Introduction
1. Amos Kokonya Ngutuku was twenty-four years old when he died on the road on 6th July 2022. He was a boda boda rider. He left behind a young widow and a mother, who are the Appellants before me, suing as the legal representatives and Administrators of his estate. The trial Court found the Respondent wholly to blame for his death and awarded the estate and his dependants a total of Kshs. 1,800,000/=. The Appellants say that sum, and in particular the award of Kshs. 1,600,000/= under the head of loss of dependency, is so low as to occasion a miscarriage of justice. That, and that alone, is what this appeal is about.
2. The appeal is brought by a memorandum of appeal dated 25th February 2025 raising three grounds, all of them directed at quantum and, more precisely, at the multiplicand and the multiplier adopted by the learned trial Magistrate in computing the loss of dependency.
Background
3. By a plaint filed on 16th September 2022, the Appellants sued the Respondent in Vihiga Principal Magistrate's Court Civil Case No. E212 of 2022. Their case was that on or about 6th July 2022, along the Luanda– Maseno road at Mwambeba area, the deceased was lawfully riding his motorcycle registration number KMFW 493T towards Majengo when motor vehicle registration number KCS 494T, driven, managed and/or controlled by the Respondent's driver, servant and/or agent, was so negligently, recklessly and carelessly handled that it collided with the deceased from the rear while he was on his own left lane. The deceased sustained fatal injuries.
4. The Appellants sought general damages under the Law Reform Act, Cap. 26, and the Fatal Accidents Act, Cap. 32, special damages of Kshs. 113,550/=, costs and interest at 14% from the date of filing suit until payment in full.
5. The Respondent entered appearance and filed a defence denying every material allegation of fact and pleading, in the alternative, that if any accident occurred at all it was caused or substantially contributed to by the negligence of the deceased rider.
6. The suit went to full hearing. On the question of the deceased's earnings, the evidence tendered by the Appellants consisted mainly of the deceased's driving licence, the insurance sticker for motorcycle registration number KMFW 493T, the Log Book for that motorcycle (which stood in the name of the financier, Watu Credit), and a Watu Credit loan agreement form and delivery note both dated 16th November 2021. That evidence was directed at establishing that the deceased was the beneficial owner of the motorcycle and that he used it to carry pillion passengers for hire in Vihiga town and its environs. Essentially there was no pay slip, book of accounts, or other record of actual earnings ever produced, for the obvious reason that a self-employed boda boda rider ordinarily keeps none.
The Judgment of the Trial Court
7. In her judgment delivered on 23rd January 2025, the learned trial Magistrate found the Respondent 100% liable for the accident and assessed damages as follows:
a. Pain and suffering ……………… Kshs. 100,000/=
b. Loss of expectation of life …….. Kshs. 100,000/=
c. Loss of dependency ……………. Kshs. 1,600,000/=
d. Special damages ……………….. Nil
e. Total ………………………………. Kshs. 1,800,000/=
8. Costs of the suit and interest were awarded to the Appellants. The award under the head of loss of dependency was arrived at by the conventional multiplier method, using a multiplicand of Kshs. 10,000/= per month, a dependency ratio of two-thirds, and a multiplier of 20 years - that is to say, 10,000 x 12 x 2/3 x 20 = Kshs. 1,600,000/=.
The Appeal
9. The three grounds in the memorandum of appeal may be stated shortly. The first is that the learned Magistrate disregarded the Appellants' submissions on quantum and thereby arrived at a grossly low award occasioning a miscarriage of justice. The second is that, having appreciated that the deceased was engaged in the business of carrying pillion passengers in Vihiga town, and having acknowledged the documentary evidence including the log book, she failed to apply the minimum wage applicable to a motorcycle rider operating in Vihiga — a former municipality — and instead “plucked illusionary figures” as the multiplicand. The third is that she applied a multiplier of 20 years in place of 30 years.
10. The prayer is that the appeal be allowed with costs and the award enhanced. I observe, in passing, that the memorandum's concluding prayer speaks of a judgment “dismissing the Appellants' suit.” That is plainly a slip of the pen: the suit succeeded, and the complaint is as to the sufficiency of the award, not its refusal.
The Submissions
11. The appeal was disposed of by way of written submissions in which Mr.
Okumu Learned Counsel, for the Appellants, filed submissions dated 7th April 2026. On the multiplier, he submitted that the deceased was 24 years old and self-employed; that there was no evidence of illness or of an occupation so dangerous as to shorten his life; and that, being in selfemployment, he could well have worked past the retirement age of 60. He relied on Kenya Power & Lighting Company v Pauline Mbulwa Mutisya (suing as the legal representative of the estate of the late Benard Wambua Mutisya) [2019] eKLR, where a multiplier of 30 years was upheld for a deceased aged 24; on Moses Mairua Muchiri v Cyrus Maina Macharia [2016] eKLR, where 25 years was applied to a deceased aged 30; and on Mombasa Maize Millers & another v Joseph Mutuku Mulinge (Makueni Civil Appeal E088 of 2023), where 27 years was adopted for a deceased aged 30. On the multiplicand, he submitted that the figure of Kshs. 10,000/= appeared nowhere in the pleadings, in the documents produced, or in the minimum wage schedule, and was therefore without any basis; that the correct approach, there being no proof of exact earnings, was to apply the minimum wage schedule for the year 2022 applicable to former municipalities; and that, guided by Petronila Muli v Richard Muindi Sari & Catherine Mwende Mwindu [2021] eKLR, a boda boda rider is properly comparable to the fifth category in that schedule (mechanics, laundry operators, light tractor drivers and the like), yielding Kshs. 18,399/=. He accordingly proposed an award under this head of Kshs. 4,562,952/=.
12. Mr. Kairu Learned Counsel, for the Respondent, filed submissions dated 3rd May 2026 through KRK Advocates LLP. His position, in short, is that the multiplicand of Kshs. 10,000/= was itself unproven; that there was no pay slip or other documentation from which net income could be determined; and that where income is not proved the proper course is not to substitute a higher unproven figure but to abandon the multiplier method altogether in favour of a global award. He relied on Albert Odawa v Gichimu Gichenji, Nakuru HCCA No. 15 of 2003 [2007] eKLR; Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi [2020] eKLR; and Mercy Muriuki & another v Samuel Mwangi Nduati [2019] KEHC 9014 (KLR), in which a global sum of Kshs. 1,000,000/= was awarded. He urged that this appeal be dismissed with costs and that a global sum of Kshs. 1,000,000/= be substituted.
13. Further in the supplementary submissions dated 7th May 2026 which were also filed for the Respondent by Kagna & Company. They go considerably further. They invite the Court to find that the trial Court erred in apportioning liability at 100% and to substitute an apportionment of 50:50; to reduce pain and suffering from Kshs. 100,000/= to Kshs. 10,000/=; to reduce loss of expectation of life from Kshs. 100,000/= to Kshs. 50,000/=; and to award Kshs. 900,000/= for loss of dependency.
F. The duty of this Court
14. This is a first appeal. Under Section 78 of the Civil Procedure Act, Cap. 21, and on the authority of Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Kenya Ports Authority v Kuston (Kenya) Ltd. (2009) 2 EA 212, I am under a duty to re-consider and re-evaluate the evidence tendered before the trial Court, to weigh it afresh, and to draw my own conclusions, remembering always that I did not see or hear the witnesses and making due allowance for that disadvantage.
15. That duty is, however, exercised within narrower banks where the only complaint is as to the assessment of damages. Damages are at large and their assessment is a discretionary exercise. The principles restraining appellate interference were settled in Butt v Khan (1977) KAR 1 and, in the fullest terms, by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A. M. Lubia & Olive Lubia (1982–88) 1 KAR 727:
“… the appeal Court must be satisfied either that the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage …”
16. As Lord Wright put it in Davies v Powell Duffryn Associated Collieries Ltd, cited with approval in Moses Mairua Muchiri (supra), it is not enough that there is a balance of opinion or preference; the scale must go down heavily against the figure attacked before an appellate Court will interfere. It is not my function to substitute the award I might have made for that which the trial Court made.
The scope of this appeal
17. Before turning to the merits I must define the boundaries of what is properly before me, because both parties have, in different ways, strayed beyond them.
18. First, as to the Appellants. The memorandum of appeal is confined to quantum, and the submissions filed are confined, in substance, to the single head of loss of dependency. Nothing was urged on the award of Kshs. 100,000/= for pain and suffering, on the award of Kshs. 100,000/= for loss of expectation of life, or on the refusal of the pleaded special damages of Kshs. 113,550/=. Grounds raised but not argued are taken to have been abandoned, and I say nothing further about those heads.
19. Secondly, and more importantly, as to the Respondent. The Respondent has filed no cross-appeal in this appeal and no notice of grounds for affirming the decree. Yet he asks me to reduce the award for pain and suffering, to reduce the award for loss of expectation of life, to substitute a global sum for the loss of dependency, and - in the supplementary submissions - to disturb a finding on liability which no ground of appeal before me touches at all.
20. It is elementary that a Respondent who is content merely to support the decree may do so on any ground, including grounds decided against him below; but a Respondent who wishes the decree varied or reversed in his own favour must cross-appeal. He cannot obtain, by way of submissions in his opponent's appeal, relief he has not asked for by a competent pleading. Were it otherwise, an Appellant would face at the hearing a case he had no notice of and no opportunity to meet.
21. The Respondent is in truth alive to this, because his own Counsel's submissions disclose that he has filed his own appeal against the same judgment, being Vihiga High Court Civil Appeal No. E012 of 2025, and expressly invite this Court to “allow the Respondent's Appeal” in that matter. That invitation is misdirected. Appeal No. E012 of 2025 is a separate proceeding with its own record and its own grounds; it has not been consolidated with this appeal and is not before me. Nothing in this judgment is to be read as determining any question arising in it, and I express no view whatever on its merits.
22. It follows that the Respondent's prayers for a 50:50 apportionment of liability and for the reduction of the awards for pain and suffering and loss of expectation of life cannot be entertained in this appeal. The finding of liability at 100% stands, as do those two heads of general damages. I confine myself, as the Respondent's principal submissions in the main did, to answering the Appellants' complaint about the loss of dependency - and in resisting that complaint the Respondent is of course entitled to argue that the trial Court's figure was, if anything, generous.
Issues for determination
23. The issues, then, are these:
a) Whether the learned trial Magistrate erred in adopting a multiplicand of Kshs. 10,000/= per month;
b) Whether she erred in adopting a multiplier of 20 years;
c) What award, if any, ought to be substituted, and who should bear the costs.
Analysis and Determination
(a) The multiplicand
24. It is common ground and this is the striking feature of the case that there was no proof of the deceased's actual earnings. The Appellants say so in terms in their own submissions: it was “glaring that there was no proof of the exact earnings by the deceased.” The Respondent says the same. Where the parties agree, the Court need not labour the point: no pay slip, no accounts, no record of daily takings was placed before the trial Court.
25. The law is settled that the multiplicand is the deceased's net income, that is, income after statutory deductions: Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja, deceased) v Kiarie Shoe Stores Ltd. [2015] eKLR. But that principle presupposes an ascertainable income. Where none can be ascertained, the Courts have adopted one of two courses. The first is to abandon the multiplier method and make a global award. Ringera J. put it memorably in Albert Odawa v Gichimu Gichenji (supra):
“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 … 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.”
26. The second course is to adopt a reasonable working figure frequently the statutory minimum wage as the multiplicand and to proceed conventionally. Mabeya J. contemplated both in Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi [2020] eKLR, observing that where there is no salary or employment proved, it is advisable to apply either the global sum approach or the minimum wage as the appropriate mode of assessing loss of dependency.
27. In this litigation landscape neither course, it should be noticed, involves the Court inventing an income. What Gammell v Wilson [1981] 1 All ER 578 requires, and what Ringera J. was driving at, is that the Court must avoid the fancies of speculation while still making the best estimate it can on the facts established. A deceased who was demonstrably working and earning is not to be treated as though he earned nothing merely because he kept no ledger.
28. The Appellants' quarrel is not with the method but with the figure. They say Kshs. 10,000/= was plucked from the air and that Kshs. 18,399/= the fifth-category minimum wage for a former municipality under the Regulation of Wages (General) (Amendment) Order for 2022 - ought to have been used instead. I am unable to accept that submission, for four reasons.
29. First, the minimum wage schedule is a floor prescribed for employees. It is a useful judicial yardstick where nothing better exists, but it is not evidence of what this particular deceased in fact earned, and it does not become so merely because it is a published instrument. The Appellants' own authority, Petronila Muli (supra), notes the anomaly that boda boda riders are not classified in the schedule at all; the exercise of finding them a comparable category is an exercise in analogy, not in proof.
30. Secondly, the deceased was self-employed and not an employee. His takings were gross receipts out of which the running costs of the motorcycle - fuel, servicing, tyres - had to be met. More than that, the very documents on which the Appellants rely to establish that he was the beneficial owner of the machine - the Watu Credit loan agreement and delivery note of 16th November 2021, and the log book standing in the financier's name - show that he was, at the date of his death some eight months later, still servicing a credit facility for the motorcycle out of those same takings. Gross earnings and net income are not the same thing, and the multiplicand must be the latter.
31. Thirdly, the Appellants are bound by their own pleadings. On their own account of the record, the plaint pleaded a monthly income far below the figure now contended for. A Plaintiff who pleads one figure, proves none, and then invites the appellate Court to adopt a figure many times higher asks the Court to travel beyond the case he set up for himself.
32. Fourthly, and decisively, the question for me is not whether Kshs. 18,399/= could have been adopted - it could but whether Kshs. 10,000/= was a wholly erroneous estimate. It was not. In the absence of proof, the learned Magistrate did what the authorities permit her to do: she settled upon a modest, sober working figure for the monthly net earnings of a boda boda rider in Vihiga in 2022. That figure is neither fanciful nor mean. It is, if anything, more favourable to the Appellants than the sum they themselves pleaded.
33. For completeness, I decline the Respondent's invitation to abandon the multiplier method in favour of a global award. Where, as here, the deceased's age is known with certainty from the record, where his occupation and its continuity are established, and where a defensible working figure for his earnings can be arrived at, the conventional method remains the more transparent and the more reviewable of the two. The global approach is a remedy for intractable uncertainty, not a general alternative. In any event, and as I have held, the Respondent has no crossappeal that would permit him to have the award reduced.
34. The first ground therefore fails. The multiplicand of Kshs. 10,000/= stands.
(b) The multiplier
35. The multiplier is a different matter altogether, and here I think the Appellants are on solid ground.
36. The deceased was 24 years old. Nothing on the record suggests ill-health. Taking the conventional retirement age of 60 years, he had before him some 36 years of working life. From that figure the Court must discount for the vagaries, vicissitudes and imponderables of life, for the risks peculiar to the occupation, and for the fact that the award is a capital sum paid at once in place of income that would have trickled in over decades. The question is how deep that discount should go.
37. A multiplier of 20 years discounts 16 of the 36 available years - close to half. That is a very severe discount for a man of 24. The comparable decisions cited to me point the other way. In Kenya Power & Lighting Company v Pauline Mbulwa Mutisya [2019] eKLR, Thuranira Jaden J. found a multiplier of 30 years reasonable for a deceased of exactly the same age as this deceased. In Mombasa Maize Millers & another v Joseph Mutuku Mulinge (Makueni Civil Appeal E088 of 2023), Kendagor J., after expressly weighing the vagaries and uncertainties of life and the lump-sum element, settled on 27 years for a deceased aged 30. In Moses Mairua Muchiri (supra), Ngaah J. observed that a multiplier of 25 for a deceased aged 30 would not have been at all unreasonable. The Court in Musili & Another v China Wu Yi Ltd & Another [2017] KEHC eKLR utilized a multiplier of 25 years for a deceased who had died at 32 years. The Court in Peter Ngigi Kuria & Another (suing as the legal representatives of the Estate of Joan Wambui Ngigi) v Thomas Ondili Odoul & Another [2019] KEHC eKLR utilized a multiplier of 30 years for a deceased who died at 29 years.
38. I remind myself that the multiplier is not a mathematical constant and that comparable awards are a guide and not a straitjacket. But when a figure falls this far below the band into which comparable cases fall, and no reason appears on the face of the judgment for placing it there, the conclusion is difficult to resist that a relevant consideration - the deceased's youth - was not given the weight it deserved. That brings the case within the Kemfro principle, and this Court is entitled, indeed obliged, to intervene.
39. What figure should replace it? The Appellants press for 30 years. First, the High Court at various levels and forums have had time to develop principles under the Fatal Accident Act and decision on loss of dependency. The specific parameters involve inter alia the following:
• Multiplier Approach vs. Global Sums: While Courts traditionally use a multiplicand × multiplier × dependency ratio formula, recent jurisprudence shows a shift toward conservative global sums (e.g., Kshs. 2,000,000) when proof of steady income or specific dependency is weak for young unmarried adults.
• Dependency Ratio: For a 24-year-old without a spouse or children who supported a parent or sibling, Courts frequently apply a conservative dependency ratio (such as 1/3 or 2/3 depending on proof of actual financial contribution).
• Multiplier Selection: A younger deceased commands a longer potential working multiplier (often 25 to 30+ years to retirement age), subject to the hazards of life and standard judicial discretion.
• Avoidance of Double Compensation: Awards under the Fatal Accidents Act for dependency must be reconciled with any damages awarded for "lost years" under the Law Reform Act to prevent duplication if the beneficiaries are identical.
40. The anchor on the loss of dependency is Section 4 of the Fatal Accident Act which provides as follows:
Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the Court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the Court by its judgment shall find and direct.
41. This branch of law on assessment of damages in which the tort of negligence arises out of the fatal injuries suffered in a road traffic accident remains to be highly litigated civil dispute in Kenya. The assessment of damages on behalf of the estate of the deceased in a road traffic accident in Kenya is primarily governed by the doctrine of loss to the estate under the provisions of the Fatal Accident Act. The High Court and Court of Appeal in Kenya have established highly structured jurisprudential framework to calculate this limb of damages distinguishing between loss of dependency that is what the dependents have lost and loss to the estate that is what the deceased would have saved or contributed to the estate in general. It is in this scope of law that damages are calculated using a strict mathematical and objective approach under two primary components thus pecuniary and non-pecuniary damages. The bench in the case of Ashish Kumar Singh & Anr vs Rohit Singh & Anr MACT No. 550/2019 observed as follows:
Whereas non-pecuniary damages are which are incapable of being assessed by those calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life
42. In addition, on the same subject matter the Court in National Insurance Company Ltd vs Pranay Sethi & Others (2017 SCC Online SC 1270) it was held as follows regarding the concept of just compensation:
That the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied.
43. Therefore, the action maintainable under the Fatal Accident Act must be contextualized by the Court to bear in mind the basic principles in the pragmatic computation which is in proximity with the reality of the facts of the claim. This is not the claim by the Claimant or for that matter the estate of the deceased to approach the Court for a windfall kind of compensation. The assessment must be tested within the lens fair and proportionate award. In essence the consideration of the age, marital status of the victim of the accident, his/her future or prospects in life, the existence of begotten children and their respective ages and the demands and they place to the estate financially in support of their rights and fundamental freedoms including the basic survival rights is presumed to consume a larger percentage of the income and by the victim who lost his/her life by dint of the accident. That is what give rise to the actual calculation on loss of dependency. In my view assessment of damages is on a case to case basis dependent on particular facts and the evidential material presented by the Claimant. In Gammel vs Wilson (1981) 1ALL ER 578 the Court gave a comprehensive interpretation on the assessment of damages. Thus:
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.
44. From the evidence as adduced before the Trial Court and the guiding principles on the canons of multiplier multiplicand I find no plausible justification as to how the Learned Magistrate arrived at the factorial of 20 years for a young adult of 24 years. In terms of the life expectancy in Kenya the men now live up to the median age 61 to 62 years. The denominator of 20 years accounted for the victim by the Trial Court deprives him almost 18 years under the guise of vagaries and vicissitudes of life. The concept of the "vicissitudes of life" (often referred to as the contingencies or vagaries of life) has been examined by the UK Supreme Court (and its predecessor, the House of Lords) across two completely distinct contexts.
45. The principle under which Trial Courts invokes this concept is based on this definitional dimension which touches on unrelated illness or injury. Thus:
Some people are unfortunate enough to have more than one injury serious enough in their lifetime to need to make a claim for compensation. The vicissitudes discount allows the defendant to only pay damages to the extent that is fair to compensate the Plaintiff for the effects of the accident that the Claimant is liable for, and not for another accident or injury that the defendant didn’t cause.
46. The question is what can be said to be the standard discount as a measure for the vagaries and vicissitudes of life of damages claimed by the victim of the accident.
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1. Amos Kokonya Ngutuku was twenty-four years old when he died on the road on 6th July 2022. He was a boda boda rider. He left behind a young widow and a mother, who are the Appellants before me, suing as the legal representatives and Administrators of his estate. The trial Court found the Respondent wholly to blame for his death and awarded the estate and his dependants a total of Kshs. 1,800,000/=. The Appellants say that sum, and in particular the award of Kshs. 1,600,000/= under the head of loss of dependency, is so low as to occasion a miscarriage of justice. That, and that alone, is what this appeal is about.
2. The appeal is brought by a memorandum of appeal dated 25th February 2025 raising three grounds, all of them directed at quantum and, more precisely, at the multiplicand and the multiplier adopted by the learned trial Magistrate in computing the loss of dependency.
Background
3. By a plaint filed on 16th September 2022, the Appellants sued the Respondent in Vihiga Principal Magistrate's Court Civil Case No. E212 of 2022. Their case was that on or about 6th July 2022, along the Luanda– Maseno road at Mwambeba area, the deceased was lawfully riding his motorcycle registration number KMFW 493T towards Majengo when motor vehicle registration number KCS 494T, driven, managed and/or controlled by the Respondent's driver, servant and/or agent, was so negligently, recklessly and carelessly handled that it collided with the deceased from the rear while he was on his own left lane. The deceased sustained fatal injuries.
4. The Appellants sought general damages under the Law Reform Act, Cap. 26, and the Fatal Accidents Act, Cap. 32, special damages of Kshs. 113,550/=, costs and interest at 14% from the date of filing suit until payment in full.
5. The Respondent entered appearance and filed a defence denying every material allegation of fact and pleading, in the alternative, that if any accident occurred at all it was caused or substantially contributed to by the negligence of the deceased rider.
6. The suit went to full hearing. On the question of the deceased's earnings, the evidence tendered by the Appellants consisted mainly of the deceased's driving licence, the insurance sticker for motorcycle registration number KMFW 493T, the Log Book for that motorcycle (which stood in the name of the financier, Watu Credit), and a Watu Credit loan agreement form and delivery note both dated 16th November 2021. That evidence was directed at establishing that the deceased was the beneficial owner of the motorcycle and that he used it to carry pillion passengers for hire in Vihiga town and its environs. Essentially there was no pay slip, book of accounts, or other record of actual earnings ever produced, for the obvious reason that a self-employed boda boda rider ordinarily keeps none.
The Judgment of the Trial Court
7. In her judgment delivered on 23rd January 2025, the learned trial Magistrate found the Respondent 100% liable for the accident and assessed damages as follows:
a. Pain and suffering ……………… Kshs. 100,000/=
b. Loss of expectation of life …….. Kshs. 100,000/=
c. Loss of dependency ……………. Kshs. 1,600,000/=
d. Special damages ……………….. Nil
e. Total ………………………………. Kshs. 1,800,000/=
8. Costs of the suit and interest were awarded to the Appellants. The award under the head of loss of dependency was arrived at by the conventional multiplier method, using a multiplicand of Kshs. 10,000/= per month, a dependency ratio of two-thirds, and a multiplier of 20 years - that is to say, 10,000 x 12 x 2/3 x 20 = Kshs. 1,600,000/=.
The Appeal
9. The three grounds in the memorandum of appeal may be stated shortly. The first is that the learned Magistrate disregarded the Appellants' submissions on quantum and thereby arrived at a grossly low award occasioning a miscarriage of justice. The second is that, having appreciated that the deceased was engaged in the business of carrying pillion passengers in Vihiga town, and having acknowledged the documentary evidence including the log book, she failed to apply the minimum wage applicable to a motorcycle rider operating in Vihiga — a former municipality — and instead “plucked illusionary figures” as the multiplicand. The third is that she applied a multiplier of 20 years in place of 30 years.
10. The prayer is that the appeal be allowed with costs and the award enhanced. I observe, in passing, that the memorandum's concluding prayer speaks of a judgment “dismissing the Appellants' suit.” That is plainly a slip of the pen: the suit succeeded, and the complaint is as to the sufficiency of the award, not its refusal.
The Submissions
11. The appeal was disposed of by way of written submissions in which Mr.
Okumu Learned Counsel, for the Appellants, filed submissions dated 7th April 2026. On the multiplier, he submitted that the deceased was 24 years old and self-employed; that there was no evidence of illness or of an occupation so dangerous as to shorten his life; and that, being in selfemployment, he could well have worked past the retirement age of 60. He relied on Kenya Power & Lighting Company v Pauline Mbulwa Mutisya (suing as the legal representative of the estate of the late Benard Wambua Mutisya) [2019] eKLR, where a multiplier of 30 years was upheld for a deceased aged 24; on Moses Mairua Muchiri v Cyrus Maina Macharia [2016] eKLR, where 25 years was applied to a deceased aged 30; and on Mombasa Maize Millers & another v Joseph Mutuku Mulinge (Makueni Civil Appeal E088 of 2023), where 27 years was adopted for a deceased aged 30. On the multiplicand, he submitted that the figure of Kshs. 10,000/= appeared nowhere in the pleadings, in the documents produced, or in the minimum wage schedule, and was therefore without any basis; that the correct approach, there being no proof of exact earnings, was to apply the minimum wage schedule for the year 2022 applicable to former municipalities; and that, guided by Petronila Muli v Richard Muindi Sari & Catherine Mwende Mwindu [2021] eKLR, a boda boda rider is properly comparable to the fifth category in that schedule (mechanics, laundry operators, light tractor drivers and the like), yielding Kshs. 18,399/=. He accordingly proposed an award under this head of Kshs. 4,562,952/=.
12. Mr. Kairu Learned Counsel, for the Respondent, filed submissions dated 3rd May 2026 through KRK Advocates LLP. His position, in short, is that the multiplicand of Kshs. 10,000/= was itself unproven; that there was no pay slip or other documentation from which net income could be determined; and that where income is not proved the proper course is not to substitute a higher unproven figure but to abandon the multiplier method altogether in favour of a global award. He relied on Albert Odawa v Gichimu Gichenji, Nakuru HCCA No. 15 of 2003 [2007] eKLR; Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi [2020] eKLR; and Mercy Muriuki & another v Samuel Mwangi Nduati [2019] KEHC 9014 (KLR), in which a global sum of Kshs. 1,000,000/= was awarded. He urged that this appeal be dismissed with costs and that a global sum of Kshs. 1,000,000/= be substituted.
13. Further in the supplementary submissions dated 7th May 2026 which were also filed for the Respondent by Kagna & Company. They go considerably further. They invite the Court to find that the trial Court erred in apportioning liability at 100% and to substitute an apportionment of 50:50; to reduce pain and suffering from Kshs. 100,000/= to Kshs. 10,000/=; to reduce loss of expectation of life from Kshs. 100,000/= to Kshs. 50,000/=; and to award Kshs. 900,000/= for loss of dependency.
F. The duty of this Court
14. This is a first appeal. Under Section 78 of the Civil Procedure Act, Cap. 21, and on the authority of Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Kenya Ports Authority v Kuston (Kenya) Ltd. (2009) 2 EA 212, I am under a duty to re-consider and re-evaluate the evidence tendered before the trial Court, to weigh it afresh, and to draw my own conclusions, remembering always that I did not see or hear the witnesses and making due allowance for that disadvantage.
15. That duty is, however, exercised within narrower banks where the only complaint is as to the assessment of damages. Damages are at large and their assessment is a discretionary exercise. The principles restraining appellate interference were settled in Butt v Khan (1977) KAR 1 and, in the fullest terms, by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A. M. Lubia & Olive Lubia (1982–88) 1 KAR 727:
“… the appeal Court must be satisfied either that the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage …”
16. As Lord Wright put it in Davies v Powell Duffryn Associated Collieries Ltd, cited with approval in Moses Mairua Muchiri (supra), it is not enough that there is a balance of opinion or preference; the scale must go down heavily against the figure attacked before an appellate Court will interfere. It is not my function to substitute the award I might have made for that which the trial Court made.
The scope of this appeal
17. Before turning to the merits I must define the boundaries of what is properly before me, because both parties have, in different ways, strayed beyond them.
18. First, as to the Appellants. The memorandum of appeal is confined to quantum, and the submissions filed are confined, in substance, to the single head of loss of dependency. Nothing was urged on the award of Kshs. 100,000/= for pain and suffering, on the award of Kshs. 100,000/= for loss of expectation of life, or on the refusal of the pleaded special damages of Kshs. 113,550/=. Grounds raised but not argued are taken to have been abandoned, and I say nothing further about those heads.
19. Secondly, and more importantly, as to the Respondent. The Respondent has filed no cross-appeal in this appeal and no notice of grounds for affirming the decree. Yet he asks me to reduce the award for pain and suffering, to reduce the award for loss of expectation of life, to substitute a global sum for the loss of dependency, and - in the supplementary submissions - to disturb a finding on liability which no ground of appeal before me touches at all.
20. It is elementary that a Respondent who is content merely to support the decree may do so on any ground, including grounds decided against him below; but a Respondent who wishes the decree varied or reversed in his own favour must cross-appeal. He cannot obtain, by way of submissions in his opponent's appeal, relief he has not asked for by a competent pleading. Were it otherwise, an Appellant would face at the hearing a case he had no notice of and no opportunity to meet.
21. The Respondent is in truth alive to this, because his own Counsel's submissions disclose that he has filed his own appeal against the same judgment, being Vihiga High Court Civil Appeal No. E012 of 2025, and expressly invite this Court to “allow the Respondent's Appeal” in that matter. That invitation is misdirected. Appeal No. E012 of 2025 is a separate proceeding with its own record and its own grounds; it has not been consolidated with this appeal and is not before me. Nothing in this judgment is to be read as determining any question arising in it, and I express no view whatever on its merits.
22. It follows that the Respondent's prayers for a 50:50 apportionment of liability and for the reduction of the awards for pain and suffering and loss of expectation of life cannot be entertained in this appeal. The finding of liability at 100% stands, as do those two heads of general damages. I confine myself, as the Respondent's principal submissions in the main did, to answering the Appellants' complaint about the loss of dependency - and in resisting that complaint the Respondent is of course entitled to argue that the trial Court's figure was, if anything, generous.
Issues for determination
23. The issues, then, are these:
a) Whether the learned trial Magistrate erred in adopting a multiplicand of Kshs. 10,000/= per month;
b) Whether she erred in adopting a multiplier of 20 years;
c) What award, if any, ought to be substituted, and who should bear the costs.
Analysis and Determination
(a) The multiplicand
24. It is common ground and this is the striking feature of the case that there was no proof of the deceased's actual earnings. The Appellants say so in terms in their own submissions: it was “glaring that there was no proof of the exact earnings by the deceased.” The Respondent says the same. Where the parties agree, the Court need not labour the point: no pay slip, no accounts, no record of daily takings was placed before the trial Court.
25. The law is settled that the multiplicand is the deceased's net income, that is, income after statutory deductions: Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja, deceased) v Kiarie Shoe Stores Ltd. [2015] eKLR. But that principle presupposes an ascertainable income. Where none can be ascertained, the Courts have adopted one of two courses. The first is to abandon the multiplier method and make a global award. Ringera J. put it memorably in Albert Odawa v Gichimu Gichenji (supra):
“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 … 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.”
26. The second course is to adopt a reasonable working figure frequently the statutory minimum wage as the multiplicand and to proceed conventionally. Mabeya J. contemplated both in Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi [2020] eKLR, observing that where there is no salary or employment proved, it is advisable to apply either the global sum approach or the minimum wage as the appropriate mode of assessing loss of dependency.
27. In this litigation landscape neither course, it should be noticed, involves the Court inventing an income. What Gammell v Wilson [1981] 1 All ER 578 requires, and what Ringera J. was driving at, is that the Court must avoid the fancies of speculation while still making the best estimate it can on the facts established. A deceased who was demonstrably working and earning is not to be treated as though he earned nothing merely because he kept no ledger.
28. The Appellants' quarrel is not with the method but with the figure. They say Kshs. 10,000/= was plucked from the air and that Kshs. 18,399/= the fifth-category minimum wage for a former municipality under the Regulation of Wages (General) (Amendment) Order for 2022 - ought to have been used instead. I am unable to accept that submission, for four reasons.
29. First, the minimum wage schedule is a floor prescribed for employees. It is a useful judicial yardstick where nothing better exists, but it is not evidence of what this particular deceased in fact earned, and it does not become so merely because it is a published instrument. The Appellants' own authority, Petronila Muli (supra), notes the anomaly that boda boda riders are not classified in the schedule at all; the exercise of finding them a comparable category is an exercise in analogy, not in proof.
30. Secondly, the deceased was self-employed and not an employee. His takings were gross receipts out of which the running costs of the motorcycle - fuel, servicing, tyres - had to be met. More than that, the very documents on which the Appellants rely to establish that he was the beneficial owner of the machine - the Watu Credit loan agreement and delivery note of 16th November 2021, and the log book standing in the financier's name - show that he was, at the date of his death some eight months later, still servicing a credit facility for the motorcycle out of those same takings. Gross earnings and net income are not the same thing, and the multiplicand must be the latter.
31. Thirdly, the Appellants are bound by their own pleadings. On their own account of the record, the plaint pleaded a monthly income far below the figure now contended for. A Plaintiff who pleads one figure, proves none, and then invites the appellate Court to adopt a figure many times higher asks the Court to travel beyond the case he set up for himself.
32. Fourthly, and decisively, the question for me is not whether Kshs. 18,399/= could have been adopted - it could but whether Kshs. 10,000/= was a wholly erroneous estimate. It was not. In the absence of proof, the learned Magistrate did what the authorities permit her to do: she settled upon a modest, sober working figure for the monthly net earnings of a boda boda rider in Vihiga in 2022. That figure is neither fanciful nor mean. It is, if anything, more favourable to the Appellants than the sum they themselves pleaded.
33. For completeness, I decline the Respondent's invitation to abandon the multiplier method in favour of a global award. Where, as here, the deceased's age is known with certainty from the record, where his occupation and its continuity are established, and where a defensible working figure for his earnings can be arrived at, the conventional method remains the more transparent and the more reviewable of the two. The global approach is a remedy for intractable uncertainty, not a general alternative. In any event, and as I have held, the Respondent has no crossappeal that would permit him to have the award reduced.
34. The first ground therefore fails. The multiplicand of Kshs. 10,000/= stands.
(b) The multiplier
35. The multiplier is a different matter altogether, and here I think the Appellants are on solid ground.
36. The deceased was 24 years old. Nothing on the record suggests ill-health. Taking the conventional retirement age of 60 years, he had before him some 36 years of working life. From that figure the Court must discount for the vagaries, vicissitudes and imponderables of life, for the risks peculiar to the occupation, and for the fact that the award is a capital sum paid at once in place of income that would have trickled in over decades. The question is how deep that discount should go.
37. A multiplier of 20 years discounts 16 of the 36 available years - close to half. That is a very severe discount for a man of 24. The comparable decisions cited to me point the other way. In Kenya Power & Lighting Company v Pauline Mbulwa Mutisya [2019] eKLR, Thuranira Jaden J. found a multiplier of 30 years reasonable for a deceased of exactly the same age as this deceased. In Mombasa Maize Millers & another v Joseph Mutuku Mulinge (Makueni Civil Appeal E088 of 2023), Kendagor J., after expressly weighing the vagaries and uncertainties of life and the lump-sum element, settled on 27 years for a deceased aged 30. In Moses Mairua Muchiri (supra), Ngaah J. observed that a multiplier of 25 for a deceased aged 30 would not have been at all unreasonable. The Court in Musili & Another v China Wu Yi Ltd & Another [2017] KEHC eKLR utilized a multiplier of 25 years for a deceased who had died at 32 years. The Court in Peter Ngigi Kuria & Another (suing as the legal representatives of the Estate of Joan Wambui Ngigi) v Thomas Ondili Odoul & Another [2019] KEHC eKLR utilized a multiplier of 30 years for a deceased who died at 29 years.
38. I remind myself that the multiplier is not a mathematical constant and that comparable awards are a guide and not a straitjacket. But when a figure falls this far below the band into which comparable cases fall, and no reason appears on the face of the judgment for placing it there, the conclusion is difficult to resist that a relevant consideration - the deceased's youth - was not given the weight it deserved. That brings the case within the Kemfro principle, and this Court is entitled, indeed obliged, to intervene.
39. What figure should replace it? The Appellants press for 30 years. First, the High Court at various levels and forums have had time to develop principles under the Fatal Accident Act and decision on loss of dependency. The specific parameters involve inter alia the following:
• Multiplier Approach vs. Global Sums: While Courts traditionally use a multiplicand × multiplier × dependency ratio formula, recent jurisprudence shows a shift toward conservative global sums (e.g., Kshs. 2,000,000) when proof of steady income or specific dependency is weak for young unmarried adults.
• Dependency Ratio: For a 24-year-old without a spouse or children who supported a parent or sibling, Courts frequently apply a conservative dependency ratio (such as 1/3 or 2/3 depending on proof of actual financial contribution).
• Multiplier Selection: A younger deceased commands a longer potential working multiplier (often 25 to 30+ years to retirement age), subject to the hazards of life and standard judicial discretion.
• Avoidance of Double Compensation: Awards under the Fatal Accidents Act for dependency must be reconciled with any damages awarded for "lost years" under the Law Reform Act to prevent duplication if the beneficiaries are identical.
40. The anchor on the loss of dependency is Section 4 of the Fatal Accident Act which provides as follows:
Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the Court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the Court by its judgment shall find and direct.
41. This branch of law on assessment of damages in which the tort of negligence arises out of the fatal injuries suffered in a road traffic accident remains to be highly litigated civil dispute in Kenya. The assessment of damages on behalf of the estate of the deceased in a road traffic accident in Kenya is primarily governed by the doctrine of loss to the estate under the provisions of the Fatal Accident Act. The High Court and Court of Appeal in Kenya have established highly structured jurisprudential framework to calculate this limb of damages distinguishing between loss of dependency that is what the dependents have lost and loss to the estate that is what the deceased would have saved or contributed to the estate in general. It is in this scope of law that damages are calculated using a strict mathematical and objective approach under two primary components thus pecuniary and non-pecuniary damages. The bench in the case of Ashish Kumar Singh & Anr vs Rohit Singh & Anr MACT No. 550/2019 observed as follows:
Whereas non-pecuniary damages are which are incapable of being assessed by those calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life
42. In addition, on the same subject matter the Court in National Insurance Company Ltd vs Pranay Sethi & Others (2017 SCC Online SC 1270) it was held as follows regarding the concept of just compensation:
That the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied.
43. Therefore, the action maintainable under the Fatal Accident Act must be contextualized by the Court to bear in mind the basic principles in the pragmatic computation which is in proximity with the reality of the facts of the claim. This is not the claim by the Claimant or for that matter the estate of the deceased to approach the Court for a windfall kind of compensation. The assessment must be tested within the lens fair and proportionate award. In essence the consideration of the age, marital status of the victim of the accident, his/her future or prospects in life, the existence of begotten children and their respective ages and the demands and they place to the estate financially in support of their rights and fundamental freedoms including the basic survival rights is presumed to consume a larger percentage of the income and by the victim who lost his/her life by dint of the accident. That is what give rise to the actual calculation on loss of dependency. In my view assessment of damages is on a case to case basis dependent on particular facts and the evidential material presented by the Claimant. In Gammel vs Wilson (1981) 1ALL ER 578 the Court gave a comprehensive interpretation on the assessment of damages. Thus:
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.
44. From the evidence as adduced before the Trial Court and the guiding principles on the canons of multiplier multiplicand I find no plausible justification as to how the Learned Magistrate arrived at the factorial of 20 years for a young adult of 24 years. In terms of the life expectancy in Kenya the men now live up to the median age 61 to 62 years. The denominator of 20 years accounted for the victim by the Trial Court deprives him almost 18 years under the guise of vagaries and vicissitudes of life. The concept of the "vicissitudes of life" (often referred to as the contingencies or vagaries of life) has been examined by the UK Supreme Court (and its predecessor, the House of Lords) across two completely distinct contexts.
45. The principle under which Trial Courts invokes this concept is based on this definitional dimension which touches on unrelated illness or injury. Thus:
Some people are unfortunate enough to have more than one injury serious enough in their lifetime to need to make a claim for compensation. The vicissitudes discount allows the defendant to only pay damages to the extent that is fair to compensate the Plaintiff for the effects of the accident that the Claimant is liable for, and not for another accident or injury that the defendant didn’t cause.
46. The question is what can be said to be the standard discount as a measure for the vagaries and vicissitudes of life of damages claimed by the victim of the accident.
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