LIMITED ….…..APPELLANT
VERSUS
LILIAN NAMALWA (Suing as personal Representatives of the
Estate of JOB SHIKUKU WANYONYI ……………….…....RESPONDENT
(Being an appeal from the Judgement and Decree of the Senior Principal Magistrate’s Court in Kimilili Civil Case No. E076 of 2022 delivered by Hon. G. Adhiambo (SPM) on 19th September 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Senior Principal Magistrate’s Court in Kimilili Civil Case No. E076 of 2022 delivered by Hon. G. Adhiambo (SPM) on 19th September 2024, on strictly quantum of damages-under loss of dependency. In the said case, the Respondent had sued the Appellant seeking recovery of general and special damages arising from a road accident that occurred on 14th March 2021, in which Job SHIKUKU WANYONYI sustained fatal injuries that led to his death.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 4th May 2022, the Respondent averred that on or about 14th March 2021, the deceased was lawfully pedestrian along Webuye-Kitale road when at Kamukuywa Bridge, the Appellant’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBT 170 T Nissan in such a reckless, negligent and careless manner resulting into an accident, which led to the deceased herein sustaining fatal injuries.
5. The Appellant in his Statement of Defence dated 14th July 2022, denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondent’s negligence solely or substantially.
D. EVIDENCE
6. PW1, Lilian Namalwa Barasa, testified that she was the widow of the deceased herein and adopted her recorded statement dated 18th April 2022, as her evidence in chief. According to her, she did not witness the accident and that the death of the death made her to incur several funeral expenses. She told the Court that the deceased was a conductor earning Kshs. 800-1500/= per day and been the sole bread winner he supported her and their two (2) children. She availed in Court the receipt for the postmortem and Grant ad litem, as PEXH 7 (b) and 7 (c) respectively. She also told the Court that the deceased died at the age of 27 years.
7. Upon hearing the parties, the trial Court entered judgment for the Respondent on 19th September 2024. He apportioned liability at 90% as against the Appellant and 10% as against the Respondent. The trial Court awarded the Respondent general damages and special damages in the sum of Kshs. 3, 813,756.40/= of decducting 105 contributory negligence, plus costs and interest
THE APPEAL
8. The Appellant seeks to overturn the judgment on strictly quantum-under loss of dependency as per the preferred grounds of appeal.
9. The Appellant prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that this Honourable Court be pleased to make any or further orders as may be just and expedient in the circumstances.
10. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
E. ANALYSIS AND DETERMINATION
11. With regards to quantum, the Appellant contends the award made under the heading of loss of dependency was not justified. A Court is supposed to give a reasonable award which is neither extravagant nor oppressive as it is guided by factors such as previous awards for similar injuries and the principles that have been developed by the Courts over the years. What constitutes a reasonable award is really an exercise of the Courts discretion and will depend on the peculiar facts of each case.
12. As has been held in various decisions, an appellate Court must be slow to interfere with the exercise of discretion of a lower Court. This principle was affirmed by the Court of Appeal in Kemfro Africa Ltd -Vs- A.M. Lubia and Another (1988) KAR 722 where it expressed itself thus;
“The Principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. The same position was taken in Denshire Muteti Wambur V. KPLC (2013) eKLR.”
13. As regards an award under loss of dependency, the Court of Appeal in considering the law on assessment of damages under the Fatal Accidents Act in the case of Chunibhai, J. Patel and Another -vs- P. F. Hayes and Others [1957] EA 748, 749 stated as follows:
“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.”
14. Guided by the above principles, the Court will go ahead to consider the grounds of appeal on damages awarded under loss of dependency.
15. Dependency: The Appellant did not fault the trial Court for applying a dependency ratio of 2/3. PW1 testified that the deceased was married with two children. The Respondent availed the birth certificates of the children in Court as PEXH 4 (a) and 4 (b). It is my view that that was sufficient evidence to confirm that deceased was a married man with two children. The deceased was the only bread winner and, in my view, the dependency ratio was properly found to be 2/3.
16. In W.N. -V- Kassam Hauliers Ltd (2020) eKLR the Court said
“Conventionally Courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ration of 2/3 on the other hand, they have taken unmarried people to spend more on themselves more than their dependents more so parents hence have apportioned a dependency ration of 1/3 which has over time been enhanced to 1/2.”
17. Multiplier: The deceased was aged twenty-seven (27) years old and the Court applied a multiplier of thirty-three (33) years. Been a conductor as per the evidence of PW1, the deceased may have worked even until sixty-five (65) years. However, taking into account the vicissitudes and vagaries of life the trial Court used a multiplier of 33 meaning he could have worked till fifty (50) years. In CA.174/2022 General Cargo (Transport) Limited VS Njira Chitumbo Ndeme suing as administrator of the estate of Mwondingo Mkama Bafa (deceased) the deceased was aged twenty-seven (27) and the Court found a multiplier of 30 years to be a reasonable award. In my view a multiplier of thirty-three (33) years was not unreasonable.
18. Multiplicand: The Appellant faults the trial Court for applying a multiplier-multiplicand method and the erroneous use of Kshs. 15,201/= as minimum wage/income of the deceased contrary to what The Regulation of Wages (General) (Amendment) Order, 2021 provides for general labourer. The Appellant argues that the trial magistrate erred in awarding the Respondent Kshs. 4,013,064/= calculated as (income of ksh. 15,201/= per month, multiplied by 12 months in a year by 33 years (expected working life) by 2/3 been the dependency ratio). The Appellant argues that the trial Court did not give reasons for adopting the approach she adopted and she also failed to provide reasons for rejecting the invitation for lump sum award of Kshs. 1,000,000/= submitted by the Appellant.
19. The Respondent contending with the Appellant’s arguments submitted that the deceased herein the accident involving the deceased occurred in the year 202l and the applicable regulations is The Regulation of wages (General Amendments) 2021 and not Regulation of wages (General Amendment)2018 as suggested by the Appellant.
20. The deceased died while lawfully walking. According to PW1 the deceased would earn between 500-1500/= daily but she was not certain on the exact amount. The trial Court highlighted the inconsistencies in her evidence on the deceased persons earnings and termed the same as mere allegations as there was no evidence to prove that he worked as a conductor and his earnings. The attempt by PW1 to produce an employment letter were contested by the Appellant. The trial Court proceeded to apply the Regulation of wages (General Amendments) 2021 to determine the wages of a general labourer.
21. This Court has not been given any reason to doubt that the deceased worked as a conductor and the only issue for contention is the deceased’s earnings.
22. At this juncture, it is imperative for this Court to note that in the year 2020, Kenya’s minimum wage was increased to Kshs. 13,572/=, a 12% increment from the previous cap, to combat inflation rates while improving the welfare of impacted employees. In the year 2022, the Government announced a 5% increase, raising the minimum wage to Kshs. 14,000/=, after stagnant rates in 2021 due to economic disruptions from COVID-19 pandemic on businesses. This simply means that if a casual laborer, like the deceased herein, died in Kenya in the year 2021, the applicable minimum wage order for calculating compensation would typically be the Regulation of Wages (General) (Amendment) Order 2021.
23. The trial court relied on the Regulation of wages (General) (Amendment) Order, 2021. I have no reason to fault the trial court on the adoption of this multiplicand.
24. The Appellant did not impugn the award on pain and suffering, loss of expectation to life and special damages.
F. CONCLUSION
25. On the balance this appeal is devoid of merit and I therefore dismiss it with costs to the respondent.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 25th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Kurgut for the Appellant
Onyando for the Respondent
Peter Machoni – Court Assistant