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.
11. The subject matter of this appeal transcends two Appellants meaning that there is also a cross appeal from one Hardley Malema Mulekawi who being aggrieved by the said decision on 23rd January 2025 filed a memorandum of appeal dated 20th February 2025. He relied on the following grounds of appeal in which he stated as follows:
a. THAT the Learned Trial Magistrate's exercise of discretion in assessment of quantum, especially on the limb of loss of dependency and on pain and suffering was injudicious.
b. THAT the Learned Trial Magistrate erred in law and in fact in awarding loss of dependency of Kshs 1,600,000/= yet there was no proof of income of the deceased.
c. THAT the Learned Trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Defendant's submissions that were guiding in the amount of quantum that was appropriate and applicable in similar cases as the case she was deciding.
12. The Appellant in the cross appeal filed submissions in which he contended as follows: He argued that the income of Kshs 10,000/= that was adopted by the Trial Court was not proven by the Respondents and no documentation was presented before the court to show that the deceased was indeed taking home Kshs 10,000/=. It was his contention that there being no proof of income produced, then the court should have applied a global sum award as opposed to applying the multiplier method. In this regard, he relied on the case of Albert Odawa vs Gichimu Githenji [2007] eKLR where it was held that the multiplier approach was just a method of assessing damages and was not a principle of law or dogma and could be abandoned where the facts do not facilitate its application.
13. He further placed reliance on the cases of Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (Suing as Administrators andpersonal Representative of Antony Mwiti Gakungu (Deceased) [2020] eKLR and Mercy Muriuki & Another vs Samuel Mwangi Nduati &
Another (Suing as the Legal Administrators of the Estate of the Late Robert Mwangi) [2019] KEHC 9014 (KLR) where the common thread therein was that the courts gave a global award having found that there was no proof on income. He urged the court to dismiss the Trial Court's award as the court applied wrong principles in arriving at loss of dependency. He proposed that a global award of Kshs 1,000,000/= would be sufficient compensation in the circumstances of this case.
The Submissions
14. 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/=.
15. 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.
16. 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
17. 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.
18. 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 …”
19. 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
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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
26. The issues, then, are these:
a) Whether the learned trial Magistrate erred in adopting a multiplicand of Kshs. 10,000/= per month;
b) Whether the issues raised in the cross appeal are capable of finding favour in this appeal;
c) Whether she erred in adopting a multiplier of 20 years;
d) What award, if any, ought to be substituted, and who should bear the costs.
Analysis and Determination
27. The Court is vest with the question of assessing damages under the Fatal Accident Act which is the anchor Statute. Assessing damages under the Fatal Accidents Act involves calculating the financial loss suffered by dependents after a person’s death, a process complicated by the need to determine uncertain variables like future income, dependency ratios, and multipliers. The core complexities in assessment of damages under the Fatal Accident Act revolves under the following factors:
• Determining the Multiplicand (Income): Establishing the deceased's true earnings is difficult when the victim is self-employed, works in the informal sector, or is a minor with no employment history. Courts often resort to applying a baseline minimum wage or conservative estimates, which can be speculative.
• Choosing the Multiplier (Number of Years): The multiplier represents the expected working lifespan remaining. Judges must weigh the age of the deceased against the uncertainties, vicissitudes, and vagaries of life (such as illness, early retirement, or job loss).
• Setting the Dependency Ratio: Deciding the exact fraction of the deceased’s income spent on the dependents (e.g., 1/3, 1/2, or 2/3) requires clear evidence of family size and actual financial reliance.
• Overlapping Claims (Law Reform Act vs. Fatal Accidents Act): Courts must avoid "double compensation" when claims are brought under both the Law Reform Act (for the estate's benefit) and the Fatal Accidents Act (for the dependents' loss of dependency), leading to traditional legal deductions or balancing acts
28. The issue for this court to grapple with in this appeal is whether the multiplier for future loss in fatal claims should be calculated from the date of death or date of trial. If the answer was to be the date of trial this gave rise to a subsidiary issue of whether it was open to, or proper for, the Court to depart from the approach laid down by Lord Diplock and Lord Fraser of Tullybelton in Cookson and by Lord Bridge of Harwich in Graham or whether any defect in the present law is one which should be left to Parliament to cure. There has been a long standing argument in fata accidents claims as to which of the two dates should carry more weight in terms of assessing damages in favour of the Claimant. On the part of Lord Diplock he explained himself as follows: that calculating damages for loss of dependency upon the deceased from the date of death, rather than from the date of trial, means that the claimant is suffering a discount for early receipt of the money when in fact that money will not be received until after trial.
29. From the outset, the extreme difficulty in fixing the amount of damages was recognized and it was felt that the courts would be "very much at sea until by a long course of decisions some settled principles can be established. Today, although the basic principles on which damage awards are made are defined and comparatively easy to state, their application with consistency remains most difficult. Whether the claim arises out of personal injury or death, damage assessment is "one of the most difficult tasks which a Judge or Magistrate has to perform because the elements which must be considered in any given case vary so infinitely from other cases that there can be no fixed and unalterable standard for assessing the amounts for those particular elements. The result must always be an element of the arbitrary in any award and the award in part must be a matter of estimate and even speculation or conjecture. (See the principles in Armsworth v S.E Rly. Co (1847), 11 Jur 758, per Parke B. at 760 and Bird v Cocking & Sons Ltd, [1951] 2 T.L.R. 1260, per Birkett L.J. at p. 1263).
30. One of the issues to bear in mind within our legal system as Courts navigate the assessment of damages landscape which are meant to compensate the victims of a road traffic accident for either injuries suffered or the act of death as a result of that accident is that compensation cannot be perfect but the law looks upon the Judges and Magistrates to ensure that assessment damages must be fair. This does resonate well with the general rule that money would never constitute restitutio in integrum to sufficiently and adequately to restore the harm caused to the estate of the deceased or the injured party generally referred as the victim of the accident by the wrongdoer. This appeal and cross appeal does present the overall picture as to the complexity involved on the capability of accurate proof and exact assessment in which both the claimant and the Defendant would echo the words at the end of the judgment that justice has been done.
31. I find it perplexing in looking at the past awards as one of the principles to take into account particularly to the injured victims their respective degrees and duration may it be the loss, impairment or malformation of a limb, disfigurement, shock, psychological traumatic experience of the injuries given the differences which may arise by the special circumstances
of each individual when taken into account it can be said there is a fair compensation for one victim to another using that range of factors. It is true to state that generally damages are incapable of exact estimation for their assessment by courts cannot be the result of any arithmetical or logical measure both the thing is much more to do with common sense, impression, and exercise of the tyranny of judicial discretion by Judges and Magistrates. The case at bar involves the death of a victim at the age of 24 years who had a legitimate expectation of life that he may live a fulfilled life up to the age of 70 years or beyond but that prospect of an enjoyable, vigorous and happy old life was prematurely cut short by the offending tortfeasor. Even in this circumstances, the law speaks of compensation to be moderate. That is the position taken by the Appellant in the cross appeal in giving the proposal of Kshs 1,000,000 as sufficient in favour of the estate of the deceased. As it would be seen shortly, the measure of damages to be determined at the date of death under the Fatal Accident Act should consider many factors including subsequently event occurring before the Trial which make more certain the calculations for the loss. This being a premature death, I am of the view that for the victim who have been in permanent employment or had an ascertain wages paid monthly or weekly that clause of him or her having salary incremental which he/she could have received at he/she lived to the retirement age of 60 years should be factored in the assessment of damages. The question of dependency of the deceased children becoming orphans from the surviving parent’s death must be largely taken into account to arrive to a fair compensation despite the law insisting that there is no perfect compensation. As the law stands now with its rigidity, the infinity variety of circumstances does not permit the evolution of a formula for the calculation of assessment of damages that would solve all problems during our lifetime.
32. The question is from the general characteristic of the substantive appeal and the cross appeal by Hardley Malema the Defendant in the main suit and further the Appellant Slyvia and Mary who were the administrators of the estate of Rebecca Amos Kokonya, the relevant considerations would be analyzed within the boundaries of the above principles and other guidelines to be factored elsewhere in this judgment. The factor of importance is the deceased age, expectation of life, state of health, probable duration of earning capacity and the possibility of a life being prematurely determined by the accident.
(a) The multiplicand
33. 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.
34. 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. However, 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.”
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. The first ground therefore fails. The multiplicand of Kshs. 10,000/= stands.
(b) The multiplier
44. The multiplier is a different matter altogether, and here I think the Appellants are on solid ground.
45. 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.
46. 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.
47. I remind myself that the multiplier is not a mathematical constant and
[...truncated]
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.
11. The subject matter of this appeal transcends two Appellants meaning that there is also a cross appeal from one Hardley Malema Mulekawi who being aggrieved by the said decision on 23rd January 2025 filed a memorandum of appeal dated 20th February 2025. He relied on the following grounds of appeal in which he stated as follows:
a. THAT the Learned Trial Magistrate's exercise of discretion in assessment of quantum, especially on the limb of loss of dependency and on pain and suffering was injudicious.
b. THAT the Learned Trial Magistrate erred in law and in fact in awarding loss of dependency of Kshs 1,600,000/= yet there was no proof of income of the deceased.
c. THAT the Learned Trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Defendant's submissions that were guiding in the amount of quantum that was appropriate and applicable in similar cases as the case she was deciding.
12. The Appellant in the cross appeal filed submissions in which he contended as follows: He argued that the income of Kshs 10,000/= that was adopted by the Trial Court was not proven by the Respondents and no documentation was presented before the court to show that the deceased was indeed taking home Kshs 10,000/=. It was his contention that there being no proof of income produced, then the court should have applied a global sum award as opposed to applying the multiplier method. In this regard, he relied on the case of Albert Odawa vs Gichimu Githenji [2007] eKLR where it was held that the multiplier approach was just a method of assessing damages and was not a principle of law or dogma and could be abandoned where the facts do not facilitate its application.
13. He further placed reliance on the cases of Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (Suing as Administrators andpersonal Representative of Antony Mwiti Gakungu (Deceased) [2020] eKLR and Mercy Muriuki & Another vs Samuel Mwangi Nduati &
Another (Suing as the Legal Administrators of the Estate of the Late Robert Mwangi) [2019] KEHC 9014 (KLR) where the common thread therein was that the courts gave a global award having found that there was no proof on income. He urged the court to dismiss the Trial Court's award as the court applied wrong principles in arriving at loss of dependency. He proposed that a global award of Kshs 1,000,000/= would be sufficient compensation in the circumstances of this case.
The Submissions
14. 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/=.
15. 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.
16. 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
17. 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.
18. 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 …”
19. 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
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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
26. The issues, then, are these:
a) Whether the learned trial Magistrate erred in adopting a multiplicand of Kshs. 10,000/= per month;
b) Whether the issues raised in the cross appeal are capable of finding favour in this appeal;
c) Whether she erred in adopting a multiplier of 20 years;
d) What award, if any, ought to be substituted, and who should bear the costs.
Analysis and Determination
27. The Court is vest with the question of assessing damages under the Fatal Accident Act which is the anchor Statute. Assessing damages under the Fatal Accidents Act involves calculating the financial loss suffered by dependents after a person’s death, a process complicated by the need to determine uncertain variables like future income, dependency ratios, and multipliers. The core complexities in assessment of damages under the Fatal Accident Act revolves under the following factors:
• Determining the Multiplicand (Income): Establishing the deceased's true earnings is difficult when the victim is self-employed, works in the informal sector, or is a minor with no employment history. Courts often resort to applying a baseline minimum wage or conservative estimates, which can be speculative.
• Choosing the Multiplier (Number of Years): The multiplier represents the expected working lifespan remaining. Judges must weigh the age of the deceased against the uncertainties, vicissitudes, and vagaries of life (such as illness, early retirement, or job loss).
• Setting the Dependency Ratio: Deciding the exact fraction of the deceased’s income spent on the dependents (e.g., 1/3, 1/2, or 2/3) requires clear evidence of family size and actual financial reliance.
• Overlapping Claims (Law Reform Act vs. Fatal Accidents Act): Courts must avoid "double compensation" when claims are brought under both the Law Reform Act (for the estate's benefit) and the Fatal Accidents Act (for the dependents' loss of dependency), leading to traditional legal deductions or balancing acts
28. The issue for this court to grapple with in this appeal is whether the multiplier for future loss in fatal claims should be calculated from the date of death or date of trial. If the answer was to be the date of trial this gave rise to a subsidiary issue of whether it was open to, or proper for, the Court to depart from the approach laid down by Lord Diplock and Lord Fraser of Tullybelton in Cookson and by Lord Bridge of Harwich in Graham or whether any defect in the present law is one which should be left to Parliament to cure. There has been a long standing argument in fata accidents claims as to which of the two dates should carry more weight in terms of assessing damages in favour of the Claimant. On the part of Lord Diplock he explained himself as follows: that calculating damages for loss of dependency upon the deceased from the date of death, rather than from the date of trial, means that the claimant is suffering a discount for early receipt of the money when in fact that money will not be received until after trial.
29. From the outset, the extreme difficulty in fixing the amount of damages was recognized and it was felt that the courts would be "very much at sea until by a long course of decisions some settled principles can be established. Today, although the basic principles on which damage awards are made are defined and comparatively easy to state, their application with consistency remains most difficult. Whether the claim arises out of personal injury or death, damage assessment is "one of the most difficult tasks which a Judge or Magistrate has to perform because the elements which must be considered in any given case vary so infinitely from other cases that there can be no fixed and unalterable standard for assessing the amounts for those particular elements. The result must always be an element of the arbitrary in any award and the award in part must be a matter of estimate and even speculation or conjecture. (See the principles in Armsworth v S.E Rly. Co (1847), 11 Jur 758, per Parke B. at 760 and Bird v Cocking & Sons Ltd, [1951] 2 T.L.R. 1260, per Birkett L.J. at p. 1263).
30. One of the issues to bear in mind within our legal system as Courts navigate the assessment of damages landscape which are meant to compensate the victims of a road traffic accident for either injuries suffered or the act of death as a result of that accident is that compensation cannot be perfect but the law looks upon the Judges and Magistrates to ensure that assessment damages must be fair. This does resonate well with the general rule that money would never constitute restitutio in integrum to sufficiently and adequately to restore the harm caused to the estate of the deceased or the injured party generally referred as the victim of the accident by the wrongdoer. This appeal and cross appeal does present the overall picture as to the complexity involved on the capability of accurate proof and exact assessment in which both the claimant and the Defendant would echo the words at the end of the judgment that justice has been done.
31. I find it perplexing in looking at the past awards as one of the principles to take into account particularly to the injured victims their respective degrees and duration may it be the loss, impairment or malformation of a limb, disfigurement, shock, psychological traumatic experience of the injuries given the differences which may arise by the special circumstances
of each individual when taken into account it can be said there is a fair compensation for one victim to another using that range of factors. It is true to state that generally damages are incapable of exact estimation for their assessment by courts cannot be the result of any arithmetical or logical measure both the thing is much more to do with common sense, impression, and exercise of the tyranny of judicial discretion by Judges and Magistrates. The case at bar involves the death of a victim at the age of 24 years who had a legitimate expectation of life that he may live a fulfilled life up to the age of 70 years or beyond but that prospect of an enjoyable, vigorous and happy old life was prematurely cut short by the offending tortfeasor. Even in this circumstances, the law speaks of compensation to be moderate. That is the position taken by the Appellant in the cross appeal in giving the proposal of Kshs 1,000,000 as sufficient in favour of the estate of the deceased. As it would be seen shortly, the measure of damages to be determined at the date of death under the Fatal Accident Act should consider many factors including subsequently event occurring before the Trial which make more certain the calculations for the loss. This being a premature death, I am of the view that for the victim who have been in permanent employment or had an ascertain wages paid monthly or weekly that clause of him or her having salary incremental which he/she could have received at he/she lived to the retirement age of 60 years should be factored in the assessment of damages. The question of dependency of the deceased children becoming orphans from the surviving parent’s death must be largely taken into account to arrive to a fair compensation despite the law insisting that there is no perfect compensation. As the law stands now with its rigidity, the infinity variety of circumstances does not permit the evolution of a formula for the calculation of assessment of damages that would solve all problems during our lifetime.
32. The question is from the general characteristic of the substantive appeal and the cross appeal by Hardley Malema the Defendant in the main suit and further the Appellant Slyvia and Mary who were the administrators of the estate of Rebecca Amos Kokonya, the relevant considerations would be analyzed within the boundaries of the above principles and other guidelines to be factored elsewhere in this judgment. The factor of importance is the deceased age, expectation of life, state of health, probable duration of earning capacity and the possibility of a life being prematurely determined by the accident.
(a) The multiplicand
33. 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.
34. 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. However, 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.”
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. The first ground therefore fails. The multiplicand of Kshs. 10,000/= stands.
(b) The multiplier
44. The multiplier is a different matter altogether, and here I think the Appellants are on solid ground.
45. 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.
46. 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.
47. I remind myself that the multiplier is not a mathematical constant and
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